A convicted person is not a plaything of justice, says Croatian General Mladen Markac’s defence

Croatian General Mladen Markac

On 31 August Croatian General Mladen Markac’s defence has filed its full reply to the ICTY Prosecution’s Brief that Generals Ante Gotovina and Mladen Markac, in case the Appeal Chamber found no case for joint criminal enterprise (JCE) and therefore no case for deportation of Serbs from Croatia associated with Operation Storm (August 1995), should be found guilty of alternate modes of liability, i.e. aiding and abetting joint criminal enterprise on grounds of command responsibility.

General Mladen Markac’s defence says, in its reply to the prosecution’s brief, that he cannot be convicted of alternative modes of liability during the appeal process because the original conviction (April 2011) gives no bases for that.

That’s the same as claiming that the house will remain whole after you remove all its bearing walls,” Markac’s defence said as it sought from the ICTY to reject the prosecutions claims as unfounded.

Markac’s defence reply starts with an Overview:

That the Appeals Chamber is even contemplating convicting Markač on alternative bases of liability, at this very late stage of the proceedings and without any prosecution appeal, raises grave jurisdictional1 and due process objections.

Those objections aside, there are insufficient “remaining findings” to support such a conviction in any event.

Accordingly, the Prosecution’s submissions in its Prosecution Supplemental Brief on Alternative Modes of Liability for Mladen Markač should be rejected in their entirety”.

And concludes:

“If Markac is right in his appeal arguments, and he was wrongly convicted on the basis of JCE, then decency demands that he should be acquitted and released as soon as possible. This is especially so given that the Prosecution has not appealed the Chamber’s failure to make findings on superior responsibility and aiding and abetting as an error of law.

To allow Markač to oscillate between hope and despair, with the case against him changing even at the oral hearing, and now even post-hearing, creates intolerable mental and physical anguish.

A convicted person is not a plaything of justice. The Tribunal, which champions human rights and the right to a fair process, should show compassion in these circumstances and bring the appeal to a swift close.”

Markac’s defence Reply demonstrates the full absurdity of the eventuality where Markac could be found guilty along the lines of command responsibility or as aider and abettor of JCE, that is that he could be found guilty of something that is not even a subject to Appeal. They further say that in that case, General Ivan Cermak (acquitted in April 2011 by ICTY in proceedings against Gotovina, Markac and Cermak for JCE etc.) could also be found guilty on basis of command responsibility even though he was found not guilty and was acquitted within same Trial Chamber proceedings.

The Prosecution seeks a metamorphosis of the Appeal process into a morally deficient marketplace where established rules of evidence and justice are lost in the prosecution’s rummage for the desired product (conviction any which way). It’s a marketplace where innocent people plead for justice and are humiliated over and over again. Sad times for humanity, indeed, when prosecutors carve political agendas into the process that must only consider pure evidence and fact. The pure evidence and pure facts show that General Ante Gotovina and General Mladen Markac have no case to answer for any crimes, not even the concocted one of participating in joint criminal enterprise through alleged unlawful shelling during Operation Storm. Yet, they must sit there and endure the prosecution’s crazy antics, crazy notions, crazy hypotheses, crazy everything… I guess it won’t be long now before we see whether the Appeal Chamber is playing with the prosecution team in a most unfair game of political scrabble where, instead of words, convictions are constructed into phrases and garble that have no tested evidence nor due process to sustain them in the real terms of justice for humanity. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

Ante Gotovina’s defence challenges particular jurisdiction of ICTY Appeal Chamber

General Ante Gotovina

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:

  1.    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
  2.  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)

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