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)

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)

ICTY in the Hague – just before Christmas 2011 (Goran Hadzic trial date set) (General Ante Gotovina appeal road strewn with more unjust obstacles)

Goran Hadzic, President of the Government of the self-proclaimed Serbian Autonomous District Slavonia, Baranja and Western Srem (SAO SBWS) and subsequently President of the Republic of Serbian Krajina (RSK) in Croatia 1991-1993 was arrested (July 20011) in Serbia after seven years on the run and in hiding.

 Indicted for war crimes against Croatian people: persecutions on political, racial or religious grounds; extermination; murder; imprisonment; torture; inhumane acts; deportation and forcible transfer; cruel treatment; wanton destruction of villages, or devastation not justified by military necessity; destruction or wilful damage done to institutions dedicated to education and religion; and plunder of public or private property.

The indictment alleges that Hadžić participated in a joint criminal enterprise (JCE) (headed by the president of Serbia at the time, Slobodan Milosevic) as a co-perpetrator.

The purpose of the joint criminal enterprise was the permanent forcible removal of a majority of the Croat and other non-Serb population from a large part of the Republic of Croatia in order to make it part of a new Serb-dominated state. The areas in question included those regions that were referred to by Serb authorities as the “SAO Krajina,” the “SAO Western Slavonia,” and the SAO SBWS. By 26 February 1992, all of these areas had become part of the self-proclaimed RSK.

It is alleged by ICTY that the joint criminal enterprise came into existence no later than 1 April 1991, and continued until at least 31 December 1995.

Hadžić is charged on the basis of individual criminal responsibility (Article 7(1)) and superior criminal responsibility (Article 7(3) of the Statute of the Tribunal)…” http://www.icty.org/x/cases/hadzic/cis/en/cis_hadzic_en.pdf

His trial will start October 16, 2012, the International Criminal Tribunal for the former Yugoslavia as announced Friday, 16 December 2011. Pre-Trial Judge Guy Delvoie made the decision after advising the prosecution and defence of the date. http://www.icty.org/x/cases/hadzic/tdec/en/111216.pdf

The indictment above unequivocally points to the absolute need of Croatians to defend and liberate their lives and territory. Hence, Operation Storm in August 1995.

This is where Generals Ante Gotovina and Mladen Markac come in – to any peace-loving and freedom-minded person they are heroes to the multitude of people whose lives they saved, whose homes they’ve restored.

Although convicted for war crimes by the ICTY in April 2011, their convictions are on Appeal.

And in light of this the Croatian World Congress (HSK) has printed 100,000 Christmas cards they plan to send to Croatian generals detained at the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague.

The cards will be distributed to Croatians living in Germany, Switzerland, Austria, France, Sweden and Netherlands who want to send Christmas greetings to general Ante Gotovina and other Hague inmates.

The Christmas cards have a pre-printed statement but also room for a personal message, HSK Secretary Danijel Lucic says.

Christmas Cards for Generals Gotovina and Markac

“As we celebrate Christ’s birth and Christmas, our thoughts are with those who made free Croatia possible. We are certain that the post box in The Hague will be overflowing with greetings from around the world and we are certain that the generals will read each individual message,” Lucic says. http://www.croatiantimes.com/news/General_News/2011-12-16/23937/_Some_100,000_Christmas_cards_for_Croatian_generals_in_the_Hague

Of course the Appeal at the ICTY is still revolving around General Gotovina’s motions to introduce new evidence (from Serbia) which could demonstrate that the masses of Serbs who fled Croatia at the finish of Operation Storm in August 1995, left of their own volition or at request of their leaders, and were not expelled as the ICTY conviction ruled. Certainly it seems that the ICTY tries hard to avoid sending a subpoena or something like it to Serbia for the documents by way of a court order.   http://inavukic.com/2011/11/20/general-ante-gotovina-and-calvary-at-icty-in-the-hague/

In its latest filing to the Appeals Chamber of the Hague war crimes tribunal, defence counsel for Croatian General Ante Gotovina says that the Appeals Chamber should admit 25 additional documents because they constitute new evidence that would have changed the trial court ruling had they been available to the court, thus dismissing the prosecution’s arguments opposing the admission of new evidence, the Hague tribunal said on Monday.

The defence team representing Gotovina before (ICTY) on November 4 filed, again, a motion to introduce new evidence in the appeal, including the minutes of meetings of the Serbian Supreme Defence Council held in Belgrade during a Croatian military offensive known as Operation Storm in the summer of 1995, U.S. diplomatic dispatches released by the whistle-blower website WikiLeaks, and expert reports by US officers.

“All of the Category I documents could have impacted the verdict because they establish not only that the evacuation order (from the rebel Serb leadership) was the primary and direct cause of departure, but also because they establish that the Croatian Army (HV) artillery attack was not,” the defence says in its filing.

The trial chamber established the expulsion of the Serb population committed through random artillery attacks that sent civilians fleeing, thus dismissing the defence’s evidence that the rebel Serb authorities had called for the evacuation of civilians and that the artillery attacks were directed against military targets. http://daily.tportal.hr/166064/Gotovina-s-defence-again-urges-admission-of-new-evidence.html

Furthermore, Gotovina’s defence is again seeking the so-called “Artillery diaries” from the United Nations that would demonstrate the nature and intensity of artillery attacks referred to in above paragraph. http://www.sense-agency.com/icty/gotovina-seeks-%E2%80%98artillery-logs%E2%80%99-from-un.29.html?cat_id=1&news_id=13465

Let’s watch and see whether the ICTY will allow the new evidence into court which could render the original conviction unsafe, overturn it etc., as far as the joint criminal enterprise for alleged expulsion of Serbs is concerned, anyway.

ICTY was established in accordance with Chapter VII of UN Charter.

Article 51 of that Charter reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”. http://www.un.org/en/documents/charter/chapter7.shtml

The UN forces were present in Croatia when Operation Storm occurred.

So I ask myself: why is it so difficult for the ICTY to allow new evidence into the Gotovina appeal? Why is it so hard to get the documents from Serbia and the UN? This is simply unjust.

Whatever happens Generals Ante Gotovina and Mladen Markac have earned the 100,000 and more of Christmas cards from the people they’ve saved and from a grateful nation which they led into liberty! Ina Vukic, Prof.(Zgb), B.A.,M.A.Ps.(Syd)

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