In their dissenting opinions, judges Agius and Pocar dissected the approach and findings of the majority in the Appeals Chamber. In its judgment rendered last week, the Appeals Chamber acquitted Ante Gotovina and Mladen Markac on all counts in the indictment. Gotovina and Markac were charged with taking part in the joint criminal enterprise in which crimes were committed against Serb civilians in Krajina during and after Operation Storm in the summer of 1995

Fausto Pocar and Carmel Agius, judges in the TribunalFausto Pocar and Carmel Agius, judges in the Tribunal

Dissenting opinions are not a rarity in the judgments rendered by the Trial and Appeals Chambers of the Tribunal. Yet they have never been as critical and harsh as the opinions appended by judges Agius and Pocar, the minority, to the Majority’s appellate judgment in the Gotovina and Markac case. The two judges expressed their fundamental disagreement with the conclusions of the majority of the Appeals Chamber – judges Meron, Robinson and Guney, who acquitted generals Gotovina and Markac.

In the opinion of the minority, the Majority's approach to the Trial Chamber's judgment sentencing Gotovina to 24 and Markac to 18 years was 'artificial and defective', contradictory, vague and distorted. The Majority's reasoning was 'confusing and confused’, full of ‘misinterpretations’ leading to ‘erroneous conclusions’; in parts of the judgments, their findings are ‘simply grotesque’. All in all, as Judge Pocar put it, the Majority’s judgment ‘contradicts any sense of justice’.

Substantially, judges Pocar and Agius disagree with the Majority because in their view, it misinterpreted and distorted the Trial Chamber’s findings and conclusions and then ‘compartmentalized” and analyzed them ‘in isolation’ from the totality of evidence. The Majority in the Appeals Chamber ruled that the Trial Chamber’s conclusion that all artillery impacts that fell more than 200 m away from a legitimate target were unlawful was the ‘corner stone’ of the Trial Chamber’s judgment. The Majority stated that the 200 m standard was ‘arbitrary’ and ‘unreasoned’; this destroyed the ‘corner stone’ and the entire construction - the judgment - collapsed. In the view of the Majority, if the 200 m standard cannot stand, there are no unlawful attacks on civilians; if there were no unlawful attacks, there is no joint criminal enterprise and the accused are not guilty.

It is the opinion of the minority, this approach has multiple defects. First, if the Appeals Chamber holds that the Trial Chamber applied a wrong legal standard, the Tribunal’s rules and jurisprudence require that the Appeals Chamber formulate a new, correct legal standard and apply it to all the findings in the trial judgment. The Majority, however, chose to reassess them without defining any standard at all. This prompted Judge Pocar to wonder: “Does the Majority consider that the correct legal standard was a 400-metre standard? A 100-metre standard? A 0-metre standard?”. Judge Agius concluded that it this case, the Majority raised the margin of error ad infinitum, indefinitely. In Judge Agius’s view, this ‘should not have been done’ because ‘it would practically be impossible to qualify any attack as indiscriminate’ on this basis. It remains to be seen how Karadzic’s and Mladic’s defense teams will apply this ‘new law’, articulated by the Majority in the Appeals Chamber, in contesting the evidence on the indiscriminate shelling of Sarajevo.

The minority insisted that contrary to the Majority’s claims, the Trial Chamber’s conclusion about unlawful shelling was in no way based only on the acceptable 200 m margin of error but also relied on a wide array of ‘mutually corroborating evidence’ that should be considered in its totality. The evidence ranges from the transcript of the Brioni meeting when a plan to expel Serbs from Krajina was forged, to Gotovina’s order on 2 August to ‘put under artillery fire’ four towns in Krajina and proof that the HV Artillery implemented it, to the testimonies of UN staff who were in Knin during the shelling and finally, the evidence of excessive artillery attacks on Milan Martic’s residence.

Judge Pocar noted that the Majority dismissed all this ‘mutually corroborating’ evidence, reasoning that it was ‘far from being convincing’ In just three paragraphs of the appellate judgment, the Majority dismissed the conclusions on the unlawful shelling that the Trial Chamber set out on more than 200 pages.

According to Judge Pocar, the Majority’s interpretation of the transcript of the Brioni meeting was ‘simply grotesque’. The minority applied a similar reasoning to challenge the majority’s finding that Gotovina didn’t ‘explicitly’ call for ‘unlawful attacks’ on the towns, but merely ordered that the towns be shelled. Judge Agius argued that the Majority ‘misinterpreted’ the findings of the Trial Chamber in that respect. The Trial Chamber carefully approached the testimony of international witnesses, acknowledging that some of them lacked artillery training necessary to evaluate if the shelling was indeed indiscriminate. The Majority used this caveat to simply dismiss the evidence of all international witnesses, including seven members of the European Community Monitoring Mission and UNPROFOR headed by its commander in Sector South, Canadian general Forand. The trial judgment accepted their testimony.

It is somewhat surprising that the majority of the three judges, appointed and paid by the UN, had so little confidence in the generals and other high-ranking officers from UN member states, who were in Knin, serving under the UN flag and who testified about the events they had witnessed before a UN Tribunal.

As Judge Agius noted, the fact that ‘at least 900 projectiles fell all over the town in just one and a half days,and there are no findings of any resistance coming from the town’ cannot be ignored. According to the evidence called at the trial, at least 50 projectiles fell at distances of 300 to 700 m from the nearest military targets. Judge Agius recalled that the Croatian Army used an accurate grid system allowing a minimum error of only one meter. Gotovina's artillery commander Marko Rajcic said in his evidence that the margin of error was below 200 m: below the standard adopted by the Trial Chamber.

To support its finding that the artillery attack on the Krajina towns was not indiscriminate, the majority argued that the HV may have aimed at targets of opportunity in Knin; to illustrate this opinion, the judges state that ‘a police car was in fact hit’. In the opinion of Judge Agius, the Majority’s reasoning is marred by a ‘blatantly unfortunate contradiction’. ‘Since a police vehicle was hit, the Majority concluded that the HV Artillery could be so accurate as to obtain a direct hit but with regard to all of the military targets which had been pre-established with proper co-ordinates, the Majority effectively gives the HV the benefit of the doubt ad infinitum.’

Confused by their reasoning, Judge Agius all but begged his colleagues to explain it further: ‘I would like to be enlightened by an explanation from the Majority as to how, if the HV could be so accurate with regard to a moving object, it could miss military targets by hundreds of meters’.

Judge Agius and others who would like an explanation are doomed to remain unenlightened, as the Appeals Chamber, or at least the majority sitting on the panel, are the highest instance and their judgment will not be subject to any further scrutiny.