THE HAGUE | 21.11.2012.
Minority Criticizes Majority (3)

MUST IT BE "EXPLICIT" WHEN IT IS "OBVIOUS"?

Judge Pocar opposed the decision of the majority in the Appeals Chamber not to convict generals Gotovina and Markac on the basis of their command responsibility for failing to prevent and punish crimes of their subordinates arguing that this was yet another indication of the ‘legal confusion’ in the majority’s reasoning. Judge Agius argued that the Trial Chamber’s findings on the responsibility of the accused for crimes were rejected for lack of ‘explicit statements’ although such statements would merely be ‘spelling out the obvious’

Judges Meron, Robinson and Guney acquitted Gotovina and Markac of charges based on their individual responsibility for their alleged part in the joint criminal enterprise concluding that the enterprise didn’t exist. The judges then considered possible ‘alternate modes of liability’. As a result, the majority in the Appeals Chamber found that the accused generals were not guilty on the basis of command responsibility for their failure to prevent and punish their subordinates who committed crimes against Serb civilians during and after Operation Storm.

Judges Pocar and Agius strongly opposed this decision of the majority, just as they did in respect of the other findings in the appellate judgment. Judge Pocar, former president of the Tribunal, described the findings on the ‘alternate modes of liability’ as yet another confirmation of ‘the legal confusion’ in the reasoning of the three-member majority. In Judge Pocar’s view, the finding that the accused were guilty on the basis of their command responsibility would not be tantamount to entering a ‘new conviction’ but a mere review of the trial judgment, in which the judges would switch from one mode of liability to another, which is a frequent occurrence in appellate proceedings.

Judge Agius, the other member of the minority and the current vice-president of the Tribunal, contends that the issue of ‘alternate modes of liability’ should never have been be raised as, in his view, the accused were guilty as participants of the joint criminal enterprise. However, since the question was raised, Agius tried to answer to it and explain why he thought the majority erred in their conclusion that there were no grounds to convict Gotovina and Markac on command responsibility.

Presenting the reasons behind the decision not to convict Gotovina on command responsibility, the majority of the appellate judges stated that nowhere in the trial judgment was it explicitly explained which ‘relevant people’ Gotovina should have contacted about the crimes, what kind of additional public statements Gotovina should have made, what kind of ‘available capacities’ Gotovina should have diverted towards preventing and following up on crimes; and how his “additional measures would have addressed (Gotovina’s) perceived shortcomings in following up on crimes”. The majority notes that the Trial Chamber devoted just six lines in the judgment to an analysis of those issues.

As Judge Agius said, such criticism was not only ‘unwarranted and petty’ but also ‘completely unjustified and unfair’ to Judge Orie’s Trial Chamber. First, it is not true that the Trial Chamber limited its analysis to just six lines: in fact, it dedicated 21 pages in the judgment to analyzing this issue, Judge Agius said. Those pages ‘explain in detail’’ the following: first, that Gotovina knew about crimes of his subordinates and that even commander of the Knin Garrison Ivan Cermak confirmed it, second, what Gotovina did and did not do in relation to the extensive information he had received about these crimes, and third, that ‘on more than one occasion’ Gotovina refused to acknowledge the involvement of the forces under his command in the crimes committed. In fact, Gotovina “commended and praised” his subordinates and their conduct in Operation Storm when he knew that crimes had been committed, Judge Agius noted.

Furthermore, the majority ‘ignores the relevant parts’ of the trial judgment describing ‘in great detail’ Gotovina’s powers as the commander of the Split Military District and the fact that the ‘relevant people” Gotovina should have contacted about the crimes were military police officers, who were subordinate to him, Judge Agius noted. The trial judgment clearly showed that Gotovina knew what his powers and responsibilities were, who the actors in the theater of war were and who he should have talked to about the prosecution of the crimes. In Judge Agius’s opinion, the majority expected the Trial Chamber to ‘spell out the obvious’.

With respect to the majority’s findings on Markac’s responsibility, Judge Agius said he was ‘at loss’ to understand the reasons for the decision not to convict him on the basis of command responsibility. In relation to Gotovina, the Majority appeared at least willing to examine the Trial Chamber’s findings, Judge Agius said. With respect to Markac, however, the Majority did not even entertain the idea of assessing the relevant findings, but 'simply dismisses' such findings for purported 'lack of explicit statements' about Markac's powers as a commander. Judge Agius drew attention to two completely divergent approaches and asked why the Majority did it.

The first ‘explicit statement’ that the majority in the Appeals Chamber considers to be missing from the trial judgment was that the special police commander Markac ‘possessed effective control over the special police’. Even if the Trial Chamber did not explicitly use those words, it cannot be doubted that the Trial Chamber concluded that Markac had effective control over the special police. First, it is clear that Markac was the operative commander of the special units in the field during and after Operation Storm, the special police were subordinated to him, answered to him and kept ‘him regularly informed’. Finally, Markac regularly received reports about his subordinates’ crimes and he was duty bound to investigate and suspend the perpetrators.

The second ‘explicit statement’ missing in the trial judgment according to the majority is the finding that Markac ‘substantially contributed’ to the crimes committed by the special police. Judge Agius disagrees that such a statement was necessary given the findings of the Trial Chamber that ‘leave no doubt’ as to Markac’s contribution through his failure to punish crimes, which created an environment conducive to the commission of the crimes.

All that, in Judge Agius’s opinion, ‘would be more than sufficient to remove any doubt’ that the Trial Chamber had indeed established Markac’s ‘effective’ and ‘de jure’ control over the police forces as well as his ‘substantial contribution’ to the commission of the crimes.

In the conclusion, Judge Agius notes, ‘I firmly believe’ that Gotovina and Markac could be found guilty on the basis of command responsibility for failing to prevent and punish the crimes committed by their subordinates, soldiers and police officers, irrespective of whether the artillery attacks on the Krajina towns were unlawful or not.