Recently, Dr. Akhavan became the third member of General Gotovina's defence team.,

In this exclusive interview for Hrvati AMAC, Dr. Akhavan talks about his reasons for defending General Gotovina and his expectations of the forthcoming trial outcome.

When asked to explain a sudden switch from advising the Prosecution at the Haag to defending General Gotovina, Dr. Akhavan said: “I don’t believe this is a sudden switch. I’ve been out of the Prosecutor’s office since September of 2000, and I also thought very carefully about my decision to join General Gotovina’s defence team. And to me what is important is the impartial, equitable administration of justice. In order to achieve that result, one needs to insure that every defendant before the Tribunal has a vigorous defence in order for there to be an equitable outcome. But I decided to join this team because of the specific facts of General Gotovina’s case. Otherwise, I would not have an interest in acting as defence counsel. I believe that General Gotovina has been wrongfully indicted. I believe that he is someone who did a great service for the International community by essentially making the Dayton Peace Agreement possible by changing the military equation on the ground, something that the International community refused to do. And from the evidence that the Prosecution has submitted there is nothing to indicate, nothing to indicate, that General Gotovina is guilty of war crimes, unless one adopts such a vogue theory of criminal responsibility which would make any commander responsible for any crime committed by anybody in a vast military operations involving tens of thousands combatants. So, for me it’s the matter of principle that General Gotovina is innocent and I see it as a duty to defend him, not least because of the important role that he has played in bringing the ethnic cleansing and terrible atrocities of the Yugoslav war to an end.”

*What expertise do you bring to the defence team?

- Dr. Payam Akhavan: “I served as a legal adviser to the Prosecutor’s office for several years and I am an export in International Humanitarian Law or the Law of the war. I am presently professor of International Law at the McGill University and teach Humanitarian Law and the Law of the war. So, the expertise that I bring is an understanding of the norms, the laws and rules applicable to the conduct of warfare. And this is really the question about General Gotovina and Operation Storm: to what extent does the Operation Storm, in whole or any part, qualify as a joint criminal enterprise to commit war crimes and crimes against humanity. What are the standards which apply? And in my estimation, one has to look at Humanitarian law through the prism of the realities of war. Or in other words, what it is reasonable for us to ask a military commander to do in the circumstances of someone such as General Gotovina. Humanitarian law is not a legal utopia. War involves killing people, it involves destruction. It is an unfortunate reality. So one has to look at something such as Operation Storm, the attack on Knin and all the military activities which were executed in fulfillment of Croatia’s legitimate desire to regain sovereignty over the Krajina, one has to look at that through the prism of Laws of war and say, was it not legitimate to launch a military operation, was it not legitimate to use artillery to take out Serbian military targets in Knin. Is it a war crime if, because of fear of shelling, large numbers of civilians leave major population centers and flee? And to me, the answer to all of those is: NO! The large scale exodus of Krajina Serbs was by no means the object and purpose of Operation Storm, but it was the unfortunate, but inevitable, outcome of this sort of military operation. And one can not expect military commanders in the field somehow not to use artillery, not to destroy military targets in the execution of their objective. So, I think it’s essential to the case that we understand if we turn Humanitarian Law into the legal utopia which has totally unrealistic expectations about military commanders, then we have done great disservice to the Humanitarian Law because we send the message to military commanders, such as General Gotovina who are professional and act in a good faith, we send the message to them that no matter how hard you try, it doesn’t matter. No matter how hard you try to protect the civilians you will still be held criminally liable. And Humanitarian Law is about distinguishing between good soldiers and bad soldiers, not criminalizing a war as such.

* Have you known General Gotovina prior to joining his defense team and how were you invited to join the team?

- No, I did not know General Gotovina personally. But of course I’d heard about him and his reputation because I followed the events of the Operation Storm with keen interest. And I was persuaded to join the defence team by my former colleague Greg Kehoe with whom I collaborated on the Blaskić’s case.

* Croatians around the world, as well in Croatia, have lost confidence in Haag because of the Haag's attempt to "criminalize" the war Croatia fought to free itself from Serbian aggression, thus sending the message that self-defence is a criminal act. How do you justify or explain this attitude of the ITCY?

- Well I don’t entirely agree with that characterization. I think we have to make two distinctions. One is the difference between the Prosecutor’s office and the Tribunal. The two are not the same thing. The Prosecution is bringing an accusation against General Gotovina. But it is for the Tribunal to impartially administer justice and come to a legal conclusion as to whether the Prosecution has proved this case or not. So, the mere fact that the Prosecutor’s office has indicted General Gotovina doesn’t mean that the Tribunal has come to that conclusion. The second point is that the indictment of General Gotovina, the way it is structured, I think is problematic. And I think this is an inherent weakness of the Prosecution’s case that it is created this idea that Operation Storm, as such, was a criminal enterprise because with its primary purpose to achieve the ethnic cleansing of Serbs from the Krajina. So I don’t think that the Prosecutor’s indictment is so simplistic as to say that Operation Storm as such was a crime. There are theories that it was crime because it had a primary purpose of achieve the ethnic cleansing, but that I believe does not withstand scrutiny. There is no factual basis for the assertion that Operation Storm was not a legitimate military exercise and that‘s the reason why I think that General Gotovina should be acquitted of all charges. There is nothing in the evidence, in the record which would allow one to reach that conclusion. And I think, getting back to what I said earlier about the purpose of humanitarian law being to distinguish between good soldiers and bad soldiers, to distinguish between legitimate use of force in this case, for Croatia to reassert its sovereignty over its own territory and illegitimate force, where for instance you are using force only to achieve the ethnic cleansing. We know for fact that the vast majority of Krajina Serbs had already been evacuated from Knin. This is based on the statements of United Nations military observers and Peacekeepers. And we know that the vast majority of them left the Krajina prior to the arrival of the Croatian armed forces. So it’s a real stretch to suggest somehow that the objective of Operation Storm was to achieve ethnic cleansing unless you are to say that anytime you engage in artillery shelling in order to weaken the enemy forces and to try to take a territory, that because civilians will end up fleeing out of fear that your objective was to terrorize them. I think this is entirely unrealistic, entirely out of touch with the realities of war, and I think it will become apparent in the proceedings that General Gotovina, to the best of his abilities, using the manpower, equipment and technology available to him, conducted the war in the manner that was entirely reasonable and entirely compatible with the Humanitarian Law. And the fact that the large numbers of Serbian civilians left the Krajina is in no way a crime under the International Law or anything that can be imputed to him. .

* If General Gotovina is acquitted, does it mean that there would be no possibility for any future charges against any other military persons who participated in Operation Storm and would Operation Storm be recognized as a legitimate military operation?

- “Well, those are three very different questions. Let me think about that. I think that for practical purposes as opposed to legal purposes, I doubt that there will be new indictments by the ICTY Prosecutor’s office against those involved in Operation Storm or any other incident for that matter simply because the Security Council has requested that the ICTY brings its proceedings to an end in the near future. And my sense is that there will not be new indictments. I would be very surprised if there are. But legally the Prosecutor’s office is not precluded from bringing charges against any person. I just believe that practically it will not happen. If General Gotovina is acquitted, yes I feel it will have a far reaching impact on the legal characterization of the Operation Storm and more importantly the historical record how Operation Storm is going to be perceived. And I think that it would be highly unrealistic to suggest that Operation Storm as such was a criminal enterprise because this would really end up criminalizing almost every military operation that I am aware of. It would suggest that unless you can have a completely sanitized antiseptic military operation in which there are no civilian casualties what so ever, no incidental destructions of civilian objects then anyone who is involved in that operation becomes a war criminal. And I can not think of a single military operation, even those by NATO forces using the most sophisticated technology available, I can not think of a single military operation in which there is not incidental civilian casualty, incidental destruction of civilian objects or in which a large number of civilians don’t leave areas in which fighting takes place.

* In fact, the fight to acquit General Gotovina is a fight for the reputation of Croatian war?

- I don’t think that is the only issue here. I think: yes, it is a question of vindicating the right of Croatia to regain sovereignty over what was effectively an illegitimate, paramilitary state, Republika Srpska Krajina that was created through ethnic cleansing, but there is the broader question here of vindicating laws of war. It’s not just about vindicating the Croatia’s right to launch this major operation but it is also about sending message to generals and soldiers everywhere else in the world that if you engage in military operation in good faith and you reasonably set out to observe the humanitarian right that you will be acquitted. I think the message should really be that you will not be indicted. The message should be that you will not be held guilty. And I think that that is as important for the future of humanitarian law as the question of the historical record for the Croatian people of the Operation Storm.

* Can the International Court enjoy the reputation and power if it is so openly setting a double standard by prosecuting "small nations" and not holding responsible those who bombed Hiroshima, Nagasaki and Berlin? How can we justify the existence of the court that only polices small countries which do not have the same power as the big countries?

- Well, the unfortunate reality is that the International Law is still in a very primitive state. When I joined the Yugoslav Tribunal I was astonished that even at Ad-hoc Tribunal for Yugoslavia was established. We have to remember that prior to Yugoslav Tribunal International Committee had not held a single individual accountable for the crimes against humanity since Neuberger and in that since we have to see the Yugoslav Tribunal, the Rwanda Tribunal, the International Criminal Court, the Sierra Leon Special Court, we have to see these institutions as early beginnings, sort of the early emergence of a more universal system of international criminal justice. The fact is that the law applies more to the weak than the powerful. This is not a desirable state of affairs but we have to start from somewhere and we have to begin to consolidate these institutions and push for more universal enforcement. Having said that, I think that we live in a global inter-dependent world where even the most powerful states can not remain entirely indifferent to the consequences of their actions. And we see that, for example in the case of the United States, its loss of reputation over Iraq over Guantanamo Bay has affected for instance, the diplomatic capacity of United States to wield influence. It has affected the legitimacy of the United States. So, it may be that there is no international criminal court that will prosecute those who are responsible, it may be that US courts will only punish some of the more junior low level offenders as opposed to the more senior people that are responsible but international law is not just about court, it is also about legitimacy, and legitimacy is an important part of a sustained long term exercise of power even by countries such as the United States.

* What are your expectations in the case of General Gotovina?

- My expectation is that it will be a long and hard fought case, certainly on the part of the defence team. We plan to put forward a vigorous defence to challenge every bit of evidence and certainly we will spare no efforts in demonstrating to the Court the innocence of General Gotovina.

* Do you feel that the fact that he was in hiding for a period of time will be work against him?” Dr. Akhavan: “Well it may not appear good but I don’t think that the Court will make its decision based on that fact. At the end of the day the real question is whether there is sufficient evidence to prove the facts alleged against General Gotovina and if those facts amount to international crimes. So, I am not too terribly concerned about the fact that he was perceived as a fugitive for some time.

What is your forecast for the possible consequences that Haag trials will have on Croatia in the long run?

- Well that is a very good but a difficult question. I hope that the effect of the War Crimes Tribunal will be to encourage not only in Croatia but in the International Community as whole, encourage the rule of law.

* Do you think that the option of prosecuting General Gotovina in Croatia would have been a better option?

- I think that the international courts should be established where national courts are unable or unwilling to prosecute offenders. That is the basic model of the International Criminal Court. And I think there is always an advantage of prosecutions in the society that is directly affected because it allows people to assume a sense of ownership, it is better to let people recon with their past. So I think there would be some advantages to having this trial in Croatia. But under circumstances, I don’t think that is possible. I think that Tribunal wants to control the more important cases. But I agree that in principle if you can to prosecute at the National courts, it’s better:

* What is your message to AMAC readers?

- I would like AMAC readers to have faith that the Tribunal will impartially administer justice in this case. And that we certainly in our team will spare no effort to establish the innocence of General Gotovina and my hope is that his acquittal and the end of the proceedings of the ICTY will help close an unfortunate chapter in Croatian history as the country moves on to much better times. I had the privilege to live in Zagreb for 6 months during the war, at Mlinovi, and to travel throughout the country from Vukovar to Knin, from Zagreb to Pula and to make many friends across all walks of life in Croatia, and all I can say is that I am so delighted now to see that the country has now moved on away from this sad and tragic chapter of its past. And I hope that the War Crime Tribunal will also become a distant memory, but one that will help vindicate the truth and the rule of law, and bring some sort of closure on those unfortunate years.”
It is reassuring to hear the confidence expressed by Dr. Akhavan about General Gotovina’s trial. Those of us, who maintained all along that General Gotovina is not guilty, find reassurance in the fact that an ex-prosecutor at the Haag is equally convinced that General Gotovina is innocent!

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Katarina Pejakovic - Hrvati AMAC ®

Copyright ©5 Hrvati AMAC 2006

• "GOTOVINA NIJE KRIV" - Dr. Payam Akhavan

	23-10-2006 19:19
	"Gotovina is not guilty" I think that Dr. Payam Akhaven in his interview with Katarina Pejakovic was asked the questions that needed to be asked. We all know that "You can't keep The Good General Down!" Guest

Zeljka Marija Corak

	04-06-2008 11:54
	farshad faryabi DER DR payam Akhavan    I am writing this letter regarding my anohter letter to department of forigner affairs about attonrey in law for international criminal court and my claim.    I have been organized discriminaiton in USA and I can not get any attorny in law for following my claim in international court.      I sent my letters and requests to these deparmnent in USA.    1- FBI( witht docuemens )     2- police( with answer , we don; have any law for preventing of this kinds of violaton )  3- US distrct court in seattel   they did not find out without any attornehy in law.    4- federa court   no answer     5- WA state human rights comission     6- EEoc     7- US congree     and too many anohter govenment organzaitons.    they did not follow that.        this reports were about soem things happeans to me between jun15th to now.    1- illegal psycological program when I was working in my job between jun 15th   2005 and agust first when I was working in my job.      illegal sosial pschologica program on me and my coworkiers when we were working in our   job.    2- psychologial fight and methaphisical exams on me;    A) hypnotism   the same perosns who are respoder for store illegal exams are pressering me by hypnotism and some illega telpathic psyhchological fight    B) telepatic psycholigical fight     some professional persons abuse me by advanve telpathic skills.    3- Isolation ( WAR crimes )     they did not give me any stament for telepathy for soem telapthy program as well as another US citizen ships to me and one of my family memberships.    from agust 2005 to now.    when I aske from police and some resopnder persons they tell me we don; thave any telpathy in USA and if you hear some telpathi noise you have to go to the doctore.                this is kinds of isolaiton in USA aginst me and my family.    I complaint from crime agianst huamannties and war crimes to interntional criminal courtl.    some of internitonal organizaions that I complaint are.  1- interpol( france , china)     2-UN ( Mr koofi anan )    3- UN high human right comission     4- internationa criminal cout     5- deparmnet of forigner affairs in swedde60    6- human rights watch     7- intentiona federatio of red cross     8- islamic republic of Iran ( my original country )  they did not answer me and they told me we can not follow that)  9- pop john paul     10- ayatollah olazma montazeri     I hope you follow that and you answer me very soon.    with the best regards     farsha faryabi     851 137th AVE ne B7 - 204     bellevue     WA 98005     425 653 3137 Guest

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