On Determining Whether Artillery Fire Was Directed at Civilians Purposefully: Criticism of the ICTY's Gotovina Decision

On November 4, 2011, the International Humanitarian Law Clinic at Emory Law School convened a group of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing IHL.  The meeting was convened to analyze the broader legal issues in and implications of the recent judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Gotovina, which focused on Operation Storm, the Croatian operation to re-take the Kraijina region in the summer of 1995. The meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment.  These issues are at the heart of an amicus brief that has been submitted to the Appeals Chamber at the ICTY [Ed.--a subsequent post will cover that brief]. Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning and the implementation of IHL. The experts gathered represented a remarkable compilation of military legal and operational experience with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force.  This operational experience and knowledge brings the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief. The Emory IHL Clinic has now issued a report from the experts’ meeting: "Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law."  The report sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas: the imposition of what amounts to a strict liability standard imposed on commanders who attack lawful military objectives in populated areas; the flawed application of the principle of proportionality; the failure to consider or apply Article 58(b) of Additional Protocol I and its obligations for defending parties to take precautions; and the failure to properly recognize and rest the legal analysis on the operational complexity inherent in the targeting process.  With an eye to the long-term consequences of the judgment, the report also emphasizes a range of institutional concerns and second order effects resulting from the judgment: the effect on future military operations; the consequences for the respect for and development of international law; and specific overarching concerns regarding the role of the commander and the role of legal advisers during military operations.