Dissenting From the Dissenting Opinions of Judges Pocar and Agius (Part I)

Luka Misetic    Photo: Darko Tomas/Cropix

Luka Misetic Photo: Darko Tomas/Cropix

Reblogged

From Misetic Law

By Luka Misetic

[PART I][1]

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).[2]  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.”[3]

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.[4]  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.[5]  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.[6]

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.[7]
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.[8]

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.”[9]  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.[10]  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.[11]  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.[12]  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.”[13]  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.[14]  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.”[15]

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.[16]

The Appeals Chamber used a similar approach in the Haradinaj Appeals Judgement.[17] 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.”[18]  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.]

________________________________________

[1] Full disclosure:  for those who are not aware, I was counsel for Ante Gotovina in the proceedings before the ICTY.
[2] 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.
[3] See trial exhibit P64, at the following link:  http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE80787R0000319865.TIF
[4] Dissenting opinion of Judge Agius, at paragraph 46.
[5] Judge Pocar’s Dissenting Opinion, at paragraphs 11, 23, 25, 31 and at footnote 30.
[6] Pocar dissent, paragraph 32.  Emphasis added.
[7] 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
[8] Pocar dissent, at paragraph 30.
[9] 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
[10] See Pocar dissent, paragraph 26.
[11] 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.
[12] 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
[13] Appeals Chamber Judgement, at paragraph 61.
[14] Pocar Dissent, at paragraph 6.
[15] Appeals Judgement, paragraph 64.
[16] 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
[17] Haradinaj Appeals Judgement, paragraph 134, 147, 154, 226, 254, as found at http://www.icty.org/x/cases/haradinaj/acjug/en/100721.pdf
[18] Pocar Dissent, at paragraph 9, 11.

Comments

  1. Reblogged this on HDZ 2012..

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  2. We need more analysis like this to help set the record straight. Social experimentation of equalization of guilt for the supposed reconciliation of people is harmful. Lies and cover-ups only perpetuate injustice and animosity. It is only through truth and sound legal principles that foster long term reconciliation. Hopefully, more legal scholars will analyze this case and expose the attempts at politicization and the people responsible for such injustice so that the historical record can be set straight. The people responsible for turning justice on its head also need to be exposed as frauds with accompanying professional discredit and punishment.

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  3. ne sekirajte se đavo kad tad dođe po svoje pa makar i za 50 godina 😉

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  4. Yesterday, an American international law scholar called Jens David Ohlin wrote another blog post about this case on the blog of the European Journal of International Law. His post is called “Why the Gotovina Appeals Judgement Matters”. He endorses many of the same criticisms that you mention above. Or is he a (secret) partisan too?

    http://www.ejiltalk.org/why-the-gotovina-appeals-judgment-matters/

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    • Martinned, I read the article you liked in your response. This is all very disturbing. No enemy civilian deaths. An ordered evacuation of civilians by their own command. One of the most precise artillery and military campaigns in modern warfare to liberate illegally conquered territory by an army that did not even exist less than 5 years prior to the campaign. Complete refusal by Serbs to negotiate a peaceful resolution with Croatia. Who wants to debate proportionality and distinction? It would have been a grave injustice had Gotovina and Markac not been over-turned. Equalization of guilt is a social experiment that has no room in a court of law – it is a concept that will only prolong animosity and conflict. If you believe that proportionality and distinction should have been the basis of more ICTY cases then the Gotovina case is not the case that would have set a successful example. You can however argue successfully that Vukovar, Sarajevo, Dubrovnik and even Zagreb would have made far better cases. The truth is that this war was an unnecessary war of expansion inspired by an imperialistic dream of a Greater Serbia by a fascist and fanatical Serbia. Remember Operation Storm did not happen in vacuum; but social experimenters like the author never acknowledge this because it doesn’t fit their twisted views. The Serbs have been found guilty in far greater numbers than other nationalities simply because they committed the vast majority of crimes. And for social experimenters, please answer when did justice change to equalize numbers of nationalities as the supreme consideration of law??

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      • Is it “equilisation of guilt” just because a single Croat might get convicted? Serbs have been found guilty in “far greater numbers” in the sense that no Croats have so far been found guilty. That may well be right given the strength of the cases in question, the crimes committed, etc., but I hardly see why you should start screaming about “equalisation of guilt” at the mere prospect that one Croat (or, in this case, two) might be convicted.

        Does a violation of the principle of distinction require that someone actually got hurt? Surely not, the crime is in the (manner of) shooting, not in the hitting things.

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  5. Marinned…one more thing…one of the 3 editors of the European Journal of International Law is Serbian. I would say that this is a conflict of interest in providing any worthwhile opinions and objective review of the facts

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    • Seriously? No publication that is even remotely associated with someone of Serb nationality may publish anything about the war?

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  6. With all this talk about the Gotovina case, if we are to look at totality, distinction and proportionality then we need to look at the entire war and the primary actors – Serbia, Bosnia and Croatia. Croatia and Bosnia as republics within Yugoslavia had the constitutional right to secede. This right in Croatia was expressed through legitimate democratic means observed and sanctioned by the then EC. Serbia went on rampage in Croatia and Bosnia. Clearly this was illegal within the framework of the Yugoslav constitution. Serbia’s brutal attack especially on Croatia and Bosnia was unprecedented and driven by a desire for territorial conquest and not for the protection of Serbs. If protection of Serbs outside of Serbia was the goal, then more civilized and peaceful methods could have been used more successfully within the framework of a new and united Europe as the guarantor of a peaceful resolution. Serbia’s attack went beyond all reasonable proportionality and distinction concepts. For example, Serbia was determined to exterminate all traces of Croatia identity and culture in Croatia. The Yugoslav army (at the time the 5th largest in Europe) and Serbian paramilitaries demolished over 1200 churches across Croatia in an attempt to erase symbols of Croatian identity and culture. Although valuable cultural heritage was destroyed, they failed to subjugate the Croatian nation. Is this proportionality? Is this distinction? All these discussions about the ICTY and the Gotovina case lose sight of the totality of the war and are really just political expressions and not about law. But maybe the most obvious is that the war was in Croatia, not Serbia. Croatian people were massacred defending their homes, property and economic assets were destroyed by Serbia. Croatia did not start the war, Serbia did. There surely must be differentiation between aggressor and defender. Serbia through its actions is responsible for the war. Croatia worked within the framework of Yugoslavia and even proposed alternatives to save the federation which were all refused by Serbia. Let’s put the responsibility where it belongs.

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    • There is a differentiation, through the crime of aggression. But once a state of war exists, the rules are the same for both sides. It’s the distinction between ius ad bellum and ius in bello which goes back to Hugo de Groot in the 17th century.

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  7. here’s a commentary from the EJIL regarding the Gotovina Appeal that I think you will find interesting:
    Misa Zgonec-Rozej
    November 27, 2012 at 16:01

    Your post, which I enjoyed reading, raises very interesting points. I’m posting here a few comments.

    As regards the argument, which also appears in the dissents of Judges Agius and Pocar, that the Trial Chamber did not assign “such importance” to the 200-meter standard, that is simply untenable. On any credible analysis of the Judgment, the 200-meter standard was in fact the lynchpin of the entire case, as the Appeals Chamber found. That is why unlawful attacks were found in the 4 towns but not any others in the Krajina; because only in relation to those 4 towns did the 200-meter standard show a number of shells impacting outside the 200 meters. The Trial Chamber considered unlawful artillery attacks to be the core indicator that the crime of deportation had taken place or in other words, the primary means by which the forced departure of Serb civilians from the Krajina region was effected. By contrast, Serb civilians’ departure at the same time or in the immediate aftermath of artillery attacks was not categorised as deportation where artillery attacks were not found to have been unlawful. Having reversed the Trial Chamber’s finding that artillery attacks on the four towns were unlawful (because of the unanimous rejection of the 200-meter standard), the majority of the Appeals Chamber considered unsustainable the Trial Chamber’s finding of the existence of a joint criminal enterprise with the common purpose of permanently and forcibly removing the Serb population from the Krajina.

    As regards other evidence relating to the assessment of the lawfulness or otherwise of the artillery attacks, it’s worth pointing out that the Appeals Chamber found that this evidence, even considered in its totality, did not definitively demonstrate that artillery attacks against the four towns were unlawful. As regards the circumstantial evidence relating to the existence of the JCE, absent the finding that artillery attacks were unlawful, the Appeals Chamber was not able to affirm the Trial Chamber’s conclusion that the only reasonable interpretation of the circumstantial evidence on the record (there was no direct evidence of a JCE) was that a JCE aiming to permanently and forcibly remove the Serb civilian population from the Krajina existed. In this context, it should be noted that it is a myth that many weak pieces of evidence amount, collectively, to a strong case. Weak evidence is not mutually reinforcing but, if anything, mutually weakening. The metaphor of a chain being only as strong as its weakest link is the most appropriate one to bear in mind when one considers a criminal trial, where the prosecution must prove guilt beyond a reasonable doubt, to the exclusion of any other reasonable interpretations of the evidence. And if you remove one piece of so-called mutually reinforcing evidence, the pyramid is bound to collapse – like a house of cards – as happened in this case. This is even more so if the remaining evidence is not only linked to the unlawful attacks finding but is assessed and interpreted in light of the unlawful artillery finding; in this case, the Trial Chamber linked every incriminating finding against the accused to its unlawful artillery finding, even findings related to an alleged “climate of impunity”.

    Interestingly, a review of the transcript of the appeal hearings (which I advise everyone to read) that took place on 14 May 2012 (see AT.14 May 2012, pp. 12-225) where Counsel for the appellants argued at length, and convincingly (so convincingly that the Prosecution shifted to an argument that deportation could occur even by means of lawful shelling – an argument apparently never advanced before at trial or appeal) how all of the Trial Chamber’s findings regarding the responsibility of the appellants hung on the 200-meter standard and the Trial Chamber’s finding regarding the unlawful artillery attack, neither Judge Pocar nor Judge Agius, who both disagreed with the majority on the relevance of the 200-meter standard, asked a single question on this issue. If they were so convinced that the Trial Judgment did not hang on the 200-metre standard, they were duty-bound, in fairness to the appellants, to raise the points then in oral argument.

    On the issues of unlawful artillery attacks, I would also bring to your attention the “Application and proposed amicus curiae brief concerning the 15 April 2011 Trial Chamber judgment and requesting that the Appeals Chamber reconsider the findings of unlawful artillery attacks during operation storm”, filed on 12 January 2012 by twelve former military legal advisors from land, air, and naval forces who served in both operational and legal positions in their respective armed force (available at http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Application/NotIndexable/IT-06-90-A/MSC7958R0000353013.pdf). The proposed amicus curiae brief, which the Appeals Chamber in its “Decision on application and proposed Amicus Curiae brief” decided not to allow, analyses the law regarding the legality of targeting and discusses whether particular artillery attacks which were analyzed by the Trial Chamber complied with specific tenants of international humanitarian law. On the implications of the 200-meter rules for other military operations see the following blog and other documents referred to therein: Could the Gotovina Judgement be Used Against the British Army (available at http://ilawyerblog.com/could-the-gotovina-judgement-be-used-against-the-british-army/)

    As regards the criticism of a divided 3:2 decision by the Appeals Chamber, this case is no different from any other case where judges where split in their decision. The judgement against Rasim Delić, a Bosnian Muslim, who was a former commander of the Army of Bosnia-Herzegovina, did not receive, as far as I know, as much attention and criticism as the judgement in Gotovina and Marakč case, although a Trial Chamber convicted him by majority 2:1 on one count. He was unanimously acquitted for three other counts. The Presiding Judge, Judge Moloto, who was the only permanent judge in that Trial Chamber, voted for his acquittal while two ad litem judges, one of whom was a former ICTY Prosecutor, voted for his conviction on that count. Consequently, he was sentenced to 3 years ‘imprisonment. Judge Moloto did not agree with the majority’s finding that Delić exercised effective control over the perpetrators of the relevant crimes. Unfortunately, Delić died a few days before the Appeals Chamber was to deliver its judgement on appeal where an acquittal was a probable outcome. But if you read Judge Moloto’s dissenting opinion in Delić, you will see that his dissent is persuasive yet respectful when explaining the disagreement with the majority. In contrast, the dissenting judges in Gotovina and Markač, on whose dissenting opinion the comment above relies, use inappropriate language which, if anything, damages the very institution they represent rather than making their dissents more powerful and persuasive.

    As regards the comment that the ICTY’s reputation is in tatters with Serbia, I would note that every acquittal of non-Serbs by the ICTY results in the Serbs calling the ICTY biased. For example, when Naser Orić was acquitted (the Appeals Chamber reversed the judgement of the Trial Chamber which was presided by Judge Agius) back in 2008, the Institute for War and Peace Reporting reported (available at http://iwpr.net/report-news/oric-acquitted-appeals-hearing) as follows:

    In Serbia, President Boris Tadic said the acquittal was “scandalous”, and former justice minister Vladan Batic told local media that the appeals chamber’s decision represented “a collapse of justice and of the tribunal”.

    The Serbs reacted the same way to the acquittals of other Bosnian Muslims and Kosovo Albanians. The Serbs have been arguing for the last 17 years that the ICTY is biased, while at the same time being publicly criticised by the ICTY for its non-cooperation (in respect of which read the Annual Reports of the ICTY for the for the first decade of its existence).

    I hope that your comment will not be understood as meaning that the Generals’ convictions should have been upheld because that would better deal with Croatian and Serb nationalism. It is clearly unacceptable to argue for people to be convicted not for what they have done, but for how the verdicts play in the region. What matters is the evidence and not peoples’ perception of guilt or innocence of an accused. Not everyone indicted by the ICTY is automatically responsible for the crimes charged. To think otherwise and expect that everyone charged by the ICTY should be convicted makes a mockery of the presumption of innocence and would mean that the trials before the ICTY are nothing more than show trials. In my view, this judgement shows that the ICTY can resist political pressure. At the end of the day it would have been much easier and more convenient for the ICTY to convict the two Generals in order to to justify 7 years of proceeding and millions of dollars expanded on this case than to do as it did.

    The acquittals obviously do not discharge Croatia from its obligation to investigate and prosecute all international crimes, including crimes committed by Croatian armed forces during the war in the former Yugoslavia. The Appeals Chamber did not deny the Trial Chamber’s findings that crimes were committed against Serb population by Croatian military forces in the Krajina regions, including murders, destruction and plunder. This case, however, only deals with the responsibility of Gotovina and Markač and not the responsibility of any other individuals or Croatia’s responsibility for any such crimes. Although some progress has been made in recent years, the Croatian authorities are reportedly still failing to investigate allegations against some high profile military and political officials. Croatia’s next step is to fulfill its obligation to ensure access to justice, truth and reparation to victims of these crimes. Other republics of the former Yugoslavia, including BiH, Montenegro and Serbia, face similar challenges in removing obstacles to domestic criminal investigation and prosecution of international crimes committed during the Yugoslav conflict.

    I posted a short analysis of the judgment at http://www.chathamhouse.org/media/comment/view/187285 and a longer version at
    http://ilawyerblog.com/prosecutor-v-gotovina-markac-tribunal-acquits-croatian-generals/

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