Legal and military experts support Gotovina and Markac Hague defence challenge

Lt. Gen. (ret.) Wilson A. Schoffner (Photo: courtesy of U.S. Army)

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)

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  1. Never heard such garbage in my life. Serbs have lived here for centuries and what the Croats did was wrong. Go back to 1941 – 1943 where similar if not worse atrocities against the Serbs occurred. These so called expert witnesses are no better ………….. … B… and B…(uncorroborated content edited out by site admin) have been tried and found guilty of war crimes in their absence in Malaysia recently just to prove a point. How many innocent people did they murder through their misguided missiles and the much destructive cluster bombs. I civilian death death is one too many. This is cold blooded murder. Because now Croatia is a democracy these new supporters of Gotovina will back them to strengthen trade agreements and who knows, possibly huge monetary kick backs. A coward will always back another coward and we won’t be fooled. I am an Australian Serb and are totally appalled to hear of this new s…. There are 658 Uzelac’s on the Jasenovac Death Camp victim lists and no one has ever been held accountable for there deaths and it seems that a cover up of Jasenovac had succeeded. Shame, shame, shame. They talk about the Jews, what about the 6,000,000 Russians, 6,000,000 Ukraines and countless Poles, Roma’s and other races that were slaughtered by these so called white supremists, the Anglo Saxons of Germany.

    • Let’s keep to due process in the courts about which you must have been taught as an Australian. You are wrong with regards to Jasenovac and trials for that. But as far as extermination of Jews in Serbia (94%) in WWII yes no one has been held responsible for that although there are probably many still alive who via Milan Nedic’s government and Serbian Orthdox Church collaborated gladly with the occupying German forces. With regards to the millions of other Jews exterminated in WWII you may want to refer to my November post “And Justice For All”.

      No matter what your personal opinion may be you have a right to it but we are here dealing with facts provided to the court. Surely even an Australian Serb wouldn’t deny the facts from being presented and considered.

  2. Michael Silovic says:

    This does not surprise me. Everyone knows that the generals were convicted for political reason. It was well known in the USA that the generals were innocent. Following the trial of the Generals closely it was apparent that Carla Del Ponte was out to do nothing more then to protect former President William Jefferson Clinton, former National Security Advisor Anthony Lake, former Deputy National Security Advisor Samuel Berger, Ambassador Richard Holbrooke, and former U.S. Ambassador to Croatia Peter Galbraith from a criminal investigation against senior U.S. officials for aiding and abetting Croatian General Ante Gotovina . They all played a pivotal role in aiding General Gotovina’s campaign in Operation Storm. They had also long planned to put Croatia into the EU once the country re-established itself and knew that General Gotovina had enough of the Croatian people backing to become president and that he was not going to go along with Croatia being a part of the EU. Tragically everyone in war suffers and there is always error. Had Croatia been allowed to separate peacefully with out the Serbs wanting a greater Serbia there would have been a peaceful transition. The USA did massive damage with their bombings against the Serbs because it was in the best interest of freedom and democracy to allow independence. Sadly this story is far from over.We see the attitudes of the Serbs in Kosovo which will again inflame the Balkans. When this happens who will the Serbs blame?

    • Carla del Ponte was, it seemed, out to get Croatia even if it meant going on a witch hunt and persisting that Gotovina was in hiding in Croatia and that the HDZ government knew where he was. Which they didn’t. I guess we need to live in a world in which there will be people who will say anything, without evidence, in order to pursue their goals. But, in the end justice prevails, even if it is very slow in coming, often. Thank you on your comment Michael.

      • Michael Silovic says:

        I do not believe that Carla Del ponte held anything personal against Croatia or the Generals.She wanted to find the truth and when she discovered that the generals were Innocent it was then that the powers in the EU then explained to her ( in no uncertain terms ) that the generals were a danger to their plans to put Croatia into the EU. Every one in the EU and the United States are interested in Croatia’s natural gas resources and waterways in the Slavonian region and it’s other assets which includes forestry.. I believe she intentionally mislead the courts on where Gotovina was as a way of showing strength to those who were trying to manipulate her from the EU. This trial is about 3 issues.POWER-MONEY-GREED.

        Egotistical governments (also knows as manipulation )comes from the EU political forces in a manner which to control Croatia and its assets.

        Money trades hands so fast in and out of government that corrupt or not that its impossible to see where it went but a lot of people involved got rich.This includes individual corporation outside of the EU.

        Greed is the Eu and the United States coming to take more then the lands can handle.

        I think that after she understood what she was really facing that it was in her best interest to let it be and move on. The powers in control were greater then she.Most of those associated with the trial have all of a sudden moved out of the lime light. Was this also calculated?

        Let us not fool ourselves, It is clear that the generals are nothing more then pawns in a nasty game to control Croatia and it’s natural assets.

  3. Thank-you, Ina, for bringing these promising developments to light.

  4. Michael silovic says:

    Peter, I understand how you can agree with the Hague. Anytime anyone is presented with skewed evidence the out come is known to be one of guilt. If the generals are guilty then why have we not brought the agents of the USA before the Hague as well since they assisted the general? This is clearly a case of politics and the agenda is very clear to see.Sadly I believe that no matter what evidence is put forth to prove the generals innocence that he will not be freed any time soon because of the political agenda the EU has set forth for Croatia. It may be many years before they are freed and after Croatia has the EU handed down to them whether they like it or not and the country is controlled by outside forces of the Eu. The powers in the EU want nothing more then Croatia to be their puppet.I hope and pray every day that the generals are freed and that Croatia remains with it’s independence outside of the EU.

  5. Trialed for exessive bombing of an area which belongs to your own republic, on a region who is refusing to integrate in a state called Croatia. If it wasn’t for “Oluja”, Mladic and his troops would have commited another “Srebrenica” in Bihac. Free Gotovina and Markac.

  6. Many innocent civilians gave evidence against the Generals and that is what convicted them. The USA, not as a whole but a few in key positions committed crimes also. Malaysia has set up a war crimes tribunal with qualified judges also similar to that of the Hague. The Hague is not the only war crimes tribunal in the world and people are not aware of this. They have convicted war criminals the same as the Hague and will continue to do so. Too many people have tunnel vision and this is a problem throughout the world unfortunately. If you can get your hands on the USA and British war criminals you are doing well. The USA has the CIA to do it’s dirty work and they are virtually undetectable and untouchable. The sentencing judges in Malaysia have the same authority as the Hague and I can see them now going out to execute or arrest these criminals as do the CIA, Osama Bin Laden only knows to well of their resolve of the CIA as he has been killed by them. Malaysia will also do the same. I do know that some USA and British former leaders are in hiding and are afraid of receiving their lot similar to Osama Bin Laden. You can summarize generally but this is not good enough, the plot is deeper. Look at Croatia now, they have a very weak economy, all the young have left the country to find work and a future and all that is left are pensioned of war veterans and the older population. If Croatia’s economy kicks off then they will have to find a million workers from the outside world. Croatia has to populate or perish but the fertility rate is very low and will affect future generations for a long time to come. What solution do you have; fill your territories again and with who? The older population of Croatia are barely surviving on Government hand outs and this cannot go on for ever.

    So in summary you may say that the Generals liberated Croatia and are war hero’s, but the down side to all of this is that the people of Croatia are now suffering very badly because of it. Who will be paying Government taxes in the future when the war veterans and the oldies die off. Surely their off spring will not because they will not return to Croatia in too much of a hurry as they will have by then established themselves elsewhere in the world and they will not give up their new good life in a free world. I mean do you think that I would sell up and go to Dalmatia and take up my fathers home and pay the Croatian Government taxes. If you think that I would then you have got rocks in your head.

    • Civilians gave evidence in all cases before the court not just the case at hand but if you pay attention the issue here revolves around shelling and international laws or practices. Croatia’s economy as economies of all former Yugoslavia spiraled downward under Communism only people didn’t know it as the Communists covered it up with foreign loans etc and it came to light when it was no longer sustainable to live in a false economy. Croatia is among many countries of Europe and the world that’s having economic crises and reasons for that have nothing to do with independence wars. People in Croatia and other former Yugoslav states suffered under Communism and that’s why many emigrated a long time ago, it was lucky then that the world had jobs for them, that’s not the case now as many are suffering the same destiny as Croatia when it comes to unemployment and economic downturns.

  7. Michael Silovic says:

    I agree that no one should get away with murder. The issue here is whether or not the generals acted outside of it authority under the Geneva conventions and the declaration of war . None of this happened. Yes many people were mistreated and perhaps murdered. You can not justify any army commander in war to be held accountable for individual acts of the soldiers acting on their own. There is no proof that the generals acted in anyway to intentionally kill civilians that did not pose a threat to them other then what people are saying in court with a lack of proof. Saying that someone did something does not constitute proof.Your comment (if you can get your hands on certain USA and British officials) is baseless. The Hague has a right under international law to prosecute anyone of war crimes if the proof is available to them.The issue now is that the proof has been hidden and the generals were made to be scape goats for political reasons. This is why we have further proof that they are innocent in testimony of those who are now coming forward. As to the Croatian economy let me say that Serbia isn’t in any better shape and will probably get worse. There are a lot of people of Croat decent who would love to move to Croatia and invigorate the economy and restore our mother land and its people to greatness just as there are Serbs who would like to do so also. The government of Croatia needs to lax it’s laws on ancestry and allow for people of Croatian heritage to return to their ancestral homelands unconditionally to help bring Croatia towards a prosperous country.I hope that both sides between the Croat and the Serbs leaned something from this war. What they have should learned is that Croat’s are a determined people who can accomplish anything as a people and the Serbs should have learned that it is better to work for peaceful means then war.

    • Yes, agree fully on all counts. There are many “second, third…” generation Croatians born abroad to emigrant families who are looking at living in Croatia and working there.

      • Michael Silovic says:

        Yes I am one who would like to get my citizenship based on ancestry. Perhaps one day you can write a article with links to the applications and process and perhaps people who can help to prepare such documents. One of the issues is that it is very difficult to know what documents are needed and what to exactly attach to them. More important is being able to contact someone who has actually filed all of the paper work so that it is correct when sent to the embassy. There are many people outside of Croatia that do not know they are allowed citizenship based on ancestry.

      • Cool idea, will do that, write a post etc. Have personally assisted some Third gen get citizenship from abroad, born abroad, parent born abroad, grandparent born Croatia etc. So it is possible. Cheers

  8. spanonski says:

    gotovina never orderd shelling of civilians .icty sentenced a man for 24 years in jail for an military action in which no civilians were killed.24 years in jail for an military action with no casualties.

  9. Thanks a lot for your work here, Ina
    I found you through youtube and will be reading on.
    I’m writing an essay on the topic.

    Best regards from Sweden
    // miry@

  10. Thanks a lot for your work here, Ina
    I found you through youtube and will be reading on.
    I’m writing an essay on the topic.

    Best regards from Sweden
    // miry@

  11. Great to know. Best wishes Mirjana


  1. […] original here: British, Canadian and American legal/military experts in support of … function viewProducts(keywords){ keywords = keywords.replace(/&|+|"|'|\|/|-|#|_|!/gi, ' '); […]

  2. […] prosecution filed (23 January 2012) a response to the brief authored by 12 British, Canadian and American legal and military experts as Friends of the court […]

  3. […] Friends of the court and filed it on 12 January 2012 at the ICTY (see my previous posts “Legal and military experts support Gotovina and Markac defence challenge” and “The Gotovina and Markac ICTY prosecutors patronise and say Friends of the court […]

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