The Hague Tribunal’s decision that two Croatian generals were innocent of war crimes leaves serious questions unanswered.
The appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued probably its most controversial judgment so far on Friday.
By a 3-2 vote, the judges reversed the unanimous decision of the trial chamber in April 2011, which found two Croatian generals, Ante Gotovina and Mladen Markac, guilty of crimes against humanity.
The alleged crimes were committed against Serb civilians in August 1995 at the end of the armed conflict in Croatia. The appeals chamber found both defendants not guilty and ordered their immediate release.
The fact that the appeals chamber reached the decision by a majority of just one vote suggests that it was confronted with challenging issues of fact and law. But while the chamber undoubtedly faced a highly complex task, it failed to justify its crucial findings.
The case history of Operation Storm
The original judgment found that Gotovina, wartime commander in the Croatian army, and Markac, the head of the Croatian interior ministry’s Special Police units, participated in a joint criminal enterprise (JCE), the purpose of which was the deportation of Serb civilians from parts of Croatia previously under Serb control. Those areas formed part of what the Serb rebels named the Republic of Serb Krajina.
According to the first judgment, Gotovina, who headed the military campaign called Operation Storm, staged unlawful attacks on civilians in four main towns in the Krajina region, including its political and military centre, Knin.
The attacks were unlawful because they involved the indiscriminate shelling of Knin and the other three towns – Obrovac, Benkovac and Gracac. According to the judgment, the intensive two-day bombardment forced tens of thousands of civilians to leave their homes and Croatia as a whole. As this had discriminatory intent, it amounted to persecution, a crime against humanity.
Following the departure of the Serb civilians, military and police, members of the Croatian army, police and other persons embarked on the large-scale destruction and plunder of Serb property, killing a number of elderly Serbs who had remained in the area.
The trial chamber found Gotovina and Markac guilty of those crimes as well, considering them a foreseeable and natural consequence of the JCE, the purpose of which was the deportation of the Serb population.
A tough case to judge
It has long been all but impossible to have reasoned debates about what actually occurred in early August 1995 and in the subsequent months because of the highly emotional way in which Croats and Serbs in the former Yugoslavia experienced Operation Storm and the crimes – both actual and purported – that were committed during it.
In an environment more conducive to such debates, it would have been clear from the start that a court of law confronting these events would face a difficult task.
Those convinced that the Serb civilians were victims of deportation should be aware of the fact that an overwhelming majority of the Serbs fled before there was any physical contact between them and the Croatian army and police.
In that respect, the case differed from numerous other cases in which the ICTY dealt with crimes of forcible transfer or deportation. In those cases, it was relatively easy to prove the commission of underlying acts which forced the minorities in the given area to flee. Such acts included murder, illegal imprisonment, people being driven at gunpoint from their homes, the destruction and looting of property, and so on.
Another factor that cautioned against a facile conclusion about deportation was the fact that neutral observers who were in Knin right after the departure of the Serbs noticed little physical damage in the town.
The first judgment also cited a number of foreign observers who were surprised that they did not see much damage. This is significant because an important part of the prosecutor’s case concerned the allegedly indiscriminate attacks against civilians and civilian objects in Knin.
The limited damage suggested that it might be challenging to prove that the town had been subject to indiscriminate attack. In addition, the number of civilian casualties in Knin appears to have been relatively small – the number has not been determined yet, but it is unlikely to have exceeded a few.
At the same time, it has long been known that members of the Croatian army and police committed numerous crimes against civilians who remained in the area and faced no punishment for their actions.
In addition, a transcript of a meeting of the Croatian military and political leadership, held a week before the beginning of the Operation Storm (known as the ‘Brioni transcript’), contained exchanges from which it was possible to conclude that the leaders desired, and prepared for, the mass departure of Serb civilians.
Finally, there is little dispute that the Croatian authorities did their best in the years after 1995 to prevent the return of Serbs. All of this pointed to a genuine possibility that Serb civilians had been expelled from the area.
Was the shelling unlawful?
The appeals chamber dealt primarily with the issue of the shelling of Knin, Obrovac, Benkovac and Gracac: was it indiscriminate, and therefore unlawful, or not?
A positive answer, in conjunction with other available evidence introduced at the trial stage, would have led the appeals chamber to conclude that the shelling was staged with an unlawful purpose – the deportation of civilians. Such a finding would also have left intact the trial chamber’s finding that a JCE, involving the highest representatives of the Croatian political, military and police, did in fact exist.
The decision of the appeals chamber was based on the following rationale: the existence of a JCE depended on whether the shelling of the towns was unlawful; the assessment of lawfulness, in turn, critically depended on the distance at which the artillery projectiles fell in relation to legitimate targets.
As the appeals chamber reads the judgment of the trial chamber, that judgment concedes that the key factor in determining the existence of a JCE is whether the shelling of Knin, Obrovac, Gracac, and Benkovac was unlawful.
The remaining evidence pointing to the possible intent to expel draws strength from the evidence, if any, that the artillery attacks were unlawful. The remaining evidence concerns the Brioni transcript, inflammatory speeches by then Croatian President Franjo Tudjman, the murders, destruction of property, and pillage committed after August 4-5, 1995, and the legal and policy measures taken by the Croatian authorities to prevent the return of the ousted Serbs.
When the appeals chamber emphasised the critical importance of the assessment of whether the attacks were unlawful in the argument about the intent to expel, it read the trial chamber’s judgment correctly.
As the trial chamber put it, in those towns and villages in which the attacking forces were solely targeting military targets, “the chamber could not conclusively establish that those firing artillery had the intent to forcibly displace” the civilians (trial chamber judgment, para. 1755). In other words, what allows for a conclusion about the intent to forcibly displace is the indiscriminate nature of the shelling.
If, however, there was no conclusive evidence that the attacks in Knin, Benkovac, Obrovac, and Gracac were unlawful, the three judges in the majority in the appeals chamber would have caused the edifice created by the trial chamber to collapse.
Ultimately, that is what happened. The appeals chamber decided that the trial chamber erred in finding that the shelling of the four towns was indiscriminate. That being so, no crime of deportation could be shown and the trial chamber’s finding - that a JCE existed with the purpose of expelling Serbs - could not stand.
The ‘200 metre standard’
The appeals chamber rejected the trial chamber’s findings about the unlawful attacks because of the deficiency of the standard used by the latter in the determination of lawfulness. The appeals chamber referred to this as the ‘200 metre standard’.
Most of the shelling on August 4 and 5, 1995 was concentrated on Knin. Over a day and a half, the Croatian army fired some 900 projectiles into the town. The trial chamber found that at least 50 artillery projectiles landed in areas 300 to 700 metres away from the nearest target from the Croatian army’s list of artillery targets in the town.
For the judges in the trial chamber, the only reasonable explanation for such a high number of projectiles landing far from identified artillery targets was that those firing the projectiles did not aim at any specific target. To bolster the conclusion, the trial chamber inferred from three expert testimonies that an acceptable margin of error was 200 metres.
The appeals chamber, however, determined that the trial chamber adopted a margin of error that was not linked to any evidence it had received, and that the trial chamber failed to provide a reasoned opinion as to the basis for the margin of error it adopted (appeals chamber’s judgment (ACJ), para. 61). The appeals chamber reached this conclusion unanimously.
The five judges diverged sharply when considering the impact, if any, of the trial chamber’s error. For the three-member majority that supported acquittal – the ICTY’s president, Theodor Meron (from the United States), the former president of the Hague Tribunal, Patrick Robinson (from Jamaica), and a long-time member of the appeals chamber, Mehmet Gunney (from Turkey) – in the absence of a reasoned opinion from the trial chamber about where it derived the ‘200 metre standard’ from, “the fact that a relatively large number of shells fell more than 200 metres from fixed artillery targets could be consistent with a much broader range of error” (ACJ, para. 65).
Moreover, according to the majority, the trial chamber failed to explain how it could exclude the possibility that at least some of the projectiles that landed in Knin more than 200 metres from static military targets were aimed at legitimate mobile ‘targets of opportunity’, such as police cars (ACJ, para. 63).
Dissenting judges question shelling ‘errors’
The two dissenting judges – Carmel Agius (from Malta) and another former president of the ICTY, Fausto Pocar (from Italy) – emphatically rejected the reasoning of the majority, and appeared to have the better of the arguments.
As Agius framed it, the appeals chamber, having declared the ‘200 metre standard’ erroneous, failed to devise an appropriate margin of error, apply that standard to the evidence at hand, and make its own finding concerning the lawfulness of the shelling. In the absence of any standard substituting for the discarded ‘200 metre standard’, it is unclear how the appeals chamber could say that projectiles falling 700 or 800 meters from artillery targets could be considered honest errors.
It did not help the appeals chamber to say that, in Knin, the huge distances may have resulted from Croatian forces’ efforts to hit mobile targets of opportunity. Firstly, the trial chamber had concluded that the limited presence of the Serb military and police in Knin indicated that there would have been too few targets of opportunity in Knin on August 4 and 5, 1995 to account for the high number of projectiles that went far from the fixed targets.
Moreover, with respect to Benkovac, Gracac, and Obrovac, the trial chamber concluded, and the appeals chamber accepted, that there was no evidence whatsoever of lawful mobile targets (ACJ, paras. 62-63). And some projectiles in those three towns fell at distances of 450, 500, 700 and 800 metres from legitimate military targets (Agius dissenting opinion, para. 23).
Although the margin of error of artillery weaponry is a technical question, it strains credulity that any projectile landing this far from the closest legitimate target would have been fired in error.
None of the three witnesses who testified before the trial chamber about the reasonable margin of error, including Marko Rajcic, the artillery chief of the Croatian army’s Split Military District from April 1993 to June 1996, suggested that the margin of error might exceed 400 metres.
As Pocar pointed out, the failure of the appeals chamber to articulate a legal standard with which to assess the shelling made it impossible to determine whether the attack on Knin, Benkovac, Gracac, and Obrovac was lawful or not (Pocar dissenting opinion, para. 14).
The dissenters also criticised the majority for considering in isolation further evidence that purported to show that the shelling was unlawful, rather than in connection with other such evidence. That evidence includes: Gotovina’s order of August 2, 1995 which directed the Croatian army to shell the four towns, among other targets; evidence relating to Croatian army units’ implementation of the August 2 order; evidence from witnesses who experienced the shelling of Knin, and evidence about the proportionality of artillery attacks aimed at Milan Martic, commander-in-chief of the Croatian Serb military.
However this part of the dissenters’ opinion is less persuasive than the part criticising the failure of the majority to assess the distance at which the projectiles fell, because there is room for reasonably differing assessments of the significance and meaning of the remaining evidence.
Bogdan Ivanisevic is an attorney at BDK Advokati/Attorneys at Law in Belgrade. He has also worked as a researcher for Human Rights Watch and a consultant to the International Centre for Transitional Justice.