The ICTY Appeals Judgement in Prosecutor v Gotovina and Markač: Scratching below the Surface

Alongside the road on the Dalmatian coast, just a few miles away from Dubrovnik, the portrait of a man in uniform, with the Croatian coat of arms in the background, reminds all that
here Colonel General Ante Gotovina is a national hero. Ante Gotovina, former Commander of the Split Military District of the Croatian Army (HV), is famous for having played a crucial role in Operation Storm, a large-scale military operation launched in August 1995 which allowed Croatia to recover control over territories claimed by the Republic of Serbian Krajina.

Many in Croatia were outraged when Ante Gotovina, along with Commander of the Special Police of the Ministry of the Interior Mladen Markač were convicted of crimes against humanity by an ICTY trial chamber in April 2011 for their alleged participation in a criminal campaign aiming at driving Serbs away from the Krajina region through deportation, forcible transfer, shelling of civilians, and other violations of the laws of war. Ante Gotovina and Mladen Markač, who were sentenced to 24 years and 18 years respectively, immediately appealed their conviction.

On Friday 16 November, 2012, in a much awaited verdict, the ICTY Appeals Chamber overturned the trial judgement and acquitted the appellants on all counts. Scenes of jubilations were reported in Zagreb, where General Ante Gotovina was welcomed by thousands of people. Serbia, for its part, denounced the judges’ decision, accusing the Tribunal of “opening old wounds” and showing political bias in its approach to the conflict in the former Yugoslavia. This resentment and bitterness in Serbia adds to a growing rejection of the European Union. Whereas Croatia is on the verge of joining the EU in 2013, Serbia is still lagging behind in the admission process, mainly due to the late arrest of Ratko Mladić.

In this tense political context, it seems that a careful and impartial analysis of the appeals judgement is much needed. It should be emphasised at the outset that the Appeals Chamber’s decision, when compared to the 1,341 pages of the trial judgement, is very short – barely 60 pages. Yet, despite its briefness, the judgement is far from reflecting a consensus on the bench. Two of the five appeals judges have indeed expressed their dissent in the most radical and disapprobative terms. The issues to be discussed below have thus proven highly controversial. Let us try to cautiously navigate through them.

I. Existence of a joint criminal enterprise: the issue of indiscriminate artillery attacks

The Trial Chamber found that a joint criminal enterprise (“JCE”) existed among members of the Croatian political and military leadership with the objective of permanently removing the Serb civilian population from the Krajina region by force or threat of force, which amounted to and involved persecution (deportation, forcible transfer, unlawful attacks against civilians and civilian objects, and discriminatory and restrictive measures), deportation, and forcible transfer.

In the view of the Majority of the Appeals Chamber, “the touchstone of the Trial Chamber’s analysis concerning the existence of a JCE was its conclusion that unlawful artillery attacks targeted civilians and civilian objects in the towns of Knin, Benkovac, Obrovac, and Gračac” (the four towns). In the opinion of the Majority, the indiscriminate character of artillery attacks in the four towns was thus central to the question of whether a JCE existed.

Accordingly, the Majority undertook to review the findings of the Trial Chamber regarding the unlawfulness of the artillery attacks. To determine whether the shelling of the four towns was indiscriminate, the Trial Chamber conducted an analysis of the shelling impacts. It compared those impacts with the location of nearby identified military objectives to assess whether, in light of the accepted margin of error of artillery weapons used by the HV at the time, the shelling was actually directed at lawful targets. For that purpose the Trial Chamber established a 200 metres threshold: all impacts situated within 200 metres of an identified military objective were deemed lawful, while all those falling beyond were considered indiscriminate and hence unlawful. The Trial Chamber also took into consideration the fact that mobile targets, such as enemy vehicles, could also be legitimately shelled. However, to cut a long story short, the Chamber reached the conclusion that in the absence of evidence of so-called targets of opportunity in the four towns, all impacts situated beyond the 200 metres limit constituted indiscriminate attacks.

The 200 metres standard used by the Trial Chamber was unanimously rejected by the Appeals Chamber. All judges agreed that no evidence on the record, including testimonies of several artillery experts, could reasonably lead to the conclusion that 200 metres was an appropriate estimate. So far, so good. Consensus, however, ends here.

The Majority drew the conclusion that the Trial Chamber erred in finding that the artillery attacks were unlawful. As a result, it also concluded that absent unlawful attacks on the Serb civilian population, there was no evidence of a JCE.

This is where things get tricky. Judge Agius and Judge Pocar strongly criticised the Majority for having failed to apply the correct standard of review. Indeed, as the Majority recalled in the beginning of the judgement: “Where the Appeals Chamber finds an error of law in the trial judgement arising from the application of an incorrect legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.” This was not done. The Majority did not define an appropriate standard to assess the lawfulness of the attacks. It simply dismissed the Trial Chamber’s analysis by asserting that it had failed to provide a reasoned opinion to justify the adoption of the 200 metres standard. It then moved to reviewing the remaining evidence on the record to reach the conclusion that they did not demonstrate that the attacks were unlawful.

This line of reasoning was fustigated by Judge Agius and Judge Pocar, for several reasons. Firstly, from a strictly legal perspective it gives the impression that the Majority might have confused an error of law with an error of fact by applying the standard of an error of fact to what it called a “legal error”. Secondly, and more importantly, by dismissing the findings of the Trial Chamber concerning the impact analysis, the Appeals Chamber also declined to review de novo the evidence in that respect. It only considered the remaining evidence, such as an order given by Ante Gotovina to put the four towns under artillery fire. Judge Agius rightly points out that the Appeals Chamber should have reviewed the totality of the evidence, including evidence related to impact sites. Moreover, he criticised the Majority for having artificially compartmentalised the evidence, instead of reviewing all the evidence in its totality.

Thirdly, and consequently, even a cursory scrutiny of the trial judgement actually shows that the impact analysis, albeit significant, was not absolutely central to the determination that the artillery attacks were unlawful. Other evidence also played an important part in the analysis of the Trial Chamber. More weight should thus have been given to those elements.

Another questionable point in the Majority’s reasoning is the premise that the existence of a JCE relied almost entirely on the unlawful character of the attacks. As Judge Pocar pointed out, it is clear from the trial judgement that other elements were taken into consideration, such as discussions held during a high-level political and military meeting, other crimes committed by the HV, and discriminatory policies implemented by the Croatian authorities against the Serb population. The Majority was indeed too prompt in overturning the Trial Chamber’s findings concerning the existence of a JCE and should have dedicated more developments to this crucial issue. Perhaps it should also have responded to another ground of appeal raised by both appellants, namely that they did not participate in or contribute to the JCE.

What a more careful scrutiny of the evidence should or would have revealed, is not a matter for us to discuss. While merit can be found in most of the critique expressed in the dissenting opinions, it does not imply that the findings of the Appeals Chamber regarding the lawfulness of the artillery attacks and the existence of a JCE are necessarily wrong. It is regrettable, however, that it did not bother to elaborate more on these issues.

II. Convictions under alternate forms of liability

Individual criminal responsibility in international criminal law is notoriously far-reaching and diverse. The fact that the appellants were not part of a JCE does not imply that they cannot be held responsible under other forms of liability – in fact, all modes of responsibility provided for in the ICTY Statute remain open.

On several occasions, the ICTY Appeals Chamber re-qualified the findings of a trial chamber concerning individual criminal responsibility, most famously in Krstić where the appellant was found guilty of aiding and abetting genocide instead of participating in a JCE. Entering convictions under a new mode of responsibility could, however, violate the fair trial rights of the accused. At the core of the problem here is the fact that the appeal may turn into a second trial, without the possibility for defendants of appealing new convictions. It is thus important that the Appeals Chamber limit itself to points of fact which were discussed at trial and regarding which findings were made by the Trial Chamber. As Judge Robinson indicated in his separate opinion, the Appeals Chamber does not have the authority to draw inferences from all the evidence on the record. It seems, however, that the Appeals Chamber took for granted that it could, if necessary, review all the evidence, although it declined to do so. This could set a dangerous precedent.

It should be noted that the Trial Chamber, having found the accused guilty under a JCE, did not address other forms of liability. However, in its analysis it did make findings on issues relevant to ancillary and vicarious liability, such as the degree of control exercised by the accused over the HV and the Special Police, the extent of their contribution to the attacks, and the way in which they dealt with reports mentioning crimes committed by the HV. Suffice to say that the Majority concluded that these findings were not sufficient to establish individual criminal responsibility for aiding and abetting or on the basis of superior responsibility. In particular, in the case of Ante Gotovina it criticised the Trial Chamber for having failed to identify in detail the measures which the accused ought to have taken to prevent or punish crimes committed by the HV. As for Mladen Markač, the Majority pointed out that there was no clear finding as to the appellant’s power to discipline members of the Special Police under his control. Moreover, the Majority refused to engage in further fact-finding on the extent of his alleged contribution to the crimes.

In his dissenting opinion, Judge Agius undertook to demonstrate how the findings of the Trial Chambers could in his view support a conviction based on alternate modes of liability. Again, it does not belong to this short post to take sides on this issue.

One may blame the Appeals Chamber for having exceeded its jurisdiction when undertaking a task normally attributed to a trier of fact. The Majority, however, was careful to limit its analysis to issues already addressed by the Trial Chamber, although it did not exclude the possibility of doing otherwise. One may also regret that the Majority did not take the pain to analyse in greater depth the relevant findings of the Trial Chamber. Finally, one may then wonder why the Appeals Chamber did not order a retrial. As Judge Robinson rightly pointed out, Ante Gotovina and Mladen Markač had already spent, respectively, 7 and 8 and a half years in detention. A second trial would take years and would seriously violate their right to a fair and expeditious trial. In any event the ICTY is not in position to embark in lengthy proceedings, as its mandate is due to expire by the end of 2014.

III. Conclusion

The decision of the Appeals Chamber marks the most radical reversal in the ICTY’s history. It rightly overturned an arbitrary standard adopted without further justification by the Trial Chamber to determine that artillery attacks ordered by General Ante Gotovina were unlawful. Regrettably, by attributing a disproportionate significance to this question, it failed to address in sufficient detail equally important issues. It quashed the entire trial judgement and made it fall apart like a house of cards by taking questionable analytical shortcuts. Ante Gotovina and Mladen Markač spent years in detention and faced the stigma of being labelled war criminals to be eventually found not guilty.  They deserved at the very least, a more rigorous judgement. So did the victims of crimes committed by the HV during Operation Storm.

*Image: ICTY Copyright

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