Croatian Generals’ ICTY Appeal: zooming into the nitty-gritty

Ante Gotovina (L) Mladen Markac (R)

Croatian Generals Ante Gotovina and Mladen Markac Appeal hearing is set for 14th May. Many wait in intense anticipation. While the charges for war crimes against the generals were and are directed at the Generals as individual people the Trial Chamber’s findings in April 2011 was felt by the nation. The latter in particular because the Trial Chamber judgment decided that there was a Joint Criminal Enterprise through which Croatian leadership planned and executed mass expulsion of Serbs from Croatia as part of Operation Storm (1995, military operation that liberated the Serb occupied areas). Main argument for this finding was that there was excessive – indiscriminate – shelling by the Croatian army at the time. The Trial Chamber had decided that only 200 metre error must apply to shelling, and that there were instances during Operation Storm, albeit relatively small in number, where this was considered not to have been the case. This standard in artillery shelling was one that the Trial Chamber came up with and since then many world leading experts have stated that this was unreasonable and impossible to achieve in any military operation of the same kind.

On Tuesday 24 April 2012 the ICTY Appeal Chamber has issued an Addendum to the Scheduling of Appeal Hearing in which it now wants to ensure that, among any other matters, the essential substance of the Appeal – the nitty-gritty – is addressed at the hearing.

In the Addendum the Appeal Chamber “invites the parties, without prejudice to any other matter which they or the Appeals Chamber may wish to address, to discuss, with references to the record:

  1.   Whether the Trial Chamber erred in applying a 200 metre range of error in analyzing the lawfulness of artillery shelling;
  2. Whether the Trial Chamber’s conclusions regarding impact sites should be upheld if its application of the 200 metre range of error is deemed erroneous;
  3. Whether the Trial Chamber’s finding that illegal artillery attacks took place should be upheld if its conclusions with respect to impact sites are deemed erroneous; and
  4. Whether the Trial Chamber’s finding that a Joint Criminal Enterprise existed should be upheld if its finding that legal artillery attacks took place is deemed erroneous”. 

These issues are not only important to the cases of the Croatian Generals but the outcome of the Appeal on them will, undoubtedly, shape and influence the future of military engagement everywhere. Setting impossible standards of acceptable error in shelling, requiring precision in target hitting that is humanly impossible in similar military operations is a matter that will affect all armies. This has been widely put in the media during the past months (including this website) and to the point where internationally acceptable standards of combat must not be such that they create war criminals where there are none. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps.(Syd)

Ante Gotovina’s defence team say Friends of the court applicants are objective and have 290 years of practical military experience

Operation Storm, Croatia, August 1995

Ante Gotovina’s defence team has January 27th filed its Response to the Application and proposed amicus curiae (Friends of the court) brief (filed January 13 by 12 British, Canadian and American experts). The Response requests that ICTY accept the brief as it is an “independent and objective assessment from leading experts in the field.”

“They (the 12 experts) offer an analysis of the Judgment through the lens of 290 years of practical military experience. There is little doubt that their observations are of assistance to the Appeals Chamber and relevant to the issues on appeal, and thus satisfy the criteria for admissability.”

Gotovina defence team recalls that the 12 experts raised the question “whether the Trial Chamber applied an improper burden of proof standard on a military commander.”

Gotovina defence team recalls that the 12 experts are “concerned with the Trial Chamber’s untilisation of a 200 meter radius of error in order to determine which effects were attributable to lawful objects of attack and which were not. In the collective opinion of the Amici, this standard is fundamentally inconsistent with the realities of operational employment of artillery and other indirect fire assets.”

On the matter of Friends of the court impartiality and objectivity placed into doubt by the Prosecutor’s response to the same brief, Gotovina’s defence team points out: “The fact that one of the Applicants (Professor Corn) was called by the Defence as an expert at trial is of no consequence, given that the Prosecution has never suggested either at trial or on appeal that Professor Corn was biased or lacked objectivity.”

Furthemore, Gotovina’s defence team says that it is a fact that the brief of Friends of the court was “endorsed by eleven other prominent individuals, including the former Senior Legal Advisor of the Office of the Prosecutor, which removes any doubt about the objectivity of the proposed Amicus Brief. The reputations of all twelve of these individuals should not be tarnished as biased or lacking in objectivity where no evidence has been offered to support such accusations.”

Given that Judge Theodor Meron has announced the Appeal hearing for this coming European Spring it is to be expected that the Appeals Chamber will soon be delivering its decision as to whether to admit, or not, the new evidence propsed by Gotovina’s defence team. This includes the brief authored by the 12 experts.

Should the ICTY Appeals Chamber decide to accept the new evidence then the coming weeks are promising to unfold with, to many known and felt, but yet unseen and unspoken of aspects of the Croatian Operation Storm that not only positively and deservedly affect Croatia, its past and its future, but also those of all combat and military fields of the world. The standards, the benchmarks of military operations are at stake here, or better said – their justice and justification.

Gotovina’s defence suggests that all new evidence has the capacity of proving that Gotovina has no place among convicted participants of the so-called joint criminal enterprises.

Should the court decide not to accept the new evidence, then the corridors of the world’s knowledge, expertise and military engagement will be filled with dignitaries scratching their heads in rather harrowing questions about what is right and what is not in the application of International Humanitarian Law and the Geneva Convention, when it comes to the battlefields of lawful and righteous pursuits. The ICTY prosecutor says that the Croatian army (Gotovina) issued orders to strike against towns (e.g. Knin), in the liberating Operation Storm. But, what other language do commanders use at times of war? Wren’t there orders to strike against Baghdad, Tripoli, Kabul … and in WWII against Pearl Harbour, Berlin, Hiroshima …

In the case of Gotovina the ICTY Trial Chamber had found that 96% of shelling fell upon lawful military targets. That, in anyone’s book, should say a great deal about the standards and care taken in “Gotovina’s” battlefields. Ina Vukic, Prof.(Zgb); B.A., M.A.Ps. (Syd)

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