Mirjan Damaska, one of the leading world experts for international law and a professor at Yale University, where he teaches several coursesIn the New Year, Croatia will be facing serious problems with the Hague Tribunal as the trials of Ante Gotovina, Ivan Cermak and Mladen Markac will be tried on charges of association in a criminal enterprise during Operation Storm. The indictment against the three men is based on the doctrine of a joint criminal operation, which directly suggests that the entire Croatian state was built on crime. At the time the indictment was released, it aroused numerous reactions among the Croatian public, but to date little could be heard about this doctrine from the legal profession. In mid 2005, the first person to speak out about the problematic aspects of the doctrine of a joint criminal operation was Mirjan Damaska, one of the leading world experts for international law and a professor at Yale University, where he teaches several courses. On 7 June of last year, Damaska lectured post-graduated students in Criminal Law at the University of Zagreb on the Malady of the Joint Criminal Enterprise, a concept which in recent years has become the favourite weapon of the Hague Prosecution. Damaska's lecture was later published in the expert journal Croatian Annals for Criminal Law and Practice, and this article received great attention from domestic and international legal circles.

Political games

In this lecture, Damaska spoke critically of the joint criminal enterprise and warned of certain serious shortcomings in the doctrine, upon which the indictment against Generals Ivan Cermak, Mladen Markac and Ante Gotovina was based. He stated that the Hague Tribunal has opted to favouritize this doctrine due to the problems in processing the truly responsible persons for serious war crimes, which were most often not directly in touch with the commanders who formally commanded those crimes and their executors or accomplices. Damaska warned that the doctrine of the joint criminal enterprise is not even mentioned in the Statute of the Hague Tribunal, but the judges and prosecutors have taken it from an article referring to committing and various forms of accomplices in criminal acts. He claims that in the definition of the joint criminal enterprise, there is a serious problem with setting the lower boundaries and levels of individual responsibility in the collective context, and numerous other ambiguities which, for the time being, have no precedence in legal practice. Damaska stressed that by this, the Prosecution has left the door wide open to set the low boundaries of this political game.

His criticisms have aroused great public interest, particularly due to his professional reputation. In this interview with Nacional, Damaska explained in detail what his criticisms of the doctrine of the joint criminal enterprise is based on, and how this doctrine used by the Hague Prosecution against Cermak, Markac and Gotovina threatens to cast a serious shadow on the circumstances in which the modern Croatian state was formed. Damaska describes how and when he began to cooperate with the Croatian government and gives his opinion on certain aspects of the indictment against the three generals, particularly Ante Gotovina.

Command responsibility

NACIONAL: How do you explain the fact that in the eight years of its existence, the ICTY Prosecution has almost exclusively relied on command responsibility, and not on the principle of a joint criminal enterprise? What happened for the situation to change after 2001, for this new principle to become the favourite weapon of the Prosecution?

- In my opinion, there are several reasons for that. The primary inclination of the Prosecution on command responsibility is easy to understand, for this form of responsibility was foreseen in the Statute of the Hague Tribunal. However, over time, it was seen that command responsibility is not always an appropriate instrument which could lead to the conviction of those the Prosecution felt should be convicted. One problem was the difficulty in proving the vertical relationship of superiority and inferiority in conflicts with paramilitary troops, or even efficient control over inferiors. However, with the favourable political climate somewhere in 2001, the Prosecution decided to expand the indictment against persons from political structures and the state leadership, then there were certain shortcomings with command responsibility. The persons in this new target of the Prosecution were commonly linked in horizontal relations of coordination and division of labour, and not in a vertical hierarchy. With that, in the new context, it was not easy to find and prove a concrete connection between the political leadership and the direct executors in the field. The construction of a joint criminal enterprise therefore became attractive, particularly in combination with command responsibility.

NACIONAL: Do you consider it logical legally that the joint criminal enterprise, the favourite weapon of the Hague Prosecution, is not even mentioned in the Tribunal Statute, but was instead extracted by judges from Article 7 which mentions committing criminal acts and various forms of accomplices?

- I would say that the favourite weapon of the Prosecution is more problematic than command responsibility in traditional legal theory because this weapon was created and sharpened through trial practice, which leads to strains against the prohibition that criminal responsibility be shaped after the events upon which the legal regulations are applied. That is though you've now forbidden someone from doing something that they did yesterday. The precedents that the Hague Tribunal are calling upon in order to refute the objections to retroactive creation of laws do not clearly support all the forms of the joint criminal enterprise that the Hague Tribunal has accepted. I must stress that these objections are founded on what I've just said, without any practical significance. The court will not move away from its practice because of them. However, this objective will be of interest when the work of the Hague Tribunal is assessed, coldly and objectively – sine ira et studio, as well as the issue of whether the ban on retroactivity should be ignored in terms of international crime.

Unspecific concept

NACIONAL: How can the lower boundary and the level of individual responsibility be defined in the collective context described by the joint criminal enterprise, particularly in the light in which Carla Del Ponte mentions many other officials in various branches of power, including „other known and unknown persons“ in the indictment against Gotovina, Cermak and Markac?

- The primary shortcoming of the joint criminal enterprise is exactly the ambiguity of the concept. Such an objection of ambiguity relates to the issue of just how far membership in the joint criminal enterprise stretches. This is very important as each member of the joint criminal enterprise is responsible for all the acts committed as part of the enterprise, and under certain terms, for acts which exceed the framework of the planned enterprise. To give an example. According to the theory set by the Hague Tribunal, it is not clear whether each member of Al Quaida would be held accountable before the competent court for all terrorist acts of this world-wide organizations, under the added condition that he committed an act which can be considered a contribution to the organization. You mentioned the additions to the indictment against Cermak and Markac, in which the membership of the criminal enterprise is listed to include virtually the entire state and a good portion of the political apparatus. It is true that these persons are only mentioned in the indictment, and not accused. However, that does not change the fact that all these people have been stigmatized by the indictment and that it is only a discretionary decision of the Prosecution as to whether they will be tried. We must not forget that the very act of accusation can hold great political weight in the international arena. When you give the Prosecution such wide authority and then depend on its feeling for measure, then it in fact becomes the most important actor in international law. Experience with national judiciaries has taught us that it is very risky to raise one side in the criminal procedure to such heights.

NACIONAL: How is it possible, in the current approach of the concept of a joint criminal enterprise, to avoid entering the zone of collective responsibility of the nation for the legitimate political decision to initiate the liberation operations Flash and Storm?

- One should not confuse legal and moral responsibility, even though they are intertwined. When the Hague indictment lists the entire state apparatus in the joint criminal enterprise, from the legal perspective, only that apparatus is being tried. However, considering that this apparatus was democratically elected and, if it enjoyed public support, then the indictment implies that the citizens were not innocent bystanders morally, but that within them is a portion of the moral responsibility for all that happened by the activities of the government they legally elected. Under the condition that it did not intend to insinuate this form of responsibility, the Prosecution had to take that into account when it tailored such a wide network of the criminal enterprise in the expanded indictment against Cermak and Markac. But to return to the law. There is no doubt that the concept of a joint criminal enterprise in its current form approaches collective responsibility, in the sense which the Americans call guilt by association. I will use the same example: if any member of Al Quaida – under the assumption that he committed an act which could be considered a contribution to the organization – is held responsible for all the acts that organization has committed, then the clear boundary disappears of responsibility on by virtue of membership in that organization.

Double moral standard

NACIONAL: Do you believe the insistence on the joint criminal enterprise by the Prosecution could truly jeopardize the legitimacy of international law in the long run, and why?

- The continuing fragile legitimacy of international courts greatly depends on whether the society in those places directly under their competence does not ethically oppose its work. A double moral standard, which is what we're really talking about, is one such reason, while there are others which are outside the scope of our discussion. Cynicism, which stems from negative reactions from those reasons, harms the reputation of international legal system and undermines its legitimacy.

NACIONAL: Do you believe that the so-called Brijuni transcripts are sufficient evidence to prove the existent of an explicit or understood agreement to carry out the criminal acts that the ICTY has accused Gotovina, Cermak and Markac of, and that analogous to that, all the crimes in Storm can be attributed to these three men as the alleged conspirers, without the need to prove any relationship between them and the direct executors? Can these documents serve as the basis for proving „joint intent“ or a „silent agreement“, two very shady concepts from the doctrine of joint criminal enterprise?

- That is a difficult question to answer. The comments in these transcripts can be interpreted in different ways, and it has still not been established whether these transcripts are complete or selective. Their authenticity has not yet been established in court, and any possible counter-evidence is unknown. However, if the Prosecution can get through all these difficulties, then the accused could be convicted without the need to prove concrete relationships between themselves and the direct culprits. That is precisely the attractiveness of the joint criminal enterprise to the Prosecution. It is sufficient for the Prosecution to prove that the accused committed acts that contributed to the plan, which need not be criminal acts.

NACIONAL: Do you think that it is realistic to expect that the defence team of the three men – Gotovina, Cermak and Markac – could conflict during the case? How do you comment the news that the former prosecutor in the Blaskic case has joined Gotovina's defence team?

- Though they now deny the possibility of a conflict, this cannot be excluded. The Prosecution pressures to make a deal could have their effect on powerful figures over time. This was seen in the Plavsic case, and in certain cases stemming from the conflict in the Lasva Valley. This is the first I've heard of Blaskic's prosecutor joining Gotovina's defence. I was involved in the case on the side of the defence up until the first instance ruling, but I must admit that I was not impressed with the expertise of the prosecution. But it is possible that this is a capable man, and it is always good to have someone on the defence team who is intimate with the internal functioning of the Prosecution. I was asked to be an advisor to the Gotovina legal team, but was unable to accept due to my heavy workload in the US. I will meet with Misetic. I am willing to make certain suggestions, but I will not become formally involved due to possible conflicts of interest in the future. If Gotovina were to accept certain offers by the Prosecution, this could conflict with the interests of the government commission of which I am a member. Though it is now difficult to believe that it could come to this, in such an unfolding of events, it is possible that Gotovina, Cermak or Markac, in the context of a possible deal, admit to something which is not in the interests of Croatia. Therefore, I could not permit myself to become actively involved in their defence teams for, from the legal-ethical perspective, I have to protect my professional integrity.

Defence Strategy

NACIONAL: What kind of a defence strategy would you suggest for Gotovina, Markac and Cermak?

- For tactical reasons, I cannot answer that question in order to avoid hindering their defence. They need to hold all their cards, particularly in situations where the Prosecution has a significant advantage.

NACIONAL: When did your cooperation with the government on ICTY issues begin?

- That is a long story which began several years ago when I received a call from Salaj, then Croatian Ambassador to Germany, who offered that I take over the Blaskic defence as the ICTY Statute then permitted law professors and not just legal practitioners to defend. Considering I was unable to take leave from the University, I turned down the offer. I was then asked to write a proposed defence strategy, allegedly requested by Mate Granic and the late Gojko Susak. I did this, and I remember writing that it would be difficult to defend Blaskic from the accusation based on command responsibility. Then they asked me to help them find a qualified American attorney. I proposed Russell Hayman. I accepted his request that I be involved as an advisor, and I was active in the case right up until Ante Nobilo took it over. When the case began to address sensitive issues that I was not informed about, I realized that I could no longer be of any help to the case, and so I broke off ties with Hayman. Our next contact occurred when Susak received a subpoena to appear before the Tribunal with documents. Salaj again contacted me and asked me to write a proposal on what steps to take. The case was then taken over by Ivan Simonovic, and ended with partial success. Our third contact was two years ago relating to an indictment concerning the Patriotic War and the events in BiH. In Rome, I met up with Foreign Minister Miomir Zuzul by chance, and he tried to get me to join the Government commission, whose task would be to become involve in these events relating to the case. After a meeting with Premier Sanader and Minister Vesna Skare-Ozbolt, I agree to join the Commission, of which I am a member today.

Commission Tasks

NACIONAL: How do you comment on the overall conduct of the Croatian government in the context of cooperation with the Hague Tribunal? Has that changed over time and how does it stand in your expert opinion?

- I have not systematically followed this conduct, but I do have the impression that for some time, not enough attention was paid to those decisions relating to the background behind the incriminated acts according to the ICTY. Several years ago, I became convinced that the government should compile some sort of a „White Book“ and provide the Croatian perspective of the events, particularly in terms of the Patriotic War. The criminal procedure, for many reasons particularly the restriction to the facts which are legally relevant, is not an appropriate instrument for bringing complex historical processes to light. With respect to the Office for Cooperation with the ICTY, I am not competent to assess their work. I am not aware of whether that office has aggressively used the legal means at its disposal by the ICTY rules on procedure and evidence. The Commission I mentioned earlier has the task of preparing government reports as a „friend of the court“ and to refute accusations of a joint criminal enterprise relating to the events in Bosnia during the Patriotic War. Only to that extent do the tasks of the Commission overlap with the tasks of the defence teams for those accused of alleged membership in those enterprises. To the extent of my knowledge, historians, members of the Commission, are carefully compiling documents. However, more efficient work of the Commission will be possible only when it becomes familiar with the accusing evidence. Only then will the foundation for the legal arguments appear which, according to the American model, is the main purpose of the reports by the friend of the court. As a member of the Commission, I am handicapped due to the fact that I do not attend its session, instead I only occasionally receive the minutes. My only contribution is that I have been in contact several times with Minister Skare-Ozbolt and given some suggestions on the work of the Commission.

NACIONAL: Do you hold the 1998 initiative by the state administration to investigate the competence of the Hague Tribunal over Operations Flash and Storm out of place?

- I do not know about that initiative. However, if this related to claims that these were not armed conflicts, which the Hague Tribunal is competent to try, but instead only a police action, then the chances of success are minimal. There are a series of rulings by the Hague Tribunal in which it is sufficient for a group in conflict to hold a certain territory and have organized units to be classified an armed conflict. This was uncontested in the case of Krajina. I think it is illusionary to expect that the Hague Tribunal will step away from its established practice.

Anger of the Croatian right-wing

NACIONAL: Is the anger of the Croatian right-wing, which for years has said that the Hague Tribunal is trying the Croatian state and people, justified or out of place?

- It is difficult to protest to an undeceived person that Croats are being tried for war crimes they committed – regardless of the defensive character of the war. The justified anger over injustice is not an excuse for inhuman behaviour. Revenge may be sweet, but it is against the law. However, I think that the Hague Prosecution is partially responsible for this reaction. In their attempts to implicate the state administration in the criminal enterprise, they have created an emotional climate which only supports the argument that the Prosecution is trying to implicitly show that the Croatian state was born in crime.

NACIONAL: What is your status at Yale University?

- I am a Sterling Professor, which is a type of honorary title. In the entire University, there is a certain small number of titles given to meritorious lecturers. I received mine due to my papers in comparative law. Also, I teach international criminal law and evidence science, which in America is a very important subject due to the complexity you have certainly noticed in American courtroom films.