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Int'l Experts Call on ICTY to Reconsider Trial Chamber Ruling in Gotovina-Markac Case

gotovina-markac-011612A group of prominent Western legal and military experts have applied for the status of amicus curiae (friend of the court) of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Croatian generals Ante Gotovina and Mladen Markac and have called upon the Appeals Chamber to reconsider, based on their expert opinion, the Trial Chamber's findings of unlawful artillery attacks by Croatian forces during 1995's military offensive known as Operation Storm.

"Their shared desire is to help the Appeals Chamber with their expertise in delivering a fair ruling, so they have applied for amicus curiae status and have filed their application in which they devalued the conclusions and findings of the Trial Chamber concerning the use of artillery as a measure to intimidate the Serb population into leaving the Krajina region and as a method of carrying out that alleged criminal enterprise," General Markac's lawyer Goran Mikulicic told the media on Sunday.

The application was filed by 12 internationally recognized legal and military experts, including professors of international humanitarian law, retired US Army officers, and former ICTY prosecutor William Fenrick.

"From a professional point of view, the application is very good because it is a mix of military, legal and academic expertise on the application and practice of international humanitarian law. It is a very well reasoned submission by people who represent something in the academic community dealing with this particular area of law," Mikulicic said.

The experts requested the Appeals Chamber to admit their brief under Rule 74 of the tribunal's Rules of Procedure and Evidence and to reconsider and reject the findings of unlawful artillery attacks during Operation Storm, says the application, filed on January 12. They expressed their concern because the Trial Chamber used a 200 meter radius of acceptable error in artillery attacks, saying that that standard is "fundamentally inconsistent with the realities of operational employment of artillery". The experts claim that "there is no military practice to suggest that a 200-meter radius is the norm in employment of artillery and other indirect fire assets".

"Even applying the 200-meter radius of acceptable error adopted by the Trial Chamber, approximately 96% of artillery effects impacted lawful military objectives," the experts said in their submission.

Analyzing the structure of the self-proclaimed Serb statelet in Croatia in the early 1990s, its army and the Yugoslav People's Army (JNA), the experts disagreed with the assessment of the Trial Chamber that the residence of Serb rebel leader Milan Martic had not been a legitimate military target, claiming that it had been targeted irreproachably because no one had been killed.

The experts emphasized that a final judgment in the Gotovina and Markac case would serve as a pattern for future cases relating to military operations round the world.

The application was signed by: Laurie R. Blank, Professor of International Humanitarian Law at the Emory University School of Law; General Bill Boothby, Deputy Director of the British Royal Air Force Legal Services; Geoffrey S. Corn, Professor of Law at South Texas College of Law, Houston and retired US Army Brigadier; William J. Fenrick, senior legal adviser in the ICTY Office of the Prosecutor from 1994 to 2004; Professor C. H. B. Garraway, legal officer in the British Army Legal Services; Donald J. Guter, Dean of Houston's oldest law school, South Texas College of Law, and retired US Navy Rear Admiral; US Army Major General Walter B. Huffman, legal adviser to commanders in Operation Desert Storm; Eric Talbot Jensen, Professor of the Law of Armed Conflict at Brigham Young University in Provo, Utah, previously served as the Chief of the Army's International Law Branch; Mark E. Newcomb, legal adviser in the US Navy; Major Thomas J. Romig, served as Judge Advocate General of the US Army; Major Raymond C. Ruppert, years of active service in US Army artillery units and later as a legal officer; Gary Solis, 26 years of service in the US Marine Corps, an academic career in the UK and the US.

The application followed a recent symposium at the University of Atlanta where US, British and Canadian military and legal experts discussed the ICTY Trial Chamber's ruling in the Gotovina and Markac case.

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