ICTY rejects the 12 British, Canadian and America experts in Ante Gotovina and Mladen Markac case as Friends of the court

Generals Mladen Markac and Ante Gotovina

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague has February 14 denied the application by 12 British, Canadian and American military and legal experts for the status of Friend of the court (amicus curiae) in the case of Croatian generals Ante Gotovina and Mladen Markac.

The Appeals Chamber said that the said experts address numerous factual issues and provide interpretations of evidence on the record. According to the Appeals Chamber decision, the experts repeat the task undertaken by the Trial Chamber and by the appeal briefs of Gotovina and the Prosecution.

Well, let’s hope that the international standards of warfare argued by the 12 experts in their proposed Brief filed January 12 are addressed at the appeal. Otherwise, it will indeed be the case that the court takes the view of the Prosecution (see previous post on Prosecution response). I.e., that the standards of shelling the Trial Chamber said in April 2011 should apply to Gotovina and Markac are not applicable to international standards (!) and must be viewed as unique. This will be a sad day indeed if this happens. But besides it being sad it will fortify the view many hold of the ICTY’s seemingly unreasonable determination to deliver verdicts with biased justice that fits its theories of joint criminal enterprise regardless of world benchmarks and practice standards.

 The 12 experts among other arguments in their Brief stated that the 200 metre error margin in shelling was unreasonable and impossible to follow, and does not apply to any military engagement so far in history of the world subscribed to the International Humanitarian laws. To my view the 12 experts sought to assist the Appeals court by providing it with comparative facts (normal military engagement practice standards/shelling error margins) which the Trial Chamber did not have.  Hence, I would have thought that it was clear that the 12 experts were not interpreting the facts or repeating the task undertaken by the Trial Chamber (April 2011) but rather attempted to assist the court by presenting it with detailed arguments and examples of normal shelling practices in military engagements and how serious the 200 metre margin will bounce on military leaders, creating war criminals where there are none.

Another point for the denial was that the Applicants (the 12 experts) did not in their application and Brief disclose Geoffrey Corn’s prior role as an expert witness testifying for the Gotovina defence during the trial. Corn’s curriculum vitae (CV) was laid out in the Brief and it would have been very easy for the Appeals Chamber to identify him as the same Geoffrey Corn who appeared in the trial as expert witness, who by the nature of his expert testimony was independent.

While the Appeals Chamber “forgave” the Applicants the size in number of words of their Brief (the court rules stipulate 3,000 words and the Brief was 5,842 words without prior approval) in order to expedite the matter, it found it difficult to find that Geoffrey Corn did in fact identify himself by giving a full CV. Standards of decision-making here are hard to fathom. On the one hand the court looks sideways and sees that the Brief has more words than it should and on the other it’s struck by a “lazy eye” in failing to look sideways from Corn’s CV to find that this Corn is the same Corn as the one who appeared as expert witness for Gotovina’s defence.  

Given that the Appeals Chamber did not give credence to the Prosecution’s prior claim that Corn may not be objective or impartial because of his prior involvement with the case as expert witness it is quite mean of the court to have insisted that his CV should also have included in writing the fact that he was an expert witness before.

 Croatian Hina news agency reports: “The decisions to be made by the Appeals Chamber before the appeals hearing scheduled for March include a decision on a motion by Gotovina’s defence for the introduction of new evidence.

The November 4 motion refers to the introduction of 25 new documents, including the minutes of meetings of the Serbian Supreme Defence Council held in Belgrade during Operation Storm, U.S. diplomatic dispatches released by the whistle-blower website WikiLeaks, and expert reports by US officers on the use of artillery in the operation.

The additional evidence pertains to the departure of Serb civilians before, during and after Operation Storm, the nature of Croatian Army artillery attacks during the offensive and Gotovina’s authority to make public statements.

According to the ICTY’s calendar of events, the final verdict in the Gotovina-Markac case is expected to be announced in August 2013.

Commenting on the Appeals Chamber’s decision, Goran Mikulicic, an attorney for General Markac, said the arguments stated in the Proposed Amicus Curiae Brief ‘give the Chamber something to think about.’
‘We believe, regardless of the fact that the application was turned down, that what is written in the application is important. The application contains numerous arguments which give the Chamber something to think about,’ Mikulicic told Hina”.

Indeed the Appeals court has not wasted much time in delivering its decision to reject the 12 experts’ Brief; its reasons for such denial are meagre, as lean as they can possibly be. One cannot but speculate that the reason behind this is that the Appeals Chamber has already made up its mind as to what the outcome of the Appeal will be or, let’s pray, it recognises other avenues besides the 12 expert Brief through which new evidence or new interpretations of the evidence can be tackled through. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps.(Syd)

Nope! Croatia cannot be a friend of the ICTY court!

Croatia is liberated from Serb occupation August 1995, dr Franjo Tudjman congratulates the forces

ICTY Appeal Chamber has February 8 rejected the application by the government of Republic of Croatia for Friend of the court (amicus curiae) status in the Ante Gotovina and Mladen Markac appeal.

Knowing the attitude that the ICTY seemed to have saddled itself with from its beginnings – don’t trust people because all are guilty – such a rejection, albeit saddening and troublesome, comes with no real surprise. Given that the ICTY Prosecution went on a rampage against the whole of the Croatian leadership with its theory of joint criminal enterprise (i.e. that Croats drove the Serbs out of Croatia in August 1995 at the end of the liberating Operation Storm) the chance of Croatian State being approved as a Friend of the court was slim.

Brief timetable of submissions:

  •   18 October 2006, ICTY Trial Chamber refused Croatia’s application for amicus curiae status/ to intervene in the case, assist the court;
  •   This application – refused;
  • 16 December 2011 Croatia files another submission for amicus curiae status – marked confidential;
  • 30 December 2011 the Prosecution files a response to Croatia’s submission – marked confidential;
  • 3 January 2012 Croatia files a reply to the Prosecution’s response – marked confidential.

Croatia’s claim, among others, was that since the Trial Chamber had named in its April 2011 judgment against Gotovina and Markac several members of the government at the time, then the government has a right to intervene and explain its position.

Nothing wrong with that logic, as far as I can see. Indeed, if a third party is named in a court’s guilty judgment, without being heard, one would assume that third party has a right of reply – at least. But, the logic of natural justice seems to elude many sectors of the ICTY.

Of course, the Prosecution claimed that States do not have the right to intervene or file statements of interest!

The mind boggles! Why does the ICTY have a right to point the finger at States (or its top government officials as a group) then, if its case is against individuals!?

Tthe Appeals Chamber has found that allowing Croatia’s national interests to enter into the case (Croatia’s application as amicus curiae) is beyond the scope of issues on Appeal.

Wrong! Wrong! Wrong!

The issues on Appeal are centred around joint criminal enterprise concocted by the Trial Chamber not only against Gotovina or Markac, but against government leaders of Croatian state, who represent national interests in anyone’s books, except the ICTY’s.

The contradictions in all of this are staggering. The court and the Prosecution judge Gotovina and Markac individually for a joint enterprise, which according to the court was planned and executed by a group of people it names, and yet that group has no right to defend or explain itself in the same court. No doubt in my mind: the Prosecution at the ICTY has strapped blinkers on and refuses to even acknowledge fairness, or look sideways where the full truth lies or may lie. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

Ante Gotovina’s defence team say Friends of the court applicants are objective and have 290 years of practical military experience

Operation Storm, Croatia, August 1995

Ante Gotovina’s defence team has January 27th filed its Response to the Application and proposed amicus curiae (Friends of the court) brief (filed January 13 by 12 British, Canadian and American experts). The Response requests that ICTY accept the brief as it is an “independent and objective assessment from leading experts in the field.”

“They (the 12 experts) offer an analysis of the Judgment through the lens of 290 years of practical military experience. There is little doubt that their observations are of assistance to the Appeals Chamber and relevant to the issues on appeal, and thus satisfy the criteria for admissability.”

Gotovina defence team recalls that the 12 experts raised the question “whether the Trial Chamber applied an improper burden of proof standard on a military commander.”

Gotovina defence team recalls that the 12 experts are “concerned with the Trial Chamber’s untilisation of a 200 meter radius of error in order to determine which effects were attributable to lawful objects of attack and which were not. In the collective opinion of the Amici, this standard is fundamentally inconsistent with the realities of operational employment of artillery and other indirect fire assets.”

On the matter of Friends of the court impartiality and objectivity placed into doubt by the Prosecutor’s response to the same brief, Gotovina’s defence team points out: “The fact that one of the Applicants (Professor Corn) was called by the Defence as an expert at trial is of no consequence, given that the Prosecution has never suggested either at trial or on appeal that Professor Corn was biased or lacked objectivity.”

Furthemore, Gotovina’s defence team says that it is a fact that the brief of Friends of the court was “endorsed by eleven other prominent individuals, including the former Senior Legal Advisor of the Office of the Prosecutor, which removes any doubt about the objectivity of the proposed Amicus Brief. The reputations of all twelve of these individuals should not be tarnished as biased or lacking in objectivity where no evidence has been offered to support such accusations.”

Given that Judge Theodor Meron has announced the Appeal hearing for this coming European Spring it is to be expected that the Appeals Chamber will soon be delivering its decision as to whether to admit, or not, the new evidence propsed by Gotovina’s defence team. This includes the brief authored by the 12 experts.

Should the ICTY Appeals Chamber decide to accept the new evidence then the coming weeks are promising to unfold with, to many known and felt, but yet unseen and unspoken of aspects of the Croatian Operation Storm that not only positively and deservedly affect Croatia, its past and its future, but also those of all combat and military fields of the world. The standards, the benchmarks of military operations are at stake here, or better said – their justice and justification.

Gotovina’s defence suggests that all new evidence has the capacity of proving that Gotovina has no place among convicted participants of the so-called joint criminal enterprises.

Should the court decide not to accept the new evidence, then the corridors of the world’s knowledge, expertise and military engagement will be filled with dignitaries scratching their heads in rather harrowing questions about what is right and what is not in the application of International Humanitarian Law and the Geneva Convention, when it comes to the battlefields of lawful and righteous pursuits. The ICTY prosecutor says that the Croatian army (Gotovina) issued orders to strike against towns (e.g. Knin), in the liberating Operation Storm. But, what other language do commanders use at times of war? Wren’t there orders to strike against Baghdad, Tripoli, Kabul … and in WWII against Pearl Harbour, Berlin, Hiroshima …

In the case of Gotovina the ICTY Trial Chamber had found that 96% of shelling fell upon lawful military targets. That, in anyone’s book, should say a great deal about the standards and care taken in “Gotovina’s” battlefields. Ina Vukic, Prof.(Zgb); B.A., M.A.Ps. (Syd)

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