Lawyers will ask for Croatian general’s conviction to be overturned on all counts

Ante Gotovina (L) Mladen Markac (R)

Republished with permission from the portal of Institute for War and Peace Reporting 

Gotovina Appeal Hearing Set For May

Lawyers will ask for Croatian general’s conviction to be overturned on all counts
5 Apr 12

The appeals hearing for Croatian general Ante Gotovina will take place on May 14, the Hague tribunal announced this week.

Gotovina was convicted last April of ordering unlawful and indiscriminate attacks on Serb civilians during 1995’s Operation Storm offensive. He was also found to be responsible for the deportation of at least 20,000 Serb civilians from the Krajina region of Croatia, as well as for the murder, persecution and cruel treatment of Serb civilians. In addition, he was convicted on counts of plunder and wanton destruction.

The only count that he was acquitted of – out of nine in total – was one of forcible population transfer.

He was sentenced to 24 years in prison, with credit for time already served. (For more, see Gotovina Convicted of War Crimes.)

The indictment focused solely on the period before and after Operation Storm, an offensive launched by Croatian forces on August 4, 1995 to retake the Serb-controlled Krajina region.

Gotovina’s lawyers have already indicated they will ask appeals judges to reverse his conviction on all counts.

“This appeal has far-reaching significance beyond the case of General Gotovina,” his lawyers stated in their notice of appeal, filed in May last year.

“The judgement is an unreasonable and unrealistic precedent that undermines the credibility and relevance of humanitarian law,” they stated. “It imposes a standard so exacting that it renders lawful warfare impossible for military commanders.”

They contended that the judgement “rests on a finding that all artillery projectiles falling beyond 200 metres of designated ‘military targets’ must be presumed unlawful”.

“There is no evidence to support this finding,” they continued. “Moreover, this finding was neither litigated by the parties nor raised by the prosecution at trial. This factually baseless theory was adopted by the trial chamber only after the hearing had closed.”

This finding regarding artillery projectiles was central to every aspect of the conviction, they said, and was based “on the presumption that all projectiles falling beyond 200 metres [of target] were directed at civilian areas”.

“Thus, the burden of proof is shifted from the prosecutor to Gotovina to prove that there were military objectives in those specific areas,” the defence lawyers concluded.

They went on to point out that judges found that most of the five per cent of the projectiles that were presumed to be unlawful fell into ‘empty fields’ which were nonetheless characterised as ‘civilian areas.’

“The trial chamber did not find that a single civilian was killed, injured, or forcibly displaced as the result of instances of unlawful shelling,” they stated.

Regarding the conviction for deportations, the defence noted that judges “rejected reliable evidence of [Krajina Serb authorities’] evacuation orders and propaganda-induced fear of a Croatian military victory, as causes of the departure of Serb civilians”.

Judges instead concluded that the “primary and direct cause” of “the departure of 20,000 Serb civilians was the one to five per cent of artillery projectiles, most of which fell into empty fields”, the defence statement said. “Furthermore, the trial chamber did not cite any evidence that a single Serb civilian fled because of those particular artillery projectiles rather than because of the overall effect of lawful combat operations.”

The defence also argued against the judges’ finding that a “joint criminal enterprise” carried out the crimes, and that Gotovina participated in it.

They say that the chamber drew “unreasonable conclusions” about a July 31, 1995 meeting about the upcoming military operation, attended by Gotovina and other high ranking officials. Judges quoted statements that Gotovina made during this meeting when the verdict was read out in court in April last year.

The appeals hearing will also include arguments from Gotovina’s co-accused, former special police commander Mladen Markac. Like Gotovina, Markac was convicted on eight out of nine counts in the joint indictment. He was sentenced to 18 years in prison, with credit for time served. The third accused, Knin garrison commander Ivan Cermak, was acquitted of all charges.

Rachel Irwin is an IWPR reporter in The Hague.

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