Reblogged from Marquette University Law School Faculty Blog

By Jack Vrett

Last month, the International Criminal Tribunal for the Former Yugoslavia (ICTY) heard oral arguments in the important case of Prosecutor v. Gotovina. The case concerns the decisions of General Ante Gotovina, the commander of Croatian forces during Operation Storm in August of 1995. The case’s outcome may have far reaching implications on the practical application of the law of armed conflict.

The Gotovina prosecution arose out of Operation Storm, a massive Croatian military effort to retake Serbian controlled areas of Croatia. In brief, and painting with a broad brush, it came in the wake of the Srebrenica Massacre, which later the U.N. Secretary General called the worst crime in Europe since World War II. At Srebrenica, Serbians under Ratko Mladic murdered over 8,000 Bosnian men and boys in an effort to drive Bosnians from the area. Operation Storm came on the heels of the massacre, and was an overwhelming success. The Serbian forces were devastated. Their leaders were forced to the negotiating table, and the peace accords soon followed.

After the war, the ICTY’s Office of the Prosecutor indicted Gotovina for war crimes arising from the targeting decisions he oversaw while commanding his forces in Operation Storm. Gotovina went into hiding, but he was apprehended on December 7th, 2005. On April 15, 2011, the ICTY Trial Chamber convicted Gotovina, concluding that he deliberately executed indiscriminate attacks during Operation Storm resulting in civilian deaths.

The potential significance of the Trial Chamber’s judgment, and the pending appeal, cannot be overstated. As an Emory panel of experts offered, “[T]he manner in which [the law] is enunciated and applied in the Gotovina judgment has extraordinary import for future operations and conflicts. The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.”

When Gotovina was returned to the Hague, he joined two other co-defendants who were charged with a joint criminal enterprise:

The alleged common criminal purpose of the joint criminal enterprise was the permanent removal of the Serb population from the Krajina region by force, fear or threat of force, persecution, forced displacement, transfer and deportation, as well as appropriation and destruction of property. The Prosecution alleges that in addition to the crimes forming part of the joint criminal enterprise, the crimes of murder, inhumane acts, and cruel treatment were committed, and were foreseeable as a possible consequence of the execution of the enterprise.

Gotovina, IT-06-90-T, para. 7.

For Gotovina’s part, as the military commander approving targeting decisions, the course of the trial became a battle of experts. A former Dutch Artillery officer testified on behalf of the Prosecution, and a former U.S. Army legal officer (judge advocate) testified on behalf of Gotovina. At the conclusion of the trial, the tribunal convicted Gotovina and one of his co-defendants (the third was acquitted). Gotovina was sentenced to 24 years in prison. Gotovina and his remaining co-defendant filed their notices of appeal, and after briefing, oral argument was heard on May 14th, 2012.

The Gotovina prosecution was significant from the start. As soon as the Prosecutor issued the indictment, the United States House Committee on International Relations sent a letter to Secretary of State Colin Powell asking the Department of State to closely monitor the Prosecutor’s indictment of Gotovina. The letter reminded Secretary Powell of allegations that “the Clinton Administration provided intelligence and other assistance to the Republic of Croatia in connection with [Operation Storm].” The letter continued:

The ICTY has indicted a Croatian General, Ante Gotovina, for war crimes and crimes against humanity. These allegations are based on reports that he failed to intervene to stop forces under his command who intentionally drove thousands of Serb civilians from their homes during [Operation Storm]. Testimony was presented [to the committee] questioning the factual basis for this indictment, and indeed the U.S. Ambassador to Croatia at the time of this operation, Peter Galbraith, has argued that Serbian civilians were not forced to flee. Nevertheless, it was brought to our attention that the ICTY may investigate U.S. officials for command responsibility in connection with Operation Storm.

The letter ended, “We urge the Administration to carefully monitor the Gotovina case and related investigations in order to ensure that no U.S. official is investigated or prosecuted by this U.N. tribunal for formulating or carrying out U.S. government policy.”

Not surprisingly, Operation Storm bore the mark of NATO military doctrine. Some observers have suggested that Operation Storm was conceived and planned with the help of former military officers from NATO member states. The Croatian forces were well-trained, and their execution synchronized, massing effects against enemy weaknesses. What’s more, the evidence suggests that targeting decisions were carefully vetted by those involved to insure they complied with international law. Distinction and proportionality were considered prior to engaging each target.

The critical aspect of the judgment was the trial chamber’s application of the principle of Proportionality in armed conflict. Proportionality in the Law of Targeting is often mistaken for the concept of “proportionate response” from domestic self-defense provisions in criminal law, or a type of fairness requirement between opponents where force is matched with counter-force. But the principle of proportionality in International Humanitarian Law is something else entirely.

Proportionality, as properly understood, is a longstanding principle of the law of armed conflict which balances military necessity and humanity. It calls on commanders, prior to an attack, to weigh the military advantage to be gained against the risk of excessive collateral damage. The International Committee of the Red Cross restated the customary rule that, “[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” (Rule 14, Customary International Humanitarian Law, ICRC).

Although a well-established principle of customary law, proportionality was codified in treaty law as the prohibition of indiscriminate attacks. Article 51(5) of Additional Protocol I to the Geneva Conventions provision that an attack is indiscriminate if it is “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” (emphasis added). Moreover, the Elements of Crimes for the International Criminal Court (ICC) set forth the criminal law standard for applying the principle of proportionality under the Rome Statute. In Article 8(2)(b)(iv), the ICC Elements of Crime provide five elements to be proved in a prosecution for the “War crime of excessive incidental death, injury, or damage.”

(1) The perpetrator launched an attack.

(2) The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

(3) The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

(4) The conduct took place in the context of and was associated with an international armed conflict.

(5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

The Elements of Crime continue, adding special points of clarification:

The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.

Notably, the “knowledge element [the third element] requires that the perpetrator make the value judgment as described therein. An evaluation of that value judgment must be based on the requisite information available to the perpetrator at the time.” This type of value judgment, calling for command discretion, is not uncommon and is firmly rooted in international criminal law.

When considering command discretion, such as the value judgment that weighs military advantage against the risk of excessive civilian damage, courts are to apply a subjective standard. Applying a subjective standard is not new in international criminal law. Rather, at Nuremberg following the Second World War, the International Military Tribunal pronounced the Rendulic Rule: “It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity’ warranted the decision made.” XI Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Military Tribunals, 1113 (1950). Known for an Austrian Commander named Lothar Rendulic, the Tribunal dismissed the charges against him relating to a “scorched earth” tactic to slow the advance of the Soviets in Finland and Norway. Rendulic ordered the destruction of civilian buildings and infrastructure to delay the Soviets as they pursued his retreating forces. The Soviets never came, so in hindsight, his order to destroy civilian buildings and infrastructure served no legitimate military purpose. Yet the Rendulic Rule provides that when assessing the conduct of soldiers on the battlefield, they should be judged by the facts and circumstances as they appeared to the soldier at the time.

Surprisingly, the Gotovina judgment imposed almost a “zero error” standard in which commanders are strictly liable for any civilian injuries or deaths when executing attacks.

First, the chamber created a 200 meter presumption of lawfulness, concluding that “artillery projectiles which impacted within a distance of 200 meters of an identified artillery target were deliberately fired at that artillery target.” Then, the court reviewed the evidence and decided that 94.5% of the artillery fired impacted within the 200 meter radius of military targets, but 5.5% of the artillery impacted beyond the 200 meter radius. The court categorized those 5.5% as having impacted in civilian areas. From this 94.5% success rate, the court inferred unlawful motive for the remaining 5.5%. “Too many projectiles impacted in areas which were too far away from identified artillery targets for the artillery projectiles to have impacted in these areas incidentally as a result of errors or inaccuracies in [Gotovina’s] artillery fire.” Accordingly, Gotovina was convicted.

As can be seen, the Trial Chamber’s reasoning was markedly different from how proportionality (and indiscriminate attacks) is typically imagined under Customary International Law and Treaty Law. Whether the judgment is affirmed – or more importantly, the way in which the appellate court analyzes the proportionality problem – will have far reaching impacts on how militaries plan operations going forward.

There is no indication as to which way the court will decide. Although the case will merely serve as persuasive authority for other courts and tribunals, Gotovina is the first time that a court has considered sophisticated targeting decisions between conventional forces.

Thankfully, if this type of material interests readers, there is a lot of great work being done in the area of International Criminal Law. However, for more on the application of International Criminal Law to military operations and terrorism, readers can do no better than reviewing the many works of Vanderbilt Law’s Michael Newton, especially here, here, and most recently, here.

DISCLAIMER:

Jack Vrett, J.D. 2009, is a Captain in the United States Army currently assigned as the Chief of International and Operational Law for the 101st Airborne Division (Air Assault). The opinions and conclusions of this post, as well as its flaws, are solely attributable to the author. They do not necessarily reflect the views of the Judge Advocate General, the 101st Airborne Division (Air Assault), the United States Army, the United States Department of State, or any other federal entity.