by Dr Miša Zgonec-Rožej
This analysis is an expanded and modified version of the Chatham House expert comment. If you wish to see it, click here.
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), on Friday, 16 November 2012, overturned the convictions of two Croatian generals, Ante Gotovina and Mladen Markač, acquitting them of all and any crimes against the Serb civilian population in the Krajina region of Croatia. Two iLawyers, Guénaël Mettraux and John R.W.D. Jones, were members of the Gotovina and Markač defence teams, respectively.
In 1995, Croatia carried out “Operation Storm”, a military operation to take control over the territory in Croatia’s Krajina region. An estimated 20,000 ethnic Serbs fled their homes and allegedly 150 were killed during the military operation. Before being recaptured by the Croatian Army forces in 1995, the region of Krajina was under the control of the self-proclaimed Republic of Serbian Krajina that had existed since 1991. Two Croatian Serb leaders of the Republic of Serbian Krajina, Milan Babić and Milan Martić, were convicted by the ICTY for their roles in the forcible removal of Croats and other members of the non-Serb population from the Krajina region.
Gotovina, the commander of the Split Military District of the Croatian Army, was the overall operational commander of Operation Storm, while Markač was the Assistant Minister of the Interior and Operation Commander of the Special Police in Croatia. In its judgement delivered on 15 April 2011, the Trial Chamber found that Gotovina and Markač were part of a joint criminal enterprise led by late Croatian President Franjo Tuđman whose common purpose was to permanently remove the Serb civilian population from the Krajina region by force or threat of force.
The Trial Chamber found that Gotovina significantly contributed to a joint criminal enterprise by ordering unlawful attacks against civilians and civilian objects in Knin, Benkovac, and Obravac and by failing to make a serious effort to prevent or investigate crimes committed against Serb civilians in the Split Military District. The Trial Chamber found that Markač significantly contributed to the JCE by ordering unlawful attack against civilians and civilian objects in Gračac and by creating a climate of impunity through his failure to prevent, investigate, or punish crimes committed by members of the Special Police against Serb civilians.
Consequently, the Trial Chamber found both accused guilty, under the first form of JCE, of persecution and deportation as crimes against humanity. It also found both guilty, under the third form of JCE, of murder and inhumane acts as crimes against humanity, and of plunder of public and private property, wanton destruction, murder, and cruel treatment as violations of the laws or customs of war, either on their own or as underlying acts of persecution.
Although the Indictment alleged that Gotovina and Markač were liable for charged crimes not only on the basis of the JCE, but also other modes of liability, including planning, instigating, ordering, aiding and abetting, and superior responsibility, the Trial Chamber declined to enter findings on modes of liability other than JCE. Gotovina and Markač were sentenced to 24 and 18 years of imprisonment respectively. The third accused in the case, Ivan Čermak, was acquitted of all charges against him. Both accused appealed their conviction.
2. The Appeals Judgement
The Appeals Chamber reversed the Trial Chamber’s judgement and acquitted both generals, by majority of 3 to 2, of all charges. The dissenting judges, Judge Pocar and Judge Agius, appended dissenting opinions. The ICTY ordered the appellants’ immediate release upon which they immediately returned to Croatia.
The Appeals Chamber considered that the Trial Chamber’s finding on the existence of the joint criminal enterprise was primarily based on the conclusion that unlawful artillery attacks targeted civilians and civilian objects in the towns of Knin, Benkovac, Obravac and Gračac (“the four towns”) in the Krajina region and that these unlawful attacks resulted in the deportation of some 20,000 civilians from that region. By contrast, the Trial Chamber did not characterise as deportation civilians’ departure from settlements targeted by artillery attacks which the Trial Chamber did not characterise as unlawful. Where civilian departures coincided with lawful artillery attacks, the Trial Chamber was not able to conclude that those who left were forcibly displaced, nor that those firing artillery at such towns had the intent to forcibly displace those persons.
The Trial Chamber’s finding of an unlawful attack was premised on the Chamber’s conclusion that a reasonable interpretation of the evidence was that an artillery projectile fired by the Croatian Army which impacted within 200 metres of a legitimate target was deliberately fired at that target. Using this 200-metre standard, which was not even suggested by the Prosecution at trial, the Trial Chamber deemed that any shell or artillery which fell more than 200 meters from a legitimate target was not aimed at that target and was, therefore, evidence of an unlawful artillery attack. The Appeals Chamber unanimously held that the Trial Chamber erred in applying the 200-metre standard because the Trial Chamber did not provide any specific reasons as to the derivation of this margin of error and there was no evidence to support this standard.
The Appeals Chamber concluded that the reversal of the impact analysis undermined the Trial Chamber’s conclusion that the artillery attacks against the four towns were unlawful. The remaining evidence, which was additionally considered by the Trial Chamber in order to assess the lawfulness of artillery attacks, was in the Appeals Chamber’s view not sufficient to support the conclusion that artillery attacks were unlawful. The Appeals Chamber then considered whether the Trial Chamber could reasonably conclude, absent the finding that the artillery attacks were unlawful, that the circumstantial evidence on the record was sufficient to prove the existence of the JCE.
In the context of Operation Storm, the Trial Chamber considered unlawful artillery attacks to be the core indicator that the crime of deportation had taken place or in other words, the primary means by which the forced departure of Serb civilians from the Krajina region was effected. By contrast, Serb civilians’ departure at the same time or in the immediate aftermath of artillery attacks was not categorised as deportation where artillery attacks were not found to have been unlawful. Having reversed the Trial Chamber’s finding that artillery attacks on the four towns were unlawful, the Appeals Chamber considered unsustainable the Trial Chamber’s finding of the existence of a joint criminal enterprise with the common purpose of permanently and forcibly removing the Serb population from the Krajina. The Appeals Chamber considered other evidence, including the planning of Operation Storm during a meeting in Brioni shortly before the operation started (recorded on what is referred to as the Brioni Transcript) and Tuđman’s speeches, as insufficient to support the finding that a JCE existed.
Following the reversal of the Trial Chamber’s finding that a JCE existed, the Appeals Chamber quashed the convictions for the common purpose crimes of deportation, forcible transfer, and persecution. The remaining convictions for the crimes of plunder, wanton destruction, murder, inhumane acts, and cruel treatment, and associated convictions for persecution, which were entered on the basis of the third form of JCE, were also quashed because the Appeals Chamber held that the reversal of the Trial Chamber’s finding that a JCE existed meant that other crimes could not be a natural and foreseeable consequence of that JCE’s common purpose.
b.) Alternate modes of responsibility
Having quashed all the convictions, all of which were entered pursuant to the mode of liability of JCE, the Appeals Chamber considered the possibility of entering convictions pursuant to alternate modes of liability. Gotovina and Markač both challenged the Appeals Chamber’s jurisdiction to enter convictions under alternate modes of liability.
(i) The Appeals Chamber’s jurisdiction to enter conviction under alternate modes of liability
The appellants argued that the Appeals Chamber would have jurisdiction to enter convictions pursuant to alternate modes of liability only if a party had challenged the Trial Chamber’s failure to make relevant findings. The Prosecution, by deciding not to appeal against the Trial Judgement, waived its right to seek conviction under alternate modes of liability, and Gotovina and Markač only appealed against the JCE findings by the Trial Chamber. In these circumstances, they argued, convictions under other modes of liability were precluded. The appellants also argued, among other things, that the Appeals Chamber is precluded from entering additional convictions per se, as this would deprive them of their right to appeal these convictions.
The Appeals Chamber made some important clarification regarding its power to enter convictions pursuant to alternate modes of liability. It observed, Judge Pocar dissenting, that it had previously entered convictions on the basis of alternate modes of liability and that it was not convinced that the appellants had presented cogent reasons requiring departure from this practice. The Appeals Chamber held that its power to do so was not dependent on whether the Prosecution had appealed or not. The Appeals Chamber recalled that it had rejected the proposition that additional convictions on appeal violate an appellant’s right to a fair trial per se. However, the Appeals Chamber held that it would not enter convictions under alternate modes of liability where this would substantially compromise the fair trial rights of appellants or exceed its jurisdiction as delineated in the Statute.
In considering whether to enter convictions pursuant to alternate modes of liability, the Appeals Chamber assessed the Trial Chamber’s findings and other evidence on the record de novo. As the Trial Chamber’s analysis was focused on whether particular findings on the record were sufficient to enter convictions pursuant to JCE as a mode of liability, the Appeals Chamber decided to consider, but not defer to, the Trial Chamber’s relevant analysis.
(ii) Acquittals under alternate forms of responsibility
The Appeals Chamber, Judge Agius dissenting, decided not to enter convictions against Gotovina and Markač on the basis of alternate modes of liability for the following reasons.
As regards the appellants’ responsibility for the artillery attacks on the four towns, the Appeals Chamber agreed with the Trial Chamber’s finding that departure of civilians concurrent with lawful artillery attacks could not be qualified as deportation. According to the Appeals Chamber, given the reversal of the findings that the JCE existed and absent a finding of unlawful attacks, the Trial Judgement did not include any explicit alternative findings setting out the requisite mental element for deportation which could be ascribed to the appellants on the basis of lawful artillery attacks. The Appeals Chamber was not satisfied that the artillery attacks for which the appellants were responsible were sufficient to prove them guilty beyond reasonable doubt for deportation under any alternate mode of liability pled in the Indictment.
As regards Gotovina’s potential responsibility under alternate modes of liability based on additional findings of the Trial Chamber, the Appeals Chamber observed that the Trial Chamber’s finding that Gotovina failed to make a serious effort to investigate the crimes and to prevent future crimes, relied upon the finding of the unlawfulness of artillery attacks. The Appeals Chamber, Judge Agius dissenting, considered that the Trial Chamber’s description of the additional measures that Gotovina should have taken was terse and vague, and it failed to specifically identify how these measures would have addressed Gotovina’s perceived shortcomings in following up on crimes. The Appeals Chamber found that the Trial Chamber erred by not addressing expert testimony indicating that Gotovina took all necessary and reasonable measures to ensure that his subordinates in the Krajina enforced appropriate disciplinary measures. Considering also other evidence on the record indicating that Gotovina adopted numerous measures to prevent and minimise crimes and general disorder among the troops under his control, the Appeals Chamber could not conclude that any failure to act on Gotovina’s part was so extensive as to give raise to criminal liability pursuant to aiding and abetting or superior responsibility.
As regards Markač’s responsibility under alternate modes of liability based on Trial Chamber’s additional findings, the Trial Chamber found that he failed to order investigations of alleged crimes by members of the Special Police and thereby created a climate of impunity among them, which, in turn, encouraged subsequent crimes committed by the Special Police, including murder and destruction of property. In the Appeals Chamber’s view, the Trial Chamber reached this conclusion in the context of its finding that the artillery attacks on Gračac were unlawful. The Appeals Chamber noted that the Trial Chamber did not explicitly find that Markač made a substantial contribution to relevant crimes committed by the Special Police or that he possessed effective control over the Special Police. Consequently, the Appeals Chamber found that the Trial Chamber did not make findings sufficient to enter convictions against Markač on the basis of either aiding or abetting or superior responsibility. The Appeals Chamber, Judge Agius dissenting, declined to assess the Trial Chamber’s remaining findings and evidence on the record as doing so would require the Appeals Chamber to engage in excessive fact-finding and weighing of the evidence and, in doing so, would risk substantially compromising Markač fair trial rights.
3. Shortcomings on the part of the Trial Chamber and the Prosecution
It is clear from the Appeals Judgment that there were two significant shortcomings in the approach taken by the Trial Chamber and the Prosecution. These were such that the Appeals Chamber was unable to remedy them without jeopardising the appellants’ rights to a fair trial. This, however, does not mean that the Appeals Chamber would have necessarily reached a different conclusion regarding the appellants’ responsibility should the Prosecution and Trial Chamber have taken a different approach.
The Trial Chamber, first, can be criticised for its failure to enter findings on modes of liability other than JCE. The Indictment alleged that Gotovina and Markač were liable for charged crimes not only on the basis of the JCE, but also on other modes of liability, including planning, instigating, ordering, aiding and abetting, and superior responsibility. The Trial Chamber, incongruously, considered that it was not necessary to make findings on the other modes of liability alleged in the Indictment. It should be noted that the Appeals Chamber in Setako upheld the Prosecution’s argument that the Trial Chamber’s failure to make findings on alternate modes of liability, in particular command responsibility, constituted an error of law (Setako, Appeals Judgment, para. 268).
Given that the Prosecution argued during the appeals process that the Appeals Chamber could enter convictions for alternate modes of liability, it erred by not appealing against the Trial Judgement and therefore not challenging the Trial Chamber’s failure to make relevant findings on other forms of responsibility. The Prosecution must have been convinced that the conviction on the basis of a JCE would be upheld on appeal otherwise their decision would not make any sense. It should be pointed out also that even when the Prosecution discussed other forms of liability, it frequently linked them to unlawful attacks. Given that Gotovina and Markač only appealed against the Trial Chamber’s conviction for JCE, the written and oral pleadings were limited to the discussion of the existence of a JCE and the appellants’ contribution thereto.
Curiously, on 20 July 2012, more than two months after the Appeal Hearing which took place on 14 May 2012, in an Order for Additional Briefing, the Appeals Chamber, for the first time in its practice, requested the parties to provide a briefing on the potential for convictions pursuant to an alternate mode of liability. In particular, the Prosecution was requested to explain whether, in the event that Gotovina and Markač were not found liable for unlawful artillery attacks or to be members of a JCE, they could be held liable under superior responsibility or as aiders and abettors. This appeared to be an indication that the Appeals Chamber was at that stage seriously considering that the convictions on the basis of a JCE would fall. The appeal hearing is normally the last stage of proceedings, which comes at the end of all written pleadings, and following upon which the Appeals Chamber delivers a judgement.
In the light of the absence of a Prosecution appeal of the Trial Judgement, requesting additional briefing on alternate forms of liability at this stage of proceedings, runs the risk of undermining the appellants’ fair trial rights. As explained above in section 2(b)(i), Gotovina, joined by Markač, challenged the Appeals Chamber’s jurisdiction to enter convictions under alternate modes of liability. The Appeals Chamber, referring to its previous practice, without providing clear reasoning or legal basis, dismissed the appellants’ challenges and confirmed its power to enter convictions on an alternate basis of liability.
The Appeals Chamber acknowledged that it had previously revised trial judgement by replacing convictions based on JCE with convictions based on alternate modes of liability (e.g. Vasiljević, Krstić, Simić). However, in none of these cases was the trial chamber’s analysis concerning the factual basis underpinning the existence of a JCE materially revised. The Appeals Chamber concluded in para. 155 of the Appeal Judgement:
“By contrast, in the present case, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, has found that the Trial Chamber committed fundamental errors with respect to its finding concerning artillery attacks and by extension JCE, which stood at the core of findings concerning the Appellants’ criminal responsibility.”
The Appeals Chamber majority explained that any attempt to derive inferences required for conviction under alternate modes of liability would require disentangling the Trial Chamber’s finding from its erroneous reliance on unlawful attacks, assessing the persuasiveness of this evidence, and then determining whether the guilt on the basis of a different mode of liability was proved beyond reasonable doubt. The Appeals Chamber – correctly in the view of this writer – considered that such an operation would transform the appeal process into a second trial, in violation of the rights of a fair trial.
In his separate opinion, Judge Robinson was the only one who considered the possibility of ordering a re-trial, which is an exceptional measure. He rejected this option because it would be too lengthy and expensive and would be unduly oppressive for the appellants. In addition, while in detention, Gotovina effectively served one-third of his sentence imposed by the Trial Chamber, while Markač already served one-half of his sentence. In this context, it is important to note that acquitted the ICTY defendants are not entitled to compensation for time spent in detention.
4. Significance of the judgement
The Appeals Chamber judgment is final and cannot be appealed. The only remedy left to the parties is a review procedure but which can only be requested if a new fact has been discovered which was not known at the time of the proceedings and which could have been a decisive factor in reaching the decision. To date one review judgment has been delivered by the ICTY in the case of Veselin Šljivančanin in which the ICTY modified his conviction for his role in the Vukovar hospital massacre and reduced his sentence from 17 to 10 years’ imprisonment.
The Appeal Judgment will be remembered for its unanimous rejection of the 200-metre standard by which the Trial Chamber created a presumption that only artillery projectiles which impacted within 200 meters of an identified artillery target were deliberately fired at that target. It is important to point out that during the trial the Prosecution did not invoke, much less rely, on this standard when attempting to prove the unlawfulness of artillery attacks against the four towns. This rule was therefore the sole invention of the Trial Chamber, which, as found by the Appeals Chamber, had no support in the evidence. By rejecting the 200-meter standard, the Appeal Judgment has restored the ICTY’s credibility within the military community that vigorously opposed to this standard.
The acquittals of the two generals by the Appeals Chamber mean that almost certainly no Croatian will ever be convicted by the ICTY for crimes committed by the Croatian armed forces in the territory of Croatia during the Yugoslav war. The ICTY Prosecutor indicted three other generals in the Croatian army for war crimes and crimes against humanity against Serb civilians. Janko Bobetko, the most senior commander in the Croatian Army, died before his transfer to The Hague. Two others, Mirko Norac and Rahim Ademi, have been transferred to Croatia to face trial in a domestic court. Norac was sentenced to 7 years’ imprisonment while Ademi was acquitted.
Conversely, the acquittals of the Croatian Generals do not mean that no ethnic Croatian has ever been prosecuted and convicted by the ICTY for the crimes during the war in the former Yugoslavia. More than twenty Bosnian Croats have been indicted by the ICTY for international crimes predominantly committed in Bosnia and Herzegovina against Bosnian Muslims. Most of the accused were convicted for the charged crimes and given sentence of imprisonment. Some of them, however, are still awaiting the delivery of the judgement by the Trial Chamber, such as the accused in the case Prlić et al.
In Croatia, the judgment was received throughout the country with euphoria and has been seen as a victory for the entire nation and proof that the fight for liberation of Croatian territory was not unlawful. Conversely, in Serbia, the judgment has been received as shocking and as legitimizing crimes against Serbs in the Krajina region. According to the Serbian leadership in its statements after the verdict, the judgment might undermine the ICTY’s credibility and impair the stabilization process in the region. The judgment, they say, has damaged Serbia’s relationship with the ICTY which has now been downgraded to mere “technical” cooperation. As a result, the ICTY had to postpone a conference on its legacy scheduled for 22 November 2012 in Belgrade.
It is important to point out that the Appeals Chamber in this case did not deny the Trial Chamber’s findings that crimes were committed against Serb population by Croatian military forces in the Krajina regions, including murders, destruction and plunder. This case, however, only deals with the responsibility of Gotovina and Markač and not the responsibility of other individuals or Croatia’s responsibility for any such crimes. The acquittals do not discharge Croatia from its obligation to investigate and prosecute those crimes, including crimes committed by its own nationals, as has been acknowledged by the President of Croatia, Ivo Josipović upon the delivery of the judgment. Croatia’s next step is to fulfill its obligation to ensure access to justice, truth and reparation to victims of these crimes.
Although some progress has been made in recent years in combating impunity, the Croatian authorities are reportedly still failing to investigate allegations against some high profile military and political officials. The European Union, to the membership of which Croatia is expected to accede in July 2013, calls in its report on Croatia’s state of preparedness for EU membership to intensify the efforts to combat impunity for war crimes, as the majority of crimes have yet to be successfully prosecuted. Other republics of the former Yugoslavia face similar challenges in removing obstacles to the domestic criminal investigation and prosecution of international crimes committed during the Yugoslav conflict.
Finally, the Appeal Judgment will most likely have implications for Croatia’s case against Serbia before the International Court of Justice for violations of the Genocide Convention, particularly in respect of Serbia’s counter-claims.