The Prosecutor v. Ante Gotovina, Ivan Čermak, and Mladen Markač

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber I, The Netherlands
Case number	IT-06-90-T
Decision title	Judgment
Decision date	15 April 2011
Parties	The Prosecutor Ante Gotovina Ivan Čermak Mladen Markač
Other names	The Prosecutor v. Gotovina et al.
Categories	Crimes against humanity, War crimes
Keywords	crimes against humanity, Croatia, joint criminal enterprise, Krajina, Operation Storm, war crimes
Links	Judgment: Part 1 Judgment: Part 2
Other countries involved	Croatia (Hrvatska)

Summary

In August 1995, the Croatian forces conducted a rapid offensive attack against the Krajina region which had the purpose of removing ethnic Serbs, and make the region suitable for Croats instead. Both Gotovina and Markač were in a high military position that controlled the operation in Krajina.

The Chamber found that both Gotovina and Markač participated in a joint criminal enterprise, which aimed at the removal of Serbs from Krajina. Their rank and position allowed them control over the conduct of the military personnel, and they were aware of the criminal behavior that occurred in Krajina, as well as the underlying common purpose.

The Chamber found them guilty; General Gotovina received a 24 year sentence, while Markač was sentenced to 18 years’ imprisonment. The Chamber acquitted Čermak, because it found that he did not have control over the acts of the military, and there was insufficient evidence to establish that he knew that his conduct in Knin was intended to further the goal of repopulating Krajina with Croats.

Procedural history

The operative amended joinder indictment was affirmed on 17 May 2007. The trial began on 11 March 2008 and the closing arguments were presented between 30 August and 1 September 2010.

Related developments

On 2 August 2011 and 12 October 2011 respectively, both Gotovina and Markač filed an appeal brief. The appeals hearing was held on 14 May 2012 (the transcript is available here). On 16 Novemver 2012, the Appeals Chamber found that the Trial Chamber had erred by not properly explaining why it decided that certain artillery attacks were conducted unlawfully. Gotovina and Markač were acquitted of all charges.

Legally relevant facts

On 4 August 1995, Croatia initiated an offensive operation (codenamed Operation Storm) against the Krajina region with the aim to remove the Serb population therefrom, and repopulate it with Croats. The brief operation ended in favor of the Croatian forces (para. 3).

On 31 July 1995 Franjo Tudman, the then President of Croatia, held a meeting in Brijuni with high-level military officials. The purpose of the meeting was to discuss the details of Operation Storm. Both Gotovina and Markač participated in the Brijuni meeting (paras. 1970 et seq.).

Gotovina was during this time assigned as operational commander for the southern part of Krajina. He was promoted to Colonel General, overseeing the units of the Croatian Army that were attached to the Split Military District (paras. 69 et seq.).

Čermak was the Knin Garrison Commander and a representative of the Croatian Government. Furthermore, he was entrusted with improving the cleaning up and improving of life conditions in Knin, the major city of Krajina (paras. 147 et seq.). Markač was the Commander of the Special Police of the Croatian Ministry of the Interior. Furthermore, he was in charge of overseeing the Croatian military artillery units during the Operation Storm (paras. 167 et seq.).

Core legal questions

Were the crimes committed during the Operation Storm attributable to the Croatian Army and the Special Police?
Was there a joint criminal enterprise with the aim to remove the Serb population from the Krajina region?
Can the three accused, Gotovina, Čermak and Markač, be held responsible for criminal conduct by virtue of participation in the joint criminal enterprise?

Specific legal rules and provisions

Articles 3, 5 and 7(1) of the Statute of the International Criminal Tribunal of the Former Yugoslavia.

Court's holding and analysis

The Chamber first determined that the Croatian Army and the Special Police did commit the crimes as listed in the indictment (paras. 1736; 1783; 1775; 1789; 1800).

The Trial Chamber examined whether there was a joint criminal enterprise with the aim to remove the Krajina Serbs. It concluded that a joint criminal enterprise was established by the end of July 1995, and was continuously present through the time period of the indictment (para 2303 et seq.).

With regard to Gotovina and Markač, the Chamber found that they substantially contributed to the planning and preparation of the operation against Krajina and participated in the joint criminal enterprise. The Chamber also found responsibility for the charged crimes which were foreseeable consequences for both of the accused (paras. 2368-2375 and paras. 2578-2587).

With regard to Čermak, the Chamber held that it has not been determined that he knew or intended his actions in Knin to permit, minimise or conceal crimes against the Krajina Serbs. The Chamber concluded that the evidence was insufficient to establish that Čermak was a member of the joint criminal enterprise or that he provided a significant and intentional contribution to it. Accordingly, Čermak was not found responsible (paras. 2547-2551).

Further analysis

L.R. Blank, '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', Emory Public Law Research Paper No. 12-186, Emory University School of Law 2012;
V. Pavlakovic, 'Croatia, the International Tribunal for the Former Yugoslavia, and General Gotovina as a Political Symbol', Europe-Asia Studies, 2010, Vol. 62, pp. 1707-1740.

Instruments cited

Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), UN Security Council, (UNSC Res. 808), 25 May 1993.

Related cases

On the topic of Joint Criminal Enterprise, see also:

ICTY, Appeals Chamber, The Prosecutor v. Duško Tadic, Judgment, 15 July 1999 (see esp. para. 220);
ICTY, Appeals Chamber, The Prosecutor v. Momčilo Krajišnik, Judgment, 17 March 2009(see esp. para. 695).