6 out of 12 legal/military experts who authored the Application and brief by  Friends of the court and filed it on 12 January 2012 at the ICTY (see my previous posts “Legal and military experts support Gotovina and Markac defence challenge” and “The Gotovina and Markac ICTY prosecutors patronise and say Friends of the court have phantom concerns” have in November 2011 participated in roundtable discussions and assessments of the ICTY Trial Chamber judgment (15 April 2011) in Ante Gotovina and Mladen Markac case.

Following is the Report produced from that roundtable and a most valuable read.

OPERATIONAL LAW EXPERTS ROUNDTABLE ON THE GOTOVINA JUDGMENT: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law  REPORT PRODUCED BY:  International Humanitarian Law Clinic at Emory University School of Law 

CONCLUSION: “At first glance, a judgment of the ICTY regarding the application of IHL to complex targeting operations involving two warring parties targeting military objectives in populated areas is a welcome development. With the progressive development and effective implementation of IHL in mind, careful consideration of the legal principles, obligations and standards could make a major contribution to IHL and to future military operations. Unfortunately, the Gotovina judgment as it stands goes in the very opposite direction. The military and operational law experts gathered at the November 4, 2011 roundtable discus­sion came together with the goals—shared with the ICTY—of promoting the development of IHL, ensuring the lawful conduct of military operations, and protecting civilians from the ravages of war. Because of the great potential for this decision to become a persuasive authority in the law of targeting, the experts believe it is important to highlight the legal flaws in the judgment and, even more important, the longer-term detri­mental effects that the faulty application of the law will likely cause. Preserving the ability of military forces to conduct lawful military operations and protect civilians accordingly is essential.”

On Determining Whether Artillery Fire Was Directed at Civilians Purposefully: Criticism of the ICTY’s Gotovina Decision

By Robert Chesney

 [This is the first of two posts concerning the ICTY’s Gotovina decision (the ICTY summary of which appears here, and two volumes of trial documents are available here]

Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory Law, writes in with the following guest post.  Everyone interested in IHL issues (particularly the methodology by which a court might infer the intentional targeting of civilians) will want to take a look at this:

On November 4, 2011, the International Humanitarian Law Clinic at Emory Law School convened a group of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing IHL.  The meeting was convened to analyze the broader legal issues in and implications of the recent judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Gotovina, which focused on Operation Storm, the Croatian operation to re-take the Krajina region in the summer of 1995.

The meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment.  These issues are at the heart of an amicus brief that has been submitted to the Appeals Chamber at the ICTY [Ed.–a subsequent post will cover that brief]. Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning and the implementation of IHL.

The experts gathered represented a remarkable compilation of military legal and operational experience with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force.  This operational experience and knowledge brings the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief.

The Emory IHL Clinic has now issued a report from the experts’ meeting: “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law.”  The report sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas: the imposition of what amounts to a strict liability standard imposed on commanders who attack lawful military objectives in populated areas; the flawed application of the principle of proportionality; the failure to consider or apply Article 58(b) of Additional Protocol I and its obligations for defending parties to take precautions; and the failure to properly recognize and rest the legal analysis on the operational complexity inherent in the targeting process.  With an eye to the long-term consequences of the judgment, the report also emphasizes a range of institutional concerns and second order effects resulting from the judgment: the effect on future military operations; the consequences for the respect for and development of international law; and specific overarching concerns regarding the role of the commander and the role of legal advisers during military operations.