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Gotovina to Appeal Conviction

Defence says judgement in case imposes standard so exacting that it renders lawful warfare impossible.
By Rachel Irwin
  • Ante Gotovina, Ivan Čermak i Mladen Markač (l to r) in the ICTY Courtroom. (Photo: ICTY)
    Ante Gotovina, Ivan Čermak i Mladen Markač (l to r) in the ICTY Courtroom. (Photo: ICTY)

Lawyers for former Croatian general Ante Gotovina will ask appeal judges at the Hague tribunal to reverse his conviction on all counts, they stated this week in a written notice of appeal.

Gotovina was convicted on April 15 of ordering unlawful and indiscriminate attacks on Serb civilians during 1995’s Operation Storm offensive. He was also found to be responsible for the deportation of at least 20,000 Serb civilians from the Krajina region of Croatia, as well as for the murder, persecution and cruel treatment of Serb civilians. In addition, he was convicted on counts of plunder and wanton destruction.

The only count that he was acquitted of – out of a total of 9 - was forcible transfer. He was sentenced to 24 years in prison with credit for time served.

The indictment focused solely on the period before and after Operation Storm, an offensive launched by Croatian forces on August 4, 1995 to retake the Serb-controlled Krajina region.

“This appeal has far reaching significance beyond the case of General Gotovina,” his lawyers state in the May 16 notice of appeal.

“The judgement is an unreasonable and unrealistic precedent that undermines the credibility and relevance of humanitarian law,” they write. “It imposes a standard so exacting that it renders lawful warfare impossible for military commanders.”

They contend that the judgement “rests on a finding that all artillery projectiles falling beyond 200 meters of designated ‘military targets’ must be presumed unlawful.

“There is no evidence to support this finding. Moreover, this finding was neither litigated by the parties nor raised by the prosecution at trial. This factually baseless theory was adopted by the trial chamber only after the hearing had closed.”

This finding regarding the projectiles “is the necessary foundation of every aspect of the conviction”, they say, and is based “on the presumption that all projectiles falling beyond 200 meters were directed at civilian areas.

“Thus, the burden of proof is shifted from the prosecutor to Gotovina to prove that there were military objectives in those specific areas.”

The lawyers go on to point out that the judges “found that most of the 5% of the projectiles that were presumed to be unlawful fell into ‘empty fields’ which it nonetheless characterized as ‘civilian areas’.

“Additionally, the trial chamber did not find that a single civilian was killed, injured, or forcibly displaced as the result of instances of unlawful shelling.”

Regarding the deportation conviction, the defence notes that judges “rejected reliable evidence of [Republic of Serbian Krajina] evacuation orders and propaganda-induced fear of a Croatian military victory as causes of the departure of Serb civilians”.

Judges instead concluded that the “primary and direct cause” of “the departure of 20,000 Serb civilians was the 1% to 5% of artillery projectiles, most of which fell into empty fields”, the defence continues.

“Furthermore, the trial chamber did not cite any evidence that a single Serb civilian fled because of those particular artillery projectiles rather than because of the overall effect of lawful combat operations.”

The defence also rejected the judges’ finding that a joint criminal enterprise existed to carry out the crimes, and that Gotovina participated in it.

They say that the chamber drew “unreasonable conclusions” about a July 31, 1995 meeting about the upcoming military operation, attended by Gotovina and other high-ranking officials.

Judges quoted statements that Gotovina made during this meeting when the verdict was read out in court on April 15.

The Gotovina defence plans to argue seven different grounds of appeal, as detailed in the notice filed this week.

Lawyers for one of Gotovina’s co-defendants, former special police commander Mladen Markac, also filed a notice of appeal this week. Like Gotovina, Markac was convicted on eight of nine counts in the joint indictment. He was sentenced to 18 years in prison with credit for time served.

The third accused, ex-Knin garrison commander Ivan Cermak, was acquitted of all charges.

The prosecution has indicated that it won’t appeal the judgement as regards any of the defendants.

“The prosecution was of the view that the judgement did not contain factual or legal errors in respect of Gotovina and Markac and that the sentences they received adequately reflect the scale of the crimes and their individual culpability,” said Frederick Swinnen, special advisor to the prosecutor, during a press conference on May 18.

“Considering the high standard of review that would be applied to any prosecution appeal of the trial chamber's findings and acquittal of Cermak, the prosecution concluded that there was not a sufficient likelihood of success on appeal to justify initiating appeal proceedings in respect of Cermak.”

Rachel Irwin is an IWPR reporter in The Hague.

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