Published in Nacional number 620, 2007-10-02
EPILOGUE TO THE TRIAL OF THE OVCARA EXECUTIONERS
Kevin Parker – The judge who freed the villains of Vukovar
KEVIN HORACE PARKER'S lenient sentences for what has been dubbed the Vukovar Trio has incensed many in Croatia, but also international war crimes experts and the Hague prosecution
"I am aware that my appointment will be a challenge, but it at the same time represents a very important assignment that must be carried out. The Hague tribunal has a vital role in helping maintain order in the international community and in bringing justice to the people of the former Yugoslavia", said Kevin Horace Parker, when he learned on 14 November 2003 that he would become a permanent judge of the International Criminal Tribunal for the former Yugoslavia in the Hague. Not quite four years later, reading the initial verdict, for Mile Mrksic, Veselin Sljivancanin and Miroslav Radic, officers of the Yugoslav People's Army (JNA) indicted for war crimes in Vukovar, Kevin Horace Parker did not bring justice for Croatia and the families of the 264 victims who were, on 20 November 1991, tortured and executed by JNA-aided Serb insurgents.
Kevin Horace Parker has found himself in the centre of attention after he and his colleagues in the judicial council acquitted Miroslav Radic of charges of war crimes committed at Ovcara in Vukovar, sentenced Veselin Sljivancanin to only 5 years, and Mile Mrksic to 20 years in prison. This epilogue to the trials of the Vukovar executioners has angered and dismayed many in Croatia. Veteran's associations have organised a series of protests, and the HSP party has launched the signing of a petition for a referendum at which citizens would say whether Croatia should suspend the Constitutional Act on Cooperation with the Hague Tribunal.
Parker's ruling has also shocked Hague Chief Prosecutor Carla Del Ponte and her associates, who had sought life sentences for the accused, and they immediately announced their intention to appeal the ruling. Especially consternated was Clint Williamson, the US Ambassador for War Crimes, who was present at the reading of the verdict. Williamson served as a Hague prosecutor, led the investigation in Vukovar, oversaw the exhumations at Ovcara and prepared the initial indictments in this case. Williamson is now a high-ranking official in the US administration, and he had previously on several occasions made statements regarding his personal conviction in the strength of the evidence in this case. That is why it comes as no surprise that this ruling gave him cause for consternation.
The verdict read by Kevin Horace Parker revealed that the Hague Prosecution has made several cardinal mistakes in drafting the indictment, but it demonstrated above all that this Australian judge, together with Krister Thelin and Christine van den Wyngaert, his colleagues in the judicial council, did not manage to, or were not willing to understand the nature of the conflict in Vukovar and in Croatia during the Homeland War, nor the relationship between the JNA and the local paramilitary units, who acted in complete coordination in the ravaging of Croatia, and in the torture and killing of the surviving and captured defenders of Vukovar. Parker is reputed as being one of Australia's best judges. Krister Thelin is a Swedish judge who furthered his education at the US's prestigious Harvard University, and who served at the post of Sweden's deputy justice minister at the time of the Vukovar tragedy. In the 1990s he also worked in Bosnia & Herzegovina on setting up a post-Dayton regulatory agency and on the cooperation of first-instance courts in Bosnia & Herzegovina with the Stability Pact. Before coming to the Hague tribunal Christine van den Wyngaert taught criminal and criminal procedural law at the Belgian University in Antwerpen.
Many lawyers, domestic and international politicians, including Peter Galbraith, the former US Ambassador to Croatia, have told Nacional that the most disgraceful part of the controversial verdict is Parker's verdict of a 5-year prison term for Veselin Sljivancanin. Most say that a 5-year prison sentence can be handed down for a serious property-related crime, but by no means for a war crime, no matter how the judicial council endeavours to account for Sljivancanin's role in the events that took place in Vukovar.
In the introductory part of the reading of the verdicts for Mrksic, Sljivancanin and Radic, Parker pointed out that they were not on trial for the devastation and other atrocities that took place in Vukovar in 1991, but only for the tragedy that struck down 264 captured Croatians, which Serbian insurgents, abetted by the JNA, executed at Ovcara. Some parts of the verdict that Parker read to the accused are, for the public, at the very least contradictory and debatable.
This is how Parker explained why the claims of the Hague prosecution that the trio joined forces in a criminal undertaking do not stand: "In essence it is claimed that the three accused acted together to abuse and kill prisoners of war from Vukovar Hospital. There is no direct evidence that would corroborate such a claim, even though such a view could be suggested on the basis of an incomplete understanding of some of the events that took place on 20 and 21 November 1991 and on the basis of isolated parts of the evidence."
Parker sentenced Sljivancanin to 5 years in prison because he could have called for additional JNA troops at Ovcara, in order to protect the prisoners of war from torture and the abuses of paramilitary formations, which he did not do. Parker said that the murders were committed during the night after the JNA withdrew on Mile Mrksic's command, which exonerated Sljivancanin of any further responsibility for what was done to the prisoners afterwards.
In spite of this they consider Sljivancanin responsible for not securing additional protection for the prisoners while the JNA was present at Ovcara. Many of the prisoners died of wounds and injuries they received after being beaten by members of the paramilitary formations, from whom Sljivancanin's soldiers did not provide adequate protection. And although the number of prisoners of war who died this way can only be surmised, only a single death of this kind would be enough for a sentence greater than 5 years in prison. Some of the lawyers with whom Nacional spoke say that Sljivancanin was in effect acquitted, because he received a symbolic prison term, which he has on the day the ruling was handed down, almost entirely served in Hague detention. Some lawyers see Sljivancanin's sentence as a reflection of Parker's hypocrisy and his feigned ignorance of the real situation on the ground during the agony of Vukovar in 1991.
The judicial council presided by Parker did not believe the witnesses who implicated Miroslav Radic. In his rationale of the ruling, Parker said that two witnesses had provided quite different testimony that indicated that Radic was aware that the soldiers under his command had taken part in the torture and killing of prisoners of war at Ovcara. Parker also said that one witness had indicated that Radic was aware of the events at Ovcara. This is how Parker dismissed the testimony that implicated Radic: "The judicial council did not accept the first two witnesses as sincere, nor the third as trustworthy."
In the written verdict it will be explained why Parker and his colleagues do not believe that Radic knew of or had reason to know that soldiers under his command had committed crimes at Ovcara. Mile Mrksic received a prison sentence of 20 years, because Parker and his colleagues consider him responsible for the JNA's withdrawal from Ovcara, which opened the way for the murder of prisoners of war. Many at the Hague tribunal do not agree with the severity of the punishment, considering it overly lenient. Parker found grounds for it in the fact that a greater sentence could not have been handed down at the time in Croatia.
All of this gives additional justification to the vehement reactions in the Croatian public and national leadership that followed Parker's address to the accused. Parker has already in the rationale of the first-instance ruling coolly given a technical explanation of why Sljivancanin had minimal responsibility, and why Radic is completely innocent of the tragedy of those who fell at Ovcara. From what he said of Radic it almost appears as if Radic had found himself in Vukovar by mistake, and not of his own volition. None of the three indicted, however, were common soldiers, who could perhaps in their situation before the Hague tribunal say that they were on the front against their own will. They were professional soldiers, who considered the people of Vukovar and the defenders of Vukovar to be the destroyers of Yugoslavia, and that is why they acted in coordination with the paramilitary formations of the Serb insurgents in their crimes before and after the occupation of Vukovar.
This was very quickly after the tragedy at Ovcara confirmed by the affirmation of Croatian independence, and by a series of events in the contemporary political history of Croatia and of the countries that emerged with the dissolution of the former Yugoslavia. That is why it is hard to dismiss those who say that Kevin Horace Parker by his ruling, , in this case only fuelled those who say that the tribunal is subject to various political influences.
The verdict, for the murders at Ovcara was not the first of Parker's rulings that considerably exculpated those accused of the ravaging of Croatia during the Homeland War. Parker was also the judge in the trial of Pavle Strugar, who was in October of 1991 appointed commander of the 2nd operative group that the JNA had formed to lead the military campaign in the Dubrovnik area. Strugar faced 6 charges in the indictment drafted by the Hague prosecution. Strugar was in that trial on 31 January 2005 sentenced to 8 years in prison, but he received the sentence after Parker had dismissed those charges that accused Strugar of murder, brutality, destruction not warranted by military necessity and illegal attacks against civilian targets. There is no need to explain in detail the destruction of Dubrovnik, as the pictures of the destruction of the old town core had shocked the world. In spite of this, Parker did not consider the top JNA commander responsible for illegal attacks against civilian targets.
A truly strange perception of justice for one of the best judges in Australia. Kevin Horace Parker was born on 6 February 1937 in Kalgoorlie, Australia. He was educated at Perth Modern School and at the University of Western Australia. He graduated law in 1959. He started working as a lawyer a year later, and in 1977 he received the title of "Queen's Counsel". He became a judge of the Supreme Court of Western Australia in 1994. Parker served from 1967-71 as the senior assistant to the State Attorney of Western Australia, and subsequently as the Chief State Attorney of Western Australia from 1972-74. He was also active in international waters. On three occasions he worked as legal counsel and representative of the Australian states in the Australian delegation to the UN Commission for Maritime law. He was also a member of the Australian delegation to the UN Commission for international commercial law and a member of the Australian negotiation team in the talks on the maritime border between Australia and Indonesia (1985-95). In 1989 Parker was awarded the title of Officer of the Order of Australia in recognition of his role in the Australia Acts of the Commonwealth of Australia and the United Kingdom, and in the adoption of legislation on the jurisdiction of courts in the Commonwealth communities, states and territories of Australia.
On 8 December 2003 Parker was sworn in as a judge of the International Criminal Tribunal for the former Yugoslavia. After David Hunt and Ninian Stephen, he is the third Australian judge at the Hague tribunal. Parker's colleagues at the Supreme Court of Western Australia said their farewells to him in mid November of 2003. He was at the time not accessible to the media. He made a short announcement in which he stated that it would be tough for him to be separated from his family and wife Joan. At a special session open to the press, David Malcolm, the President of the Supreme Court, said that Parker had made a significant contribution to the legal system in Western Australia. Among other things, he said that he was esteemed for his wisdom, common sense, legal skill and excellent knowledge of the law.
Some of the lawyers who have met Parker in the Hague's trial chambers are not impressed by him. They say that he often comments the proposals of counsellors for the defence and prosecution with a measure of irony and sarcasm, which they do not appreciate, as they feel that judges should refrain from those kinds of comments. And while that may not say much about Parker's qualities as a judge, it is hard to rid oneself of the impression that few in Croatia would these days agree with the choice of words David Malcolm, the head of the Supreme Court of Western Australia, has graced Parker.
A lenient sentence for Strugar
Parker served as judge in the trial of Pavle Strugar, who commanded the JNA attack on Dubrovnik in 1991. He was charged with murder, brutality, attacks against civilians, devastation not justified by military necessity, illegal attacks against civilian targets, and the destruction or deliberate damaging of churches and monasteries, humanitarian, educational and scientific institutions, artistic and historical monuments and works of art and science. Parker dismissed the points of the indictment that charged Strugar with murder, brutality, devastation and illegal attacks against civilian targets, and sentenced him to eight years in prison.
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