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‘The Tribunal of Fools’

The Prosecution in the cases of Ante Gotovina and Mladen Markač (currently on appeal) must think we are fools.  Their August 17 response to the Gotovina Motion challenging the jurisdiction of the Appeals Chamber to consider an alternative mode of liability (given that the conviction was on the basis of a supposed Joint Criminal Enterprise) was obscenely disingenuous.  If they get away with this artifice, it will be a reprehensible example of the disparity between law and justice.

Superficially, the response seems reasonable enough.  They quote Article 25 of the Statute, which says that the Appeals Chamber may “revise” decisions of the Trial Chamber, and they cite the precedents of other ICTY and ICTR cases.

The first problem with this is that while the Appeals Chamber may revise decisions made by the Trial Chamber, it cannot revise something that doesn’t exist.  How do you reconsider something that wasn’t considered in the first place?!  The Trial Chamber decided it was “not necessary… to make findings on the other modes of liability”, which means there are no findings that can be revised with regard to the other modes of liability (which the Prosecution would like the Appeals Chamber to use to convict Generals Gotovina and Markač if they decide that the original finding on the basis of JCE cannot be upheld).

I repeat, there are no findings with regard to other modes of liability for the Appeals Chamber to reconsider.  The Trial Chamber made no decision regarding these modes of liability.  The Appeals Chamber cannot revise a decision that does not exist.

The second problem is that the precedents cited are somewhat fraudulent. The Prosecution claims that “if the Appeals Chamber were to revise Gotovina or Markač’s conviction from JCE to aiding and abetting, this would be the same as what occurred in Krstić, Simić, and Vasiljević”.  The same.  But they’re not the same.  They’re not even alike.

In Krstić’s original judgement (prior to Appeal), he was deemed a “principal perpetrator” and this was specified in terms of both “his mens rea and actus reus”.  The original judgement, furthermore, stated that the “evidence also satisfie[d] the three-pronged test established by the jurisprudence for General Krstić to incur command responsibility under Article 7(3)”.  It also noted that although he was eligible to be convicted under Article 7(3) it wasn’t necessary to enter a conviction because his liability was “sufficiently expressed in a finding of guilt under Article 7(1)” – the article about aiding and abetting.   There was, in other words, a basis for revision of his mode of liability as both Articles 7(1) and 7(3) were specifically addressed in the original judgement and he was found to be “individually responsible” and guilty of aiding and abetting… before the Appeal Chamber’s revision.

As for the case of Simić at al., Blagoje Simić was found to have “actively participated” in persecution, and both Miroslav Tadić and Simo Zarić were explicitly found “guilty of aiding and abetting”, the latter on the basis of his own admissions.

Vasiljević was likewise deemed to have “incurred individual criminal responsibility for the crime of murder”.  Indeed, the Trial Chamber concluded that he “personally participated” in the murder of seven Muslim men when he prevented them “from fleeing by pointing a gun at them”, escorted them to the location of their murder, and again pointed a gun at them “to prevent their escape”.

How anyone can think that these cases in which individual criminal responsibility and guilt in the form of aiding and abetting was established in the original judgement prior to appeal are the same as or even comparable to a case in which the Trial Chamber refused to make any findings as to modes of liability other than JCE is beyond my comprehension.  Perhaps I have a faulty definition of “the same”, but more likely it is that the Prosecution at the ICTY is playing us (and the judges of the Appeals Chamber) for fools.

Any judge worth his or her salt will not be hoodwinked into revising findings that do not exist on the basis of false precedents.  The lawyers for the Prosecution ought to hang their heads in shame.  Their August 17 “Response” is no more than a despicable act of legal trickery that has no place in a genuine court of justice.

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