Croatian Generals Ante Gotovina and Mladen Markac

The Croatian General Mladen Markac defence team in the ICTY Appeal has February 2 filed its Response to the January 23 Prosecution Motion with regards to the Application and Brief by 12 British, Canadian and American legal and military experts as Friends of the court.

In its submission Markac defence team requests that the Prosecution Motion be rejected. It claims that:

• While the Prosecution has called its application a “response” it was clearly a “Motion” for the rejection of the 12 experts’ Friends of the court application and brief and that the Prosecutor had failed to cite any Procedure and Evidence rule entitling it to file such a response;

• The Prosecution did not wait, as it should have, to be given the opportunity by the Appeals Chamber to file a submission – Prosecution, it seems simply gave itself the right to file a Motion disguised as Response (?);

• The Prosecutions “overly restrictive approach to the admission of amicus briefs is not supported by the ICTY’s case-law or practice”;

• There’s “no requirement that amicus submissions not address matters of mixed law and fact”. The Prosecution had in its Motion argued that because the brief by 12 experts relied on found facts of the case it should be rejected as Friends of the court submissions must address matters of law only;

• There’s “no requirement that amicus submissions confine themselves to evidence on the record;

• The proposed brief by the 12 experts would assist the Appeals Chamber in its consideration of questions at issue on appeal – submitting that:

a)      The Prosecution’s assertion that “the 200 metre rule has no precedential value and is limited to Operation Storm is simply untenable”;

b)      Markac notes that “it has become readily apparent that the Chamber’s 200 metre margin of error rule has provoked widespread concern, and indeed criticism”, supporting this claim by attaching the Report of Operational Law Experts Roundtable produced by Emory University School of Law.

So, it would appear that the ICTY Prosecution might have made a “boo-boo” – i.e. it may have blundered – when it filed its “Response” to the Application and Brief by the 12 British, Canadian and American experts prematurely and without an invitation by the Appeals Chamber. Of course, this situation has given the Appellants an opportunity to comment or respond to the Prosecution’s submission.

It would seem that the Prosecution has become somewhat jittery about the possibility that new evidence and high-ranking world expert opinion and assessments could exonerate Generals Ante Gotovina and Mladen Markac of charges focusing on ethnic cleansing/ joint criminal enterprise, i.e. forceful expulsion of Serbs from Krajina by means of excessive shelling.

On the basis of its own claim that the “200 metre margin of error” in shelling of Krajina during the Operation Storm in 1995, is ONLY applicable to this case and NOT the world – not the international laws – the Prosecution would be very happy to have the world excluded from the case.

The ICTY Prosecution would, it seems, prefer to wrap the Gotovina and Markac case up into a cocoon of selective justice, serving only Prosecution’s own narrow, biased purposes. It is clear to everyone except the ICTY Prosecution, it seems, that the court cannot process justice using international laws and acceptable practices without that same justice being applicable internationally. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)