Jan
8
The Never-Ending Balkan Wars Continue in Court
Posted by Clif Burns at 6:51 pm on January 8, 2014
Category: Balkan Sanctions • OFAC • SDN List
![Ante Gotovina http://rudebutgood.blogspot.com/2012/11/ante-gotovina.html [Fair Use]](https://www.exportlawblog.com/images/gotovina.jpg "Ante Gotovina http://rudebutgood.blogspot.com/2012/11/ante-gotovina.html [Fair Use]")
ABOVE: Ante Gotovina from Croatian
Propaganda Poster
Ante Gotovina, who is currently designated on the Office of Foreign Assets Control’s List of Specially Designated Nationals and Blocked Persons, filed suit on Monday in federal court in the District of Columbia seeking his removal from that list. Gotovina is a Croatian military officer widely believed to have been implicated in war crimes committed during Operation Storm which involved the “ethnic cleansing” of Serbs from certain territories by the Croatian Army.
Gotovina was added to the SDN list by Executive Order 13304 in 2003. That order designated a number of individuals involved in the Balkan conflicts that arose upon the dissolution of Yugolavia, including all parties who were “under open indictment by the International Criminal Tribunal for the former Yugoslavia,” which Gotovina was at the time.
Gotovina’s complaint is premised upon the 3-2 decision of the Appeals Panel of the ICTY in November 2012 overturning Gotovina’s earlier conviction for war crimes by the ICTY in April 2011. Since he is no longer under indictment by the ICTY, Gotovina claims that he should be removed from the list and alleges that OFAC has refused to respond to his request for removal.
Not surprisingly, Gotovina glosses over the reason for the Appeals Panel decision and argues that it is a complete exoneration of claims that he was a war criminal. In fact, the Appeals Panel decision was more procedural than substantive, setting aside the ICTY decision based on its finding that the “200 meter rule” used by the ICTY was arbitrary. The 200-meter rule excluded arguments that shelling targeted military rather than civilian targets when the shells fell more than 200 meters from legitimate military targets. According to the Appeals Panel, there was no evidence to support 200 meters as a measure rather than, say, 220 meters or 180 meters. As such, the Appeals Panel overturned the decision entirely.
Of course, OFAC is not bound by the Appeals Panel decision and is free to determine on its own whether Gotovina is a war criminal or not. Executive Order 13304 not only permits sanctioning ICTY indictees but also covers persons determined by Treasury “to have committed … acts of violence that have the purpose or effect of … diminishing the stability or security of any area or state in the Western Balkans region.” Treasury could still believe it has evidence that Gotovina committed war crimes and that these crimes threatened stability in the Western Balkans even if the Appeals Panel even if the Appeals Panel had affirmatively decided that Gotovina hadn’t committed war crimes (rather than more narrowly deciding that the 200 meter rule was flawed.) In that regard, there is no reason OFAC cannot, in its discretion, believe that the 2 dissenters on the Appeals Panel are more credible as to Gotovina’s participation in war crimes than were their majority colleagues.
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Copyright © 2014 Clif Burns. All Rights Reserved.
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4 Comments:
This post is incorrect on multiple levels. First, the Appeals Chamber in fact did make an express finding that Gotovina took all reasonable measures as a commander and that he could not be held liable on a theory of command responsibility, so your premise that Gotovina was acquitted on a purely “procedural” matter is incorrect. Second, the Tribunal found that “no reasonable trier of fact” could have found that Gotovina’s use of artillery was criminal.
Third, as Gotovina points out in his complaint, “Immediately following Gotovina’s acquittal, the United States Department of State stated that it ‘note[d] the judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia. We fully support ICTY and we accept its ruling.’ State Department Daily Press Briefing (Nov. 16, 2012), available at http://translations.state.gov/st/english/texttrans/2012/11/20121116138804.html#axzz2pMHOQG vS. ”
So it seems a bit far-fetched to suggest that the US Government on the one hand says it “fully support(s) the ICTY and we accept its ruling,” and on the other hand will say that it will keep Gotovina on the sanctions list because the US Government thinks that the ICTY got it wrong.
Commenter “Michael” — who seems to have made an entire career of being a Gotovina apologist in Internet forums and comments sections — has let his partisan fervor on behalf of Gotovina cloud his reading of my post. I did not say that the Appeals Panel “acquitted [Gotovina] on a purely ‘procedural’ matter.” I said the decision was “more procedural than substantive,” a different thing and a characterization that I believe is correct. So that readers can decide for themselves, the opinion is posted here.
Here’s why I characterized the Appeals Panel decision that way. In throwing out the 200-meter rule, the Appeals Panel threw out all evidence of shells hitting the four villages that Gotovina was accused of targeting in an effort to cleanse those villages of Serbs. That included evidence of shells that hit the villages and were at distances well beyond 200 meters from any conceivably permissible target and, therefore, well outside any reasonable margin of error. Once all shell evidence was excluded entirely, even shells outside any conceivable margin of error, then the Appeals Panel thought there was no evidence left that would sustain a conviction “beyond a reasonable doubt.”
So, in my view, this decision was much like one where a court excludes illegally seized evidence, such as a murder weapon with the defendant’s fingerprints on it, and then finds that the remaining evidence is insufficient under the reasonable doubt standard. Nobody ever says that an acquittal in such a situation substantively proves that the defendant didn’t commit the crime. Indeed, a civil suit, under different standards and with the gun admitted, is likely to prevail.
Similarly OFAC is not bound by a “beyond a reasonable doubt” standard or, indeed, by the Appeals Panel decision itself. It can independently review the evidence of Gotovina’s actions and find that his actions during Operation Storm satisfy the second criterion of Executive Order 13304, namely commission of violent acts intended to destabilize the Balkans. As the two dissenters on the Appeals Panel make abundantly clear, there’s plenty of evidence to suggest that Gotovina targeted civilians. And there’s no reason why OFAC can’t rely on that evidence here using the less stringent standard needed to designate an individual under that Order.
And the State Department diplomat’s statement that the U.S. supports the Appeals Panel ruling means only that it supports the determination that there wasn’t sufficient evidence to support a conviction of a war crime under the strict standards that must be applied to a criminal conviction . It has no bearing on whether, using other less stringent evidentiary standards, OFAC could find that Gotovina targeted civilians.
The information below by Luka Misetic, one of Ante Gotovina’s attorneys at the ICTY, provides what I believe is a convincing argument against the assertions made by Clif Burns in his article and comment above.
The following was posted on Mr. Misetic’s blog. Here is the link:
http://miseticlaw.blogspot.com/2012/12/dissenting-from-dissenting-opinions-of.html
For an excellent law review analysis explaining why the Appeals Chamber majority was correct to acquit Gotovina, and why the dissenters got it wrong, see Georgetown law professor Gary Solis’s article here: http://ilawyerblog.com/wp-content/uploads/2013/09/Gary-D.-Solis-Article-Gotovina-Acquittal.pdf
