The ICTY prosecutor has, as expected, filed August 10 briefs to the Appeal Chamber as to alternate modes of liability the appeal should result with in Ante Gotovina and Mladen Markac appeals.

In short, the prosecutor submits that if the Appeal Chamber upholds the Generals’ appeals and finds against joint criminal enterprise and unlawful artillery shelling during Operation Storm (which according to the prosecutor defines the joint criminal enterprise/ persecuting -causing fear by excessive artillery shelling – and, hence, deportation of Croatian Serbs) then the Appeal Chamber should find the generals guilty of aiding and abetting persecutions, deportation, murder, wanton destruction and plunder, other inhumane acts and cruel treatment, even though the Trial Chamber did not in April 2011 find the generals guilty of these crimes. I.e. the Trial Chamber only focused on convictions of joint criminal enterprise that was, according to Trial Chamber, evident in unlawful artillery shelling.

Furthermore, the ICTY prosecutor did not appeal any of the Trial Chamber’s decisions in any shape or form.

The prosecutor further states that the Trial Chamber found (in April 2011) the fear instilled by the shelling attack during Operation Storm was the primary and direct cause of the mass flight of more than 20,000 Serb civilians from Krajina and that the Croatian Army committed deportation.  The prosecutor states that Croatia’s president Franjo Tudjman and other senior figures shared the intent to drive the Serb civilians out of Krajina and used the army to implement their criminal intent through Operation Storm. That Gotovina knew of this intent…

According to the prosecutor Gotovina knew of this criminal intent and sent his troops into Operation Storm knowing that these crimes would probably occur and therefore aid and abetting should be found!

The prosecutor is telling the world that Gotovina was a mind reader – could read minds of individual soldiers – and that he, therefore, could predict the future.

The fact that Operation Storm occurred and was mounted in order to bring about liberation of occupied territory, to stop further bloodshed, to ensure that the homes of the Croatian and non-Serb people in Krajina deported from Krajina prior to Operation Storm remained the homes belonging to those people (and not rebel Serbs) does not factor in the prosecutor’s brief.

So the prosecutor maintains that even if the Appeal Chamber finds that there was no joint criminal enterprise via unlawful artillery shelling (for which the prosecutor originally said was the culprit in frightening the Serb civilians to flight), persecution and deportations were committed, anyway!

During the Trial the prosecutor insisted that persecutions and deportation of Serbs (joint criminal enterprise) occurred through excessive/unlawful artillery shelling. Now that at the Appeal it seems that there may not have been excessive/unlawful shelling during Operation Storm the prosecutor introduces “intent” by Croatian leaders (half of whom are dead and have not contributed to the evidence) to persecute and deport Serb civilians as specific crimes.

Basically, in simple words, the prosecutor says that since it might not have been a case of violent or excessive artillery shelling then the crimes were in the heads (thoughts) of Croatian leaders. To “evidence” the potency of the unknown and un-provable beyond reasonable doubt the prosecutor enumerates things such as Peter Galbraith’s (US Ambassador) statements (or should I say whimsical ramblings?) that Tudjman saw Serbs as a threat to Croatia.

Excuse me Mr Prosecutor, Serbs were a threat to Croatia and they executed their threats. They attacked Croatia, they ethnically cleansed 1/3 of Croatian territory of Croatians and non-Serbs, they murdered and plundered Croatian homes, they occupied Croatian territory. But in no way was Operation Storm an instrument to persecute and deport – it was an instrument of liberation of occupied territory without plans to deport Serbs, who, by the way, were guaranteed safety and asked by Tudjman not to leave their homes.

While the prosecutor admits that Gotovina issued clear orders to prevent crimes, they say that Gotovina failed to implement follow-up measures to ensure compliance with his orders by soldiers or subordinates. Therefore, the prosecutor maintains, Gotovina should be found guilty of aiding and abetting these crimes.

So, Gotovina, according to the prosecutor, gave orders to subordinates not to commit crimes, knew in his head that they would commit crimes regardless of his orders and failed to install follow-up measures on compliance with his orders!

What would have been any reasonable measures of follow-up as procedure in the circumstances of war and in the days that followed Operation Storm when Gotovina went on to lift Serb siege of the town Bihac, preventing an another Srebrenica genocide, has not been tested in court. In fact, many of the bits and pieces from the original trial that the prosecutor submits qualify for a conviction of aiding and abetting crimes have not, as far as I can ascertain, been properly tested in court neither in favour nor against such criminal conviction.

Regardless of that and regardless of the fact that the prosecutor’s brief is nothing more than a preposterous premise (just as joint criminal enterprise riding on supposed unlawful shelling was), untried to acceptable standards of evidence in criminal proceedings, the prosecutor wants the Appeal Judges to find Gotovina guilty of aiding and abetting crimes and Markac of aiding these crimes. In the mind of the prosecutor all this aiding and abetting amounts to joint criminal enterprise because “they knew that crimes may occur”.

Oh, for God’s sake!

The prosecutor wants the Appeal Chamber to convict Gotovina and Markac of crimes they have not been specifically and beyond reasonable doubt convicted of in the original trial. The prosecutor is, thereby, asking the Appeal Chamber to take on the role of the prosecutor (given that the prosecutor failed to insist in original trial on exhaustive evidence for alleged crimes in original indictment) and to act as judges at the same time without any further reference to any defence that would come under due process. The prosecutor is asking the Appeal Judges to act with grave bias and injustice against appellants’ right to due process. The prosecutor wants the Judges to interfere with justice of due process and with natural justice.

The full truth, both real and from the original trial, is that Generals Gotovina and Markac never personally ordered or tolerated the commission of any crimes.

The full truth is that the orders to evacuate the Serbian population from the liberated by Operation Storm Krajina region came from Belgrade and we do not know yet whether the Appeal Chamber will allow filing of additional evidence sought by Gotovina’s defence that reportedly proves that real truth. One would think that now the prosecutor has asked the Appeal Chamber to find Gotovina and Markac guilty of aiding and/or abetting crimes of deportation the Appeal Chamber has no choice but to allow the additional evidence that actually points to the facts of Serbs leaving Croatia not out of fear for their lives but out of politically installed orders from Belbrade in August 1995 or thereabouts. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps.(Syd)