In its response to the appellate briefs filed by the two Croatian generals, the prosecution states that the Appeals Chamber should reject all grounds of appeal denying the existence of the joint criminal enterprise aimed at expelling Serbs from Krajina and the participation of the two accused in it

Helen Brady, member of the prosecution teamHelen Brady, member of the prosecution team

The prosecution contends that in their appellate briefs Ante Gotovina and Mladen Markac ‘failed to point to any errors’ in the trial Chamber’s findings. The Trial Chamber sentenced the two Croatian generals to 24 and 18 years in prison respectively. The prosecution therefore urges the Appeals Chamber to ‘dismiss in its entirety’ the generals’ demand for their acquittal.

In its response to Gotovina’s appellate brief, the prosecution notes that the defense ‘has shown a substantial failure to understand’ the Trial Chamber judgment when it contested the Trial Chamber findings about the unlawful artillery attack on Knin. The defense stated in the appellate brief that the Trial Chamber reached its conclusion about the unlawful attack on Krajina after it was established that 5% of a total of 1,200 shells hit civilian areas, or 200 meters or more from the nearest military target. The prosecution notes that the Trial Chamber confirmed the exact point of impact for 154 shells: 77 of them hit civilian areas: that makes 50%, not 5% of the total. The defense’s conclusion, the prosecution states, is based on an assumption that all shells for which it was impossible to determine the exact point of impact in fact fell within a 200-meter radius from military targets.

The prosecution notes in its response that the finding about the indiscriminate shelling of towns was not based only on the statistical analysis of shell impacts, but also on the order General Gotovina issued on 2 August 1995. In the order, Gotovina demands that ‘Knin, Benkovac, Obrovac and Gracac be put under artillery fire’, or, to treat entire towns as targets.

The defense argued that the Trial Chamber erred when it rejected ‘reliable evidence’ on the evacuation plans and anti-Croat propaganda of the Krajina authorities as a reason for the Serb civilians leaving Krajina. The prosecution supported the conclusion in the judgment that the ‘primary and direct cause’ of the exodus of the tens of thousands of civilians was their fear from indiscriminate shelling. In the appeal, the prosecution contends, the defense merely reiterates ‘the arguments rejected at the trial’ and presents ‘a misunderstood view’ of the findings on the unlawful artillery attack. According to the prosecution, the defense is in the wrong when it asks the judges to link each fallen shell with a particular incident in which civilians fled, disregarding the statements of witnesses and failing to see the evidence as a whole.

Finally, the prosecution contests the claims made in the appellate brief denying the existence of a joint criminal enterprise aimed at expelling Serbs from Krajina and General Gotovina’s participation in it. The prosecution recalls that the Trial Chamber’s finding on the enterprise was based on four elements, which all ‘corroborate each other’. The first is the transcript of the Brijuni meeting where the participants, including President Tudjman and the two accused, agreed on carrying out the unlawful artillery attack. This resulted in Gotovina issuing an order to his troops to ‘treat entire towns as targets’. The second piece of evidence is the unlawful attack of 4 and 5 August 1995 itself, which resulted in at least 20,000 civilians fleeing Krajina. The third element is the crime spree committed by the Croatian armed forces after they entered Krajina. The crimes led to a climate in which ‘victims had no other choice but to leave’. The fourth element consists of the legal and other measures implemented by the Croatian government to prevent the Serb refugees from returning to Krajina and to facilitate the settlement of Croats in the Serb homes. The defense’s bid to look at those elements ‘in isolation and out of their context’ should be rejected, the prosecution argued.

The prosecution contends that the appellate brief in which the defense contests the allegation that Gotovina was part of the joint criminal enterprise focuses more on ‘[the defense’s] interpretation of evidence instead of the Trial Chamber’s findings’, stubbornly repeating that there ‘is no evidence’ to uphold the conclusions in the judgment. According to the prosecution, this approach is not in line with the appellate standards and should be dismissed. The prosecution’s brief goes on to list the indicia of Gotovina’s involvement in the joint criminal enterprise, such as his active participation at the Brijuni meeting, his issuing the orders for the artillery attack and his failure to punish the perpetrators and prevent crimes after the Croatian Army overran Krajina.

The prosecution’s response to Mladen Markac’s appeal uses similar arguments regarding the existence of the joint criminal enterprise. The only exception is that the former special police commander ordered the unlawful attack only on Gracac and not, like Gotovina, on several Krajina towns, the prosecution alleges.

The prosecution argues that the Appeals Chamber should reject all the grounds of appeal submitted by Markac’s defense: Markac has denied the responsibility of the Croatian special police for the destruction and looting of Gracac, the burning of Donji Lapac and the murder of civilians in the village of Oraovac. The prosecution maintains there is sufficient evidence that Markac knew about the murder of five elderly Serbs in the village of Grubori and that he deliberately tried to cover up the crime instead of investigating it, and contributing to the punishment of the perpetrators.

In Gotovina’s appellate brief his defense demanded that he be acquitted. Markac’s defense alternatively called for a milder sentence and the prosecution emphasized that the 18-year sentence was commensurate to the crimes the former special police commander was convicted of. They include the gravest war crimes such as persecution, murder, inhumane treatment and deportation. The prosecution recalled that those were ‘among the cruelest crimes known to humanity’.