1 Friday, 16 November 2012
2 [Appeals Judgement]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MERON: Good morning.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-06-90-A, the Prosecutor versus Ante Gotovina and Mladen Markac.
10 JUDGE MERON: Thank you, Registrar.
11 Mr. Gotovina, can you hear me in a language you can follow?
12 THE APPELLANT GOTOVINA: [Interpretation] I can hear you. Thank
13 you for inquiring.
14 JUDGE MERON: Thank you. You may be seated.
15 Mr. Markac, same question: Can you hear me and understand what
16 I'm saying?
17 THE APPELLANT MARKAC: [Interpretation] Yes, Your Honour,
18 everything is fine.
19 JUDGE MERON: Thank you.
20 I will now ask for the appearances of the parties. Let me start
21 with the counsel for Mr. Gotovina.
22 MR. KEHOE: Good morning, Your Honours. Gregory Kehoe,
23 Luka Misetic, Payam Akhaven, Gunael Mettraux, and Diana Juricevic on
24 behalf of General Gotovina.
25 JUDGE MERON: Thank you, Mr. Kehoe.
1 For Mr. Markac.
2 MR. MIKULICIC: Good morning, Your Honours. My name is
3 Goran Mikulicic. On my far left is Professor Kai Ambos, David Gault,
4 Tom Kuzmanovic, Mr. John Jones, and Mr. Vlado Rendulic.
5 JUDGE MERON: Thank you, Mr. Mikulicic.
6 We'll turn to the Prosecutor.
7 MS. BRADY: Good morning, Your Honours. Helen Brady appearing on
8 behalf of the Prosecution, together with Mr. Douglas Stringer;
9 Mr. Francois Boudreault; Ms. Ingrid Elliott; Ms. Saeeda Verrall; and our
10 case manager, Mr. Colin Nawrot. Thank you.
11 JUDGE MERON: Thank you, Ms. Brady.
12 As the Registrar announced, the case on our agenda today is the
13 Prosecutor against Ante Gotovina and Mladen Markac. In accordance with
14 the Scheduling Order issued on the 2nd of November, 2012, today the
15 Appeals Chamber will deliver its judgement. Following the practice of
16 the Tribunal, I will not read out the text of the appeal judgement except
17 for the disposition, but instead will summarise the essential issues on
18 appeal and the central findings of the Appeals Chamber. This oral
19 summary does not constitute any part of the official and authoritative
20 judgement of the Appeals Chamber, which is rendered in writing and will
21 be distributed to the parties at the close of the hearing.
22 This case concerns events that occurred from at least July 1995
23 to about 30 September 1995 in the Krajina region of Croatia. During this
24 period, Croatian leaders and officials initiated Operation Storm, a
25 military action aiming to take control of territory in the Krajina
2 During the period relevant to the indictment, Mr. Gotovina was a
3 colonel-General in the Croatian army, or HV; the commander of the HV's
4 Split Military District; and the overall operational commander of
5 Operation Storm in the southern portion of the Krajina region. The
6 Trial Chamber concluded that Mr. Gotovina shared the objective of and
7 significantly contributed to a joint criminal enterprise, or JCE, whose
8 common purpose was to permanently remove the Serb civilian population
9 from the Krajina region by ordering unlawful artillery attacks on Knin,
10 Benkovac, and Obrovac, and by failing to make a serious effort to prevent
11 or investigate crimes committed by his subordinates against Serb
12 civilians in the Krajina. The Trial Chamber found Mr. Gotovina guilty
13 pursuant to both the first and third forms of JCE, of crime against
14 humanity, and of violations of the laws or customs of war. He was
15 sentenced to 24 years of imprisonment.
16 During the period relevant to the indictment, Mr. Markac was the
17 assistant minister of the interior and operation commander of the special
18 police in Croatia. The Trial Chamber found that Mr. Markac shared the
19 objective of and significantly contributed to a JCE, whose common purpose
20 was to permanently remove the Serb civilian population from the Krajina
21 region, by ordering an unlawful artillery attack on Gracac and by
22 creating a climate of impunity through his failure to prevent,
23 investigate, or punish crimes committed by members of the special police
24 against Serb civilians. The Trial Chamber found Mr. Markac guilty
25 pursuant to the first and third forms of JCE, of crimes against humanity,
1 and violation of the laws or customs of war. He was sentenced to
2 18 years of imprisonment.
3 The Trial Chamber acquitted the third accused, Ivan Cermak, of
4 all charges against him.
5 Mr. Gotovina submitted four grounds of appeal and Mr. Markac
6 submitted eight grounds of appeal. Both of the appellants challenge
7 their convictions in their entirety. Mr. Markac also challenges his
8 sentence. The Appeals Chamber now turns to the appellants' contentions,
9 addressing first their submissions regarding unlawful artillery attacks
10 and the existence of a JCE.
11 Mr. Gotovina, in his first and third grounds of appeal, and
12 Mr. Markac, in his first and second grounds of appeal, in part, submit
13 that the artillery attacks on Knin, Benkovac, Obrovac, and Gracac - or
14 the four towns - were not unlawful and that without a finding that the
15 artillery attacks were unlawful, the Trial Chamber's conclusion that a
16 JCE existed cannot be sustained.
17 The Prosecution responds that the Trial Chamber did not err in
18 finding either that unlawful artillery attacks against the four towns
19 took place or that the JCE existed.
20 The Appeals Chamber recalls that the Trial Chamber concluded that
21 the appellants were members of a JCE whose common purpose was to
22 permanently remove Serb civilians from the Krajina by force or threat of
23 force. The Trial Chamber's conclusion that a JCE existed was based on
24 its overall assessment of several mutually reinforcing findings. The
25 Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that
1 the touchstone of the Trial Chamber's analysis concerning the existence
2 of a JCE was its conclusion that unlawful artillery attacks targeted
3 civilians and civilian objects in the four towns and that these unlawful
4 attacks caused the deportation of large numbers of civilians from the
5 Krajina region.
6 The Trial Chamber's finding that the artillery attacks on the
7 four towns were unlawful was heavily premised on its analysis of
8 individual impact sites within the four towns, which I will refer to as
9 the impact analysis. This impact analysis was in turn based on the
10 Trial Chamber's finding a 200-metre range of error for artillery
11 projectiles fired at the four towns, which I will refer to as the
12 200-metre standard. Based on this range of error, the Trial Chamber
13 found that all impact sites located more than 200 metres from a target it
14 deemed legitimate served as evidence of an unlawful artillery attack. In
15 identifying legitimate targets, the Trial Chamber took into account, in
16 part, its finding that the HV could not identify targets of opportunity,
17 such as moving police or military vehicles, in the four towns.
18 The Appeals Chamber unanimously holds that the Trial Chamber
19 erred in deriving the 200-metre standard. The trial judgement contains
20 no indication that any evidence considered by the Trial Chamber suggested
21 a 200-metre margin of error and it is devoid of any specific reasoning as
22 to how the Trial Chamber derived this margin of error. The Trial Chamber
23 considered evidence from expert witnesses who testified as to factors,
24 such as wind speed and air temperature, that could cause variations in
25 the accuracy of the weapons used by the HV against the four towns, and
1 the Trial Chamber explicitly noted that it had not received sufficient
2 evidence to make findings about these factors with respect to each of the
3 four towns. In its impact analysis, however, the Trial Chamber applied
4 the 200-metre standard uniformly to all impact sites in each of the four
6 In these circumstances, the Appeals Chamber is unanimous in
7 finding that the Trial Chamber erred in adopting a margin of error that
8 was not linked to the evidence it received.
9 With respect to targets of opportunity in the four towns, the
10 Appeals Chamber holds that the Trial Chamber did not err in determining
11 that the HV had no ability to strike targets of opportunity in the towns
12 of Benkovac, Gracac, and Obrovac. However, the Appeals Chamber notes
13 that the Trial Chamber was presented with, and did not clearly discount,
14 evidence of targets of opportunity in the town of Knin. In this context,
15 the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that
16 the Trial Chamber erred in concluding that the attacks on Knin were not
17 aimed at targets of opportunity.
18 The Appeals Chamber, Judge Agius and Judge Pocar dissenting,
19 recalls that, while the Trial Chamber considered a number of factors in
20 assessing whether particular shells were aimed at lawful military
21 targets, the distance between a given impact site and the nearest
22 identified artillery target was the cornerstone and organising principle
23 of the Trial Chamber's impact analysis. The Appeals Chamber, Judge Agius
24 and Judge Pocar dissenting, holds that the Trial Chamber's errors with
25 respect to the 200-metre standard and targets of opportunity are
1 sufficiently serious that the conclusions of the impact analysis cannot
2 be sustained. Although the Trial Chamber considered additional evidence
3 in finding that the attacks on the four towns were unlawful, the
4 Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that,
5 absent the impact analysis, this remaining evidence is insufficient to
6 support a finding that the artillery attacks on the four towns were
8 In view of the foregoing, the Appeals Chamber, Judge Agius and
9 Judge Pocar dissenting, finds that no reasonable Trial Chamber could
10 conclude beyond reasonable doubt that the four towns were subject to
11 unlawful artillery attacks. Accordingly, the Appeals Chamber,
12 Judge Agius and Judge Pocar dissenting, grants Mr. Gotovina's first
13 ground of appeal in part and Mr. Markac's second ground of appeal in part
14 and reverses the Trial Chamber's finding that the artillery attacks on
15 the four towns were unlawful.
16 With respect to liability via JCE, the Appeals Chamber observes
17 that the Trial Chamber's conclusion that a JCE existed was based on its
18 overall assessment of several mutually reinforcing findings, but the
19 Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that
20 the Trial Chamber's findings on the JCE's core common purpose of forcibly
21 removing Serb civilians from the Krajina rested primarily on the
22 existence of unlawful artillery attacks against civilians and civilian
23 objects in the four towns. While the Trial Chamber also considered
24 evidence concerning the planning and aftermath of the artillery attacks
25 to support its finding that a JCE existed, it explicitly considered this
1 evidence in light of its conclusion that the attacks on the four towns
2 were unlawful. Furthermore, the Trial Chamber did not find that either
3 of the appellants was directly implicated in Croatia's adoption of
4 discriminatory policies.
5 In these circumstances, having reversed the Trial Chamber's
6 finding that artillery attacks on the four towns were unlawful, the
7 Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that
8 no reasonable Trial Chamber could conclude that the only reasonable
9 interpretation of the circumstantial evidence on the record was the
10 existence of a JCE with the common purpose of permanently removing the
11 Serb population from the Krajina by force or threat of force.
12 In view of the foregoing, the Appeals Chamber, Judge Agius and
13 Judge Pocar dissenting, grants Mr. Gotovina's first and third grounds of
14 appeal and Mr. Markac's first and second grounds of appeal in part and
15 reverses the Trial Chamber's finding that a JCE existed to permanently
16 remove the Serb civilian population from the Krajina by force or threat
17 of force. It is therefore unnecessary to address the appellants'
18 remaining contentions regarding the JCE's existence. The Appeals Chamber
19 notes that all of the appellants' convictions were entered pursuant to
20 the mode of liability of JCE. All of the appellants' convictions are
21 therefore reversed.
22 Having quashed, Judge Agius and Judge Pocar dissenting, the
23 appellants' convictions, all of which were entered pursuant to the mode
24 of liability of JCE, the Appeals Chamber now considers the submissions of
25 the parties regarding the possibility of entering convictions under
1 alternate modes of liability. The Appeals Chamber recalls that, in its
2 order for additional briefing of 20 July 2012, it determined that aiding
3 and abetting and superior responsibility are the alternate modes of
4 liability most relevant to the Trial Chamber's findings.
5 The appellants challenge the Appeals Chamber's jurisdiction to
6 enter convictions under alternate modes of liability and assert that, in
7 any event, the Prosecution waived its right to seek convictions under
8 alternate modes of liability because it did not appeal the trial
10 The Appeals Chamber observes, Judge Pocar dissenting, that it has
11 on multiple occasions entered convictions on the basis of alternate modes
12 of liability. In this respect, the Appeals Chamber notes that
13 Article 25(2) of the Statute, specifically the power it vests in the
14 Appeals Chamber to revise a decision taken by Trial Chamber, grants the
15 Appeals Chamber authority to enter convictions on the basis of alternate
16 modes of liability.
17 The Appeals Chamber, Judge Pocar dissenting, is not convinced
18 that the appellants have presented cogent reasons requiring departure
19 from its practice of entering convictions on the basis of alternate forms
20 of liability in certain circumstances. The Appeals Chamber notes,
21 however, that it will not enter convictions under alternate modes of
22 liability, where this would substantially compromise the fair trial
23 rights of appellants or exceed its jurisdiction as delineated in the
25 In considering whether to enter convictions pursuant to alternate
1 modes of liability in this case, the Appeals Chamber will assess the
2 Trial Chamber's findings and other evidence on the record de novo. The
3 Appeals Chamber recalls that the Trial Chamber's analysis was focused on
4 whether particular findings were sufficient to enter convictions pursuant
5 to JCE as a mode of liability. Accordingly, the Appeals Chamber will
6 consider, but will not defer to, the Trial Chamber's relevant analysis.
7 Turning first to the appellants' liability for the artillery
8 attacks on the four towns, the Appeals Chamber recalls that it has
9 reversed, Judge Agius and Judge Pocar dissenting, the Trial Chamber's
10 finding that the artillery attacks on the four towns were unlawful. The
11 Appeals Chamber recalls the Trial Chamber's determination that in the
12 context of the specific factual circumstances before it, it would not
13 characterise civilian departures from towns and villages subject to
14 lawful artillery attacks as deportation, nor could it find that those
15 involved in launching lawful artillery attacks had the intent to forcibly
16 displace civilians. In these factual circumstances, the Trial Chamber's
17 reasoning would preclude finding that departures from the four towns
18 concurrent with lawful artillery attacks constituted deportation. Having
19 assessed the evidence, the Appeals Chamber agrees with the relevant
20 analysis of the Trial Chamber and finds that in the factual context of
21 this case, departures of civilians concurrent with lawful artillery
22 attacks cannot be qualified as deportation.
23 The Appeals Chamber further observes that given its reversal of
24 the finding that a JCE existed and absent a finding of unlawful attacks,
25 the trial judgement does not include any explicit alternative findings
1 setting out the requisite mens rea for deportation which could be
2 ascribed to the appellants on the basis of lawful artillery attacks. In
3 these circumstances, the Appeals Chamber is not satisfied that the
4 artillery attacks the appellants were responsible for are sufficient to
5 prove them guilty beyond reasonable doubt for deportation under any
6 alternate mode of liability pled in the indictment.
7 Turning to Mr. Gotovina's potential responsibility under
8 alternate modes of liability based on additional findings of the
9 Trial Chamber, the Appeals Chamber recalls that, in addition to its
10 findings regarding the artillery attacks on the four towns, the
11 Trial Chamber found that Mr. Gotovina was aware of crimes allegedly being
12 committed in the four towns before and after the artillery attacks; that
13 these crimes required investigation; and that Mr. Gotovina failed to
14 follow-up on the crimes. Moreover, the Trial Chamber specifically noted
15 three additional measures that Mr. Gotovina could have taken, namely,
16 contacting and seeking assistance from relevant people; making public
17 statements; and diverting available capacities towards following up on
18 these crimes. The Trial Chamber concluded that Mr. Gotovina failed to
19 make a serious effort to investigate the crimes and to prevent future
20 crimes. The Appeals Chamber observes that the Trial Chamber relied on
21 its finding of the unlawfulness of artillery attacks in assessing
22 Mr. Gotovina's responsibility for additional conduct and failure to act.
23 However, the Appeals Chamber, Judge Agius dissenting, considers
24 that the Trial Chamber's description of additional measures that
25 Mr. Gotovina should have taken was terse and vague and it failed to
1 specifically identify how these measures would have addressed
2 Mr. Gotovina's perceived shortcomings in following up on crimes. The
3 Appeals Chamber recalls that the Trial Chamber explicitly considered
4 evidence that Mr. Gotovina adopted numerous measures to prevent and
5 minimise crimes and general disorder among the HV troops under his
6 control. The Appeals Chamber further recalls that expert testimony at
7 trial indicated that Mr. Gotovina took all necessary and reasonable
8 measures to maintain order among his subordinates. In this context, the
9 Appeals Chamber, Judge Agius dissenting, considers that the evidence on
10 the record does not prove beyond reasonable doubt that any failure to act
11 on Mr. Gotovina's part was so extensive as to give rise to criminal
12 liability pursuant to aiding and abetting or superior responsibility.
13 In this context, the Appeals Chamber, Judge Agius dissenting, can
14 identify no remaining Trial Chamber findings that would constitute the
15 actus reus supporting a conviction pursuant to an alternate mode of
16 liability. Accordingly, the Appeals Chamber, Judge Agius dissenting,
17 will not enter convictions against Mr. Gotovina on the basis of alternate
18 modes of liability.
19 Turning to Mr. Markac's potential responsibility under alternate
20 modes of liability based on Trial Chamber findings which have not been
21 reversed, the Appeals Chamber recalls that the Trial Chamber found that
22 Mr. Markac failed to order investigations of alleged criminal acts
23 committed by members of the special police. The Trial Chamber concluded
24 that, through this failure to act, Mr. Markac created a climate of
25 impunity among members of the special police, which encouraged subsequent
1 crimes committed by the special police, including murder and destruction
2 of property.
3 The Appeals Chamber notes that the Trial Chamber did not
4 explicitly find that Mr. Markac made a substantial contribution to
5 relevant crimes committed by the special police or that he possessed
6 effective control over the special police. Moreover, the
7 Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that
8 all of the Trial Chamber's findings on Mr. Markac's culpability were made
9 in the context of its finding of unlawful artillery attacks on the four
11 Consequently, the Appeals Chamber finds that the Trial Chamber
12 did not make findings sufficient, on their face, to enter convictions
13 against Mr. Markac on the basis of either aiding and abetting or superior
14 responsibility. In the absence of such findings, and considering the
15 circumstances of this case, the Appeals Chamber, Judge Agius dissenting,
16 declines to assess the Trial Chamber's remaining findings and evidence on
17 the record. Doing so would require the Appeals Chamber to engage in
18 excessive fact-finding and weighing of evidence. The Appeals Chamber,
19 Judge Agius and Judge Pocar dissenting, recalls that the existence of a
20 JCE and unlawful artillery attacks underpin all of the material findings
21 of the trial judgement. In this context, any attempt to derive
22 inferences required for convictions under alternate modes of liability
23 would risk substantially compromising Mr. Markac's fair trial rights.
24 In light of the above, the Appeals Chamber, Judge Agius
25 dissenting, will not enter convictions against Mr. Markac on the basis of
1 alternate modes of liability.
2 I shall now read the full operative text of the Appeals Chamber's
4 Mr. Gotovina, would you stand.
5 Mr. Markac, would you stand, please.
6 [The appellants stand]
7 JUDGE MERON: For the foregoing reasons, the Appeals Chamber,
8 Pursuant to Article 25 of the Statute and Rules 117 and 118 of
9 the Rules;
10 Noting the respective written submissions of the parties and the
11 arguments they presented at the hearing of 14 May 2012;
12 Sitting in open session;
13 Grants, Judge Agius and Judge Pocar dissenting, Ante Gotovina's
14 first ground of appeal and third ground of appeal, in part;
15 Reverses, Judge Agius and Judge Pocar dissenting, Ante Gotovina's
16 convictions for persecution, deportation, murder, and inhumane acts as
17 crimes against humanity, and of plunder of public and private property,
18 wanton destruction, murder, and cruel treatment as violations of the laws
19 or customs of war;
20 And enters, Judge Agius and Judge Pocar dissenting, a verdict of
21 acquittal under Counts 1 , 2, 4, 5, 6, 7, 8, and 9 of the indictment;
22 Dismisses, Judge Agius and Judge Pocar dissenting, as moot
23 Ante Gotovina's remaining grounds of appeal;
24 Grants, Judge Agius and Judge Pocar dissenting, Mladen Markac's
25 first and second grounds of appeal, in part;
1 Reverses, Judge Agius and Judge Pocar dissenting, Mladen Markac's
2 convictions for persecution, deportation, murder, and inhumane acts as
3 crimes against humanity, and of plunder of public and private property,
4 wanton destruction, murder, and cruel treatment as violations of the laws
5 or customs of war;
6 And enters, Judge Agius and Judge Pocar dissenting, a verdict of
7 acquittal under Counts 1, 2, 4, 5, 6, 7, 8, and 9 of the indictment;
8 Dismisses, Judge Agius and Judge Pocar dissenting, as moot
9 Mladen Markac's remaining grounds of appeal;
10 Orders, in accordance with Rule 99(A) and 107 of the Rules, the
11 immediate release of Ante Gotovina and Mladen Markac, and directs the
12 Registrar to make the necessary arrangements.
13 Judge Theodor Meron appends a separate opinion.
14 Judge Carmel Agius appends a dissenting opinion.
15 Judge Patrick Robinson appends a separate opinion.
16 Judge Fausto Pocar appends a dissenting opinion.
17 Mr. Gotovina and Mr. Markac, you may be seated.
18 [The appellants sit down]
19 JUDGE MERON: Madam Registrar, you may now distribute copies of
20 the judgement, please, to the parties.
21 This hearing of the Appeals Chamber of the International Criminal
22 Tribunal for the former Yugoslavia stands adjourned.
23 --- Whereupon the hearing adjourned at 9.40 a.m.