Croatian General Mladen Markac cannot be convicted on alternative bases of liability in appeals proceedings because the Trial Chamber ruling provides no basis for it, his defence before the International Criminal Tribunal for the former Yugoslavia (ICTY) said in a response to the prosecution's submission that Markac could be found guilty either of superior responsibility or aiding and abetting in a joint criminal enterprise (JCE).
To assume that "is like positing that a house will remain standing even when all the supporting walls are removed," the defence said in a brief calling on the Appeals Chamber to reject the prosecution's submissions as unfounded.
Complying with a request by the Appeals Chamber, the prosecution said on August 10 that the Trial Chamber verdict, which convicted Markac and another Croatian General, Ante Gotovina, as members of te JCE, provided grounds to convict them also as aiders and abettors in the JCE as well as on superior responsibility for crimes committed during the two months following the August 1995 Operation Storm.
The Appeals Chamber requested the prosecution in July to explain if it believed that the two generals, in case it was established they were not guilty of unlawful artillery attacks or that they were not members of the JCE, as found by the Trial Chamber, could be convicted on alternative bases of liability.
In its August 31 brief, the defence said "there are insufficient 'remaining findings' to support such a conviction."
The prosecution said in its brief that even though the Trial Chamber did not make explicit findings on alternative bases of liability other than the JCE, the remaining findings and evidence established that Gotovina and Markac were guilty of aiding and abetting and of superior responsibility.
"If Markac is right in his appeal arguments, and he was wrongly convicted on the basis of JCE, then decency demands that he should be acquitted and released as soon as possible. This is especially so given that the Prosecution has not appealed the Chamber's failure to make findings on superior responsibility and aiding and abetting," the defence said in its brief.
"A convicted person is not a plaything of justice. The Tribunal, which champions human rights and the right to a fair process, should show compassion in these circumstances and bring the appeal to a swift close," it added.
Pointing to the absurdity of convicting Markac in the appeal of superior responsibility or aiding and abetting, something that is not the subject of the appeal, Markac's defence said that in that case General Ivan Cermak, who was acquitted, could also have been convicted on the basis of superior responsibility.
