Prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY) have called upon the Appeals Chamber to reject the application for amicus curiae status filed by a group of Western legal and military experts, saying that their brief is largely irrelevant and that it raises factual issues which the appellants are not in a position to address.
"The application and proposed amicus curiae brief should be rejected," the prosecution in the case of Croatian generals Ante Gotovina and Mladen Markac said in their response filed on Monday.
The defence teams representing the two generals are expected to submit their responses by the end of this week.
About ten days ago a group of 12 legal and military experts applied to the ICTY for the status of amicus curiae in the Gotovina-Markac case to present their views on the findings of the Trial Chamber concerning unlawful artillery attacks by Croatian forces against Serb rebels during 1995's Operation Storm.
The prosecution said that the experts did not understand the first-instance judgement that had sentenced Gotovina to 24 years' imprisonment and Markac to 18 years for war crimes committed during and in the wake of the military offensive.
"The content of the Proposed Brief and the links of some Applicants with the Defence in this case also raise concerns about the objectivity of the Applicants, further warranting rejection of the Proposed Brief. Moreover, admission of the Proposed Brief would result in the circumvention of the Rule 115 procedure for admission of evidence on appeal. The Proposed Brief impermissibly duplicates, endorses and elaborates upon the content of new expert reports which the Defence seek to have admitted on appeal, and which are also appended to the Proposed Brief," the prosecutors said.
"The bulk of the Proposed Brief is irrelevant to the issues on appeal. Significant passages repeat expert testimony from trial: these are neither in dispute between the parties nor of assistance in determining those issues which are in dispute. Other passages address non-controversial principles of law which the Applicants themselves concede were fully understood by the Chamber, and which they submit are likewise now fully understood by the parties and the Appeals Chamber. Finally, in several key respects ... the Proposed Brief raises phantom concerns which form no part of the Judgement," they added.
The prosecutors say that one of the applicants has appeared at trial as a defence witness and is now trying to speak about exactly the same matters, while another applicant has been an expert consultant to the defence during the appeal proceedings.
"The Proposed Brief does not address questions of law (as an amicus’ submission should) but rather impermissibly focuses on issues of fact. ... However, not only do the Applicants overstep the proper remit of amicus curiae in the first place, they attempt to assume the roles of Defence counsel, expert witness and fact finder. This cannot assist the Appeals Chamber," the prosecutors say, recommending that the brief therefore be rejected.
