Gotovina case - an unjust charge or a deliberately erroneous judgment of the international criminal tribunal for the former Yugoslavia?

Author:Liviu Alexandru Lascu
Position:Ph.D., Lecturer, AGORA University, Oradea, Romania
Pages:79-95
SUMMARY

This article aims to analyze a recent and controversial decision of the Appeals Chamber of the International Criminal Tribunal for Former Yugoslavia, on November 16, 2012, which acquitted two Croatian generals, famous personalities of the civil war in the former Yugoslavia, who had been tried for perpetrating several war crimes and crimes against humanity by participating to a joint criminal enterprise and for their responsibility as commanders for the criminal acts perpetrated by their subordinates. The Trial Chamber’s judgment which condemned these defendants was entirely overturned in a very surprising way, through Appeals Chamber doing a very original interpretation of some legal concepts on which, there was already crystallized a constant jurisprudence of this court. Keywords: public law, joint criminal enterprise, war crimes, crimes against humanity, the superiors’ responsibility

 
CONTENT
Gotovina case – an unjust charge or a deliberately erroneous judgment … 79
FOREIGN COURT JURISPRUDENCE
GOTOVINA CASE - AN UNJUST CHARGE OR A
DELIBERATELY ERRONEOUS JUDGMENT OF THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA?
Liviu Alexandru LASCU
Ph.D., Lecturer,
AGORA University, Oradea, Romania
Abstract
This article aims to analyze a recent and controversial decision of the Appeals Chamber of the
International Criminal Tribunal for Former Yugoslavia, on November 16, 2012, which acquitted two
Croatian generals, famous personalities of the civil war in the former Yugoslavia, who had been tried
for perpetrating several war crimes and crimes against humanity by participating to a joint criminal
enterprise and for their responsibility as commanders for the criminal acts perpetrated by their
subordinates. The Trial Chamber’s judgment which condemned these defendants was entirely
overturned in a very surprising way, through Appeals Chamber doing a very original interpretation
of some legal concepts on which, there was already crystallized a constant jurisprudence of this court.
Keywords: public law, joint criminal enterprise, war crimes, crimes against humanity, the
superiors’ responsibility.
1. Introductory remarks
On the morning of November 16, 2012, the day on which a decision have been
expected in the Case no. IT-06-90-A, Case Gotovina et al., the International Criminal
Tribunal for the former Yugoslavia (ICTY) had to face an unprecedented situation.
In that case, the two accused were Lieutenant-General Ante Gotovina, a former
commander of the Split Military District of the Croatian Army and General-Colonel
Mladen Markać, former Deputy of the Croatian Interior Minister and head of the
Croatian special police units. The two generals were accused by the ICTY
Prosecutor of perpetrating three crimes against humanity and two war crimes against
E-mail: liviu.lascu@univagora.ro; liviulascu@yahoo.com. The study has been published, in
Romanian language, in DREPTUL, no. 7/2013, p. 258-274.
Law Review vol. IV, issue 2, July-December 2014, p. 79-95
80 LIVIU ALEXANDRU LASCU
the Serb civilians in the so-called Separatist Republic of Krajina (RSK), during the
military operation called “Operation Storm” (in Croatian: Operacija Oluja) from 4-7
August 1995.
Since the evening of the previews day, Ban Jelaić central square in Zagreb
gathered tens of thousands people wearing Croatian flags, Croatian military
uniforms, showing cardboards with slogans like: “Our generals are heroes, not war
criminals”, “Croatia’s honor” or paintings of the two generals, and they were
shouting slogans in supporting the two defendants.
On a giant screen installed in the market, as when the Croatian national team
was playing an important football match, the demonstrators were waiting to watch
live the verdict of the Appeals Chamber of ICTY, verdict scheduled to be delivered
on November 16, around 9.00. During the night of November 15/16, in the most of
Croatian Catholic churches, the priests held religious services for asking the deity’s
support for their national heroes and the hundreds of thousands who participated,
lit candles and prayed for their acquittal.
TV reporters from several countries have expressed on media countless
messages of support of the two accused from the former comrades in arms,
veterans, associations, politicians and ordinary citizens1.
Practically, it is impossible to know whether this manifestation of sympathy
for some ICTY accused people, unprecedented in the history of nearly twenty
years of this court, mattered or not the final outcome, but in fact, the “supporters”
who gathered in Zagreb and other Croatian cities have recorded a victory with
“the score of 3-2". This was the outcome of the panel’s vote who decided the two
accused’ acquittal for all charges. Thus, the impressive show offered by the
Croatian supporters “in the stands” was compensated “on the playing field" by the
ICTY judges, because never in the history of the court ever mentioned that some
accused convicted by the Trial Chamber to a punishment of 24 years in prison
(accused Gotovina), respectively, 18 years in prison (accused Markać), both for
committing no less than nine crimes, to be merely acquitted on all charges by the
Appeals Chamber.
Neither in ICTY jurisprudence happened that some dissenting opinions2 of the
Appeals Chamber’s judges to express a disapproval of the majority’s decision and
of the reason for taking it, to be done in such an absolute and vehement manner as
did the judges Fausto Pocar (Italy) and Carmel Agius (Malta) in this case.
1 See, B. Waterfield, Croatian hero Ante Gotovina acquitted of war crimes, in “The Telegraph”, 16
November 2012, available on http://www.telegraph.co.uk/news/worldnews/europe/croatia/
9682855/ Croatian-hero-Ante-Gotovina-acquitted-of-war-crimes.html.
2 Judgment, Gotovina and Markac, (IT-06-90-A), Appeals Chamber, 16 November 2012, Dissenting
Opinion of Judge Carmel Agius, paragraph 5 and Dissenting Opinion of Judge Fausto Pocar,
paragraph 39, available on http://www.icty.org/x/cases/gotovina/acjug/en/121116_
judgement.pdf.
Gotovina case – an unjust charge or a deliberately erroneous judgment … 81
For these reasons, but not only, the mentioned above case arouse a wave of
criticism and controversial debate, for which, aside from the emotional impact it
had on the Croatian society, we intend to go beyond the appearances of this case
and to present the legal aspects invoked in supporting the famous decision of
acquittal on November 16, 2012.
2. About “Operation Storm” and the premises which led to the charges
For a more accurate understanding of the events that occasioned the
perpetration of the crimes brought before ICTY, a brief overview of the political
and military situation of the conflict in the former Yugoslavia which triggered
“Operation Storm”, we think, is necessary.
Since the beginning of the year 1990, when the Socialist Republic of Croatia, as
a constituent state of the Socialist Federal Republic of Yugoslavia showed for first
time its intention to declare independence, the Serb population living in this
Yugoslav state, having a percentage of approximately 12%, strongly reacted
against this approach, warning that if Croatia decides to leave the Yugoslav
federation, the Serbs living in the regions Krajina, Eastern Slavonia, Baranja and
Western Syrmia (on the current territory of Croatia) will exercise their right to
self-determination and the lands they live either will join Yugoslavia, or will
declare as independent states.
These efforts of the ethnic Serbs were strongly encouraged by the Yugoslav
political leadership of Belgrade at the time, especially by Slobodan Milošević and
they were also relied on the military support that would be offered by the
Yugoslav People's Army, JNA (Narodna Jugoslovenska Armija) consisting
predominantly in ethnic Serbs and having a lot of units placed in all the Yugoslav
republics.
Since the alternative plan of Yugoslavia’s reorganization in a confederation of
independent states failed in the spring of 1991 following a referendum, the
nationalist parties of the Yugoslav socialist republics of Slovenia, Croatia and
Bosnia-Herzegovina which won the elections, have shown clearly their intention to
be out of the Yugoslav federation, and, following this aim, on June 25, 1991
Slovenia and Croatia formally declared their independence.
The former Yugoslav federal socialist state presented as an ethnic and religious
mosaic, which is why, the existing tensions between the majority population in
states that have declared independence and the Serb communities living in these
countries, exponentially increased. Except for Slovenia which presented itself
relatively homogeneous in terms of ethnic composition, in the other new republics,
Croatia and Bosnia-Herzegovina, the tensions escalated into lasting armed
conflicts.
As JNA intervened in support of the Serbian communities, asserting a
protection of them from the abuses of the new authorities, some armed clashes
82 LIVIU ALEXANDRU LASCU
took place in a very imbalanced manner. At the time, JNA was one of the best
equipped and trained armies in Europe which had heavy weapons, tanks, artillery,
aviation and radars while the Croatian and the Bosnian states had only some soft
infantry weapons and a number of small caliber artillery. Therefore, in areas
predominantly inhabited by Serbs, after bloody fighting, the police and military
forces of the newly created states were defeated. The Serb communities created
some enclaves having their own authorities and proclaimed themselves as
independent states.3
In Croatia, in early 1992, had been formed the so-called Republic of Serbian
Krajina (Republika Srpska Krajina), which was located in the Northern Dalmatia,
including the territories of the north Adriatic Sea, along the western border of
Bosnia-Herzegovina, having an area of about 10,000 square kilometers, with the
capital in the city of Knin and, practically, splitting the coastline of Croatia in two.
This self-proclaimed Serbian republic kept also the territories inhabited by
Serbs in eastern Croatia, located along the Danube, near to the border with Serbia,
in the provinces of Eastern Slavonia, Baranja and Western Syrmia. Initially, the
Republic of Serbian Krajina (RSK) intended to be part of what remained of the
Yugoslav state, but due to political events of early 1992, this was not possible and
chose to totally separate from the Croatian state and to build up its own state, even
if, officially, it has never been internationally recognized4.
During the course of year 1991 and by February 1992, from the RSK territory,
J.N.A, with the military and paramilitary units, consisting of Serbian volunteers
from different parts of Yugoslavia, several times attacked the neighboring Croatian
an Bosnian towns inhabited mostly by Croatian and Muslim population, so that
RSK had at the time almost a third of the current territory of Croatia, an area of
about 17,000 square kilometers.
In parallel, the RSK Serbian authorities conducted a comprehensive and
systematic policy of ethnic cleansing of the controlled territories, consisting of
armed attacks, murder, torture, persecution and discrimination against Croatian
and other non-Serb civilians. Following this policy, around 80,000 non-Serbs
civilians fled the R.S.K., most of them in Croatia5.
In early 1992, following a ceasefire agreement signed by the Yugoslav
President Slobodan Milošević and Croatian President Franjo Tuman, under the
auspices of the UN, the armed conflict in the area has been frozen. Belligerents
were forced to hand over their heavy infantry and artillery weapons, J.N.A. was to
withdraw, R.S.K. authorities pledged to allow the displaced non-Serbian people to
return home and RSK territory were to be declared a “demilitarized area” under
3 Judgment, Martić, (IT-95-11-T), Trial Chamber, paragraph 132-160, available on
http://www.icty.org/x/cases/martic /tjug/en/070612.pdf.
4 Idem
5 Idem
Gotovina case – an unjust charge or a deliberately erroneous judgment … 83
the UN protection. According to the agreement, in this region, some UN
peacekeeping troops would arrive.
Basically, after this agreement, the armed conflict in this area ceased over the
next three years, but the commitments of the parties have not been kept. Even
though J.N.A. was withdrawn, it left to the newly founded army of R.S.K., most of
its weapons, facilities, including some staff. R.S.K. authorities not only did not keep
their promise to allow the return of Croatian refugees to their homes but on the
contrary, it continued the policy of ethnic cleansing in the region and an
impressive number of non-Serb civilians from the region, amounting tens of
thousands, fled homes in the following years, because the systematic persecutions
and reprisals from the Serbian authorities.
Given the above mentioned situation, in early 1995, while a third of Croatia's
territory was in the hands of the Serb separatists and its attempts to regain through
peaceful negotiations failed, the Croatian government, secretly, planned a major
military offensive for territorial reunification6. By doing this plan, Croatian
government assumed a certain risk of affecting its international reputation and
credibility because, the military operations were not agreed, at all, by the EU and
UN which were vehemently opposed to any escalation of the armed conflict in the
former Yugoslavia, already crushed by the war and humanitarian disasters.
Nevertheless, Croatia has benefited from a discrete but consistent U.S. support7 in
doing this operation. In the summer of 1995, after an intensive program of training
and endowment, the Croatian Army reached an entirely different scale than in
6 Judgement, Gotovina, Markac and Cermac (IT-06-90-T), Trial Chamber, 15 April, 2011, p. 993-1006,
available on http://www.icty.org/x/cases/gotovina/tjug/en/110415_judgement_vol2.pdf
7 Faced with a reluctant attitude with numerous denials and delays of the Serbs to all the
previews meetings aiming the settlement of the peace agreement in the former Yugoslavia, the U.S.
government concluded that Slobodan Milošević and all the Serbian military factions engaged in the
conflict (obviously under his overwhelming influence) would not accept compromises and not sign a
peace treaty, as long as they had a military advantage on the battlefield. The American decision
makers have realized that the genuine concern of the Serbs for sitting at the table of negotiations arises
only after their supremacy in conflict will be about to be lost. As such, a number of actions aiming to
rebalance the military situation in the conflict area were taken by the U.S. administration. In
November 1994, the U.S. unilaterally abandoned the observance of the UN embargo on arms delivery
to the parties involved in the conflict in Bosnia-Herzegovina. This allowed the Croatian Army to get
arms and military equipment, as the most part of the itinerary for providing arms to the Muslim-
Croat army in Bosnia and Herzegovina (ABiH) crossed the territory of Croatia. They allowed access to
the Croatian military intelligence to have the satellite data and information that U.S. army had on the
strategic positions of Serbian troops. Moreover, under the pretext of preparing the Croatian military
contingent to participate in the program of the NATO Partnership for Peace, an American mission
comprising military specialists - Military Professional Resources Incorporated (MPRI) arrived in
Croatia in early January 1995 to advise the Croatian military commanders during the four months to
April 1995. See D. Isenberg, MPRI Couldn't Read Minds: Let's Sue Them, published in “Huffington
Post”, August 19th, 2010, available on http://www.huffingtonpost.com/david-isenberg/mpri-
couldnt-read-minds-l_b_688000.html.
84 LIVIU ALEXANDRU LASCU
1991 and was strongly determined to regain its territories in the hands of Serb
separatists, especially because the international framework was favorable8.
During a meeting with the major Croatian political and military leaders on
July 31st, 1995, in the Croatian island Brijuni, it was decided that in the coming
days, the Croatian Army, supported by special police units, will trigger a major
and wide spread attack toward East, with a front covering 630 kilometers, the
entire border between Croatia and the R.S.K.
A very important aspect from the perspective of the ICTY case we refer to, is
the fact that among the discussions within the Brijuni meeting, the Croatian
political and military leaders agreed that the planed military operation will be
undertaken in such a way as to intimidate the civilian population and to enforce
the great majority of the Serbs to fled the region.
On the morning of August 4th, at 5:00 AM, the Croatian Army started a large-
scale ground attack, called “Operation Storm”, involving the military troops of five
army corps, of estimated 130,000 soldiers, well equipped and trained, which were
to face the resistance of around 50,000 Serb soldiers, many of them being poor
trained recruits, with a pronounced obsolescence due to the isolation and the
shortage of food and equipment.
The offensive was preceded by a violent artillery shelling and raids of the
Croatian military aircrafts which bombed the most important centers of command,
radar stations, warehouses and other logistics facilities of the R.S.K. Army.
Afterward, a massive ground attack was triggered, so that, after only three days,
except for some isolated points of resistance, the whole Krajina region was
released. General Ante Gotovina, the commander of the Split Military District, was
the leader of the operation in the sector named “Storm 1”, acting on the Southern
flank of the front and having the mission to release the capital of Knin and its
surroundings. General Mladen Marka9, having under his command the Croatian
special police units, operated on the Northern flank of the army corps commanded
8 In July 1995, the Serbs were subjected to a strong wave of criticism and disapproval of the
international community because in mid-July 1995, they attacked some demilitarized areas, the UN
protected enclaves of Srebrenica and Zepa of the Eastern Bosnia and then committed the famous
massacre of about 6,000 Muslim prisoners and civilian men. Moreover, they continued the attack on
the enclave of Bihać in Western Bosnia, another demilitarized area and placed under UN protection.
For this reason and aiming to stop these operations, in flagrant contradiction with the Bosnian Serbs’
assumed obligations, the U.S. Air Force that supported the UN peacekeeping forces, conducted some
air raids and shelled the Serbian positions, destroying a large part of their command centers, radar
systems and communications. Taking advantage of this situation and due the fact that many of the
armed forces of the RSK were concentrated in North to give military support to Bosnian Serb military
in its siege of Bihac enclave, on 28 and 29 July 1995 by fast and surprising military operations, the
Croatian army regained a particularly important area in the Southern part of the RSK, located
between the cities Bosansko - Grahovo and Glamoc. In this way, the Croatian Army get an extremely
important military advantage by, practically isolating the capital Knin and its surroundings from the
rest of the RSK territory. See C. Ingrao, T.A. Emmert, Confronting the Yugoslav controversi es, Purdue
University Press, West Lafayette, Indiana, U.S.A., 2009, p. 232-270.
Gotovina case – an unjust charge or a deliberately erroneous judgment … 85
by General Ante Gotovina, with the mission to release the mountainous area of
Velebit.
The successful completion of the Croatian military operation triggered in
Croatia a wave of euphoria. The Croatian soldiers were considered national heroes
and August 4, became a national holiday. The Western political leaders have not
looked with great enthusiasm the Croatian military operation because it attacked
an area that had been declared as demilitarized and under the UN protection9 as
well as because the observers and eyewitness of the conflict, reported hundreds of
cases of ill-treatment and executions of the remaining Serb population in the
region, in the coming days after the start of Operation Storm. Most of the killed
people were elderly who were not able to fled the region and after how looked
many of their corpses, it became clear that before being killed, these people had
been subjected to degrading treatment and humiliation, in order to create
suffering.
The most painful aspect of this operation has been, however, the impressive
number of refugees, about 200,000, almost the entire Serb population of R.S.K.
who, before and during the shelling and the ground invasion, left their homes and
fled in Bosnia-Herzegovina and Serbia10. Operation Storm would cause, according
to some analysts, the largest number of refugees registered in Europe after the end
9 The Croatian offensive, Operation Storm caused losses not only to the Serbs but also the killing
of four soldiers from UNPROFOR peacekeeping forces and the destruction of their logistic
facilities. The worst aspect, according to the Western governments constituted, however, the fact their
previous efforts to peacefully settle the conflict in the Western Balkans would be thwarted. This
operation led to the escalation of armed conflicts after this offensive because a significant part of the
Croatian Army, including the corps under the command of gen. Ante Gotovina, crossed the territory
of Bosnia-Herzegovina in order to support the military operations of the Croat-Muslim Army
(A.Bi.H). No less true is the fact, the Bosnian Serbs Army (VRS) lost, thus, its most strategic positions
in Bosnia-Herzegovina and the threat of losing others became a realistic scenario. This situation made
possible a genuine concern of them to sit at the table of negotiations and finally to conclude the
Dayton Peace, in U.S., in December 1995, which practically ended the war in Croatia and Bosnia-
Herzegovina.
10 Faced with an impressive number of Serb refugees from the conflict areas in August 1995, the
Yugoslav government has discouraged their cantonment in so large numbers in the capital Belgrade
and urged them to settle in Kosovo and Vojvodina, the two regions where there were a large number
of non-Serb residents. The refugees have not agreed to settle in Kosovo, knowing the conflict in the
area between the majority population of Albanians and the Serbs, but a significant part of them settled
in Novi Sad, the capital of Vojvodina and in the neighboring towns. Some international humanitarian
organizations reported incredible actions in the sense that some refugees from Krajina, encouraged by
the local authorities, proceeded to forced eviction of ethnic Croats in order to settle in their homes.
Other such aspects, as result of the massive influx of Serb refugees, happened in the areas of Bosnia
and Herzegovina controlled by Bosnian Serbs, where, virtually all non-Serbian ethnic locals who
somehow resisted the pressure in the previous years and did not leave their homes, on this occasion
were forcibly evicted to make room in their homes for the Serb refugees coming from Krajina. An
estimated 22,000 refugees have fled Bosnia-Herzegovina and moved to Croatia at the time. See
J. Steele, Break the cycle of abuse, in “The Guardian”, 14 June 1999, available on http://www.guardian.
co.uk /world/1999/jun/14/balkans11.
86 LIVIU ALEXANDRU LASCU
of the Second World War11. For all the reasons outlined above, the ICTY Prosecutor
tried to identify the main culprits and to proceed to prosecution and judgment.
3. The prosecution and the trial judgment in the case no. IT-06-90-T
In the period following the year 2000, the investigations undertaken by the
ICTY Prosecutor, Carla del Ponte, unveiled, according to her conclusions, that the
Operation Storm as it was planned during the Brijuni meeting and afterward
materialized in the field, was, beyond its military nature, a genuine joint criminal
enterprise12 of the key political and military leaders of Croatia, aiming at the forced
deportation of the Serbian population of the former RSK, which is a crime according
to the ICTY Statute13. The investigations have been conducted against the Croatian
President, Franjo Tuman, the Defense Minister, Gojko Šušak, the Chief of Staff of
the Croatian Army, General Janko Bobetko, the Chief of Croatian Army Staff,
Zvonimir Červenko and other army and police commanders like Ante Gotovina,
Ivan Čermak and Mladen Marka. Of these above mentioned accused, only the last
three generals were prosecuted, as President Tuman and Minister Šušak died
before the indictment had been concluded and General Bobetko died shortly after
the indictment has been submitted to the Trial Chamber.
As for General Ivan Čermak, the court disjoined the case and acquitted him
with the motivation that the accused did not actually participate to the military
operations at the time but was appointed as military commander of the Knin
garrison after the end of the operation and its mission was rather in the field of
logistic and to restore the public order in the city.
In what regarding General Ante Gotovina, the ICTY Prosecutor concluded an
indictment on June 8, 2001. After several adjustments through amendments, some
of the charges were withdrawn. On July 14, 2006, the two cases, Gotovina Case and
Markać Case (in this case, the indictment was concluded on February 24, 2004, on
the relative the same charges like in the Gotovina Case) were joined as the alleged
crimes to both accused were similar and closely related to the Operation Storm. On
February 14, 2008 the final indictment, after being improved with some
amendments and confirmed, has been submitted to the Trial Chamber. The
charges for the both accused were identical: persecution, deportation, inhumane acts
consisting of forced deportation (as crimes against humanity previewed by Article 5 of
the ICTY Statute), looting and destruction of private property, of the villages and towns,
their devastation which was not justified by military necessity (as violations of the laws of
war, according to Article 3 of the ICTY Statute), murder (as a war crime as well as a
11 The statement belongs to Carl Bildt, the E.U. peace negotiator in the civil war on the territory
of former Yugoslavia. See D. Pearl, At home in the world, Helene Cooper Publishing House, New York,
U.S.A., 2002, p. 224
12 See, K. Ambos, Joint Criminal Enterprise and Command Responsibility, in “Journal of International
Criminal Justice”, no. 5/2007, p. 159-183.
13 Judgment, Gotovina and Markac (IT-06-90-A), Appeals Chamber, 16 November 2012, p. 983-986.
Gotovina case – an unjust charge or a deliberately erroneous judgment … 87
crime against humanity, according to Article 3 and 5 of the ICTY Statute), inhuman
acts (as a crime against humanity according to the Article 5 of the ICTY Statute). In
their essence, all these allegations concerned the participation of the two Croatian
generals to a joint criminal enterprise that sought and achieved the forced
deportation of more than 90,000 Serb civilians out of the territory of the former
R.S.K. as well as their superior responsibility for the passive attitude towards the
crimes perpetrated by their subordinates amounting the killing of 324 Serb
civilians and prisoners of war during and in the aftermath of the Operation Storm.
It should be mentioned that in the case of General Mladen Markać, there were
no problems regarding the accused cooperation with ICTY, as he willingly
surrendered to the Croatian national authorities in March 2004, shortly after the
confirmation of the indictment and arrest warrant was issued on his name.
Unlikely, General Ante Gotovina avoided his prosecution and managed to hide
from the national and international authorities for a long time. On his name, ICTY
issued an arrest warrant on July 26, 20001 and even to his capture there were
involved the national police, INTERPOL, the Croatian secret services and others of
some West-European countries, he managed to evade more than 4 years, until the
end of 2005, when, on December 7, he was taken by the Spanish police from the
hotel of Playa de Las Americas, Tenerife14. On December 12, 2005, General Ante
Gotovina has been handed over to the Hague and appeared before the Trial
Chamber where he pleaded „not guilty” "on all charges, saying to the judges that
„… I’m not the man described in each and every count”15.
The judgment of the Trial Chamber began on March 11th, 2008 and lasted until
1st of September 2010, when the parties presented their final conclusions. Based on
evidences, the Trial Chamber determined, first, that the facts related to the case
have been perpetrated during an international armed conflict, a very important
aspect in terms of legal qualification of the facts. The Court also concluded that
during the military operations, in August 4 to 7, 1995 and in the weeks that
followed, the military Croatian forces and the Croatian special police perpetrated
crimes of murder, inhumane treatment, destruction, plunder, persecution and forced
deportation against the Serb population in the Krajina region.
In what concerning the participation of the two accused to the perpetration of
the above mentioned crimes, the Trial Chamber concluded that they were
members of a joint criminal enterprise with the objective of permanently removing
the majority of the Serb civilian population from the Krajina region. In assessing
whether there was a joint criminal enterprise, the Court thoroughly reviewed the
14 See, V. Perić, Croatians Rally Behind 'National Hero' after General Is Snatched, in ”The
Independent”, December 12, 2005, available on http://www.questia.com/read/1P2-1988662/
croatians-rally-behind-national-hero-after-general.
15 See, War crimes accused says he's 'not the man' in “The Scotsman”, December 13, 2005, available
on http://www.scotsman.com/news/international/war-crimes-accused-says-he-s-not-the-man-1-
1113051.
88 LIVIU ALEXANDRU LASCU
details of the discussions within Brijuni meeting on July 31, 199516, chaired by the
Croatian president Franjo Tu:man and where, together with the two accused,
participated, also, some important political and military Croatian leaders. The
participants discussed about the importance of Serbs to leave the region Krajina as
a result of “Operation Storm”. It was recorded on this occasion the intervention of
the accused Gotovina who, addressing to President Tu:man, said: “A large number
of civilians are already evacuating Knin and heading towards Banja Luka and Belgrade.
That means that if we continue this pressure, probably for some time to come, there won’t
be so many civilians just those who have to stay, who have no possibility of leaving"17.
Taking into account the discussions at other meetings of the senior Croatian
officials at the time, as well as their public statements, the Trial Chamber
considered that, taken in account what happened to the Serb civilians in Krajina in
the immediate aftermath of the Operation Storm, these Croatian leaders had a
common goal of permanent removal of the great majority of the Serb population in
the area18. They decided that this common goal should be achieved by force or threat
of force, namely the deportation, transfer, persecution, imposing restrictions and
discriminatory measures, unlawful armed attacks against the population and the
civilian objects.19
The Court concluded that General Ante Gotovina was, without any doubt, a
member of the joint criminal enterprise as he knew its common goal, had assumed it
and had a significant contribution to its implementation. The findings of the Court
regarding the existence of the accused Gotovina’s significant contributions to the
implementation of the common goal was based on evidence that demonstrated the
special role he played in planning and preparing the “Operation Storm” which
included unlawful attacks on some objectives, militarily unjustified, and because
he did not take any action, as a commander, to prevent and punish his
subordinates who perpetrated crimes against the Serb civilians. This deliberate
non-involvement of the accused, according to the findings of the court, has
16 See footnote no. 7.
17 Judgment, Gotovina, Markac and Cermac (IT-06-90-T), Trial Chamber, 15 April, 2011, paragraph
2304
18 The evidentiary material shows that the Croatian political and military leaders were aware of
the repercussions internationally that would have caused a forced deportation of the entire Serb
population from the Krajina region and therefore have set the target for a minimum of Serbs to
remain there. See, ibidem, paragraph 2314.
19 From the evidence, the Trial Chamber concluded that political and military leaders who
attended the conference in Brijuni on July 31, 1995, decided that the entire urban area of the city of
Knin, Benkovac, Obrovac and Gra9ac be shelled on the morning of August 4, 1995, and according to
General Gotovina’s order, it was performed on this way, non-discriminatory, without distinguishing
between legitimate military targets and civilian targets, for which the court determined that at least
some of the attacks directed against the above mentioned cities, were illegal. Over 20,000 civilians in
the area of the 4 cities left their homes and headed to Bosnia-Herzegovina and Serbia. According to
the court findings, the manner of conducting the attack constituted a forced deportation. See, ibidem,
paragraph 2305.
Gotovina case – an unjust charge or a deliberately erroneous judgment … 89
inoculated among his subordinates a feeling that the crimes against Serb civilians
are tolerated and thus generated, implicitly, the framework for expanding the
criminal acts. For all this, the Trial Chamber held that the accused is guilty, being
directly responsible for his participation in a joint criminal enterprise, so, implicitly,
perpetrating the crimes stipulated in the common goal and, also, being indirectly
responsible for the crimes perpetrated by his subordinates, which although were
not part of the common goal, they have been perpetrated as a natural and
foreseeable consequence within the conduct of the actions which followed the
common goal.
Regarding the accused Mladen Markać, the Court relied on similar issues,
stressing the importance of his contribution to the fulfillment of the joint criminal
enterprise’s goal by participating at Brijuni meeting, planning and preparing the
Operation Storm” and the orders he gave to his subordinates to shell civilian
targets in Gra9ac and its surroundings. He was also charged because his tolerant
attitude towards the crimes perpetrated by his subordinates instead of doing the
due obligations of a commander, that is, the prevention and punishment of these
facts which, ultimately, allowed the widespread perpetration of the crimes against
Serb civilians in the area under his control.
In light of the above mentioned facts, on April 15, 2011, the Trial Chamber,
with the panel of 3 judges acting unanimously, ruled that the two accused, Ante
Gotovina and Mladen Markać are both guilty for committing, in the light of the
Article 7, paragraph. (1) of the ICTY Statute (as individual criminal liability), the
following crimes: persecution, deportation, murder and inhumane acts as crimes
against humanity (according to the Article 5 of the ICTY Statute) and plundering
public and private property, willful destruction, murder and inhumane treatment as war
crimes (according to the Article 3 of the ICTY Statute). Based on these findings, the
accused Ante Gotovina was sentenced to 24 years in prison and the accused Mladen
Markać to 18 years in prison20.
Some commentaries on how the Trial Chamber ruled in the above mentioned
case, should be added. According to the indictment, the ICTY Prosecutor was
seeking the three accused Gotovina, Markać and Čermak to be tried for perpetrating
the aforementioned crimes under the auspicious of the Article 7, paragraph. (1) of
the ICTY Statute (regulating the individual criminal liability), as co-perpetrators,
through their participation in a joint criminal enterprise with the alternative charges
of instigating, ordering and planning the same crimes and, very important,
cumulatively, in pursuant to the Article 7, paragraph. (3) of the ICTY Statute, for
their responsibility as commanders for the same crimes perpetrated by their
subordinates.
As the Trial Chamber found that the required conditions for convicting the
two accused for perpetrating the crimes as authors are fulfilled, the alternative
20 Ibidem, paragraph 2592-2619.
90 LIVIU ALEXANDRU LASCU
conviction for instigating, ordering, planning these crimes, was, naturally, dismissed,
given the fact the latter modes of criminal liability are derivative and accessory
to the authorship/co-authorship. Surprisingly, in this case, although the ICTY
Prosecutor asked the conviction of the two accused both as co-authors and
commanders, the Trial Chamber ruled only on the participation in a joint criminal
enterprise (assimilated as co-authorship) of these two accused, referred implicitly
in the Article 7, paragraph. (1) of the ICTY Statute. According to lengthy
jurisprudence of the ad-hoc tribunals, the criminal liability as commander/superior,
subsists and the accused must be convicted cumulatively, as author/co-author as
well as commander/superior, even in relation with the same crimes. We note,
however, that in motivating its judgment, the Trial Chamber included the material
acts, we usually meet as the grounds of convicting the accused as superior,
respectively the excusing, minimizing the facts, not preventing the perpetration and not
punishing the subordinates who perpetrated the crimes, among the material acts which
constitute a contribution to the fulfillment of the joint criminal enterprise’s goal.
Basically, the Trial Chamber pointed out that the deliberate failure of doing the
duties as commanders/superiors, can be seen as an element of the actus reus of
participating to a joint criminal enterprise. This approach of the Trial Chamber, even
though not entirely out of reasoning, is, however, one that exceeds the previous
practice of the ICTY because it is the first time when a chamber of this court
decides that some facts, usually seen as the actus reus for superior liability can be
absorbed by the actus reus of the joint criminal enterprise.
It is also surprising the position of the ICTY Prosecutor who did not appeal the
trial judgment, although, it was an obvious overlooking of the Trial Chamber on
the count of the superior liability of the two accused. The trial judgment neither
offered explicit references of acquittal on the count of superior liability, nor
motivated why the actus reus of the superior liability’s concept have been embedded
within the actus reus elements of the joint criminal enterprise. The ICTY Prosecutor,
nevertheless, did not filled any notice of appeal.
4. The Appeals Chamber’s judgment and the grounds of acquittal
In the absence of the ICTY Prosecutor’s appeal, the Appeals Chamber, in a
panel of 5 judges, ruled only on the notice of appeal submitted by the two
accused. The Defense attempted to dismantle the concept of „unlawful attacks” on
the four cities, Knin, Benkovac, Obrovac and Gra9ac mainly by showing that Trial
Chamber erred in determining the 200 Meters Standard of the margin of Croatian
artillery shelling because its judgment does not contains any indication or evidence
in this respect, so, depriving it of any legal basis21.
It should be mentioned that the Trial Chamber, admitting the allegations of the
Prosecutor, showed in the so-called „Impact Analysis” about the spread of Croatian
21 See, Case Gotovina et. al., Appeals Chamber judgment, p. 10-16
Gotovina case – an unjust charge or a deliberately erroneous judgment … 91
artillery strikes, the existence of a non-discriminatory fire of artillery which did not
aim exclusively the military targets or justified on military grounds but rather on
civilian population and buildings in these four cities. In this regard, the Court
asked for the artillery target list of the Croatian Army and questioned the head of
the Croatian artillery corps, Colonel Marko Rajcić, at the moment, under General
Gotovina’s command. From the statement of this witness, on the precision of the
artillery fire, the Trial Chamber found that 200 meters is the minimum margin of
precision of the Croatian artillery and so being, all the exploded shells discovered
out of the distance of 200 meters of the planned targets, have been launched in
order to achieve other purposes than military targets, actually, for furthering the
intention to destroy civilian targets and to determine the Serb population to leave
the area.
The Trial Chamber’s conclusions on the “unlawful artillery attack” was based on
the fact that ICTY Prosecutor has identified at least 50 shells in some places at even
300-700 meters far away from the planned targets and no less than 900 fired shells
on Knin city, while the bulk of the fighting forces of the RSK Army have already
left the city before the Croatian attack in August 4, 199522.
The Appeals Chamber, unanimously upheld the Defense’s allegations of the
Trial Chamber error in law when adopting the 200 Meters Standard for the
precision of the Croatian artillery shelling, because this standard is not based on
any reasonable evidence and there is no any reasoned opinion on how the Trial
Chamber reached this standard. With a majority of 3 to 2 judges, the Appeals
Chamber found as irrelevant the findings of the Trial Chamber on the presence of a
large number of shells outside of the margin of even 400 meters, because it has not
been taken into account within the “Impact Analysis” the shots fired on some
targets of opportunity, other than planned, such as those moving, for example23.
The Appeals Chamber has neither taken in account the ICTY Prosecutor’s
allegations that the 200 Meters Standard had been chosen as a margin in benefit of
the two accused, since other military experts, out of the witness Colonel Marko
Rajcić proposed by the Defense, being interviewed by the Trial Chamber, indicated
an even smaller margin of precision for the Croatian artillery, of 80-90 meters, nor
the ICTY Prosecutor’s argument of the fact, according to the evidences, the
Croatian artillery fired only one shot on a target of opportunity by hitting a
moving Serbian police car in Knin.
Based on the finding the Trial Chamber erroneously upheld the so called
Standard of 200 Meters”, the Appeals Chamber, with a majority of 3 to 2, concluded
as insufficiently proved the “unlawful attacks” on the four cities, and, implicitly, the
absence of a joint criminal enterprise in respect of all charges. Consequently, the
22 See, Case Gotovina et. al., Trial Chamber judgment, p. 594-733.
23 See, Case Gotovina et al., Appeals Chamber judgment, p. 17-26.
92 LIVIU ALEXANDRU LASCU
Appeals Chamber ordered the acquittal of the two accused on all charges and
released them24.
In what regarding the alternative charges of inciting, aiding, planning and
ordering the crimes, as well as on the criminal liability of the two accused as
commanders /superiors for the criminal acts of their subordinates, the Trial Chamber
held that entering a judgment on these charges is inadmissible in appeal because it
would be a de novo judgment on those charges.
As a overall conclusion, the Appeals Chamber made it appear that the whole
strategy of the ICTY Prosecutor, based on an impressive evidence and
accompanied by a variety of arguments is nothing but a great castle built on the
sand that collapsed due to a small but famous error, the “Standard of 200 Meters”.
This Appeal Chamber’s decision of acquitting the two accused, both of them
great figures of the civil war, has sparked a wave of criticism from the government
of Serbia and of the supporters of the Serb leaders, already convicted or facing the
trial to the Hague tribunal, in a moment in which, somehow, the Serbian
authorities and the people accepted the idea that ICTY is a court which must be
taken in account and cooperate with, if they want an European integration of their
country. In their view, this decision did permanently discredit the ICTY and it is a
clear evidence, in addition to others, to what the Serbs claimed for a long time, that
is, ICTY is nothing more than a tool of the occidental powers seeking the
stigmatization of the Serbian people and a severe punishment of its leaders.
The virulent criticism of this decision did not come only from the people who
asses in a subjective way the ICTY activity and who can do only an extrinsic
analysis of the justice’s mechanisms. First, in chronological order and yet the most
demanding criticism of this decision came from the two judges - Fausto Pocar and
Carmel Agius - who ruled in minority against the acquittal of the two accused.
5. The criticism of the Appeals Chamber’s decision of acquittal
Within the first phrase of his dissenting opinion, Judge Carmel Agius mentioned
a surprisingly trenchant delimitation from what decided the Majority, in a manner
never expressed before, in the entire ICTY jurisprudence: “For the reasons set out
below, I respectfully but strongly disagree with almost all of the conclusions reached by the
Majority in this Appeal Judgment. Furthermore, I wish to register my disagreement with
the approach taken by the Majority throughout the Appeal Judgment, and to distance
myself from that approach”.
Within his dissenting opinion of no less than 30 pages25, Judge Carmel Agius
exposed in details the reasons for which he disagreed the conclusion of the
Majority. In their essence, they would be: although it let be understood that the
finding of the Trial Chamber in what regarding the Standard of 200 Meters as the
24 Ibidem, p. 55.
25 Ibidem, Dissenting opinion of Judge Carmel Agius, cap. VIII, p. 1-30.
Gotovina case – an unjust charge or a deliberately erroneous judgment … 93
maximum permissible error of the Croatian artillery shelling is an error of law,
“arising from the application of an incorrect legal standard”, the Majority did not
establish another standard, based on its own judgment, thus, to offer an
appropriate alternative for doing the “Impact Analysis” and consequently to
conclude whether the Croatian artillery shelling constituted or not, an “unlawful
attack”, crediting so a standard of precision, ad infinitum; although from the trial
judgment is clear that the finding of this Chamber on the “illegal attack” was made
as a result of an impressive evidence, the Majority held that the “Impact Analysis” is
central and determinant in assessing the “illegal attack” and simply ignored any
other evidence, even the impressive number of 900 shells fired on the city of Knin
in less than half a day, in absence of any minor resistance of the Serbs; although the
Majority considered as erroneous the conclusions of the Trial Chamber on the
“Impact Analysis” because it didn’t take in account the possibility of aiming some
targets of opportunity, it failed to prove that there were such firings of the Croatian
artillery; in what regarding the only one proved target of opportunity, a moving
police car in the city of Knin, the Majority concluded that the Croatian artillery was
accurate enough as it hit the target with only one shot but didn’t wonder
themselves why it was so imprecise the shelling on the fixed and previously
planned targets; although it shows that according to the Trial Chamber’s evidence,
the bulk of the Serb refugees fled the Krajina region following the urging of the
RSK authorities, even before the start of the Croatian artillery attack, making so
plausible the lack of tie between the “unlawful attack” and their departure, the
Majority ignored in its assessment how much mattered the crimes committed by
Croatian soldiers against the remaining Serb civilians in this region and any other
evidence suggesting that the armed forces and the Croatian authorities made
everything possible to prevent the return of Serb refugees, so fueling their fear to
come home.
In his dissenting opinion, Judge Fausto Pocar succinctly reiterated his colleague
Agius Carmel’s opinions, basically referring to the same issues that we have
mentioned above. On the decision of the Majority, he, also, stated “... with all due
respect, I disagree with the reasoning and all its major conclusions”26.
The both judges acting in Minority argue that the lack of entering convictions
under alternate modes of liability for the two accused, as a consequence of re-
qualification or the revision of the Trial Chamber’s error in law by adopting an
inappropriate mode of liability as well as the failure to enter convictions based on
their responsibility as commanders on the ground that it would have meant a de
novo entry of charges in appeal, otherwise inadmissible, not only unveiled a puerile
reasoning but also overturned a long lasting practice of the ICTY Appeals
Chamber in this respect. Judges Agius and Pocar invoked the cases Blaskić, Simić,
26 Ibidem, Dissenting opinion of Judge Fausto Pocar, cap. X, p. 1.
94 LIVIU ALEXANDRU LASCU
Rukundo and Krstić27 where the Appeals Chamber found that according to the
evidence, a certain mode of liability adopted by the Trial Chamber must be
substituted by another. In these cases, the conviction for a specific crime was not
affected because the Appeals Chamber has not entered a new conviction on
appeal. It, actually, revised or re-qualified the Trial Chamber’s verdict of guilt so
that the appellant was still found guilty but under an alternate mode of liability. At
the time of the above mentioned cases’ judgment, nobody considered, the Appeals
Chamber, by doing so, actually enters a de novo conviction.
6. Conclusions
The criticism that the two judges in Minority depicted in their dissenting
opinion, seems to be absolutely relevant and, also, fully compliant with the
jurisprudence of nearly 20 years of the ICTY Appeals Chamber. We dare, also, to
consider that the Appeals Chamber’s decision of acquittal in Case Gotovina et al. is
not alone wrong but it came as a consequence of the erroneous judgment of the
Trial Chamber and the wrong decision of the ICTY Prosecutor. Thus, although it
was clear the fact the ICTY Prosecutor asked the two accused to be tried for their
commander’s liability in what concerns the criminal acts committed by their
subordinates, according to Article 7 paragraph. (3) of the ICTY Statute, among
other charges mentioned in the Indictment, the Trial Chamber embedded all the
material acts which according to the previews jurisprudence belong to this mode
of liability within the actus reus of participation in a joint criminal enterprise and
merely ignored the charge of criminal liability as commanders, of the two accused.
Nevertheless, in his turn, the ICTY Prosecutor did not appeal the trial judgment on
this charge or in any other else. We dont want to suggest so, the Appeals
Chambers decision invoking an entering of a de novo conviction in appeal is
thorough but the failure of the Prosecutor to appeal the trial judgment in this
respect, did nothing more than offered a reason for Majority to disregard the
command responsibility of the two accused as the Majority clearly mentioned the
lack of the Prosecutor’s appeal on the charge of command responsibility. So, as the
proverb says, if the Prosecutor gave them a lemon, they did nothing else than
made juice.
Unfortunately, this decision, beyond its more or less accurately legal reasons,
disregarded the suffering and tragedy of hundreds of thousands innocent people
who now live a deep sense of injustice. We don’t want to dwell on some
underground speculative issues related to this judgment, like the fact the president
of the appeal panel, Judge Theodor Meron (United States) did not intend a
condemnation who could tie, somehow, the U.S. Army and U.S. Administration
with the war crimes and crimes against humanity committed by these Croatian
generals who were involved in the training for NATO Partnership for Peace led by
27 Ibidem, p. 17.
Gotovina case – an unjust charge or a deliberately erroneous judgment … 95
the American military mission MPRI, in the months preceding the “Operation
Storm” or the fact, a conviction of these two accused would have led to an
alarming Euro-skepticism in Croatia in the very year of its entry into the European
Union. What, actually, matters now, is the fact the decision of acquittal is done, the
credibility of ICTY is suffering and the surprising ways of doing the interpretation
of some legal aspects by the Appeals Chamber, have created an unexpected and
perfect judicial precedent for other two famous accused, Radovan Karadžić and
Ratco Mladić whose trials are still ongoing and whose criminal liability could be
seriously diminished in the light of the appeal judgment in the Case Gotovina et al.
References
[1] Ambos, K., (2007), Joint Criminal Enterprise and Command Responsibility, “Journal of
International Criminal Justice”, no. 5, Oxford University Press, p. 159-183.
[2] Cassese, A., (2007), The Proper Limits of Individual Responsibility under the Doctrine of
Joint Criminal Enterprise, in “Journal of International Criminal Justice”, no. 5/2007, Oxford
University Press, p. 109-133.
[3] Clark, J.N., (2013), Courting Controversy in “Journal of International Criminal
Justice”, no. 11, Oxford University Press, p. 399- 423.
[4] Ingrao, C., Emmert, (2009), T.A., Confronting the Yugoslav controversies, Purdue
University Press, West Lafayette, Indiana, U.S.A.
[5] Pearl, D., (2002), At home in the world, Helene Cooper Publishing House, New York,
U.S.A.
[6] Perić, V., (2005), Croatians Rally Behind 'National Hero' after General Is Snatched, in
”The Independent”, December 12.
[7] Steele, J., (1999), Break the cycle of abuse, in “The Guardian”, 14 June.