Participating in the discussion, which was held before a special panel of judges presided by Judge Alphonse Orie, were prosecutor Kenneth Scott, defence attorneys Cedo Prodanovic and Zeljko Olujic, Croatian government representatives Zeljko Horvatic and Assistant Justice Minister Jaksa Muljacic, and amicus curiae Davor Krapac.
ICTY Chief Prosecutor Carla Del Ponte suggested referring the Norac-Ademi case to the Croatian judiciary on 2 September 2002. In his address before the panel of judges, prosecutor Scott was ambivalent about Del Ponte's proposal, stating that the case involved grave crimes and high-ranking indictees, who he said the prosecution wanted to be tried in The Hague if the tribunal had the necessary resources and time.
The panel can decide one way or another, Scott said, stressing that Del Ponte believed that there could be no referrals of cases which would result in failure to punish the crimes.
Presenting arguments supporting the referral of the case, Scott quoted reports by Del Ponte and ICTY president Theodor Meron to the UN Security Council, and a report by the OSCE Mission as expressing confidence that the Croatian judiciary was capable of successfully processing a certain number of ICTY cases, particularly considering the additional training of judges.
Speaking about command responsibility in Croatian legislation, Scott warned that the amici curiae and the Croatian government representatives had expressed doubts in their submissions about the possibility of international law being applied by Croatian courts.
The prosecutor concluded by saying that despite concern about some issues, the parties that made the proposal believed that grounds existed for referring the case to Croatian courts.
Ademi's attorney Cedo Prodanovic said that the case met the referral criteria because the indictees were medium- and low-level officers. He also said that it was the fact that Ademi did not have effective control over all Croatian Army units during the 1993 Operation "Medak Pocket" and that four generals were involved in the operation that was led by Janko Bobetko, who designed, planned and commanded it, as Bobetko described in his book.
Speaking about command responsibility, Prodanovic said that Article 19 of the 1993 Criminal Code provided for the application of international conventions in case an incrimination was not covered by domestic legislation. However, he recalled that the former commander of the WWII Jasenovac concentration camp, Dinko Sakic, was successfully prosecuted in Croatia on the basis of command responsibility under Croatia's criminal legislation.
There are a number of cases in the Croatian judiciary which have been processed in line with the highest European standards, including the trial of the Gospic Group, Prodanovic said.
Zeljko Olujic, defence attorney for Norac, said prosecutor Scott's concerns about the case being processed in Croatia were unjustified because the trial would be unbiassed, with the best prosecutors, judges and defense counsel.
He added that Norac would not enjoy any preferential treatment in Croatia because he had already been sentenced to 12 years in prison by a Croatian court, but that as a medium-ranking officer he should not be tried in The Hague.
Citing Resolution 1534 of the United Nations Security Council, Olujic said the Council had the authority to decide to refer the case to Croatia. Commenting on the relevant legislation, Olujic said that the 1993 law, which was more favourable for the indictee, should be applied.
Olujic also said that contrary to Del Ponte's position, it was irrelevant if the indictees would be acquitted or convicted. Speaking about command responsibility, Olujic said that Croatian legislation covered command responsibility and the entire indictment.
"With the arguments presented by the representatives of the Croatian government and the amici curiae, I believe that the case can be referred to Croatia without any reservations," Olujic said.
After Olujic's address, Judge O-Gon Kwon voiced concern about the issue of command responsibility for failure to prevent or punish crimes.
The discussion will continue with statements by Krapac and the Croatian government representatives.