Everyone interested in the field of International Criminal Law is aware of the criticisms leveled at the United Nations ad hoc criminal tribunals for their being “victors’ courts” or “NATO tribunals”. In the case of the International Criminal Tribunal for the Former Yugoslavia, criticism is based on the perception in some quarters that it was created to try and convict Serbs for crimes during the Yugoslav wars of the 1990’s and early 2000’s. The recent appeals judgment in the case against Croatian generals Ante Gotovina and Mladan Markač acquitting them of all the charges is likely to only further this perception.
Things are not quite that simple however. Like many of the decisions taken by the Tribunal, this one is layered and nuanced. The Appeals Chamber overturned the convictions based on the asserted invalidity of a single finding by the Trial Chamber, that some of the artillery attacks in Operation Storm were unlawful. According to the Majority of the Appeals Chamber (a 3 / 2 split), without unlawful attacks all the other evidence was simply insufficient to sustain a finding of a criminal plan to remove Serbs from the Krajina. Without such a plan any additional crimes could not be attributed to the Accused.
Unfortunately, the acquittal on appeal will likely overshadow the more interesting aspects of the judgment. One issue is the disagreement on the appellate bench over how evidence of the existence of a JCE should be evaluated. A second is the possibility of committing a crime through otherwise legally permissible actions. This post will evaluate these two issues and discuss the differing approaches of the Trial and Appeals Chambers.
Messrs. Gotovina and Markač were charged along with Ivan Čermak of participating in a Joint Criminal Enterprise (JCE) to forcibly remove the Serb population from an area of Croatia known as the Krajina in 1995. The military campaign, dubbed “Operation Storm”, was one of the last stages of the “Homeland War” fought for control of Croatia. The campaign involved extensive artillery bombardment of Serb cities and towns in the Krajina where a separatist government had proclaimed a “Republic of the Serbian Krajina” (RSK). The initial stages of the campaign were followed by months of mopping up operations where Croatian forces advanced through the area to root out opposition. After “Operation Storm” came to an end the once Serb majority territory had seen that majority flee into neighboring Bosnia and Serbia never to return.
The operation was planned at a meeting on the island of Brioni. During the meeting views were expressed to the effect that the Serbs have to be removed from the Krajina. Leading the meeting was Croatian President Franjo Tuđman who supported this plan. Following the campaign, Mr. Tuđman made derogatory statements about Serbs in general and enacted policies to keep them Serbs from returning. Mr. Gotovina was the military commander for the Split Military District where much of the fighting took place while Mr. Markač was in charge of the Special Police, a military unit under the control of the Ministry of the Interior and responsible for much of the mop up operations. The Trial Chamber had used all of these facts, plus the artillery campaign, to justify its finding that the Accused of unlawfully attacking the Serb population of the Krajina.
The Appeals Chamber Decision
The Appeals Chamber interpreted the trial judgment of guilt to be constructed around a single central finding: the artillery attacks during Operation Storm unlawfully targeted civilians. Attacks were supposedly illegal because the criminal goal of deporting Serb civilians was to be carried out/executed through those attacks, a finding reinforced by the fact that the Trial Chamber failed to find deportations where the attacks were not considered unlawful. Each town, after all, contained valid military targets.
Both Accused challenged this finding arguing that the “impact analysis” used by the Trial Chamber to determine which attacks were illegal to be unfounded in law or fact. The Appeals Chamber agreed. A majority of the judges noted that the Trial Chamber did not set out how it developed the relevant factors of its “impact analysis” and why that test was applied in a uniform way to all shelling incidents instead of adapting it to each unique incident. By majority, the Appeals Chamber found this to be a serious error, as the test and its application were not “linked to any evidence […] received” by the Chamber leading to a failure “to provide a reasoned opinion”. The Chamber then concluded that all other evidence of illegal attacks had been interpreted in light of the “impact analysis” findings. Considering that the other evidence of illegal attacks was insufficient to confirm such a finding absent the conclusions based on the “impact analysis”, the Appeals Chamber overturned the finding that the attacks were illegal.
A central finding at trial was the Accused’s involvement in a JCE to remove Serbs from the Krajina. If the artillery attacks were not illegally designed to force out the civilian population, the Appeals Chamber found that the remaining evidence of a criminal plot became equivocal. For example, the meeting of the Croatian leadership where the operation was planed and the derogatory statements by Mr. Tuđman were only considered by the Trial Chamber as probative of a shared intent to carry out illegal attacks because the lower chamber had found that the illegal attacks had occurred.
The Appeals Chamber recalled that for a conviction based on a JCE theory, the Accused (and other members of the enterprise) must share a common intent to commit a crime within the jurisdiction of the Tribunal. The Criminal purpose in this case was to remove the Serbs as evidenced by the artillery attacks. Removing this factor, the Appeals Chamber refused to uphold the convictions on a JCE theory. Lacking this nexus, the Appeals Chamber further found that non-artillery crimes were not part of any common plan and so not attributable to the Accused. Therefore all the charges fell because there was insufficient evidence the artillery campaign was unlawful.
Two issues are presented by this acquittal: (1) the limited scope of JCE for the crimes of others and; (2) the proper method for evaluating evidence before the international criminal tribunals. The first goes to the very heart of how international crimes are committed while the second touches on the meaning of evidence and the malleability of facts to fit any narrative.
It was undisputed in this case that the Croatian leadership wanted to take control of the Krajina (that at the time was under the control of a Serb dominated group) and that the leadership at different points espoused anti-Serb views. The only question to be answered, in both the Trial Judgment and the Appeals Judgment, was the motivation for at least some of the artillery campaign. The Trial Chamber concluded that some of the shelling targeted the civilian population based on the above-mentioned views, the pattern of the bombardment and discriminatory policies that prevented the return of Serbs that fled the fighting. The Appeals Chamber invalidated this finding because it found the attack patterns to be inconclusive as to the identity of the intended target. The higher chamber in effect decided that this was the only factor that mattered, as the remaining evidence was “equivocal” absent that finding.
The real question sitting at the bottom of this finding is whether or not an artillery campaign can be legal under International Humanitarian Law and still be used to achieve an internationally prohibited action, such as the deportation of civilians. In their own ways, both chambers answered this question in the negative. No compelling reason presents itself for maintaining this position. If an otherwise legal action is taken for the express and specific purpose of achieving an illegal goal, then it is nonetheless criminal. Any other rule would render the protection of the law meaningless by encouraging the creative use of apparently legal means to commit large-scale harm during times of conflict. International Criminal Law was developed specifically to punish this kind of reprehensible mockery of basic principles of humanity.
The Appeals Chamber’s reasoning focused on one piece of evidence as if it were the only thing considered by the Trial Chamber in convicting the Accused. There was no reason to limit its evaluation in this way. The findings of the Trial Chamber were mutually reinforcing – not one dependent on the other. Discriminatory policies were not evidence of illegal attacks because the illegal attacks happened, but one factor in determining the attacks were international crimes together with the statements of former government officials and the pattern of the artillery bombardment. It is possible that the other two factors would not be sufficient to demonstrate an illicit intent. However, the Appeals Chamber only evaluated them in relation to the disapproved “impact analysis” and what the majority believed their value was in the Trial Judgment. A complete review of these reasons on their own distinct from the “impact analysis” should have been conducted at a minimum.
A different discussion is necessary when it comes to the acquittal of the Accused for additional crimes that occurred during the mopping up operations. If we assume for the moment that the Appeals Chamber was correct to overturn the trial finding of a plan to deport or force out the Serb population of the Krajina, then the acquittal for the other crimes is not only proper but also required. JCE, unlike the dominant doctrine of “control over the crime” at the International Criminal Court, will only hold an accused vicariously responsible for foreseeable crimes if they are in furtherance of an already criminal plot. This is proper as without that underlying criminal plot there is no mens rea, or guilty mind, based on which an accused can be punished. A contrary result would be to expose to international prosecution those who never intended the commission of any crime.
 This perception has also been reinforced due to the tribunals declining to open an investigation into alleged NATO crimes committed during the Kosovo intervention. The other UN ad hoc tribunal, the International Criminal Tribunal for Rwanda, suffers from a similar critique in that it has never tried any ethnic Tutsi for alleged crimes during the war in that country.
 This is the necessary consequence of how the doctrine of JCE has developed. Unlike the parallel doctrine of “control of the crime” employed by the International Criminal Court, JCE will only hold an accused vicariously responsible for those crimes which are the object or intended means of a criminal plan or those additional foreseeable crimes committed in the furtherance of such an already criminal plan.
 Amended Joinder Indictment, IT-06-90-T, 12 March 2008, ¶¶ 12-20.
 This is the Croatian name for the part of the war that led to the full independence of Croatia from the Former Yugoslavia.
 Appeal Judgment at ¶2, fn. 3.
 One reason for the decision not to return was the enactment of discriminatory policies by the Croatian government against Serbs who wished to come back.
 Appeal Judgment at ¶ 81.
 Appeal Judgment at ¶ 24.
 Appeals Judgment at ¶¶ 86-87.
 Ibid. at ¶ 89. The plan can also be to commit an action that amounts to a crime (even if not intended as such) or to commit a legal goal with means that include a crime within the jurisdiction of the tribunal.
 It is important to note that the Appeals Chamber specifically reserved judgment on this issue in footnote 330. The analysis it gives for finding a lake of illegal deportation in this case indicates that it appears likely that the Appeals Chamber would reach this conclusion.
 See, Dissenting opinion of Judge Pocar.