Today, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia is hearing oral arguments in Prosecutor v. Gotovina. (The webcast, available here, is set to start now, at 9 a.m. Hague/3 a.m. Eastern time, and to continue till 6:30 p.m. Hague/12:30 p.m. Eastern time.) (credit for photo of ICTY building)
As you may remember, the case focuses on Operation Storm, the Croatian operation to re-take the Krajina region in August 1995. In April 2011, the Trial Chamber sentenced Croatian General Ante Gotovina (below left) to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of liability. (Prior IntLawGrrls posts) (photo credit; credit for below right map showing Krajina in red)
As I have written before, this case highlights issues at the intersection of operational law and international criminal responsibility. An amicus brief submitted by international operational law experts -- but not accepted by the Appeals Chamber -- and the report from an Experts roundtable hosted by the Emory International Humanitarian Law Clinic both focused on what the experts perceived to be significant flaws in the judgment's methodology.
Three weeks ago, the Appeals Chamber issued an addendum to an earlier scheduling order that may hint at some of these concerns. The addendum invited the parties to address four issues, without prejudice to any others. To my knowledge, this is the first time the Appeals Chamber has done so before an appellate argument. The questions posed:
► Whether the Trial Chamber erred in applying a 200-metre range of error in analyzing the lawfulness of artillery shelling;
► Whether the Trial Chamber's conclusions regarding impact sites should be upheld if its application of the 200-metre range of error is deemed erroneous;
► Whether the Trial Chamber's finding that illegal artillery attacks took place should be upheld if its conclusions with respect to impact sites are deemed erroneous; and
► Whether the Trial Chamber's finding that a joint criminal enterprise existed should be upheld if its finding that illegal artillery attacks took place is deemed erroneous.
The identification of issues -- and the layering of them in this way -- is fascinating from both the substantive and procedural vantage points.
The Trial Chamber judgment of joint criminal enterprise liability rests predominantly, if not entirely, on the finding of unlawful attacks on civilians in Knin and a few other cities. That finding, in turn, rests on the analysis of artillery attacks on Knin on August 4-5, 1995, and that analylsis itself relies overwhelmingly on the application of a 200-meter range of artillery effects attribution and the conclusion that the small percentage of impacts beyond that range established the deliberate attack on civilians and/or civilian property. The Appeals Chamber's framing of issues highlights both the 200-meter attribution standard and the precise role it plays as a key -- but faulty -- piece holding the judgment together.
Substantively, this development demonstrates the significant and intimate linkage between operational law and the elements of criminal accountability, perhaps more in this case than in any other.
The decisive role the 200-meter attribution standard played in the finding of unlawful attack left a whole set of key operational factors out of the equation altogether, divorcing the criminal process from the operational process in a problematic manner. As the amicus brief emphasized, there are real tensions inherent in the fascinating relationship between prospective planning, real-time operations, and post-hoc criminal processes.
To be effective, a criminal process must take into account the reality of the operational environment -- not merely give "a wink and a nod" to efforts to enforce the law, but ensure that the law is applied accurately and in a manner that can be implemented in the future. The Trial Chamber judgment fell short here, using the radius of effects of attacks on pre-planned targets as a decisive factor in assessing the other evidence bearing on the lawfulness of the attack. In doing so, it seemingly disregarded the nearly infinite -- and here highly relevant -- number of variables impacting the execution of combat operations and the use of force against both planned and fleeting targets:
► Quality and quantity of intelligence (about both enemy and civilian locations);
► Quality of equipment;
► Training and capability of crews;
► Quality of munitions;
► Timing, terrain, weather, fatigue, location of fire support assets; and many others.
All of these are integral to any targeting process at the time of planning and attack; they are also relevant for a tribunal in assessing the reasonableness of the commander's decision-making process. The enemy's tactics, conduct, and changes in situation throughout the operation are, of course, significant variables as well -- not only in terms of the attacking party's operational choices, but also in terms of the effects of military operations on civilians and civilian objects.
Perhaps the Appeals Chamber's framing of issues foreshadows a more balanced incorporation of operational factors -- a critical point highlighted both in the amicus brief and the Experts Roundtable report.
What is unclear from the addendum, however, is how the Appeals Chamber will address the judgment's incomplete and inadequate proportionality analysis regarding the targeting of the residence and headquarters of Milan Martić, then the President of the proclaimed Republic of Serbian Krajina. The unjustified reliance on the 200-meter attribution standard and this proportionality assessment together led to an overly outcome-oriented assessment, especially troubling when a finding regarding proportionality in one individual attack is used to color the overall outcome-oriented approach.
Procedurally, the addendum also hints at important burden of proof questions. The Trial Chamber's excessive -- indeed single-minded -- reliance on a 200-meter attribution standard in particular suggests an implicit inversion of the burden of proof.
In effect, by concluding that all artillery shells that landed outside the 200-meter range were unlawful attacks, the Trial Chamber of the ICTY (right) concluded that because the defendant failed to present evidence to justify those attacks, the attacks must have been unlawful. This appears to be an unacknowledged and implied presumption of guilt, forcing the defendant to bear the burden of production to rebut that presumption. (photo credit) Furthermore, by dismissing or ignoring alternate, rational explanations for these effects, as noted above, the Trial Chamber effectively required the defendant to prove that there were in fact lawful objects of attack in those areas.
As in any criminal trial, it is the prosecution's responsibility to prove the elements of the crime beyond a reasonable doubt. The framing of issues in the addendum suggests that the Appeals Chamber will be looking more closely at exactly what the prosecution can prove and how, both with respect to the crime of unlawful attack and the broader crime of joint criminal enterprise.
Cases about targeting in a complex military operation highlight the challenges of bringing operational law into the courtroom perhaps more than any other issue in international criminal law. Accountability for crimes -- whether unlawful attacks on civilians or other crimes -- is no less important in these cases than in any others. At the same time, the consequences of substantive and procedural flaws can be significant: the failure to appropriately apply the law in accordance with operational reality may well limit the law's effectiveness in future operations.