Friday’s judgment in Gotovina and Markac by the ICTY Appeals Chamber (summary; judgment), in which it by 3 votes to 2 reversed a unanimous Trial Chamber and acquitted the defendants, is a disaster at almost every level. I say this not as an aggrieved Serb lamenting the selectiveness of international justice and its failure to punish crimes against his own people – I have long since developed antibodies to all forms of nationalism, including the very virulent type thriving on self-victimization, and I have no personal axe to grind here. I say this rather as an international (human rights) lawyer who has always thought of the ICTY as an indispensable, if imperfect, instrument of justice for the atrocities of the Yugoslav conflicts. That said, how and why then is the Gotovina appeals judgment so bad? To my mind, the problem is not with the acquittal as such – even though as far as public opinion in the former Yugoslavia is concerned the bottom line is all that mattered. Rather, the problem is with the process, the reasoning, the appearances, and the broader repercussions that all these will have.
First, with regard to process: as the dissents by Judges Agius and Pocar correctly point out, the majority make a complete mess of the appellate standards for review. Readers will recall that in the common law-inspired procedure of the ICTY the main task of the Appeals Chamber is to correct errors of law made by the Trial Chamber. The Trial Chamber is owed deference with regards to its findings of fact, which are not to be disturbed lightly on appeal, but only if no reasonable trier of fact could have made the relevant finding on the strength of the record. In short, unlike in most continental systems, the appellate process should not amount a retrial, a de novo examination of the entire case. This ensures both procedural economy and the integrity of the exhaustive fact-finding process in the trial court.
While the majority endorses these standards as they are set out in the ICTY’s long-established jurisprudence, it does not actually follow them – to the extent that its approach to standards of review is actually even discernible, as I will now explain. The whole case ultimately turned around the Trial Chamber’s unfortunate finding that in assessing the shelling by the Croatian artillery of the four Serb towns in the separatist Serb entity in Croatia, chief of them Knin, any shell that fell further than 200 meters from a legitimate military target in the towns should be presumptively considered as evidence of an unlawful indiscriminate attack. The Appeals Chamber was actually unanimous that this rigid standard was not supported by the evidence in the trial record and was not given adequate reasons for by the Trial Chamber.
So far so good. But what the majority then does with this finding turns appellate review on its head. The majority does not explain whether the Trial Chamber’s error with regard to the 200 meter standard itself was an error of law or an error of fact. If it was the former, the majority would have had to articulate a new, proper legal standard for testing the facts established in the record, upon whose application we could know whether the shelling of Knin and the other towns was indiscriminate or not. If it was the latter, the majority would have had to pay due deference to the totality of the factual findings made by the Trial Chamber and should only have disturbed them if no reasonable trier of fact could have found that the shelling was indiscriminate on the basis of all of the evidence in the record.