Today is a good day to be a criminal.

ImageThe ICTY appeals chamber has issued a judgment acquitting Ante Gotovina and Mladen Markač of crimes for which they were previously convicted. At first reading, the judgment seems to be a radical one that creates new law – and the new law it creates will be encouraging to military commanders who want to target civilians and to politicians who want to engineer the expulsion of civilians.

Some people are delighted with the judgment and other people are outraged, with divisions following predictable political lines. The appeals chamber itself is no less divided. The five judges on the panel made most of their decisions by a 3-2 vote. Counting the main judgment, the two dissenting opinions, and the two separate opinions given by judges voting with the majority, five judges issued five opinions in the case. So consensus about the law and the facts of the case is not any greater among the members of the appeals chamber than it is in the public. This gives us a result that does not settle controversies, but keeps them burning for a good long time.

Gotovina’s counsel 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 appeals chamber accepted the argument, rejecting the prosecution’s contention that people were compelled to leave not by one or another particular shell, but by the overall environment of attack that comprised a central element of military strategy (para. 19).

The appeals chamber made a strange decision on the status of the joint criminal enterprise to forcibly expel the civilian population: they decided that their adoption of the Rodney King standard on shelling makes irrelevant the documentary evidence from the Brioni transcripts and the public statements of Franjo Tuđman that indicate that expulsion of the civilian population was a goal of the military operation. Instead they decided (paras. 81-82) that an examination of the Brioni transcripts does not indicate any specific order to make any specific artillery attack. So they decided that the “circumstantial evidence” (para. 91) does not demonstrate the existence of a joint criminal enterprise, while disregarding the direct evidence.

Here it gets weird. Referring to the implementation of plans to expel civilians, the appeals chamber reaches the conclusion that “discussion of pretexts for artillery attacks, of potential civilian departures, and of provision of exit corridors could be reasonably interpreted as referring to lawful combat operations and public relations efforts” (para. 93). Similarly they find that “the fact that Croatia adopted discriminatory measures after the departures of Serb civilians from the Krajina does not demonstrate that these departures were forced” (para. 95). Score one for poststructuralist literary theory.

Every finding is preceded with the phrase “Judges Agius and Pocar dissenting.” So what do Judges Agius and Pocar have to say?

Agius builds his dissent around the sense that the majority “seems to lose sight of the essential question in this appeals case, being whether, based on the totality of the evidence, it was reasonable for the Trial Chamber to conclude that the attacks on the four towns were unlawful. At every turn, rather than looking at the totality of the evidence and the findings, the majority takes an overly compartmentalised and narrow view” (para. 3). According to Agius, the majority found that the trial chamber adopted an incorrect standard for determining whether artillery attacks were illegal, but rather than applying a correct standard “proceeds to discard all the evidence on record” (para. 13). So Agius finds that majority got it “respectfully, but completely” (paras. 43, 71) wrong.

No words of respect from Pocar, who in explaining why he has decided to “disagree with the reasoning and any major conclusions of the majority” (para. 1) finds himself challenged by “the sheer volume of errors and misconstructions” (para. 2) in the judgment. Like Agius, Pocar determines that the appeals chamber rejects a standard but “fails to conduct the review of the evidence it enounced it would do” (para. 8). Fundamentally the appeals chamber dismissed one piece in a set of “mutually reinforcing evidence” (para. 16) and consequently dismissed the entirety of the remaining evidence. In particular the majority declines to consider evidence directly (but not circumstantially) related to the operation of the joint criminal enterprise (paras. 20-22). And he asks a compelling question: “even if the majority wished to acquit Gotovina and Markač entirely, one might wonder what the majority wanted to achieve by quashing the mere existence of the JCE rather than concentrating on Gotovina’s and Markač’s significant contributions to the JCE. I leave it as an open question” (para. 30). More categorically than Agius, Pocar delares, “I fundamentally dissent from the entire appeal judgment, which contradicts any sense of justice” (para. 39).

The appeals chamber did a good deal more than many of the people arguing for the innocence of Gotovina and Markač expected. It did not find that the wrong people were charged and that subordinates were scapegoated for crimes that had been planned by cvećke like Franjo Tuđman and Gojko Šušak. It found that there were no crimes.

This is new law. It invalidates the distinction between military and civilian targets in the Hague and Geneva Conventions by finding that any target can be retrospectively defined as having been military. And it empties of content the category of illegal war objectives by finding that the articulation of policy is not relevant in the task of characterising a policy.

Both of these new legal standards will be very encouraging to criminals and to military commanders who plan on targeting civilians in the future. Both of them will give hope to the people defending Radovan Karadžić and Ratko Mladić, because by the standard proposed in the appeals judgment, much of what they are charged with is not illegal.

13 replies on “Today is a good day to be a criminal.”

“..any target can be retrospectively defined as having been military” – shades of Obama’s retrospective definition of any adult male killed by drones in Pakistan/Afghanistan as a terrorist.

It is more than likely that the general sentiment of the rejected comments has been something along the lines of – the Hague is a puppet court, and the reason for its creation has once again been proved to be the manual “creation of history” for future generations in lines with what has diligently been beamed through Western media all these years, rather than providing justice and a platform for reconciliation in the Balkans. As for whether this “precedent” will help Karadzic or Mladic get acquitted, even though I am sure that is a growing concern among the European intelligentsia, I for one wouldn’t hold my breath. It has turned out to be quite predictable after all, as I am sure we will see in the next week or two, when the Haradinaj decision is due. After having experience with the Croatian brand of self-defence, American brand of non-interference in crimes against humanity, and European brand of justice, I hope you will forgive the pessimism.

The general point about precedent is worth underlining. A decision is only a precedent if it is used, and this is unpredictable. ICTY has recently made some strange decisions in which they ignored their own precedents. This is one and the removal of the genocide charges in the Karadžić case is another.
I think it is better to pass on the invitation to give a description of comments that I have rejected, maybe it is enough to say that what they have in common is that none of them offers a contribution to discussion.

Hi Eric, I just wanted to comment on your post where you say “ICTY has recently made some strange decisions in which they ignored their own precedents.” I study international law and basically, there are no precedents in international law. So, the ICTY not going by their previous judgments is actually perfectly normal. That’s all. You don’t have to publish this comment, I just wanted to send you a message. (As a side note, my personal opinion is that the Hague is a political court, and not a ‘legal’ one. Which is why I think this outcome makes little sense if one is considering the consequences. Politically, this can only harm the Balkans and greatly increase the tension between Serbia and Croatia. Just my 2 cents.) Take care, and thanks for a great article.

I think that the judgment of the ICTY is very negative. It is as if the whole German speaking population of South Tyrol, where I come from, would have been ethnically cleansed after the Second World War; and a court that was established to uphold human rights, decides that there was no violation of international humanitarian law.
Hundreds of thousands became refugees and several hundreds have been killed in this joint criminal enterprise to ethnically cleanse Croatia from its Serb population and reduce it to a manageable minority. The Court essentially ruled that ethnic cleansing of hundreds of thousands of people is not in violation of international law. The Court therefore de facto gives a legal approval to what happened by declaring that Croatia’s actions, as carried out by Gotovina, did not violate international humanitarian law. This is a truly negative precedent.

Besides all the legal errors that the Court has made, I would like to put the attention on one point of institutional engineering. How can one design an appeal’s court with only 5 judges? (The same criticism is valid for the ICC – which also has an appeals chamber consisting of only 5 judges). As this case shows, only 3 people in this world might believe that, for instance, Karadzic is innocent; but this is enough for him to effectively be declared innocent in the eyes of the world communiyt. An international court as important as the ICTY needs to have at least 9 judges, as is common for constitutional or supreme courts, or, even more appropriate, 17 judges like the Grand Chamber of the ECtHR. Why has the Grand Chamber 17 judges? It has 17 judges in order to be as representative as possible, and to minimise distorted interpretations of law that are more common in smaller panels. With a larger panel, it is unlikely that a decision as fundamentally wrong as this one could have ever been made. Creating an Appeals Chamber that decides over such fundamentally important topics as guilt and innocence of nations in the former Yugoslavia needs to have much more judges, as the topics about which the Court decides are not merely legal, but hugely political. The ICTY is not ruling only on individuals, it’s decisions also have a strong political message: by failing to convict any Croatians, Bosniaks or Kosovo Albanians it de facto cleansed all these nations of any war crime allegations of what happened in the former Yugoslavia. Although Serbia committed most crimes during the wars in the former Yugoslavia, a fact that is also mirrored in the ICTY judgements; it is simply not realistic to think that the other nations involved in the war fully complied with international humanitarian law.

This leads me to the last point. The judges, in making a ruling, have also to reflect how this will impact the credibility of the institution. It is said that the president of the Supreme Court decided, with his tie-breaking vote, not to declare Obamacare unconstitutional, mainly out of a fear to uphold the credibility of his institution. The credibility of a court is a huge credit that the judges have to deal with carefully. The collaboration of states with an international court also depends on the credibility and authority of this institution. With the decision that they made in the Gotovina case, the judges gave a huge blow to the credibility and authority of the institution that they represent. In the words of the dissenting opinion written by Italian judge Fausto Pocar, this decision “contradicts any sense of justice.”, and is very harmful for refugees, victims and the reconciliation in the former Yugoslavia.

Thanks for the comment. I would just want to correct the point that ICTY has not convicted any Croatians, Bosniaks or Kosovo Albanians — not the case, although arguments can be made (and are) about the distribution of indictments and the charging strategy.

It’s an interesting point about the size of panels. In domestic courts I think panels of 3 are not uncommon, so very likely that results in a lot of 2-1 verdicts. Probably at the heart of this is a conflict between lawyers who advocate a kind of legal positivism that imagines that law can be isolated from outside influences on the one side, and lawyers who are considering representative and interactive functions of law on the other.

Dear Professor Gordy,

Thanks for sharing your view which I respect although I cannot possibly be more distant from them. A point, maybe forgotten or ignored so far is that the ICTY Appeal Chamber’s verdict was the fruit of long prayers and hours of Adorations of the Holy Sacrament in Croatia and elsewhere. In a sense for one day and within a secular and fallacious institution such as the ICTY Divine and mortal justice coincided. We need nonetheless to continue to pray and repent at the same time. Bog Vas Blagoslovi

Bog i Hrvati

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