Gotovina and Markac ICTY Appeals take an unexpected development

Generals Mladen Markac and Ante Gotovina Photo:daily.tportal,hr

ICTY Appeal Chamber July 20 ordered Prosecutor in Ante Gotovina and Mladen Markac case that:

The Prosecution file by 10 August 2012 a submission explaining whether, in the event that Gotovina and Markac are not found liable for unlawful artillery attacks or to be a member of a joint criminal enterprise, the Prosecution believes that liability should be ascribed to them on the basis of superior responsibility under Statute of the Tribunal or as aiders and abettors.

Given that the Appeal hearing was on May 14 and the parties were ordered to file supplementary briefs by 21 May  this move by the Appeals Chamber seems to suggest that the Chamber may not be convinced that the so-called joint criminal enterprise (for which Gotovina and Markac were convicted in April 2011) has strong foundations or that such a finding of Trial Chamber is beyond reasonable doubt.

The submissions sought by the Appeal Chamber by 10 August 2012 would need to address whether any remaining findings (beside unlawful artillery shelling that support the Trial Chamber joint criminal enterprise construct) by the Trial Chamber fulfill legal criteria of superior responsibility.

While Gotovina and Markac were charged alternatively as participants in joint criminal enterprise and individually for allegedly giving orders for the committing of crimes and for command responsibility, the Trial Chamber did not pursue confirmation or finding of elements of commanding (superior) responsibility. That is, the original hearing concentrated upon joint criminal enterprise (allegedly evidenced by unlawful or excessive artillery shelling) and omitted to delve into elements of commanding responsibility. E.g. whether the generals knew that persons under their commands would commit crimes, whether they had any effective control over those who committed crimes, etc.

Should the Appeal Chamber find there was no excessive artillery shelling (during Operation Storm 1995) the conviction of joint criminal enterprise also cannot stand.

Certainly, this unusual move by the Appeal Chamber suggests that Trial Chamber convictions of excessive shelling (and therefore joint criminal enterprise) are palpably on shaky grounds. It would seem that the Appeal Chamber, by seeking above submissions by the Prosecutor, might be considering looking into possible existence of alternative guilt, on grounds of superior responsibility, without the need to send the matter for new trial, given that Trial Chamber did not make specific findings on critical elements of lines of responsibility. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps.(Zgb)


  1. U odbrani Republike Hrvatske, u svim rodovima vojske i policije, učestvovalo preko 25.000 Bošnjaka,

  2. Circus court…kangaroo court…call it what you will. This is absurd, it is like holding someone in jail on the premise that they may be guilty of something, but we just don’t know what they are guilty of, but I am sure we will dig up something no matter how long it takes.

    • It seemed like that from Trial Chamber and Prosecution’s side however the Appeal Chamber seems to be considering matters in a more professional and just way. I presume Appeal Chamber does not want any stone unturned.

      • Evan B. says:

        Of course, Ina, the “professional and just way” you mention is a screen – legal parameter so they can excuse themselves in the eyes of legally minded world. Behind that screen is the fact as Sunman says that ICTY is fumbling around to find something the generals are guilty of, just terrible, terrible. Worst than the historical inquisitions and witch hunting. I hope though that the Appeal judges will look at the generals (and their innocence in the trumped up charges) and dump the prosecutors to kingdom come.

      • Precisely Evan – the Appeal judges in their professional capacity must adhere to rules of evidence (just like the Trial Chamber judges had to, but didn’t) and they’d want the world to see them in the right light. The fact remains that the generals were charged of crimes they could not have committed and convicted and that is a huge problem. Shameful injustice that touches all Croatian people. How will the Appeal judges get out of that one is still to be seen, but I hope their decision will not be political but based on facts. We have no alternative at this stage but to trust the Appeal judges to bring justice – finally.

    • Michael Silovic says:

      Suman your comments are correct and in the United States you can be held in jail with no charges until the government decides they want to charge you with a crime if they suspect you are a enemy / criminal of some sort. They can even send you to Guantanamo for as long as they like.

  3. This whole turn of events leaves me wondering whether the ICTY has any interest whatsoever in dealing with the case that’s before them. It seems that they are rather trying to figure out how to save face and save as many years of the initial verdict as possible, all the while juxtaposing the potential results next to other cases before them, trying to figure out how much ‘wiggle room’ they will need when it comes to handing out sentences in those proceedings. Kind of like how judges in figure skating (I know – a bit of a dubious comparison) refrain from giving high scores to early participants for the same reason.

    • Agree but also if it’s about saving face that’s “forgivable” as it’s not as bad as delivering guilty verdicts where there is no guilt.

      • Brankec says:

        Nothing that most of us would like better than for the ICTY to try and “save face” by rescinding the Generals’ sentences to a nice, round figure which would be a more fitting punitive measure for their guilt as laid out in the prosecution’s charges – that figure, of course, would be “0”.

  4. Michael Silovic says:

    Many great articles posted the past couple of weeks. The reality is that we know the generals were convicted for nothing more then political reasons and the ICTY has begun to open their eyes to this very slowly.How many times are the prosecutors going to submit submissions? This is another sham by the prosecution that needs to ignored. Our generals and heroes need to be set free now.

    • Whatever happens in the Hague, generals Gotovina and Markac will always remain heroes – their actions not only liberated Croatian territory from Serb aggressor but they stopped another Srebrenica type slaughter in Bosnia.

      • Brankec says:

        It’s becoming apparent that the charges related to JCE will never stick, which means that the only conceivable charges that the court could pin on Gotovina and Markac would be those related to command responsibility.

        What this means: Croatia as a nation would be spared the stigma of having any action having to do with Oluja being branded as a “criminal enterprise”.

        What this means: Gotovina and Markac would become instant martyrs since it will become plainly obvious that their sentences are only compensatory measures that this political court was able to fabricate to satisfy its directorate.

        Which means: the court will have to weigh the consequences of having martyrs return to Croatia as heroes now or heroes returning to Croatia as martyrs later.

  5. Hope and pray is all we can do, because truth and logic has not yet prevailed. I hope that the Croatian government fully supports the Generals. My fear is that the murky world of Croatian politics will not necessarily object to a guilty verdict, especially those on the left purely for political gain and ideological reasons. Let’s hope not.


  1. […] ICTY Appeal Chamber in considering alternate modes of liability. Gotovina’s defence submits that the question of alternate modes of liability directed by the Appeal Chamber to the prosecutor cannot be considered by the Chamber as the matters […]

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