An unprecedented occurrence landed at the Hague on Thursday 12 January.
A 25 page Application and Brief by 12 world experts, analysing the ICTY’s April 2011 Judgment on Croatian Generals Ante Gotovina and Mladen Markac in relation to the alleged excessive shelling of Knin, Benkovac, Gracac and Obrovac during 1995 Operation Storm that liberated the Croatian territory of Krajina from Serb occupation, was submitted for filing.
Although not a defence document in the Appeals Chamber but a submission by Friends of court, the Application and Brief support the Generals’ defence and seems to have an overwhelming capacity of contributing to the original judgment being declared unacceptable and baseless.
As a reminder, a significant part of the 2011 Judgment against the Croatian Generals Gotovina and Markac (who received 24 and 18 years imprisonment respectively) relates to the artillery findings which the ICTY translated into a conviction of participating in “joint criminal enterprise”. I.e., the trial chamber found that Croatian artillery hit too wide of the military targets and was therefore indiscriminate, and concluded that civilian areas were targeted based on an order issued by Gotovina because he aimed to drive out the Serb population.
Compiled by a group of high ranking British, Canadian and American experts and professionals in international military and humanitarian laws including retired US Army generals, the brief and application seek that the court reconsiders the findings of the original judgment in the case.
The brief submits among other matters that if the Appeals Chamber uphold the original judgment on artillery findings it would have long term implications for the international humanitarian and military laws and future armed conflicts.
The submitting experts suggest that unrealistic standards of battle/shelling including the acceptable error in target precision, applied by the Trial Chamber in the case of the Croatian Generals, are not the standards practised/acceptable in past conflicts around the world. And state that the Friends of the court:
“… are united in their concern that any judgment encouraging application of this 200 meter standard (or any standard of acceptable error that is not based on the actual realities of artillery and indirect fire employment) in future operations will subject military commanders to a standard of care that is impossible to satisfy and operationally untenable”.
In conclusion of the Application and Brief the group of experts:
“… respectfully request that the Appeals Chamber admit this Brief pursuant to Rule 74 of the Rules of Procedure and Evidence and reconsider and reject the findings of unlawful artillery attacks during Operation Storm”.
Submitting individuals/Friends of the court are:
Laurie R. Blank, Walter B. Huffman, Bill Boothby, Eric Talbot Jensen, Geoffrey S. Corn, Mark E. Newcomb, William J. Fenrick, Thomas J. Romig, Professor C H B Garraway CBE, Colonel Raymond C. Ruppert, Dean Donald J. Guter, Gary Solis.
Furthermore, in his expert report to the Application and Brief the retired U.S. Army Lieutenant General Wilson A. Schoffner said: “Should the standard of review adopted by the Trial Chamber be allowed to stand as a legitimate interpretation of international law, it would unfairly condemn commanders who have properly conducted military operations pursuant to accepted technical and tactical standards. War is inherently dangerous and an abhorrent matter, but it is an acceptable use of force when executed pursuant to morally responsible standards and established technical and tactical norms. In the name of justice, I respectfully submit that this court cannot allow this fallacious finding of the Trial Chamber to stand, as doing so would place at risk many future commanders who are executing their responsibilities in a professionally competent and morally responsible manner to the threat of being brought before some international tribunal and unfairly charged with war crimes, as was General Gotovina here”.
Journalist Jadranka Juresko-Kero from the Croatian newspaper Vecernji List has written an exclusive article depicting in the Croatian language the most relevant sections of the above Application and Brief, suggesting that the Croatian Generals should be freed.
To the many Croatians who regard the Generals as heroes of the Croatian Homeland War this unprecedented occurrence in the Hague is a form of blessing. There are other people in the world who also argue that Croatian Generals hadn’t breached any international war or humanitarian laws or acceptable practices in the shelling of Krajina, in their efforts to liberate it.
Croatians justifiably feel that Croatia with its leadership had not embarked on a joint criminal enterprise to ethnically cleanse the Serbs from Croatia as suggested by the Hague Trial Chamber’s judgment in April 2011. Had the Croatian Serbs and the Yugoslav army accepted in 1991 the will of 94% of Croatian people to secede from the Communist Yugoslavia there would have been no armed conflict, no war and no victims. But since the Serbs rejected to live in an independent Croatia and began brutalising Croatian and non-Serb population, ethnically cleansing the Croatian territory and occupying a third of Croatia, liberating that territory was a just cause.
The fact that Serbs decided to leave Croatia in masses, in August 1995, immediately after the Operation Storm liberated Krajina from Serb occupation, may not have been, as Trial Chamber in the Hague stated April 2011, due to fear of being killed from excessive shelling. Indeed, they may have fled because their goal of pinning Croatian Krajina territory to Serbia did not materialise and their leaders urged them to leave. Ina Vukic, Prof. (Zgb), B.A., M.A.Ps. (Syd)