The Loophole That Saved Gotovina: What From His Appeal Could Help the KLA Four?

After the verdict of the Kosovo Specialist Chambers against the four former leaders of the Kosovo Liberation Army, attention in Kosovo has returned to the case of Croatian general Ante Gotovina and how a guilty verdict was overturned on appeal.

More than a decade after being acquitted by the Hague Tribunal, Gotovina’s case is being recalled as an example of a significant change to a judicial decision at the appeal stage. However, experts caution that the two cases have significant legal and factual differences.

Gotovina had been sentenced at first instance to 24 years in prison, while in 2012 the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia overturned the decision and released him.

One of the key elements of the defense’s battle in that case was the so-called “200-meter standard”, used by the first-instance court in assessing artillery attacks during Operation “Storm” in 1995.

Payam Akhavan, who had been part of Gotovina’s defense team, explained to Radio Free Europe how this element influenced the overturning of the first-instance reasoning.

“It was precisely that wrong premise that became the basis of the entire theory of the joint criminal enterprise. But the whole case was like a house of cards, and as soon as the 200-meter card was removed, the whole structure collapsed,” Akhavan said.

This approach led to the overturning of the sentences against Gotovina and General Mladen Markač, making the appeal process one of the well-known examples of a first-instance verdict being changed at the Hague Tribunal.

The differences between the Gotovina case and that of the former KLA leaders

However, the parallel between the two cases has its limits. Legal and military experts stress that the issues examined in the Gotovina trial differ from those that are the subject of the verdict against Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selimi.

Jeffery H. Corn, a military expert engaged in the Gotovina case, told Radio Free Europe that the main difference relates to the nature of the responsibility examined in the two trials.

“In the Gotovina case, the issue was not whether he bore responsibility for the actions of his subordinates — as a commander, that was taken for granted. The issue was whether their actions constituted violations of the law. With Thaçi it is different: it is not contested that KLA members committed violations of international humanitarian law. The question is whether Thaçi bears responsibility for those violations,” Corn stated.

According to the experts, the experience of the Gotovina case cannot be mechanically copied onto the trial of the former KLA leaders. However, one of the lessons that can be drawn from that case is the importance of carefully examining the reasoning of the first-instance court and identifying possible factual or legal errors.

Support sought for the defense teams

At this stage, the work of the defense teams and the arguments to be presented in the appeal proceedings are expected to be of particular importance.

Lawyer Tomislav Kuzmanović, who had been part of Mladen Markač’s defense team, told Radio Free Europe that the teams must have sufficient support for preparing the appeal.

“In my opinion it is very important that they have strong teams for the appeal and sufficient support. I believe Kosovo has allocated considerable resources to the defense teams. This support must continue and even increase, so that they have a real chance on appeal,” Kuzmanović stated.

Kosovo’s institutions have also declared that they will continue supporting the defense teams during the appeal phase.

Prime Minister Albin Kurti has said the Government will offer support to the former KLA leaders in the further proceedings.

“The Government of the Republic of Kosovo is committed to offering support in every way and with all means at its disposal, with the aim of correcting the verdict of the Specialist Chambers against the former KLA leaders, which is legally and morally unjust, and historically and factually inaccurate,” Kurti declared.

The four former KLA leaders were sentenced on September 16 by the Specialist Chambers to a total of 81 years in prison: Hashim Thaçi and Jakup Krasniqi to 25 years each, Kadri Veseli to 18 years and Rexhep Selimi to 13 years.

The decision is first-instance, and appeal proceedings are expected to follow.

Gotovina’s case remains one of the important examples of how a first-instance verdict can be reviewed and changed on appeal. However, the outcome of such a process depends on the arguments, evidence and legal interpretation presented before the appeals panel.

As Akhavan told Radio Free Europe, in the context of the appeal process, “the game is not over yet”.