ABOVE: Ante Gotovina

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At the beginning of January, we reported on a lawsuit filed by Ante Gotovina, an alleged war criminal, who sued the Treasury Department’s Office of Foreign Assets Control (“OFAC”) seeking removal from OFAC’s Specially Designated Nationals and Blocked Persons List (the “SDN List”). Gotovina claimed that he should be removed based on the 3-2 reversal by an Appeals Panel of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) of his conviction for war crimes. Earlier this week OFAC quietly removed Gotovina from the SDN list, announcing the removal in this Federal Register notice and stating that “circumstances no longer warrant inclusion” of Gotovina on the SDN List.

Getting removed from the SDN List is normally no easy task. Requests for removal normally languish for months or years at Treasury without response even though during that period the designated individual is unable to conduct financial transactions with U.S persons or firms. Indeed, a listed individually technically can’t even buy a hot dog on a street corner in New York while designated, although I personally have never seen any NYC hot-dog vendors card their customers and run their names against the SDN List. The Gotovina case suggests that the best way to get OFAC’s attention is to force the issue in court where, like it or not, OFAC will have to respond one way or the other on the court’s schedule, not its own.

Gotevina’s lawyer said that OFAC did not even bother to call him with the news of Gotovina’s removal.

ABOVE: Ante Gotovina from Croatian
Propaganda Poster

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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.