ICTY rejects the 12 British, Canadian and America experts in Ante Gotovina and Mladen Markac case as Friends of the court

Generals Mladen Markac and Ante Gotovina

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague has February 14 denied the application by 12 British, Canadian and American military and legal experts for the status of Friend of the court (amicus curiae) in the case of Croatian generals Ante Gotovina and Mladen Markac.

The Appeals Chamber said that the said experts address numerous factual issues and provide interpretations of evidence on the record. According to the Appeals Chamber decision, the experts repeat the task undertaken by the Trial Chamber and by the appeal briefs of Gotovina and the Prosecution.

Well, let’s hope that the international standards of warfare argued by the 12 experts in their proposed Brief filed January 12 are addressed at the appeal. Otherwise, it will indeed be the case that the court takes the view of the Prosecution (see previous post on Prosecution response). I.e., that the standards of shelling the Trial Chamber said in April 2011 should apply to Gotovina and Markac are not applicable to international standards (!) and must be viewed as unique. This will be a sad day indeed if this happens. But besides it being sad it will fortify the view many hold of the ICTY’s seemingly unreasonable determination to deliver verdicts with biased justice that fits its theories of joint criminal enterprise regardless of world benchmarks and practice standards.

 The 12 experts among other arguments in their Brief stated that the 200 metre error margin in shelling was unreasonable and impossible to follow, and does not apply to any military engagement so far in history of the world subscribed to the International Humanitarian laws. To my view the 12 experts sought to assist the Appeals court by providing it with comparative facts (normal military engagement practice standards/shelling error margins) which the Trial Chamber did not have.  Hence, I would have thought that it was clear that the 12 experts were not interpreting the facts or repeating the task undertaken by the Trial Chamber (April 2011) but rather attempted to assist the court by presenting it with detailed arguments and examples of normal shelling practices in military engagements and how serious the 200 metre margin will bounce on military leaders, creating war criminals where there are none.

Another point for the denial was that the Applicants (the 12 experts) did not in their application and Brief disclose Geoffrey Corn’s prior role as an expert witness testifying for the Gotovina defence during the trial. Corn’s curriculum vitae (CV) was laid out in the Brief and it would have been very easy for the Appeals Chamber to identify him as the same Geoffrey Corn who appeared in the trial as expert witness, who by the nature of his expert testimony was independent.

While the Appeals Chamber “forgave” the Applicants the size in number of words of their Brief (the court rules stipulate 3,000 words and the Brief was 5,842 words without prior approval) in order to expedite the matter, it found it difficult to find that Geoffrey Corn did in fact identify himself by giving a full CV. Standards of decision-making here are hard to fathom. On the one hand the court looks sideways and sees that the Brief has more words than it should and on the other it’s struck by a “lazy eye” in failing to look sideways from Corn’s CV to find that this Corn is the same Corn as the one who appeared as expert witness for Gotovina’s defence.  

Given that the Appeals Chamber did not give credence to the Prosecution’s prior claim that Corn may not be objective or impartial because of his prior involvement with the case as expert witness it is quite mean of the court to have insisted that his CV should also have included in writing the fact that he was an expert witness before.

 Croatian Hina news agency reports: “The decisions to be made by the Appeals Chamber before the appeals hearing scheduled for March include a decision on a motion by Gotovina’s defence for the introduction of new evidence.

The November 4 motion refers to the introduction of 25 new documents, including the minutes of meetings of the Serbian Supreme Defence Council held in Belgrade during Operation Storm, U.S. diplomatic dispatches released by the whistle-blower website WikiLeaks, and expert reports by US officers on the use of artillery in the operation.

The additional evidence pertains to the departure of Serb civilians before, during and after Operation Storm, the nature of Croatian Army artillery attacks during the offensive and Gotovina’s authority to make public statements.

According to the ICTY’s calendar of events, the final verdict in the Gotovina-Markac case is expected to be announced in August 2013.

Commenting on the Appeals Chamber’s decision, Goran Mikulicic, an attorney for General Markac, said the arguments stated in the Proposed Amicus Curiae Brief ‘give the Chamber something to think about.’
‘We believe, regardless of the fact that the application was turned down, that what is written in the application is important. The application contains numerous arguments which give the Chamber something to think about,’ Mikulicic told Hina”.

Indeed the Appeals court has not wasted much time in delivering its decision to reject the 12 experts’ Brief; its reasons for such denial are meagre, as lean as they can possibly be. One cannot but speculate that the reason behind this is that the Appeals Chamber has already made up its mind as to what the outcome of the Appeal will be or, let’s pray, it recognises other avenues besides the 12 expert Brief through which new evidence or new interpretations of the evidence can be tackled through. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps.(Syd)