Ante Gotovina’s ICTY Appeal: Impermissible acts by the Prosecution

Ante Gotovina (L) Mladen Markac (R)

Conspiracy is defined (Nolo’s Plain English Law Dictionary) as an agreement by two or more people to commit an illegal act or to commit a legal act using illegal means. Proving conspiracy requires evidence that the parties agreed to the plan before taking action. Proving criminal conspiracy usually requires evidence that some overt action occurred in furtherance of the plan.

Croatian Generals Ante Gotovina and Mladen Markac have been convicted by the ICTY (2011) as participants in a joint criminal enterprise during the Operation Storm (1995) which liberated Croatian territory from the brutal Serb occupation. The Appeal of this conviction is currently under consideration by the ICTY Appeal Chamber.

The ICTY prosecution maintains that Operation Storm occurred for the purposes of deporting Serbs from Croatia, rather than for the purposes of defence and liberation of occupied territory. The prosecution put to the Trial Chamber that the discussions that occurred between Croatian leadership (at Brioni) the week leading up to the military operation are proof that conspiracy to expel Serbs was agreed upon! And the Trial Chamber accepted such utterly shallow interpretation of Brioni meeting transcripts and called it all joint criminal enterprise!

The ICTY Trial Chamber did not insist on any proof beyond reasonable doubt that criminal conspiracy to deport Serb civilians was actually agreed upon; it did not even bother to conclude that no civilian casualties occurred in the shelling, but it did make up its impossible rule that any artillery shelling that fell beyond 200 metres of target is proof that civilian targets were their aim! Hence, deportation of civilians must have been the primary targets.

This Trial chamber’s logic can be accurately described as shallow and totally devoid of true justice.

On May 14, the Appeal was heard in the Hague and oral orders (Page 123 of hearing Transcript) given for General Gotovina’s defence to file supplemental briefing

General Ante Gotovina’s defence in its Supplemental brief of 17 May said:

Parties were twice put on notice that they were not permitted to raise new arguments during the appeal hearing and four new arguments advanced by the Prosecution for the first time at the Appeal hearing, that defence regards inadmissible, are:

that lawful artillery attacks constituted the act of deportation;
that the use of artillery in the four towns during Operation Storm constituted a disproportionate attack;
that the use of MRLs and T-130 artillery was “inherently indiscriminate” in an urban environment; and
that the Trial Chamber was able to infer a joint criminal enterprise to deport Serb civiliasns from the Brioni transcript itself.

Gotovina’s defence submitted that “the consideration of these new arguments would constitute a flagrant violation of the Appellant’s fundamental right of detailed and timely notice of charges and the Appeals Chamber’s repeated orders concerning the permitted scope of arguments at the appeal hearing. These new arguments should therefore be disregarded.”

The ICTY Prosecutor’s response (21 May) to Gotovina’s Supplementary brief submitted that it did give proper notice in the Indictment and pre-trial phase that the Appellants were members of a joint criminal enterprise with a common criminal purpose of permanently removing Serb civilians from the Krajina. The prosecution maintains that shelling was a means of carrying out the crimes against humanity of persecution, deportation and forcible transfer of the Serb civilian population. “Regardless of whether it separately met the elements of unlawful attack under Article 3, if the shelling operation had an impermissible civilian objective – to deport the civilian population and thereby capture the territory cleansed of Serbs – it would be a crime against humanity.

There’s no doubt in my mind that the ICTY prosecution thinks that military operations designed to liberate occupied territory should not involve any planning or discussion meetings. They’ve twisted the Brioni meeting to be about Serbs civilians (to expel them). And it further thinks that the “world can go and jump in the lake” if the facts leads it to think differently; heck, even the defence should not have the opportunity to defend the prosecution’s new argument that even if artillery shelling in Operation Storm was legal, it was done to deport Serbs from Croatia and not to liberate Croatia.

Going back to the definition of conspiracy it would seem that the ICTY prosecution would seem to think like this:

Croatian leadership used legal means (artillery shelling of occupied territory within acceptable margins of target error) to commit an illegal act (deport Serbs), or,
Croatian leadership used illegal means (some artillery shelling fell beyond the ICTY imposed rule of 200 metre error margin with goal to shell civilian Serbs) to commit a legal act (liberate occupied territory).

Now, at Brioni in 1995 the late president Franjo Tudjman reportedly set the agenda for the discussions prior to Operation Storm as follows: “…to inflict such blows that the Serbs will [for] all practical purposes disappear, that is to say, the areas we do not take at once must capitulate within a few days”. What other word than “Serb” would any military leaders in the world use when planning an offensive against Serb army to liberate occupied territory? None other than – “Serbs”.

The conspiracy theory (joint criminal enterprise) cooked up by the Trial Chamber seems to me is not a theory as far as the prosecution is concerned; it’s a done deal for them. No need to apply stringent rules of evidence needed to prove a conspiracy!

What utter rubbish!

The sad thing is that the world has to put up with such rubbish – until it’s removed. One just prays that the Appeals Chamber will have the strength to rule on the case with profound wisdom, shed a just light upon the murderous and ethnic cleansing of all Croatian and non-Serb population circumstances Croatia was dealing with when it was forced into the corner of waging military offensive (with the aid of U.S. training) to free its territory and people. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)