Gotovina/Markac: Is the ICTY going to replace one Miscarriage of Justice with Another?

Hrvatski Vjesnik (Australia) published this article by CBR Editor Brian Gallagher on 25 July.

Gotovina/Markac: Is the ICTY going to replace one Miscarriage of Justice with Another?

There has been a remarkable development in the Gotovina and Markac case. On 20 July, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued an order to the prosecution. This order asked the prosecution, that if in the event of the chamber finding the generals not guilty of unlawful artillery attacks or a Joint Criminal Enterprise (JCE), what other modes of liability could they be found guilty for. i.e. superior responsibility – better known as command responsibility – or aiding and abetting. The judges stressed that the order is not expressing any view on the appeal. Whilst this is good news in that it seems the generals may be found innocent of the JCE it appears there may be an effort to wrongly convict them on other grounds.

Aside from being charged with Joint Criminal Enterprise, the generals had been charged with superior responsibility also. The original trial judgement had found them guilty under the JCE mode of liability.  Having done this, the judges expressly stated that they had no need to find make findings on any other mode of liability they were charged with. This means they are not guilty of those forms of liability. Furthermore, the prosecution did not challenge the decision through an immediate appeal. The judgement is geared around the JCE. It can hardly be used to find them guilty for something else.

The appeals chambers should then be really only considering if the judgement as it stands is unsafe. They should not be finding the generals guilty of something the original judges had not, given the prosecutors did not appeal. The judges are effectively saying to the prosecution, ‘Look, we can’t uphold the verdict. What do you think we can find them guilty of instead?’ This is grossly unfair to the defendants, and simply proves to everyone that the ICTY is indeed an unjust court.

Why are the judges doing this? It is possible they consider the verdict to be nonsensical, based as it is on a number of artillery shells the court could not confirm having killed or injured anyone. The judgement claims that that around 4% of shells falling on Knin during Operation Storm was unlawful. The unlawful shelling being intended to remove the Serb population – the basis of the JCE. To get to that limited figure, the judges invented a 200 metre rule. Any shell landing outside of 200M was unlawful – even if it hit nothing. This was not presented to the defendants doing the trial. However, the rule could now be used as a precedent, which is bad news for the militaries of the world – with no doubt the US and UK militaries being particularly concerned. It is a standard too high to achieve. The ruling has been criticised, most notably at a roundtable discussion at the Emory Law’s International Humanitarian Law Clinic in the United States.

This is all very embarrassing, and the judges clearly want to eliminate the precedent. However, the whole judgement rests on the artillery attacks. If they were not unlawful, there is no Joint Criminal Enterprise. The generals then go free. This is also embarrassing for the tribunal, given it was such a major case, and additionally would upset the idea the tribunal is pushing that all sides were equally guilty and so on.  Powerful people in the international community – especially in London, would be displeased if the men went free. Finding them guilty on some other ground is a face-saver.

The hope at the tribunal may be that no one will notice their finding them guilty on something that is not at issue. i.e. they hope that the world’s media will accept whatever spin they are given by the tribunal, disregard complaints as ‘Croatian nationalism’ and move on within hours to other international stories – Syria etc.

However, it would create a far worse precedent. Judges would be free at appeal to disregard not guilty elements of verdicts and impose guilt under other liabilities, even if the prosecution was satisfied with the original verdict. Perhaps it could even be extended to first instance trials also. It would have wider implications than even the discredited 200M rule and would not be ignored any more than the original verdict has been.  Such developments would help discredit international law.

Whilst we cannot know how the judges will rule, it does seem to be that they don’t have confidence in the verdict. Why else issue this order? Rather than replace one miscarriage of justice with another, they should do the right thing and strike down the original verdict entirely and free the men. No doubt some in the Office of the Prosecutor, London, Belgrade and elsewhere will be annoyed. However, international law will benefit by not having the ongoing stain of an obvious miscarriage of justice.

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