The Gotovina and Markac ICTY prosecutors patronise and say Friends of the court have phantom concerns

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)

Legal and military experts support Gotovina and Markac Hague defence challenge

Lt. Gen. (ret.) Wilson A. Schoffner (Photo: courtesy of U.S. Army)

An unprecedented occurrence landed at the Hague on Thursday 12 January.

A  25 page Application and Brief by 12 world experts, analysing the ICTY’s April 2011 Judgment on Croatian Generals Ante Gotovina and Mladen Markac in relation to the alleged excessive shelling of Knin, Benkovac, Gracac and Obrovac during 1995 Operation Storm that liberated the Croatian territory of Krajina from Serb occupation, was submitted for filing.

Although not a defence document in the Appeals Chamber but a submission by Friends of court, the Application and Brief support the Generals’ defence and seems to have an overwhelming capacity of contributing to the original judgment being declared unacceptable and baseless.

As a reminder, a significant part of the 2011 Judgment against the Croatian Generals Gotovina and Markac (who received 24 and 18 years imprisonment respectively) relates to the artillery findings which the ICTY translated into a conviction of participating in “joint criminal enterprise”. I.e., the trial chamber found that Croatian artillery hit too wide of the military targets and was therefore indiscriminate, and concluded that civilian areas were targeted based on an order issued by Gotovina because he aimed to drive out the Serb population.

Compiled by a group of high ranking British, Canadian and American experts and professionals in international military and humanitarian laws including retired US Army generals, the brief and application seek that the court reconsiders the findings of the original judgment in the case.

The brief submits among other matters that if the Appeals Chamber uphold the original judgment on artillery findings it would have long term implications for the international humanitarian and military laws and future armed conflicts.

The submitting experts suggest that unrealistic standards of battle/shelling including the acceptable error in target precision, applied by the Trial Chamber in the case of the Croatian Generals, are not the standards practised/acceptable in past conflicts around the world.  And state that the Friends of the court:

“… are united in their concern that any judgment encouraging application of this 200­ meter standard (or any standard of acceptable error that is not based on the actual realities of artillery and indirect fire employment) in future operations will subject military commanders to a standard of care that is impossible to satisfy and operationally untenable”.

In conclusion of the Application and Brief the group of experts:

“… respectfully request that the Appeals Chamber admit this Brief pursuant to Rule 74 of the Rules of Procedure and Evidence and reconsider and reject the findings of unlawful artillery attacks during Operation Storm”.

Submitting individuals/Friends of the court are:

Laurie R. Blank, Walter B. Huffman, Bill Boothby, Eric Talbot Jensen, Geoffrey S. Corn, Mark E. Newcomb, William J. Fenrick, Thomas J. Romig, Professor C H B Garraway CBE, Colonel Raymond C. Ruppert, Dean Donald J. Guter, Gary Solis.

Furthermore, in his expert report to the Application and Brief the retired U.S. Army Lieutenant General Wilson A. Schoffner said: “Should the standard of review adopted by the Trial Chamber be allowed to stand as a legitimate interpretation of international law, it would unfairly condemn commanders who have properly conducted military operations pursuant to accepted technical and tactical standards. War is inherently dangerous and an abhorrent matter, but it is an acceptable use of force when executed pursuant to morally responsible standards and established technical and tactical norms. In the name of justice, I respectfully submit that this court cannot allow this fallacious finding of the Trial Chamber to stand, as doing so would place at risk many future commanders who are executing their responsibilities in a professionally competent and morally responsible manner to the threat of being brought before some international tribunal and unfairly charged with war crimes, as was General Gotovina here”.

Journalist Jadranka Juresko-Kero from the Croatian newspaper Vecernji List has written an exclusive article depicting in the Croatian language the most relevant sections of the above Application and Brief, suggesting that the Croatian Generals should be freed.

To the many Croatians who regard the Generals as heroes of the Croatian Homeland War this unprecedented occurrence in the Hague is a form of blessing. There are other people in the world who also argue that Croatian Generals hadn’t breached any international war or humanitarian laws or acceptable practices in the shelling of Krajina, in their efforts to liberate it.

Croatians justifiably feel that Croatia with its leadership had not embarked on a joint criminal enterprise to ethnically cleanse the Serbs from Croatia as suggested by the Hague Trial Chamber’s judgment in April 2011. Had the Croatian Serbs and the Yugoslav army accepted in 1991 the will of 94% of Croatian people to secede from the Communist Yugoslavia there would have been no armed conflict, no war and no victims. But since the Serbs rejected to live in an independent Croatia and began brutalising Croatian and non-Serb population, ethnically cleansing the Croatian territory and occupying a third of Croatia, liberating that territory was a just cause.

The fact that Serbs decided to leave Croatia in masses, in August 1995, immediately after the Operation Storm liberated Krajina from Serb occupation, may not have been, as Trial Chamber in the Hague stated April 2011, due to fear of being killed from excessive shelling. Indeed, they may have fled because their goal of pinning Croatian Krajina territory to Serbia did not materialise and their leaders urged them to leave. Ina Vukic, Prof. (Zgb), B.A., M.A.Ps. (Syd)

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