ICTY: Croatian Generals Gotovina and Markac Appeals hearing – live

http://www.icty.org/sid/10915

The Appeal hearing is on now – tune in live with link above

 Update on Gotovina, being argued now at ICTY by Laurie Blank

Today, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia is hearing oral arguments in Prosecutor v. Gotovina. (The webcast, available here, is set to start now, at 9 a.m. Hague/3 a.m. Eastern time, and to continue till 6:30 p.m. Hague/12:30 p.m. Eastern time.) (credit for photo of ICTY building)
As you may remember, the case focuses on Operation Storm, the Croatian operation to re-take the Krajina region in August 1995.  In April 2011, the Trial Chamber sentenced Croatian General Ante Gotovina (below left) to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of liability. (Prior IntLawGrrls posts) (photo credit; credit for below right map showing Krajina in red)
As I have written before, this case highlights issues at the intersection of operational law and international criminal responsibility. An amicus brief submitted by international operational law experts — but not accepted by the Appeals Chamber — and the report from an Experts roundtable hosted by the Emory International Humanitarian Law Clinic both focused on what the experts perceived to be significant flaws in the judgment’s methodology.
Three weeks ago, the Appeals Chamber issued an addendum to an earlier scheduling order that may hint at some of these concerns.  The addendum invited the parties to address four issues, without prejudice to any others. To my knowledge, this is the first time the Appeals Chamber has done so before an appellate argument.  The questions posed:
► Whether the Trial Chamber erred in applying a 200-metre range of error in analyzing the lawfulness of artillery shelling;
► Whether the Trial Chamber’s conclusions regarding impact sites should be upheld if its application of the 200-metre range of error is deemed erroneous;
► Whether the Trial Chamber’s finding that illegal artillery attacks took place should be upheld if its conclusions with respect to impact sites are deemed erroneous; and
► Whether the Trial Chamber’s finding that a joint criminal enterprise existed should be upheld if its finding that illegal artillery attacks took place is deemed erroneous.
The identification of issues — and the layering of them in this way — is fascinating from both the substantive and procedural vantage points.
The Trial Chamber judgment of joint criminal enterprise liability rests predominantly, if not entirely, on the finding of unlawful attacks on civilians in Knin and a few other cities.  That finding, in turn, rests on the analysis of artillery attacks on Knin on August 4-5, 1995, and that analylsis itself relies overwhelmingly on the application of a 200-meter range of artillery effects attribution and the conclusion that the small percentage of impacts beyond that range established the deliberate attack on civilians and/or civilian property.  The Appeals Chamber’s framing of issues highlights both the 200-meter attribution standard and the precise role it plays as a key — but faulty — piece holding the judgment together.
Substantively, this development demonstrates the significant and intimate linkage between operational law and the elements of criminal accountability, perhaps more in this case than in any other.
The decisive role the 200-meter attribution standard played in the finding of unlawful attack left a whole set of key operational factors out of the equation altogether, divorcing the criminal process from the operational process in a problematic manner.  As the amicus brief emphasized, there are real tensions inherent in the fascinating relationship between prospective planning, real-time operations, and post-hoc criminal processes.
To be effective, a criminal process must take into account the reality of the operational environment — not merely give “a wink and a nod” to efforts to enforce the law, but ensure that the law is applied accurately and in a manner that can be implemented in the future.  The Trial Chamber judgment fell short here, using the radius of effects of attacks on pre-planned targets as a decisive factor in assessing the other evidence bearing on the lawfulness of the attack.  In doing so, it seemingly disregarded the nearly infinite — and here highly relevant — number of variables impacting the execution of combat operations and the use of force against both planned and fleeting targets:
► Quality and quantity of intelligence (about both enemy and civilian locations);
► Quality of equipment;
► Training and capability of crews;
► Quality of munitions;
► Timing, terrain, weather, fatigue, location of fire support assets; and many others.
All of these are integral to any targeting process at the time of planning and attack; they are also relevant for a tribunal in assessing the reasonableness of the commander’s decision-making process. The enemy’s tactics, conduct, and changes in situation throughout the operation are, of course, significant variables as well — not only in terms of the attacking party’s operational choices, but also in terms of the effects of military operations on civilians and civilian objects.
Perhaps the Appeals Chamber’s framing of issues foreshadows a more balanced incorporation of operational factors — a critical point highlighted both in the amicus brief and the Experts Roundtable report.
What is unclear from the addendum, however, is how the Appeals Chamber will address the judgment’s incomplete and inadequate proportionality analysis regarding the targeting of the residence and headquarters of Milan Martić, then the President of the proclaimed Republic of Serbian Krajina.  The unjustified reliance on the 200-meter attribution standard and this proportionality assessment together led to an overly outcome-oriented assessment, especially troubling when a finding regarding proportionality in one individual attack is used to color the overall outcome-oriented approach.
Procedurally, the addendum also hints at important burden of proof questions.  The Trial Chamber’s excessive — indeed single-minded — reliance on a 200-meter attribution standard in particular suggests an implicit inversion of the burden of proof.
In effect, by concluding that all artillery shells that landed outside the 200-meter range were unlawful attacks, the Trial Chamber of the ICTY (right) concluded that because the defendant failed to present evidence to justify those attacks, the attacks must have been unlawful. This appears to be an unacknowledged and implied presumption of guilt, forcing the defendant to bear the burden of production to rebut that presumption. (photo credit) Furthermore, by dismissing or ignoring alternate, rational explanations for these effects, as noted above, the Trial Chamber effectively required the defendant to prove that there were in fact lawful objects of attack in those areas.
As in any criminal trial, it is the prosecution’s responsibility to prove the elements of the crime beyond a reasonable doubt.  The framing of issues in the addendum suggests that the Appeals Chamber will be looking more closely at exactly what the prosecution can prove and how, both with respect to the crime of unlawful attack and the broader crime of joint criminal enterprise.
Cases about targeting in a complex military operation highlight the challenges of bringing operational law into the courtroom perhaps more than any other issue in international criminal law.  Accountability for crimes — whether unlawful attacks on civilians or other crimes — is no less important in these cases than in any others.  At the same time, the consequences of substantive and procedural flaws can be significant: the failure to appropriately apply the law in accordance with operational reality may well limit the law’s effectiveness in future operations.

Comments

  1. Can’t watch the prosecutors twisting of the truth, misrepresentations and omission of facts. Bottom line is that the Serb leaders in the Krajina ordered an evacuation and had plans for an evacuation well before Operation Storm. There are documents on this that should have been allowed as evidence. The Operation was legitimate and approved by the western powers. Moreover, Serbs clearly demonstrated their desire NOT to be part of Croatia by armed rebellion and attack on Croatia to create a Greater Serbia – their dream was now lost and they voted with their feet – they left Croatia to be back in mother Serbia; black and white. The trials should be about the illegitimate pursuit of a Greater Serbia in the face of the democratic will and rights of the people of Croatia.

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  2. Not feeling good about the hearing today. This whole issue of artillery shells falling within 200 meters seems like a diversion and set-up from the real issue of equalizing guilt under any circumstance. Under any objective view of the military operations it was clean and efficient with minimal civilian causalities and material damage – this operation will be studied in military schools around the world for it’s brilliance and efficiency. The Serbs left because it was f’n war and they were losing and instead of fighting were told / opted to leave – in any other circumstance it’s called a retreat. And the Serbs were allowed to leave unmolested! Can the same be said about what the Serbs did in any part of Croatia or BiH?? The JCE and how the leadership wanted to de-populate the area is political BS and completely disengaged with reality. How is leadership supposed to talk during a liberation war…ex, ok, boys we’ll politely ask for our country back and if they refuse we’ll re-take back our land with warm and fuzzy feelings and gestures. As in my previous note, if the Generals are not acquitted the Government should resign or be forced to step down.

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  3. Michael Silovic says:

    I watched the appeal and was not impressed with the prosecution at all. I was really annoyed when the prosecution stated that not all claims by witnesses could be corroborated and so if that is the case then their testimony should have been restricted from the courts to begin with. I was less pleased with the judges as they seems to indicate that they had a better insight to the war then the generals counsel which i find hard to believe. I think what everyone fails to understand that when you are at war everyone and everything is a target if it is deemed to be the enemy. As an example all we have to do is lok at Iraq and Afghanistan where the Americans killed many so called innocent people because they believed in one thing or another and then if they were deemed wrong they would apologize and so be it. I can not understand why there are two sets of rules.

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  4. Michael Silovic says:

    I am optimistic about the appeal for the most part. I think the best we can do now while waiting for the verdict is to perhaps start a letter writing campaign to our government in Croatia to demand that they seek their immediate unconditional release or faces the consequences and also to the judges in the Hague supporting their release. I am really annoyed that they maybe waiting up to a year for the verdict. The whole trial was a sham to begin with and the world knows this. Like I stated in earlier posts I have never seen a Croat get a fair trial and this certainly was not one in any fashion. I still demand that Serbia return the rest of our land and make restitution.

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