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Prosecutor v. Ante Gotovina and Mladen Markač

Court International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number IT-06-90-A
Decision title Judgement
Decision date 16 November 2012
  • The Prosecutor
  • Ante Gotovina
  • Mladen Markač
Categories Crimes against humanity, War crimes
Keywords crimes against humanity, war crimes, Croatia, joint criminal enterprise, Krajina, Operation Storm, violation of the laws or customs of war
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In August 1995, the Croatian forces conducted a rapid offensive attack against the Krajina region of Croatia which had the purpose of removing ethnic Serbs, and make the region suitable for Croats instead. Both Gotovina and Markač were in a high military position that controlled the operation in Krajina.

Trial Chamber I found that both Gotovina and Markač had participated in a joint criminal enterprise (JCE, a mode of criminal responsibility in the jurisprudence of the Tribunal), which aimed to remove all Serbs from the Krajina region. Trial Chamber I found them guilty of crimes against humanity and war crimes; General Gotovina received a 24 year sentence, while Markač received 18 years imprisonment.

The Appeals Chamber considered that Trial Chamber I had erred in its analysis of the lawfulness of artillery attacks on four towns in Croatia. This error led the Appeals Chamber to reverse Trial Chamber I’s finding regarding the existence of a JCE to remove the Serb population from the Krajina region. This, in turn, resulted in the reversal of all convictions entered by Trial Chamber I under this mode of responsibility. Unable to enter convictions on any alternate modes of responsibility, the Appeals Chamber acquitted both Gotovina and Markač of all charges and ordered their immediate release.

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Procedural history

The operative amended joinder indictment against Ivan Čermak, Ante Gotovina and Mladen Markač was affirmed on 17 May 2007. The trial began on 11 March 2008, and Trial Chamber I rendered its judgment on 15 April 2011, sentencing Gotovina to 24 years and Markač to 18 years of imprisonment. Čermak was acquitted of all charges.

On 2 August and 12 October 2011 respectively, both Gotovina and Markač filed their appeal briefs. The appeals hearing was held on 14 May 2012 (the transcript is available here).

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Legally relevant facts

On 4 August 1995, Croatia initiated an offensive operation (codenamed Operation Storm) against the Krajina region of Croatia with the aim to remove the Serb population from there, and re-populate it with Croats. The operation was carried out through the commission of a large number of crimes against the Serb population of the Krajina region (para. 2).

During this time, Gotovina was assigned as operational commander for the southern part of Krajina. He was promoted into the rank of Colonel General, overseeing the units of the Croatian Army that were attached to the Split Military District (para. 3). Markač was the Commander of the Special Police of the Croatian Ministry of the Interior, and he was in charge of overseeing the Croatian military artillery units during the Operation Storm (para. 4).

On 15 April 2011, Trial Chamber I found Gotovina and Markač guilty of crimes against humanity (persecution, deportation, murder and inhumane acts) and violations of the laws or customs of war (plunder of public and private property, wanton destruction, murder and cruel treatment). Gotovina was sentenced to 24 years and Markač to 18 years of imprisonment (paras. 3-4).

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Core legal questions

  • Can the Appeals Chamber uphold any of the grounds adduced by the Appellants?

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Specific legal rules and provisions

  • Article 25 of the ICTY Statute.
  • Rules 117 and 118 of the ICTY Rules of Procedure and Evidence.

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Court's holding and analysis

The Appeals Chamber considered that “[t]he Trial Chamber [had] entered its findings concerning the lawfulness of artillery attacks on the Four Towns [in the Krajina region of Croatia] after explicitly considering a number of factors. The most significant of these was its analysis of individual impact sites within the Four Towns … [which] was premised on its conclusion that ‘a reasonable interpretation of the evidence’ was that an artillery projectile fired by the Croatian Army which impacted within 200 metres of a legitimate target was deliberately fired at that target” (in other words: since the accuracy of the artillery weapons was 200 metres, all impacts at a distance further than 200 metre from a legitimate target couldn’t be “accidents”, but were deliberately aimed at another (illegitimate) target. See paras. 25 and 52-61).

The Appeals Chamber “observe[d] that the Trial Chamber did not explain the specific basis on which it arrived at a 200 metre margin of error as  a reasonable interpretation of evidence on the record” (para. 58). Accordingly, “the Trial Chamber adopted a margin of error that was not linked to any evidence it received; this constituted an error on the part of the Trial Chamber. The Trial Chamber also provided no explanation as to the basis for the margin of error it adopted; this amounted to a failure to provide a reasoned opinion, another error” (para. 61). Therefore, “the Appeals Chamber … consider[ed] that no reasonable trier of fact could conclude beyond reasonable doubt that the Four Towns were subject to unlawful artillery attacks” (para. 83).

This finding led the Appeals Chamber to “reverse the Trial Chamber’s finding that a JCE [i.e. joint criminal enterprise] existed to permanently remove the Serb civilian population from the Krajina by force or threat of force … The Appeals Chamber notes that all of the Appellants’ convictions were entered pursuant to the mode of liability of JCE. All of the Appellants’ convictions are therefore reversed” (para. 98).

The Appeals Chamber was unable to enter convictions against either Gotovina (para. 136) or Markač (para. 157) on the basis of alternate modes of liability. As a result, Gotovina and Markač were acquitted of all charges.

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Further analysis

See on Joint Criminal Enterprises: G. Bigi, 'Joint Criminal Enterprise in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the Prosecution of Senior Political and Military Leaders: the Krajišnik Case', in: A. von Bogdandy & R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 2010, Vol. 14, pp. 51-83.

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Instruments cited

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Additional materials

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