'The search for artillery logs demonstrates in a way that the prosecution is not sure that it has succeeded in proving the excessive use of artillery during Operation Storm,' says Misetic

NACIONAL: The news that the prosecution at the Hague tribunal is seeking a sentence of 27 years in prison for Ante Gotovina came as a surprise for many. How did you react to the prosecution's motion?

- It was something I expected. You have to understand that the prosecution continues to claim that Gotovina expelled 200 thousand people. If this is your starting point, then it is normal to move for a quite severe punishment. But it all depends on whether the tribunal believes the claims of the prosecution that there was excessive use of artillery during Operation Storm. I am deeply convinced that the prosecution has not proven this, and the fact that they sought artillery logs attests to this, which in turn indicates that the prosecution itself is not confident that they have proven that artillery was used arbitrarily, i.e. excessively. That is why I believe that there is no realistic chance that the prosecution will succeed in the trial, and even less that Gotovina will be sentenced to 27 years in prison.

NACIONAL: Why was the prosecution so insistent on the artillery logs? Was this their big mistake?

- Simply put, the entire concept of a criminal enterprise hinges on the accusation that artillery was used in an illegal fashion. As all of us in Croatia already know, the famed Brijuni transcript is the core of the indictment against the Croatian generals. The prosecution claims that the entire criminal enterprise is based on a deal hammered out on the Brijuni islands that artillery would be used in an illegal fashion with the aim of expelling all Serbian inhabitants in Serb-occupied territories. Accordingly, if this accusation is not upheld, i.e. if it is rejected, not proven, then the entire concept of a criminal enterprise falls apart. International law and the precedents set by the Hague tribunal are very precise in this regard - if the prosecution accuses someone of a criminal enterprise, it must prove concretely when the criminal enterprise was agreed upon and what methods were agreed upon to achieve it. In this case the prosecution claims that the criminal enterprise was agreed upon on the Brijuni islands and that the method was the illegal use of artillery to expel the Serbian population. It appears that they are aware in the prosecution that they have not proven excessive shelling, and as a result have been so panicked in their insistence over the past two years on getting to what have been termed the 'artillery logs' in an attempt to discover some kind of illegal plan. I am deeply convinced that they have failed to prove this and that as a result the entire accusation of a criminal enterprise has fallen apart.

NACIONAL: Given that the prosecution has suffered a fiasco of sorts in regard to the artillery logs, does it not then come as a surprise that they have moved for penalties of this severity?

- It would not be realistic to expect that the prosecution would itself admit that it has failed to prove a criminal enterprise ahead of the closing statements, and it would certainly be an admission if they sought a punishment of only, for example, five or ten years in prison. That would be an indirect admission that they failed to prove their accusations. In my opinion they are in fact still bluffing that they have proven something, and the only way to leave the impression that they have done so is to move for a severe punishment.

NACIONAL: Is it realistic to expect an acquittal of Ante Gotovina?

- It certainly is realistic. Those who say that it is not realistic assume that the judges of the Hague tribunal have a political agenda or that there can be no acquittal for political reasons. That, however, is not the impression I have concerning these three judges, which is why I believe in and expect an acquittal, because I think that we have explained in detail that the prosecution has not demonstrated Gotovina's guilt on any one of the charges. This is of course something every defence attorney would say in every case, but this is my opinion and we shall see how things turn out. I believe that the judges will make their ruling on the basis solely of the facts and the law, and if that is the case, then we can expect nothing other than an acquittal.

NACIONAL: People often think only in terms of the extremes - acquittal or the maximum penalty. What if in the end there is some kind of compromise, and Gotovina is sentenced to five years in prison?

- This is all just speculation. It is a thankless job for me to speculate now on a possible verdict, but I do not see the judges making, as you call it, some kind of compromise. The matter here is quite clear, we need to start first from the question of whether or not a criminal enterprise was proven. If it has not, and I am certain that this is the case, then there are no grounds to condemn Gotovina on the basis of this indictment. There are no grounds to find him guilty of excessive shelling. There remains the middle - command responsibility for crimes committed after Operation Storm. And again things are quite clear and proven before the court - Gotovina had been deployed to operations in Bosnia and Herzegovina at the time, there are more than twenty witnesses from Croatia and abroad that attest to this, from high-ranking Croatian politicians to international officials and European observers who testified that no one sought of Gotovina that he resolve problems, nor was there any discussion at all that Gotovina should be contacted in this regard. Even Zarko Puhovski, speaking on behalf of the Croatian Helsinki Committee for Human Rights, testified that nobody ever mentioned Gotovina in the context of the crimes after Operation Storm. That is why I consider it unrealistic that the court could say that Gotovina, who was not there at the time and was not told in writing or verbally that he should undertake any action, would nevertheless somehow be the most responsible for everything that took place in the field. The law is very clear in this regard, and it is hard to expect that the judges would sign a verdict that a person who was on active duty in another country could at the same time be responsible for war crimes in this country, and as such deserved some kind of punishment. That is why I expect that the judges will recognise this fact and hand down a sensible verdict.

NACIONAL: If Gotovina is found not guilty, is he free to leave prison right away?

- It is too early to speak of that, but in general in situations like this the defendant goes home the day after the verdict is read. There are certain procedures, papers to be filled out and logistic issues concerning how the person is to be transferred, a permit has to be secured from the Dutch authorities, passage to the airport, and that usually takes 12 to 24 hours.

NACIONAL: Some are wondering if there could, however, be some surprises in the closing statements? Perhaps some new arguments or a turnaround?

- There is no such possibility of introducing any kind of new evidence. Each of the sides in the proceedings can submit a written motion to the tribunal that it wishes to reopen the procedure for the introduction of evidence because it for some reason feels that it was unable to introduce some particular evidence during the allotted procedural period. But it is absolutely impossible, to put it this way, to pull some new evidence from up your sleeve during the actual closing statements. Anyone could, of course, conceive of a new argument on the basis of the evidence already introduced, but after two and a half years I really do not expect any surprises from the prosecution.

NACIONAL: Is there, however, anything new in the final statement submitted by the prosecution?

- There are no big surprises, just the standard line we have already heard, but I would not now go into a detailed analysis of the statement submitted by the prosecution, because we will analyse it all before the court on August 31st. I can say only that this is the customary text, from excessive shelling to a criminal enterprise, and their claim is that regardless of the fact that the entire system issued commands that criminal acts such as arson and looting were to be prevented, that the intention was nevertheless to burn and loot. We will, of course, have answers to that too. They also claim that while Gotovina did issue an entire set of commands that criminal acts were to be prevented, that it is their opinion that it was all just a sham act, that he faked it. That he, while stating that crimes were to be punished and prevented, actually wanted to permit them.