The Gotovina Appeal: What will happen on 16 November?

Hrvatski Vjesnik (Australia) 14 November

The Gotovina Appeal: What will happen on 16 November?

By Brian Gallagher

16 November sees the International Criminal Tribunal for the former Yugoslavia (ICTY) appeal result of Croatian generals Ante Gotovina and Mladen Markac.  Whatever the result, it will be  a major day in Croatian history. It is important to know what they were found guilty of in the first place- and indeed what they were found innocent of –  before considering what may happen.

The convictions were in relation to Croatia’s Operation Storm in 1995, which saw Croatian armed forces – with Washington’s de facto control – liberate large swathes of Croatia and saving Bosnia-Herzegovina from the forces of Milosevic, Karadzic and Mladic. Infamously, the Serbs ordered and organised their own people to leave.  However, the United Nations – which failed to protect Srebrenica’s population from genocide – decided to indict and convict the generals for it. They received 24 and 18 years respectively.

It is has been said that the convictions were against the individuals and not against Croatia.  This is misleading. The judges found many people were involved in a Joint Criminal Enterprise including President Franjo Tudjman and various officials. Importantly, arms of the state such as the armed forces and intelligence services were part of it. Even the Croatian parliament is implicated. Croatia was very much itself judged in this verdict.

The generals were found guilty of a JCE to remove Serbs from Croatia by means of an artillery barrage. The judges infamously established a 200 metre rule in which some 95% or so of shells fell within that range. Those that did not fall within that range  – 5% or so – were considered unlawful and form the basis of the JCE. i.e. the intent was to frighten the Serb population into leaving. If the shelling was legitimate, then there is no JCE and the generals should go free.  The 200 metre rule formulation can be seen at paragraphs 1898 and 1906 of the original trial judgment. The judges describing the artillery attack as central to the JCE can be seen at paragraph 2311.

Significantly, they were not found guilty of superior responsibility, better known as command responsibility, for crimes committed by their troops. The judges did not bother with this or other forms of liability, presumably as there was no evidence. Importantly, the prosecution did not appeal that decision.

The 200M rule was never put to Gotovina and Markac during the trial – now a ground of appeal.   Further, of the shells that fell outside the range, some 50 or so, no-one was killed or injured.  The 200M rule has met with international criticism, in particular from senior US and British generals who consider that the rule is unrealistic and could be used against their own troops. Why then did the judges come up with such rule? The answer may be found in what the generals were not found guilty of, rather than what they were.

It has often been said that Croatian troops conducted a systematic campaign of arson and murder in the liberated territories. The prosecution presented evidence of such crimes during the trial. Many of these crimes the judges could not connect to the Generals.  So much so in fact, that the judges concluded that Tudjman and the others had not intended these alleged crimes in their plan and indeed disapproved of them. The judges made this plain in paragraphs 2313 and 2321. The Croatian police are one of the few arms of the state that had not been named as part of the JCE as seen at paragraph 2320.

Continued talk then of the Croatian state not dealing with crimes, thus leading to the indictments is somewhat ill-informed; this was one of the few areas the judges more or less exonerated Croatia on. It is the JCE artillery attack that everything hinges on.

Gotovina and Markac were found guilty of the crimes anyway due to it being a ‘foreseeable’ consequence of the JCE. If there is no JCE then these crimes cannot be a foreseeable consequence of a JCE that does not exist. i.e. they would then have to be found innocent of those crimes.

What of the oft mentioned transcript of the 31 July 1995 Brioni meeting attended by Tudjman, Gotovina and others? This is used to suggest that JCE members planned to get rid of the Serb population. Here the judges ran into a problem. The transcript as submitted by the prosecution themselves has no comments such us ‘let us remove all Serb civilians from Croatia via artillery’ as one might think. The transcript reads pretty much as one would expect about the expected defeat of the Serb military.

The judges-  at paragraph 2310 – appears to infer that due to the Serb exodus due to artillery attacks than the meeting was actually about deporting Serbs. This is used to interpret comments in the transcript as being sinister.  However, if the artillery attack was legitimate, then it is even more difficult to see the Brioni meeting as actually being about deportation.

With no real evidence available to them, the judges came up with a 200M rule and simply said that any shell that fell outside of it was unlawful and in this case a conspiracy to get rid of the Serb population. Apart from anything else, the burden of proof was reversed – possibilities such as accidental shillings were not considered. The JCE relies on the 200M rule.

The unprecedented international criticism of the judgment – such as in the US Emory Law’s International Humanitarian Law Clinic roundtable on the Gotovina verdict last year – is no doubt the main reason why the appeal has moved, by ICTY standards, so quickly.

The appeal was heard on 14 May 2012 and concentrated on the 200M rule. After this hearing something extraordinary happened. The judges invited an opinion from the prosecution, to which the defence would respond. The judges wanted to know if they found the generals not guilty of the JCE, could the original judgment be used to find them guilty for another mode of liability i.e command responsibility or aiding and abetting.

This was remarkable, as the generals were not found guilty of any modes of liability other than the JCE. The prosecution did not appeal that and therefore the matter was closed. The judges are only supposed to consider what is raised on appeal. Further, the generals would not have proper hearings on the matter.  The defence made clear its opposition to the appeals court’s unprecedented and dubious behavior.

What then, will happen on 16 November? There are three possible options.

First, both men could be released. This would be done largely due to the fact that the 200 metre rule has received international criticism – especially from the US, rather than the proper reason of releasing innocent men. However, It would help bolster the reputation of the ICTY in the long run as it could be claimed that the judges will reverse mistakes rather than cover them up.

Secondly, the judges may simply uphold the verdict. This would be in order not to admit to a major miscarriage of justice. Further, there are the political imperatives of pretending that ‘all sides are equally guilty’. This would appease Belgrade who are currently troublesome on a number of fronts such as Kosovo. It would also provide cover for those in the international community who indulged the Serbs during the war.

The third option would be to somehow reduce the sentence, possibly even releasing the generals. This has been done in the past, perhaps most notably in the case of General Blaskic. This would be in order to try and save face, and to remove an ongoing miscarriage of justice i.e. the pressure might be off if the generals were released or released shortly.

The judgment would no doubt be amended to remove the reliance on the 200M rule in order to keep international military law opinion at bay. The aforementioned incident of the judges asking the prosecution for an opinion on conviction on other grounds is an indicator that that this is an option being considered. Such an option would of course be another miscarriage of justice, but also one that that would likely be apparent only after a couple of days i.e when the international press have moved onto other stories.

The ICTY thought it got away with its original sentence; but then it was looked into and subject to criticism. They would be very foolish to think the issue will go away if they do not find the generals entirely innocent – the controversy could be the real legacy of the ICTY for many years.

Brian Gallagher will cover the verdict at

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