Try Gotovina in Zagreb
By LUKA S. MISETIC
Wall Street Journal
October 3, 2005

European Union foreign ministers today will decide whether to launch membership talks with Croatia. Those negotiations have been stalled since March after the EU concluded that Croatia was not doing enough to track down Ante Gotovina, a Croat general indicted by the U.N.'s international war crimes tribunal at The Hague in 2001. The EU will look to the tribunal's prosecutor, Carla Del Ponte, to present her assessment of Croatia's progress in finding Gen. Gotovina before deciding whether to start accession talks.

As Gen. Gotovina's lawyer, I want to make clear that my client initially has refused to surrender to the tribunal because he has little confidence in his ability to get a fair hearing in The Hague. The tribunal's judges and prosecutors have publicly referred to Gen. Gotovina as a "major war criminal" before the trial has even started, undermining the principle that a defendant is "presumed innocent." This will have likely only reinforced Gen. Gotovina's doubts about his ability to clear his name in The Hague.

However, contrary to perception, Gen. Gotovina does not seek impunity. He has offered to face trial if his case is transferred from The Hague to Croatian jurisdiction. At first blush this proposal appears impossible, but the rules and practice of the Tribunal allow for such a resolution.

The fact that my client is a high-ranking general is no obstacle. Last month, the tribunal transferred the cases of two other high-ranking generals, Mirko Norac and Rahim Ademi, to Croatia. Gen. Gotovina's current status as a fugitive also matters little. In January, Ms. Del Ponte requested the transfer of the cases of four fugitive Bosnian Serb indictees for trial in Bosnia. In seeking the trial in Bosnia of these four fugitives, Ms. Del Ponte expressed no concern that the transfer of the cases of these fugitives might negatively impact the search for the tribunal's two top indictees, Ratko Mladic and Radovan Karadzic, an argument which she has often advanced to justify the need to transfer Gen. Gotovina to The Hague.

A trial of Gen. Gotovina in Croatia is an option that is perfectly consistent with the rules and precedent of the tribunal, and guarantees that Gen. Gotovina will not escape justice. As is evident from the tribunal's recent decision to try the two other Croatian generals in Zagreb, the tribunal believes that Croatian courts are capable of holding such a trial. The U.N. Security Council established the tribunal in 1993 in large measure because it determined that the states in the region (including Croatia) were unwilling or unable to prosecute their own citizens for violations of international humanitarian law. However, as an official EU candidate country, Croatia is presumed to have satisfied the EU that it has a functioning judicial system.

Accordingly, there is a certain incompatibility in the suggestion that Croatia will be ready to join the family of EU nations only when it transfers one of its own citizens to an outside tribunal. Indeed, the opposite is true: there is no better way for Croatia to show its European values than to conduct war crimes trials itself, and then take its place in the EU. Gen. Gotovina is willing to accept such a trial immediately.

Mr. Misetic, a U.S. attorney who has practiced as defense counsel before the war crimes tribunal in The Hague, represents Croatian Gen. Ante Gotovina.