fredag 8 november 2013

"The Joint "Criminal" Enterprise Against Judge Theodor Meron"

Synnerligen intressant läsning som jag av en händelse råkade fånga upp på nätet, och vill dela med mig av då jag utgår ifrån att det kan intressera - och förvåna/chocka - många. Författaren till texten nedan är den kroatisk-amerikanske advokaten Luka S. Mišetić, vilken försvarade generallöjtnant Ante Gotovina vid den internationella krigsförbrytartribunalen för f.d. Jugoslavien (ICTY/TPIY). 

Texten nedan publicerades på Luka S. Mišetićs blogg Misetic Law den 19/6 2013.

The Joint "Criminal" Enterprise Against Judge Theodor Meron

The Inside Story of How Carl Bildt, Intelligence Agencies from the Nordic countries, Serge Brammertz, Florence Hartmann, Mirko Klarin And Others Are Connected to the “Controversy” Designed to Discredit the ICTY’s President, Judge Theodor Meron

By Luka Misetic
 
As controversy continues to engulf the ICTY as a result of Judge Fred Harhoff’s seemingly senseless email, over the past week I have been asked the same question repeatedly.  Journalists, former prosecutors, defense attorneys, friends and relatives have all asked me the exact same question:
 
“What is going on here?”
 
Allegations are flying, from the pages of the New York Times to the website of the BBC to the cafeteria inside the ICTY itself, that the ICTY’s President, Judge Theodor Meron, has been corrupted by the government of the United States.  Judge Fred Harhoff passed along these rumors to 56 of his “closest friends”, thus triggering the “controversy.”[1]  Of course, there has not been a single shred of evidence to support this claim.  Nevertheless, the “story” continues to be driven by several individuals, many with close connections to the Office of the Prosecutor of the ICTY.
 
This blog post is my attempt to begin to answer to that often repeated query: “What is going on here?”  As I will explain in great detail below, the interests of many with an agenda against Judge Meron and/or Ante Gotovina have aligned, including current and former members of the Office of the Prosecutor, foreign intelligence services who have/had operatives inside the Office of the Prosecutor, a number of journalists, and the government of Serbia, among others.  Their objective is to so thoroughly discredit Judge Meron that they will (1) force his removal as President of the ICTY; (2) discredit the acquittals of Gotovina, Markac, Perisic, and Jovica Stanisic and create such an unbearable political climate that the judges will somehow reverse their acquittals even after final Judgement, and (3) in the case of former Prosecution spokeswoman Florence Hartmann, discredit her conviction for contempt of the Tribunal (of which all eight judges of the ICTY who reviewed her case found her guilty, unanimously).
 
In short, I argue that we are witnessing a Joint “Criminal” Enterprise unfolding against Judge Meron (the “crime” in this case being his defamation).  The “common purpose” of the Meron JCE is to destroy Judge Meron’s reputation so as to discredit the acquittals of Gotovina, Markac, and Perisic.    ICTY precedent holds that such a JCE can exist even if the participants in it have never formally agreed to such a conspiracy, and indeed even if they do not know of each other’s existence.  (See Gotovina Trial Judgement, page 985).  What is important is that they all share the same goal: to discredit Theodor Meron.
 
I.               Introduction
 
To understand “what is going on here,” some basic facts about Operation Storm and the Gotovina case must be established at the outset. First point:  Judges Meron, Robinson and Guney got it right when they acquitted Gotovina.  Contrary to the Prosecution’s novel theory at trial, and Judge Orie’s Trial Judgement based on his invented “200 Meter Standard” (which all five Appeals Chamber judges agreed was erroneous), the Serbs from “Krajina” were not ethnically cleansed by an unlawful artillery assault launched by Ante Gotovina.
 
I do not intend to re-litigate the Gotovina trial here.  In summary, the Prosecution argued at trial that the Serbs were deported from Croatia because they were allegedly terrorized into leaving by Gotovina’s merciless artillery assault on civilians and civilian objects.  But if you ask Serge Brammertz today whether the Prosecution has ever been able to identify (1) a civilian killed or injured by artillery shelling during Operation Storm or (2) a civilian who claimed to have left the “Krajina” due to fear of artillery shelling, Brammertz will concede to you that they were never able to find any such person.  There are no known victims of the alleged unlawful artillery assault or of the so-called “Brioni JCE” led by Croatian President Franjo Tudjman.  Judges Meron, Robinson and Guney overturned a 24-year conviction of a man where the Prosecution could not establish a single JCE victim.  In any domestic jurisdiction, it would be Orie’s Trial Judgement and not the Appeals Chamber’s Judgement that would be deemed the controversial decision.  But for many at the ICTY, this is merely an inconvenient truth.[2]
 
Ironically, former Prosecution spokeswoman Florence Hartmann wrote a book in 1999 titled “"Milosevic: la diagonale du fou (Milosevic: Diagonal of a Madman),” in which she argued that the “Krajina” Serbs were cleansed by Milosevic, not Tudjman.  In a chapter titled the “Abandonment of Krajina,” the book details why the “Krajina” Serb population left Croatia during Operation Storm.  Hartmann, a journalist covering the war for Le Monde at the time of Operation Storm, asserted, “every refugee could confirm that the population had fled at the request of their own [Krajina Serb] leadership.” Further, she wrote that every soldier was a witness to the deliberate withdrawal of the Serbian military, the officers abandoning the night shift at the front and the retreat of heavy armor. She describes the whole process as the  "strategic abandonment" of 'Krajina' by Milosevic and the entire Serbian leadership.
 
Accordingly, even Hartmann knows that Judges Meron, Robinson and Guney were right to strike down the Trial Chamber’s finding that Gotovina deported the “Krajina” Serbs through unlawful shelling. Nevertheless, Hartmann is one of the principle members of the “Meron JCE,” attempting to undermine Judge Meron in an effort to discredit her own conviction for contempt of the Tribunal.

 
II.             The Role of Foreign Intelligence Services Inside the ICTY’s Office of the Prosecutor
 
In the early years of the Tribunal, the ICTY did not have the resources to hire its own staff in large numbers.  Therefore, many of the prosecutors, analysts and investigators working for OTP in the 1990’s were “on loan” to the ICTY from their own governments.   In her book, “Peace and Punishment,” Florence Hartmann reveals that some of the “on loan” personnel were really intelligence agents working more for their home governments than the ICTY.  On page 47 of the Croatian edition of the book, Hartmann describes certain members of the Prosecution staff:
 
Some barely know where the Balkans even is. They are hounding the Prosecution, the moving force of the Tribunal, whose judges have been subdued to the position of arbitrators between the Defense and the Prosecutors. Military analysts, lawyers and intelligence officers easily blend in the crowd continuing to occupy humble yet strategic positions and serving more to their own governments than the ICTY.
 
This background information leads us to two Nordic intelligence agents named Joakim Robertsson (Sweden) and Thomas Elfgren (Finland), who became ICTY Prosecution investigators and whose stories are interwoven into the Gotovina case and the recent “Meron JCE.”
 
 
III.           Carl Bildt and the Gotovina Case
 
Intelligence agencies from the Nordic countries became heavily involved in the Gotovina case in order to protect the reputation of Sweden’s top diplomat, Carl Bildt.
Within 9 hours of the commencement of Operation Storm, Bildt, then acting in his capacity as the European Union’s chief peace negotiator in ex-Yugoslavia, issued a press release in which he declared that because the Croatian Army had “shelled the civilian population” in the town of Knin, Croatian President Franjo Tudjman would be brought before the ICTY.[3]  Bildt was in London when he sent this release and had no first hand information to support the claim.
 
After the Croatian takeover of the “Krajina,” international journalists descended on the town of Knin in order to find the evidence of Bildt’s claim that the Croatians had “shelled the civilian population.”  The international press unanimously concluded that the allegation was false:  there was no evidence of any unlawful shelling.  Pulitzer prize winner Roy Gutman reported from Knin on August 7th, 1995, three days after Storm began: 
 
At the United Nations base in Knin, UN officers chaffed at a continued curfew and restrictions on movements, but they acknowledged that the UN had overstated the damage to Knin during the height of fighting. The UN commander, Brigadier-General Alain Forand of Canada had said that there had been no direct hits on Knin's hospital. Reporters saw ... large craters from shells that shattered most of the windows in a nearby apartment house but there was no evidence of indiscriminate shelling.[4]
 
Similarly, the New York Times reported:
 
The town does not appear to have been as badly damaged as reports of the shelling over the past few days would have suggested. For one thing, the hospital was not shelled, as had been reported. Only one shell hit the modern hospital building, and the Croats appeared to be aiming at a rebel Serbian tank firing from nearby, a United Nations official who had been at the hospital said today. "I don't think they were shelling us," said the official, who spoke on condition of anonymity. In three passes over the town by helicopter, little evidence was seen of the kind of damage that extensive shelling would cause. The red tile roofs on most houses are intact. The only gutted building was the Roman Catholic Church, which served the Catholic Croats, and the Serbs, who are Orthodox, did that during their occupation.[5]

 
Finally, United Nations Military Observers conducted their own investigation into the shelling of Knin.  On 17 August 1995, they reported that the shelling had been “concentrated against military objectives,” and that only 3 to 5 shells could be found outside the vicinity of military objectives.[6]
Accordingly, the United Nations and the international media had both investigated Bildt’s claims that Tudjman’s forces had “shelled the civilian population,” and concluded that they were unsubstantiated. 
 
In reaction to Bildt’s call for Tudjman to be indicted by the ICTY, Croatia declared Bildt to be persona non grata in Croatia.[7]  Bosnia-Herzegovina quickly followed suit.[8]
Bildt thus found himself in the role of the EU’s top peace envoy but unable to travel to Croatia or be received by Bosnia-Herzegovina officials due to his status as persona non grata.  Bildt acknowledges this in his memoirs, even recounting that Croatia had refused his plane landing rights at the airport in Split as a result of the dispute.[9]  With Bildt and the E.U. on the sidelines, Richard Holbrooke took over as the primary international negotiator with the parties in ex-Yugoslavia and ultimately became the architect of the Dayton Peace Accords.

 
IV.           Nordic Intelligence To Bildt’s Rescue:  Robertsson and Elfgren Join the ICTY to Investigate Tudjman and Storm
 
When Operation Storm began on 4 August 1995, Joakim Robertsson was a Swedish military intelligence officer stationed in Zagreb as part of the United Nations Protection Force (UNPROFOR). [10]   Three weeks later, while Bildt was persona non grata in Croatia, Robertsson was sent by Sweden from Zagreb to the ICTY to be the ICTY Prosecution’s lead investigator into the shelling conducted in Operation Storm. Within weeks, Robertsson was joined by Thomas Elfgren, an agent with Finland’s National Bureau of Investigation who was loaned to the ICTY as an “Expert on Mission” to assist Robertsson in the Prosecution’s “investigation” of Operation Storm.[11] 
 
The task given to Robertsson and Elfgren was simple.  They were to build the case that Bildt’s allegations against Tudjman were true by proving that the Croatian Army had indiscriminately shelled civilians, at Tudjman’s direction and on Gotovina’s orders.  Robertsson and Elfgren stopped at nothing to vindicate Bildt by making sure that Tudjman and his generals would be indicted for the alleged unlawful shelling of Knin.   Robertsson went so far as to fabricate evidence in the Gotovina case, and should have been criminally prosecuted for obstruction of justice.  (For a full discussion of

V.             Elfgren and Robertsson Leaked Information to the New York Times in 1999 Alleging Gotovina Indictment Was Rejected Due to U.S. Conspiracy

Elfgren and Robertsson failed to convince their colleagues in the Office of the Prosecutor that the shelling of Knin was unlawful.  The Prosecution in 1998 held an Indictment Review and concluded that the evidence was insufficient to include a charge of unlawful shelling in any indictment for Operation Storm.  This should not have come as a surprise given that (1) the United Nations investigation in the immediate aftermath of Storm confirmed the lawfulness of the shelling; (2) on site investigations by international media including the New York Times confirmed the same; and (3) the Prosecution could never identify a single shelling victim.
 
Having failed to fulfill the mission with respect to Bildt, Elfgren and Robertsson concluded that the failure of their case was not because of the lack of evidence, but because of a conspiracy led by the United States government to impede the investigation of Operation Storm.  Elfgren leaked an internal Prosecution assessment to the New York Times, spinning that the U.S. was blocking the Operation Storm investigation.[12] 
 
Prosecutor Louise Arbour responded to the leak by stating that the Prosecution would conduct an internal investigation to determine the source of the leak.[13] Arbour’s investigation ultimately concluded that Elfgren was the source of the 1999 leak to the New York Times, which Elfgren himself confirmed to me via email recently.
 
Elfgren and Robertsson never had any evidence that the United States was blocking an indictment for the use of artillery in Operation Storm.   There was no charge for unlawful shelling because there was no evidence of unlawful shelling.  Indeed, even when the Prosecution ultimately indicted Gotovina in 2001, it did not include a charge that the Krajina Serbs were ethnically cleansed due to unlawful shelling.  Instead, the Prosecution charged that the Krajina Serbs were deported because the crimes committed after Operation Storm had prevented their return.[14]  It was not until 2006, after Gotovina’s arrest that the Prosecution first charged that the Serbs had been ethnically cleansed from Croatia due to the shelling attack.

VI.           Elfgren and Robertsson Attack Judge Meron

Elfgren and Robertsson left the ICTY before the judgements in the Gotovina case were issued.  After the Appeals Chamber’s acquittal of Generals Gotovina and Markac in November 2012, Prosecutor Serge Brammertz travelled to Helsinki, Finland where he appeared on a panel discussion with Elfgren on 22 January 2013 at Helsinki University.[15]  In his speech addressing Brammertz, Elfgren once again complained that Gotovina had been protected by the United States:

 
One could argue, with a fairly good reasoning, that the ICTY, at the very outset, failed to fulfill its intended purpose. The Tribunal posed no threat to the perpetrators. The Srebrenica massacre, also known as the Srebrenica genocide serves as an example. The widespread killings and forced displacement of the Krajina Serbs in August 1995 is just another one. Many more could be mentioned…
 
Criminal justice system professionals have their focus on technically perfect decisions. Too often they pay too little attention on the material truth and the importance of reconciliation. Truth and reconciliation should be on top of the agenda when peace and security is at stake.
 
           In 1995, in the corridors of the ICTY, there were influential elements who knew that no
           crimes  were committed by the Croats during Operation Storm. My question is, how could
           they know this?

           Mr. Prosecutor, you did your utmost to prove the opposite, but you failed. The appeals  
           chamber, in its recent decision shared the view with those who already had the answer in  
           1995. [16]
 
Elfgren and Robertsson did not stop with this speech in January 2013. Instead, as they had done in 1999 in leaking to the New York Times, the two began their campaign to discredit Gotovina’s acquittal by acting as anonymous sources to Helsinki’s leading newspaper, Helsingin Sanomat. One would not typically look to the Helsingin Sanomat for hard-hitting investigative journalism about the inner-workings of the ICTY in The Hague, but Elfgren turned to his local paper first.
 
On 14 April 2013, Helsingin Sanomat published a sensationalist piece claiming that the United States had influenced the Tribunal into acquitting Gotovina.[17]  Having participated in the Gotovina case and thus having had access to all confidential materials in the case, I can state with certainty that the article in Helsingin Sanomat was filled with outright lies that are intended to create the perception that the United States attempted to influence the ICTY in the Operation Storm case.  For example, the article claims that the CIA withheld satellite imagery concerning Operation Storm in an effort to protect Gotovina, despite U.S. denials that such imagery exists.  The author of the article reports that his sources (read: Elfgren and Robertsson) dispute the U.S. denial because “the investigators had previously received one satellite picture from the Canadian Colonel Leslie, which he had been given by the Americans. “ Leslie never produced such a picture and never claimed to have such a picture.  If he had, I as Gotovina’s Defence Counsel would know.
 
The article goes on to claim that my fellow Gotovina Defence Counsel, Greg Kehoe, “opposed” the investigation of Gotovina back during the time when he worked for the ICTY Prosecution.  This is an outright lie.  The Gotovina Trial Chamber thoroughly investigated whether Greg had a conflict of interest, reviewed all of the Prosecution’s internal memoranda, and concluded that Greg had no involvement in the Operation Storm case.[18]  Given that Greg was prosecuting a Croatian general (Blaskic) during his time at the ICTY, it is preposterous to suggest that he was secretly protecting one Croatian general (Gotovina) while successfully prosecuting another (Blaskic). Remarkably, the article mentions that the lawyer who prosecuted Gotovina, Alan Tieger, is also an American, suggesting that Tieger is somehow complicit in the U.S. conspiracy to protect Gotovina.
 
Interestingly, the Helsingin Sanomat article ghost written by Elfgren and Robertsson is the first to attack Judge Meron on the basis of Wikileaks cables from 2003.  Sanomat suggests that Judge Meron spoke to the U.S. Ambassador in 2003 in an effort to get rid of Carla Del Ponte in 2003 because she had indicted Gotovina.  Two months later in June 2013, other members of the “Meron JCE” have recycled the Wikileaks cables as new “news”[19] in an effort to discredit Judge Meron following a leaked email written by, guess who?
 
The ICTY’s lone Nordic Judge, the Scandinavian Judge Frederik Harhoff of Denmark.
 
End of Part I

 
[1] For my deconstruction of Harhoff’s email, see my earlier blog post:  Debunking Fred Harhoff’s Outrageous Email, http://miseticlaw.blogspot.com/2013/06/debunking-fred-harhoffs-outrageous-email.html
[2] For further discussion on why the Appeals Chamber was correct to acquit Gotovina, see my earlier blog post here: http://miseticlaw.blogspot.com/2012/12/dissenting-from-dissenting-opinions-of.html
[4] Newsday, In Krajina, Disorder Reigns, (8 August 1995).
[5] New York Times, “Croats Celebrate Capturing Capital of Serbian Rebels”(8 August 1995).
[9] Carl Bildt, Peace Journey, pages 75-80.
[10] See paragraph 4 and Annexes A and B here:  http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Submission/NotIndexable/IT-06-90/MSC7260R0000280212.pdf . See also Robertsson’s LinkedIn Profile here: http://fr.linkedin.com/pub/joakim-robertsson/4/3b0/879.  Note that Robertsson on his LinkedIn CV has left out the year from September 1995 to August 1996, and claims to have only worked for OTP from September 1996 to September 1997.  In fact, Robertsson worked for OTP from September 1995 to September 1997.  See, e.g., Trial Exhibit P-214 at page 1: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81081R0000320324.TIF.
[11] See Trial Exhibit P-721, demonstrating Elfgren’s status at ICTY as of December 1995: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE81779R0000321386.TIF
[12] New York Times, War Crimes Panel Finds Croat Troops Cleansed the Serbs, 21 March 1999, as found at http://www.nytimes.com/1999/03/21/world/war-crimes-panel-finds-croat-troops-cleansed-the-serbs.html?pagewanted=all&src=pm
[14] See Gotovina 2001 Indictment, at paragraphs 19-20; Gotovina 2004 Amended Indictment, at paragraphs 23-24 and 36-37.
[19] See Agence France-Presse, Wikileaks Cables Support Criticism of ICTY Judge, 18 June 2013, as found at http://www.globalpost.com/dispatch/news/afp/130618/wikileaks-cables-support-criticism-icty-judge
 
Luka S. Mišetićs blogg: Misetic Law
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The Croatian war is sensitive. As is known, Milosevic was originally backed by the Western powers. "All sides equally guilty" was the mantra of both Serb propagandists and Western governments. ´Operation Storm´ angered many in the West who wanted to see the Serbs win quickly and have their gains legitimised by ´peace plans´ cooked up by David Owen, Carl Bildt etc. ´Operation Storm´ made fools of all these people (General Ante Gotovina blog)
 
 
 
Thomas Elfgren, Wikipedia
 

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