The Chamber also found that “high-ranking Croatian military officials, including Tudjman, ... used the Croatian military forces and the Special Police to commit the crimes within the objective of the joint criminal enterprise.
Indeed, Tudjman, who died in 1999, was never charged with any crimes and never had an opportunity to defend himself against any criminal charges.
This is not the first international Tribunals’ judgement which named alleged perpetrators who were not on trial and did not have the opportunity to challenge the evidence against them.
For instance, the Vasiljevic judgement (ICTY) also contains numerous references to crimes committed by two co-accused who, by that time, had not yet been arrested and tried. In this regard, the Trial Chamber made the following disclaimer in the judgement:
The findings by the Trial Chamber in relation to other individuals named in the evidence have been based on the evidence given in this trial, and they were made for the purposes of this trial. They have not been made for the purpose of entering criminal convictions against those other individuals.In the Bisengimana case (ICTR), the Defence submitted that his client had been mentioned in the Semanza trial judgement in numerous paragraphs as a co-perpetrator. The Defence contended that this violated Bisengimana‘s right to be presumed innocent until proven guilty.
In particular, the two co-accused who have not yet been arrested, ... have not been found guilty beyond reasonable doubt in this trial of any of the crimes charged against them in the Indictment. They are not in any way bound by the findings made in this trial, and they will be able to challenge fully any evidence given in this trial which implicates them if it is given against them in their own trial before this Tribunal.
The Trial Chamber ruled that it has no jurisdiction over the Semanza judgement issued by a different Camber and in which the accused was not represented.
At the same time, the Chamber affirmed that the accused is presumed innocent, whatever the findings in the Semanza Judgement, and will be given full opportunity to defend himself and challenge the Prosecution case during his own trial.
In both Semanza and Vasiljevic cases the alleged perpetrators mentioned in the judgements were then tried and had opportunity to challenge the charges against them.
This makes those cases different from the Tudjman one where the person was not even charged with the alleged crimes.
See
Gotovina et al., Judgement, Case No. IT-06-90-T, T. Ch., 15 April 2011, paras 2316, 2320.
Bisengimana, Decision on Defence Urgent Motion to Acknowledge Violation of the Accused’s Rights, Case No. ICTR-2001-60-I, T. Ch., 20 August 2004, paras 13, 16.
Vasiljević, Judgement, Case No. IT-98-32-T, T. Ch., 29 November 2002, para. 23.