The prosecution filed (23 January 2012) a response to the brief authored by 12 British, Canadian and American legal and military experts as Friends of the court and filed 12 January in the Hague.

In its response the prosecution seeks that the brief be rejected and says that the experts did not understand the first-instance judgement that had sentenced Gotovina to 24 years’ imprisonment and Markac to 18 years for war crimes committed during and in the wake of the military offensive.

Among other matters the prosecution contends that:

• the brief couldn’t assist Appeals Chamber as much of its contents are ‘irrelevant on the face’ – that passages repeat expert testimony from trial;
• the brief is premised upon a flawed understanding of the meaning and content of the Judgment;
• the brief’s authors are neither objective nor impartial (that one of the authors of the brief was a defence witness in Trial Chambers and another an expert consultant for the defence during the Appeal process);
• the brief duplicates, endorses and elaborates upon the content of new expert reports which the defence seek to have admitted on appeal;
• the brief raises phantom concerns.

With these points made by the prosecutors one would think that the brief filed at the Hague by the 12 high ranking legal and military experts might have been written by amateurs.

Even the idea that because two of the 12 experts had in the past had some connection to the case all 12 cannot be trusted (as the prosecution implies) is absurd and offensive.

While in normal circumstances a Friend of the court usually refers to someone who has no relevance to any particular side in the case, one would expect that the 12 experts authoring the brief have considered this and assessed that any past involvement of two authors with the case had no direct bearing on the main issues presented in the brief and which have international implications for future if not current military operations by allied forces around the world..

It is to be remembered that the main thrust of the brief by the 12 experts focuses on their concern that the Trial Chamber used a 200 meter radius of acceptable error in artillery attacks, saying that such a standard is “fundamentally inconsistent with the realities of operational employment of artillery”. The experts claim that “there is no military practice to suggest that a 200-meter radius is the norm in employment of artillery and other indirect fire assets”.

“Even applying the 200-meter radius of acceptable error adopted by the Trial Chamber, approximately 96% of artillery effects impacted lawful military objectives,” the experts said in their brief.

The prosecutor’s implication that the authors of the brief can neither be objective nor impartial, as two out of 12 had some connection to the case, seems to me as overstepping the bounds of human respect. Indeed the professionalism and the concern that emanate from the brief are not only professionally detailed but also encompass care and concern for the whole world, not just the appeals in the Hague.

I guess it’s the latter that, among other things, the prosecutor in their response call “phantom concerns”. “The range of error,” the prosecutor’s response claims, “ as derived and used in this case is not a norm applicable to other conflicts and has no applications beyond the unique facts of this case.”

It’s mindboggling to even imagine that a prosecutor of an international war crimes tribunal, working under international laws, can claim such a thing.

Furthermore, the whole world looks upon such a court to set standards or to compare a case with international acceptable practices. Such court would set precedents or opinions or judgments that can be referred to and used globally or, at least, by United Nations member countries. One cannot lock up the judgment into a safe, throw away the key and tell the world to forget it.

There’s nothing phantom about rules of military engagement and acceptable margin of error in shelling areas.

The brief claims that if the Trial Chamber’s decision regarding the shelling is upheld by the Appeals Chamber then this would make impossible military interventions in the world and create war criminals of commanders of allied forces (e.g. Iraq, Afghanistan etc) due to interpretations of excessive shelling.

Judge Theodor Meron, ICTY

On a happier note, on 26 January, Judge Theodor Meron delivered a surprise when he announced that the appeal hearing will be this European Spring, which brings the possibility of final verdict being delivered almost a year before expected.

Croatian TV reporter Branimir Farkas said that “if the court approves the inclusion of new evidence there’ll be a new hearing and if not, it’ll all last one day and then we’ll need to wait for the written judgment”.

The new evidence would include the brief by Friends of the court, the transcripts from Slobodan Milosevic’s defence council for which Gotovina’s defence claims are evidence that shows that the Serbs left Krajina in an organised manner and under orders, minutes of the meetings of the Serbian Supreme Defence Council that had taken place in Belgrade at the time of Operation Storm and a US diplomatic cable released by the whistleblower website WikiLeaks. The evidence concerns the circumstances surrounding the departure of Serb civilians before, in the course of and after Operation Storm, the nature of Croatian artillery attacks during the offensive, and Gotovina’s authority regarding public speeches.

The Croatian government has also applied for amicus curiae status (Friends of the court) last year. The content of its application is not known because it is classified as secret.

Regardless of what the prosecution response to the Friends of the court brief is such responses to my opinion must never attempt to obstruct the full truth from coming out. On that note it would only be just and fair that the new evidence be admitted. After all, a judgment of joint criminal enterprise, if not delivered beyond any reasonable doubt keeps the dark abyss of injustice wide open. Ina Vukic, Prof. (Zgb); B.A., M.A. Ps. (Syd)