There has been a remarkable development in the Gotovina and Markac 
case. On 20 July, the Appeals Chamber of the International Criminal 
Tribunal for the former Yugoslavia (ICTY) issued an order to the 
prosecution. This order asked the prosecution, that if in the event of 
the chamber finding the generals not guilty of unlawful artillery 
attacks or a Joint Criminal Enterprise (JCE), what other modes of 
liability could they be found guilty for. i.e. superior responsibility 
-- better known as command responsibility - or aiding and abetting. 
The judges stressed that the order is not expressing any view on the 
appeal. Whilst this is good news in that it seems the generals may be 
found innocent of the JCE it appears there may be an effort to wrongly 
convict them on other grounds.

Aside from being charged with Joint Criminal Enterprise, the generals 
had been charged with superior responsibility also. The original trial 
judgement had found them guilty under the JCE mode of liability. 
Having done this, the judges expressly stated that they had no need to 
find make findings on any other mode of liability they were charged 
with. This means they are not guilty of those forms of liability. 
Furthermore, the prosecution did not challenge the decision through an 
immediate appeal. The judgement is geared around the JCE. It can 
hardly be used to find them guilty for something else.

The appeals chambers should then be really only considering if the 
judgement as it stands is unsafe. They should not be finding the 
generals guilty of something the original judges had not, given the 
prosecutors did not appeal. The judges are effectively saying to the 
prosecution, 'Look, we can't uphold the verdict. What do you think we 
can find them guilty of instead?' This is grossly unfair to the 
defendants, and simply proves to everyone that the ICTY is indeed an 
unjust court.

Why are the judges doing this? It is possible they consider the 
verdict to be nonsensical, based as it is on a number of artillery 
shells the court could not confirm having killed or injured anyone. 
The judgement claims that that around 4% of shells falling on Knin 
during Operation Storm was unlawful. The unlawful shelling being 
intended to remove the Serb population -- the basis of the JCE. To get 
to that limited figure, the judges invented a 200 metre rule. Any 
shell landing outside of 200M was unlawful -- even if it hit nothing. 
This was not presented to the defendants doing the trial. However, the 
rule could now be used as a precedent, which is bad news for the 
militaries of the world -- with no doubt the US and UK militaries 
being particularly concerned. It is a standard too high to achieve. 
The ruling has been criticised, most notably at a roundtable 
discussion at the Emory Law's International Humanitarian Law Clinic in 
the United States.

This is all very embarrassing, and the judges clearly want to 
eliminate the precedent. However, the whole judgement rests on the 
artillery attacks. If they were not unlawful, there is no Joint 
Criminal Enterprise. The generals then go free. This is also 
embarrassing for the tribunal, given it was such a major case, and 
additionally would upset the idea the tribunal is pushing that all 
sides were equally guilty and so on. Powerful people in the 
international community -- especially in London, would be displeased 
if the men went free. Finding them guilty on some other ground is a 
face-saver.

The hope at the tribunal may be that no one will notice their finding 
them guilty on something that is not at issue. i.e. they hope that the 
world's media will accept whatever spin they are given by the 
tribunal, disregard complaints as 'Croatian nationalism' and move on 
within hours to other international stories -- Syria etc.

However, it would create a far worse precedent. Judges would be free 
at appeal to disregard not guilty elements of verdicts and impose 
guilt under other liabilities, even if the prosecution was satisfied 
with the original verdict. Perhaps it could even be extended to first 
instance trials also. It would have wider implications than even the 
discredited 200M rule and would not be ignored any more than the 
original verdict has been. Such developments would help discredit 
international law.

Whilst we cannot know how the judges will rule, it does seem to be 
that they don't have confidence in the verdict. Why else issue this 
order? Rather than replace one miscarriage of justice with another, 
they should do the right thing and strike down the original verdict 
entirely and free the men. No doubt some in the Office of the 
Prosecutor, London, Belgrade and elsewhere will be annoyed. However, 
international law will benefit by not having the ongoing stain of an 
obvious miscarriage of justice.