Gotovina's lawyers last Friday called on the ICTY Appeals Chamber to disregard new arguments presented by the prosecution at an appeal hearing on 14 May, which were never stated during the trial.

"The consideration of these new arguments would constitute a flagrant violation of the Appellant’s fundamental right of detailed and timely notice of charges and the Appeals Chamber’s repeated orders concerning the permitted scope of arguments at the appeal hearing. These new arguments should therefore be disregarded," the defence said in its supplemental brief.

In the brief, the defence said new arguments that were not permitted to be raised were - lawful artillery attacks constituted the act of deportation; use of artillery in the four towns during Operation Storm constituted a disproportionate attack; the use of MRLs and T-130 artillery was “inherently indiscriminate” in an urban environment; and the Trial Chamber was able to infer a Joint Criminal Enterprise (JCE) to deport Serb civilians from the Brijuni transcript itself.

In its reply, the Prosecution said it gave proper notice in the Indictment and pre-trial phase that the Appellants were members of a JCE with a common criminal purpose of permanently removing Serb civilians from the Krajina. Shelling was a means of carrying out the crimes against humanity of persecution, deportation and forcible transfer of the Serb civilian population, the Prosecution said. "Regardless of whether it separately met the elements of unlawful attack under Article 3, if the shelling operation had an impermissible civilian objective - to deport the civilian population and thereby capture the territory cleansed of Serbs - it would be a crime against humanity," the Prosecution said.