On Friday (July 20), the Appeals Chamber in the cases of Generals Gotovina and Markac released an intriguing order for an additional briefing. It asked the Prosecution to explain whether, in the event that Gotovina and/or Markac are “not found liable for unlawful artillery attacks” or to be members “of a joint criminal enterprise” liability should be ascribed on an alternative basis, of “superior responsibility under Article 7(3) of the Statute of the Tribunal” or as aider and abettors.
On the one hand, it is heartening that the Appeals Chamber is at least trying to appear as if they haven’t already made up their minds. They have raised the possibility that they could find both Gotovina and Markac not liable for unlawful artillery attacks and that they were not members of a joint criminal enterprise. Perhaps there is some common sense left in the Hague, after all.
On the other hand, the request to look at the “legal elements” of alternative forms of liability, “rather than particular factual issues”, beggars belief. To the cynic, it stinks of a desperate attempt to pin something – anything! – on the two generals, and even the most apologetic observer is forced to wonder why the generals weren’t convicted under Article 7 (which governs individual criminal responsibility) in the first place. After all, the ICTY is supposed to prevent collective responsibility and individualise guilt, so this latest development raises the question of why the generals were ever convicted using the trumped-up notion of a “joint criminal enterprise” which, oddly enough, doesn’t even exist in the ICTY Statute (and didn’t rate a mention in the original 2001 indictment).
From a purely moral standpoint, this latest order is a damning admission of the failure of the ICTY to observe its most basic principles. Both Article 7 (3) and the role of “aider and abettor” devolve responsibility from the actual perpetrator to someone who either assisted or merely had awareness of the crime. It is an admission that Generals Gotovina and Markac were not perpetrators. Furthermore, the very fact that the Prosecution felt the need to use an invented “mode of liability” in the form of a conspiracy theory (which is the only candid way of describing a “joint criminal enterprise”) strongly suggests that there were never any valid grounds in the first place to convict either general under Article 7 (3)… and explains the original judgement’s evasive statement that it was “not necessary” to make findings on any other mode of liability. Indeed, the trial proceedings and the insufficient evidence offered in direct relation to either general make a conviction under any mode of liability an affront to the very notion of justice.
So, this latest development in the Gotovina et al. case, while somewhat unanticipated, is merely the continuation of the ICTY farce. Whether it marks a genuine attempt by the Appeals Chamber to put the trial back on the track of true international justice or is merely a politically-motivated exercise in PR remains to be seen.