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.
