Right honourable

Alfons Orie
Judge of the International
Criminal Court for the
Former Yugoslavia Split, 17th April 2011

Your Honour,

Allow me as a professor of law to point out some fundamental errors in

the judgement which your panel delivered on April 15, 2011 in the case of the
Croatian Generals Gotovina, Markač and Čermak.
First, the term you use for the legitimate military campaign of the State of
Croatia to free a part of its state territory occupied by secessionist rebels. You
call this campaign a „joint criminal undertaking (enterprise)“. This appellation is
theoretically wrong and it could have deleterious practical consequences. First
the theoretical side.“Joint criminal undertaking“ (J.C.U.) was not a part of
international customary law at the time when the offences were allegedly
committed with which the accused are charged. As an eminent lawyer, your
Honour, you know the maxim „nullum crimen sine lege, nulla poena sine lege“
(„there is no offence and no punishment unless the law institutes it“). Therefore
in this case the accused are being condemned for committing a crime which, at
the time of its alleged perpetration, was not foreseen by the law. Moreover,
J.C.U. as an offence is contrary to the principle of personal responsibility and
guilt , which is one of the basic principles of modern criminal law, and it comes
very near to „guilt by association“ which is not included in the Statute of your
Court. Charge sheets based on J.C.U. are collective indictments of entire states
and governments which is not within the jurisdiction of your Court. Let me now
indicate, your Honour, the harmful consequences in practice of the use of this
designation. By calling the legitimate action of the Croatian State to liberate the
part of its state territory torn away by force from the rest of the state territory by
the Serbian rebels who intended to incorporate it into a Greater Serbia a „joint
criminal undertaking“ , the judgement insinuates a collective guilt of the entire
Croatian people and elicits sooner or later a retaliation against them. Yet on
August 13, 1995 President Tuđman was publicly praised by the American vice-
president Al Gore for this same Operation Storm, for sparing thereby the
international community and its ineffective UNPROFOR forces the effort to
defend the Bosnian city of Bihać and the so-called „pink zones“, and thereby for
contributing considerably to the success of the American peace initiative on the
territory of the former Yugoslavia. An now, what an irony of history, your
Honour! The Dutch contingent was awarded a medal for doing nothing to
prevent the genocide at Srebrenica, while these Croatian Generals are punished
for preventing a worse massacre which the furious Srbian soldatesque on retreat
would have committed in Bihać.
Taking all this into consideration one can hardly avoid the thought , that
the Court verdict in the case of General Gotovina and General Markač is
politically motivated. Let me mention in this connection the opinion of the well
known Canadian lawyer Christopher Blacke who said of the ICTY that „it is a
shame to the civilized world“.
As a lawyer I am , your Honour, especially saddened by the fact, that by
this and similar verdicts the reputation of international courts of law could be
irreparably tarnished, and that people could think that these courts mete out two
different kinds of justice, one for those whose godfathers are lobbies of the
„mighty“, and another for those who do not have such patrons and who are
treated as international pariahs.
Thanking you for the patience in reading this letter to the end I remain,
your Honour,

faithfully yours,

Prof.Dr. Branimir Lukšić

Sukoišanska 35
21000 Split, Croatia