The Prosecution file by 10 August 2012 a submission explaining whether, in the event that Gotovina and Markac are not found liable for unlawful artillery attacks or to be a member of a joint criminal enterprise, the Prosecution believes that liability should be ascribed to them on the basis of superior responsibility under Statute of the Tribunal or as aiders and abettors.
Given that the Appeal hearing was on May 14 and the parties were ordered to file supplementary briefs by 21 May this move by the Appeals Chamber seems to suggest that the Chamber may not be convinced that the so-called joint criminal enterprise (for which Gotovina and Markac were convicted in April 2011) has strong foundations or that such a finding of Trial Chamber is beyond reasonable doubt.
The submissions sought by the Appeal Chamber by 10 August 2012 would need to address whether any remaining findings (beside unlawful artillery shelling that support the Trial Chamber joint criminal enterprise construct) by the Trial Chamber fulfill legal criteria of superior responsibility.
While Gotovina and Markac were charged alternatively as participants in joint criminal enterprise and individually for allegedly giving orders for the committing of crimes and for command responsibility, the Trial Chamber did not pursue confirmation or finding of elements of commanding (superior) responsibility. That is, the original hearing concentrated upon joint criminal enterprise (allegedly evidenced by unlawful or excessive artillery shelling) and omitted to delve into elements of commanding responsibility. E.g. whether the generals knew that persons under their commands would commit crimes, whether they had any effective control over those who committed crimes, etc.
Should the Appeal Chamber find there was no excessive artillery shelling (during Operation Storm 1995) the conviction of joint criminal enterprise also cannot stand.
Certainly, this unusual move by the Appeal Chamber suggests that Trial Chamber convictions of excessive shelling (and therefore joint criminal enterprise) are palpably on shaky grounds. It would seem that the Appeal Chamber, by seeking above submissions by the Prosecutor, might be considering looking into possible existence of alternative guilt, on grounds of superior responsibility, without the need to send the matter for new trial, given that Trial Chamber did not make specific findings on critical elements of lines of responsibility. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps.(Zgb)