Prosecutor V Ante Gotovina & Mladen Markac, Appeals Chamber Judgement: Human Rights Lawyers: Look Away Now!

Abstract

The recent judgement by the Appeals Chamber of the ICTY in Prosecutor v Ante Gotovina & Mladen Markacis flawed at almost every level. It contradicts the previous practice of the Tribunal and it falls below the standard of review as required by Article 25 of the Tribunal’s Statute. In terms of consequences for the parties involved what the judgement reversed the processes of reconciliation among the parties to the Balkan conflicts that were taking place prior to the judgement. The vitriolic rhetoric that is following the judgement between the most relevant parties, Croatia and Serbia is reminiscent of the situation in early 1990s that led to the bloody conflict. In most general terms the Appeals Chamber by this judgement instilled a high degree of inconsistency in its activism and scrutiny of Trial Chamber’s legal and factual determinations. It rather laconically rejected the totality of evidence in the present case and, in essence turned a blind eye in relation to the appellants’ proved responsibility by the Trial Chamber whilst the Appeals Chamber exhibited an admirable level of judicial activism in coming to an opposite conclusion in Prosecutor v. Mile Mrksic and Veselin Sljivancanin for example where it found additional legal reasons for increasing the sentence handed out by the Trial Chamber. The Appeals Chamber has therefore demonstrated a conspicuously different standard in its treatment of the Trial Chamber’s legal and factual determination.