The appeals chamber on 20 July ordered the prosecution to explain by August 10 whether it believes that Markac and another Croatian general, Ante Gotovina, might be held responsible on the basis of superior responsibility or as aiders and abettors in the event that they are not found liable for unlawful artillery attacks or are not found to be members of the JCE.
If the trial chamber erred in finding Markac liable for unlawful artillery attacks or as a member of the JCE, the appeals chamber should still find him liable for persecutions, deportation, murder, wanton destruction and plunder, the prosecution said in the brief.
As in Gotovina's case, the prosecution holds that Markac's command failures, such as those made in the investigation into and the prosecution of the perpetrators of the crime in Grubori, should be taken into account in determining the sentence.
"Given the serious nature of the crimes and Markac's role, the Prosecution submits that the same 18-year sentence imposed by the (Trial) Chamber would be warranted," said the brief.
Using the same arguments that the fear instilled by the shelling attack during the 1995 Operation Storm was the primary cause of the flight of more than 20,000 Serb civilians and about the criminal intent of Croatia's state and military leadership to force the Serb population out, the prosecution said Markac "knew that the intent behind the attack was to force the Serbs out, that the crimes of deportation and prosecution would probably occur and that his acts would assist the commission of those crimes."
"Nonetheless, Markac participated in planning the shelling attack and specifically ordered the attack on Gracac," the prosecution said, adding that Markac's actions had a substantial effect on the crimes of deportation and persecutions."
"Markac's guilt for aiding and abetting those crimes does not depend on the categorisation of the artillery attacks nor on Markac's membership in the JCE," said the brief.
As for superior responsibility, the prosecution holds that the trial chamber made all the necessary findings regarding Markac's failure to prevent or punish crimes.
The trial chamber last year sentenced Markac to 18 years' imprisonment as a member of the JCE led by former Croatian President Franjo Tudjman, the aim of which to use random artillery attacks to force Serb civilians out of the then occupied parts of Croatia.