Margin of Error: Potential Pitfalls of the Ruling in The Prosecutor v. Ante Gotovina

Author:Walter B. Huffman
Position:Dean Emeritus and Professor of Law, Texas Tech University School of Law
Pages:1-56
 
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MILITARY LAW REVIEW
Volume 211 Spring 2012
MARGIN OF ERROR: POTENTIAL PITFALLS OF THE
RULING IN THE PROSECUTOR v. ANTE GOTOVINA
MAJOR GENERAL (RET.) WALTER B. HUFFMAN*
I. Introduction1
On April 15, 2011, the International Criminal Tribunal for the
Former Yugoslavia (ICTY)2 sentenced Croatian General Ante Gotovina
to twenty-four years in prison3 on charges stemming from his actions
* Dean Emeritus and Professor of Law, Texas Tech University School of Law. General
Huffman was the senior legal advisor to the U.S. Army VII Corps commander during
Operation Desert Storm and subsequently served as The Judge Advocate General of the
Army. Before attending law school, General Huffman commanded field artillery firing
batteries both in the United States and in combat in Vietnam.
1 The author gratefully acknowledges the assistance of many colleagues in the
development of this article. I particularly thank Professor Laurie Blank, Director of the
International Humanitarian Law Clinic at Emory University School of Law for hosting a
meeting of experts on this subject where the seeds of this article were planted and many
of its concepts discussed. See generally Int’l Humanitarian Law Clinic at Emory Sch. of
Law, Operational Law Experts Roundtable on the Gotovina Judgment, Military
Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation
and Enforcement of International Humanitarian Law, No. 12-186 (Jan. 28, 2012) (on file
with the International Humanitarian Law Clinic at Emory School of Law).
2 The International Criminal Tribunal (Former Yugoslavia) (ICTY) was established by
S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), after the Security Council
determined that “ethnic cleansing” and other widespread violations of humanitarian law
occurred within the former Yugoslavia. By the time Operation Storm began in August
1995, Croatian leaders knew that the ICTY, UN observers and the entire world were
watching daily developments in the Balkan wars. Prosecutor v. Gotovina, Case No. IT-
06-90-T, Judgment, ¶ 1986 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 15, 2011)
(appeal pending). All ICTY documents cited in this article are available at the ICTY
website, http://icr.icty.org/default.aspx (link requires registration).
3 General Gotovina has been confined in The Hague since December 2005. See
COMMUNICATIONS SERV. OF THE INTL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA, CASE INFORMATION SHEET, “OPERATION STORM (IT-06-90), GOTOVINA &
MARKAC (2012), available at http://www.icty.org/x/cases/gotovina/cis/en/cis_
gotovina_al_en.pdf. As this article goes to publication, the case is pending in the ICTY
2 MILITARY LAW REVIEW [Vol. 211
during Operation Storm, the 1995 Croatian military campaign to reclaim
territory from the self-proclaimed Republic of Serbian Krajina (RSK).4
While General Gotovina was formally charged with participating in a
joint criminal enterprise to drive ethnic Serbs out of the Krajina region,
the case against him was based largely on allegations that he ordered
unlawful artillery and rocket attacks on four towns during conventional
combat operations against RSK Serbian forces.5 Because very few
judicial opinions apply the law of war to tactical artillery operations, the
Trial Chamber’s judgment raises issues of significant legal and
operational importance and will command the attention of scholars,
courts, and military professionals worldwide. This article critically
examines the court’s reasoning and concludes that in the interests of
justice, the coherent development of international humanitarian law, and
the protection of innocent civilians in future wars, the Gotovina
judgment should be set aside.6
Combat for the control of cities is as old as warfare itself, and the
bombardment of cities is a grim reality of war. Cities offer a belligerent
Appeals Chamber. Official court records and filings of parties relating to this case are
accessible at http://icr.icty.org/default.aspx.
4 Gotovina, Case No. IT-06-90-T, Judgment (appeal pending).
5 This article focuses on the operational and legal validity of the court’s findings relating
to unlawful use of tactical artillery. While the judgment now under appeal raises other
issues, the allegations relating to Gotovina’s role in the artillery attacks are central to all
aspects of the case against him. See Part II.D. infra.
6 Trial chamber decisions are not binding precedent and have no formal authority to
change the law, but as one learned treatise aptly observed regarding the weight of
decisions of international tribunals: “A coherent body of jurisprudence will naturally
have important consequences for the law.” IAN BROWNLIE, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW (5th ed. 1998). See also William J. Fenrick, The Development of
the Law of Armed Conflict through the Jurisprudence of the ICTY, in THE LAW OF ARMED
CONFLICT INTO THE NEXT MILLENIUM 77, 77-78 (Michael N. Schmitt & Leslie C. Green,
eds., 1998).
Judicial decisions are a subsidiary means for the determination of
rules of international law, not a source of law equivalent to treaties,
custom or general principles of law. Further, there is no rule of
precedent in international law as such. The decisions and practice of
the ICTY, if they are to have a positive impact on the development of
the law of armed conflict, must persuade external decision makers
such as foreign ministry officials, officials in international
organizations, other judges, military officers and academic critics of
their relevance and utility.
Id.
2012] THE PROSECUTOR v. ANTE GOTOVINA 3
cover from enemy fire, logistical support, and a host of facilities with
military significance, such as communications nodes, transportation
hubs, national defense headquarters, and political capitols.7 At the same
time, urban battles bring war’s violence into deadly proximity with
civilian populations and produce some of the most horrific cases of
human suffering and loss of innocent life in the annals of warfare. It is
no surprise, then, that cities are often focal points in military campaigns,
and the names of cities echo throughout history as reminders of the tragic
legacy of urban warfare—Troy, Jericho, Solferino, Gettysburg,
Stalingrad, Hue, and Fallujah.8 Cities not only lie at the crossroads of
military history; they also mark a moral and legal frontier between
savagery and restraint, between total war and the amelioration of
suffering. The quest for rational legal constraints on the attack and
defense of urban areas has therefore tested international commitment to
humanitarian law and driven the evolution of core legal principles in the
law of armed conflict. No other operational scenario places greater
demands on the moral and legal commitments of an army or the vitality
of humanitarian law. The development of modern weapons, the changing
face of war, and the evolution of international humanitarian law have
intensified efforts in the modern era to formulate legal standards that
balance humanitarian concerns and the military necessity of fighting in
and for control of cities.
7 See United States v. Ohlendorf (Einsatzgruppen Trial), 4 Trials of War Crimes Before
the Nuremburg Military Tribunals Under Control Council Law No. 10, Nuremberg, Oct.
1946-Nov. 1949, at 466–67 (1948).
A city is bombed for tactical purposes; communications are to be
destroyed, railroads wrecked, ammunition plants demolished,
factories razed, all for the purpose of impeding the military. In these
operations it inevitably happens that nonmilitary persons are killed.
This is an incident, a grave incident to be sure, but an unavoidable
corollary of battle action.
Id.
8 After the 1859 Battle of Solferino, Swiss doctor Henri Dunant published a book
describing the horrible suffering of civilian residents and wounded soldiers left on the
battlefield that led to the establishment of the International Committee of the Red Cross.
HENRI DUNANT, A MEMORY OF SOLFERINO (Eng. ed. 1939) (1862). See Adam Roberts,
Land Warfare: From Hague to Nuremburg, in THE LAWS OF WAR: CONSTRAINTS ON
WARFARE IN THE WESTERN WORLD 132 (Michael Howard et al. eds., 1994) (“One of the
most destructive aspects of hostilities, whether ancient or modern, is siege warfare . . .
The most terrible siege of the Second World War was that of Leningrad, whose heroism
in the face of disaster engraves its name permanently in the history of war. . . .”).

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