Criticism of the April 2011 ICTY’s Gotovina Decision

6 out of 12 legal/military experts who authored the Application and brief by  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 have phantom concerns” have in November 2011 participated in roundtable discussions and assessments of the ICTY Trial Chamber judgment (15 April 2011) in Ante Gotovina and Mladen Markac case.

Following is the Report produced from that roundtable and a most valuable read.

OPERATIONAL LAW EXPERTS ROUNDTABLE ON THE GOTOVINA JUDGMENT: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law  REPORT PRODUCED BY:  International Humanitarian Law Clinic at Emory University School of Law 

CONCLUSION: “At first glance, a judgment of the ICTY regarding the application of IHL to complex targeting operations involving two warring parties targeting military objectives in populated areas is a welcome development. With the progressive development and effective implementation of IHL in mind, careful consideration of the legal principles, obligations and standards could make a major contribution to IHL and to future military operations. Unfortunately, the Gotovina judgment as it stands goes in the very opposite direction. The military and operational law experts gathered at the November 4, 2011 roundtable discus­sion came together with the goals—shared with the ICTY—of promoting the development of IHL, ensuring the lawful conduct of military operations, and protecting civilians from the ravages of war. Because of the great potential for this decision to become a persuasive authority in the law of targeting, the experts believe it is important to highlight the legal flaws in the judgment and, even more important, the longer-term detri­mental effects that the faulty application of the law will likely cause. Preserving the ability of military forces to conduct lawful military operations and protect civilians accordingly is essential.”

On Determining Whether Artillery Fire Was Directed at Civilians Purposefully: Criticism of the ICTY’s Gotovina Decision

By Robert Chesney

 [This is the first of two posts concerning the ICTY’s Gotovina decision (the ICTY summary of which appears here, and two volumes of trial documents are available here]

Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory Law, writes in with the following guest post.  Everyone interested in IHL issues (particularly the methodology by which a court might infer the intentional targeting of civilians) will want to take a look at this:

On November 4, 2011, the International Humanitarian Law Clinic at Emory Law School convened a group of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing IHL.  The meeting was convened to analyze the broader legal issues in and implications of the recent judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Gotovina, which focused on Operation Storm, the Croatian operation to re-take the Krajina region in the summer of 1995.

The meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment.  These issues are at the heart of an amicus brief that has been submitted to the Appeals Chamber at the ICTY [Ed.–a subsequent post will cover that brief]. Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning and the implementation of IHL.

The experts gathered represented a remarkable compilation of military legal and operational experience with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force.  This operational experience and knowledge brings the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief.

The Emory IHL Clinic has now issued a report from the experts’ meeting: “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law.”  The report sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas: the imposition of what amounts to a strict liability standard imposed on commanders who attack lawful military objectives in populated areas; the flawed application of the principle of proportionality; the failure to consider or apply Article 58(b) of Additional Protocol I and its obligations for defending parties to take precautions; and the failure to properly recognize and rest the legal analysis on the operational complexity inherent in the targeting process.  With an eye to the long-term consequences of the judgment, the report also emphasizes a range of institutional concerns and second order effects resulting from the judgment: the effect on future military operations; the consequences for the respect for and development of international law; and specific overarching concerns regarding the role of the commander and the role of legal advisers during military operations.

Comments

  1. Michael Silovic says:

    As with other ICTY judgments, the Gotovina
    judgment has the potential to become a highly persuasive source of authority regarding future understanding
    and implementation of IHL, and especially the law of targeting.

    This statement furthers my speculation that the generals were targeted for political reasons.They have been the first ever charged with such acts.This alone should have the international community calling for them to be released. If I understand correctly this would allow the Hague to control wars in general and the way operations work. I also believe that if they continue on insisting that the generals are guilty as outlined then we need to have the British and Americans involved criminally charged as well as they were also involved in planing. As someone who has looked at this issue from a non political stand point my thoughts have not changed, No one can guarantee anyone’s safety in war.Yes some people were mistreated according to witnesses but so what!This kind of mistreatment happens in every war and is seen in Iraq,Pakistan,Afghanistan,Vietnam and other places in which wars occurred.In fact I believe the plan to move Serbs from areas were to benefit the Serbs from atrocities that the government would not have been able to control from others. To take someones possessions in war is not uncommon. Burning villages happen in every war.I could go on with a list of things that happen when war occurs. In war there are no boundaries other to to protect yourself and your countries people and interest. If the Serbs took control does the Hague not think the same would have happened to Croats?This is way beyond ridiculous. We should all be condemning the Hague and demanding that the British and Americans involved with the Generals be held accountable and they also be tried at the Hague.No court has the right on telling anyone how to protect themselves in war.This sham can not and will not stand the test of the will of powerful countries in NATO. If this is to stand then there are many in NATO that should be brought before the courts immediately.

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  2. If the decision stands, Croatia should take a lead international role in bringing to justice all military commanders and their political masters to court under the same rules applied to Croatia. Any state or person not complying and hiding behind state sovereignty should be hauled before the Security Counsel and trade and political sanctions applied. Croatia indeed would become the darling of IHL…or would she?

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  3. Michael silovic says:

    I agree that Croatia should take the charge. The problem is those in the Hague courts are puppets of a higher power so I doubt they will even listen to such charge.What I am trying to research is if it was even legal to send the generals to the Hague under the Geneva Convention. If our new constitution was written after the homeland war I do not believe that the laws of Geneva convention should apply to begin with. From what I understand that Croatia was not an independent country nor party to the Hague Convention and did not sign on to the treaty in 1929 or in 1949 as it was not an independent country..While some might argue the interpretation that the former Yugoslavia was part of the Geneva convention it does not specify laws concerning independence and its adherence to the convention.Ratification of the convention was not performed until mid 1990 by Croatia as an independent country.Correct me if I am wrong.

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    • Love a questioning mind. The Constitution was written in 1990, some amendments later etc. I would think that when Croatia became a member nation of the UN (during the duration of Homeland War) then Geneva Convention would have been taken on etc? It’d be good to know if you dig out something “interesting”. Thanks.

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  4. Michael silovic says:

    Thank you for the correction. You are correct with the 1990 date as I was looking at the latter amendments.The Geneva convention was originally based on international war. We were not involved in an international war but rather an Internal war which only the states should be able to try criminal acts.From what I can find the Croatian people never ratified a treaty of The Geneva convention themselves proper.( Voting for itself ) The only time we listed with the Geneva Convention as an independent state was under the rule of Germany.Since we have never been an independent country as we are now the Geneva convention Protocols are a bit cloudy. I am not sure where an internal conflict comes into play here for anyone to be tried in the Hague. The language of the protocols are left to interpretation of those who read it. Further I guess we need to look at the Constitutional rights of Croats dating back many decades to see if it conflicted with the 1990 treaty. Even if the Geneva Convention included internal conflicts research must be given to see if it was applicable in our case and when it actually became a part of the protocols and if Croatia even signed on to it.

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    • You’re on the right track Michael. Certainly, as far as I can ascertain from reading etc there was the question that war in Croatia was a civil war and certainly the world called it that for many years, but I think that the Hague decided that it was an international conflict in order to process the accused or deliver judgment. I believe the reasoning is in the judgments. Worth checking on this for personal interest at least.

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  5. Michael silovic says:

    I will try to find more in my research. A lot of the history is clouded and difficult to get proper answers.The government of Croatia is very difficult to deal with from a far.I have been researching and calling Croatia for 3 years to get citizenship records for my mother and no one can tell me where the records are from the former Yugoslavia citizens or how to get them and I only have a copy of her Yugoslavian passport to present .One would think that it would be easy to get copies from Zagreb. It is the same when dealing with records from the Hague. They are just as bad in getting answers. Researching Croatian law on history and cross referencing the Hague is no easy task but I will not give up because I strongly believe that it was wrong to send the generals to the Hague under our own laws which conflicts with the Hague depending on what we believe the war actually was internal or not. I do not see anywhere this would or should be classified as an international war. if in fact it does meet the requirements of international law then many people in NATO need to be held accountable as well.

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    • Perhaps, if your mother was born in former Yugoslavia (Croatia) the best starting point is to get her birth certificate from the local council (opcina) if outside Zagreb etc, if in Zagreb that too shouldn’t be a problem (but hey, I know what you mean) once she has her birth certificate then her citizenship should be entered there at the same place/ she would get the so called Domovnica which is a certificate of citizenship. What about going through the Croatian consulate for the area you live in abroad. You can get them to assist instead of calling Croatia yourself – many office workers there are not helpful I know. Cheers

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  6. Hvala Ina, stvarno sjajan blog…
    T

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  7. Everything is very open with a very clear explanation of the challenges.

    It was truly informative. Your website is very useful. Thank you for
    sharing!

    Like

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