Operation Storm, Croatia, August 1995
Ante Gotovina’s defence team has January 27th filed its Response to the Application and proposed amicus curiae (Friends of the court) brief (filed January 13 by 12 British, Canadian and American experts). The Response requests that ICTY accept the brief as it is an “independent and objective assessment from leading experts in the field.”
“They (the 12 experts) offer an analysis of the Judgment through the lens of 290 years of practical military experience. There is little doubt that their observations are of assistance to the Appeals Chamber and relevant to the issues on appeal, and thus satisfy the criteria for admissability.”
Gotovina defence team recalls that the 12 experts raised the question “whether the Trial Chamber applied an improper burden of proof standard on a military commander.”
Gotovina defence team recalls that the 12 experts are “concerned with the Trial Chamber’s untilisation of a 200 meter radius of error in order to determine which effects were attributable to lawful objects of attack and which were not. In the collective opinion of the Amici, this standard is fundamentally inconsistent with the realities of operational employment of artillery and other indirect fire assets.”
On the matter of Friends of the court impartiality and objectivity placed into doubt by the Prosecutor’s response to the same brief, Gotovina’s defence team points out: “The fact that one of the Applicants (Professor Corn) was called by the Defence as an expert at trial is of no consequence, given that the Prosecution has never suggested either at trial or on appeal that Professor Corn was biased or lacked objectivity.”
Furthemore, Gotovina’s defence team says that it is a fact that the brief of Friends of the court was “endorsed by eleven other prominent individuals, including the former Senior Legal Advisor of the Office of the Prosecutor, which removes any doubt about the objectivity of the proposed Amicus Brief. The reputations of all twelve of these individuals should not be tarnished as biased or lacking in objectivity where no evidence has been offered to support such accusations.”
Given that Judge Theodor Meron has announced the Appeal hearing for this coming European Spring it is to be expected that the Appeals Chamber will soon be delivering its decision as to whether to admit, or not, the new evidence propsed by Gotovina’s defence team. This includes the brief authored by the 12 experts.
Should the ICTY Appeals Chamber decide to accept the new evidence then the coming weeks are promising to unfold with, to many known and felt, but yet unseen and unspoken of aspects of the Croatian Operation Storm that not only positively and deservedly affect Croatia, its past and its future, but also those of all combat and military fields of the world. The standards, the benchmarks of military operations are at stake here, or better said – their justice and justification.
Gotovina’s defence suggests that all new evidence has the capacity of proving that Gotovina has no place among convicted participants of the so-called joint criminal enterprises.
Should the court decide not to accept the new evidence, then the corridors of the world’s knowledge, expertise and military engagement will be filled with dignitaries scratching their heads in rather harrowing questions about what is right and what is not in the application of International Humanitarian Law and the Geneva Convention, when it comes to the battlefields of lawful and righteous pursuits. The ICTY prosecutor says that the Croatian army (Gotovina) issued orders to strike against towns (e.g. Knin), in the liberating Operation Storm. But, what other language do commanders use at times of war? Wren’t there orders to strike against Baghdad, Tripoli, Kabul … and in WWII against Pearl Harbour, Berlin, Hiroshima …
In the case of Gotovina the ICTY Trial Chamber had found that 96% of shelling fell upon lawful military targets. That, in anyone’s book, should say a great deal about the standards and care taken in “Gotovina’s” battlefields. Ina Vukic, Prof.(Zgb); B.A., M.A.Ps. (Syd)
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I look at this from two angles. One is that there has been no changes in any outside political influence which may have led to arguably the most absurd verdict in the history of justice. Ultimately, during the first phase of court proceedings, the defense team systematically destroyed each and every argument that the prosecution put forth, and if that effort failed to result in a dismissal of charges, then God himself couldn’t free Gotovina and Markac. The other angle is that something has changed in the way that the US is seeing Croatia to the point that they have even forgiven our government for Stipe Mesic’s blunder in 2003 when he refused to sign an appeal from the US giving its troops immunity from ICTY prosecution, after which things started going downhill for our Generals. Maybe with the Russians “threatening” to start investing billions of dollars in our ports and our oil delivery infrastructure in general, we are being seen, yet again, as a valuable ally for which it might be putting your neck on the line. In any case, it’s good to see some power on our side again, hopefully the current president or the current government don’t blow it like Mesic did. Let’s hope for a dismissal of all charges.
The Croatian government has also applied for amicus curiae status (Friends of the court) last year. The content of its application is not known because it is classified as secret.
This application should also be known by the public and demanded by our people of our government.. This will prove alone that the generals were nothing more then pawns in a nasty game of the EU. One could only imagine that it mentions the possibility of Croats not supporting entry into the EU if the generals are not freed.It also has the potential to allow the people to see how much involvement the British and Americans had in directing the generals in its planning stages.We are dealing with the lives of people in prison and nothing should be kept a secret to free them especially if it implicates British or Americans.Nothing should be hidden from the families of the Croats who fought and died in the war regardless of what it was.The interest of the people should always come before the interest of the government.When you call something a state secrete in means that the government is hiding the truth from its own people.The war is over and there is nothing in any secret documents that will change that fact other then to protect those who gained favor from illegal and corrupt acts.
I agree with this article 100%. It is time for the countries in NATO to stand up to the Hague and put pressure on them to dismiss the charges against the generals. Further I also see no argument that the Geneva convention address rules of engagements on Independence of internal wars. (Internal wars are more so civil wars such as we see in Syria )The Serb public were not prisoners of war and were treated accordingly and humanely. They were notified to leave before hand to prevent casualties and in some cases assisted .Those who chose to stay are enemy combatants one could argue why else would they stay in a conflict when safe passage was assured?One of the things that has me perplexed is that no where in the briefs Do I see any mention of the United states or Britain’s act in war as a example of the so called violation of the 200 meter radius. Further examples should be provided to the courts that if in fact they reject an appeal then the courts must ensure that others In NATO be brought before the Hague on past similar charges.The courts in the Hague can not be allowed to dictate the rules of engagement in any war in past or the future when it comes to artillery.The Geneva convention of 1949 signed by Germany only indicates Croatia as a state.It does not address any mention of the 200 meter issue that the courts are falsely accusing the generals of. It does not address rules of engagement when a state is attacked by other states such as Serbia. I am even more perplexed on why this is the first time such charges have been brought against a military action of a sovereign country if not for political reasons. Why did the advisers ( Britain, United States .etc ) both participants not inform the Generals if there was a violation going on? Because there is no such thing a a 200 meter rule in war.We have to remember that the Croatian people had minimum weapons nor were they in control of the military when the war started. Nor did Croatia attack Serbia.One has to also argue that when war ensues no one can predict where an imminent threat will come from.False information is a common place in war. If the Hague is allowed to dictate wars how can we be given assurances that we are not putting more people lives at risk?
A very interesting read on the Geneva convention.
The Political Offense Exemption
The political offense exemption provides that surrender shall not take place when the offense is of a political character. The non extradition of persons accused of political offenses might even be accepted as a norm of customary international law when it is not expressed in the international agreement between two states. However, Article VII of the Genocide Convention explicitly states that “genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.” Such clauses rejecting the political offense exemption are extremely rare in international treaties (see the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, the 1998 International Convention for the Suppression of Terrorist Bombings, and the 2000 International Convention for the Suppression of the Financing of Terrorism).
Although extradition law is part of international law, it is nevertheless implemented in domestic courts and therefore there is no one accepted definition of a political offense. Certain crimes are seen as purely political, such as treason, but ordinarily a political offense is a common crime whose political character predominates, such as murdering a tyrant with the intent of overthrowing the government. It is not sufficient that the crime was committed by a politically motivated offender. The exemption applies to offenses of a political character, not politically motivated offenders on the other hand, the offender must have a political rather than a personal motive. Four main approaches have developed to the political offense exemption (with three being very similar), and, depending on which one is followed, crimes against humanity could be deemed as political, no matter how appalling that idea may seem.
The first approach is contained in the law of the United Kingdom. For an offense to be of a political character under this approach, it had to be part of, and in furtherance of, a political disturbance, and not too remote from the ultimate goal of an organization attempting to change the government or its policies. In addition, the request has to be made by the state that was the target of the fugitive offender’s crime. Imagining crimes against humanity that would satisfy the remoteness element of that test is difficult: How could a crime against humanity be sufficiently proximate to overthrowing a government or changing its policies when it involves an “attack on a civilian population”? The Swiss approach, now also adopted in the United Kingdom, includes elements of the U.K. approach, but adds proportionality to its predominance test. Even if the crime would have been political under the traditional U.K. approach, if it were determined to be disproportionate, then the Swiss approach would find it to be nonpolitical:
Homicide, assassination and murder, is one of the most heinous crimes. It can only be justified where no other method exists of protecting the final rights or humanity (In re Pavan, 1928).
The Swiss test would deem crimes against humanity to be nonpolitical as they are disproportionate. The third approach may be found in the decisions of the Irish courts. They have followed the Swiss approach since 1982:
The offenses set forth in the two warrants . . . cannot be regarded as political offenses . . . as they contemplate and involve indiscriminate violence and can be correctly characterized as terrorism (Ellis v. O’Dea [No. 2], 1991).
In addition, the Irish courts demand that the crime not threaten the democratic nature of the requested state. If the transnational fugitive offender is as much of a threat to the requested state as he or she was to the requesting state, then the alleged offender forfeits the protection of the political offense exemption.
The final approach derives from U.S. court decisions. The basic test is that an offense will be deemed political if it is part of, or in furtherance of, a political uprising. Although an uprising requires a greater degree of violence and instability than a disturbance, an offense which is part of that uprising is prima facie politicalâthere is no requirement of proximity to the ultimate goal or proportionality. As such, crimes against humanity might be deemed political. In the Artukovic case the breadth of the U.S. approach was made apparent. Yugoslavia requested the extradition of Andrija Artukovic in 1956 with respect to war crimes. He had served as Minister of the Interior under the Axis-controlled Croatian government of World War II. In that position he had allegedly ordered the death of 1,293 named individuals and approximately 30,000 unidentified persons. The District Court for the Southern District of California held that these were political offenses because they had been committed in a political uprising, namely the power struggle that occurred in Croatia during World War II.
Branko, You are correct that no one intervened as the reason they were even indicted in the first place was politically motivated. This is the first time anyone has ever been convicted on something of such a charge in any war and I am sure that in order for the Hague to pursue the false charges that they were pressured not to include anyone from Britain or the USA.In America everyone that has a hand in a criminal charge ( regardless of the charge )is prosecuted under what is called the RICO Statue. This is similar to what the generals were charged with.As for Russia investing in Croatia I have no problem with that at all or any country for that matter as long as we protect Croatia’s national interest first and do not allow for any foreign entities to own any of our natural resources. A Croatia First Policy must ensue before we allow anyone to develop our country. This policy should include prohibition of any foreign entity from owning directly any of our natural resources, Requiring that 70% of any participants to be of Croatian heritage and an allocation of a minimum of 25% reinvestment in the Croatian people and our country. This means that any monies given to the Croatian government on our natural resources must be reinvested into the infrastructure and technologies that will benefit our people. This must become mandatory of the government by the people. All governments in the world are corrupt and it is always the common people who suffer. The more prosperous the more corrupt a country becomes. All you have to do is look at America as an example of corruption and corporate greed.A Croatia First policy will ensure that the people of Croatia are benefactors to the wealth of those who want to partake in its natural resources. This 25% re-investment must not be considered as part of the GDP to ensure that we do not pay more then out fair share in taxes for the countries currently in the EU who have monetary failure and that we should have to pay more then our share to support them which will only prohibit Croatia from moving on a fast track to prosperity.