Croatian lawyer Jadranka Slokovic told the media on Saturday that an order of the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of two Croatian generals Ante Gotovina and Mladen Markac to the prosecution to elaborate its thesis on the generals' possible guilt "under the alternative modes of liability" could be treated as a sign that the appeals chamber did not believe in the theory of a joint criminal enterprise and that it was trying to find other modes to establish the possible criminal liability.
"This is an unusual manoeuvre which shows that the trial chamber's ruling is untenable," said the Zagreb lawyer.
Considering that "additional briefing on the potential for convictions under the alternative modes of liability with respect to Gotovina and Markac would assist in a just resolution of their appeals," the UN tribunal's appeals chamber orders the prosecution to file by 10 August submissions in which it can explain whether it believes that the two generals might be held responsible on the basis of superior responsibility or as aiders and abettors in the event that they are not found liable for unlawful artillery attacks or are not be found to be members of a joint criminal enterprise.
"The additional briefing should focus on whether any remaining findings of the Trial Chamber satisfy the legal elements of these alternative modes of liability," reads the order, issued on Friday.
Slokovic said that additional problems might crop up during the establishment of alternative modes of liability for the two generals on the basis of superior responsibility given that elements of the command responsibility had not been considered during the trial.
The trial and the trial chamber's judgement focused on a joint criminal enterprise, although the two generals had been charged with war crimes on the basis of their participation in the joint criminal enterprise and individually for having ordered the commission of crimes and according to their command responsibility.
On 15 April 2011, the ICTY trial chamber sentenced Gotovina to 24 years and Markac to 18 years in prison for war crimes which Croatian forces committed when liberating central and southern Croatia from rebel Serbs in August 1995.
In this trial the Hague tribunal 's trial chamber acquitted General Ivan Cermak whose legal team included the Zagreb lawyer Slokovic.
The chamber emphasised in its latest statement that " the present order in no way expresses the Appeals Chamber's views on any aspect of Gotovina's or Markac's appeals".
Slokovic, however, believes that this order reflects the view of the appeals chamber that there is no evidence for the existence of the joint criminal enterprise and for excessive shelling.
She interpreted it as a big problem in the proceedings as "the appeals chamber disagrees with the findings of the trial chamber".
The appeals chamber is expected to hand down its final judgement by the end of this year.
