General Ante Gotovina: must be found not guilty at ICTY Appeal

General Ante Gotovina

I do not apologise if my posts on the Croatian Generals Ante Gotovina and Mladen Markac ICTY processes render my readers giddy. If the Generals can suffer incarceration pining for liberty and justice they deserve, tolerating with dignity the exasperating concoctions of theories the prosecution keeps churning out like there’s no tomorrow with vicious force then I continue harbouring the need to write on the issues of justice and truth over and over again.

Regretfully, the international criminal justice pathways (especially where the Prosecution loses or doesn’t have a reasonable compass of justice) exert such effects that one finds oneself needing to visit and revisit, over and over again, the matters before the court. All this, beckoning justice to finally arrive and set the Generals free.

The case of Ante Gotovina and Mladen Markac is in all probability one of the first cases ever (in the world) to deal with the assessment of complex targeting decisions involving artillery shelling against a range of military targets in populated areas during a military operation for the liberation of occupied territory. It is a case that will affect the whole of international community and has extraordinary importance for future operations and conflicts. But, besides that, it is a case where the Prosecution seems to be pulling “tricks” willy-nilly out of their sleeve in order to convict the Generals where there is no evidence for that or where there has been no due process afforded to the accused. And further more, this case touches the whole nation of people – Croatia – their dignity, their human right to defend themselves from aggression, their right to self-preservation, their right to live on their own land.

By many indications from the ICTY Appeal Chamber it seems most likely that Gotovina and Markac appeal will be upheld. That is, the Trial Chamber judgment of participation in joint criminal enterprise and deportation of Serbs from Croatia in relation to the liberating Operation Storm (August 1995) will most likely be overturned by the Appeal Chamber. Joint criminal enterprise was defined (alleged) by the Trial Chamber as unlawful or excessive artillery shelling during Operation Storm designed to drive the Serb population out of Croatia. The Trial Chamber made that judgment against the Generals using their own made-up and impossible rule, which said that any artillery shelling that fell beyond 200 meters from military target was unlawful.

As the Appeal progressed it became more and more clear that the judgment of joint criminal enterprise and deportation of Serb population from Croatia cannot hold water. It cannot stand on the evidence in court and it cannot stand on any international standards of military operations of the same kind. So, another fishing expedition against the Generals began: could the Appeal Chamber perhaps find them guilty of alternate modes of liability or something else?!

On 31 August Gotovina’s defence has filed a reply to ICTY Prosecution’s brief on why the Croatian Generals should be found guilty of alternate modes of liability.

Gotovina’s defence in its reply to the prosecution brief on alternate modes of liability, like Markac’s defence, claims that the Trial Chamber judgment (April 2011) contains no grounds whatsoever for the Appeal Chamber to find Gotovina guilty of aiding and abetting a joint criminal enterprise or for his command responsibility.

Gotovina’s defence seeks acquittal of all responsibility should the Appeal Chamber find that he was not a member of joint criminal enterprise. It concludes its reply to the prosecution brief on alternate modes of liability with:

“The Trial Chamber made none of the findings necessary to convict Appellant for aiding and abetting or command responsibility. If the Appeals Chamber finds that Gotovina was not JCE member and not liable for unlawful artillery attacks, it should overturn his conviction and enter a Judgment of not guilty on all counts.

If the Appeals Chamber were to consider that it has jurisdiction to consider Gotovina’s responsibility under these modes of liability, it should grant leave to the Appellant to be heard orally in relation to these alternative modes of liability.”

Indeed, the original trial (April 2011 judgment) provided no findings for the conviction of aiding and abetting joint criminal enterprise or command responsibility (for which the Prosecution says the Generals should be convicted if original conviction of participating in joint criminal enterprise and unlawful artillery shelling is defeated on this Appeal).

The ICTY prosecution had the Trial Chamber wrapped around its politically charged finger it seems. There’s no other way to explain the extensive errors it made in April 2011 when it found that Croatian artillery shelling were unlawful. Let’s for a moment put aside the fact that Operation Storm saw no civilian casualties confirmed as such during the Trial hearings, and let’s just remember that some 95% of Croatian artillery shelling during Operation Storm fell within 200 meters from target. This was such highly professional military operation that not many world military commanders from 17 years ago could boast of.

And yes, if the Appeal finds that artillery shelling was indeed lawful then the joint criminal enterprise and deportation of Serbs falls in the water – no crime committed. So, how can the Prosecution seek that the Generals be then found guilty of aiding and abetting a crime which did not happen?!

If I ever came across a political skunk – this is it!

The Prosecution’s viciousness goes further, even. It wants the Croatian Generals to also be found guilty in line with command responsibility for individual crimes committed by individual soldiers (who were under their command during Operation Storm) after Operation Storm finished and after Gotovina was no longer in Croatia but in Bosnia saving Bihac from Serb occupation, saving more than 180,000 lives and stopping a second “Srebrenica” massacre by the Serbs.

During the Trial the Prosecution said the Generals were guilty of joint criminal enterprise because some artillery shelling was not within 200 meters from target. This is likely to be defeated by the Appeal.

During the Appeal the Prosecution wants the Generals to be found guilty of alleged crimes never tested in court and – of contemptible personal behavior of individual soldiers hundreds of kilometers away from the Generals at the time. It must be utterly horrendous for the Croatian Generals to have to put up with such profound injustice.

Whatever happens in the ICTY for the Croatian Generals Gotovina and Markac – they were, they are, they will remain heroes of independent and democratic Croatia. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

Comments

  1. Your words totally summarize the feelings of so many Croatians and many friends of Croatia…..

    “This case touches the whole nation of people – Croatia – their dignity, their human right to defend themselves from aggression, their right to self-preservation, their right to live on their own land.”

    We remain positive in the belief that justice will prevail, and we thank you Ina for your continual reminders, your continual updates and explanations that will long be remembered…

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  2. Having Croats on trial for “D-day”, named in Croatia “Oluja”, that brought freedom to country in 1995, equal to freedom bigger part of Europe was enjoying since 1945, is equal to having on trial Allay generals in Nuremberg – accused of masterminding killing of millions of German civilians (together with Russians) after the D-day.

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  3. Also, soldiers and civilians who may behave as soldiers out of site do, even of all mighty and powerful nations, in this case, were victims, ethnically cleansed from their robbed and burned homes, by Serbs. For some Croats “D-day” in 1995 was personal thing not a TV news from far away country – like Afghanistan today.

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  4. Antonija Vranješ says:

    Dear Mrs. Ina Vukić, I am sending you lots of greetings from Osijek! Thank you for people leting know the truth about Croatian Homeland War!

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  5. Hvala, Ina! Savrsen clanak o ISTINI O DOMOVINSKOM RATU! I am happy your articles are in English, so I can forward them to my friends who don’t know Croatian. To spread the TRUTH is PRIORITY!
    Thank you once again!!
    Marija

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  6. Michael Silovic says:

    Thank you Ina for keeping the fires burning. The truth should be repeated until everyone understands the injustice our generals are facing.
    I want to go even further then this by saying that it is not only the generals on trial but all of the heroes of our country who fought and died and their families that have suffered from the loss of their sons , daughters, mothers and fathers. They are all our heroes for the sacrifices they have made and deserve better then this from the Hague. The fight to free the generals is a fight for all of Croatia and its dignity and pride.

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  7. Dalibor Zovko says:

    From the book “Storm” Author Davor Marjan

    In addition to the mentioned scientific study, this book is enriched by the Appendices, documents on important political and military events on the eve of Storm, which infl uenced its initiation (the process of annexation to Serbia and the unification of the so-called Republic of Srpska Krajina1 and Republika Srpska, that is, of the Serbs from Croatia and the Serbs from Bosnia&Herzegovina, into a single state, and the Bihać crisis), and on its aft ermath (the exodus of the Serbs from the occupied area), selected and edited by senior archivist Mate Rupić, Head of the Archival Material Department of the Croatian Homeland War Memorial&Documentation Centre.

    The chosen topics, and the respective selected and chronologically arranged documents, ought to help in finding answers to the question of why the issue, i.e., the occupied territory of the Republic of Croatia, could not be resolved by diplomatic means and peacefully, why Storm could not be deferred any longer, and why claims that the Croatian leadership expelled the Serbs from the so-called Krajina and carried out ethnic cleansing are historically unfounded. The documents in the Appendices of this book cover the period between 1991 and 1995 in order to draw attention to the fact that the launching of Storm was not a sudden whim of the Croatian leadership but, rather, the consequence of a long process of fruitless negotiations with the leadership of the rebel Serbs on the peaceful reintegration of the occupied Croatian territory and of inefficient moves by the international community, and, finally, to stress that the launching of Storm cannot be limited to the events in July and August 1995. Since the intentions of the leadership of the rebel Serbs in Croatia to unite with Serbia and create, together with the Serbs from Bosnia and Herzegovina, a single Serbian state are confirmed best by the documents produced by their own or by their allied (Belgrade) political and military institutions, the editor of the Appendices has limited his selection to sources of Serbian provenance.

    The same holds true for the part of the Appendices presenting the plans and preparations for the organized departure of Serbs from Croatia. A slight exception to this has only been made in the section of Appendices on the Bihać crisis; in order to recall the diplomatic efforts of the Croatian leadership and the role of the big powers with regard to the developments in Croatia and Bosnia and Herzegovina, that section starts with a Croatian official’s account of the negotiations for the settlement of the first Bihać crisis. In order to evoke the dramatic situation in which the population of the Bihać enclave found itself late in July 1995, this section also includes several documents, actually cries for help sent to the Croatian leadership from besieged Bihać.

    The series of documents on the attempted unification of the rebel Serbs from Croatia with Serbia starts with the Decision on the “unification of SAO Krajina” with the Republic of Serbia, enacted by the “Executive Council of SAO Krajina” on 1 April 1991; the documents on the process of unification of the Serbs from Bosnia&Herzegovina and Croatia start with the “Declaration on the Unification of the Association of municipalities of Bosnian Krajina and the Serbian Autonomous District of Krajina” of 27 June 1991.

    The list includes altogether 30 documents bearing witness to the intensive activities of Serbian politicians focused on preparing the unification of the Serbs from the Republic of Serbia and from Bosnia&Herzegovina (i.e., from the so-called Republic of Serbian Krajina and Republika Srpska) in a single Serbian state. It includes, in chronological terms, the “Protocol on Cooperation between the Government of Republika Srpska and the Republic of Serbian Krajina” (Banja Luka, 22 September 1992), the “Declaration on the Unification of the Assemblies of the Republic of Serbian Krajina and Republika Srpska” (Prijedor, 31 October 1992), the “Decision on the Constitution of the National Assembly of the Republic of Serbian Krajina and Republika Srpska” (Banja Luka, 24 April 1993), the “Proposal of the National Assembly of Republika Srpska and the National Assembly of the Republic of Serbian Krajina to the National Assemblies of Serbia and Montenegro concerning Unification in a Single State” (18 August 1994), the “Decision of the Assembly of the Republic of Serbian Krajina Concerning the Agreement on the Constitutional Law about the Provisional Constitutional Arrangement of the ‘United Republika Srpska’” (Knin, 29 May 1995), and other documents showing that the Serbs in Croatia and Bosnia&Herzegovina continued to prepare legislative documents for the proclamation of the “United Republika Srpska” even aft er their defeat in Operation Bljesak (Flash; May 1995), and that the process, but a step away from its realization, was interrupted by Operation Storm. The collection of documents on the Bihać crisis, caused by attacks of Serbs from Bosnia and Herzegovina and Croatia on the UN safe area of Bihać starts with a memoir 11 material, the reminiscences of General Krešimir Ćosić regarding negotiations with American political and military officials in the United States, resulting in Operation Zima ’94 (Winter ’94) by Croatian armed forces and the resolution of the fi rst Bihać crisis. This is followed by 44 documents, largely of Serbian provenance, on events in the Bihać area – between 27 October 1994 and 3 August 1995 – showing that Bihać was an extremely important objective in the Serbian plans, which could not easily be achieved because of the tough resistance of the ARBiH 5th Corps.

    Moreover, the documents show that Serbian strategists did not shrink from any means in their attempt to take Bihać. They even carried out a covert operation involving the use of biological agents for food poisoning, to be smuggled into Bihać and intended to cause large scale poisoning of the 5th Corps troops and knocking them out of action.

    The third thematic section presents the plans of the rebel Serbs for the evacuation of the population from the occupied territory of Croatia. Th e 22 documents, demonstrating that evacuation plans in the case of an HV attack such as Storm had existed already in 1993, include the “Decision of the RSK Supreme Defence Council on the Evacuation of the Population from the Municipalities of Benkovac, Obrovac, Drniš, Gračac and Knin towards Srb and Lapac” adopted in the afternoon on 4 August 1995 in Knin.

    At the end, the Appendices present the contents of the so-called Plan Z-4, which the rebel Serbs refused even to consider, and reminiscences of the representatives of the international community involved in the attempt to implement the plan. Their statements on how the leaders of the Serbs in Croatia refused to accept the offered Plan as a negotiating platform clearly confirm that any attempt to peacefully reintegrate the occupied areas into the constitutional and legal system of the Republic of Croatia would have been futile because of the narrow-mindedness of the Serbian leaders.

    The documents in Appendices are the direct and well-argumented answer to questions such as why, unfortunately, there was no alternative to the military option, why the Croatian leadership could no longer defer Storm, and who was responsible for the exodus of Croatian citizens, ethnic Serbs, on the eve of Storm and during the operation. The dramatic condition of Bihać defences, the collapse of which would have reinforced almost decisively the position of Serbian forces and their refusal of all peace initiatives – whether promoted by the Government of the Republic of Croatia or by the international community – and even of the “Plan Z-4” which granted the Serbs in Croatia an extraordinarily broad autonomy, and the continuous endeavours, ever since 1991, of the Serbs from Croatia and Bosnia and Herzegovina to create a single Serbian state in the occupied territory of the Republic of Croatia and Bosnia and Herzegovina, which had entered, on the eve of Storm, the final stage by the adoption of their common Constitution, clearly demonstrate how unconvincing are the claims that Croatia had been hasty in resorting to a military solution and that more time should have been foreseen for negotiations.

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