The Gotovina Acquittal: A sound appellate course correction

AuthorGary D. Solis
PositionAdjunct Professor of Law at Georgetown University Law Center, and George Washington University Law School, where he teaches the law of armed conflict
Pages78-107
78 MILITARY LAW REVIEW [Vol. 215
THE GOTOVINA ACQUITTAL: A SOUND APPELLATE
COURSE CORRECTION
GARY D. SOLIS
I. Introduction
The International Criminal Tribunal for the Former Yugoslavia
(ICTY) Appeals Chamber announced a landmark ruling in November
2012, which reversed the convictions of two Croatian general officers
and set an important international precedent for the use of indirect fires
in international armed conflict. Despite some criticism, the appellate
acquittal of Generals Gotovina and Čermak was consistent with
established tenets of the law of armed conflict and provides valuable
guidance for future cases in which the use of indirect fires are at issue.
In 1995, Gotovina and Čermak were senior commanders in
Operation Storm, conducted to retake certain areas of the self-proclaimed
Republic of Serbian Krajina, formerly part of Croatia, from Serbian
forces. Colonel General Gotovina was the overall commander of
Operation Storm. Čermak was an Assistant Minister of the Interior and a
commander of civilian police. A third accused, Mladen Markač, was also
an Assistant Minister of the Interior and commander of the Special
Police, which during Operation Storm included some artillery assets.1 In
Gary Solis is an Adjunct Professor of Law at Georgetown University Law Center, and
George Washington University Law School, where he teaches the law of armed conflict.
He is a retired Professor of Law, U.S. Military Academy, where, for six years, he directed
West Point’s law of war program. J.D., University of California at Davis; LL.M., George
Washington Law; Ph.D. (law of war) The London School of Economics & Political
Science. He is also a retired U.S. Marine Corps lieutenant colonel, having served
seventeen months in the Vietnam conflict as an armor officer and company commander
before becoming a judge advocate and, later, a military judge.
The author notes his sincere appreciation for the legal research and drafting provided
for this article by John P. “Jack” Einwechter, a retired Army officer who served in both
Military Intelligence and the Judge Advocate General’s Corps in a wide range of legal
positions, and as a senior War Crimes Prosecutor for the Office of Military Commissions,
Department of Defense. He is a graduate of Cornell University Law School, where he
was on the Law Review.
1 Prosecutor v. Gotovina & Marka, Case No. IT-06-90-T, Trial Judgment, ¶¶ 6, 177
(Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 2012). As noted by the Appeals
Chamber, the trial judgment did not make an explicit finding on the disciplinary authority
Markač had over the Special Police, noting for example that as commander he could not
court-martial Special Police but had to rely on State Prosecutors to try them. Prosecutor
2013] GOTOVINA ACQUITTAL 79
2001, Gotovina was indicted for grave breaches of the law of armed
conflict and in 2004, Čermak and Markač were similarly indicted. In
April, 2011, Čermak was acquitted of all charges and released. Markač
was convicted of numerous international crimes and sentenced to
eighteen years of confinement. Gotovina was convicted of serious
charges and was sentenced to twenty-four years confinement. Gotovina
and Markač appealed their convictions and sentences.
The central issue of their appeal was the alleged unlawful shelling,
by artillery and rocket fire, of four towns, and an associated joint
criminal enterprise (JCE) indicated by the shelling. The trial court
employed a “200 meter” standard, finding that any artillery fire
impacting 200 meters or more beyond a military target was prima facie
evidence of the unlawful targeting of civilians and civilian objects2—a
violation of both distinction3 and military necessity,4 and arguably
indicative of a violation of proportionality.5
The 200-meter test is a very high standard of accuracy for an area
weapon such as artillery, and it immediately raised concern in the
military communities of many states that could be subjected to its
application by some future tribunal. The core principles of distinction,
v. Gotovina & Markač, Case No. IT-06-90-A, Appeal Judgment, ¶ 148 (Int’l Crim. Trib.
for the Former Yugoslavia Nov. 16, 2012).
2 Discussed and critiqued in Walter B. Huffman, Margin of Error: Potential Pitfalls of
the Ruling in The Prosecutor v. Ante Gotovina, 211 MIL. L. REV. 1, 29–51 (2012).
3 Defined in 1977 Additional Protocol I, art. 48: “[T]he Parties to the conflict shall at all
times distinguish between the civilian population and combatants and between civilian
objects and military objectives. . . .” Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), art. 48, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I].
4 Defined in U.S. Dept. of the Army, Field Manual (FM) 27-10, The Law of Land
Warfare,“[M]ilitary necessity’ . . . defined as that principle which justifies those
measures not forbidden by international law which are indispensable for securing the
complete submission of the enemy as soon as possible. . . .” U.S. DEPT. OF ARMY, FM 27-
10, THE LAW OF LAND WARFARE ¶ 3.a (18 July 1956).
5 AP I, supra note 3, art. 57.2(b).
[A]n attack shall be cancelled or suspended if it becomes apparent
that the objective is not a military one or is subject to special
protection or that the attack may be expected to cause incidental loss
of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated.
Id. art. 51.5.(b) (complementing Article 57.2(b)).

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