The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, instead of ruling on the basis of the prosecution's interpretation of evidence and either accepting it or turning it down and acquitting General Ante Gotovina, decided to build in the verdict its own case against the Croatian general, thus denying him the right to a fair trial, reads an appeal brief in which Gotovina's defence challenges the conclusion of the Trial Chamber that artillery attacks by the Croatian army in 1995's Operation Storm were unlawful and that the expulsion of the Serb population from the then occupied areas of Croatia was committed by random shelling.
Gotovina's defence on Monday filed the 143-page appeal to the April 15 ruling which sentenced the Croatian general to 24 years in prison after he was found guilty, as a member of a joint criminal enterprise, of crimes committed against Serb civilians during and in the aftermath of Operation Storm, a Croatian army and police offensive in which Croatian areas occupied by Serb rebels were claimed back.
After concluding that the prosecution's allegations of random Croatian artillery attacks did not stand and that there were almost no military targets in the areas that were shelled, the Trial Chamber did not acquit Gotovina, but decided to create its own case against him, denying him the right to timely information on what he was charged with and on the basis of which criteria, as well as the right to a fair and unbiased trial, the defence team says in the appeal brief which points to a number of illogical conclusions in the verdict.
The defence says the Trial Chamber introduced its own new criteria for the judgement which the accused did not know about during the trial, instead of applying criteria on the basis of which the prosecution conducted the case.
It says that Gotovina was not aware that he was tried on the basis of criteria for unlawful artillery hits that missed the target by more than 200 metres, instead of by 400 metres as stated in the prosecution's case, and that he was also unaware that individual hits rather than attacks in general were being analysed, as was the Croatian army's capability to hit subsequently added targets.
The defence said the Trial Chamber was imprecise in its conclusions and concluded without any good reason that the said artillery attacks were carried out by Croatian forces, ignoring the fact and witness testimonies saying that they could have been carried out by Serb forces as well.
The Trial Chamber erred on several points by transferring the burden of proof about the nature of artillery attacks on the defence, reads the appeal brief in the part analysing the conclusions of the Trial Chamber on individual artillery hits in the areas of Knin, Benkovac, Obrovac and Gracac.
As for the conclusion about Gotovina's intentionally attacking civilian areas, the defence warns that international law does not ban attacks on civilian areas but on civilians.
As much as one-third of the appeal brief is dedicated to the question of the lawfulness of artillery attacks. As for the conclusion of the Trial Chamber that unlawful artillery attacks were the main and direct reason for the mass departure of the Serb population in Operation Storm, the defence warns the Appeals Chamber about the fact that the Trial Chamber ignored a number of other possible reasons for their departure, including fear of lawful artillery attacks on military targets in their vicinity and evacuation orders from the local Serb leadership.
Gotovina's defence challenges the conclusion of the Trial Chamber about the existence of a joint criminal enterprise, made on the basis of the Brijuni meeting of the Croatian military leadership ahead of Operation Storm, and denies Gotovina's involvement in such enterprise.
