Minority Criticizes Majority (2)

Former President of the Tribunal Fausto Pocar stated that the reasoning of the majority in the appellate judgment that acquitted Gotovina and Markac was ‘wrong, incorrect and misleading’ and even ‘grotesque’. In the conclusion of his dissenting opinion, Judge Pocar raised and left unanswered the issue why the majority - if it wanted to acquit Gotovina and Markac - had to quash the very existence of the joint criminal enterprise rather than concentrating on Gotovina’s and Markac’s contributions to it

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

Analyzing the transcript of the Brioni meeting of 31 July 1995 on the eve of Operation Storm, the Trial Chamber concluded in its judgment that the participants in the meeting agreed on that occasion about a plan to remove the Serb population from Krajina. Judge Orie’s Trial Chamber ruled that President Franjo Tudjman’s words that it was important for ‘civilians [to] go’, to ‘leave a way out’ for them and to ‘pretending to guarantee their civil rights’ was an expression of the obvious intent to expel Serbs from Krajina.

Last week, the Appeals Chamber rendered its judgment acquitting the two generals with the majority of votes: judges Meron, Robinson and Guney voted to acquit, while judges Agius and Pocar dissented. In its judgment, the Appeals Chamber decided that this conclusion of the Trial Chamber was unfounded. The meeting of the Croatian political and military leadership in Brioni and Tudjman’s words to ‘leave a way out for the civilians’ could be seen as an attempt to ‘help civilians temporarily depart from an area of conflict for reasons including legitimate military advantage and casualty reduction’. Furthermore, Gotovina’s statement at the same meeting that ‘Knin could be destroyed in a few hours’ by his artillery could be interpreted as a mere ‘shorthand’ to describe the military potential and supremacy of the Croatian forces.

In his dissenting opinion, Judge Pocar labeled the reasoning of judges Meron, Robinson and Guney as ‘simply grotesque’.

According to Judge Pocar, ‘the Trial Chamber’s careful and detailed review’ unequivocally rejected the interpretation that the conversations in Brioni were about the protection of civilians. The conclusions that Tudjman cared about Serb civilians are irreconcilable with a speech the Croatian president gave after Operation Storm. In the speech, Tudjman said 'never again it will go back to what was before, when they spread cancer which has been destroying Croatian national being in the middle of Croatia[] They were gone in a few days [] They did not even have time to collect their rotten money and dirty underwear'.

In the trial judgment, the Brioni transcript was one of the four elements of the joint criminal enterprise. The other three elements are the unlawful artillery attack on Knin, Obrovac, Benkovac and Gracac, the crimes against Serb civilians and their property after Operation Storm and finally, the effort to prevent the return of Serb refugees. The Appeals Chamber, for reasons we presented in our first article yesterday, concluded there was no sufficient evidence that the attack on the four towns was indiscriminate and thus unlawful. This in the opinion of the majority led to a dismissal of all the other findings about the existence of the joint criminal enterprise. Such an important conclusion was reached on the basis of just three paragraphs worth of analysis in the appellate judgment, Judge Pocar noted.

The former Tribunal’s President recalled that the finding on the joint criminal enterprise was based on four ‘mutually corroborating groups of evidence’ and the Trial Chamber couldn’t be blamed for foregrounding the artillery attack. The majority in the Appeals Chamber stated that the trial judgment described the artillery attack as ‘the core indicator’ and ‘the primary means’ of the deportation of Serbs and thus also of the joint criminal enterprise. According to Judge Pocar, it was a ‘mischaracterization’ of the Trial Chamber’s findings and an ‘incorrect and misleading’ approach on the part of the majority: the Appeals Chamber ‘makes statements not supported by references’ to the trial judgment they purportedly refer to.

The majority in its decision ignored the finding that there were deportations regardless of the shelling, judge Pocar noted. The trial judgment emphasized that the Serb witnesses speaking about the reason why people had fled spoke not only of the fear of shelling, but also the fear of other crimes that did in fact happen in Krajina after Operation Storm, such as the murder and abuse of civilians, and the looting and destruction of their houses. The Trial Chamber in its judgment concluded that these acts of the Croatian armed forces ‘caused duress and fear of violence in their victims and those who witnessed them, such that the crimes created an environment in which these persons had no choice but to leave', judge Pocar stated.

The other appellate judge to append a dissenting opinion on the appellate judgment was Judge Carmel Agius from Malta. Judge Agius also considers that the joint criminal enterprise aimed at expelling Serbs from Krajina existed. In his analysis, Judge Agius unequivocally contends that the artillery attack on the towns in Krajina was unlawful. In respect of all the other issues pertaining to the joint criminal enterprise, Judge Agius fully endorses Judge Pocar’s position.

Judge Pocar concludes his dissenting opinion with an implicit suggestion that in considering the trial judgment the majority could be guided by motives other than purely legal.

'Even if the Majority wished to acquit Gotovina and Markac entirely, one might wonder what the Majority wanted to achieve by quashing the mere existence of the joint criminal enterprise rather than concentrating on Gotovina’s and Markac’s significant contributions to the joint criminal enterprise. I leave it as an open question.'