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Guest Post: The Appeals Chamber judgment in Prosecutor v Ante Gotovina and Mladen Markač

Ms Anuja Pethia completed her bachelors in law (B.A LL.B) from National Law Institute University (NLIU), Bhopal in India. After serving as a member of the editorial board of NLIU Law Review, she completed the bar exam in 2013 and practised in the area of industrial disputes and criminal law at the High Court of Madhya Pradesh in India. She gained a Masters of Law (cum laude) in International Crime and Justice at United Nations Interregional Crime and Justice Research Institute in Turin, Italy.

I. Introduction

This article is a brief analysis of the Judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia[1] in Prosecutor v. Ante Gotovina et al.[2] The Appeal arose from the Trial Chamber’s conclusion that during the military action aimed at taking control of the Krajina region, the Appellants were guilty of inter alia persecution of Serb population, mainly through unlawful attacks on ‘Four Towns’[3] pursuant to the joint criminal enterprise mode of liability.[4]

II. The Appeals Judgment

i. Majority Opinion

The Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings.[5] The Majority agreed, however, that the touchstone of the Trial Chamber’s analysis concerning the existence of a JCE was its conclusion that unlawful artillery attacks targeted civilians and civilian objects.[6] Amongst all the indicators that the Trial Chamber considered with respect to the unlawful nature of the artillery attacks, it based its conclusion primarily on the Impact Analysis.[7] It concluded that all impact sites more than 200 Metres from a legitimate target served as an indicator of an indiscriminate attack.[8]

The Appeals Chamber unanimously agreed that the 200 Metre standard was erroneous.[9] The Trial Chamber adopted a margin of error that was not linked to any evidence.[10] Given the highly technical subject, the Trial Chamber also did not explain the basis of arriving at the standard as a reasonable interpretation of the evidence on record.[11]

The Majority agreed with the Trial Chamber’s conclusion that the evidence did not indicate that artillery attacks were aimed at mobile targets of opportunity; except in Knin.[12] In the absence of the Trial Chamber explicitly discounting evidence suggesting the presence of targets of opportunity in Knin and the HV forces’ ability to see them, the Appeals Chamber found it unreasonable for the Trial Chamber to conclude that no artillery attacks were aimed at targets of opportunity in Knin.

The Majority concluded that given the possibility of shelling mobile targets and in the absence of an established range of error, the remaining evidence could not sustain the conclusions of the Impact Analysis.[13] The Trial Chamber had considered unlawful artillery attacks as the core indicator of the crime of deportation of Serbs, which the Trial Chamber treated as the common purpose of the JCE.[14] The Appeal Chamber concluded that having reversed the Trial Chambers findings that artillery attacks are unlawful and thereby the resultant displacement, it could not affirm that a JCE with the common purpose of permanently removing Serbs by force existed.[15]

The Majority further concluded that the Trial Chamber did not make sufficient findings to enter convictions against Mr. Markač on the basis of aiding and abetting or superior responsibility and declined to assess the relevant evidence. It reasoned that this would require the Appeals Chamber to engage in excessive fact finding.[16] It assessed the evidence on record for Mr. Gotovina’s liability and held that the same does not prove beyond reasonable doubt that any failure to act on Mr. Gotovina’s part was so extensive as to give rise to criminal liability pursuant to aiding and abetting or superior responsibility.[17]

ii. Dissenting Opinions

Judge Agius and Judge Pocar agreed that the 200 Metre standard was inaccurate, but concluded that the remaining evidence was adequate to sustain the Trial Chamber’s key findings and the convictions, even without the 200 Metre rule.[18] They rejected the view that the impact analysis under the 200 Metre standard served as the cornerstone of the Trial Chamber’s finding of JCE liability.[19] They also argued that the majority failed to identify and properly apply a correct standard of accuracy of the artillery.[20]

Judge Agius criticised the Majority for its failure to classify the incorrect 200 Metre rule as an error of law or of fact.[21] Judge Agius goes on to infer that the Majority proceeded on the basis of the adoption of 200 Metre standard as a factual error and states that the Majority still did not apply the correct standard of review.[22] He reasons that the Majority should have reviewed the evidence differentially under a standard of reasonableness rather than de novo.[23]

Judge Agius states that the Majority has tied all of the Trial Chamber’s findings to the 200 Metre Standard and thereby misinterpreted the Trial Judgment.[24] He categorically analyses other evidence written off as “insufficient” by the Majority and concludes it to be extremely relevant in establishing the unlawfulness of the attacks.[25] Judge Agius finds no reason why a reasonable Trial Chamber could not arrive at a conclusion of unlawful artillery fire on the basis of other findings.[26]

Judge Agius also considers the theory of command responsibility for appellant Markač and criticises the Majority for adopting divergent approaches in analysing the potential responsibility of both Appellants and subsequently declining to assess the compelling evidence to enter an alternate conviction for Markač on the basis of superior responsibility.

Judge Pocar’s dissent also focuses on the standards of appellate review and the Court’s deviation from that standard.[27] He states that the Trial Chamber categorised the 200 meter standard as a presumption of legality and therefore concludes it to be an error of law.[28] He sharply critiques the Majority for “pretending” to review the evidence without first determining the correct legal standard.[29] He states that the Majority uses the error of the 200 Metre standard to quash all other findings of the Trial Chamber.[30] He states that the Majority needs to demonstrate that the other remaining findings establishing the unlawfulness of the attacks cannot stand in the face of the quashing of the 200 metre standard.[31]

III. Conclusion

More than 1300 pages of analysis are sweepingly reversed in just a few paragraphs, without careful consideration of the trial record and a proper explanation.[32] Scholars have argued that the Appeal Judgment is a little more than a series of criticisms of the Trial Chamber’s analysis and findings.[33] Regarding the need for a standard of artillery accuracy, one author argues that a 200 Metre accuracy rule or any other authoritative figure would have injected ‘a sorely needed clarity to the standards for artillery distinction and accuracy’.[34] The judgment of the Appeals Chamber is also criticised for not undertaking a de novo review of the evidence in light of the correct legal standards because this legal standard remained unarticulated.[35] On the other hand, some argue that the Appeals Chamber ruling fulfilled the purposes of appellate review.[36] Reversing a conviction on inadequate evidence and invalid legal standards preserves the credibility of the Court and fulfils the ICTY Article 25 mandate.[37]

The author submits that while it is part of the ICTY mandate to contribute to restoration and maintenance of peace,[38] bringing in external factors and influences into legal analysis may jeopardise proper legal functioning. Courts are not meant to take into account public reactions or expectations, but meant to exercise juristic thinking within the framework of law. The author admires the Appeals Chamber bold move of overturning the Appellants convictions despite reasonably foreseeable allegations of bias. However, the author sides with the dissenting opinions of Judge Pocar and Judge Agius and submits that the Appeals Chamber’s judgment suffers from considerable legal flaws.

The author submits that the Appeals Chamber’s dismissive treatment of the Trial Chamber’s detailed analysis of all evidence on record (barring the Impact Analysis assessment) shows disrespect to the subordinate court of its own institution. The Appeals Chamber should have either elaborated and applied the correct standard to the evidence contained in the trial record, or, in the alternative, remanded the case back to the Trial Chamber to apply the correct legal standard to the evidence.[39] The advantage of observing evidence and witnesses first hand is well understood in all jurisdictions of the world. The same was emulated in Kupreškić et al., where the Appeals Chamber stated that, ‘The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of this evidence’[40].

To conclude, the author submits that no doubt, there was an error in the Trial Chamber’s assessment of the 200 Metre standard of error. However, the Majority’s approach to correcting this error is itself highly erroneous. The Majority fails to articulate the correct legal standard and review the relevant findings of the trial chamber accordingly. Even assuming that the 200 Metre standard was an error of fact, it fails to ‘not lightly overturn findings of fact made by the trial chamber’.[41] Rather than looking at the totality of the evidence and findings of the Trial Chamber, the Majority takes an overly compartmentalised and narrow view[42] – the author submits that this is the most concerning issue in the Appeals Chamber’s exercise of appellate powers.

[1] Hereinafter referred to as “ICTY”.

[2]Prosecutor v Ante Gotovina and Mladen Markač (Judgment) ICTY-IT-06-90-A (16 November 2012) (Hereinafter referred to as the “Appeals Judgment”); Mr. Gotovina was a Colonel General in the Croatian army (“HV”) and Mr. Markač was the Assistant Minister of the Interior and Operation Commander of the Special Police in Croatia.

[3]Knin, Benkovac, Obrovac and Gračac or the “Four Towns”.

[4]Prosecutor v Ante Gotovina, Ivan Čermak, and Mladen Markač, Case No. IT-06-90-T (“Trial Judgment”); (Joint criminal enterprise hereinafter referred to as “JCE”).

[5] The Appeals Judgment, [24].

[6] The Appeals Judgment [26]; The Trial Chamber found Mr. Gotovina guilty, pursuant to both the first and third forms of JCE, International Criminal Tribunal for Yugoslavia, ‘Appeals Judgment Summary for Ante Gotovina and Mladen Markač’ (16 November 2012) <http://www.icty.org/x/cases/gotovina/acjug/en/121116_summary.pdf> accessed 6 May 2014.

[7]The Appeals Judgment [26].

[8]The Appeals Judgment [51].

[9]The Appeals Judgment [61].

[10] The Appeals Judgment [61].

[11]The Appeals Judgment [58],[61].

[12] The Appeals Judgment [51].

[13]The Appeals Judgment [64], [65].

[14]The Appeals Judgment [85], [87].

[15]The Appeals Judgment [91], [96].

[16]The Appeals Judgment [150].

[17]International Criminal Tribunal for Yugoslavia, ‘Appeals Judgment Summary for Ante Gotovina and Mladen Markač’ (16 November 2012) <http://www.icty.org/x/cases/gotovina/acjug/en/121116_summary.pdf> accessed 6 May 2014.

[18] Gary D. Solis, ‘The Gotovina Acquittal: A Sound Appellate Course Correction’ (2013) 215 Mil. L.Rev. 78, 87 & 92.

[19] Gary D. Solis, ‘The Gotovina Acquittal: A Sound Appellate Course Correction’ (2013) 215 Mil. L.Rev. 78, 92.; Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [4].

[20] Gary D. Solis, ‘The Gotovina Acquittal: A Sound Appellate Course Correction’ (2013) 215 Mil. L.Rev. 78, 93.

[21]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [15].

[22]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [16]; See the Appeals Judgment [12], [13] for the correct standard of review.

[23] Gary D. Solis, ‘The Gotovina Acquittal: A Sound Appellate Course Correction’ (2013) 215 Mil. L.Rev. 78, 93.

[24]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [17].

[25]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [22].

[26]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [24], [25].

[27]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Fausto Pocar [5].

[28]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Fausto Pocar [10].

[29]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Fausto Pocar [11].

[30]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Fausto Pocar [18].

[31]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Fausto Pocar [17].

[32]J Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Fausto Pocar [14]; Darren Vallentgoed, ‘The Last Round? A Post-Gotovina Reassessment of the Legality of Using Artillery Against Built-up Areas’, Journal of Conflict & Security Law (2013), Vol. 18 No. 1, 25-57, 54.

[33] Janine Natalya Clark, ‘Courting Controversy, The ICTY’s Acquittal of Croatian Generals Gotovina and Markač’, Journal of International Criminal Justice 11 (2013) 399-423, 416.

[34]Darren Vallentgoed, ‘The Last Round? A Post-Gotovina Reassessment of the Legality of Using Artillery Against Built-up Areas’ Journal of Conflict & Security Law (2013), Vol. 18 No. 1, 25-57, 54.

[35] Janine Natalya Clark, ‘Courting Controversy, The ICTY’s Acquittal of Croatian Generals Gotovina and Markač’, Journal of International Criminal Justice 11 (2013) 399-423, 416.

[36] Gary D. Solis, ‘The Gotovina Acquittal: A Sound Appellate Course Correction’ (2013) 215 Mil. L.Rev. 78, 106.

[37] Gary D. Solis, ‘The Gotovina Acquittal: A Sound Appellate Course Correction’ (2013) 215 Mil. L.Rev. 78, 106.

[38]UNSC Res 827 (25 May 1993) UN Doc S/RES/827.

[39]Mark Klamberg, ‘Evaluation of Evidence and Joint Crminal Enterprise in the Gotovina Case’ (Paper presented at the seminar Transitional Justice in Former Yugoslavia through the Prism of the Gotovina-Markač Judgment in Uppsala 2013) <http://ssrn.com/abstract=2268174> accessed 5 May 2014.

[40]Prosecutor v Kupreskic et al. (Judgment) ICTY IT-95-16-A (23 October 2001) [32].

[41]The Appeals Judgment [12].

[42]Gotovina Case (Judgment) ICTY IT-06-90-A, Dissenting Opinion of Judge Carmel Agius [3].

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