Being born, raised and having spent all of my life in a Democracy I accepted the following as given:
1> The right of Ante Gotovina to life, liberty and the pursuit of happiness were inalienable.
2> The duty of the Republic of Croatia was to protect regardless of the cost, his life, his liberty and his right to pursue his own happiness by whatever means he chooses.
3> The obligation of each and every citizen of the Republic was to shoulder any burden and bear any hardship required to protect the inalienable human rights of any fellow Croat.
4> Croatia had signed a treaty pledging full cooperation with the ICTY.
I arrived at the conclusion that the only basis of compliance to honour its treaty obligation with the ICTY would occur if the Office of The Prosecutor had issued a lawful order. One that was within its competence and jurisdictional authority. Basically unless the OTP could demonstrate that it crossed a legal threshold of sufficient evidence that a indictable offense by the accused individual had taken place, Croatia was under no obligation to hand Ante Gotovina over to the ICTY.
One of the charges that were filed against Ante Gotovina was that "acting individually and/or through [his] participation in the joint criminal enterprise, planned, instigated, ordered, committed, and/or aided and abetted the planning, preparation, and/or execution of"
- Murder - one count of a violation of the laws or customs of war
The threshold that the Office of The Prosecutor had to be able to demonstrate that they crossed was the Medina Standard. If they could demonstrate with evidence that this standard was violated, Croatia would have been obligated to turn Ante Gotovina to the ICTY.
Under the rules of war as exercised by the United States the notion of Command Authority is expressed by the Medina Standard. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. This standard was established during the trial of Captain Earnest Medina of the US Army for his alleged role in the Mai Lai Massacre. Captain Medina was acquitted of all charges.
The reason for applying the Medina Standard to any actions taken by the Republic of Croatia to restore it's Internationally Recognized Borders as a Sovereign State is because the Croatian officer corps at the ground operational level, Lieutenant (platoon leader) to Lieutenant Colonel (battalion commander) was trained by an American defense contractor Military Professional Resources Incorporated. Acting with the approval of the United States Government, MRPI was to train the Croatian military to conduct combined arms maneuvers against operational centres of gravity. Use coordinated artillery, Armour, infantry attacks at key components of the adversaries defensive infrastructure to achieve a quick decisive victory and minimize civilian casualties. Modern American blitzkrieg warfare.
Now a backgrounder on the Mai Lai Massacre. On March 16, 1968 the three platoons of Charlie Company, of 1st Battalion, 20th Infantry Regiment, 11th Brigade entered the village of Son My. The village was comprised of two hamlets My Lai & Son My. The 1st platoon headed by second Lieutenant William Calley went berserk. Between 374 to 504 unarmed Vietnamese civilians were killed in the action. The operational commander Captain Earnest Medina was charged with murder of up to 100 Vietnamese civilians by virtue of an alleged failure to exercise Command Authority over Lieutenant Calley's platoon.
In the case against Captain Earnest Medina in his court martial proceedings, the prosecution alleged that:
Informed his men that any of the residents in Son My Village might be Viet Cong or sympathizers. This caused many of the men in his company to believe they would find only armed enemy in the hamlets and directly contributed to the killing of noncombatants which followed.
Planned, ordered, and supervised the execution by his company of an unlawful operation against inhabited hamlets in Son My Village, which included the destruction of houses by burning, killing of livestock, and the destruction of crops and other foodstuffs, and the closing of wells; and impliedly directed the killing of any persons found there.
Actively suppressed information concerning the killing of noncombatants in Son My Village.
The defense position was that Captain Earnest Medina that did not become aware that his troops were out of control until it was too late.
The key question in the trial of Captain Earnest Medina. Did Captain Medina issue an order to cease all actions when he was aware that crimes were taking place, and when the order to cease fire was issued did the troops under his command obey him? The prosecution had to prove beyond a reasonable doubt that this was not the case. The prosecution could not meet the threshold and Captain Medina was acquitted of all charges.
Now for a quick primer on the operational structure of the Croatian Military during Operation Storm based upon units size.
The Platoon – The smallest unit commanded by a commissioned officer either a second or first Lieutenant. Made up of 20 to 40 soldiers comprised of 2 to 4 squads each headed by a Sergent or master corporal.
The Company – Comprised of three to five platoons and commanded by a Captain. Combat strength 70 to 200 troops.
The Battalion – Comprised of three to five companies, commanded by a Lieutenant Colonel. Combat strength 200 to 1000 troops.
The Regiment – Comprised of 2 to 3 Battalions, commanded by a Colonel assisted by a Major. Combat strength 2,000 to 3,000 troops.
Brigade – Comprised of 2 to 3 regiments, or if the forces are not deployed on the regimental basis, 4 to 9 battalions, commanded by a Brigadier General. Combat strength 4,000 to 6,000 troops.
Operation Storm – Comprised of the equivalent of 25 Brigades, Commanded by General Ante Gotovina.
President Franjo Tudman – Commander in Chief of the Armed Forces of the Republic of Croatia.
The notion of command hierarchy is that an officer only answers to his direct superior in the command structure he or she is assigned to. A Platoon Leader answers to his Company Commander. A Company Commander answers to his Battalion Commander. A Battalion Commander either answers his Regiment Commander of his Brigadier. The Brigadiers answer to General Gotovina. General Gotovina answers to President Franjo Tudman.
Did any single event remotely approaching the order of the magnitude of the Mai Lai Massacre take place during Operation Storm take place? No, according to the Croatian Helsinki Committee, 122 Serbian Civilians were allegedly murdered by all Croatian Forces during Operation Storm. Assuming that the largest instance of the killings of Serb civilians was exercised at the platoon level, the highest ranking officer that could be charged with murder using the Medina Standard for Command Authority is a Captain.
Had a massacre of the order of magnitude of the Skabrnje Massacre (85 dead) carried out at Company Strength taken place, the highest ranking Croatian Officer that could possibly be charged with murder for failure to exercise Command Authority is a Lieutenant Colonel. No single alleged instance of the killing of Serbian Civilians of anywhere near the order of magnitude of the Skabrnje Massacre ever took place during Operation Storm.
A massacre in the order of magnitude of the Vukovar slaughter where 264 civilians and surrendered soldiers were slaughtered (Battalion strength killing) would under the Medina Standard have resulted in the theoretical charging of a Brigadier General. No single alleged instance of the killing of Serbian Civilians of anywhere near the order of magnitude of the Vukovar Massacre ever took place during Operation Storm.
To issue a lawful order that the Republic of Croatia would be obligated to comply with under it's agreement to cooperate with the ICTY. The Office of The Prosecutor would have to provide evidence that alleged massacre in the order of magnitude of Srebrenica,. a Brigade strength murder had taken place. Or the Office of The Prosecutor would have had to provide evidence that General Gotovina ordered a murder.
Neither of these two scenarios which would constitute a lawful order were presented to the Croatian Government. Under these circumstances, the Croatian Government had a moral responsibility and the Croatian people had a collective obligation to protect the freedom and liberty of one of its citizens, General Ante Gotovina. The only right moral choice was to refuse to cooperate with the ICTY, and the only obligation that existed was that of the citizens of Croatia to protect the freedom and liberty of one of their own, whatever the cost.
An individuals right to freedom and liberty are not for sale.
Yet there I stood looking at Ante Gotovina sitting in a prisoners dock. Too surreal...
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