## Facts

- An armed conflict arose between the Croatian government and a Serbian group seeking to separate the Krajina area from Croatia and establish a Serbian republic.
- During the conflict, Ante Gotovina was a senior Croatian Army commander, and Markač (identified in ICTY materials as Mladen Markač) commanded Croatia’s special police forces.
- Gotovina and Markač worked together during Operation Storm (August 1995), a Croatian operation to retake Krajina.
- Witnesses described a meeting at which participants discussed removing Serbs from Krajina, including civilians, as one of the operation’s objectives.
- During the operation, Croatian forces repeatedly shelled four towns in Krajina. Many shells landed more than 200 meters from asserted military targets, and some landed more than 400 meters away.
- Croatian forces also attacked an apartment building where the Serbian leader Milan Martić was believed to be located; civilians were present in and around the building, raising allegations of excessive civilian risk.
- The ICTY Prosecutor charged that the operation involved an indiscriminate, ethnically motivated attack on Serb civilians and that the shelling and other conduct formed part of a plan to force Serb civilians to leave.
- At trial, witnesses gave differing evidence about the artillery’s accuracy. The Trial Chamber evaluated that evidence and determined a 200‑meter “error margin,” then treated impacts beyond 200 meters from a military target as evidence the fire was not aimed at military objectives and was instead indiscriminate.
- Relying on the shelling findings together with other evidence (including statements about goals, artillery reporting, and acceptance of civilian harm in efforts to strike Martić), the Trial Chamber convicted Gotovina and Markač of war crimes and related offenses, including through a joint criminal enterprise (JCE) theory.
- Both men appealed to the ICTY Appeals Chamber.

## Issues

1. Whether the Trial Chamber erred in assessing the lawfulness of the artillery attacks on the four towns, including by inferring indiscriminate or civilian-directed attacks from shell-impact locations.
2. Whether the Trial Chamber’s “200‑metre” approach to distinguishing lawful from unlawful artillery impacts had a sufficient evidentiary and legal basis.
3. If the shelling findings were unsound, whether the remaining evidence still proved beyond reasonable doubt that a JCE existed to permanently remove Serb civilians from Krajina, and that Gotovina and Markač participated in it.
4. Whether, independent of the JCE theory, the record supported liability based on other modes of responsibility tied to the shelling and related crimes.

## Decision

- The Appeals Chamber (majority) allowed the appeals, reversed the convictions, and entered acquittals for both Gotovina and Markač.
- It found the Trial Chamber’s 200‑metre standard was not adequately justified as a method to determine whether artillery fire was unlawful and could not reliably support an inference that impacts beyond 200 meters reflected indiscriminate or civilian-targeted attacks.
- Without the 200‑metre standard, the Appeals Chamber concluded the evidence did not establish beyond reasonable doubt that the artillery attacks on the towns were unlawful.
- Because the Trial Chamber used the shelling findings as a main basis for inferring a common criminal purpose and the accused’s participation, the Appeals Chamber held the JCE findings and related convictions could not stand.
- The Appeals Chamber ordered the immediate release of both accused.

## Legal Principles

- Findings that attacks were unlawful must be supported by reasoned analysis and evidence; a numerical distance cutoff for shell impacts requires a demonstrated factual basis and a clear explanation of how it distinguishes lawful from unlawful fire.
- Criminal liability must be proved beyond reasonable doubt; where a trial finding rests on a method not supported by the record, resulting inferences about intent and unlawfulness may be set aside on appeal.
- JCE liability requires proof of a common criminal purpose and the accused’s participation; if the trial court’s main factual basis for inferring that common purpose fails, the JCE conviction cannot be maintained.
- Appellate intervention is warranted where a trial chamber’s approach to key evidence produces unreliable findings on elements required for conviction.

## Conclusion

In *Prosecutor v. Ante Gotovina & Markač*, the ICTY Appeals Chamber reversed the Trial Chamber’s war-crimes convictions arising from Operation Storm because the Trial Chamber’s 200‑metre shell-impact rule lacked sufficient justification and could not support findings of unlawful shelling beyond reasonable doubt; once those findings were removed, the prosecution’s case for a joint criminal enterprise and related individual liability was not proved, and both accused were acquitted and released.


Prosecutor v. Ante Gotovina & Ivan Markač, Case No. IT-06-90-A (2012)