By Luka Misetic
On 16 November 2012, the International Criminal Tribunal for the former Yugoslavia established that Ante Gotovina and Mladen Markac are innocent as a matter of law, and that there is insufficient evidence of a Joint Criminal Enterprise to remove the Serb population from Croatia during and after Operation Storm. The Judgement has been criticized in certain limited circles, including Serbian government officials, Serbian academics (Milena Sertio, Miroslav Baros, Marko Milanovic), lawyers representing the Republic of Serbia (Marko Milanovic), former employees of the Office of the Prosecutor (including Carla Del Ponte and Anton Nikiforov) and persons affiliated with former Deputy Prosecutor David Tolbert (Paul Seils, Refik Hodzic). All of these individuals cite the dissenting opinions of Judges Pocar and Agius to justify their criticism of the ICTY in the Gotovina case.
I decided to write this blog post in order to set the record straight. The dissenting opinions of Judges Pocar and Agius are based upon incorrect interpretations of the law, the evidence and the positions of the parties in this case. As I will explain below and in subsequent blog posts, the Majority’s Judgement in this case was grounded not only in the law and the evidence, but also in traditional notions of fair play and substantial justice.
THE “TOTALITY OF THE EVIDENCE”
One of the popular criticisms of the Gotovina Judgement is that the Appeals Chamber did not consider the “totality of the evidence” in assessing the culpability of Gotovina and Markac, but instead focused too narrowly on the 200 Meter Standard.
Any fair assessment of the “totality of the evidence” leads to the following inescapable conclusions: Gotovina and Markac are innocent, there was no JCE, and the convictions of Gotovina and Markac by the Trial Chamber was one of the biggest scandals in the history of international criminal law. The Prosecution, the Defence, the Trial Chamber and the Appeals Chamber (including Judges Pocar and Agius) all unanimously agree on the following “totality of the evidence”:
1. The Prosecution could not produce any evidence of the identity of a single civilian victim of shelling by Gotovina’s forces. The evidence in the trial record did not provide a single scrap of evidence that identified any civilian who was killed or even injured by shelling, anywhere in the so-called “Krajina.”
2. The Prosecution could not produce any evidence of the identity of a single Serbian civilian who claimed to have fled Croatia due to fear of shelling. Thus, while the Trial Chamber (wrongly) concluded that at least 20,000 Serb civilians fled Croatia from the four towns of Knin, Benkovac, Obrovac and Gracac due to fear of shelling, not a single one of these 20,000 has ever been identified.
3. The United Nations conducted an investigation into the shelling of Knin immediately after Operation Storm. On 18 August 1995, the United Nations concluded that the shelling “was concentrated against military objectives,” and that “only few impacts (3-5) is observed in other urban areas.”
4. Both the Trial Chamber and Appeals Chamber unanimously agree that in all areas of the “Krajina” except Knin, Benkovac, Obrovac and Gracac, the “Krajina” Serbs left for their own reasons, unrelated to any unlawful conduct by Croatian forces. According to the Trial Chamber, these reasons included:
• “Krajina” Serb officials telling inhabitants to leave the areas (Trial Judgement, paragraph 1762);
• Fear of violence commonly associated with armed conflict (Trial Judgement, paragraph 1762);
• General fears of Croatian forces and a distrust of Croatian authorities (Trial Judgement, paragraph 1762); and
• The fact that other Serbs were departing caused some to leave (Trial Judgement, paragraphs 1754, 1762).
Generals Gotovina and Markac were thus the first (and hopefully the last) defendants in the history of international criminal law to have been convicted and sentenced to draconian punishments even though there are no known victims of the alleged common criminal purpose of the Joint Criminal Enterprise. Moreover, no coherent explanation has ever been provided (by the Prosecution, Trial Chamber or Judges Pocar and Agius) justifying the claim that the Majority acted unreasonably in concluding that the Krajina Serbs in Knin, Benkovac, Obrovac and Gracac left for the exact same reasons that the Krajina Serbs left from everywhere else in the “Krajina” (cited above in paragraph 4).
Even though there are no victims of shelling in the four towns, and even though not a single Serb civilian was ever identified as having left Croatia from the four towns due to fear of shelling, Judges Pocar and Agius argue that “no reasonable trier of fact could conclude any differently” than that the Serbs from these four towns were expelled by Gotovina’s artillery fire. Why? Which Serbs? No responses to these questions are ever provided. Why did the Prosecution have no trouble identifying shelling victims in Sarajevo (Galic, Dragomir Milosevic cases) and Dubrovnik (Strugar case) and Zagreb (Martic case), but couldn’t identify a single shelling victim in Operation Storm? Could not a reasonable Appeals Chamber have concluded that, unlike the shelling of Sarajevo, Dubrovnik and Zagreb, the shelling in Operation Storm was so lawful that it produced no civilian casualties?
Any discussion of the “totality of the evidence” must start with the undeniable fact that this was a victimless alleged JCE 1, a fact that Judges Pocar and Agius do not address in their analysis.
WHY JUDGE POCAR IS WRONG
Preliminary Comment Concerning the Tone of Judge Pocar’s Dissent
Commentators have noted the inappropriate, ad hominem tone of Judge Pocar’s dissent. Indeed, Judge Pocar refers to some of the Majority’s arguments as “grotesque,” and chastises the Majority’s opinion as “contradict[ing] any sense of justice.” But what would we say about the “sense of justice” of a court that affirms a 24-year sentence against a person even though there are no known victims? I leave it as an open question.
More disturbing is Judge Pocar’s repeated claim that the Majority was “pretending” to analyze the evidence and the law, a claim that he repeats five times. The word “pretend” is defined as: “to appear falsely, as to deceive, feign.” Judge Pocar’s repeated use of such a loaded word is an unfortunate ad hominem assault on the integrity of his colleagues in the Majority, which is unjustified given the serious errors in reasoning that litter Judge Pocar’s dissent.
At other sections in his opinion, Judge Pocar belittles his colleagues. For example, he claims that the Majority misrepresented the Prosecution’s arguments concerning alternate modes of liability, and uses this “fact” as evidence of the overall “erroneous analysis” by the Majority:
From a purely legal perspective, the Majority’s reasoning with respect to the possibility of revising a mode of liability is based on a legal confusion. In its analysis, the Majority repeatedly refers to the possibility of entering convictions under alternate modes of liability. It does so even when summarising the Prosecution’s submissions in this respect, although the Prosecution never referred to “entering” new convictions on appeal, but carefully adopted the correct language of “revising” a conviction for a certain crime from one mode of liability to another. The Majority’s mischaracterization and incorrect attribution of legal arguments to the parties in this case is another illustration of the Majority’s erroneous analysis.
It goes without saying that before a judge decides to launch ad hominem arguments against his colleagues and belittle them for allegedly “mischaracterizing and incorrectly attributing” legal arguments to the parties, he must be sure that he has his own facts right. Here, Judge Pocar got his facts wrong: the Majority correctly recited the Prosecution’s position. The Prosecution argued as follows:
However, in the event that the Appeals Chamber were to find any error affecting Gotovina’s JCE liability, it should enter convictions under one of the alternative modes of liability, namely: ordering, planning, instigating, aiding and abetting and superior responsibility under Art.7(3). Because the Chamber found Gotovina liable through his participation in the JCE, it did not enter findings on the alternative modes of liability.
Hence, the Prosecution in fact did ask the Appeals Chamber to “enter” convictions on alternate modes of liability. Judge Pocar thus hoists himself on his own petard: rather than belittling the Majority for misstating the Prosecution’s position, he exposes his own erroneous analysis, which unfortunately is evident throughout his dissent (as will be explained more fully below and in subsequent blog posts).
The Motives Behind Quashing the Existence of the JCE
Before turning to the substance of Judge Pocar’s arguments, it is appropriate here to address another issue that is related to the ad hominem arguments Judge Pocar advances against his colleagues in the Majority. This concerns Judge Pocar’s criticism of the Majority for quashing not only Gotovina’s and Markac’s convictions based on JCE, but also for quashing the Trial Chamber’s finding of the existence of a JCE altogether:
Even if the Majority wished to acquit Gotovina and Markac entirely, one might wonder what the Majority wanted to achieve by quashing the mere existence of the joint criminal enterprise rather than concentrating on Gotovina’s and Markac’s significant contributions to the joint criminal enterprise. I leave it as an open question.
Some commentators have claimed that this passage contains “an implicit suggestion that in considering the trial judgment the majority could be guided by motives other than purely legal.” I disagree. Judge Pocar’s criticism here is directed against the Majority’s refusal to consider anything other than purely legal motives in arriving at its Judgement.
Judge Pocar essentially argues that even if the Appeals Chamber were to acquit Gotovina and Markac, it should have established that a JCE existed involving three deceased individuals: Croatian President Franjo Tudjman, Minister of Defence Gojko Susak, and Croatian Army Chief of Staff Zvonimir Cervenko. From the context of his dissent, it is clear that the main focus of Pocar’s ire is Tudjman. But it is indisputable that there is no legal purpose to be served in condemning three individuals who are deceased and thus unable to defend themselves from the allegation that they were members of a JCE, in particular in a case where the accused who are actually before the court are going to be acquitted. Judge Pocar apparently wanted to use the ICTY’s imprimatur to condemn Tudjman as a war criminal, without Tudjman being able to defend himself. Had the Tribunal done so, it arguably would have violated the European Convention on Human Rights. Judge Pocar notably fails to address this issue.
Judge Pocar perhaps hoped to use such a “conviction” of Tudjman for the purposes of “reconciliation” and “evenhandedness” that we have heard so much about since the Appeals Judgement. The Majority, to its credit, limited itself to the evidence and the law, and resisted calls to consider extra-legal issues in arriving at its Judgement. If Judge Pocar believed that there was some legitimate purpose to be served in using an acquittal of Gotovina and Markac to condemn Tudjman, Susak and Cervenko without trial, he should have provided some justification for his position. The Majority, however, should not be accused of playing “politics.” On the contrary, it is the Majority’s refusal to play politics (i.e. deliver judgements on the basis of outside political concerns like “reconciliation,” or creating the perception of ICTY “evenhandedness”) that has caused such consternation among some, including perhaps Judge Pocar. If so, the question arises as to whether Judge Pocar’s motive to condemn Franjo Tudjman is “purely legal,” or whether it is something else. I leave it as an open question.
The Majority Correctly Applied the Standard of Review
All five judges of the Appeals Chamber unanimously agreed that the Trial Chamber erred in establishing a 200 Meter Standard. The Trial Chamber made an error of fact in establishing the 200 Meter Standard because it was “not linked to any evidence.” Judge Pocar also agrees with the Majority that the 200 Meter Standard amounts to an error of law because the Trial Chamber failed to provide a reasoned opinion in writing, in violation of Article 23 of the Tribunal’s Statute. Because the Trial Chamber failed to provide a reasoned opinion on a key element of the offences of persecution and deportation (i.e. whether there was an unlawful attack against civilians and civilian objects), the Majority decided that it would “consider de novo the remaining evidence in the record to determine whether the conclusions of the impact analysis are still valid.”
The question arises whether the Appeals Chamber should conduct a de novo review of the evidence in a case where the Appeals Chamber has concluded that the Trial Chamber has failed to provide a reasoned opinion on a key element of an offense. The Appeals Chamber eleven months earlier in the Bagosora case resolved this question. There, in assessing whether the Trial Chamber erroneously convicted the appellant of command responsibility, the Appeals Chamber concluded that the Trial Chamber had failed to provide a reasoned opinion in support of its conclusion that the appellant had failed to punish culpable subordinates. As a result:
The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.
The Appeals Chamber used a similar approach in the Haradinaj Appeals Judgement. In Haradinaj, because of the Trial Chamber’s failure to provide a reasoned opinion, the Appeals Chamber conducted a de novo review in order to determine “whether a reasonable Trial Chamber” could have found certain witnesses to be credible.
The Majority here adopted the same standard of review as did the Bagosora and Haradinaj Appeals Chambers (which, notably, both included Judge Pocar). Once it was established that the Trial Chamber had failed to render a reasoned opinion concerning the 200 Meter Standard, the Appeals Chamber reviewed the Trial Chamber’s factual findings and relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Gotovina and Markac had launched an unlawful artillery attack against civilians and civilian objects.
The Majority’s approach was thus well established in the jurisprudence of the Tribunal. However, Judge Pocar muddies the waters by conflating two separate types of errors of law: (1) errors of law resulting from a Trial Chamber’s failure to render a reasoned opinion, and (2) errors of law resulting from the application of an incorrect legal standard. In the case of the former, the Appeals Chamber has no obligation to provide “the correct legal standard,” because the Trial Chamber’s legal error is not in the misapplication of a legal standard but in the failure to provide a reasoned opinion of its assessment of the evidence or its legal conclusions. It is only in the latter case, where the Trial Chamber has applied the wrong legal standard, that the Appeals Chamber is required to articulate the correct legal standard.
By conflating the two distinct types of errors of law, Judge Pocar speciously criticizes the Majority for allegedly failing “to articulate the correct legal standard and review the factual findings of the Trial Chamber accordingly.” However, the Majority never claimed that the Trial Chamber had applied the wrong legal standard, but rather that it failed to render a reasoned opinion in writing. This is a critical distinction.
There is simply no support in the Tribunal’s jurisprudence for Judge Pocar’s claim that where a Trial Chamber fails to render a reasoned opinion, the Appeals Chamber must establish “the correct legal standard.” Indeed, Judge Pocar in Bagosora and Haradinaj supported the approach ultimately adopted by the Gotovina Majority. Bagosora and Haradinaj amply support the Majority’s standard of review adopted in the Gotovina appeal.
[In my next blog post in Part II, I will address Judge Pocar’s arguments concerning the Majority’s findings on the artillery attack, the Joint Criminal Enterprise, and the alternate modes of liability. In Part III, I will address Judge Agius’s dissent.]
 Full disclosure: for those who are not aware, I was counsel for Ante Gotovina in the proceedings before the ICTY.
 Seils and Hodzic are employed by the International Center for Transitional Justice, of which David Tolbert is president. While Deputy Prosecutor of the ICTY, Tolbert was involved in the preparation of the indictments against Ante Gotovina and Ramush Haradinaj, both recently acquitted.
 See trial exhibit P64, at the following link: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE80787R0000319865.TIF
 Dissenting opinion of Judge Agius, at paragraph 46.
 Judge Pocar’s Dissenting Opinion, at paragraphs 11, 23, 25, 31 and at footnote 30.
 Pocar dissent, paragraph 32. Emphasis added.
 Respondent’s Brief of the Prosecution, 28 September 2011, at page 116, footnote 1112, as found at http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90-A/BRF286R0000349149.pdf
 Pocar dissent, at paragraph 30.
 Open Question About Intentions, SENSE News Agency, 20 November 2012, as found at http://www.sense-agency.com/icty/open-question-about-intentions.29.html?news_id=14408
 See Pocar dissent, paragraph 26.
 See case of Vulakh and Others v. Russia, before the European Court of Human Rights, Application Number 33468/03 (10 January 2012), at paragraphs 32-37, as found at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108500.
 David Harland, Selective Justice for the Balkans, as found at http://www.nytimes.com/2012/12/08/opinion/global/selective-justice-for-the-balkans.html?_r=0
 Appeals Chamber Judgement, at paragraph 61.
 Pocar Dissent, at paragraph 6.
 Appeals Judgement, paragraph 64.
 Bagosora and Nsengiyumva v. The Prosecutor, Case No. ICTR-98-41-A, Judgement, 14 December 2011, at paragraph 683, as found at http://www.unictr.org/Portals/0/Case%5CEnglish%5CBagosora%5CJudgement%5C111214-%20Appeals%20Judgement.pdf
 Haradinaj Appeals Judgement, paragraph 134, 147, 154, 226, 254, as found at http://www.icty.org/x/cases/haradinaj/acjug/en/100721.pdf
 Pocar Dissent, at paragraph 9, 11.