Artillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia

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Last month, the International Criminal Tribunal for the Former Yugoslavia (ICTY) heard oral arguments in the important case of Prosecutor v. Gotovina.  The case concerns the decisions of General Ante Gotovina, the commander of Croatian forces during Operation Storm in August of 1995.  The case’s outcome may have far reaching implications on the practical application of the law of armed conflict.

The Gotovina prosecution arose out of Operation Storm, a massive Croatian military effort to retake Serbian controlled areas of Croatia.  In brief, and painting with a broad brush, it came in the wake of the Srebrenica Massacre, which later the U.N. Secretary General called the worst crime in Europe since World War II.  At Srebrenica, Serbians under Ratko Mladic murdered over 8,000 Bosnian men and boys in an effort to drive Bosnians from the area.  Operation Storm came on the heels of the massacre, and was an overwhelming success.  The Serbian forces were devastated.  Their leaders were forced to the negotiating table, and the peace accords soon followed.

After the war, the ICTY’s Office of the Prosecutor indicted Gotovina for war crimes arising from the targeting decisions he oversaw while commanding his forces in Operation Storm.  Gotovina went into hiding, but he was apprehended on December 7th, 2005.  On April 15, 2011, the ICTY Trial Chamber convicted Gotovina, concluding that he deliberately executed indiscriminate attacks during Operation Storm resulting in civilian deaths.

The potential significance of the Trial Chamber’s judgment, and the pending appeal, cannot be overstated.  As an Emory panel of experts offered, “[T]he manner in which [the law] is enunciated and applied in the Gotovina judgment has extraordinary import for future operations and conflicts.  The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.”

When Gotovina was returned to the Hague, he joined two other co-defendants who were charged with a joint criminal enterprise:

The alleged common criminal purpose of the joint criminal enterprise was the permanent removal of the Serb population from the Krajina region by force, fear or threat of force, persecution, forced displacement, transfer and deportation, as well as appropriation and destruction of property. The Prosecution alleges that in addition to the crimes forming part of the joint criminal enterprise, the crimes of murder, inhumane acts, and cruel treatment were committed, and were foreseeable as a possible consequence of the execution of the enterprise.

Gotovina, IT-06-90-T, para. 7.

For Gotovina’s part, as the military commander approving targeting decisions, the course of the trial became a battle of experts.  A former Dutch Artillery officer testified on behalf of the Prosecution, and a former U.S. Army legal officer (judge advocate) testified on behalf of Gotovina.  At the conclusion of the trial, the tribunal convicted Gotovina and one of his co-defendants (the third was acquitted).  Gotovina was sentenced to 24 years in prison.  Gotovina and his remaining co-defendant filed their notices of appeal, and after briefing, oral argument was heard on May 14th, 2012.

The Gotovina prosecution was significant from the start.  As soon as the Prosecutor issued the indictment, the United States House Committee on International Relations sent a letter to Secretary of State Colin Powell asking the Department of State to closely monitor the Prosecutor’s indictment of Gotovina.  The letter reminded Secretary Powell of allegations that “the Clinton Administration provided intelligence and other assistance to the Republic of Croatia in connection with [Operation Storm].”  The letter continued:

The ICTY has indicted a Croatian General, Ante Gotovina, for war crimes and crimes against humanity.  These allegations are based on reports that he failed to intervene to stop forces under his command who intentionally drove thousands of Serb civilians from their homes during [Operation Storm].  Testimony was presented [to the committee] questioning the factual basis for this indictment, and indeed the U.S. Ambassador to Croatia at the time of this operation, Peter Galbraith, has argued that Serbian civilians were not forced to flee.  Nevertheless, it was brought to our attention that the ICTY may investigate U.S. officials for command responsibility in connection with Operation Storm.

The letter ended, “We urge  the Administration to carefully monitor the Gotovina case and related investigations in order to ensure that no U.S. official is investigated or prosecuted by this U.N. tribunal for formulating or carrying out U.S. government policy.”

Not surprisingly, Operation Storm bore the mark of NATO military doctrine.  Some observers have suggested that Operation Storm was conceived and planned with the help of former military officers from NATO member states.  The Croatian forces were well-trained, and their execution synchronized, massing effects against enemy weaknesses.  What’s more, the evidence suggests that targeting decisions were carefully vetted by those involved to insure they complied with international law.  Distinction and proportionality were considered prior to engaging each target.

The critical aspect of the judgment was the trial chamber’s application of the principle of Proportionality in armed conflict.  Proportionality in the Law of Targeting is often mistaken for the concept of “proportionate response” from domestic self-defense provisions in criminal law, or a type of fairness requirement between opponents where force is matched with counter-force.  But the principle of proportionality in International Humanitarian Law is something else entirely.

Proportionality, as properly understood, is a longstanding principle of the law of armed conflict which balances military necessity and humanity.  It calls on commanders, prior to an attack, to weigh the military advantage to be gained against the risk of excessive collateral damage.  The International Committee of the Red Cross restated the customary rule that, “[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”  (Rule 14, Customary International Humanitarian Law, ICRC).

Although a well-established principle of customary law, proportionality was codified in treaty law as the prohibition of indiscriminate attacks.  Article 51(5) of Additional Protocol I to the Geneva Conventions provision that an attack is indiscriminate if it is “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” (emphasis added).  Moreover, the Elements of Crimes for the International Criminal Court (ICC) set forth the criminal law standard for applying the principle of proportionality under the Rome Statute.  In Article 8(2)(b)(iv), the ICC Elements of Crime provide five elements to be proved in a prosecution for the “War crime of excessive incidental death, injury, or damage.”

(1) The perpetrator launched an attack.

(2) The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

(3) The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

(4) The conduct took place in the context of and was associated with an international armed conflict.

(5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

The Elements of Crime continue, adding special points of clarification:

The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.

Notably, the “knowledge element [the third element] requires that the perpetrator make the value judgment as described therein. An evaluation of that value judgment must be based on the requisite information available to the perpetrator at the time.”  This type of value judgment, calling for command discretion, is not uncommon and is firmly rooted in international criminal law.

When considering command discretion, such as the value judgment that weighs military advantage against the risk of excessive civilian damage, courts are to apply a subjective standard.  Applying a subjective standard is not new in international criminal law.  Rather, at Nuremberg following the Second World War, the International Military Tribunal pronounced the Rendulic Rule: “It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity’ warranted the decision made.”  XI Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Military Tribunals, 1113 (1950).  Known for an Austrian Commander named Lothar Rendulic, the Tribunal dismissed the charges against him relating to a “scorched earth” tactic to slow the advance of the Soviets in Finland and Norway.  Rendulic ordered the destruction of civilian buildings and infrastructure to delay the Soviets as they pursued his retreating forces.  The Soviets never came, so in hindsight, his order to destroy civilian buildings and infrastructure served no legitimate military purpose.  Yet the Rendulic Rule provides that when assessing the conduct of soldiers on the battlefield, they should be judged by the facts and circumstances as they appeared to the soldier at the time.

Surprisingly, the Gotovina judgment imposed almost a “zero error” standard in which commanders are strictly liable for any civilian injuries or deaths when executing attacks.

First, the chamber created a 200 meter presumption of lawfulness, concluding that “artillery projectiles which impacted within a distance of 200 meters of an identified artillery target were deliberately fired at that artillery target.” Then, the court reviewed the evidence and decided that 94.5% of the artillery fired impacted within the 200 meter radius of military targets, but 5.5% of the artillery impacted beyond the 200 meter radius.  The court categorized those 5.5% as having impacted in civilian areas.  From this 94.5% success rate, the court inferred unlawful motive for the remaining 5.5%.  “Too many projectiles impacted in areas which were too far away from identified artillery targets for the artillery projectiles to have impacted in these areas incidentally as a result of errors or inaccuracies in [Gotovina’s] artillery fire.”  Accordingly, Gotovina was convicted.

As can be seen, the Trial Chamber’s reasoning was markedly different from how proportionality (and indiscriminate attacks) is typically imagined under Customary International Law and Treaty Law.  Whether the judgment is affirmed – or more importantly, the way in which the appellate court analyzes the proportionality problem – will have far reaching impacts on how militaries plan operations going forward.

There is no indication as to which way the court will decide.  Although the case will merely serve as persuasive authority for other courts and tribunals, Gotovina is the first time that a court has considered sophisticated targeting decisions between conventional forces.

Thankfully, if this type of material interests readers, there is a lot of great work being done in the area of International Criminal Law.  However, for more on the application of International Criminal Law to military operations and terrorism, readers can do no better than reviewing the many works of Vanderbilt Law’s Michael Newton, especially here, here, and most recently, here.

DISCLAIMER:

Jack Vrett, J.D.  2009, is a Captain in the United States Army currently assigned as the Chief of International and Operational Law for the 101st Airborne Division (Air Assault).  The opinions and conclusions of this post, as well as its flaws, are solely attributable to the author.  They do not necessarily reflect the views of the Judge Advocate General, the 101st Airborne Division (Air Assault), the United States Army, the United States Department of State, or any other federal entity.

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3 Responses to “Artillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia”

  1. Petar Petar Says:

    Dear Mr. Jack Varret,

    Thank you for this text which shows that there’s no law or justice in ICTY court, there are only political interests and that interest is to level the blame between Croatian and Serbs in our war for independence.

    But I wish to ask you something. If our generals will be declared guilty, shouldn’t then all nations who get attacked and their land occupied, be prosecuted and found guilty if they “dare” to free their own land?

    Also it is funny that no one is being prosecuted for leveling Vukovar to the ground and for slaughtering people from Vukovar hospital, but on the other side we have the prosecution of Gotovina and Markač for extensive usage of artillery in Operation Storm. Just compare pictures and video of Vukovar after Serbian shelling and Knin after shelling in Operation Storm. You will not find Knin leveled to the ground. (For example, compare Vukovar hospital after Serbian shelling and Knin hospital after Croatian shelling. The one in Vukovar is almost destroyed while one in Knin was untouched.)

    As a Croat I must say one thing. It seems that some nations think that by leveling blame between Croats and Serbs in Croatian war for independence they will make peace in this part of Europe. Well they are wrong. This will just cause another war after some time because the Serbian people will never give up in fulfilling their plan of Great Serbia. Even now as I type this they are saying that Vukovar and Dubrovnik are their towns, etc. If this plan of leveling the blame continues, some nations will have our blood on their hands again as they had it when they didn’t do anything to stop Serbian aggression in the 90’s. Mark my word and remember them one day when war between Croats and Serbs starts again, only because some nations are trying to level the blame and tell the Serbs that it’s OK to invade and occupy territory of another country.

  2. Mile Pletikosa Says:

    There is neither law nor justice in ICTY court. There is a dirty immoral political criminal support to Serbia to keep the territories it occupied from Croatia from 1991 to 1995. That law does not allow Croats to liberate themselves, that is a support for occupation, promotion of Serbia’s occupation of Croatia, Serbia was not prosecuted nor sentenced for its four year war against Croatia, tens of thousands of Croats were killed, hundreds of thousands were moved from their area.
    Who enacted such terror, when, where it was published?
    That is a law against freedom, the law against human rights, the law against Croatia’s liberation?
    The immoral law that does not prosecute occupation, destruction and genocide of the Croats made by Serbia, but sentences the liberation of the occupied Croatia.
    The law demonstrates, when a county is being occupied by other even smaller and weaker country, it has no right to resist against its occupation, the conqueror goes freely to occupy the country it has targeted. This means, if a X small country attacks the USA to occupy it, the USA has no right to defend themselves. If it happens, the USA would defend themselves and no one could prosecute the USA, but prosecutes small Croatia. A dirty political game of the UN tribunal, a shame of the UN. This is out of mind, against common sense, against the history.
    ICTY supports Serbia’s occupation of Croatia.
    General Ante Gotovina did his duty, liberated Croatia, the same as the USA, Great Britain and alliances liberated the territories occupied by Germany, Japan, Italy in the WW2. The USA and Great Britain using air force bombs killed half of million of German’s citizens and were not prosecuted.
    The USA occupied Iraq recently and was not prosecuted.
    ICTY pays double game.
    Only idiots can enact and accept such UN law.

  3. Josip Markovic Says:

    The series of documents on the attempted unification of the rebel Serbs from Croatia with Serbia starts with the Decision on the “unifi cation of SAO Krajina” with the Republic of Serbia, enacted by the “Executive Council of SAO Krajina” on 1 April 1991; the documents on the process of unification of the Serbs from Bosnia & Herzegovina and Croatia start with the “Declaration on the Unification of the Association of unicipalities of Bosnian Krajina and the Serbian Autonomous District of Krajina” of 27 June 1991. The list includes altogether 30 documents bearing witness to the intensive activities of Serbian politicians focused on preparing the unification of the Serbs from the Republic of Serbia and from Bosnia & Herzegovina (i.e., from the so-called Republic of Serbian Krajina and Republika Srpska) in a single Serbian state. It includes, in chronological terms, the “Protocol on Cooperation between the Government of Republika Srpska and the Republic of Serbian Krajina” (Banja Luka, 22 September 1992), the “Declaration on the Unification of the Assemblies of the Republic of Serbian Krajina and Republika Srpska” (Prijedor, 31 October 1992), the “Decision on the Constitution of the National Assembly of the Republic of Serbian Krajina and Republika Srpska” (Banja Luka, 24 April 1993), the “Proposal of the National Assembly of Republika Srpska and the National Assembly of the Republic of Serbian Krajina to the National Assemblies of Serbia and Montenegro concerning Unification in a Single State” (18 August 1994), the “Decision of the Assembly of the Republic of Serbian Krajina Concerning the Agreement on the Constitutional Law about the Provisional Constitutional Arrangement of the ‘United Republika Srpska’” (Knin, 29 May 1995), and other documents showing that the Serbs in Croatia and Bosnia & Herzegovina continued to prepare legislative documents for the proclamation of the “United Republika Srpska” even after their defeat in Operation Bljesak (Flash; May 1995), and that the process, but a step away from its realization, was interrupted by Operation Storm. The collection of documents on the Bihać crisis, caused by attacks of Serbs from Bosnia & Herzegovina and Croatia on the UN safe area of Bihać starts with a memoir 11 material, the reminiscences of General Krešimir Ćosić regarding negotiations with American political and military officials in the United States, resulting in Operation Zima ’94 (Winter ’94) by Croatian armed forces and the resolution of the first Bihać crisis. This is followed by 44 documents, largely of Serbian provenance, on events in the Bihać area – between 27 October 1994 and 3 August 1995 – showing that Bihać was an extremely important objective in the Serbian plans, which could not easily be achieved because of the tough resistance of the ARBiH 5th Corps. Moreover, the documents show that Serbian strategists did not shrink from any means in their attempt to take Bihać. They even carried out a covert operation involving the use of biological agents for food poisoning, to be smuggled into Bihać and intended to cause large scale poisoning of the 5th Corps troops and knocking them out of action. The third thematic section presents the plans of the rebel Serbs for the evacuation of the population from the occupied territory of Croatia. The 22 documents, demonstrating that evacuation plans in the case of an HV attack such as Storm had existed already in 1993, include the “Decision of the RSK Supreme Defence Council on the Evacuation of the Population from the Municipalities of Benkovac, Obrovac, Drniš, Gračac and Knin towards Srb and Lapac” adopted in the afternoon on 4 August 1995 in Knin. At the end, the Appendices present the contents of the so-called Plan Z-4, which the rebel Serbs refused even to consider, and reminiscences of the representatives of the international community involved in the attempt to implement the plan. Their statements on how the leaders of the Serbs in Croatia refused to accept the offered Plan as a negotiating platform clearly confirm that any attempt to peacefully reintegrate the occupied areas into the constitutional and legal system of the Republic of Croatia would have been futile because of the narrow-mindedness of the Serbian leaders. The documents in Appendices are the direct and well-argued answer to questions such as why, unfortunately, there was no alternative to the military option, why the Croatian leadership could no longer defer Storm, and who was responsible for the exodus of Croatian citizens, ethnic Serbs, on the eve of Storm and during the operation. The dramatic condition of Bihać defences, the collapse of which would have reinforced almost decisively the position of Serbian forces and their refusal of all peace initiatives – whether promoted by the Government of the Republic of Croatia or by the international community – and even of the “Plan Z-4” which granted the Serbs in Croatia an extraordinarily broad autonomy, and the continuous endeavours, ever since 1991, of the Serbs from Croatia and Bosnia & Herzegovina to create a single Serbian state in the occupied territory of the Republic of Croatia and Bosnia & Herzegovina, which had entered, on the eve of Storm, the final stage by the adoption of their common Constitution, clearly demonstrate how unconvincing are the claims that Croatia had been hasty in resorting to a military solution and that more time should have been foreseen for negotiations.

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