Croatian General Mladen Markac's defence counsel have called on the Hague war crimes tribunal's Appeals Chamber to reject the prosecution's motion to reject a brief filed in the Gotovina-Markac case by 12 Western military and political law experts on January 13 in which they asked to be granted amicus curiae status to voice their positions on the Trial Chamber's findings on unlawful artillery attacks during the 1995 Operation Storm.
After Croatian General Ante Gotovina's counsel last week asked the Appeals Chamber to accept the amicus brief, saying the Hague tribunal's judges would get an independent and objective assessment on issues pertaining to the laws of war and their application in military operations, Markac's counsel focused in their motion on the prosecution's position on the proposed amicus brief.
The prosecution has called on the Appeals Chamber to reject the brief, saying it is mostly irrelevant, that it does not deal with facts and can therefore be of no help to the Appeals Chamber in ruling on the appeals filed against the Trial Chamber judgement.
In a brief filed on February 1, Markac's counsel say the prosecution motion to reject the proposed amicus brief is unfounded for a number of reasons, including that it is not clear on which rules it is based and that it has been filed without the Appeals Chamber's application that it be submitted.
Markac's lawyers say the prosecution has an overly restrictive approach to the admission of amicus briefs and that this approach is not based in the tribunal's case-law and rules.
They say the tribunal's case-law allows for amici to take positions also on matters other than law and that nothing restricts proposed amici to confine themselves to evidence on the record, thus defending the amicus' right to refer to the same expert analyses on artillery use in military operations which Gotovina's lawyers are trying to introduce as evidence during the appeal.
Markac's counsel say the proposed amicus submission, contrary to the prosecution's claims, would assist the Appeals Chamber in its consideration of question at issue on appeal. They say the prosecution's assertion that the 200-metre rule to determine the lawfulness of shelling operations has no precedential value and is limited to Operation Storm is simply untenable. "There is not one IHL (international humanitarian law) for the former Yugoslavia, and another IHL for the rest of the world," Markac's counsel say.
They add that it has become apparent that the "200-metre margin of error" rule has provoked widespread concern and criticism, and have attached to their motion a report of the International Humanitarian Law Clinic at Emory University School of Law which is the result of an analysis by 11 law experts, six of whom are applicants in the amicus brief.
Those experts, Markac's counsel say, expressed concern that the Trial Chamber's judgment in the Gotovina-Cermak-Markac case went "in the opposite direction" from making a major contribution to international humanitarian law and to future military operations.
Gotovina and Markac were sentenced pending appeal to 24 and 18 years' imprisonment respectively for crimes committed during and after Operation Storm in the summer of 1995 when the Croatian forces liberated the central and southern parts of the country from rebel Serbs. An appeals hearing is expected to be held in March.
