* This text was reproduced and reformatted from the text available at the International Criminal Tribunal for the former Yugoslavia Web site (visited March 4, 2013) http://www.icty.org/x/cases/gotovina/acjug/en/121116_judgement.pdf.

1 Prosecutor v. Gotovina et al., Case No. IT-06-90-T, Trial Judgment (Int’l Crim. Trib. for the Former Yugoslavia Apr. 15, 2011) [hereinafter Gotovina Trial Judgment].

2 Prosecutor v. Gotovina et al., Case No. IT-06-90-A, Appeal Judgment, ¶ 158 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 2012) [hereinafter Gotovina Appeal Judgment].

3 Id. at ¶ 23 (Agius, J., dissenting).

4 Id. at ¶ 14 (Agius, J., dissenting).

5 Id. at ¶ 26 (Pocar, J., dissenting).

6 Id. at ¶ 30 (Pocar, J., dissenting).

7 Id. at ¶ 39 (Pocar, J., dissenting).

8 But see Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Décision relative à la mise en œuvre de la norme 55 du Règlement de la Cour et prononçant la disjonction des charges portées contre les accuses, 2 (Nov. 21, 2012) (Van Den Wyngaert, J., dissenting) (‘‘I dissent in the strongest possible terms . . .’’).

9 Hague war court acquits Croat Generals Gotovina and Markac, BBC News (Nov. 17, 2012), http://www.bbc.co.uk/news/world-europe-20352187.

10 Id.

11 Zoran Arbutina, Croatian generals’ acquittal may fuel tensions, DW.de (Nov. 18, 2012), http://www.dw.de/croatiangenerals-acquittal-may-fuel-tensions/a-16387834.

12 BBC News, supra note 9.

13 Gotovina Trial Judgment, supra note 1 at ¶¶ 1966, 2375, 2587.

14 Id. at ¶ 1898.

15 See Major General (Ret.) Walter, B. Huffman, Margin of Error: Potential Pitfalls of the Ruling in The Prosecutor v. Ante Gotovina, 211 Mil. L. Rev. 1, 39-45 (2012)Google Scholar; see also Int’l Humanitarian Law Clinic at Emory Univ. Sch. of Law, 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 4 (2012)Google Scholar, available at http://www.law.emory.edu/fileadmin/NEWWEBSITE/Centers_Clinics/IHLC/Gotovina_Meeting_Report.pdf; see also Prosecutor v. Gotovina et al., Case No. IT-06-90-A, Appellant Gotovina’s Motion to Admit New Evidence Pursuant to Rule 115, Exhibits 20-22 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 4 2011).

16 See Prosecutor v. Gotovina et al., Case No. IT-06-90-A, Appellant’s Brief of Ante Gotovina, ¶¶ 11-13 (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2 2011); Prosecutor v. Gotovina et al., Case No. IT-06-90-A, Prosecution Response to Ante Gotovina’s Appeal Brief, ¶¶ 83-87 (Int’l Crim. Trib. for the Former Yugoslavia Sept. 12 2011).

17 Gotovina Appeal Judgment, supra note 2, at ¶¶ 61, 64.

18 Id. at ¶ 64.

19 Id. at ¶ 64. Judges Agius and Pocar believed this assessment was ‘‘erroneous.’’ See id. at ¶¶ 4, 17-19 (Agius, J., dissenting); id. at ¶¶ 15-16 (Pocar, J., dissenting).

20 A transcript of discussions by Croatian political and military leaders at a meeting in Brioni before the attacks. See Gotovina Trial Judgment, supra note 1, at ¶ 1970.

21 Gotovina Appeal Judgment, supra note 2, at ¶¶ 69-84.

22 Id. at ¶ 12 (emphasis added). The Appeals Chamber’s role is not to perform a re-trial or de novo examination of the evidence, but rather to correct errors of law, and only overturn errors of fact with great deference, and on the totality of the evidence. See id. at ¶¶ 12-13; see also ICTY Statute, Article 25(1); Prosecutor v. Dragomir Milošević, Case No. IT-98- 29/1-A, Appeal Judgment, ¶ 15 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 12, 2009); Prosecutor v. Hadžihasanović and Kubura, Case No. IT-01-47-A, Appeal Judgment, ¶ 9 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 22, 2008); Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Josipović, and Šantić, Case No. IT-95-16-A, Appeal Judgement, ¶ 22 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 23, 2001); Prosecutor v. Blaškić, Case No. IT-95-14-A, Appeals Judgment, ¶¶ 7, 11(Int’l Crim. Trib. for the Former Yugoslavia July 29, 2004) ( de Roca, J., partial dissenting); Jan Philipp Book, Appeal and Sentence in International Criminal Law 194-195 (2011)Google Scholar.

23 Gotovina Appeal Judgment, supra note 2, at ¶ 7 (Agius, J., dissenting).

24 Id. at ¶ 14 (Agius, J., dissenting) (emphasis added).

25 Remand would have been appropriate despite the practical difficulties identified by Judge Robinson in his separate opinion. See id. at ¶¶ 17-19 (Robinson, J., separate opinion).

26 See id. at ¶ 3 (Agius J., dissenting).

27 Gotovina Trial Judgment, supra note 1, at ¶ 1899.

28 Gotovina Appeal Judgment, supra note 2, at ¶¶ 43-44 (Agius, J., dissenting).

29 Id. at ¶ 134 (‘‘The Trial Chamber found that Gotovina received notice of crimes being committed against Serb civilians in areas under the control of his troops . . . However, the Appeals Chamber considers that evidence on the record demonstrates that Gotovina undertook extensive measures to promote discipline among forces under his command’’).

30 Id. at ¶ 150 (‘‘To undertake such an investigation in this case would require the Appeals Chamber to engage in excessive fact finding and weighing of evidence and, in so doing, would risk substantially compromising Markač’s fair trial rights’’).

31 Id. at ¶ 12 (Agius, J., dissenting); id. at ¶ 4 (Pocar, J., dissenting).

32 Id. at ¶ 91.

33 Id. at ¶¶ 89-97.

34 Id. at ¶ 23 (Pocar, J., dissenting).

35 Id. at ¶ 24 (Pocar, J., dissenting).

36 Id. at ¶ 96.

37 Id. at ¶ 28 (Pocar, J., dissenting).

38 Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Croatia: Overview, http://www.minorityrights.org/?lid=2647 (last visited Apr. 23, 2013).

39 Serbia Freezes Ties with Hague Tribunal after Gotovina’s Acquittal, Novonite.com (Nov. 16, 2012), http://www.novinite.com/view_news.php?id=145206.

40 Id.

41 ICTY, The Mechanism for International Tribunals, http://www.icty.org/sid/10874 (last visited Apr. 23, 2013).

42 Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Trial Judgment (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001).

43 Prosecutor v. Dragoljub Kunurac, Radomir Kovač & Zoran Vuković, Case Nos. IT-96-23-T and IT-96-23/1-T, Trial Judgment (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).

1 For ease of reference, two annexes are appended: Annex A – Procedural History and Annex B – Cited Materials and Defined Terms.

2 Indictment, para. 12; Trial Judgement, paras 1, 3.

3 The Krajina region encompasses part of the area in Croatia that had been self-proclaimed as the Republic of Serbian Krajina (‘‘RSK’’) and that was largely inhabited by Serbs. See Indictment, para. 13; Trial Judgement, para. 2.

4 Indictment, paras 27-28, 30, 32; Trial Judgement, para. 3.

5 Indictment, paras 29-35; Trial Judgement, para. 3.

6 Trial Judgement, paras 72-73, 75, 96.

7 Trial Judgement, paras 4, 72-73, 96.

8 Trial Judgement, paras 2369-2371.

9 Trial Judgement, paras 2369-2371, 2375, 2619.

10 Trial Judgement, paras 2372-2375, 2619.

11 Trial Judgement, para. 2374.

12 Trial Judgement, para. 2620.

13 Trial Judgement, paras 6, 167, 194.

14 Trial Judgement, paras 2579-2583.

15 Trial Judgement, paras 2579-2583, 2587, 2622.

16 Trial Judgement, paras 2584-2587, 2622.

17 Trial Judgement, para. 2586.

18 Trial Judgement, para. 2623.

19 Trial Judgement, para. 2621.

20 Gotovina Appeal, paras 8, 361. The Appeals Chamber notes that the Gotovina Notice of Appeal originally included seven grounds but that Gotovina pursued only four of these grounds. See Gotovina Notice of Appeal; Gotovina Appeal.

21 Prosecution Response (Gotovina), paras 4-7, 333.

22 The Appeals Chamber notes that the Markač Notice of Appeal originally included twelve grounds but that Markač pursued only eight of these grounds. See Markač Notice of Appeal; Markač Appeal.

23 Markač Appeal, paras 3, 417-418.

24 Prosecution Response (Markač), paras 4-6, 273.

25 AT. 14 May 2012 pp. 12-225.

26 AT. 14 May 2012 p. 123.

27 See generally Gotovina’s First Supplemental Brief.

28 Prosecution Response (Gotovina’s First Supplemental Brief), paras 1-4, 27.

29 Order for Additional Briefing, pp. 1-2.

30 See generally Additional Prosecution Brief (Gotovina); Additional Prosecution Brief (Markač).

31 See generally Gotovina Additional Response; Markač Additional Response.

32 Haradinajet al. Appeal Judgement, para. 9; Boškoski and Tarčulovski Appeal Judgement, para. 9. See also Bagosora and Nsengiyumva Appeal Judgement, para. 15.

33 Haradinajet al. Appeal Judgement, para. 9; Boškoski and Tarčulovski Appeal Judgement, para. 9.

34 Haradinajet al. Appeal Judgement, para. 10 (internal citations omitted). See also Boškoski and Tarčulovski Appeal Judgement, para. 10; Bagosora and Nsengiyumva Appeal Judgement, para. 16.

35 Haradinajet al. Appeal Judgement, para. 11; Boškoski and Tarčulovski Appeal Judgement, para. 11. See also Bagosora and Nsengiyumva Appeal Judgement, para. 17.

36 Haradinaj et al. Appeal Judgement, para. 11; Boškoski and Tarčulovski Appeal Judgement, para. 11. See also Bagosora and Nsengiyumva Appeal Judgement, para. 17.

37 Haradinaj et al. Appeal Judgement, para. 10; Boškoski and Tarčulovski Appeal Judgement, para. 10; D. Milošević Appeal Judgement, para. 13.

38 Haradinajet al. Appeal Judgement, para. 12. See also Boškoski and Tarčulovski Appeal Judgement, para. 13.

39 Haradinajet al. Appeal Judgement, para. 12 (internal citations omitted). See also Boškoski and Tarčulovski Appeal Judgement, paras 13-14; Bagosora and Nsengiyumva Appeal Judgement, para. 18.

40 Boškoski and Tarčulovski Appeal Judgement, para. 16; Mrkšić and Šljivančanin Appeal Judgement, para. 16. See also Bagosora and Nsengiyumva Appeal Judgement, para. 19.

41 Boškoski and Tarčulovski Appeal Judgement, para. 16; Mrkšić and Šljivančanin Appeal Judgement, para. 16. See also Bagosora and Nsengiyumva Appeal Judgement, para. 19.

42 Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002, paras 1(c)(iii)-(iv), 4(b)(i)- (ii). See also Boškoski and Tarčulovski Appeal Judgement, para. 17; Mrkšić and Šljivančanin Appeal Judgement, para. 17; Bagosora and Nsengiyumva Appeal Judgement, para. 20.

43 Boškoski and Tarčulovski Appeal Judgement, para. 17; D.Milošević Appeal Judgement, para. 16. See also Bagosora and Nsengiyumva Appeal Judgement, para. 20.

44 Boškoski and Tarčulovski Appeal Judgement, para. 17; D. Milošević Appeal Judgement, para. 16. See also Bagosora and Nsengiyumva Appeal Judgement, para. 20.

45 Gotovina’s First Supplemental Brief, paras 1, 3.

46 Gotovina’s First Supplemental Brief, paras 1, 16.

47 Gotovina’s First Supplemental Brief, paras 1, 20.

48 Gotovina’s First Supplemental Brief, paras 1, 22. See also Trial Judgement, para. 1970.

49 Prosecution Response (Gotovina’s First Supplemental Brief), paras 1-4, 19-27.

50 Haradinajet al. Appeal Judgement, para. 19.

51 See Haradinaj et al. Appeal Judgement, para. 19.

52 See AT. 14 May 2012 pp. 82-83, 94-98, 100-102, 178-179.

53 Prosecution Response (Gotovina), para. 174 (citations omitted).

54 See Additional Prosecution Brief (Gotovina), paras 5-23; Additional Prosecution Brief (Markač), paras 5-22; Order for Additional Briefing, pp. 1-2.

55 See AT. 14 May 2012 pp. 83-84, 88, 90-91.

56 Prosecution Response (Gotovina), paras 51, 152-155. The Prosecution submits, in a single footnote, that the artillery attacks as a whole were disproportionate. See Prosecution Response (Gotovina), para. 333 n. 1112. However the contention is unsubstantiated; accordingly the Appeals Chamber declines to consider this argument. See supra, para. 15.

57 See AT. 14 May 2012 pp. 83, 88-90.

58 The Prosecution’s relevant references to artillery weapons in its submissions are so vague that they cannot qualify as separate arguments on the inherently indiscriminate nature of particular artillery weapons. See Prosecution Response (Gotovina), para. 82 n. 200. See also supra, para. 15.

59 See AT. 14 May 2012 pp. 98-99, 170-171.

60 Prosecution Response (Gotovina), paras 229, 237-239, 242- 246.

61 Trial Judgement, para. 2315.

62 Trial Judgement, para. 2314.

63 Trial Judgement, para. 2314. See also Trial Judgement, paras 2310-2312.

64 Trial Judgement, paras 2372-2375, 2584-2587, 2619, 2622.

65 Trial Judgement, paras 2374, 2586.

66 Trial Judgement, paras 2316-2319, 2371, 2583.

67 See Trial Judgement, paras 2310-2315.

68 Trial Judgement, paras 2305, 2310, 2314.

69 Trial Judgement, para. 2309.

70 Trial Judgement, para. 2311.

71 Trial Judgement, para. 2310. See also Trial Judgement, para. 2314.

72 Trial Judgement, paras 1743-1745, 1911, 1923, 1935, 1943, 2305, 2311.

73 See Trial Judgement, paras 1738-1741.

74 Trial Judgement, paras 1754-1755. Judge Pocar dissents on the Appeals Chamber’s assessment of the Trial Judgement.

75 Trial Judgement, para. 1755. Judge Pocar dissents on the Appeals Chamber’s assessment of the Trial Judgement.

76 Trial Judgement, para. 1898.

77 See Trial Judgement, paras 1903-1906, 1919-1921, 1932- 1933, 1940-1941.

78 Trial Judgement, paras 1903-1905. See also Trial Judgement, paras 1176-1398.

79 Trial Judgement, paras 1920-1921. See also Trial Judgement, paras 1399-1430.

80 Trial Judgement, para. 1932. See also Trial Judgement, paras 1431-1464.

81 Trial Judgement, para. 1940. See also Trial Judgement, paras 1465-1476.

82 Prosecution Exhibit 1125, p. 14. See also Trial Judgement, para. 1893.

83 See, e.g., Trial Judgement, paras 1249, 1264, 1895-1896, 1911.

84 See, e.g., Trial Judgement, para. 1911.

85 See, e.g., Trial Judgement, para. 1910.

86 Gotovina Notice of Appeal, pp. 13-15; Gotovina Appeal, paras 194-248; Markač Notice of Appeal, paras 9-17; Markač Appeal, paras 11-144.

87 Gotovina Notice of Appeal, pp. 5-11; Gotovina Appeal, paras 9-141; Gotovina Reply, paras 10-66; Markač Notice of Appeal, paras 38-39; Markač Appeal, paras 257, 263.

88 Gotovina Appeal, paras 141, 247; Markač Appeal, para. 254.

89 Gotovina Appeal, paras 9-141.

90 Gotovina Appeal, para. 196. See also Gotovina Appeal, paras 194-195, 197-248.

91 See Markač Appeal, paras 257, 263; AT. 14 May 2012 pp. 125, 148.

92 Gotovina Appeal, para. 93.

93 Gotovina Appeal, para. 11.

94 Gotovina Appeal, para. 12. See also Gotovina Appeal, para. 13.

95 Gotovina Appeal, paras 10-11, 13.

96 Gotovina Appeal, para. 10.

97 Gotovina Appeal, para. 16; AT. 14 May 2012 pp. 23-26.

98 Gotovina Appeal, para. 16 (internal quotation omitted).

99 Gotovina Appeal, para. 16.

100 Gotovina Appeal, para. 18.

101 Gotovina Appeal, paras 77-84. See also AT. 14 May 2012 pp. 35, 147.

102 Gotovina Appeal, paras 77-84. See also AT. 14 May 2012 pp. 35-36, 147.

103 Gotovina Appeal, paras 23-76.

104 See Gotovina Appeal, para. 136.

105 Gotovina Appeal, para. 19; AT. 14 May 2012 pp. 27-28.

106 AT. 14 May 2012 pp. 28-29.

107 AT. 14 May 2012 pp. 29-35.

108 AT. 14 May 2012 p. 39.

109 Gotovina Appeal, para. 103. See also Gotovina Appeal, paras 104-126.

110 Gotovina Appeal, paras 105-109.

111 Gotovina Appeal, paras 111-113.

112 Gotovina Appeal, para. 115. See also Gotovina Appeal, para. 114; AT. 14 May 2012 p. 44.

113 Gotovina Appeal, para. 86. See also AT. 14 May 2012 p. 44.

114 Gotovina Appeal, para. 19; AT. 14 May 2012 pp. 36-37.

115 AT. 14 May 2012 pp. 37-45.

116 See Gotovina Appeal, para. 19; AT. 14 May 2012 pp. 40-42.

117 AT. 14 May 2012 pp. 42-43.

118 Gotovina Appeal, paras 19, 196; AT. 14 May 2012 pp. 48, 125-147.

119 AT. 14 May 2012 p. 50.

120 AT. 14 May 2012 p. 50, citing Trial Judgement, paras 1754- 1755, 1762.

121 AT. 14 May 2012 p. 51, citing Trial Judgement, para. 2310; AT. 14 May 2012 pp. 131-142.

122 AT. 14 May 2012 p. 54, citing Trial Judgement, paras 2325- 2326, 2562-2563.

123 Prosecution Response (Gotovina), paras 12, 226; Prosecution Response (Markač), paras 16, 161. See also AT. 14 May 2012 p. 94.

124 Prosecution Response (Gotovina), paras 83-87.

125 Prosecution Response (Gotovina), paras 88-91.

126 Prosecution Response (Gotovina), paras 13-62.

127 Prosecution Response (Gotovina), paras 63-65, 76-81; AT. 14 May 2012 p. 77.

128 Prosecution Response (Gotovina), paras 77-78.

129 Prosecution Response (Gotovina), para. 79.

130 Prosecution Response (Gotovina), para. 81. See also Prosecution Response (Gotovina), para. 80.

131 Prosecution Response (Gotovina), paras 145-151.

132 AT. 14 May 2012 p. 64.

133 AT. 14 May 2012 pp. 85-86.

134 AT. 14 May 2012 pp. 89, 198-199.

135 Prosecution Response (Gotovina), paras 63-65. See also AT. 14 May 2012 pp. 63-65, 200.

136 Prosecution Response (Gotovina), para. 30. See also Prosecution Response (Gotovina), paras 34-35; AT. 14 May 2012 pp. 71-75.

137 Prosecution Response (Gotovina), para. 37.

138 Prosecution Response (Gotovina), paras 40-50; AT. 14 May 2012 p. 75.

139 Prosecution Response (Gotovina), para. 51; AT. 14 May 2012 pp. 75-76.

140 AT. 14 May 2012 pp. 78-79, 92.

141 Prosecution Response (Gotovina), para. 28. See also Prosecution Response (Gotovina), para. 26, citing Brioni Transcript, p. 10; AT. 14 May 2012 pp. 65-68.

142 Gotovina Reply, paras 13-15.

143 Gotovina Reply, para. 41. See also Gotovina Reply, para. 42.

144 Gotovina Reply, paras 44-46. See also AT. 14 May 2012 pp. 24-25.

145 Gotovina Reply, paras 24-26; AT. 14 May 2012 pp. 112-113.

146 Kupreškić et al. Appeal Judgement, para. 88; Kalimanzira Appeal Judgement, para. 46.

147 Kupreškić et al. Appeal Judgement, para. 114; Kalimanzira Appeal Judgement, para. 46.

148 Prosecution Pre-Trial Brief, para. 31 (internal citations and quotations omitted) (emphasis added).

149 See Gotovina Appeal, para. 9 (‘‘The Prosecution case at trial was that the HV artillery shelling was indiscriminate’’). Indeed, one of Gotovina’s arguments on appeal is that the Trial Chamber erred in changing the nature of the Prosecution’s case of an indiscriminate attack, thereby depriving him of adequate notice. See Gotovina Appeal, paras 9-14.

150 Cf. Renzaho Appeal Judgement, para. 53; Kayishema and Ruzindana Appeal Judgement, para. 119. See also Aleksovski Appeal Judgement, para. 63.

151 See Trial Judgement, paras 1898-1945. See also supra, para. 25.

152 See Trial Judgement, paras 1893-1896, 1910-1911, 1923, 1935, 1943.

153 Kayishema and Ruzindana Appeal Judgement, para. 119. See also Aleksovski Appeal Judgement, para. 63.

154 See Trial Judgement, paras 1892-1945. See also supra, para. 25.

155 See Trial Judgement, paras 1907-1908, 1921, 1933, 1941.

156 See, e.g., Trial Judgement, para. 1906.

157 Trial Judgement, para. 1898.

158 Trial Judgement, para. 1163.

159 See Trial Judgement, paras 72, 1177, 1893-1894.

160 Trial Judgement, para. 1167.

161 Trial Judgement, para. 1898.

162 Trial Judgement, para. 1164.

163 Trial Judgement, para. 1898.

164 Trial Judgement, para. 1165.

165 Trial Judgement, para. 1898.

166 Trial Judgement, paras 1237, 1898.

167 Trial Judgement, para. 1898 (internal quotations omitted). See also Trial Judgement, para. 1167.

168 Trial Judgement, para. 1898.

169 Trial Judgement, para. 1898.

170 Trial Judgement, para. 1898.

171 Trial Judgement, para. 1916.

172 Trial Judgement, para. 1928.

173 See Trial Judgement, paras 1938-1945.

174 See Trial Judgement, paras 1914, 1916, 1926, 1928, 1938, 1943.

175 See Trial Judgement, paras 1899-1906, 1917-1921, 1927- 1933, 1939-1941.

176 See Trial Judgement, para. 1898.

177 See Trial Judgement, para. 1898.

178 See Trial Judgement, para. 1898.

179 See Prosecution Response (Gotovina), para. 81.

180 See Trial Judgement, para. 1898.

181 See Trial Judgement, paras 1165, 1898. The Appeals Chamber recalls that there was no indication that 155-millimetre guns were used by the HV against the Four Towns, but that Witness Konings testified that these guns were comparable to the 130- millimetre guns the Trial Chamber found were used. See supra, para. 53.

182 See Trial Judgement, paras 1898, 1916, 1928.

183 See Trial Judgement, para. 1898; T. 18 February 2009 pp. 16278-16289.

184 See Trial Judgement, paras 1167, 1898.

185 See supra, paras 53-54.

186 See Trial Judgement, para. 1898.

187 See generally Trial Judgement, paras 1899-1945.

188 See Trial Judgement, paras 1898, 1916, 1928.

189 See Trial Judgement, paras 1165, 1898.

190 In addition, the Appeals Chamber recalls that Witnesses Konings and Rajčić testified that BM-21s were found to have a broader range of error than 130-millimetre guns. The Trial Chamber’s single range of error did not account for this testimony. See supra, paras 53-54.

191 Trial Judgement, para. 1898.

192 The Appeals Chamber notes that the preceding discussion is limited to analysing the specifics of the Trial Chamber’s reasoning, rather than taking a position on whether use of weapons with specific ranges of error would be lawful in particular contexts.

193 Trial Judgement, paras 1907-1908, 1921, 1933, 1941.

194 Trial Judgement, para. 1907.

195 Trial Judgement, para. 1907.

196 Trial Judgement, para. 1908.

197 See Trial Judgement, paras 1921, 1933, 1941.

198 See Trial Judgement, paras 1899, 1916, 1928, 1938-1940.

199 See Trial Judgement, paras 1397, 1907-1908.

200 Cf. Zigiranyirazo Appeal Judgement, paras 38, 42, 49 n. 136.

201 See Trial Judgement, paras 1893-1945.

202 See, e.g., Trial Judgement, para. 1906.

203 See generally Trial Judgement, paras 1898-1945.

204 See, e.g., Trial Judgement, paras 1899, 1917-1918, 1930-1931, 1939.

205 See supra, para. 57.

206 See supra, para. 61.

207 See supra, para. 25.

208 See supra, para. 12. Cf. Kalimanzira Appeal Judgement, paras 99-100, 199-200.

209 Cf. Trial Judgement, paras 1899-1905.

210 Trial Judgement, para. 1895.

211 See Trial Judgement, paras 1895-1896, 1906, 1923.

212 The Appeals Chamber notes that Gotovina claimed that, using the 400 metre range of error proposed by Witness Leslie, only 13 impacts would fall outside the range of error, and that the Prosecution did not rebut this claim. Compare AT. 14 May 2012 p. 39, with AT. 14 May 2012 pp. 62-103.

213 See Trial Judgement, para. 1906.

214 See supra, para. 61.

215 See supra, para. 63.

216 Prosecution Exhibit 1125, p. 14. See also Trial Judgement, para. 1893.

217 See, e.g., Trial Judgement, paras 1249, 1264, 1895-1896, 1911.

218 See, e.g., Trial Judgement, paras 1895-1896, 1911, 1915, 1923.

219 See, e.g., Trial Judgement, paras 1899, 1910-1911.

220 See generally Prosecution Exhibit 1125.

221 Prosecution Exhibit 1125, p. 14. The Appeals Chamber notes that the 2 August Order numbers twenty pages in translation. Accordingly, only the relevant portions are quoted.

222 Trial Judgement, para. 1893.

223 See supra, para. 52.

224 Trial Judgement, para. 1163.

225 Trial Judgement, para. 1172.

226 Trial Judgement, para. 1893.

227 Trial Judgement, para. 1173.

228 Trial Judgement, para. 1173.

229 See Trial Judgement, para. 1911.

230 See Trial Judgement, paras 1249, 1264, 1895-1896, 1911, 1915, 1923.

231 See, e.g., Trial Judgement, paras 1895-1896, 1911.

232 Trial Judgement, para. 1911. See also Trial Judgement, paras 1287-1359.

233 Trial Judgement, paras 1366, 1372.

234 See Trial Judgement, paras 1366, 1372, 1911.

235 Trial Judgement, paras 1910-1911.

236 See supra, para. 67.

237 See Trial Judgement, para. 1911.

238 See supra, para. 72.

239 See supra, para. 74.

240 See supra, para. 74.

241 See Trial Judgement, para. 1911.

242 Seesupra, para. 75.

243 See Trial Judgement, paras 1911, 1923, 1935-1936, 1943.

244 The Appeals Chamber notes that witness testimony with respect to the impact of shelling on Benkovac, Gračac, and Obrovac was discussed in the Trial Judgement’s factual findings section, but not in its relevant legal findings. See Trial Judgement, paras 1414, 1446, 1469, 1893-1945.

245 See Trial Judgement, paras 1893-1945.

246 See Trial Judgement, paras 1970-1996.

247 See Trial Judgement, para. 2310.

248 Brioni Transcript, p. 10. See also Brioni Transcript, pp. 1-9, 11-33.

249 See generally Brioni Transcript.

250 See generally Brioni Transcript. Judge Pocar dissents on this entire paragraph.

251 See supra, paras 74-75.

252 See Trial Judgement, paras 1910-1911. The Appeals Chamber notes, in this regard, that it need not consider Gotovina’s assertion that the Trial Chamber erred in finding that the attack on Martić was disproportionate. The Appeals Chamber also notes that the Trial Chamber declined to determine the proportionality of the overall attack on Knin. See Trial Judgement, paras 1899 n. 931, 1910 n. 935.

253 See supra, paras 64-67.

254 See generally Brioni Transcript. Judge Agius and Judge Pocar dissent on this entire paragraph.

255 Trial Judgement, paras 2314, 2368-2375, 2578-2587.

256 Trial Judgement, paras 2375, 2587.

257 See Trial Judgement, paras 1669-1947.

258 Trial Judgement, para. 2310. See also Trial Judgement, paras 1970-1996.

259 Trial Judgement, para. 2310. See also Trial Judgement, paras 1997-2098.

260 See Trial Judgement, paras 2306-2307.

261 Trial Judgement, para. 2305.

262 Trial Judgement, para. 2305.

263 Trial Judgement, para. 2305. Judge Pocar dissents on the Appeals Chamber’s assessment of the Trial Judgement. 264 See Trial Judgement, paras 1738-1741.

265 See Trial Judgement, para. 1755. Judge Pocar dissents on the Appeals Chamber’s assessment of the Trial Judgement.

266 Trial Judgement, para. 2314.

267 Brđanin Appeal Judgement, para. 430 (internal citations omitted). See also Krajišnik Appeal Judgement, para. 662.

268 Karadžić Foreseeability Decision, para. 15. See also Karadžić Foreseeability Decision, paras 16-18.

269 See Trial Judgement, paras 2310-2315.

270 See supra, para. 84.

271 Trial Judgement, para. 2311.

272 Trial Judgement, para. 2310. See also Trial Judgement, para. 2314.

273 See Trial Judgement, para. 1755.

274 Trial Judgement, para. 2309.

275 Trial Judgement, para. 2305. See also Trial Judgement, paras 2310-2312, 2315. Judge Agius and Judge Pocar dissent on the Appeals Chamber’s assessment of the Trial Judgement.

276 See Trial Judgement, paras 1991-1994.

277 See Trial Judgement, paras 1993-1994. See also Brioni Transcript, pp. 10, 15, 23, 29.

278 See Trial Judgement, para. 1993; Brioni Transcript, p. 10. Judge Agius and Judge Pocar dissent on this paragraph.

279 See Trial Judgement paras 1970-1996; 2303-2321. See generally Brioni Transcript.

280 Trial Judgement, para. 2313.

281 See Trial Judgement, paras 1757, 2305, 2307. Judge Agius and Judge Pocar dissent on this paragraph.

282 See, e.g., Trial Judgement, para. 2310.

283 See supra, para. 87.

284 See Trial Judgement, paras 2325-2326, 2562-2563. Judge Agius and Judge Pocar dissent on this paragraph.

285 Cf. Stakić Appeal Judgement, paras 278, 317.

286 Trial Judgement, paras 2372-2374, 2584-2586.

287 Trial Judgement, paras 2374, 2586.

288 Kvočkaet al. Appeal Judgement, para. 83.

289 See supra, paras 89-90. Judge Agius and Judge Pocar dissent on this paragraph.

290 See supra, paras 84, 98.

291 Order for Additional Briefing, pp. 1-2.

292 See generally Alternate Liability Challenge; Markač Joinder.

293 Alternate Liability Challenge, paras 3-14, 29.

294 See Alternate Liability Challenge, para. 14.

295 See Alternate Liability Challenge, paras 15-18, 32.

296 Alternate Liability Challenge, para. 23; Alternate Liability Reply, paras 23-24.

297 Alternate Liability Challenge, paras 19-23, 30.

298 Alternate Liability Challenge, paras 24-29, 31.

299 Alternate Liability Reply, paras 11-15.

300 See Gotovina Additional Response, paras 2, 6, 28-30; Markač Additional Response, paras 4, 21-25.

301 See Gotovina Additional Response, para. 5; Markač Additional Response, paras 8-16.

302 See Gotovina Additional Response, para. 15; Markač Additional Response, paras 17-20.

303 Prosecution Alternate Liability Response, paras 1-7.

304 Prosecution Alternate Liability Response, para. 8.

305 See Prosecution Alternate Liability Response, para. 11.

306 Prosecution Alternate Liability Response, para. 3 n. 3.

307 Cf. Decision on Proposed Amicus Brief, paras 4-5.

308 See supra, paras 12-13. See also Article 25 of the Statute.

309 See, e.g., D. Milošević Appeal Judgement, paras 275-282, p. 128; Simić Appeal Judgement, paras 75-191, 301; Stakić Appeal Judgement, paras 58-98, 104, p. 141; Krstić Appeal Judgement, paras 135-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, 181, p. 60. See also Rukundo Appeal Judgement, paras 37, 39-115, 169-218, 269- 270.

310 Oxford English Dictionary (Oxford English Dictionary Online, September 2012, Oxford University Press).

311 Criminal Appeal Act 1968 (England and Wales), Section 3.

312 See Criminal Appeals Act 2004 (Western Australia), Section 30(5); Code of Criminal Procedure, Sections 265, 322, 328 (Germany); Criminal Code (R.S.C., 1985, c. C-46, § 686(1)(b)(i)) (Canada); Code of Criminal Procedure, Article 597(2)(a) (Italy).

313 Cf. Article 25 of the Statute. See generally Simić Appeal Judgment; Vasiljević Appeal Judgement (in which the Appeals Chamber entered convictions on the basis of alternate modes of liability despite absence of any Prosecution appeal).

314 See Šljivančanin Reconsideration Decision, pp. 2-3. See also Galić Appeal Judgement (compare majority opinion, pp. 1-185, with partially dissenting opinion of Judge Pocar, pp. 186-188); Semanza Appeal Judgement (compare majority opinion, pp. 1-127, with dissenting opinion of Judge Pocar, pp. 131-133); Rutaganda Appeal Judgement (compare majority opinion pp. 1-169, with dissenting opinion of Judge Pocar, pp. 1-4).

315 Compare Alternate Liability Challenge, paras 23-24, with Šljivančanin Reconsideration Decision, pp. 2-3; Galić Appeal Judgement (compare majority opinion, pp. 1-185, with partially dissenting opinion of Judge Pocar, pp. 186-188); Semanza Appeal Judgement (compare majority opinion, pp. 1-127, with dissenting opinion of Judge Pocar, pp. 131-133); Rutaganda Appeal Judgement (compare majority opinion, pp. 1- 169, with dissenting opinion of Judge Pocar, pp. 1-4).

316 See Article 21 of the Statute. See also Articles 20, 23, 25 of the Statute.

317 Article 25 of the Statute. Cf. Articles 20, 23 of the Statute; Orić Appeal Judgement, para. 11.

318 Cf. Articles 21, 25 of the Statute.

319 See supra, para. 98.

320 See Order for Additional Briefing, pp. 1-2.

321 See Trial Judgement, paras 2375, 2587.

322 Additional Prosecution Brief (Gotovina), paras 5-23; Additional Prosecution Brief (Markač), paras 5-22. See also AT. 14 May 2012 pp. 94-98, 100-102, 178-179.

323 Additional Prosecution Brief (Gotovina), para. 15; Additional Prosecution Brief (Markač), para. 15. See also Additional Prosecution Brief (Gotovina), paras 5-14, 16-20; Additional Prosecution Brief (Markač), paras 5-14, 16-18.

324 Additional Prosecution Brief (Gotovina), paras 21-23; Additional Prosecution Brief (Markač), paras 19-20.

325 Gotovina Additional Response, paras 8-14.

326 See Markač Additional Response, paras 21-25.

327 See, e.g., Trial Judgement, para. 1990.

328 See Trial Judgement, para. 1755.

329 See supra, para. 84.

330 The Appeals Chamber notes that this analysis is limited to the specific factual findings of the Trial Chamber, and does not address the broader question of whether attacks on lawful military targets could ever constitute a basis for ascribing criminal liability.

331 See supra, para. 98. See generally Trial Judgement.

332 See Gotovina’s First Supplemental Brief, paras 1, 3-4.

333 See supra, para. 14. Judge Agius and Judge Pocar dissent on the conclusion of this paragraph.

334 Indictment, paras 37-47.

335 Trial Judgement, paras 2375, 2619.

336 Trial Judgement, para. 2375.

337 See supra, para. 84.

338 Trial Judgement, para. 2370.

339 Trial Judgement, para. 2365.

340 Trial Judgement, para. 2365.

341 Trial Judgement, para. 2370.

342 Order for Additional Briefing, p. 1.

343 Additional Prosecution Brief (Gotovina), para. 51. See also Additional Prosecution Brief (Gotovina), paras 24-50.

344 Additional Prosecution Brief (Gotovina), paras 31-34.

345 Additional Prosecution Brief (Gotovina), para. 35, citing, inter alia, Trial Judgement, para. 2370. See also Additional Prosecution Brief (Gotovina), paras 24-25, 36-39.

346 Additional Prosecution Brief (Gotovina), paras 41-43.

347 Additional Prosecution Brief (Gotovina), paras 44-45.

348 Additional Prosecution Brief (Gotovina), paras 46-49.

349 Additional Prosecution Brief (Gotovina), paras 28, 40, 50.

350 Prosecution Response (Gotovina), paras 279-311.

351 Prosecution Response (Gotovina), paras 281, 308-310.

352 Prosecution Response (Gotovina), para. 311. See also T. 31 August 2009 pp. 20892, 20938, 20968-20969.

353 Prosecution Response (Gotovina), para. 311.

354 Prosecution Response (Gotovina), paras 287, 300-301.

355 Prosecution Response (Gotovina), para. 302.

356 Prosecution Response (Gotovina), para. 304.

357 Prosecution Response (Gotovina), paras 298, 306-307.

358 Additional Prosecution Brief (Gotovina), para. 4 n. 11.

359 Gotovina Additional Response, paras 16-58.

360 Gotovina Additional Response, paras 28-30, 36, 53.

361 Gotovina Additional Response, paras 31-35.

362 Gotovina Additional Response, paras 40-47.

363 Gotovina Additional Response, paras 48-50.

364 Gotovina Additional Response, paras 52-56.

365 See Gotovina Appeal, paras 279-334; Gotovina Reply, paras 114-141.

366 Gotovina Appeal, paras 279-290. See also Gotovina Reply, paras 118-119, 134-136.

367 See Gotovina Appeal, paras 302-304, 310-316.

368 Gotovina Appeal, paras 296-300, 333; Gotovina Reply, paras 120-123, 127-128.

369 Gotovina Appeal, para. 298.

370 See Gotovina Appeal, paras 283-284; Gotovina Reply, para. 126.

371 See Blagojević and Jokić Appeal Judgement, para. 127.

372 Mrkšić and Šljivančanin Appeal Judgement, para. 134.

373 See Orić Appeal Judgement, para. 18.

374 Trial Judgement, para. 2363.

375 Trial Judgement, para. 2363.

376 Trial Judgement, para. 2364.

377 Trial Judgement, para. 2365.

378 Trial Judgement, para. 2365.

379 Trial Judgement, para. 2370.

380 Trial Judgement, para. 2370.

381 Trial Judgement, para. 2365.

382 See supra, para. 84.

383 Trial Judgement, para. 2365.

384 Trial Judgement, para. 2365.

385 Trial Judgement, para. 2365. See also Trial Judgement, paras 2337-2338.

386 Trial Judgement, para. 2365.

387 See Trial Judgement, para. 2365.

388 See Trial Judgement, paras 2322-2374. See also generally Trial Judgement.

389 T. 31 August 2009 pp. 20893-20898.

390 See T. 31 August 2009 pp. 20916, 20952-20953.

391 T. 31 August 2009 p. 20696.

392 See T. 31 August 2009 pp. 20968-20971.

393 Limaj et al. Appeal Judgement, para. 86 (internal quotations and citation omitted).

394 See generally Trial Judgement, paras 2329-2362.

395 Trial Judgement, para. 2330.

396 Trial Judgement, para. 2331.

397 Trial Judgement, para. 2332.

398 Trial Judgement, para. 2357.

399 Trial Judgement, paras 2337-2338.

400 Trial Judgement, para. 2347.

401 Trial Judgement, para. 2345.

402 Trial Judgement, para. 2340.

403 T. 25 November 2008 pp. 12575-12576. See also Trial Judgement, para. 2359.

404 See Trial Judgement, para. 2363.

405 See Trial Judgement, paras 2329-2364.

406 See supra, para. 133.

407 See supra, paras 131, 133.

408 Having found that aiding and abetting liability is not established, the Appeals Chamber need not consider other modes of liability that the Prosecution claims are established on the same factual basis. See Additional Prosecution Brief (Gotovina), para. 4 n. 11.

409 See Trial Judgement, paras 2365, 2370.

410 See supra, para. 84.

411 See supra, para. 134.

412 See supra, para. 115.

413 Trial Judgement, para. 2619.

414 Indictment, paras 37-47.

415 Trial Judgement, paras 2587, 2622.

416 Trial Judgement, para. 2587.

417 See supra, para. 84; Trial Judgement, paras 2580, 2582.

418 Trial Judgement, para. 2581.

419 Trial Judgement, para. 2581.

420 Trial Judgement, para. 2581.

421 Trial Judgement, para. 2581.

422 Trial Judgement, paras 2580-2583.

423 Order for Additional Briefing, pp. 1-2.

424 See Additional Prosecution Brief (Markač), paras 21-49.

425 Additional Prosecution Brief (Markač), paras 29-34.

426 Additional Prosecution Brief (Markač), paras 40-42.

427 Additional Prosecution Brief (Markač), para. 43.

428 Additional Prosecution Brief (Markač), paras 44-48.

429 Additional Prosecution Brief (Markač), paras 25, 49.

430 Prosecution Response (Markač), para. 98.

431 Prosecution Response (Markač), para. 99.

432 Prosecution Response (Markač), paras 100-105.

433 Prosecution Response (Markač), paras 121-123.

434 Prosecution Response (Markač), para. 122.

435 Prosecution Response (Markač), para. 123.

436 Additional Prosecution Brief (Markač), para. 4 n. 11.

437 Markač Additional Response, paras 21-25, 45-46.

438 Markač Additional Response, paras 4, 35-44.

439 Markač Additional Response, para. 4.

440 Markač Additional Response, para. 4.

441 See Markač Additional Response, paras 4, 26-31.

442 Markač Appeal, paras 182-185.

443 See supra, paras 84, 98.

444 See Trial Judgement, para. 2583.

445 See Trial Judgement, paras 2329-2375. See also Indictment, paras 45-47; Order for Additional Briefing, pp. 1-2.

446 See supra, paras 127-128.

447 Cf. Krajišnik Appeal Judgement, para. 194; Kvov˘ka et al. Appeal Judgement, para. 104; Vasiljević Appeal Judgement, para. 102.

448 Trial Judgement, para. 194.

449 Trial Judgement, para. 198. See generally Trial Judgement. Judge Agius dissents in relation to this paragraph.

450 See generally Trial Judgement.

451 See supra, para. 138.

452 See Kvočka et al. Appeal Judgement, para. 97; Tadić Appeal Judgement, para. 229. Judge Agius dissents in relation to this paragraph.

453 See supra, paras 148-149.

454 See Prosecution Pre-Trial Brief, paras 16-51, 127-130.

455 See Prosecution Final Trial Brief, paras 121-133, 383-400, 477-479.

456 Prosecution Final Trial Brief, paras 124-133, 387-400.

457 Prosecution Response (Gotovina), para. 333 n. 1112; Prosecution Response (Markač), para. 273 n. 958.

458 See AT. 14 May 2012 p. 102.

459 See Trial Judgement, paras 2375, 2587. Judge Agius and Judge Pocar dissent on the Appeals Chamber’s assessment of the Trial Judgement.

460 Trial Judgement, paras 2370, 2583. Judge Agius and Judge Pocar dissent on the Appeals Chamber’s assessment of the Trial Judgement.

461 See Trial Judgement, paras 2580-2587.

462 See Order for Additional Briefing, pp. 1-2.

463 See Order for Additional Briefing, pp. 1-2.

464 The foregoing discussion also applies to other modes of liability that the Prosecution claims are incurred on the same factual basis. See Additional Prosecution Brief (Markač), para. 4 n. 11. Judge Agius and Judge Pocar dissent on this entire paragraph.

465 See Simić Appeal Judgement, paras 74-191, 301; Krstić Appeal Judgement, paras 134-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, p. 60.

466 See Simić Appeal Judgement, paras 74-191, 301.

467 See Krstić Appeal Judgement, paras 134-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, p. 60.

468 See Simić Appeal Judgement, paras 74-191, 301; Krstić Appeal Judgement, paras 135-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, p. 60.

469 See supra, paras 84, 98.

470 See supra, para. 84.

471 See supra, paras 148-149.

472 See supra, para. 150.

473 See supra, para. 115.

474 Trial Judgement, paras 2587, 2622.

1 See Appeal Judgement, para. 61.

2 I would underscore that this discussion refers to convictions pursuant to alternate means of liability which are not requested in an appeal by the Prosecution.

3 Kupreškić et al. Appeal Judgement, para. 121. See also Kupreškić et al. Appeal Judgement, para. 122; Ntagerura et al. Appeal Judgement, paras 146-150, 164.

4 See, e.g., Rukundo Appeal Judgement, paras 37, (In which the Appeals Chamber replaced Rukundo’s conviction for committing certain crimes with convictions for aiding and abetting these same crimes based on its finding that commission as a mode of liability was not pled in the indictment).

5 See, e.g., Krstić Appeal Judgement, paras 135-144 (In which the Appeals Chamber found that Krstić did not possess the intent to commit genocide, but instead possessed knowledge of the exact same set of crimes, and did not reverse the finding that a JCE existed); D. Milošević Appeal Judgement, paras 275-282 (In which the Appeals Chamber found that the evidence did not establish that Dragomir Milošević ordered numerous shelling incidents but was responsible as a superior for those crimes). I note that in the Simić Appeal Judgement, in which the Appeal Chamber entered an alternate conviction for aiding and abetting after reversing a finding that a JCE existed, the Appeals Chamber underscored that aiding and abetting liability had been extensively discussed both at trial and on appeal. See Simić Appeal Judgement paras 74-191, 301.

6 Appeal Judgement, paras 84, 98.

7 The Prosecution’s arguments at trial and on appeal focused on the existence of a JCE involving unlawful artillery attacks. While the Indictment charged the Appellants with, inter alia, aiding and abetting and superior responsibility, Indictment, paras 36-37, 45-46, post-Indictment proceedings provided only limited indications that the Prosecution was pursuing these alternate forms of liability. The Prosecution’s Pre-Trial Brief and Final Trial Brief consistently focus on the existence of unlawful attacks and a JCE. Compare Prosecution Final Trial Brief, paras 1-123, 383-386, 477-660 (outlining the existence of a JCE and the centrality of the unlawful attacks), with Prosecution Final Trial Brief, paras 124-132, 387-399 (addressing alternate modes of liability). See also Prosecution Pre-Trial Brief, paras 127-132. Even the Prosecution’s brief discussions of other modes of liability often include references to unlawful attacks. See Prosecution Final Trial Brief, paras 124-133, 387-400. On appeal, the Prosecution devoted only a single footnote to alternate modes of liability in each of its appeal response briefs, see Prosecution Response (Gotovina), para. 333 n. 1112; Prosecution Response (Markač) para. 273 n. 958, and referred to the matter only in passing during the Appeal Hearing, See AT. 14 May 2012 p. 102. See also Trial Judgement, paras 2375, 2587.

8 In this regard I note that I join the Majority in finding that in the circumstances of this case, supplementary briefing would not cure such unfairness. See Appeal Judgement, para. 154.

9 Appeal Judgement, para. 150.

10 See Appeal Judgement, paras 111-155.

1 Appeal Judgement, para. 61.

2 Appeal Judgement, para. 63.

3 Appeal Judgement, para. 67.

4 Appeal Judgement, para. 83.

5 Appeal Judgement, para. 83.

6 Appeal Judgement, para. 83.

7 See Appeal Judgement, para. 63.

8 See Appeal Judgement, paras 64-67, 83-84.

9 Appeal Judgement, paras 64-67.

10 Appeal Judgement, paras 83-84.

11 See Appeal Judgement, paras 64-67, 83-84.

12 Appeal Judgement, para. 61.

13 Appeal Judgement, paras 61, 64.

14 Appeal Judgement, para. 64.

15 Appeal Judgement, para. 64.

16 Appeal Judgement, para. 64.

17 Appeal Judgement, para. 12.

18 Appeal Judgement, para. 12.

19 Appeal Judgement, para. 64.

20 Appeal Judgement, para. 61.

21 Appeal Judgement, para. 12.

22 Appeal Judgement, para. 65.

23 Appeal Judgement, paras 65-67.

24 Trial Judgement, pp. 594-777, 957-981.

25 Appeal Judgement, para. 65.

26 Appeal Judgement, para. 65.

27 Appeal Judgement, para. 65.

28 Appeal Judgement, para. 66.

29 See Appeal Judgement, paras 67-68.

30 I note here that the Majority indeed recalls, at the beginning of its analysis of the Trial Chamber’s findings relating to the unlawfulness of the attacks on the Four Towns, that: ‘‘[i]t is incumbent on the Trial Chamber to adopt an approach it considers most appropriate for the assessment of evidence. The Appeals Chamber must a priori lend some credibility to the Trial Chamber’s assessment of the evidence proffered at trial, irrespective of the approach adopted. However, the Appeals Chamber is aware that whenever such approach leads to an unreasonable assessment of the facts of the case, it becomes necessary to consider carefully whether the Trial Chamber did not commit an error of fact in its choice of the method of assessment or in its application thereof, which may have occasioned a miscarriage of justice.’’ Appeal Judgement, para. 50.

31 See Appeal Judgement, para. 13, recalling that: ‘‘[r]egarding errors of fact, the Appeals Chamber will apply a standard of reasonableness. It is well established that the Appeals Chamber will not lightly overturn findings of fact made by the trial chamber: ‘In reviewing the findings of the Trial Chamber, the Appeals Chamber will only substitute its own findings for that of the Trial Chamber when no reasonable trier of fact could have reached the original decision. [ . . . ] Further, only an error of fact which has occasioned a miscarriage of justice will cause the Appeals Chamber to overturn a decision by the Trial Chamber.’’’

32 See Appeal Judgement, para. 65: ‘‘The Appeals Chamber considers that absent the 200 Metre Standard, this latter evidence is inconclusive’’ (emphasis added); para. 66: ‘‘The possibility of shelling such mobile targets, combined with the lack of any dependable range of error estimation, raises reasonable doubt about whether even artillery impact sites particularly distant from fixed artillery targets considered legitimate by the Trial Chamber demonstrate unlawful shelling’’ (emphasis added).

33 Appeal Judgement, para. 67.

34 Appeal Judgement, para. 65.

35 Appeal Judgement, paras 65-67, 83, 96.

36 See Appeal Judgement, paras 52-53, 55. See also Trial Judgement, paras 1163-1165, 1167-1169, 1171, 1174, 1898.

37 See Appeal Judgement, paras 52, 54, 55. See also Trial Judgement, paras 1167, 1898.

38 See Appeal Judgement, paras 52, 54. See also Trial Judgement, paras 1237, 1898.

39 See Trial Judgement, para. 1898.

40 I note here also that the majority does not in any event address the evidence regarding the HV’s ‘‘ten digit coordinate system’’ referred to in Trial Judgement, para. 1898. See infra, para 21. See also Appeal Judgement, paras 52-57.

41 Trial Judgement, para. 1899.

42 See Trial Judgement, paras 1893-1912.

43 See Trial Judgement, para. 1898.

44 I note that both Witness Konings and Witness Rajčić gave evidence of margins of error less than 400 metres. See supra, fns 36, 38. Witness Leslie indicated that a maximum error of 400 metres ‘‘for a first shot’’ for both the 130-milimetre guns and the BM-21s used by the HV was acceptable. Trial Judgement, para. 1898. The Majority finds that ‘‘only Witness Leslie provided a range of error estimate for BM-21s, and the Trial Chamber declined to rely on this evidence’’. Appeal Judgement, para. 59. However, although the Trial Chamber declined to adopt 400 metres as the margin of error for the HV’s artillery weaponry, the Trial Chamber did not dismiss this evidence itself. Trial Judgement, para. 1898. On the contrary, the Trial Chamber specifically considered Witness Leslie’s testimony on the accuracy of the HV’s artillery weaponry in determining ‘‘whether the artillery impacts on civilian sites at distances of 300 to 700 metres from the nearest military targets could have been results of errors or inaccuracies in the HV’s artillery fire’’. Trial Judgement, para. 1906.

45 See Appeal Judgement, paras 65-66.

46 Trial Judgement, para. 1898. See also supra, fns 37, 44.

47 See Appeal Judgement, paras 65-66.

48 See supra, para. 18, and infra, para 21.

49 See infra, para. 23.

50 Trial Judgement, para. 1898. See also supra, fns 37, 44.

51 In addition, the Trial Chamber found that at least 150 projectiles fell on Benkovac and its immediate vicinity on 4 and 5 August 1995 (Trial Judgement, para. 1916) and that no fewer than 150 projectiles fell on Gračac and its immediate vicinity on 4 August 1995; Trial Judgement, para. 1928. The Trial Chamber also made no findings of resistance coming from Benkovac, Gračac and Obrovac. See Trial Judgement, paras 1914-1945.

52 Trial Judgement, para. 1898, referring to Exhibits P1271, P1272.

53 See supra, fn. 38.

54 Appeal Judgement, para. 66.

55 Appeal Judgement, para. 66.

56 Appeal Judgement, para. 66.

57 Trial Judgement, para. 1904.

58 Trial Judgement, para. 1905.

59 Trial Judgement, para. 1905.

60 Trial Judgement, para. 1906.

61 Trial Judgement, para. 1906.

62 Trial Judgement, para. 1920.

63 Trial Judgement, para. 1920.

64 Trial Judgement, para. 1932.

65 Trial Judgement, para. 1940.

66 See supra, fns 48-58. See also Trial Judgement, para. 1909, where the Trial Chamber stated that it ‘‘considers that the number of civilian objects or areas in Knin deliberately fired at by the HV may appear limited in view of the total of at least 900 projectiles fired at the town on 4 and 5 August 1995. However, the Trial Chamber recalls that it was able to conclusively determine the precise locations of impact for only some of these 900 projectiles. Of the locations of impact which the Trial Chamber was able to establish, a considerable portion are civilian objects or areas.’’

67 Appeal Judgement, para. 13.

68 Appeal Judgement, para. 63.

69 Appeal Judgement, para. 63.

70 Appeal Judgement, para. 63. See also para. 62.

71 Appeal Judgement, para. 62.

72 Trial Judgement, para. 1907.

73 Trial Judgement, para. 1907.

74 Trial Judgement, para. 1908.

75 See Appeal Judgement, paras 68-82.

76 Appeal Judgement, para. 83.

77 Appeal Judgement, para. 77.

78 Appeal Judgement, paras 77-83.

79 Appeal Judgement, para. 77.

80 Appeal Judgement, para. 77.

81 See Appeal Judgement, para. 77, fn. 237, referring to Trial Judgement, para. 1911.

82 Trial Judgement, para. 1911.

83 Appeal Judgement, para. 78.

84 Trial Judgement, paras 1895, 1896.

85 Trial Judgement, para. 1911.

86 See supra, para. 36. See also Trial Judgement, para. 1911.

87 Trial Judgement, para. 1911.

88 Appeal Judgement, para. 78.

89 Appeal Judgement, para. 75.

90 Appeal Judgement, para. 79.

91 Trial Judgement, para. 1365.

92 Trial Judgement, paras 1366, 1372.

93 Trial Judgement, para. 1911.

94 Trial Judgement, paras 1366, 1372.

95 Trial Judgement, para. 1911.

96 Appeal Judgement, para. 79.

97 Appeal Judgement, para. 81.

98 Appeal Judgement, para. 81.

99 Appeal Judgement, para. 82.

100 Appeal Judgement, para. 82.

101 Appeal Judgement, para. 82.

102 Appeal Judgement, para. 82.

103 Trial Judgement, para. 1910.

104 Trial Judgement, para. 1910.

105 Trial Judgement, para. 1910.

106 Appeal Judgement, para. 83: ‘‘[t]he Trial Chamber’s reliance on the Impact Analysis was so significant that even considered in its totality, the remaining evidence does not definitively demonstrate that artillery attacks against the Four Towns were unlawful.’’

107 See supra, paras 18, 21.

108 Appeal Judgement, para. 98.

109 Appeal Judgement, paras 91, 96.

110 See Appeal Judgement, paras 91-96.

111 Trial Judgement, Part 6.2, pp 992-1177.

112 Appeal Judgement, paras 106-107.

113 Appeal Judgement, paras 136, 157.

114 Appeal Judgement, para. 118. Gotovina’s second contribution in this respect is the ‘‘Failure to Take Additional Measures’’ referred to by the Majority throughout the Appeal Judgement.

115 Appeal Judgement, paras 118-119, 127-135.

116 Appeal Judgement, para. 135.

117 Appeal Judgement, para 119. See also Appeal Judgement, para. 130.

118 Appeal Judgement, para. 130.

119 Appeal Judgement, paras 131-134.

120 The majority states that it will assess the Trial Chamber’s findings and other evidence on the record de novo. Appeal Judgement, para. 110. However, given that the majority attacks the Trial Chamber’s findings on Gotovina’s Failure to Take Additional Measures and states that the Trial Chamber has ‘‘failed to address critical issues’’, I consider that I must first assess whether the Trial Chamber did indeed so err, and thus come to a conclusion on the reasonableness of those findings, before then considering whether they may be relied upon to support a conviction for alternate modes of liability.

121 Infra, para. 70.

122 Trial Judgement, paras 2363-2365. See also Trial Judgement, paras 2341, 2343-2344. I note also that while Trial Judgement para. 2363 includes ‘‘firing artillery at civilians’’ in its examples of crimes, this paragraph also refers to ‘‘destruction, looting, and killings’’ and ‘‘murders’’, and does not refer to the unlawfulness of the attacks on the Four Towns themselves.

123 Appeal Judgement, paras 131, 133-134.

124 Appeal Judgement, para. 134. Emphasis added.

125 Appeal Judgement, para. 130.

126 Appeal Judgement, para. 130.

127 Trial Judgement, Part 3.1.1, Part 3.1.2, pp 37-73.

128 Trial Judgement, Part 6.3.5, pp. 1179-1198.

129 Trial Judgement, pp 1180-1201, paras 2230-2375.

130 Trial Judgement, paras 2334-2352, 2363.

131 Trial Judgement, paras 2330-2333, 2353-2362, 2364-2366.

132 Trial Judgement, para. 2349-2350.

133 Trial Judgement, para. 2351.

134 Trial Judgement, para. 2355.

135 Trial Judgement, paras 101-146.

136 Trial Judgement, paras 134, 144. Here, the Trial Chamber noted and set out evidence relating to Gotovina’s powers and obligations vis-à-vis crimes and disciplinary infractions committed by units under his command.

137 Trial Judgement, paras 133, 134.

138 Trial Judgement, paras 2358-2360, 2363-2365.

139 See Appeal Judgement, para. 130.

140 See supra, para. 59. See also Trial Judgement, paras 69-146.

141 Appeal Judgement, para. 131.

142 Trial Judgement, para. 144.

143 Trial Judgement, para. 2324, referring to Trial Judgement, Part 3.1.1 and Part 3.1.2.

144 Trial Judgement, paras 2330-2365.

145 See Appeal Judgement, para. 13.

146 Appeal Judgement, para. 134.

147 See Appeal Judgement, para. 128.

148 Trial Judgement, paras 69-146, 2323-2324.

149 Trial Judgement, paras 2334-2352, 2363.

150 Trial Judgement, paras 2364-2365; See also supra, paras 58- 61.

151 Appeal Judgement, para. 150.

152 See infra, para. 81.

153 See Appeal Judgement, paras 129-135.

154 See Appeal Judgement, paras 130-135.

155 Appeal Judgement, paras 148-150.

156 Appeal Judgement, para. 148, referring to Trial Judgement, para. 198.

157 Trial Judgement, para. 194.

158 Trial Judgement, para. 194.

159 Trial Judgement, para. 195.

160 Trial Judgement, para. 196.

161 Trial Judgement, para. 198.

162 Trial Judgement, para. 198.

163 Trial Judgement, paras 198, 2570.

164 Trial Judgement, para. 1077.

165 Trial Judgement, para. 2554.

166 Trial Judgement, para. 2554.

167 Trial Judgement, para. 2555.

168 Trial Judgement, para. 2556.

169 Trial Judgement, para. 2605.

170 Trial Judgement, para. 2581.

171 Trial Judgement, para. 2581.

172 See Appeal Judgement, para. 128.

173 See supra, paras 77-78; Trial Judgement, paras 193-198.

174 Trial Judgement, para. 2570, referring to Trial Judgement Part 3.3; para. 2571; para. 2573, referring to Trial Judgement Part 3.3; para. 2576, referring to Trial Judgement Part 6.2.6; para. 2302.

175 Trial Judgement, para. 2569, referring to Trial Judgement Part 4.2.7 (Gračac town), Part 4.2.4 (Donji Lapac town), Part 6.2.6; para. 2572; para.2574, referring to Trial Judgement Part 4.2.4 (Donji Lapac town); para. 2575, referring to Trial Judgement Part 4.1.4 (Marko Ilić and others – Schedule no. 10); para. 2576, referring to Trial Judgement Part 6.2.6; para. 2302.

176 Trial Judgement, para. 2570, referring to Trial Judgement Part 3.3; paras 2571; para. 2572; para. 2573, referring to Trial Judgement Part 3.3; para. 2576, referring to Trial Judgement Part 6.2.6; para. 2581.

177 Appeal Judgement, para.

178 Appeal Judgement, para. 149.

179 See Trial Judgement, Part 6.5, and para. 2552.

180 See Trial Judgement, paras 2581-2586.

181 See supra, paras 76-81.

182 Appeal Judgement, para.

183 Appeal Judgement, para. 150.

184 Appeal Judgement, para. 153.

185 Appeal Judgement, para. 153.

186 See supra, paras 76-81.

187 I should indicate that I, too, would not be willing to send the case back to the Trial Chamber in respect of this issue.

188 Appeal Judgement, para. 99.

189 See Trial Judgement, para. 2569, referring to Trial Judgement Part 4.2.7(Gračac town); para. 2572.

190 See Trial Judgement, para. 2575, referring to Trial Judgement Part 4.1.4 (Marko Ilić and others – Schedule no. 10).

191 See Trial Judgement, paras 2569, 2574, both referring to Trial Judgement Part 4.2.4 (Donji Lapac town).

192 See Trial Judgement, paras 2569, 2576, both referring to Trial Judgement Part 6.2.6.

193 See Appeal Judgement, para. 158.

1 See Judgement, paras. 110, 150, 153-154.

2 See Judgement, paras. 147-148.

3 Trial Judgement, para. 2569.

4 Trial Judgement, paras. 2570-2571, 2573.

5 Trial Judgement, paras. 2572, 2574.

6 Judgement, para. 150.

7 Judgement, para. 150.

8 Rutaganda Appeal Judgement, Separate Opinion of Judges Meron and Jorda, p. 1.

9 Simić Appeal Judgement.

10 Simić Appeal Judgement, paras. 74,75-84, 189.

11 Simić Appeal Judgement, para. 84.

12 Simić Appeal Judgement, para. 189.

13 D. Milošević Appeal Judgement.

14 D. Milošević Appeal Judgement, paras. 277-282.

15 D. Milošević Appeal Judgement, para. 281.

16 D. Milošević Appeal Judgement, para. 281.

17 Criminal Appeal Act 1968 (England and Wales), Section 3; Criminal Appeals Act 2004 (Western Australia), Section 30(5); Criminal Appeals Act 1912 (New South Wales), Section 7(2).

18 Deacon, at 696G, 699H. See also Moses, paras. 30-31.

19 Spies.

20 See Spies, para. 1.

21 Spies, para. 105.

22 Spies, para. 27.

23 Spies, paras. 43-44; Deacon. See Spies, para. 44 citing Gleeson CJ in McQueeny v. R (1989) 39 A Crim R 56 at 60.

24 Spies, para. 50.

25 Spies, para. 49.

26 Spies, para. 49.

27 Judgement, para. 150.

28 Spies, para. 49. See para. 12 above.

29 Judgement, para. 150.

30 See Judgement, para. 154.

31 Haradinaj et al. Appeal Judgement, para. 50.

32 Ibid., para. 50.

33 Muvunyi Appeal Judgement,, para. 148.

34 Ibid.

35 Gilham, para. 649.

36 Ibid., para. 649. The factors identified were: (i) the public interest in the due prosecution and conviction of offenders; (ii) the seriousness of the alleged crimes; (iii) the strength of the Crown case; (iv) the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, is the appropriate body to make such a decision; (v) the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused; (vi) whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or ‘‘patch up’’ a defective case or to present a case significantly different to that presented to the jury in the previous trial; (vii) the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial; (viii) whether a significant part of the sentence imposed upon conviction has already been served; (ix) the expense and length of a further trial; (x) whether a successful appellant to the Court of Criminal Appeal has been released from custody; and xi) whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions.

1 Appeal Judgement, para. 158. See also, Appeal Judgement, para. 98.

2 Indictment, para. 48.

3 Trial Judgement, para. 1892.

4 Trial Judgement, para. 1892.

5 Trial Judgement, para. 1892.

6 Trial Judgement, para. 1898.

7 Appeal Judgement, paras 61, 64.

8 Appeal Judgement, paras 61, 64.

9 Appeal Judgement, para. 64.

10 Appeal Judgement, para. 67.

11 Appeal Judgement, para. 83.

12 Appeal Judgement, paras 61, 64.

13 Appeal Judgement, para. 61.

14 See generally Appeal Judgement, paras 61, 64. Given the Majority’s reference to an absence of link between the margin of error of artillery weapons and the evidence, it could be understood that the Majority deemed to qualify this error as an error of fact. However, absent further indication from the Majority, it is not possible to reach a conclusion in this regard. The importance of the characterization of this error will be discussed further below. See infra paras 9-11, 13.

15 Although it might seem to be a detail, the Majority’s reasoning is not articulated in a logical sequence. The Majority should have found that the first error was that the Trial Chamber committed an error of law by failing to provide a reasoned opinion as to the basis for the margin of error of artillery weapons. It is only then that it should have looked at the Trial Chamber’s findings to see whether, despite the failure to provide a reasoned opinion, they support the Trial Chamber’s conclusion to adopt the 200 Metre Standard. Having found that this was not the case, the Majority could then have found a second error, which was the adoption of a margin of error of artillery weapons, which was ‘not linked to any evidence’’. The reverse order of the Majority’s approach creates unnecessary confusion.

16 Appeal Judgement, para. 64.

17 See Appeal Judgement, paras 58-61.

18 Appeal Judgement, para. 64.

19 Appeal Judgement, para. 65.

20 Appeal Judgement, para. 65 (internal reference omitted).

21 Appeal Judgement, para. 65 (internal references omitted).

22 Appeal Judgement, para. 66 (internal references omitted).

23 Appeal Judgement, para. 67.

24 See Appeal Judgement, para. 12.

25 Blaškić Appeal Judgement, para. 15. See also, e.g., Haradinaj et al. Appeal Judgement, para. 11; Appeal Judgement, para. 12.

26 Blaškić Appeal Judgement, para. 15. See also, e.g., Haradinaj et al. Appeal Judgement, para. 11; Appeal Judgement, para. 12.

27 Appeal Judgement, para. 61.

28 Trial Judgement, para. 1893.

29 Trial Judgement, para. 1898.

30 See Appeal Judgement, para. 65. See also the last sentence of paragraph 65 of the Appeal Judgement (‘‘The Appeals Chamber [ . . . ] considers that absent the 200 Metre Standard, this latter evidence is inconclusive.’’ (emphasis added)). Similarly, the Majority also pretends to review the evidence in the trial record with respect to ‘‘targets of opportunity’’ without having first determined the correct legal standard. See Appeal Judgement, para. 66 (‘‘The possibility of shelling such mobile targets, combined with the lack of any dependable range of error estimation, raises reasonable doubt about whether even artillery impact sites particularly distant from fixed artillery targets considered legitimate by the Trial Chamber demonstrate that unlawful shelling took place.’’(emphasis added)).

31 Appeal Judgement, para. 64 (second emphasis added).

32 See Appeal Judgement, paras 65-66. For example, the Majority states that ‘‘[a]lthough evidence on the record suggests that individual units of the HV aimed artillery in the general direction of the Four Towns rather than at specific targets, the Trial Chamber found that this evidence was not wholly conclusive when considered alone and was indicative of an unlawful attack only in the context of the Trial Chamber’s application of the 200 Metre Standard.’’ See Appeal Judgement, para. 65.

33 Appeal Judgement, para. 64.

34 See, e.g., Trial Judgement, paras 1401, 1430, 1746, 1970- 1995, 2311. See also infra paras 19-20, 26.

35 See, e.g., Trial Judgement, paras 1172-1173, 1185-1188, 1893; Exhibit P1125, p. 14.

36 See, e.g., Trial Judgement, paras 1242-1267, 1895-1896, 1911.

37 See, e.g., Trial Judgement, paras 1268-1359, 1365-1367, 1369, 1372, 1420, 1427, 1429, 1451, 1911. In assessing the evidence of the shelling attacks on the Four Towns and the artillery impacts, the Trial Chamber received and considered evidence regarding inter alia: (i) the different types of weapons and the use of artillery during military operations (including: the accuracy, ranges and rates of fire of the different types of artillery weapons; the properties of different types of property shells and their effects as well as the various effects that can be achieved by means of artillery fire) (see Trial Judgement, paras 1163-1171); (ii) the effects of using artillery against specific objects in Knin, including the anticipated military advantage, risk of collateral damage and incidental injury (See Trial Judgement, paras 1174-1175); (iii) the intensity of the shelling of Knin on 4 and 5 August 1995 (see Trial Judgement, paras 1369-1371); (iv) the methods and means employed during the attack (see Trial Judgement, paras 1369-1371); (v) the evidence of artillery impacts (see Trial Judgement, paras 1372- 1397); and (vi) the shelling of Benkovac, Obrovac, and Gračac on 4 and 5 August 1995 (see Trial Judgement, paras 1399- 1463, 1465-1476).

38 See, e.g., Trial Judgement, paras 1244, 1910.

39 Appeal Judgement, paras 77-83.

40 Appeal Judgement, para. 83.

41 Appeal Judgement, paras 77-81.

42 Trial Judgement, paras 2314, 2369-2375, 2579-2587. See also Trial Judgement, paras 2303-2312, 2315-2321.

43 Trial Judgement, para. 2314.

44 See, e.g., Trial Judgement, paras 1970-1995, 2304-2305, 2310-2311.

45 See, e.g., Trial Judgement, paras 1163-1476, 1540-1544, 1549-1551, 1558-1587, 1590-1592, 1607-1642, 1742-1753, 1892-1945, 2305-2306, 2311.

46 See, e.g., Trial Judgement, paras 1756-1758, 2307.

47 See, e.g., Trial Judgement, paras 1843-1846, 1997-2057, 2059-2098, 2308-2309, 2312.

48 Although this issue should have been at the crux of the Majority’s analysis, it only appears in the section on alternate modes of liability. See Appeal Judgement, paras 118, 138.

49 Trial Judgement, paras 2324, 2370.

50 Trial Judgement, paras 2324, 2370.

51 Trial Judgement, paras 2365, 2370.

52 Trial Judgement, paras 2554, 2559-2560, 2580.

53 Trial Judgement, paras 2555, 2561, 2580.

54 Trial Judgement, paras 2568-2575, 2581.

55 Trial Judgement, paras 2569-2570, 2576, 2581.

56 Appeal Judgement, para. 85 (emphasis added).

57 Appeal Judgement, para. 87.

58 Appeal Judgement, para. 92.

59 Appeal Judgement, para. 92.

60 Appeal Judgement, para. 91 (emphasis added).

61 Appeal Judgement, para. 91.

62 Appeal Judgement, paras 93-95.

63 Appeal Judgement, para. 96.

64 Appeal Judgement, paras 97-98.

65 Appeal Judgement, para. 87 (emphasis added). Similarly, the Majority also states: ‘‘More specifically, the Appeals Chamber [ . . . ] recalls that, in the context of Operation Storm, unlawful artillery attacks were identified by the Trial Chamber as the primary means by which the forced departure of Serb civilians from the Krajina region was effected.’’ See Appeal Judgement, para. 92. This affirmation is however not supported by any footnote containing references to the Trial Judgement. Moreover, the Majority seems somehow to contradict itself by using the word ‘‘primary’’, which does not mean ‘‘exclusively’’.

66 Trial Judgement, paras 1743-1744.

67 See also Trial Judgement, para. 1745 (‘‘The Trial Chamber considers that the fear of violence and duress caused by the shelling of the towns of Benkovac, Gračac, Knin, and Obrovac created an environment in which those present there had no choice but to leave. Consequently, the Trial Chamber finds that the shelling amounted to the forcible displacement of persons from Benkovac, Gračac, Knin, and Obrovac on 4 and 5 August 1995.’’(emphasis added)).

68 Appeal Judgement, para. 87, referring to Trial Judgement, para. 1755. Referring to the same paragraph of the Trial Judgement, the Majority also tries to justify its affirmation by stating: ‘‘By contrast, the Appeals Chamber [ . . . ] observes that where artillery attacks on settlements were not deemed unlawful, the Trial Chamber was unwilling to characterise Serb civilians’ concurrent departures as deportation.’’ See Appeal Judgement, para. 92, referring to Trial Judgement, para. 1755.

69 As enounced in paragraph 1742 of the Trial Judgement, the Trial Chamber made legal findings on forcible transfer and deportation with respect to four sets of events. It considered the departure of persons: (i) from the towns of Knin, Benkovac, Gračac, and Obrovac on 4 and 5 August 1995; (ii) from other locations after shells impacted on or nearby these locations on 4 and 5 August 1995; (iii) who were victims of or witnessed crimes committed by members of the Croatian military forces or Special Police during and after Operation Storm; and (iv) for which the evidence does not establish a geographic or temporal link to incidents of shelling, crimes, or other threatening acts committed by members of the Croatian military forces or Special Police. The Trial Chamber’s legal findings with respect to the departure of persons from the towns of Knin, Benkovac, Gračac, and Obrovac on 4 and 5 August 1995 are found in paragraphs 1743 to 1753 of the Trial Judgement. Paragraph 1755 of the Trial Judgement to which the Majority refers is not linked to the legal findings on deportation with respect to the Four Towns, but concerns the Trial Chamber’s legal findings on the departure of persons from other locations after shells impacted on or nearby these locations on 4 and 5 August 1995. See Trial Judgement, paras 1742-1755.

70 Trial Judgement, para. 1754 (emphasis added).

71 Appeal Judgement, para. 87 (emphasis added).

72 Trial Judgement, para. 1759. See also Trial Judgement, paras 1756-1758, 1760-1761.

73 Trial Judgement, para. 1756. See also Trial Judgement, para. 1742.

74 Trial Judgement, para. 1756.

75 Trial Judgement, paras 1756, 1759.

76 Trial Judgement, paras 1862-1863.

77 Appeal Judgement, para. 91 (emphasis added). The Majority seems somehow to contradict itself by using the word ‘‘primarily’’, which does not mean ‘‘exclusively’’.

78 Appeal Judgement, para. 91.

79 See supra para. 19.

80 See supra para. 19.

81 Appeal Judgement, para. 93.

82 Appeal Judgement, para. 93 (emphasis added).

83 Appeal Judgement, para. 93 (internal references omitted).

84 Trial Judgement, paras 1970-1995.

85 Trial Judgement, para. 1993 (‘‘Granić commented that by opening a corridor for the evacuation of the civilian population and the SVK, the authorities of Croatia aimed at avoiding unnecessary civilian casualties at all costs. This raises the question of whether the participants merely discussed a way to ensure that the civilians would get out of harm’s way during the hostilities. The Trial Chamber has considered the minutes of the meeting in this respect and whether this would constitute a reasonable interpretation. In general, the participants made no reference to how the military operation should be conducted as to avoid or minimize the impact on the civilian population. Rather, after recalling how many Croatian villages and towns had been destroyed, Tuđman concluded that a counterattack by the Serbs from Knin would provide a pretext for Croatia to use artillery for complete demoralization. Gotovina responded that if there was an order to strike it, Knin could be destroyed in a few hours. He also reassured Đ that they could attack Knin very precisely without targeting the UNCRO barracks. Later in the meeting, Đ also made a reference to destroying a part of Knin. The Trial Chamber further considered that when Đ stressed that a way out should be left for civilians, Gotovina stated that if Croatian forces only continued to exert pressure, the only civilians left would be those who could not leave. The above statements do not lend support to an interpretation that the discussions at the meeting were about the protection of civilians.’’).

86 Trial Judgement, para. 1995.

87 Trial Judgement, para. 2306.

88 Appeal Judgement, para. 94.

89 See supra para. 24.

90 Appeal Judgement, para. 94.

91 Trial Judgement, para. 2313.

92 Trial Judgement, para. 2057.

93 Trial Judgement, para. 2098.

94 Trial Judgement, para. 2310.

95 Trial Judgement, para. 2312.

96 Appeal Judgement, para. 95.

97 Appeal Judgement, para. 95.

98 Appeal Judgement, para. 13.

99 Appeal Judgement, paras 49-98.

100 Appeal Judgement, para. 99. See also Appeal Judgement, paras 100-157.

101 Appeal Judgement, paras 99-103, 106-110.

102 Appeal Judgement, para. 103.

103 See Prosecution Alternate Liability Response, paras 1-12.

104 See, e.g., Vasiljević Appeal Judgement, paras 132-135, 141- 143, 147, 181-182, p. 60 (revising the conviction with respect to the Drina River Incident for murder as a violation of the laws or customs of war and persecutions as a crime against humanity from JCE to aiding and abetting); Krstić Appeal Judgement, paras 135-144, 266, 268, p. 87 (revising the conviction for the executions of the Bosnian Muslims of Srebrenica between 13 and 19 July 1995 constitutive of genocide as well as murder as a violation of the laws or customs of war from JCE to aiding and abetting); Simić Appeal Judgement, paras 74-75, 84, 105, 114-118, 130-138, 148-159, 182- 189, 300-301 (revising the conviction for persecutions as a crime against humanity from JCE to aiding and abetting); D. Milošević Appeal Judgement, paras 275- 282, 334, p. 128 (revising the conviction for the sniping of the civilian population constitutive of terror as a violation of the laws or customs of war as well as murder and other inhumane acts as crimes against humanity from planning and ordering to superior responsibility); Rukundo Appeal Judgement, paras 39, 50-54, 175-177, 269-270 (revising the conviction for genocide as well as murder and extermination as crimes against humanity from JCE to aiding and abetting). On fewer occasions, the Appeals Chamber has also revised a conviction from other modes of liability than JCE to aiding and abetting or superior responsibility. See, e.g.,Blaškić Appeal Judgement, paras 32- 42, 659-670, p. 258 (revising the conviction for using detainees as human shields constitutive of inhuman treatment as a grave breach of the Geneva Conventions of 1949 from ordering to omission).

105 I concede that, in a very few instances, the Appeals Chamber has used unfortunate language, which might give the impression a priori that the Appeals Chamber was entering a new conviction. Nonetheless a reading of these paragraphs in their context clarify that the Appeals Chamber was in fact revising the appellant’s conviction for a certain crime from one mode of liability to another. Compare Krstić Appeal Judgement, para. 143 with Krstić Appeal Judgement, paras 135-139, 144, 266, 268, p. 87; Compare D. Milošević Appeal Judgement, paras 277, 282, 334 with D. Milošević Appeal Judgement, paras 275-276, 278-281, p. 128.

106 Blaškić Appeal Judgement, p. 258, where in the Disposition, the Appeals Chamber ‘‘affirm[ed] ‘’ Blaškić’s conviction for Count 19 under Article 7(1) of the Statute for the inhuman treatment of detainees occasioned by their use as human shields. See also Blaškić Appeal Judgement, para. 659 (‘‘The Appeals Chamber holds that the reasoning of the Trial Chamber in finding the Appellant responsible for ordering the use of civilian detainees as human shields is flawed, although it does not undermine the conviction.’’(emphasis added)).

107 Simić Appeal Judgement, para. 189 (‘‘As a result, the Appeals Chamber affirms the Appellant’s conviction for persecutions under Count 1 of the Fifth Amended Indictment insofar as the conduct underlying this conviction encompasses these acts, and holds that his responsibility is appropriately characterized as that of an aider and abettor.’’(emphasis added)). See also Simić Appeal Judgement, para. 75 (‘‘Consequently, the question arises as to whether the Trial Chamber’s findings support his responsibility under a different mode of liability’’).

108 Rukundo Appeal Judgement, para. 270, where in the Disposition, the Appeals Chamber ‘‘affirm[ed]’’ Rukundo’s convictions for genocide as well as for murder and extermination as crimes against humanity.

109 Krstić Appeal Judgement, para. 268 (‘‘As such, the revision of Krstić’s conviction to aiding and abetting these two crimes [ . . . ].’’(emphasis added)).

110 See, e.g., Blaškić Appeal Judgement, paras 662, 670.

111 See, e.g., Rukundo Appeal Judgement, para. 39.

112 See, e.g., Simić Appeal Judgement, para. 189.

113 See, e.g., Krstić Appeal Judgement, para. 137.

114 See, e.g., Krstić Appeal Judgement, para. 138.

115 See, e.g., Krstić Appeal Judgement, para. 139.

116 See, e.g., Simić Appeal Judgement, para. 300.

117 Appeal Judgement, para. 106.

118 Appeal Judgement, para. 106 (first emphasis added).

119 Appeal Judgement, para. 106 (emphasis added).

120 Appeal Judgement, para. 107, referring to Šljivančanin Reconsideration Decision, Galić Appeal Judgement, Semanza Appeal Judgement, Rutangada Appeal Judgement.

121 Appeal Judgement, para. 107.

122 Mrkšić and Šljivančanin Appeal Judgement, Partially Dissenting Opinion of Judge Pocar, pp. 171-177, paras 1-13.

123 Galić Appeal Judgement, Partially Dissenting Opinion of Judge Pocar, p. 187, para. 2.

124 Semanza Appeal Judgement, Dissenting Opinion of Judge Pocar, pp. 131-133, paras 1-4.

125 Rutaganda Appeal Judgement, Dissenting Opinion of Judge Pocar, pp. 1-4.

126 Setako Appeal Judgement, Partially Dissenting Opinion of Judge Pocar, paras 1-6.

127 Gatete Appeal Judgement, Partially Dissenting Opinion of Judge Pocar, paras 1-5.

128 International Covenant on Civil and Political Rights, 16 December 1966, entered into force on 23 March 1976.

129 Appeal Judgement, para. 108.

1 Notice of Appeal of Ante Gotovina, 16 May 2011.

2 Ante Gotovina’s Motion for Leave to Exceed the Word Limit, 15 July 2011.

3 Prosecution’s Opposition to Gotovina’s Motion for Leave to Exceed the Word Limit, 19 July 2011.

4 Decision on Ante Gotovina’s and Mladen Markač’s Motions for Leave to Exceed the Word Limit, 20 July 2011, pp. 1, 3. The Prosecution received an equivalent word extension for its respondent’s brief.

5 Appellant’s Brief of Ante Gotovina, 1 August 2011 (confidential). See also Book of Authorities for Ante Gotovina’s Appellant’s Brief, 1 August 2011. The Appeals Chamber notes that the appeal brief was filed as a confidential annex to a public submission. A public redacted version was filed on 2 August 2011.

6 Prosecution Response to Ante Gotovina’s Appeal Brief, 12 September 2011 (confidential). A public redacted version was filed on 29 September 2011. See also Corrigendum to Prosecution Response to Ante Gotovina’s Appeal Brief, 28 September 2011 (confidential with confidential annexes). The Pre-Appeal Judge dismissed a motion by Gotovina to strike the Prosecution’s response for exceeding the word limit, and allowed Gotovina a 6,000 word extension for his reply brief. See Decision on Motion to Strike the Respondent’s Briefs, 14 September 2011, p. 3.

7 Reply Brief of Appellant Ante Gotovina, 27 September 2011 (confidential). A public redacted version was filed on 4 October 2011. The Pre-Appeal Judge dismissed a motion by the Prosecution to strike Gotovina’s reply brief for exceeding the word limit and denied a motion by the Prosecution to strike grounds of Gotovina’s appeal which were presumed to be abandoned. See Decision on Prosecution’s Motion to Strike Ante Gotovina’s Reply Brief, 18 October 2011, pp. 1-2; Decision on Motion to Strike Gotovina’s Abandoned Grounds of Appeal, 4 November 2011, p. 2.

8 Mladen Markač’s Notice of Appeal, 16 May 2011. The Appeals Chamber notes that the notice of appeal was re-classified as confidential on 18 May 2011 and a public redacted version was filed on 18 May 2011.

9 Mladen Markač’s Joinder to Ante Gotovina’s Motion for Leave to Exceed the Word Limit, 20 July 2011.

10 Prosecution Response to Mladen Marka[è]’s Joinder to Ante Gotovina’s Motion for Leave to Exceed the Word Limit, 20 July 2011.

11 Decision on Ante Gotovina’s and Markač’s Motions for Leave to Exceed the Word Limit, 20 July 2011, pp. 1-3. The Prosecution received an equivalent word extension for its respondent’s brief.

12 Mladen Markač’s Appeal Brief, 1 August 2011 (confidential). See also Book of Authorities for Mladen Markač’s Appeal Brief, 1 August 2011. A public redacted version of Markač’s appeal brief was filed on 12 October 2011.

13 Prosecution Response to Mladen Markač’s Appeal Brief, 12 September 2011 (confidential). A public redacted version was filed on 29 September 2011. The Pre-Appeal Judge dismissed a motion by Markač to strike the Prosecution’s response for exceeding the word limit, and allowed Markač a 6,000 word extension for his reply brief. See Decision on Motion to Strike the Respondent’s Briefs, 14 September 2011, p. 3. See also Corrigendum to Prosecution Response Brief to Mladen Markač Appeal, 28 September 2011 (confidential with confidential annexes).

14 Mladen Markač’s Reply to Re[s]pondent’s Brief, 27 September 2011 (confidential). A public redacted version was filedon 6 October 2011. The Pre-Appeal Judge denied the Prosecution’s request to file a sur-reply. See Decision on Prosecution’s Request for Leave to File Sur-Reply to Respond to False Allegations in Markač’s Reply Brief, 1 November 2011, p. 2.

15 Order Assigning Judges to a Case Before the Appeals Chamber, 23 May 2011.

16 Order Designating a Pre-Appeal Judge, 30 May 2011.

17 Order Designating a Pre-Appeal Judge, 30 May 2011.

18 Order Replacing a Judge in a Case Before the Appeals Chamber, 17 November 2011.

19 Ante Gotovina’s Application for an Order Pursuant to Rule 54 bis Directing the Government of the Republic of Serbia to Produce Documents, 22 June 2011 (public with confidential annexes).

20 Prosecution Request for Leave to Respond to Gotovina’s Application Pursuant to Rule 54bis, 24 June 2011.

21 Prosecution Response to Gotovina’s Application Pursuant to Rule 54 bis, 4 July 2011 (confidential with confidential annexes). A public redacted version was filed on 6 July 2011. See also Decision on Prosecution Request for Leave to Respond to Gotovina’s Application Pursuant to Rule 54 bis, 28 June 2011. Due to a clerical error, the Prosecution’s response was not circulated to the Appellants until two days after the expiration of the filing deadline for a response, and Gotovina consequently filed a motion to strike the response as untimely. The Pre-Appeal Judge noted the clerical error and ordered an extension of the deadline for Gotovina to file a reply. See Ante Gotovina’s Motion to Strike ‘‘Prosecution Response to Gotovina’s Application Pursuant to Rule 54 bis’’, 7 July 2011; Order Amending Time Limits for Any Motion Replying to the ‘‘Prosecution Response to Gotovina’s Application Pursuant to Rule 54 bis’’, 7 July 2011.

22 Ante Gotovina’s Reply in Support of His Application for an Order Pursuant to Rule 54 bis Directing the Republic of Serbia to Produce Documents, 11 July 2011 (confidential). A public redacted version was filed on 15 July 2011.

23 Decision on Ante Gotovina’s Application for an Order Pursuant to Rule 54 bis Directing the Government of the Republic of Serbia to Produce Documents, 19 July 2011, p. 2.

24 Ante Gotovina’s Renewed Application for an Order Pursuant to Rule 54 bis Directing the Government of the Republic of Serbia to Produce Documents, 7 September 2011.

25 Prosecution Response to Gotovina’s Renewed Application Pursuant to Rule 54bis, 19 September 2011.

26 Ante Gotovina’s Reply in Support of Renewed Rule 54 bis Application for an Order Directed to Serbia, 21 September 2011.

27 Decision on Ante Gotovina’s Renewed Application for an Order Pursuant to Rule 54 bis Directing the Government of the Republic of Serbia to Produce Documents, 16 November 2011, para. 10.

28 Ante Gotovina’s Application for an Order Pursuant to Rule 54 bis Directing the United Nations to Produce the So-Called ‘‘Artillery Logs’’ or Explain Their Whereabouts, 2 December 2011 (confidential). A public redacted version was filed on the same day.

29 Prosecution Response to Gotovina’s Application for a Rule 54bis Order Directed to the United Nations, 12 December 2011 (confidential). A public redacted version was filed on 16 December 2011.

30 Reply Brief of Ante Gotovina in Support of His Application for a Rule 54 bis Order Directed to the United Nations, 16 December 2011 (confidential). A public redacted version was filed on 19 December 2011.

31 Decision on Ante Gotovina’s Application for an Order Pursuant to Rule 54 bis Directed to the United Nations, 10 February 2012 (confidential), para. 12.

32 Appellant’s Second Motion to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 25 October 2011 (confidential) (‘‘Markač Rule 115 Motion’’). See also Appellant’s Motion to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 18 October 2011 (confidential); Prosecution Response to Markač’s First Rule 115 Motion, 17 November 2011 (confidential); Appellant’s Notice of Withdrawal of First Motion to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 23 November 2011 (confidential).

33 Appellant Ante Gotovina’s Motion to Admit New Evidence Pursuant to Rule 115, 27 October 2011 (confidential with confidential exhibits) (‘‘First Gotovina Motion’’). A public redacted version of the First Gotovina Motion was filed on 4 November 2011. The Pre-Appeal Judge granted Gotovina’s request for a 4,000 word extension to the word limit for Rule 115 motions established by the Tribunal and allowed the Prosecution an equivalent word extension for its respondent’s brief. See Decision on Gotovina’s Motion to Exceed Word Limit, 26 October 2011, p. 2.

34 Appellant Ante Gotovina’s Second Motion to Admit Additional Evidence Pursuant to Rule 115, 30 March 2012 (confidential with confidential exhibits) (‘‘Second Gotovina Motion’’). Pursuant to an order by the Appeals Chamber, a public redacted version was filed on 31 July 2012. See Decision on Prosecution Motion to Compel Gotovina to File a Redacted Public Version of His Second Motion to Admit Additional Evidence Pursuant to Rule 115, 28 June 2012 (confidential).

35 Ante Gotovina’s Third Rule 115 Motion, 2 May 2012 (confidential with confidential annexes) (‘‘Third Gotovina Motion’’).

36 Mladen Markač’s Joinder to ‘‘Appellant Ante Gotovina’s Motion to Admit New Evidence Pursuant to Rule 115’’, 27 October 2011 (confidential); Mladen Markač’s Joinder to ‘‘Appellant Ante Gotovina’s Second Motion to Admit Additional Evidence Pursuant to Rule 115’’, 2 April 2012 (confidential).

37 Prosecution Response to Markač’s Second Rule 115 Motion, 24 November 2011 (confidential with confidential annexes and confidential and ex parte annex).

38 Prosecution Response to Gotovina’s Rule 115 Motion, 28 November 2011 (confidential with confidential annexes and a confidential and ex parte annex). A public redacted version was filed on 16 December 2011.

39 Reply Brief of Ante Gotovina in Support of His Motion to Admit Additional Evidence Pursuant to Rule 115, 12 December 2011 (confidential). A public redacted version was filed on 19 December 2011.

40 Prosecution Response to Gotovina’s Second Motion to Admit Additional Evidence Pursuant to Rule 115 and Supplemental Response to Gotovina’s First Rule 115 Motion, 27 April 2012 (confidential with confidential annexes). A public redacted version was filed on 6 August 2012. See also Corrigendum to Prosecution Response to Ante Gotovina’s Second Motion to Admit Additional Evidence Pursuant to Rule 115, 2 May 2012. The Appeals Chamber notes that the corrigendum was initially filed confidentially with a confidential annex, and was made public on 6 August 2012. The Pre-Appeal Judge denied Gotovina’s request to strike the Prosecution’s response to the Second Gotovina Motion. See Decision on Ante Gotovina’s Motion to Strike the Prosecution’s Response to Gotovina’s Second Rule 115 Motion, 9 May 2012 (confidential), p. 3.

41 Reply in Support of Appellant Ante Gotovina’s Second Rule 115 Motion, 18 May 2012 (confidential). A public redacted version of the reply was filed on 6 August 2012. The Pre- Appeal Judge orally granted Gotovina’s request for an extension of time for filing his reply to the Second Prosecution Response (Gotovina). See AT. 14 May 2012 pp. 123-124.

42 Prosecution Response to Ante Gotovina’s Third Rule 115 Motion, 7 May 2012 (confidential with confidential annexes).

43 Decision Deferring Consideration of Motions for the Admission of Additional Evidence on Appeal, 4 May 2012 (confidential), p. 1; Decision Deferring Consideration of Ante Gotovina’s Third Rule 115 Motion, 7 May 2012 (confidential), p. 1.

44 Decision on Ante Gotovina’s and Mladen Markač’s Motions for the Admission of Additional Evidence on Appeal, 21 June 2012 (confidential), para. 55. A public redacted version of the decision was filed on 2 October 2012.

45 Ante Gotovina’s Motion to Replace Exhibit D798 with Unredacted Version, 17 April 2012 (confidential with a confidential annex).

46 Prosecution Response to Gotovina Motion to Replace Exhibit D798 with Unredacted Version, 20 April 2012 (confidential).

47 Decision on Ante Gotovina’s Motion to Replace Exhibit D798 with Unredacted Version, 1 May 2012 (confidential), p. 1.

48 Ante Gotovina’s Motion In Limine Seeking Order Precluding Prosecution from Raising New Allegation of ‘‘Disproportionate Attack,’’ and Motion for Protective Order, 4 May 2012 (confidential).

49 Mladen Markač’s Joinder to ‘‘Ante Gotovina’s Motion In Limine Seeking Order Precluding Prosecution from Raising New Allegation of ‘Disproportionate Attack,’ and Motion for Protective Order’’, 7 May 2012 (confidential).

50 Decision on Ante Gotovina’s Motion In Limine, 9 May 2012 (confidential), p. 2. The decision was issued without awaiting a response from the Prosecution in view of the lack of prejudice to it. See Decision on Ante Gotovina’s Motion in Limine, p. 1.

51 Motion to Intervene and Statement of Interest by the Republic of Croatia, 16 December 2011, para. 65. The motion was filed confidentially and made public on 8 February 2012.

52 Prosecution Response to Republic of Croatia’s Motion to Intervene and Statement of Interest, 30 December 2011. The response was filed confidentially and made public on 8 February 2012.

53 Reply in Support of Motion to Intervene and Statement of Interest by the Republic of Croatia, 3 January 2012. The reply was filed confidentially and made public on 8 February 2012.

54 Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012 (‘‘Decision on Motion to Intervene’’), para. 27. In this decision, the Appeals Chamber additionally granted the Prosecution’s motion to vary the time limit for filing a response to submissions by non-parties and accepted the Prosecution’s response as validly filed. See Decision on Motion to Intervene, para. 7. See also Prosecution Motion to Vary Time-Limit, 5 January 2012; Response of the Republic of Croatia to Prosecution Motion to Vary Time-Limit, 9 January 2012. The motion and response were filed confidentially and made public on 8 February 2012.

55 Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks During Operation Storm, 13 January 2012.

56 Prosecution Response to ‘‘Application and Proposed Amicus Curiae Brief’’ Filed on 13 January 2012, 23 January 2012; Ante Gotovina’s Response to ‘‘Application and Proposed Amicus Curiae Brief’’ Filed on 13 January 2012, 27 January 2012 (confidential); Mladen Markač’s Response to ‘‘Prosecution Response to ‘Application and Proposed Amicus Curiae Brief’ Filed on 13 January 2012’’, 2 February 2012. A public redacted version of Gotovina’s response was filed on 27 January 2012.

57 Decision on Application and Proposed Amicus Curiae Brief, 14 February 2012, para. 14.

58 Ante Gotovina’s Motion Seeking an Order Directing the Republic of Croatia to Comply Immediately with Tribunal Orders, 26 September 2011.

59 Decision on Ante Gotovina’s Motion Seeking an Order Directing the Republic of Croatia to Comply Immediately with Tribunal Orders, 15 November 2011 (confidential), p. 1. See also Report from the Republic of Croatia entitled ‘‘Proceeding pursuant to the Order of the ICTY Trial Chamber dated 18 February 2011’’, 14 October 2011 (confidential).

60 Appellant Ante Gotovina’s Motion for Relief to Remedy the Prosecutor’s Violations of Rule 68 and Rule 112(B), and for Sanctions Pursuant to Rule 68 bis, 23 March 2012 (confidential with confidential annexes).

61 Prosecution Response to Ante Gotovina’s Motion for Relief to Remedy the Prosecutor’s Alleged Disclosure Violations, 5 April 2012 (confidential with confidential annexes). The Appeals Chamber granted the Prosecution a three day extension of the deadline to file this response. See Decision on Motions to Vary Word Limits and on Prosecution’s Motion to Vary Time Limit, 27 March 2012 (confidential), pp. 2- 3. See also Corrigendum to Prosecution Response to Ante Gotovina’s Motion for Relief to Remedy the Prosecutor’s Alleged Disclosure Violations, 10 April 2012 (confidential with a confidential annex).

62 Appellant Ante Gotovina’s Reply in Support of His Motion for Relief to Remedy the Prosecutor’s Violations of Rule 68 and Rule 112(B), and for Sanctions Pursuant to Rule 68 bis, 13 April 2012 (confidential with confidential annexes). The Appeals Chamber granted Gotovina a three day extension of the deadline to file this reply. See Decision on Motion for Extension of Time to File Reply Brief, 3 April 2012 (confidential). The Prosecution requested leave to file a sur- reply. See Prosecution Request for Leave to File Sur-Reply to Gotovina’s Motion for Relief to Remedy the Prosecutor’s Alleged Disclosure Violations, and Proposed Sur-Reply, 23 April 2012 (confidential); Appellant Ante Gotovina’s Response to Prosecution Motion for Leave to File Sur-Reply, 24 April 2012 (confidential). The Appeals Chamber considered the Prosecution’s Sur- Reply and Gotovina’s Response to the Sur-Reply, in part. See Decision on Ante Gotovina’s Motion for Relief to Remedy the Prosecutor’s Violations of Rules 68 and 112(B), and for Sanctions Pursuant to Rule 68 bis, 21 May 2012 (confidential), para. 5.

63 Decision on Ante Gotovina’s Motion for Relief to Remedy the Prosecutor’s Violations of Rules 68 and 112(B), and for Sanctions Pursuant to Rule 68 bis, 21 May 2012 (confidential), para. 19.

64 Scheduling Order for Appeal Hearing, 4 April 2012.

65 Addendum to the Scheduling Order for Appeal Hearing, 24 April 2012.

66 AT. 14 May 2012 p. 123.

67 Ante Gotovina’s Supplemental Brief Pursuant to the Oral Order of the Appeals Chamber of 14 May 2012, 17 May 2012.

68 Prosecution Response to Gotovina’s Supplemental Brief, 21 May 2012. The Appeals Chamber did not allow a reply. See AT. 14 May 2012 p. 123.

69 Order for Additional Briefing, 20 July 2012.

70 Prosecution Supplemental Brief on Alternative Modes of Liability for Ante Gotovina, 10 August 2012; Prosecution Supplemental Brief on Alternative Modes of Liability for Mladen Markač, 10 August 2012.

71 Appellant Ante Gotovina’s Supplemental Brief on Alternate Modes of Liability, 31 August 2012; Response to the Prosecution Markač Submission, 31 August 2012 (confidential). A public redacted version of the Markač Additional Response was filed on 31 August 2012. See also Book of Authorities for Ante Gotovina’s Supplemental Brief on Alternate Modes of Liability, 31 August 2012.

72 Appellant Ante Gotovina’s Motion Challenging the Appeals Chamber’s Jurisdiction to Consider Alternate Modes of Liability, or in the Alternative for Finding of Prosecution Waiver, 10 August 2012.

73 Mladen Markač’s Joinder to ‘‘Ante Gotovina’s Motion Challenging the Appeals Chamber’s Jurisdiction to Consider Alternate Modes of Liability, or in the Alternative for Finding of Prosecution Waiver, 10 August 2012.

74 Prosecution Response to Gotovina Motion Challenging Jurisdiction, 17 August 2012.

75 Appellant Ante Gotovina’s Reply in Support of His Motion Challenging the Appeals Chamber’s Jurisdiction to Consider Alternate Modes of Liability, or in the Alternative for Finding of Prosecution Waiver, 22 August 2012.

76 Mladen Markač’s Joinder to ‘‘Appellant Ante Gotovina’s Reply in Support of His Motion Challenging the Appeals Chamber’s Jurisdiction to Consider Alternate Modes of Liability, or in the Alternative for Finding of Prosecution Waiver’’, 21 August 2012.

77 See supra, para. 107.