If Gotovina and Markac end up being acquitted of the artillery attack on Krajina towns or involvement in the joint criminal enterprise on appeal, should they be found guilty of command responsibility or aiding and abetting the crimes? The prosecution has to file its answers to those hypothetical questions asked by the Appeals Chamber before 10 August 2012 to assist the judges to achieve ‘a just resolution’ the appellate proceedings

Ante Gotovina and Mladen Markac in the courtroomAnte Gotovina and Mladen Markac in the courtroom

The Appeals Chamber has ordered the prosecution to present its opinion if the Croatian generals Ante Gotovina and Mladen Markac should be found guilty of command responsibility or aiding and abetting crimes, if they are acquitted of the charges of artillery attack on civilians or the joint criminal enterprise aimed at the permanent elimination of Serbs from Krajina. The prosecution should file its submission by 10 August 2012. Gotovina’s and Markac’s defense are expected to respond by 31 August 2012.

In April 2012, Ante Gotovina, former Split Military District commander, and Mladen Markac, special police commander, were found guilty of taking part in a joint criminal enterprise and sentenced to 24 and 18 years respectively. The aim of the enterprise, the judgment concluded, was implemented through the indiscriminate shelling of Knin, Obrovac, Benkovac and Gracac in Operation Storm in the summer of 1995. The defense teams appealed against the judgment, asking the Appeals Chamber to reverse the ‘arbitrary’ finding on the existence of the joint criminal enterprise. According to the defense, this conclusion was based on ‘uncorroborated arguments’.

In today’s order, the Appeals Chamber referred to the previously presented written and oral arguments of the parties regarding the possibility of obtaining a conviction on alternative modes of liability. The Appeals Chamber holds this ‘additional briefing’ on the issue could assist the judges in a ‘just resolution’ of their appeals. The prosecution is expected to state if the ‘remaining findings of the Trial Chamber’ satisfy the legal standard confirming the existence of alternative modes of liability.

To avoid the notion that these unusual hypothetical questions to the prosecution imply that the acquittal of the Croatian generals is a ‘sure thing’, the Appeals Chamber has insisted that the order ‘in no way expresses the Appeals Chamber’s views on Gotovina’s and Markac’s appeals’.