[PART I][1]
On 16 November 2012, the International
Criminal Tribunal for the former Yugoslavia established that Ante Gotovina and
Mladen Markac are innocent as a matter of law, and that there is insufficient
evidence of a Joint Criminal Enterprise to remove the Serb population from
Croatia during and after Operation Storm.
The Judgement has been criticized in certain limited circles, including
Serbian government officials, Serbian academics (Milena Sertio, Miroslav Baros,
Marko Milanovic), lawyers representing the Republic of Serbia (Marko
Milanovic), former employees of the Office of the Prosecutor (including Carla
Del Ponte and Anton Nikiforov) and persons affiliated with former Deputy Prosecutor
David Tolbert (Paul Seils, Refik
Hodzic).[2]
All of these individuals cite the
dissenting opinions of Judges Pocar and Agius to justify their criticism of the
ICTY in the Gotovina case.
I decided to write this blog post in
order to set the record straight. The dissenting opinions of Judges Pocar and
Agius are based upon incorrect interpretations of the law, the evidence and the
positions of the parties in this case.
As I will explain below and in subsequent blog posts, the Majority’s
Judgement in this case was grounded not only in the law and the evidence, but
also in traditional notions of fair play and substantial justice.
THE
“TOTALITY OF THE EVIDENCE”
One of the popular criticisms of the Gotovina Judgement is that the Appeals
Chamber did not consider the “totality of the evidence” in assessing the
culpability of Gotovina and Markac, but instead focused too narrowly on the 200
Meter Standard.
Any fair assessment of the “totality of
the evidence” leads to the following inescapable conclusions: Gotovina and Markac are innocent, there was
no JCE, and the convictions of Gotovina and Markac by the Trial Chamber was one
of the biggest scandals in the history of international criminal law. The Prosecution, the Defence, the Trial
Chamber and the Appeals Chamber (including Judges Pocar and Agius) all unanimously agree on the
following “totality of the evidence”:
1.
The
Prosecution could not produce any evidence of the identity of a single civilian
victim of shelling by Gotovina’s forces.
The evidence in the trial record did not provide a single scrap of
evidence that identified any civilian who was killed or even injured by
shelling, anywhere in the so-called “Krajina.”
2.
The
Prosecution could not produce any evidence of the identity of a single Serbian civilian who claimed to have fled Croatia due to
fear of shelling. Thus, while the Trial Chamber (wrongly) concluded that at
least 20,000 Serb civilians fled Croatia from the four towns of Knin, Benkovac, Obrovac and
Gracac due to fear of shelling, not a single one of these 20,000 has ever been
identified.
3.
The
United Nations conducted an investigation into the shelling of Knin immediately
after Operation Storm. On 18 August
1995, the United Nations concluded that the shelling “was concentrated against
military objectives,” and that “only few impacts (3-5) is observed in other
urban areas.”[3]
4.
Both
the Trial Chamber and Appeals Chamber unanimously agree that in all areas of
the “Krajina” except Knin, Benkovac, Obrovac and Gracac, the “Krajina” Serbs
left for their own reasons, unrelated to any unlawful conduct by Croatian
forces. According to the Trial Chamber,
these reasons included:
·
“Krajina” Serb officials telling inhabitants to leave the areas
(Trial Judgement, paragraph 1762);
· Fear of violence commonly associated with armed conflict (Trial
Judgement, paragraph 1762);
· General fears of Croatian forces and a distrust of Croatian
authorities (Trial Judgement, paragraph 1762); and
·
The fact that other Serbs were departing caused some to leave
(Trial Judgement, paragraphs 1754, 1762).
Generals Gotovina and Markac were thus
the first (and hopefully the last) defendants in the history of international
criminal law to have been convicted and sentenced to draconian punishments even
though there are no known victims of the alleged common criminal
purpose of the Joint Criminal Enterprise.
Moreover, no coherent explanation has ever been provided (by the
Prosecution, Trial Chamber or Judges Pocar and Agius) justifying the claim that
the Majority acted unreasonably in concluding that the Krajina Serbs in Knin,
Benkovac, Obrovac and Gracac left for the exact same reasons that the Krajina
Serbs left from everywhere else in the “Krajina” (cited above in paragraph 4).
Even though there are no
victims of shelling in the four towns, and even though not a
single Serb civilian was ever identified as having left Croatia from the four
towns due to fear of shelling, Judges Pocar and Agius argue that “no
reasonable trier of fact could conclude any differently” than that the Serbs
from these four towns were expelled by Gotovina’s artillery fire.[4] Why?
Which Serbs? No responses to these questions are ever provided. Why did
the Prosecution have no trouble identifying shelling victims in Sarajevo (Galic, Dragomir Milosevic cases) and
Dubrovnik (Strugar case) and Zagreb (Martic case), but couldn’t identify a single
shelling victim in Operation Storm? Could not a reasonable Appeals
Chamber have concluded that, unlike the shelling of Sarajevo, Dubrovnik and
Zagreb, the shelling in Operation Storm was so lawful that it produced no
civilian casualties?
Any discussion of the “totality of the
evidence” must start with the undeniable fact that this was a victimless
alleged JCE 1, a fact that Judges Pocar and Agius do not address in
their analysis.
WHY
JUDGE POCAR IS WRONG
Preliminary Comment Concerning the Tone of
Judge Pocar’s Dissent
Commentators have noted the
inappropriate, ad hominem tone of
Judge Pocar’s dissent. Indeed, Judge Pocar refers to some of the Majority’s
arguments as “grotesque,” and chastises the Majority’s opinion as
“contradict[ing] any sense of justice.”
But what would we say about the “sense of justice” of a court that affirms
a 24-year sentence against a person even though there are no known victims? I leave it as an open question.
More disturbing is Judge Pocar’s repeated
claim that the Majority was “pretending” to analyze the evidence and the law, a
claim that he repeats five times.[5] The word “pretend” is defined as: “to appear falsely, as to deceive,
feign.” Judge Pocar’s repeated use of
such a loaded word is an unfortunate ad
hominem assault on the integrity of his colleagues in the Majority, which
is unjustified given the serious errors in reasoning that litter Judge Pocar’s
dissent.
At other sections in his opinion, Judge Pocar
belittles his colleagues. For example, he claims that the Majority
misrepresented the Prosecution’s arguments concerning alternate modes of
liability, and uses this “fact” as evidence of the overall “erroneous analysis”
by the Majority:
From a purely
legal perspective, the Majority’s reasoning with respect to the possibility of
revising a mode of liability is based on a legal confusion. In its analysis,
the Majority repeatedly refers to the possibility of entering convictions under
alternate modes of liability. It does so even when summarising the
Prosecution’s submissions in this respect, although
the Prosecution never referred to “entering” new convictions on appeal,
but carefully adopted the correct
language of “revising” a conviction for a certain crime from one mode of
liability to another. The Majority’s
mischaracterization and incorrect attribution of legal arguments to the parties
in this case is another illustration of the Majority’s erroneous analysis.[6]
It goes without saying that before a judge
decides to launch ad hominem
arguments against his colleagues and belittle them for allegedly
“mischaracterizing and incorrectly attributing” legal arguments to the parties,
he must be sure that he has his own facts right. Here, Judge Pocar got his facts wrong: the Majority correctly recited the
Prosecution’s position. The Prosecution
argued as follows:
However, in the event that the Appeals Chamber were to find
any error affecting Gotovina’s JCE liability, it should enter convictions under one of the alternative modes
of liability, namely: ordering, planning, instigating, aiding and abetting
and superior responsibility under Art.7(3). Because the Chamber found Gotovina
liable through his participation in the JCE, it did not enter findings on the
alternative modes of liability.[7]
Hence, the Prosecution in fact did ask
the Appeals Chamber to “enter” convictions on alternate modes of liability. Judge
Pocar thus hoists himself on his own petard:
rather than belittling the Majority for misstating the Prosecution’s
position, he exposes his own erroneous analysis, which unfortunately is evident
throughout his dissent (as will be explained more fully below and in subsequent
blog posts).
The Motives Behind Quashing the Existence
of the JCE
Before turning to the substance of Judge
Pocar’s arguments, it is appropriate here to address another issue that is
related to the ad hominem arguments Judge
Pocar advances against his colleagues in the Majority. This concerns Judge Pocar’s criticism of the
Majority for quashing not only Gotovina’s and Markac’s convictions based on JCE,
but also for quashing the Trial Chamber’s finding of the existence of a JCE
altogether:
Even if the Majority wished
to acquit Gotovina and Markac entirely, one might wonder what the Majority
wanted to achieve by quashing the mere existence of the joint criminal
enterprise rather than concentrating on Gotovina’s and Markac’s significant
contributions to the joint criminal enterprise. I leave it as an open question.[8]
Some
commentators have claimed that this passage contains “an implicit suggestion that in considering the trial judgment
the majority could be guided by motives other than purely legal.”[9] I disagree. Judge Pocar’s criticism here is directed
against the Majority’s refusal to consider anything other than
purely legal motives in arriving at its Judgement.
Judge Pocar essentially argues that even if the
Appeals Chamber were to acquit Gotovina and Markac, it should have established
that a JCE existed involving three deceased individuals: Croatian President Franjo Tudjman, Minister
of Defence Gojko Susak, and Croatian Army Chief of Staff Zvonimir
Cervenko. From the context of his
dissent, it is clear that the main focus of Pocar’s ire is Tudjman.[10] But it is indisputable that there is no legal
purpose to be served in condemning three individuals who are deceased and thus
unable to defend themselves from the allegation that they were members of a
JCE, in particular in a case where the accused who are actually before the
court are going to be acquitted. Judge Pocar apparently wanted to use the
ICTY’s imprimatur to condemn Tudjman as a war criminal, without Tudjman being
able to defend himself. Had the Tribunal
done so, it arguably would have violated the European Convention on Human
Rights.[11] Judge Pocar notably fails to address this
issue.
Judge Pocar perhaps hoped to use such a
“conviction” of Tudjman for the purposes of “reconciliation” and “evenhandedness”
that we have heard so much about since the Appeals Judgement.[12] The Majority, to its credit, limited itself
to the evidence and the law, and resisted calls to consider extra-legal issues
in arriving at its Judgement. If Judge
Pocar believed that there was some legitimate purpose to be served in using an
acquittal of Gotovina and Markac to condemn Tudjman, Susak and Cervenko without
trial, he should have provided some justification for his position. The Majority, however, should not be accused
of playing “politics.” On the contrary,
it is the Majority’s refusal to play
politics (i.e. deliver judgements on the basis of outside political
concerns like “reconciliation,” or creating the perception of ICTY
“evenhandedness”) that has caused such consternation among some, including
perhaps Judge Pocar. If so, the question
arises as to whether Judge Pocar’s motive to condemn Franjo Tudjman is “purely
legal,” or whether it is something else.
I leave it as an open question.
The
Majority Correctly Applied the Standard of Review
All five judges of the Appeals Chamber
unanimously agreed that the Trial Chamber erred in establishing a 200 Meter
Standard. The Trial Chamber made an
error of fact in establishing the 200 Meter Standard because it was “not linked
to any evidence.”[13] Judge Pocar also agrees with the Majority
that the 200 Meter Standard amounts to an error of law because the Trial
Chamber failed to provide a reasoned opinion in writing, in violation of
Article 23 of the Tribunal’s Statute.[14] Because the Trial Chamber failed to provide a
reasoned opinion on a key element of the offences of persecution and
deportation (i.e. whether there was
an unlawful attack against civilians and civilian objects), the Majority
decided that it would “consider de novo the
remaining evidence in the record to determine whether the conclusions of the
impact analysis are still valid.”[15]
The question arises whether the Appeals
Chamber should conduct a de novo review
of the evidence in a case where the Appeals Chamber has concluded that the Trial
Chamber has failed to provide a reasoned opinion on a key element of an offense. The Appeals Chamber eleven months earlier in
the Bagosora case resolved this
question. There, in assessing whether
the Trial Chamber erroneously convicted the appellant of command
responsibility, the Appeals Chamber concluded that the Trial Chamber had failed
to provide a reasoned opinion in support of its conclusion that the appellant
had failed to punish culpable subordinates. As a result:
The Appeals
Chamber considers that, given the absence of any further reasoning supporting
the conclusion that Bagosora failed to fulfil his duty to punish culpable
subordinates, the Trial Chamber failed to provide a reasoned opinion. In these
circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual
findings and the relevant evidence on the record to determine whether a
reasonable trier of fact could have found beyond reasonable doubt that Bagosora
failed to take reasonable and necessary measures to punish his subordinates for
the crimes committed.[16]
The Appeals Chamber used a similar
approach in the Haradinaj Appeals
Judgement.[17]
In Haradinaj, because of the Trial
Chamber’s failure to provide a reasoned opinion, the Appeals Chamber conducted
a de novo review in order to
determine “whether a reasonable Trial Chamber” could have found certain
witnesses to be credible.
The Majority here adopted the same
standard of review as did the Bagosora
and Haradinaj Appeals Chambers
(which, notably, both included Judge Pocar).
Once it was established that the Trial Chamber had failed to render a
reasoned opinion concerning the 200 Meter Standard, the Appeals Chamber reviewed
the Trial Chamber’s factual findings and relevant evidence on the record to
determine whether a reasonable trier of fact could have found beyond reasonable
doubt that Gotovina and Markac had launched an unlawful artillery attack
against civilians and civilian objects.
The Majority’s approach was thus well
established in the jurisprudence of the Tribunal. However, Judge Pocar muddies the waters by
conflating two separate types of errors
of law: (1) errors of law resulting
from a Trial Chamber’s failure to render a reasoned opinion, and (2) errors of
law resulting from the application of an incorrect legal standard. In the case of the former, the Appeals Chamber
has no obligation to provide “the correct legal standard,” because the Trial
Chamber’s legal error is not in the misapplication of a legal standard but in
the failure to provide a reasoned opinion of its assessment of the evidence or
its legal conclusions. It is only in the latter case, where the Trial Chamber has applied the wrong legal standard, that
the Appeals Chamber is required to articulate the correct legal standard.
By conflating the two distinct types of
errors of law, Judge Pocar speciously criticizes the Majority for allegedly
failing “to articulate the correct legal standard and review the factual
findings of the Trial Chamber accordingly.”[18] However, the Majority never claimed that the
Trial Chamber had applied the wrong legal
standard, but rather that it failed
to render a reasoned opinion in writing.
This is a critical distinction.
There is simply no support in the
Tribunal’s jurisprudence for Judge Pocar’s claim that where a Trial Chamber
fails to render a reasoned opinion, the Appeals Chamber must establish “the
correct legal standard.” Indeed, Judge
Pocar in Bagosora and Haradinaj supported the approach
ultimately adopted by the Gotovina
Majority. Bagosora and Haradinaj amply support the Majority’s
standard of review adopted in the Gotovina
appeal.
[In
my next blog post in Part II, I will address Judge Pocar’s arguments concerning
the Majority’s findings on the artillery attack, the Joint Criminal Enterprise,
and the alternate modes of liability.
In Part III, I will address Judge Agius’s dissent.]
[1]
Full disclosure: for those who are not
aware, I was counsel for Ante Gotovina in the proceedings before the ICTY.
[2]
Seils and Hodzic are employed by the International Center for Transitional
Justice, of which David Tolbert is president.
While Deputy Prosecutor of the ICTY, Tolbert was involved in the
preparation of the indictments against Ante Gotovina and Ramush Haradinaj, both
recently acquitted.
[3]
See trial exhibit P64, at the following link:
http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Exhibit/NotIndexable/IT-06-90/ACE80787R0000319865.TIF
[4]
Dissenting opinion of Judge Agius, at paragraph 46.
[5]
Judge Pocar’s Dissenting Opinion, at paragraphs 11, 23, 25, 31 and at footnote
30.
[6]
Pocar dissent, paragraph 32. Emphasis
added.
[7]
Respondent’s Brief of the Prosecution,
28 September 2011, at page 116, footnote 1112, as found at http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Response/NotIndexable/IT-06-90-A/BRF286R0000349149.pdf
[8]
Pocar dissent, at paragraph 30.
[9] Open Question About Intentions, SENSE
News Agency, 20 November 2012, as found at http://www.sense-agency.com/icty/open-question-about-intentions.29.html?news_id=14408
[10]
See Pocar dissent, paragraph 26.
[11]
See case of Vulakh and Others v. Russia,
before the European Court of Human Rights, Application Number 33468/03 (10
January 2012), at paragraphs 32-37, as found at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108500.
[12]
David Harland, Selective Justice for the
Balkans, as found at http://www.nytimes.com/2012/12/08/opinion/global/selective-justice-for-the-balkans.html?_r=0
[13]
Appeals Chamber Judgement, at paragraph 61.
[14]
Pocar Dissent, at paragraph 6.
[15]
Appeals Judgement, paragraph 64.
[16] Bagosora and Nsengiyumva v. The Prosecutor, Case
No. ICTR-98-41-A, Judgement, 14 December 2011, at paragraph 683, as found at http://www.unictr.org/Portals/0/Case%5CEnglish%5CBagosora%5CJudgement%5C111214-%20Appeals%20Judgement.pdf
[17]
Haradinaj Appeals Judgement, paragraph 134, 147, 154, 226, 254, as found at http://www.icty.org/x/cases/haradinaj/acjug/en/100721.pdf
[18]
Pocar Dissent, at paragraph 9, 11.
