Gotovina et al Judgement Volume I - ICTY
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Gotovina et al Judgement Volume I - ICTY

Gotovina et al Judgement Volume I - ICTY Gotovina et al Judgement Volume I - ICTY

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39245his direct subordinates dealt only with the procedural adequacy of the measure whencompared with the Code of Military Discipline and not the merits. 409139. A company commander, upon knowledge of a major disciplinary offence beingcommitted by a subordinate in his unit, was required to report the incident to thebattalion commander, who reported to the brigade commander. 410 The brigadecommander would then decide whether to take action himself or to launch aninvestigation. 411 If the brigade commander or battalion commander concluded that theresults of the investigation indicated that a disciplinary offence had been committedthen he could propose, in writing, to the commander of the MD that the matter be dealtwith by a military disciplinary court. 412140. Although the Code of Military Discipline applied equally to active duty andreserve soldiers, Botteri believed that in practice commanders preferred to demobilizereserve soldiers who committed offences rather than start the very complicated and longprocess of disciplinary measures. 413141. When asked about the difference between criminal proceedings before themilitary prosecutor’s office and disciplinary procedures handled internally by the HV,Mladen Bajić, Deputy Military Prosecutor for the Split MD from 1992 to 1996, 414explained that these were two distinct procedures. 415 He stated that military prosecutor’soffices and courts had nothing to do with disciplinary procedures because there wereseparate HV disciplinary prosecutor’s offices and courts established for this specificpurpose. 416 Bajić explained that the decision on whether minor or major disciplinaryinfractions, especially in the HV, would be processed by a disciplinary proceduredepended upon the commander who received notice of the breach. 417142. In a letter of 12 September 1995, Červenko informed Gotovina that as acommander he was personally responsible for the way UNCRO members were treated409 Ljiljana Botteri, T. 10936-10937.410 P1005 (Ljiljana Botteri, witness statement, 20 January 2004), para. 21; Ljiljana Botteri, T. 10970;P1007 (Code of Military Discipline, 25 April 1992), Article 61.411 P1005 (Ljiljana Botteri, witness statement, 20 January 2004), para. 21; Ljiljana Botteri, T. 10970;P1007 (Code of Military Discipline, 25 April 1992), Article 61.412 P1005 (Ljiljana Botteri, witness statement, 20 January 2004), para. 21.413 P1006 (Ljiljana Botteri, witness statement, 8 November 2007), para. 9; D878 (Ljiljana Botteri, witnessstatement, 24 October 2008), para. 10; Ljiljana Botteri, T. 10915.414 D1626 (Mladen Bajić, witness statement, 21 May 2009), para. 2; Mladen Bajić, T. 20731, 20784.415 Mladen Bajić, T. 20735-20736, 20812-20813; P1007 (Croatian Code of Military Discipline, 11 May1992), pp. 2-3, 10.416 Mladen Bajić, T. 20735-20736.70Case No.: IT-06-90-T 15 April 2011 `

39244in the area of responsibility of the Split MD, and was obliged to take all necessaryactions under military regulations to ensure discipline in subordinated units. He furtherinformed Gotovina that such behaviour reflected poorly on the HV, was contrary tostate policy and the views of Croatian leaders, and violated Croatia’s internationalobligations. He added that he would take vigorous and strict measures against all HVcommanders who behaved in an undisciplined way or contrary to orders. 418143. The Trial Chamber is mindful that while on the one hand, members of the VPwere duty-bound to combat crimes committed by the military, on the other hand theywere allegedly involved in committing crimes themselves.144. In relation to Gotovina’s powers vis-à-vis crimes and disciplinary infractionscommitted by units under his command, the Trial Chamber finds that upon learning of acrime or disciplinary infraction, like any other military commander, Gotovina had thepower to initiate relevant proceedings, resulting in the involvement of either the VP andthe military prosecutor (crimes) or the disciplinary prosecutor (major disciplinaryinfractions), or sanction the perpetrator directly (minor disciplinary infractions).Moreover, Gotovina by virtue of his position could also perform regular evaluations ofdecisions on disciplinary measures taken by subordinated commanders and thusperforming his duties as their commander. In relation to non-organic units temporarilyattached to the Split MD, the Trial Chamber acknowledges that there may have beenconfusion or inconsistency about whether the commander of the Split MD or theoriginal unit commander would exercise disciplinary control. In any event, the TrialChamber is satisfied that in order to give effect to the subordination, the Split MDcommander had at least the power to initiate or review temporary disciplinary measures.Based on D1538 and other evidence received, the Trial Chamber further considers thatgeographical absence of the Split MD commander from areas of the Split MD wherecombat operations did not require his presence any further does not per se affect hisobligation to retain control over subordinated units still in those areas.145. In relation to Gotovina’s authority over VP units, the Trial Chamber finds thatthe VP Rules of 1994 (Exhibit P880), which were in force throughout 1995, establisheda system of command and control whereby VP units would be subordinate to a militarycommander for performance of regular VP tasks, under Article 9. This system was also417 Mladen Bajić, T. 20735-20736, 20831-20832.418 D1538 (Letter from General Červenko to Gotovina, 12 September 1995).71Case No.: IT-06-90-T 15 April 2011 `

39245his direct subordinates de<strong>al</strong>t only with the procedur<strong>al</strong> adequacy of the measure whencompared with the Code of Military Discipline and not the merits. 409139. A company commander, upon knowledge of a major disciplinary offence beingcommitted by a subordinate in his unit, was required to report the incident to thebatt<strong>al</strong>ion commander, who reported to the brigade commander. 410 The brigadecommander would then decide wh<strong>et</strong>her to take action himself or to launch aninvestigation. 411 If the brigade commander or batt<strong>al</strong>ion commander concluded that theresults of the investigation indicated that a disciplinary offence had been committedthen he could propose, in writing, to the commander of the MD that the matter be de<strong>al</strong>twith by a military disciplinary court. 412140. Although the Code of Military Discipline applied equ<strong>al</strong>ly to active duty andreserve soldiers, Botteri believed that in practice commanders preferred to demobilizereserve soldiers who committed offences rather than start the very complicated and longprocess of disciplinary measures. 413141. When asked about the difference b<strong>et</strong>ween crimin<strong>al</strong> proceedings before themilitary prosecutor’s office and disciplinary procedures handled intern<strong>al</strong>ly by the HV,Mladen Bajić, Deputy Military Prosecutor for the Split MD from 1992 to 1996, 414explained that these were two distinct procedures. 415 He stated that military prosecutor’soffices and courts had nothing to do with disciplinary procedures because there wereseparate HV disciplinary prosecutor’s offices and courts established for this specificpurpose. 416 Bajić explained that the decision on wh<strong>et</strong>her minor or major disciplinaryinfractions, especi<strong>al</strong>ly in the HV, would be processed by a disciplinary proceduredepended upon the commander who received notice of the breach. 417142. In a l<strong>et</strong>ter of 12 September 1995, Červenko informed <strong>Gotovina</strong> that as acommander he was person<strong>al</strong>ly responsible for the way UNCRO members were treated409 Ljiljana Botteri, T. 10936-10937.410 P1005 (Ljiljana Botteri, witness statement, 20 January 2004), para. 21; Ljiljana Botteri, T. 10970;P1007 (Code of Military Discipline, 25 April 1992), Article 61.411 P1005 (Ljiljana Botteri, witness statement, 20 January 2004), para. 21; Ljiljana Botteri, T. 10970;P1007 (Code of Military Discipline, 25 April 1992), Article 61.412 P1005 (Ljiljana Botteri, witness statement, 20 January 2004), para. 21.413 P1006 (Ljiljana Botteri, witness statement, 8 November 2007), para. 9; D878 (Ljiljana Botteri, witnessstatement, 24 October 2008), para. 10; Ljiljana Botteri, T. 10915.414 D1626 (Mladen Bajić, witness statement, 21 May 2009), para. 2; Mladen Bajić, T. 20731, 20784.415 Mladen Bajić, T. 20735-20736, 20812-20813; P1007 (Croatian Code of Military Discipline, 11 May1992), pp. 2-3, 10.416 Mladen Bajić, T. 20735-20736.70Case No.: IT-06-90-T 15 April 2011 `

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