Tribunal Criminal Tribunal for the Former Yugoslavia

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 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.


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 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


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 1     region.

 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,


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 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


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 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


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 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

 5     towns.

 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


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 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

 7     unlawful.

 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


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 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


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 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

 9     judgement.

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

24     Statute.

25             In considering whether to enter convictions pursuant to alternate


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 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


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 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


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 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


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 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

10     towns.

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


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 1     alternate modes of liability.

 2             I shall now read the full operative text of the Appeals Chamber's

 3     disposition.

 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;


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 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.

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