Sljivancanin Bid to Overturn Appeal

Rachel Irwin

Senior Reporter

Monday, 7 June, 2010

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For the first time in the Hague tribunal’s history, a hearing was held last week to help determine if an appeals judgement should be reviewed.

The case in question is that of Veselin Sljivancanin, a former officer in the Yugoslav army, JNA. Sljivancanin was originally sentenced to five years imprisonment on September 27, 2007 for aiding and abetting the torture of Croat and other non-Serb prisoners held at a farm in Ovcara following the fall of the Croatian town of Vukovar to Serb forces in November 1991.

On May 5 last year, appeals judges not only upheld that conviction but also overturned his acquittal for aiding and abetting the murder of the prisoners and more than tripled his prison term to 17 years.

Appeals judges decided to convene last week’s hearing after Sljivancanin's lawyers asked them to review their judgement on the grounds that a new fact had come to light after the judgement was rendered on May 5, 2009.

At the start of the June 3 hearing, the presiding judge, Theodor Meron, stated that “none of my comments today express the appeals chamber’s view on the review motion”, which has yet to be decided upon.

In May of last year, appeals judges ruled that Sljivancanin had been informed by his commander and co-accused, Mile Mrksic, that JNA military protection for the prisoners at Ovcara had been withdrawn and that Sljivancanin was consequently aware that there was a risk of local Serb forces killing the prisoners.

Mrksic, a former JNA colonel, was convicted of responsibility for the prisoners‚ murder, as well as their torture and cruel treatment.

According to the appeals chamber's judgement, its finding that Sljivancanin was responsible for aiding and abetting the prisoners’ murder was based on the conclusion "that Mrksic must have told Sljivancanin that he had withdrawn the JNA protection from the prisoners of war held at Ovcara".

"The only reasonable inference is that upon learning of the order to withdraw the troops, Mr Sljivancanin realised that the killing of the prisoners of war at Ovcara had become a likely occurrence," said Judger Meron when he delivered the appeals chamber's verdict.

However, it was this “inference” that the witness testifying last week, Miodrag Panic, sought to refute. Panic was the chief-of-staff of Sljivancanin’s unit in November 1991 and previously testified as a defence witness during the trial.

Panic told the court that he was present during a conversation between Sljivancanin and Mrksic on the evening of November 20, 1991, after Mrksic would have issued the order for the JNA troops to withdraw from the farm.

Panic said that during that conversation, Mrksic never told Sljivancanin about the order to withdraw.

“Had Mrksic told Sljivancanin that the security detail had been withdrawn, I would have been first to react,” Panic told Stephane Bourgon, one of Sljivancanin’s defence lawyers.

“I would have said, ‘What has come up?’” he continued. “And I’m certain that Sljivancanin would have done the same thing.”

Panic said that he didn’t mention these details during his previous testimony because neither the defence nor the prosecution asked him about it. Trial judges already confirmed in their judgement that Panic was present during Mrksic's conversation with Sljivancanin.

It was upon hearing about the appeals verdict that he decided to contact Sljivancanin’s defence team with this information, Panic said.

“Do you think [information on the withdrawal] could have been mentioned without you overhearing it?” asked Judge Andresia Vaz.

“I was right there in close physical proximity,” Panic responded. “[The conversation] was not longer than five or ten minutes. It would not have been feasible for Mrksic to tell him that without me hearing it. It was clear this would have constituted a threat to people at Ovcara so I wouldn’t have [forgotten] it.”

When it was the prosecution’s turn to question Panic, trial lawyer Paul Rogers challenged almost every aspect of his testimony.

“Your recollection of events would appear to be improving over time rather than getting worse, wouldn’t it?” Rogers asked, after noting that Panic gave some details last week about events on November 20, 1991 that deviated from earlier statements.

Rogers also contended that Panic could never openly admit that he overhead information about the troop withdrawal, because it would implicate himself.

“You simply could never admit to hearing about the order for withdrawal,” Rogers said. “You could never come and give an account of that happening, because it implicates you.”

“If I was afraid for my own responsibility, I would never have gotten in touch with [the defence team],” Panic responded. “I’m doing my best for truth to emerge before this tribunal.”

Panic said he had trouble believing that Mrksic would have issued such an order at all, but admitted that it “only could have come from the commander”.

“In light of the finding of the trial chamber that it was Mrksic who ordered the withdrawal [of the JNA troops], what you’re suggesting is that Mrksic deliberately failed to tell you this important fact?” Rogers asked.

“I’ve known Mrksic for a long time,” Panic responded. “I cannot bring myself to believe he could possibly issue an order like that to anyone … I was certainly not aware of that order nor was anything like that mentioned.”

Rogers contended that it was “simply inconceivable that [Panic] did not hear in the course of the conversation that the order to withdraw was communicated”.

Judge Vaz then asked the witness if it was possible for Mrksic to issue such an order without informing any of his subordinates.

“He could have issued the order without informing anyone,” Panic responded. “Did he actually do it? I don’t know.”

At the end of the hearing, Judge Meron asked why the defence had not questioned Panic “more closely” about the content of the conversation in question.
“Wasn’t it natural you would ask Panic about it?” Judge Meron inquired.

“The defence doesn’t have the burden of proof,” Bourgon responded.

Bourgon further noted that at the time, the conversation between the two men did not seem “relevant” to the defence case.

Instead, he said, for the purposes of refuting the charge that Sljivancanin was part of a joint criminal enterprise, they wanted to establish that the accused was not present at the daily military briefing which occurred earlier that same evening, on November 20. Trial judges subsequently found that Sljivancanin was not present at the daily briefing.

“The issue didn’t come out [during the trial],” Bourgon continued. “The defence can’t be blamed for this, Mr. President.”

Judge Meron said the appeals chamber will come to a decision about the review motion “when we are ready”.

Rachel Irwin is an IWPR reporter in The Hague.