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)

ICTY Prosecution replies: dump General Mladen Markac’s response


ICTY in the Hague is very busy these days with Prosecution responses and requests regarding the Application and Brief by 12 British, Canadian and American legal and military experts as Friends of the court filed on January 12 and subsequent responses by the appellants Ante Gotovina and Mladen Markac.

On February 6 The Prosecution has filed a motion to strike the January 23 response by General Mladen Markac defence team.

In its Motion the Prosecution claims that the Markac response:

a)      Came too late or past the deadline – i.e. 20 days is too long after the Application and Brief by the 12 British, Canadian and American experts as Friends of the court;

b)      If Markac’s January 23 response is to be viewed as his Response to Prosecution Response to the Application and Brief by 12 experts then Markac has no right to file such a response as he is not the applicant in the Application and Brief by the 12 experts.

Last week Markac’s defence team sought rejection of the Prosecution Response/Motion arguing, among other things, that Prosecution’s response was premature, i.e. that the Prosecution should have waited for an invitation from the court to file a motion. Also, Markac’s defence team claimed that the Prosecution was placing overly strict conditions upon Friends of the court applications and that the Prosecution’s interpretations were not in accordance with the court’s practices or rules.

In its latest Motion (above) the Prosecution now claims that Markac’s defence team is “playing” outside the court rules for filing responses.

One cannot avoid the feeling that there’s some significant nervousness coming out of the Prosecution camp at the ICTY.

Gotovina and Markac Appeal defences have invested a great deal of effort in trying to demolish the ICTY’s thesis of joint criminal enterprise that was part of the Trial Chamber’s conviction. In addition to this there came the Brief by the 12 British, Canadian and American legal and military experts. If the latter is accepted by the court then it’s hard to see how, after hearing the evidence from the Brief etc, the Appeal Chamber could confirm the Trial Chamber’s conviction of April 2011. Ina Vukic, Prof. (Zgb); B.A.,M.A.Ps.(Syd)

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)

Disclaimer, Terms and Conditions:

All content on “Croatia, the War, and the Future” blog is for informational purposes only. “Croatia, the War, and the Future” blog is not responsible for and expressly disclaims all liability for the interpretations and subsequent reactions of visitors or commenters either to this site or its associate Twitter account, @IVukic or its Facebook account. Comments on this website are the sole responsibility of their writers and the writer will take full responsibility, liability, and blame for any libel or litigation that results from something written in or as a direct result of something written in a comment. The nature of information provided on this website may be transitional and, therefore, accuracy, completeness, veracity, honesty, exactitude, factuality and politeness of comments are not guaranteed. This blog may contain hypertext links to other websites or webpages. “Croatia, the War, and the Future” does not control or guarantee the accuracy, relevance, timeliness or completeness of information on any other website or webpage. We do not endorse or accept any responsibility for any views expressed or products or services offered on outside sites, or the organisations sponsoring those sites, or the safety of linking to those sites. Comment Policy: Everyone is welcome and encouraged to voice their opinion regardless of identity, politics, ideology, religion or agreement with the subject in posts or other commentators. Personal or other criticism is acceptable as long as it is justified by facts, arguments or discussions of key issues. Comments that include profanity, offensive language and insults will be moderated.
%d bloggers like this: