Tomislav Kuzmanovic, then part of Markac’s defense, says that two new lawyers – Kai Ambos and John Jones – were hired for the appeal to analyze the verdict from a different angle. The Gotovina and Markac teams, meanwhile, coordinated strategy where their interests intersected.
Following the conviction of former Kosovo Liberation Army leaders Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selimi for war crimes, the “Ante Gotovina case” began to be cited by lawyers, commentators and the media in Kosovo as a point of reference for the appeals phase. At first glance, the similarities are obvious. The former Croatian general also received a severe sentence in the first instance, before the Appeals Chamber declared him innocent. The verdicts, in both cases, were also met with objections and protests. But what led Gotovina from conviction to innocence was a legal battle over the verdict itself. And, at its center was a very concrete question: Where was the weak link?
FROM 24 YEARS OF IMPRISONMENT TO INNOCENCE
On 15 April 2011, Ante Gotovina was sentenced to 24 years in prison at the Hague Tribunal. He was found guilty of crimes against humanity and violations of the laws or customs of war in connection with Operation Storm in 1995. The court found that Gotovina and General Mladen Markač had participated in a joint criminal enterprise aimed at the permanent and forcible removal of the Serb population from Krajina.
Markač was sentenced to 18 years in prison. The third defendant, Ivan Čermak, was acquitted. The verdict sparked anger and distrust in Croatia, where the two generals were widely seen as heroes of the war for independence. “A decision without evidence, purely political,” said Danica Krivić, a pensioner from Zagreb, at the time. But the battle that would change the outcome would not take place on the streets of the Croatian capital. It would take place inside the verdict itself.
“THE 200 METER STANDARD”
When the defense appeared before the Appeals Chamber in May 2012, it focused on a very specific element: the so-called “200-meter standard.” In the first instance, the judges had used this distance to assess artillery attacks in Krajina. Shots that fell more than 200 meters from an identified military target were used as evidence of unlawful attacks. Payam Akhavan, then part of Gotovina’s defense team, says that this was one of the crucial weaknesses of the verdict.
According to him, the 200-meter limit was not supported by evidence, but had become a key link in the reasoning that linked the attacks to the joint criminal enterprise. “That was the wrong premise that became the basis of the whole theory of the joint criminal enterprise. But the whole case was like a house of cards, and as soon as the ‘200-meter’ letter was removed, the whole structure collapsed. Fortunately, everything ended well. The Appeals Chamber accepted that a trial panel cannot simply invent evidence,” Akhavan tells Radio Free Europe’s Expose program.
The Appeals Chamber was unanimous that the 200-meter standard had been used incorrectly. But on the consequences of this error, the judges were divided. By three votes to two, the majority concluded that, without that standard, the finding of unlawful artillery attacks did not stand. So did the finding of joint criminal enterprise. On 16 November 2012, the convictions were overturned and Gotovina and Markač were acquitted. “This is our common victory. In the war we had ‘Storm’, and this was our legal ‘storm’. We won and everything is over,” Gotovina said after the verdict.
THE JUDGMENT, LINK BY LINK
After what Gotovina called a “victory,” months of preparation followed to dissect the verdict and find a way to challenge it. Akhavan says this required looking at the evidence and the law from a new perspective. “I think it’s very important to look at the evidence and the law with a new eye. To examine link by link the chain of evidence and the legal reasoning on which the finding of joint criminal enterprise was based,” he says. In practice, looking at the case with “new eyes” also meant expanding the team.
Tomislav Kuzmanovic, then part of Markac’s defense, says that two young lawyers – Kai Ambos and John Jones – were hired for the appeal to analyze the verdict from a different angle. The Gotovina and Markac teams, meanwhile, coordinated strategy where their interests intersected. “I still remember the conversation I had with [Gotovina’s lawyer] Ljuka Misetic after the first-instance verdict, about the so-called 200-meter standard, which had appeared out of nowhere. We immediately understood that this was where we should start the appeal. We had common issues in the defense, but each team had its own approach. Each challenged the court’s findings in its own way, but our approaches complemented each other,” Kuzmanovic recalls for Expose.
The argument was not left to the lawyers alone. The defense sought to test the 200-meter standard from a military perspective. One of the experts brought in was Geoffrey Corn. “From a military perspective, this standard was arbitrary. There is no military rule that any shot that falls outside a certain distance from the target is automatically considered illegal,” Corn, now at the University of Texas School of Law, tells Expose.
WHAT DID THE CROATIAN STATE DO?
Building such an appeal required something else: resources. After the conviction, the support of the Croatian state became clear publicly. The then Prime Minister, Jadranka Kosor, called the finding of joint criminal enterprise unacceptable and said that the government would use legal possibilities to have it overturned on appeal. The government also engaged the Croatian Academy of Law to conduct a study on the concept.
Radio Free Europe attempted to contact Kosor and Gotovina himself, but received no response. The Minister of Justice during the crucial appeal period, Orsat Milenić, responded that he did not want to comment on the subject. Marko Milanović, professor of Public International Law at the University of Reading, says that the Croatian state’s support went beyond funding. It included investigators and experts, but also access to state documents, including materials from the Brijuni meeting, where, just days before Operation Storm, the Croatian leadership discussed and finalized plans for it. The transcript of that meeting became one of the key pieces of evidence in the Gotovina trial. Milanović says the Croatian state also had a broader interest. “They were defending a narrative, an official version of the truth. In the case of Croatia, it was the version of the truth of the Croatian political elites. So it was not just the fate of those individuals that mattered, but the cause as a whole,” he tells Expose. But state support and defense strategy were not the same thing.
Lawyers who worked on the case say that Croatia provided funding and resources, but that legal decisions were left to the accused and his team. “In a criminal trial, the accused is the one who decides. He has to give instructions to the lawyer. And now, 14 years later, I can say that in this respect there was no problem in the relationship between the defense team and General Gotovina,” says Akhavan.
FROM GOTOVINA TO THAÇ AND OTHERS
Now, it is the turn of former KLA leaders Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selim to appeal. All four were convicted on September 16 of war crimes, with sentences ranging from 13 to 25 years in prison. The court found that they had contributed to a joint criminal enterprise, while the defense warned that it would challenge the verdict. In the debate about what might happen on appeal, the Gotovina case has become a point of reference.
BUT, HOW FAR CAN THIS COMPARISON GO?
For Corn, the distinction is crucial. “In Gotovina, the issue was not whether he was responsible for the actions of his subordinates. As commander of the operation, that was taken for granted. The issue was whether their actions constituted violations of the law. With Thaçi, it is different. It is not disputed that members of the KLA committed violations of international humanitarian law. The question is whether Thaçi is responsible for those violations,” says Corn. This means that Gotovina’s experience cannot be copied. But one lesson from it remains: the appeal must find the point where the evidence and legal reasoning fail. In Gotovina, that point was the “200-meter rule.” In Thaçi and others, the defense must ask whether within the reasoning linking them to crimes through joint criminal enterprise, there is a link that is not supported by evidence or the law.
“It may be that a single, but crucial, premise is wrong, and its overthrow leads to the overturning of the entire finding of joint criminal enterprise. In some cases, it may be a factual finding that is not supported by the evidence; in other cases, it may be an error of law,” says Akhavan. (RFE)