Eric Gordy's Straw Men

By Luka Misetic

My June 19th blog post titled, “The Joint ‘Criminal’ Enterprise Against Judge Theodor Meron” received many responses, but none more bizarre than a blog post written by sociologist Eric Gordy, titled “For the Annals of Conspiracy Theory: Nia, Snajko.” Gordy does not, to my knowledge, have any training or education in law. Nevertheless, Gordy has become one of the more prominent critics of the ICTY’s recent jurisprudence, including the acquittals of Generals Gotovina and Markac.

On the day of the acquittals of the Croatian generals, Gordy wrote a blog post with the subtle title, “Today is a good day to be a criminal.” In the post, Gordy mounts an attack on the Appeals Chamber’s finding that indiscriminate shelling did not cause the departure of the Krajina Serbs. Of course, Gordy could not then (and cannot now) name a single one of the mythical “tens of thousands of Krajina Serbs” who were deported by the alleged “indiscriminate shelling.” But more on that later. More recently, Gordy has turned to the pages of the New York Times to argue inter alia that in the Gotovina case, “In essence the appeals chamber (also chaired by Judge Meron) found that there exists no legal standard that allows courts to distinguish between legitimate and illegitimate military targets.” This statement is, of course, nonsense. The ICTY has clearly identified the legal standards of targeting in its decisions in cases like Blaskic, Kordic, Galic, Strugar, Martic, Dragomir Milosevic, etc. What the Appeals Chamber in Gotovina found was that there was no evidence introduced by the Prosecution at trial concerning the proper margin of error for targets in Operation Storm. It did not rule, “There exists no legal standard that allows courts to distinguish between legitimate and illegitimate military targets.” Oh, and the Prosecution was never able to identify a single shelling victim in Operation Storm, unlike in Blaskic, Kordic, Galic, Strugar, Martic, Dragomir Milosevic, etc. (More on that later.) 

Gordy’s recent transformation into a critic of the substance of ICTY judgements stands in stark contrast to his views back when Ante Gotovina was a convicted war criminal sentenced to 24 years in prison. In an interview with the Croatian weekly Nacional published less than one month after Gotovina’s April 2011 conviction at the trial level, Gordy remarked:

• NACIONAL: What are your thoughts about the judgements against Gotovina and Markac?
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• GORDY: The court arrived at a lawful judgement, but only a few people have been encouraged to come out and say that we have to examine the facts and open a dialogue with those who were forced to move out. The majority simply concluded that the Court was wrong. That does not help in building peaceful relations. I think the other day Mesic commented that the decision has moved people back into the ‘90’s. And I think after the decision many discussions look exactly like that.
• 
  
• NACIONAL: Does that mean that you do not agree with the judgement?
• 
  
• GORDY: There was a trial, the Prosecution gathered evidence, and the Defence presented its case. This lasted five years. The judges looked at the evidence that both sides presented and made their decision. Whether you or I would have arrived at a different conclusion is not important, because it’s not our job. But the judgement certainly did not contribute to the establishment of peace. At the gathering on the Ban Jelacic Square after the Judgement, the master of ceremonies, actor Bozidar Alic, after reciting poetry exclaimed, “The war is not over.” Who does that help and how does that contribute to the establishment of peaceful relations? It needs no mentioning that there probably exist people in all of the countries of the region who welcome these types of messages, who want another war. But I think that the majority of normal people would not. Lawyers like to say that if justice is served before a court, it contributes to understanding and growth of social contacts and dialogue. That obviously did not happen when people celebrate those decisions which appeal to them, and protest those decisions which don’t appeal to them.

Gotovina’s conviction obviously “appealed” to Gordy, and as a result he was of the view that is was “not our job” to criticize decisions reached by judges who had “looked at the evidence both sides presented and made their decision.” When Gotovina’s conviction was overturned, however, also by judges who had “looked at the evidence both sides presented and made their decision,” it suddenly did become “our job” to criticize the Tribunal. It became “our job” to argue on the pages of the New York Times that the judges who voted to overturn the conviction could not possibly have done so in good faith on the basis of their review of the evidence and the law, but instead did so because “no conspiracy is needed to explain that judges represent the states that nominated them to the tribunal, and that law is a conservative profession.” Suddenly, it did become “important whether you or I would have arrived at a different conclusion.”

Gordy has obviously become one of those very people he criticized in Nacional, who “celebrate those decisions which appeal to them, and protest those decisions which don’t appeal to them.” Or perhaps he was one of those people all along.

Now on to Gordy’s comments about my “Meron JCE” blog post.  Gordy correctly notes that the post was written tongue in cheek. However,  I found the rest of Gordy’s post bizarre because Gordy starts his comments by explaining the definition of a “straw man argument,” and then proceeds to attack my blog post by advancing nothing but a series of straw man arguments. 

At the outset, I note that Gordy takes no issue with the substance of my post.  Thus Gordy does not dispute:

1. There is an effort underway to discredit Judge Meron and force his removal as President of the ICTY;

2. The Prosecution has never been able to identify a single Serb civilian who was killed or injured by shelling, or who claimed to have left Croatia due to fear of shelling;

3. Florence Hartmann wrote a book in 1999 in which she recorded her experience that the Krajina Serbs “fled at the request of their own leadership”;

4. The Prosecution’s lead investigator for the Operation Storm case was simultaneously a Swedish military intelligence agent, Joakim Robertsson;

5. Robertsson fabricated evidence against General Gotovina;

6. Robertsson and Thomas Elfgren leaked a confidential Prosecution report to the New York Times in 1999; and

7. Robertsson and Elfgren were behind an attack on Judge Meron in the Finnish press in April 2013.

These were the essential facts in my blog post, and Gordy disputes none of them. Indeed, I particularly note that Gordy is unable to rise to my challenge and name a single victim of the alleged “indiscriminate attack” which Gordy superficially claims took place. 

Gordy had claimed that Gotovina’s defence team had offered a “Rodney King defence to the charge that civilians were encouraged to flee because of indiscriminate shelling of the towns where they lived. Shell by shell, they argued it could not be demonstrated which particular attack by explosives caused which civilian to flee.” The problem with Gordy’s analogy, of course, is that neither Gordy nor the ICTY Prosecution could ever identify a single “Rodney King” among the entire Krajina Serb population. If Gordy wants to stay with the Rodney King analogy, then he should modify the analogy to reflect the facts in the Gotovina case. What would have happened if a video had surfaced of LAPD officers swinging their police batons energetically and---striking no one?  

Instead of addressing my arguments, Gordy attributes a series of invented arguments to me and then proceeds to mock them in a classic case of a “Straw Man” attack.

1. Gordy claims that I wrote, “Florence Hartmann, Mirko Klarin, the ICTY prosecutors, Serbia, Carl Bildt, and something called ‘Nordic intelligence’” are in “collusion” to “protect Carl Bildt from embarrassment.” I wrote nothing of the kind. Gordy misunderstands the law of Joint Criminal Enterprise, which requires no “collusion” at all among all actors in order for a JCE to exist. Indeed, in my blog post I made clear that various members of a JCE not only need not be in “collusion,” but they also “need not know of each other’s existence.” Second, Gordy confuses intent to contribute to a common “criminal” purpose, with motive. Florence Hartmann, Mirko Klarin, the ICTY prosecutors, Serbia, Carl Bildt, and Nordic intelligence services all may share the common “criminal” purpose (remove Judge Meron from office), while each may have a distinct motive for doing so. Thus, while Robertsson and Elfgren had a motive to protect Carl Bildt, Hartmann’s motive for defaming Meron is entirely different, as I made clear in my blog post: to discredit her own conviction for contempt of the Tribunal.

2. Gordy claims that because I posted a picture of Klarin, Hartmann and others having drinks, which one of the participants labeled a gathering of the “MORON / NERON fan club,” I necessarily claim that the entire Jahorina conference (where the photographed participants were having drinks) was “a sinister or secret or conspiratorial” conference aimed at discrediting Judge Meron. Nowhere did I ever make such a statement, so Gordy is “refuting” something which I never said---and never thought. I posted the picture solely to note that the participants in the picture  (including Hartmann and Klarin) do not hide their contempt for Judge Meron. Whether the picture was taken at the Jahorina conference or in Las Vegas is completely irrelevant.

3. Gordy claims I have “something against Florence Hartmann, Mirko Klarin, and all Scandinavians.” I have nothing against anyone. The only thing I am “against” is “when people celebrate those decisions which appeal to them, and protest those decisions which don’t appeal to them,” something Gordy himself criticized in his Nacional interview.

4. Finally, Gordy claims that I believe “damage to the reputation of Meron puts the credibility of the appeals verdict in the Gotovina case, his greatest courtroom success to date, in danger.” Actually, I don’t believe this. I believe that those attacking Judge Meron believe this. I myself believe that history will record the Gotovina Appeals Judgement as the only possible just result. For those of you who choked on your morning coffee when you read that sentence, I offer the following challenges:

i. Identify—by name—a single Serb shelling victim in Operation Storm, or a single Serb civilian who claimed to have fled Croatia out of fear of shelling;

ii. Explain why 99% of the Krajina Serb civilian population left Croatia within the first four days of Operation Storm?

iii. If you cannot identify a single Serb shelling victim, then what exactly was the “criminal plan” you believe was hatched at Brioni? HOW (through what criminal means) did Tudjman and the others intend to forcibly remove the Krajina Serb population?

History will look favorably upon the three Appeals Chamber judges who had the courage to overturn the unjust conviction and sentence of Ante Gotovina to 24 years in prison, where the Prosecution could not identify a single victim of the core crimes of the alleged JCE. 

I have no concern that the "credibility of the appeals verdict in the Gotovina case is in danger," because the Appeals Chamber "judges looked at the evidence that both sides presented and made their decision. Whether you or I would have arrived at a different conclusion is not important, because it’s not our job."