Croatian general Mladen Markac’s defence has joined in the motion filed Friday August 10 by Croatian general Ante Gotovina’s defence that challenges the jurisdiction of the 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 contained in the question are not a subject of the Appeal.
The Motion filed concludes:
33. The Appeals Chamber should find that, on the issue of the Appellant’s responsibility under the alternate modes of liability:
- The Appeals Chamber lacks jurisdiction pursuant to Article 25 to consider the matter or, if it has jurisdiction, it could not exercise it in compliance with the fundamental rights of the accused and must therefore refrain from doing so; and
- The Trial Chamber’s Judgement on alternate modes of liability (i.e. its Judgement not to render a reasoned opinion) is now final and non-appealable as a result of the Prosecutor’s failure to appeal the matter.
34. In the alternative, the Appeals Chamber should find that the Prosecutor has waived any issue concerning the alternate modes of liability by failing to appeal the Trial Chamber’s Judgement, and is also estopped by the doctrine of res judicata from pursuing the matter further.
In other words, Gotovina’s defence says that appeal proceedings are not a retrial and that only matters appealed against must be considered by the appeal.
That’s how the normal world of the judiciary works, let’s see what happens in the ICTY.
Gotovina’s defence also said that if the Appeals Chamber considered alternative modes of liability, it would bring into question the appellants’ rights in the appellate proceedings, as the Appeals Chamber, by adopting a decision on the two generals’ alternative liability, would put itself in the function of a trial chamber, which would deprive the generals of the right to appeal.
Therefore, Gotovina’s defence submits, the Appeals Chamber should find that it is not competent for the matter of the two generals’ alternative modes of liability, and that the trial chamber’s decision not to rule on alternative liability is final and that it cannot be appealed because the prosecution failed to do so within the deadlines envisaged, Gotovina’s defence said.
The ICTY prosecution was required to submit by 10 August its answer to the questions of alternate modes of liability for the Croatian Generals were the Chamber to find against the April 2011 Trial Chamber’s judgment of joint criminal enterprise in Operation Storm. The prosecutor’s answers have not yet been made public by the court. Ina Vukic, Prof. (Zgb); B.A., M.A..Ps. (Syd)
Croatia, the War, and the Future 
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