International Justice

CJ354 Endicott College

The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth

A recent post to Justice in Conflict (Here) looks at the legal and political consequences of the recent reversal by the Appeals Chamber in the ICTY. The reversal, considered one of the “most comprehensive reversals of the Tribunal’s 19-year history” ordered the immediate release of Ante Gotovina and Mladen Markač.

The Appeals Chamber’s summary accepts the two main arguments of the Gotovina and Markač with regards to Operation Storm:

“first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand in regard to the defendants.”

By finding Operation Storm within the confines of international law, the response and debate surrounding the appeal has been quick and intense. The Serbian Prime Minister was fast to respond that the ICTY is a function of “pre-determined political tasks”. The Croatian President conversely interpreted the judgement as evidence that the “Croatian army wasn’t involved in any criminal activities.” Ante Gotovina and Mladen Markač were welcomed by hundreds of thousands of people, as heroes.

But the implications of this decision are still unclear. By acquitting Ante Gotovina and Mladen Markač of Operation storm, and ultimately relieving the Croats of responsibility in the eyes of the ICTY, what will this mean for future judgements of international crimes? If Operation Storm, which resulted in the flight of a quarter-million Serbs, can be considered lawful, what else can weave its way through the politics of the international legal system?

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2 responses to “The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth

  1. amyg414 November 19, 2012 at 8:37 pm

    Your post raises a number of interesting questions. Key to this verdict was the fact that the court’s Appeals Chamber found errors in the original ruling, in particular that it failed to find “the existence of a joint criminal enterprise” that was specifically intent on permanently and forcibly removing Serbian civilians from the Krajina region. This seems very similar to some of the topics we discussed earlier in the quarter about how it can at times be very difficult to prove intentions (such as in determining if a situation meets the requirements for genocide, for example). As you mentioned, Croatia’s president lauded the ICTY acquittal of Ante Gotovina and Mladen Markač as proving the generals were innocent and that Croatia had not targeted civilian populations of Croatian Serbs. However, the acquittal is based simply on lack of evidence, it does not affirm that Croatia is not guilty of war crimes, or even that the generals were not guilty of forcibly removing civilians. Of course, it can be politically advantageous to make that claim. Interestingly enough, Croatia is due to join the EU in July, since they have handed over their war crimes suspects, which had been a condition of their acceptance into the EU.

    Specifically, it will be interesting to see how this acquittal may impact the trials of Radovan Karadžić and Ratko Mladić. Al Jazeera has been following this story, and last Friday posted an article that included comments made by Serbian president, Tomislav Nikolić. He commented on the acquittal, calling it a “scandalous, political decision,” and mentioned that Serbia would scale back its co-operation with The Hague as a way of protesting this decision.
    ——-

    Anyone interested in reading the Al Jazeera articles (or watching the video coverage they have as well) can go to: http://www.aljazeera.com/news/europe/2012/11/20121116184857429962.html

    There have been numerous other articles online, including the following:
    http://www.euronews.com/2012/11/16/hague-appeal-court-clears-jailed-croatian-officers/
    http://rt.com/news/hague-tribunal-croat-officers-895/
    http://www.cnn.com/2012/11/16/world/europe/europe-war-crimes-acquittal/index.html

    (Sorry, I cannot directly embed hyperlinks in a response to a blog post)

  2. mjbarnes1 November 19, 2012 at 11:12 pm

    Although the release of Ante Gotovina and Mladen Markač is certainly not a vindication of their innocence and may have consequences for the portrayal of the Yugoslav Wars and relations in the region, I think the decision can be beneficial to the process of transitional justice. It demonstrates that the principles of justice can be strictly adhered to and result in a free and fair trial for the accused. If the prosecution did not meet its burden of proof, then the accused should be acquitted and allowed to walk free. Simple as that. However, perverse we might find acquittal, it is, undeniably, a necessary component of justice as without the possibility of exoneration there would be no point even holding trials. International tribunals and courts are too often painted as biased entities that merely formalise forgone conclusions about guilt. Hopefully, this decision will help adjust this view amongst critics (probably not accused parties though).

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