Could the Gotovina judgement be used against the British Army?

Hrvatski Vjesnik (Australia) 10 October 2012

Could the Gotovina judgement be used against the British Army?

Brian Gallagher

The conviction of Croatian Generals Ante Gotovina and Mladen Markac by a UN court has met with unprecedented criticism from top western military officers and legal experts. The criticism is in relation to the now infamous 200-metre rule, upon which the entire conviction of the Generals rests. General Sir Timothy Granville – Chapman, recently retired from the British Army, in his report for the defence effectively says that British Army operations in Afghanistan do not reach the same standard the Croats did in 1995. The implications are clear.

Croatia’s Operation Storm in 1995, run in coordination with the United States and with help from the Bosnian military, liberated large swathes of Croatia and saved Bosnia-Herzegovina. It prevented a Srebrenica style massacre at Bihac, in Bosnia. Milosevic was defeated and brought to the negotiating table. The Serbian leadership ordered and organised their own people to leave Croatia.

The United Nations – who failed to protect Bosnians at Srebrenica – has decreed that in fact it was a Joint Criminal Enterprise (JCE), using arms of the Croatian state to remove Serbs from Croatia. The JCE is based on Croatian artillery attacks during Operation Storm. The judges said that shells that fell outside of 200 metres from a legitimate target were unlawful. In this case, the 5-6% of shells that fell outside of the range – killing and injuring no-one – were designed to force Serbs to leave. Everything relies on this JCE; without it all the charges have to fall as everything else was due to it. The 200-metre rule was constructed by the judges in their decision; it was not mentioned during the trial and thus the generals had no chance to refute it.

General Chapman is an artillery officer of 41 years service in the British Army.  was the commander in chief of deploying the British Army into Iraq and the run-up to Afghanistan. He is currently the Master Gunner St.James Park.

His observations, given within a defence motion earlier this year is of particular interest as they refer to a current conflict: the one in Afghanistan.  In reference to Operation Storm, he says the evidence suggests the Croatians gunners took “particular care”, borne out by the high proportion of rounds that fell within 200M. Given the state of the equipment and so on, he even goes so far as to say that “In many ways such accuracy is remarkable…”

He points out that the judges came to their conclusion regarding the 200–metre rule some 15 years after Operation Storm. There have been advances in artillery, reaching a new level of sophistication. He says: “Despite these advances, artillery remains an area weapon, and in the British case, a gun in Afghanistan typically delivers only 90% of its rounds within a 250 metre box at its operational range.”  Given that the Croats are considered to have had an accuracy of some 95% within 200 metres, then it’s fairly clear that the British troops could well face some from of prosecution, no matter how conscientious they are. Indeed, General Chapman says that, “…the judgement is also extraordinarily unsafe in terms of the precedent it sets in the use of indirect fire.” It could generally, “…bring about serious consequences for commanders concerned.”

General Chapman’s observations are important as it shows how British soldiers currently serving in Afghanistan could be prosecuted if the Gotovina judgement is allowed to stand. Indeed, there has been some concern in the British press over the fairness of the British led Iraq Historic Allegations Team which is investigating UK troops who had served in Iraq. The 200 metre rule could be an easy basis to prosecute British troops – perhaps by prosecutors wishing to make a name for themselves or a desire to show the world how ‘fair’ the British are i.e. political reasons.

Perhaps it could be even used internationally against Britain’s political leadership by UN courts or national courts exercising ‘universal jurisdiction’.  The JCE, which was concocted on the basis of the 200-metre rule, effectively criminalised the Croatian President, ministers, and even drags in the Croatian parliament – as well as the military. Will British Prime Ministers past and present have to consult lawyers on the matter?

What has the ICTY made of General Chapman’s views? On 21 June, the appeals judges rejected the motion that contained his report. The decision has only just been made public. The judges said that the evidence could have been admitted at the original trial.  This is ludicrous. How could the defence have known the judges would come up with a 200-metre rule? Were they supposed to guess? Although the judges have said that their decision on this evidence should not be taken as an indicator of their final decision, it does not inspire confidence.

The appeals verdict will be announced in December. Hopefully, the judges will overturn the verdict in its entirety. If not, aside for the bad news for the Croatian generals, it could be a most unwelcome Christmas present for British troops serving in Afghanistan.

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