According to the prosecution, the judgment acquitting Jovica Stanisic and Franko Simatovic is a hazard to the development of international law because it fails to consider the entirety of the evidence and allows the officials at the top to remain unpunished. The prosecution ‘has built its house’ using only the building blocks (i.e. evidence) it fancies, the defense has responded. If the Chamber decides to quash the acquittal, there should be a re-trial, the defense has argued. According to the defense, the accused should not be convicted

Prosecutor Michelle Jarvis presented the arguments underpinning the appeal against the Trial Chamber’s decision to acquit former chiefs of the Serbian State Security Service Jovica Stanisic and Franko Simatovic. Jarvis noted that the trial judgment contained ‘serious errors’ that prevented the justice from being done and made it impossible to establish the responsibility of the accused. If the conclusions of the Trial Chamber were to be applied in future, the prosecutor stressed, they had the potential to ‘derail international law in a disturbing manner’.

The prosecution’s main objection to the acquittal is the Trial Chamber’s erroneous approach to evidence: the judges failed to consider the context of the evidence on the participation of the accused in the joint criminal enterprise whose goal was to ethnically cleanse large parts of Croatia and BH. As a consequence, the judges erroneously concluded that the accused didn’t share the criminal intent, even though the crimes were committed by the units they had established, supplied, controlled and funded. The Trial Chamber found that Stanisic’s and Simatovic’s actions were directed at the achievement of legitimate military goals and not necessarily to the commission of the crimes.

The prosecution went on to note that, if seen in the context of a systematic campaign of killing, abuse and expulsion of non-Serb civilians in Krajina and Eastern Slavonia in Croatia, and in the municipalities of Bijeljina, Samac, Doboj and Sanski Most in BH, even some apparently legal acts of the accused should be interpreted as a contribution to the implementation of the joint enterprise’s goals. In other words, if the accused were aware that the lawful support they provided to specific military and police units would result in the commission of crimes by those units, under international law and the doctrine of joint criminal enterprise that would make them responsible. A lot of evidence, the prosecution stressed, suggested that Simatovic and Stanisic knew that their associates, such as Milan Martic in Krajina, intended to deport non-Serbs. Also, the evidence showed that the accused were aware that the units under their control, such as the Red Berets unit, committed crimes, yet they still gave them tasks in the field.

The prosecutor illustrated her point with the example of a man driving armed people to a bank after he had taught them to shoot and gave them money bags. None of his actions were illegal, yet in this context the man was responsible for the robbery, especially if he took those same people to the bank again knowing that they had robbed it before. Prosecutor Markusen highlighted the evidence showing that the crimes in Croatia and BH followed the same pattern. The accused knew it, prosecutor Markusen said, but they kept on supporting and assisting the units that committed the crimes.

According to the prosecution, the Trial Chamber’s approach protects the high-ranking people in the leadership who are ‘removed from the crimes’. Concluding the argument, prosecutor Jarvis noted that the judgment made the negative vision of US judge Robert H. Jackson come true. Judge Jackson said ‘law has terrors only for little men and takes note only of little wrongs’. French judge Picard quoted those words in her dissenting opinion appended to the Trial Chamber’s judgment in the case against the former chiefs of the Serbian State Security Service.

Finally, the prosecution sought the appropriate legal remedy: the reversal of the acquittal of Stanisic and Simatovic. The prosecution urged the Appeals Chamber to apply the appropriate legal standards and to convict the accused. Alternatively, the prosecution called for a re-trial before one of the Tribunal’s Trial Chambers.

In their response, the two defense teams noted that they were satisfied with the part of the trial judgment that resulted in their clients’ acquittal. The defense lawyers criticized the prosecution for their choice of argument in the appeal. Stanisic’s defense counsel Wayne Jordash likened the prosecution’s views to ‘four-step tango’. The first step is taking the evidence the prosecution finds convenient, the second step is rejecting undesirable evidence and the third step is building a structure of the evidence the prosecution likes. The final, fourth, step is a ‘beautiful presumption of guilt’, instead of the presumption of innocence. The prosecution, Jordash noted, ‘has built a house using only the building blocks they like'.

In its argument, the prosecution stressed that the standard of ‘specific direction’ – applied in Momcilo Perisic’s judgment and used by the Trial Chamber to acquit the two Serbian State Security Service chiefs – was reversed in two subsequent appellate judgments in The Hague. This prompted Simatovic’s defense counsel Vladimir Petrovic to urge the Appeals Chamber not to allow a situation in which the accused in this case would be victims of a ‘legal and theoretical debate’. Petrovic also noted that the ‘specific direction’ standard was reversed after Stanisic and Simatovic were acquitted.

If Judge Pocar’s Appeals Chamber accepts the prosecution’s argument and reverses the acquittal of the two accused, the defense would prefer the case to be referred to another trial chamber, instead of receiving the appellate judgment, because it would be final and the defense would not be able to appeal.

The two accused, Stanisic and Simatovic, didn’t appear in court. They exercised their right not to attend the appellate hearing, choosing instead to follow it from a safe distance. They thus didn’t expose themselves to the risk of being taken from the courtroom directly to the detention unit, as has previously happened at the Tribunal.

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