Significant Problems with the Gotovina Expert Report (Updated)

It’s rare that I defend the ICTY, but I feel compelled to do so here.  As discussed in this blog post by Laurie Blank, a group of experts in military law have released a report attacking the Trial Chamber’s judgment in Prosecutor v. Gotovina for allegedly misapplying basic IHL rules regarding targeting.  Unfortunately, the report fundamentally misstates what the Trial Chamber actually held.  Here is how the Report summarizes the judgment (pp. 3-4; emphasis mine):

On April 15, 2011, the Trial Chamber issued its judgment, sentencing General Gotovina to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of liability. The Trial Chamber’s opinion rests entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm. The Trial Chamber judgment rests the finding of unlawful direct attack on civilians on the artillery attack on Knin. In analyzing the operation, the Trial Chamber found that all of the pre-planned targets of the artillery barrage were lawful military objectives. The judgment also recognizes that the Croatian targeting operations were planned with the fundamental law of war principles of distinction and proportionality as guides for the determination of lawful targets. After setting forth, without explanation, a 200-meter radius of error as the means for determining which effects were attributable to lawful objects of attack, the Trial Chamber found that just under 5% of the artillery shells landed beyond that radius of error. It then inferred the intent to unlawfully attack civilians from this 5% of shells landing outside the radius of error, without further explanation or analysis.

The finding of direct attack on civilians in turn serves as the predicate widespread and systematic attack on civilians for the crime against humanity charge and as the central element for the persecution and other inhumane acts charges, as well as the wanton destruction as war crime charge. Lastly, the finding of attack on civilians is one of two contributions the Trial Chamber identifies to the joint criminal enterprise, the other being the failure to prevent and punish foreseeable crimes committed in conjunction with the joint criminal enterprise.

The first thing to notice is that the summary of the judgment does not cite the judgment itself.  In fact, there is not a single citation to specific paragraphs of the judgment anywhere in the Report — even when it claims that the Trial Chamber made a mistake.  That would be unacceptable scholarly practice even if the judgment was 50 pages long.  But it’s not.  In fact, the judgment is 1372 pages long and contains 2685 paragraphs.  As a result, it is next to impossible to determine whether the Report is accurately characterizing the judgment.

Next to impossible — but not impossible.  In fact, the claim that I’ve bolded above — that “[t]he Trial Chamber’s opinion rests entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm” — is simply incorrect.  Here is what the Trial Chamber says in paragraphs 2370 and 2373 (emphasis mine):

2370. The Trial Chamber considered Gotovina’s participation in the Brioni meeting (see chapter 6.2.2) in relation to planning and preparing Operation Storm in light of his position as commander of the Split MD. The Trial Chamber recalls its findings in Chapter 5.8.2 (i) that the HV’s shelling of Benkovac, Knin, and Obrovac on 4 and 5 August 1995 constituted unlawful attacks on civilians and civilian objects. Furthermore, the Trial Chamber considered that Gotovina ordered the attacks on Benkovac, Knin, and Obrovac. The Trial Chamber has interpreted Gotovina’s order as treating the towns themselves as targets for artillery fire (see Chapter 5.8.2 (i)).

2373. The Trial Chamber has first considered the objective of the JCE, namely the permanent removal of the Serb civilian population from the Krajina by force or threat of force, including by deportation and unlawful attacks on civilians and civilian objects. In furtherance of this objective, at the outset of Operation Storm, Gotovina ordered his subordinates to engage in unlawful attacks against civilians and civilian objects in Benkovac, Knin, and Obrovac.

The Trial Chamber’s judgment thus does not rest “entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm.”  It relies on the attacks on Benkovac and Obrovac, as well.

That is a troubling omission by itself, because “accidental” attacks look much less accidental when they form a consistent pattern.  But it’s particularly troubling because at least some of the targets in Benkovac contradict what the Report says about Knin — namely, that “[i]n analyzing the operation, the Trial Chamber found that all of the pre-planned targets of the artillery barrage were lawful military objectives.”  I find the Report’s emphasis on pre-planned targets (p. 13) unconvincing; I don’t see why the Trial Chamber could not infer Gotovina’s intent from attacks on civilian objects that were not pre-planned, simply because it’s possible they were accidental effects of attacks on “fleeting or opportunistic” targets.  That issue aside, though, the Trial Judgment makes clear that Gotovina’s forces did, in fact, attack pre-planned targets that were not lawful military objectives:

1921. Of the aforementioned objects and areas, the cool storage and the Bagat factory were listed on the “Jagoda” list. However, there was no military production at or other military use of the Bagat and Kepol factories and the cool storage. There is no evidence indicating any fixed SVK or police presence in or near the aforementioned areas of Benkovac, nor evidence otherwise indicating that firing at these areas would offer a definite military advantage. Furthermore, there is no indication that SVK or police units or vehicles moved through these areas either between 5 and 7 a.m. on 4 August 1995 or at other times on 4 or 5 August 1995, which would have presented so-called opportunistic targets (i.e. not previously identified), also referred to as tactical (as opposed to operational) targets. Moreover, the 134th Home Guard Regiment report, P1200, indicates that the HV did not have artillery observers with a view of Benkovac early in the morning of 4 August 1995. For the foregoing reasons, the Trial Chamber does not consider it a reasonable interpretation of the evidence that the HV could have determined in good faith that targeting these areas would have offered a definite military advantage.

I have no idea why the Report fails to mention the Trial Chamber’s findings concerning the attacks on Benkovac and Obrovac.  But I do know that, in light of those omissions, its legal conclusions should be taken cum grano salis.

UPDATE: I think it’s important to note that Geoff Corn, who testified for the defense in Gotovina, describes the Trial Chamber’s judgment much more accurately in this post at Lawfare.  In contrast to the Report, Corn acknowledges that the judgment was not based solely on the attack on Knin and points out — correctly — that that the Trial Chamber found that “virtually every target placed under attack qualified as a lawful military objective under the circumstances.”  I have no idea why the Report didn’t follow Corn’s lead; if it had, the Report would not be so fundamentally inaccurate.