ICTY Appeals Chamber acquittal in Prosecutor v. Gotovina intersects IHL, military doctrine & ICL

On Friday, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia announced its judgment in Prosecutor v. Ante Gotovina, acquitting Colonel Generals Ante Gotovina (left) and Mladen Markač (below right) of all charges and ordering their release.
This case, the subject of earlier posts here, here and here, focused on Operation Storm, the Croatian operation to re-take the Krajina region in August 1995.
Prosecutor v. Gotovina is one of very few ICTY cases focused on complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.
The Office of the Prosecutor alleged that Gotovina launched unlawful attacks against Knin, the capital of the self-proclaimed Republic of Serbian Krajina, and three other nearby cities, and that these attacks formed the foundation of a joint criminal enterprise to ethnically cleanse the region of Serbs.

Because Knin was the operational command and control center of the Republic of Serbian Krajina, the case thus centered on actions during "force on force" combat operations. (credit for map showing the Krajina in red)
In April 2011, the Trial Chamber sentenced General Gotovina to 24 years for war crimes and crimes against humanity, on a joint criminal enterprise theory of liability.  The judgment quickly garnered significant attention in the academic and policy communities, including the report of an experts roundtable held at Emory International Humanitarian Law Clinic, for which I serve as Director, and an amicus brief submitted (but not admitted) by a group of international operational law experts.
Trial Chamber I, composed of Presiding Judge Alphons Orie (Netherlands) along with Judges Uldis Ķinis (Latvia) and Elizabeth Gwaunza (Zimbabwe), had found:
►  First, that all targets subjected to deliberate attack in Knin were lawful military objectives, and that the means (weapons) and methods (tactics) used in attack were not unlawful. However, it then applied a 200-meter radius of error around each lawful military objective as the test for determining whether the effects of each artillery shell could be attributed to a lawful attack. Finding that a mere 5% of the shells fell outside this 200-meter radius, the Trial Chamber nonetheless inferred the intent to launch unlawful attacks on civilians.
► Second, that limited harassing fire at the apartment of the President of the Republic of Serbian Krajina violated the principle of proportionality. In so finding, the Trial Chamber did not indicate how a small number of projectiles and no resulting civilian casualties demonstrated an anticipated excessive impact on civilians compared to the expected value of disrupting enemy command and control.
These two findings drove the chamber's conclusion that Croat attacks were directed at civilians and were intended to terrorize the civilian population, and thus served as the basis for the conviction for war crimes and crimes against humanity as a joint criminal enterprise.

In its judgment issued Friday, the Appeals Chamber overturned the Trial Chamber judgment. The five-member panel comprised Presiding Judge Theodor Meron (at right, of the United States) and Judges Carmel Agius (Malta), Patrick Robinson (Jamaica), Mehmet Güney (Turkey), and Fausto Pocar (Italy). It categorically rejected both the findings of the Trial Chamber and the Trial Chamber's conclusion that the Office of the Prosecutor had met its burden of proving guilt beyond a reasonable doubt.
First, the Appeals Chamber rejected the 200-meter radius of error (a unanimous conclusion, although there were dissents on other matters) and held that, as a result, there was no basis for the Trial Chamber's finding of unlawful attack on civilians in Knin or three other towns at issue. It stated:

Balkan Injustice?

On Friday, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia Appeals Chamber reversed the ICTY Trial Chamber’s conviction of two Croatian generals, Ante Gotovina (far left) and Mladen Markač (near left).
Gotovina and Markač had been convicted by a unanimous Trial Chamber in April 2011 of war crimes and crimes against humanity. A deeply divided (3-2) Appeals Chamber reversed the conviction and acquitted the generals.
While the Appeals Chamber’s decision was celebrated in Croatia, some scholars in the international legal community highlighted its dubious legal reasoning and its apparent lack of consideration for established legal precedent regarding appellate review.
In this post, I will briefly highlight four of the most problematic aspects of the Appeals Chamber’s decision. Each point supports my contention that the decision not only undermines the overall legacy of the ICTY as a neutral and just international forum, but also provides support for the Serbian view that Hague justice is political rather than legal.
► First, let me start with the dissenting opinions.
To claim that Judges Carmel Agius (Malta) and Fausto Pocar (Italy) virulently disagreed with the majority would be an understatement.
Judge Agius (right) said he thought that the majority was misinterpreting, ignoring and dismissing the findings of the Trial Chamber, while Judge Pocar (left) argued that the majority’s reasoning was “grotesque,” was driven by non-legal motives, and contradicted “any sense of justice.” I am not aware of any other appellate cases where the dissenting judges so scathingly reviewed the opinion of their colleagues in the majority.
 It is also noteworthy that the Trial Chamber in Gotovina and Markač had unanimously convicted the generals, whereas the Appeals Chamber seemed so deeply divided in its reasoning that one could almost imagine the ICTY appellate judges having passionate personal disagreements over these cases.
► Second, let me highlight the irregularity of the standard of review adopted by the Appeals Chamber.
The Appeals Chamber correctly announced the standard of review which it was supposed to adopt: the appellate process is not a de novo trial, but instead, a process in which the reviewing judges look at the totality of the evidence, give deference to the Trial Chamber’s fact-finding, and disturb the evidentiary record only if no reasonable fact-finder could have made the relevant findings based on the existing record. It is unfortunate that in this instance the Appeals Chamber decided not to follow its own rule.
The Appeals Chamber focused on the Trial Chamber’s conclusion regarding the proper standard for the accepted margin of error in shelling operations performed by the Croatian army in the so-called Krajina region. The Trial Chamber, perhaps erroneously, had determined that it would accept a 200-meter margin of error regarding shelling operations – that any shell that fell within a 200-meter radius of its purported target would be accepted as having hit its mark, but that any shell falling outside of such radius would constitute evidence of unlawful targeting.
The Appeals Chamber determined that the Trial Chamber's 200-meter standard was wrong; however, the Appeals Chamber did not then proceed to announce the correct standard. In fact, readers of this appellate opinion were left to wonder as to how the Appeals Chamber viewed this error – as an error of law or error of fact? An error of law should have been corrected by a pronouncement of the correct legal standard in assessing the lawfulness of shelling operations; an error of fact should have been corrected only if, in light of the totality of the evidence, no reasonable trier of fact could have reached the same determination.
The Appeals Chamber did neither.

ICTY appeal & U.S. suit review Operation Storm

Ante Gotovina (left), a defendant before the International Criminal Tribunal for the former Yugoslavia, recently filed his ICTY appeals brief. The case concerns the two-day Operation Storm, a Croatian offensive to reassert control over parts of the Serb-held Krajina (map below right), which had declared its independence from Croatia.
What exactly happened on those two days in August 1995 remains contested. It is clear that the lightning-fast operation coincided with a massive exodus of the Serbian population from the area four years after many of its Croatian inhabitants had themselves been pushed from the area by Serbian forces.
Was this a case of retaliatory ethnic cleansing and persecution, as alleged in the indictment and believed by some observers, or a natural response to armed conflict conditions and an evacuation order by the Serb leadership, as others have argued? The Operation also occasioned looting and plunder. But by whom: Soldiers under Gotovina’s command and control, civilians, or retreating Serbian forces?
In a 1,500-page opinion issued on April 15 (available in two parts here) , the ICTY Trial Chamber sentenced Gotovina to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of responsibility. (The Prosecutor also charged Gotovina under a superior responsibility theory. But the Trial Chamber made no findings in this regard and limited itself to the joint criminal enterprise ruling, even though Gotovina's alleged omissions were central to the case as discussed below).
In its Judgment, the Trial Chamber squarely adopted the ethnic-cleansing narrative. Indeed, the entire opinion is premised on a finding that Gotovina ordered a direct attack on civilians in the Krajina. The rest of the Judgment balances on this finding like an inverted pyramid.
This finding thus serves as the basis for the wanton-destruction war crimes charge. The crimes against humanity convictions rely on the indiscriminate attack as the predicate widespread/systematic attack against a civilian population. The attack also serves as a key actus reus for the persecution count and the other inhumane acts count. The attack is conceived of as one of the means by which the Croatian forces effectuated the deportation of the Serbian population (the other being the subsequent acts of plunder). Finally, the attack serves as one of two “substantial contributions” made by the defendant to the apparent joint criminal enterprise. (The other was an omission; that is, the failure to take the necessary and reasonable measures to prevent and punish foreseeable crimes committed in connection with effectuating the joint criminal enterprise.)
Not surprisingly, the defendant’s 120-page brief challenges the Trial Chamber’s characterization of the attack as unlawfully directed against civilians.
The defense points out that the Trial Chamber concluded that almost 95% of the Croatian Army’s artillery rounds were aimed at military objectives. For the 5% that fell further from any military objective contained on the Croatian Army’s target list, Gotovina’s lawyers argued that the Trial Chamber failed to consider other reasonable explanations, such as

• the existence of opportunistic and mobile targets in the form of Serbian forces or tanks;
• equipment malfunction;
• the existence of additional military objectives not previously identified on target lists;
• destruction by mortar fire by Serbian forces (there was evidence in the record of some Serb assets in town); or even
• a larger acceptable range of error for the weapons systems employed.

The defense argues that Gotovina did no more than engage military objectives on the front lines and within the Serb army’s operational depth. It concedes the mass departure of the Serbian population (photo at left above), but argues that based on the evidence presented at trial, a reasonable finder of fact could reach alternative explanations. For example, it argues that people:

• Were adhering evacuation orders issued by the Serbian army,
• Followed their family or neighbors,
• Feared contact with Croatian forces or other authorities,
• Were understandably motivated by a desire to avoid the armed conflict, even one lawfully fought, or
• Actually left in advance of the Operation given rumors of its imminence.

Indeed, it seems that no Serb civilian actually testified that he or she left the Krajina in response to unlawful shelling. In short, the defendant has invoked the old saw that correlation is not the equivalent of causation.
Virtually invisible within the opinion is the role played by the United States in Operation Storm. It has been alleged that the U.S. trained and provided intelligence, strategic and potentially other forms of support to Croatian troops involved in the Operation, which proved to be decisive in the conflict against the Serbs in the former Yugoslavia and contributed to Milosevic’s eventual capitulation. (For elaborate accounts of U.S. involvement, see here and here). It does seem unlikely that Gotovina would have ordered an attack on civilians given the amount of U.S. involvement and oversight in the operation.
More on the U.S. role in Operation Storm may come to light in a different courtroom. A private military contractor then called Military Professional Resources, Inc., and subsequently acquired by L-3 Communications, was hired to train and equip the Croatian military. The company is now subject to a class action lawsuit filed in Chicago in August 2010 (case number 10-cv-5197). (See story here and here). The suit, brought by Serbian refugees, alleges that MPRI enabled genocide and ethnic cleansing in the Krajina. Our colleague Anthony D’Amato of Northwestern University School of Law apparently serves as counsel for the plaintiffs. So far, no published opinion appears available, so stay tuned.

On May 25

On this day in ...
... 1951 (60 years ago today), Paula von Preradović died. She'd been born 63 years earlier in Vienna, Austria, then moved to Pula, a city on the southern tip of the Istrian Peninsula in what was then the Austro-Hungarian Empire but today is Croatia. Later she lived in Copenhagen and again in Vienna. (credit for image of Austrian postage stamp in her honor) A writer and narrator, Preradović is the author of the lyrics for Land der Berge, Land der Ströme (Land of Mountains, Land on the River), adopted in 1947 as Austria's national anthem.

(Prior May 25 posts are here, here, here, and here.)

On November 12

On this day in ...
... 1920 (90 years ago today), at a town near Genoa, the Treaty of Rapallo was signed (right) by the Kingdom of Serbs, Croats, and Slovenes and the Kingdom of Italy. (ohoto credit) By the terms of the treaty a number of territories, containing populations of varying ethnicities, were annexed to Italy. An independent state known as Fiume also was established; later it became part of Yugoslavia.

(Prior November 12 posts are here, here, and here.)

Not so fast toward the EU?

'Our children must not be burdened by policies of the 1990s.'

So said Serbian President Boris Tadić a few days ago, while laying a wreath near Vukovar, Croatia, where Serb forces executed more than 200 hospital patients as part of a 3-month siege in which more than 1,000 Croats were killed, 5,000 civilians seized, and 22,000 non-Serbs expelled. (credit for Reuters photo)
Tadić said he had come

to pay respect to the victims, to say words of apology, to show regret and create a possibility for Serbia and Croatia to turn a new page.

Part of that post-atonement chapter, Serbia hopes, is European Union membership, so that Serbia no doubt welcomed subsequent EU and the U.S. State Department comments heralding the visit as a welcome step toward reconciliation.
But the move brings to mind the objection that Serge Brammertz (below right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, raised regarding any plan to allow EU admission while ICTY indictees like former Bosnian Serb General Ratko Mladić remain at large. As we've posted, Brammertz has said:

Be sure to ask countries to support the tribunal. There is a tendency to think, 'Let's move on. Let's take the countries into the international community. We are saying, 'There can be no compromise. There can be no alternative to bringing the fugitives to justice.'

On May 22

On this day in ...

... 1992, the General Assembly resolutions admitted 3 new U.N. member states, Bosnia, Croatia, and Slovenia. All formerly had been part of the state then known as the Socialist Federal Republic of Yugoslavia, but broke off, following armed conflicts of varying length and brutality, in the aftermath of the 1980 death of Yugoslav leader Josip Broz Tito, who'd ruled the SFRY with an iron hand since 1953. (map credit)

... 1762, the empires of Sweden and Prussia concluded the Treaty of Hamburg, bringing an end to conflict between the 2 countries during the Seven Years War (1756-63) and returning to the territorial status quo as it had existed between those countries before that war began. The alliance was desired by Prussia after it had broken off relations with the Russian empire.

(Prior May 22 posts are here and here.)

On January 2, ...

... 1890, encouraged by his wife, Caroline Scott Harrison, President Benjamin Harrison hired Alice B. Sanger as a stenographer, making her the 1st woman to work for pay at the White House as anything other than a domestic servant. Sanger went on to work for 40 years at the U.S. Postal Service in Washington.

... 1993 (15 years ago today), leaders of the Bosnian Serbs, Bosnian Muslims, and Croats -- the 3 factions at war for nearly a year in the former Yugoslavia -- met in Geneva at the instance of U.N. special envoys Cyrus Vance and Lord Owen. The talks would fail, and peace accords would not be signed for another 3 years.

On December 14, ...

... 1985, Wilma Mankiller (left) became the 1st woman Chief of a major Native American tribe, receiving 56% of the votes cast for leader of the Cherokee Nation. She had learned skills in organizing for the rights of women and others in San Francisco, where she was "a shy housewife and mother in her 20s," named Mrs. Hugo Olaya, before becoming politicized when she joined the occupation of Alcatraz. She then moved back to Oklahoma to apply her skills on behalf of her people. Reelected Chief once, Mankiller resigned in 1995 because of ill health.

... 1995, 3 years of bloodshed in the onetime Yugoslavia province, Bosnia-Herzegovina, ended when leaders of Bosnia, Serbia, and Croatia signed the Dayton Accords at a ceremony in Paris. The peace accords, which were negotiated at a U.S. military base in Ohio, established Bosnia as an independent state.