Why the Gotovina Appeals Judgment Matters

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Jens David Ohlin is Associate Professor of Law at Cornell Law School. He is the co-editor of Targeted Killings: Law and Morality in an Asymmetrical World (OUP 2012).  Cross-posted at LieberCode.

When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region.  In Serbia, the decision was met with consternation, anger and resentment.  In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.

As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success.  The decision fueled resentment among Serbs who view the tribunal as victors’ justice.  And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare. For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.

From a legal perspective, the Appeals decision is also a worrisome development.  The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality.  The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target.  These are simple principles, but they are difficult for courts to apply in practice.  Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY.  The Gotovina Trial Chamber Judgment was one of the few.  And now that verdict has been overturned.

I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.

Turning to the principle of distinction, the Appeals Chamber concentrated its analysis on a 200-meter standard used by the Trial Chamber.  Under this standard, the Trial Chamber determined that artillery shells falling more than 200 meters from a legitimate military target constituted evidence of indiscriminate shelling of a residential area.  Although this standard was based on expert testimony heard during the trial, the Appeals Chamber noted that the standard is not one that can be found anywhere in international law.  The Trial Chamber appears to have basically made it up (or at the very least conferred upon it a significance it did not deserve).

There are two points here.  First, the majority and dissent in the Appeals Chamber agreed that the 200-meter standard was ill advised, though they disagreed about the consequence of this observation.  For the majority, the ill-advised 200-meter standard was the legal foundation for the entire Trial Chamber decision, without which the conviction crumbled.  For the dissent, the unfortunate 200-meter standard was just one aspect of the case against Gotovina, for which there was still a substantial foundation even without the 200-meter standard.

Second, was the 200 meter standard even necessary?  This might have been a situation where the Trial Chamber said too much, making themselves subject to reversal because they are articulated a legal standard (if it even was a legal standard) that was not defensible.  But what if they had articulated no legal standard at all?  What then?

How is this possible, you ask?  It is very possible.  The Trial Chamber could have examined the entire spectrum of facts, including the known location of military targets, the known location of civilian deaths, the number of civilian deaths, and then stated that these facts amounted to a legal conclusion of an indiscriminate attack against civilians or even a disproportionate attack against civilians.  Period.  Had the Trial Chamber done this, their decision would have been subject to less scrutiny, and might even have withstood the appeal.

There’s an irony here, of course, and one that I often point out to my students in other contexts.  When a court applies the law to the facts, they are obligated to state reasons for their decisions (although juries do not).  In announcing that decision, they justifiably feel compelled to articulate standards that explain the basis for that decision.  But when they do so, they often get reversed if the standard or legal theory is ill advised.

This creates a law of perverse incentives.  Trial Chambers (and courts generally) should be as terse as possible with their explanations if they want to be successful.  Although this renders their decision-making process comparatively opaque, it might immunize them from eventual reversal on appeal.  But that’s not the type of judicial decision-making we want to encourage.

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Marty Lederman says

December 22, 2012

Excellent post, Jens. One quibble, however. You write that "the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law," and appear to thus lament that the appellate court overturned the "guilty verdict for launching [a] disproportionate attack" in the Gotovina Trial Chamber Judgment.

I agree that it might be very useful to have a corpus of adjudicated cases about how to assess proportionality. But, *whatever* one's views are about how to make proportionality assessments, the Gotavina trial chamber discussion of proportionality is most certainly not the model we ought to be encouraging. The court's opaque discussion in paragraph 1910 does not even clearly explain the anticipated military advantage in this case -- in discussions with others who have read it, we've teased out several different possibilities, but the trial court did not include any discussion about how any of those objectives might or might not have been advanced by the shelling in Knin -- or what number of civilian casualties might have been reasonably anticipated. Thus,if paragraph 1910 would have been left on the books as the virtually first, and therefore "leading" precedent on proportionality, it would only have engendered more confusion, not enlightenment, on the proportionality question. Moreover, the trial court did not render a "guilty verdict" on proportionality. Its terse conclusion in paragraph 1910 was but the final of many steps that it used to arrive at a conclusion of "indiscriminate" shelling of the town of Knin in paragraph 1911.

It might be that the shelling of Knin was a perfect opportunity for the ICTY to expound upon how to assess proportionality in a way that would shed real light on the question. But the trial court opinion was not the way to do it.

Jens Ohlin says

December 22, 2012

Marty, I don't disagree with anything you've said. The Trial Chamber analysis on this issue was woefully inadequate. Your comment also raises another question, which is a question that stems not just from the TC judgment but also from the API itself. What is the difference between a disproportionate attack simpliciter and an disproportionate-attack-qua-indiscriminate-attack? Of course, the former is just disproportionate full stop, while in the latter the lack of proportionality is taken as evidence of the indiscriminate nature of the attack. But is there a legal significance to this distinction?

Sunman says

December 22, 2012

No enemy civilian deaths. An ordered evacuation of civilians by their own command. One of the most precise artillery and military campaigns in modern warfare to liberate illegally conquered territory by an army that did not even exist less than 5 years prior to the campaign. Complete refusal by Serbs to negotiate a peaceful resolution with Croatia. Who wants to debate proportionality and distinction? It would have been a grave injustice had Gotovina and Markac not been over-turned. Equalization of guilt is a social experiment that has no room in a court of law - it is a concept that will only prolong animosity and conflict. If you believe that proportionality and distinction should have been the basis of more ICTY cases then the Gotovina case is not the case that would have set a successful example. You can however argue successfully that Vukovar, Sarajevo, Dubrovnik and even Zagreb would have made far better cases. The truth is that this war was an unnecessary war of expansion inspired by an imperialistic dream of a Greater Serbia by a fascist and fanatical Serbia. Remember Operation Storm did not happen in vacuum; but social experimenters like the author never acknowledge this because it doesn't fit their twisted views. The Serbs have been found guilty in far greater numbers than other nationalities simply because they committed the vast majority of crimes. And for social experimenters, please answer when did justice change to equalize numbers of nationalities as the supreme consideration of law??

Sunman says

December 24, 2012

With all this talk about the Gotovina case, if we are to look at totality, distinction and proportionality then we need to look at the entire war and the primary actors - Serbia, Bosnia and Croatia. Croatia and Bosnia as republics within Yugoslavia had the constitutional right to secede. This right in Croatia was expressed through legitimate democratic means observed and sanctioned by the then EC. Serbia went on rampage in Croatia and Bosnia. Clearly this was illegal within the framework of the Yugoslav constitution. Serbia's brutal attach especially on Croatia and Bosnia was unprecedented and driven by a desire for territorial conquest and not for the protection of Serbs. If protection of Serbs outside of Serbia was the goal, then more civilized and peaceful methods could have been used more successfully within the framework of a new and united Europe as the guarantor of a peaceful resolution. Serbia's attack went beyond all reasonable proportionality and distinction concepts. For example, Serbia was determined to exterminate all traces of Croatia identity and culture in Croatia. The Yugoslav army (at the time the 5th largest in Europe) and Serbian paramilitaries demolished over 1200 churches across Croatia in an attempt to erase symbols of Croatian identity and culture. Although valuable cultural heritage was destroyed, they failed to subjugate the Croatian nation. Is this proportionality? Is this distinction? All these discussions about the ICTY and the Gotovina case lose sight of the totality of the war and are really just political expressions and not about law. But maybe the most obvious is that the war was in Croatia, not Serbia. Croatian people were massacred defending their homes, property and economic assets were destroyed by Serbia. Croatia did not start the war, Serbia did. There surely must be differentiation between aggressor and defender. Serbia through its actions is responsible for the war. Croatia worked within the framework of Yugoslavia and even proposed alternatives to save the federation which were all refused by Serbia. Let's put the responsibility where it belongs.

Sunman says

December 25, 2012

One more comment...Marko Milanovic makes two highly contentious and inflammatory claims that legal experts should be concerned with. First, he claims that the the overturning of the Gotovina ruling brings into question the ICTY's legitimacy because Serbs were upset by the decision. This is non-sense. Courts of law should never be courts of public opinion. Instead of making an attempt to explain the legal rationale and righteous of the ruling Milanovic only ignites the flames of discontent. There will be no catharsis or reconciliation until Serbs accept their proven role as aggressors. It is time that the myth of Serbian victimization is finally put to rest. Quite frankly the ICTY prosecutors under Del Ponte were irresponsible in their conduct by trying to prosecute equal numbers from each nationality to prove that there was equalization of guilt. This only perpetuated a myth and strayed from law and justice into a politics. This served Serbia well, but when the Appeals Chamber rightly overturned many convictions that were based on the concept of equalization of guilt Serbia quickly saw that the politicization of an international court was not working to their favour. Which then left Serbia exposed to the truth of their criminal activity.

Milancovic also claims that the complexity of the reality on the ground makes it hard to determine who is right or wrong. What baloney. Every war is complex on the ground; that is plainly obvious. The distinction however is the policies and actions of political and military leaders. Serbia had sanctioned, encouraged or outright funded paramilitary organizations in Croatia and Bosnia who were responsible for some of the most heinous war crimes. The Yugoslav army flagrantly disregarded conventions and laws of war committing many massacres and other war crimes - systemic use of rape as an instrument of war, concentration camps that employed torture and murder (including camps inside of Serbia), destruction of hospitals, churches and schools, forcible expulsion of entire populations upon threat of death, indiscriminate killings destruction of property and other crimes that were not isolated incidents but part of a wider policy to terrorize and ethnically cleanse wide areas of territory regardless of whether there were sizable Serbs populations in the vicinity. Serbia did not rein in this illegal terror, but encouraged it. Perhaps they were drunk with power, but there were no serious attempts to follow the laws of war other than the brutal convention of might is right. No serious attempts were made to stop and / or persecute criminal activity during or after the war. Instead, war criminals were rewarded with promotions and hero status. No attempts were made to enforce discipline among the paramilitary or state military. Essentially Serbia ran military operation of thugs and criminals. Contrast this with Croatia and Bosnia who at the start of the war had no standing army or military organization and newly formed independent governments. More to the point, they had no significant arms and an arms embargo that severely impaired the basic right of self defense against armed aggressors. Through that uphill battle Bosnia and Croatia at a command and leadership level operated within the laws and conventions of war. For example, Gotovina ordered all his commanders to take courses on the laws of war with the explicit order to obey the rules, ordered his commanders and troops to obey the rules of war, prohibited many troopers from participating in Operation Storm because their families had been either killed or forcibly expelled from the Krajina region in order to prevent retribution, criminal activities post the campaign were pursued and brought to justice; although it could be argued that it should have been quicker, one must bear in mind the limited resources and capacity of newly organized military and government.

When the first bullet is fired the dogs of war are released. The question is how do political and military leaders respond and conduct themselves - lawfully or unlawfully.

Ian Henderson says

January 2, 2013


Disproportionate and indiscriminate: A possible legal significance is in the wording of articles 51 and 57 API and upon whom the obligations are imposed. Article 51 prohibits indiscriminate attacks (deeming disproportionate attacks to be indiscriminate) in general terms. It appears to be a State obligation. Those parts of article 57 that deal with disproportionate attacks impose obligations on those who plan, decide upon and execute attacks.

Jens Iverson says

January 2, 2013

Excellent thoughts on vagueness and requirement of a reasoned decision. A few points:

The post brought to mind Ronald Dworkin's discussions of the aspiration of a judge to issue decisions that both provide the best fit with existing law and reveal the law in the best possible light. I think judges don't want to be overturned, but (particularly in a historic case) also don't want to miss an opportunity to explain the law.

There is an irony in applying your general point (terseness and opaqueness in reasoning can be rewarded) to Gotovina... given that the fundamental complaint of the Appeals Chamber is that the rationale behind the "200-metre standard" was not only opaque, but essentially absent. In the voluminous Trial Chamber decision, on this crucial point, they were apparently too terse.

I think most practitioners would rather Trial Chambers err on the side of explaining themselves. There's a great frustration in appealing a decision that merely reiterates the law and the arguments of the parties and then says one side is more persuasive. ICTY jurisprudence says (essentially) trial chambers must provide a reasoned decision but don't have to explain every detail of their reasoning; this can leave a bit too much at the discretion of the trial chamber at times.

I'd be curious to hear any further thoughts on this statement: "Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY." Why do you think this is? Do you think it's an error? If so, is it an error in the application of the law by judges? The evidence brought by the OTP? Might it have something to do with other violations (e.g. various ways of targeting civilians, abusing prisoners) making the task of proving disproportionate attacks superfluous or somehow inefficient? How can the question of whether this absence of convictions for disproportionate attack is an error or not be assessed - particularly without devolving into needless and tiresome ad hominem attacks?

In any case, a welcome post on an important subject.