The Indictment (AMENDED INDICTMENT, ORIGINAL INDICTMENT) against General Ante Gotovina is a really interesting piece of legal document as it reveals how the Hague court works.

I will first analyse the "quality" of the indictment itself, not in the sense that I will review the alleged acts themselves, if they happened or not, but I will analyse the logic of the charges against Gotovina in relation to the alleged acts.

In a second part, I will explore the foundations of the ICTY's conception of "command responsibility" and question its undiscriminativeness.

If we observe the Gotovina's indictment, we can notice a few things:

The charges counts generally begin or end with allegations that he "planned, organised, instigated, ordered, committed etc..." some alleged acts that are detailed in other paragraphs.

Now, this is a strange way to put up charges. It is not possible to see for any of the alleged acts supposedly done by Croatian troops, if Gotovina specifically "planned" it, "ordered" it, "instigated" it, "committed" it, or anything specific.
It is like if the prosecutor just copied and pasted all the possible charges existing in some article of law, without specifying which one is Gotovina specifically accused for.

Such vagueness is simply unacceptable. If the prosecutor wanted to cite the article of law, he could have done so, but after that he must have specified the exact charge for any of the alleged acts.

He should then have said, for example, that Gotovina "planned" such and such act, that he "instigated" that other act, "ordered" another and "committed" that one.
Charges must be specific, otherwise it is not clear what one is really charged for.
Also this very peculiar way to compose an indictment is a clear sign that the prosecutor doesn't have specific charges, otherwise he would have made them explicit.

Another element corroborating the lack of specific charges is that there is always an ALTERNATIVE charge to the one where he "planned, ordered, instigated... " Specifically that Gotovina has known or had reasons to know of the acts done by the troops.

If the prosecutor had specific evidence that Gotovina planned, or ordered any of the alleged acts, why would he have made ALTERNATIVE charges where Gotovina only knew or had reasons to know?

This confirms that the prosecutor has nothing specific (or he would have stated it that way) but is in fact "fishing" for all possible explanations that he may charge Gotovina with.

It is clear then that the indictment was composed not on specifics, but that the prosecutor just ASSUMED that these alleged acts were maybe planned, maybe ordered, maybe instigated, maybe known of and definitely that he "should have known" about them.

Any half decent legal system would not accept an indictment of the type: "yeah, he may have done this, or he may have done that, and if he didn't do either of those things, he must have known about them for sure (if they happened)"

The span of the possible charges admitted in this single indictment is properly incredible. On one extreme you have the thesis that Gotovina planned and executed ethnic cleansing in concert with the late Croatian president Tudjman. This actually means that the whole liberation operation of Krajina was a criminal act and that the whole state of Croatia is on trial.
On the other extreme you just have the situation of a commander who should have known about some individual crimes committed by his troops.

There is a universe of difference between those two extremes, but it didn't dissuade the court to accept as valid an indictment so unspecific that it covers such vast span, from charges of deliberate criminal state policy to just closing the eyes in front of individual crimes.

I don't know about you, but I find this kind of indictment a disgrace and a shame for any law system. And the fact that something so vague, so unspecific, based on assumptions of the prosecutor, could be accepted as a valid indictment by the court, makes the court itself a complete disgrace and a shame.



This brings us to the second part, "the command responsibility":

The prosecutor's last resort charge against Gotovina is that he "should have known" of the alleged acts (which are alleged, nota bene, so it is possible that he didn't know because they never happened?).

It is clear from the fact that the prosecutor had to fish for all imaginable charges defined by law without specifying any, that the only "solid" one he has, is the last one, that he "should have known".

This charge doesn't have to be specific (lucky, lucky) and cannot be really countered because there are no explicit criteria to define when such charge is true or not. It is just assumed that a commander "should know", that's all. He is responsible, and "voila!".

Well, since ICTY failed to define sufficient criteria for the applicability of the "should know" principle, let's see if we can do better.

Some questions must be asked:

-1- Can the "should know" principle be applied the same way for long standing well organised armies and for for "ad hoc" military organisations created under attack and in danger of total national annihilation?

-2 - Is there a symmetry or an asymmetry in the real command resonsibility circumscribed by the "should know" principle, between the attacking side and the side defending itself?

ICTY, and perhaps the international law (I'm not an expert), in its "impartiality" seems to think that these distinctions are irrelevant.
A "crime is a crime" they say, regardless of who did it.

They may be right for directly committed criminal acts or direct ordering of acts, but are they right about "command responsibility"?

Let's us examine first the question of symmetry/asymmetry between attackers and defensors.

The side that is defending itself is in a different position that the attacking side in the sense that it HAS to defend itself. The attacker doesn't have to attack, it is his choice.

The defending side must defend itself, and has to defend itself the way it can.
If the defensors didn't have an army prior to the attack, they cannot wait for the creation of the perfect army before beginning to defend themselves. They don't have the luxury to wait for perfect chains of command to be created, for perfect discipline and perfect feedback, they may not even have the luxury to replace or punish some people if it would prouve counterproductive to the task of defense.

If they fail to create a perfectly organised army, at par with long standing armies like the US, French or British ones (which still manage to do the occasional war crime, now and then) it cannot really be held against them.
They didn't ask to have to create an army, they had to or they would have been whiped out.
Failure of the defending side to create an adequate military organisation cannot be held against it, because they didn't ask to be attacked with the danger of being destroyed.
If they failed to create a completely organised army, it may be because they couldn't. Priorities linked to mere survival could have prevented the allocation of resources in order to create a well organised military force where "command responsibility" as ICTY understands it, would have a meaning.

On the other hand, the attacking side cannot be relieved of command responsibility, even if their army was not well organised.
Why? because they were not forced to attack.
They cannot say "well ve attacked and tried to destroy them the way we could", while the defensors may well say that they defended themselves the way they could.
The attacker didn't have to attack, so his responsibility is absolute.

This is something ICTY, and maybe the international law itself doesn't understand.
They seem to believe that the "should know" principle is indiscriminatively applicable on all sides and all situations. There are no clear criteria where the principle is applicable or not or even the idea that such criteria must be elaborated.
For ICTY, command responsibility is defined the same way for the attacker and it's victim, for a long standing army and one that was just formed in the heat of the battle for survival.
ICTY assumes that everybody has a perfect army or SHOULD HAVE ONE!



So what do we have?

We have a court that accepts the unacceptable. A court that accepts an indictment based on totally unspecific charges where the prosecution is clearly "fishing". A court that accept such total vagueness in indictments that it is impossible to determine for what is one really charged for.

We have also a court that doesn't understand the objective asymmetry in command responsibility between the attacker and the defensor and did not implement any criteria for explicit discrimination of such asymmetic spans of responsibility.

These flaws don't make the Hague court "imperfect", they make it a disgrace of a court, totally defectuous in its very conceptual foundations.

Of course, if a country tries (like Croatia tried) to attract the court's attention to such and similar flaws in indictments admission and flaws in criteria, the court never really answers with any argumentation but with threats of political and economic sanctions if the country "doesn't cooperate".

So yes, for me, the ICTY court is a disgrace and a shame, and intimately, for me it is "garbage".
The fact that the arch-criminal Milosevic will probably be sentenced by the court doesn't change anything, as they should really be "minus habenses" to miss that one.

Furthermore, the ICTY court has no real mechanisms of control, and there is certainly no will by the international political forces that have created it to control the well foundedness of it's procedures in practice.

When Croatia sends fundamental critics, they are never answered with arguments, just with threats.
It is obvious that nobody is really interested to really reexamine this court. They probably think that it is "good enough" for those "savages" and serves its political purpose anyway, which is to push all those "trouble makers" into obedience.

This brilliant court doesn't even have mechanisms of compensation in the case of dismissal of charges. So we have the case of a few people (for example Vlatko Kupreskic) who have spent years in jail, but when the charges against them were rejected they were offered no compensation for their unjust imprisonment and complete disruption of their lives. The elementary provision of compensation, which should exist in any civilised legal system was simply rejected, even after repeated suggestions by the Croatian government. This shows the contempt of this court and those who formed it for any critics of its work and conception. They simply didn't envision a situation where they could be wrong or care about it, and as a detail it illustrates how justice for individuals is not a priority there, politics are.



A last word about the content of the charges. I didn't initialy plan one because it would take a small essay to go trough them one by one. However, for what it's worth I will state here some of my opinions and what they are based on.

The indictment makes allegations that large numbers of Serbs vere deported or forced to flee as a result of Croatian harassment, persecutions etc. In fact it specifies that these deportations and displacement were the result of large scale persecutions.

This simply isn't the case. The vast majority of the Serbs who fled were evacuated by orders of the Serbian commanders. This is documented in various ways, from intercepted radio communications to explicit admission during testimonials during Milosevic's trial and even interviews in Serbian newspapers and magazines. There are even documented cases when Serbian civilians who didn't want to be evacuated were killed by the Serbians themselves

Moreover the evacuation of many on those Serbs has been documented on Croatian television and tapes are available. Large number of Serbs who were blocked in various pockets and couldn't evacuate were actively encouraged to stay by the Croatian government. The radio and television were constantly airing messages of the President Tudjman and the Cardinal Kuharic urging Serbian civilians to stay, even during the military operations themselves. Instead the majority of them chose to leave, which resulted in long columns of vehicles leaving Croatia during a period of a few days.
All this is documented by Croatian television and can be viewed by anybody interested. Even the US ambassador at the time, Peter Galbraight, accompanied those Serbs during their evacuation and can be seen on tape. Many of the Serbs leaving were also interviewed by television crews and they offered no good reasons why they were leaving.

That same Galbraight recently testified on the Milosevic's trial and declared there was no ethnic cleansing done by the Croatian forces during operation Storm (the operation Gotovina is indicted for), that Serb civilians were evacuated by order of the Serbian leadership.

There are two plausible reasons for such unforced evacuation (the Croatian govermnent was under close scrutiny by international observers and did it's best to convince these Serbs to stay). One is the orders of evacuation themselves, which had a military purpose for future planned retaking of the region (which never happened, of course) and the other was the constant propaganda those Serbs were submitted to, even before the war, during socialist Yugoslavia. The idea to stay in "Ustashi" controlled land (as they percieved it) after a period of purely Serb government euphoria, was simply unbearable for most of them.
And what to say about all those who participated in the Serbian policy of ethnic cleansing or supported it actively or passively? They probably knew why they were running away.

Lately it was even discovered that a number of Serbs supposedly killed during operations conducted by General Gotovina and whose names are mentioned in the ICTY's indictment, are live and well in Bosnia and Serbia.
This casts a serious doubt on the professionalism of the prosecutor in the gathering of data against Gotovina and should alone be enough for the dismissal of such indictment.

About the new indictment

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