The Rules - Engaging HVTs & OBL

[jmm99]

Geoff Corn, one of the briefers, has filed an explanation of the reasons for filing the brief, Amicus Brief Challenging the ICTY’s Ruling on Distinction in Gotovina. He also provides a brief summary of the key facts re: the military operation:

On April 15, 2011, the International Criminal Tribunal for the Former Yugoslavia issued its judgment in the case of Prosecutor v. Gotovina, et. al. Colonel General Ante Gotovina and two co-defendants were Generals in the Croatian Armed Forces (HV) tasked with launching the 1995 offensive to reestablish Croatian authority over the Croatian Serb breakaway region of the Krajina. Known as Operation Storm, the campaign involved a complex movement to contact by HV forces to defeat in depth Croat Serb forces (the SVK), capture the Krajina capital of Knin, and relieve pressure on neighboring Bosnian government forces fighting the Bosnian Serb dissident forces under the command of Ratko Mladic.

Ante Gotovina was an expatriate Croat and former non-commissioned officer in the French Foreign Legion. He returned to Croatia when the civil war began to join in the struggle against Serbian efforts to retain authority over the republic. Rising quickly through the ranks of the HV, he soon emerged as an exceptional operational leader. When the Croatian government decided to launch an offensive to reestablish its control over the breakaway Serb enclave in 1995, Gotovina was selected to lead the effort.

Operation Storm was remarkably successful. According to one source:

At dawn on 4 August 1995, the attack began with 150,000 Croatian Army troops amassed along 630 kilometres of front lines. Their forces soon broke through the lines of the Krajina Serb army and began a rapid advance toward the capital of Knin. By the second day of the operation, the Serb forces collapsed and the bulk of the [SVK] army retreated. The Croatian forces swiftly captured the entire region in four days, effectively ending the operation on 8 August. The operation, which lasted 84 hours, was documented as the largest European land offensive since World War II.

The operation also, however, resulted in the displacement of a large number of ethnic Serbs living in the Krajina. This ultimately led to an ICTY indictment alleging that Gotovina and his co-defendants committed crimes against humanity and ethnically cleansed the region.

Central to the Office of the Prosecutor’s (OTP) theory was an allegation that Gotovina ordered an unlawful artillery attack against the City of Knin on 4-5 August, the two days of the HV main offensive that lead to the capture of the city. At his trial, the OTP presented the opinion of Lieutenant Colonel Koenig, a career Dutch Artillery officer. Koenigs opined that the totality of the evidence, including operational orders, firing logs, enemy dispositions in Knin, and the pattern of artillery effects, indicated that Gotovina had ordered an indiscriminate use of HV artillery and that he had essentially treated the entire city as a general target. In response, the defense offered a report that I prepared on their behalf, and my testimony. In that report, I opined that there were a number of lawful military objectives located within Knin, that the totality of the evidence did not support a conclusion of unlawful attack, and that based on the assumptions provided to me by the defense (which were based on their understanding of the record facts), Gotovina’s employment of cannon and rocket artillery assets was both remarkably effective and compliant with the law of armed conflict.

Given facts like this (contested expert opinions), the choice of law by the Appeals panel becomes all important.

The amicus brief presents a number of legal issues. To me, the primary legal issue is the standard of proof required of a commander who orders an attack, where civilians might be involved (pp.15-16 pdf):

8. The Amici assume that the Appeals Chamber will likely follow the standard for targeting legality articulated in the Galic trial judgment. In that judgment, the Trial Chamber held that for an attack to qualify as a war crime, it “must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted.” [Galic, ¶ 42 (quoting Prosecutor v. Blaškic; Case No. IT-95-14-T, Trial Judgment, ¶ 180 (3 March 2000)]. In other words, the acts of violence must be wilfully directed against the civilian population or individual civilians.

Accordingly, we proceed on the premise that criminal culpability for targeting decisions requires proof that establishes beyond a reasonable doubt not only 1) that the commander intended to target protected persons or objects, or failed to exercise due care in the targeting process, but also 2) that the commander acted with this culpable state of mind based on the information reasonably available at the time he ordered the attack. If the commander made targeting decisions based on the situation as he reasonably believed given the “circumstances ruling at the time,” proof that his decision was in error is not dispositive of guilt. Only if the evidence establishes he knew or should have reasonably known the attack was unlawful at the time he directed it has he violated the law. In short, the legal standard does not impose an obligation to always be right: it imposes an obligation to make a reasonable decision based on the information available at the time.

Accordingly, a commander must not be found guilty of illegally targeting civilians or civilian objects based exclusively on a retrospective assessment of the evidence. The only valid basis for the criminal condemnation of a commander’s targeting decision is proof of the commander’s state of mind at the time the decision was made.

Frankly, the brief is "muddy" when it mixes two different standards of proof (1) actual intent - "conducted intentionally in the knowledge, or when it was impossible not to know, that civilians ... were being targeted"; and (2) negligence - "or failed to exercise due care in the targeting process". This disconnect may well come back to haunt the briefers.

Regards

Mike