Comment 19 Apr 11

Comment: Gotovina Judgement and the Politics of International Justice

The General’s conviction on basis of Operation Storm as a Joint Criminal Enterprise begs the question - among others - of why Storm’s high-ranking US sponsors were not even mentioned in the verdict.

by Matthew Parish

Operation Storm, the August 1995 Croatian offensive to liberate Krajina from Serb control, lasted less than four days and resulted in a complete victory for Croatia.

It involved the expulsion of Serb armed forces from over 10,000 square kilometres of Croatian territory, the deaths of between 1,600 and 2,200 people, of whom between 500 and 1,200 were civilians, and the creation of between 90,000 and 250,000 Serb refugees.

On 15 April, 2011, the International Criminal Tribunal for Yugoslavia, ICTY, declared these events a war crime and sentenced two Croatian military leaders, Ante Gotovina and Mladen Markac, to extensive prison terms. A third defendant, Ivan Cermak, was acquitted.

The legal theory on which the defendants were convicted is the now notorious notion of a Joint Criminal Enterprise, JCE. By this legal doctrine, a group of people agreed to perform a wartime act, which resulted in crimes being committed.

Therefore, everyone who participated in the agreement or its implementation is guilty of the crimes that occurred.

This result follows irrespective of whether the defendants intended that a crime be committed and irrespective of whether they personally participated in any of the crimes in question. It is a doctrine of collective responsibility.

Thus in the ICTY’s first case, Prosecutor v Dusko Tadic, Tadic was convicted on a JCE theory for the murder of civilians in Jaskici, a village in Bosnia.

As a soldier, he was present in Jaskici at the time some civilians were murdered. But there was no evidence he had participated in the murders in question, knew who had committed them, or had even known that the murders had taken place. No robust domestic Western system of criminal law would uphold such a result.

In the Gotovina case, the Joint Criminal Enterprise identified by the Court began with a meeting with the then Croatian President, Franjo Tudjman, on Brijuni on 31 July 1995, at which Operation Storm was planned.

The decision convicting Messrs Gotovina and Markac is at pains to emphasise the criminal responsibility of President Tudjman. This is a surprising feature of the Court’s judgment, because Tudjman was not on trial, and thus had no opportunity to defend himself.

He died in 1999, before the indictments were raised. While historians might feel justified in criticising Tudjman for his uncompromising nationalist agenda and rhetoric, it is less clear that a Court should do so.

Historians’ analyses are part of the ebb and flow of indefinite scholarly debate, whereas a Court’s decision has institutional legitimacy and procedural finality.

That is why people should not be tried without an opportunity to defend themselves fully. Necessarily, Tudjman did not have that chance.

Less well known about Operation Storm is that the US Government approved it, planned it, trained Croatian forces in preparation for it and provided intelligence, air support and jamming of Serb telecommunications.

The course of events was streamed live to the Pentagon. The US government considered Operation Storm an essential precursor to the November 1995 Dayton negotiations that led to peace in Bosnia.

After the Srebrenica massacre in July 1995, President Bill Clinton considered a comprehensive Serbian military defeat essential to persuade Serbian officials to concede a negotiated resolution to the Bosnian war, and Operation Storm was an important tool to achieve this goal.

No US official was placed on trial for participation in the Joint Criminal Enterprise, or was implicated in the Court’s judgment, even though, unlike Tudjman, virtually all the relevant individuals (apart from Warren Christopher and Richard Holbrooke) are still alive.

Another little-recalled feature of Operation Storm is the participation of some 25,000 Muslim soldiers of the Army of the Republic of Bosnia and Herzegovina, concentrated around the adjacent Bihac pocket of Bosnia.

Their role in the invasion was coordinated by their American allies. Nevertheless, no members of that army were tried, convicted or even mentioned in the Court’s comprehensive 1,377-page judgment.

It is conceivable that they were referred to in the “confidential appendix”, running from page 1,378 onwards, but of this document neither the defendants nor the public have had sight.

Nor was any member of the UN Protection Force implicated by the Court, despite their presence in the buffer region ostensibly for the purpose of preventing precisely the sort of operation Croatia had decided to launch.

Air strikes were not called in to prevent the Croatian army’s advance; no complaint was raised before the UN Security Council about the heavy costs weighed in human blood. The evidence points to Operation Storm being sanctioned in the fullest degree by the international community.

The historical record suggests that Operation Storm was undertaken with callous disregard for the welfare of civilians in the area, virtually all of whom by that time were Serbs.

For that the convicted defendants were undoubtedly morally responsible. Before the Yugoslav wars began, the Krajina area was ethnically mixed; some 80,000 Croats were expelled from the region between August and December 1991.

When the shells began raining indiscriminately down in people’s gardens on 4 August 1995, the cycle of revenge was complete.

The government of the self-declared Republika Srpska Krajina, RSK, disbanded itself the same day and ordered the evacuation of its own citizens.

A number of those who remained were forcibly evicted or murdered; few returned. Fifteen years on, what was the RSK remains depopulated and impoverished.

Yet we should not neglect the possibility that Clinton and his team were right to support this ethically controversial operation.
Perhaps a further 2,000 deaths were a price worth paying to bring ethnic homogeneity and thus political stability to post-war Croatia, and force the Bosnian Serbs to agree to the creation of the now profoundly dysfunctional Dayton Bosnia.

Such a ruthless calculus prevailed in the NATO bombing of Kosovo in 1999, as a result of which several thousand people were killed and tens of thousands of refugees were displaced with a view of achieving ethnic separation between Serbs and Kosovar Albanians.

The subsequent UN administration of Kosovo led to the territory’s independence, much as Operation Storm yielded viable territorial integrity for the contemporary Republic of Croatia.

The modern Balkan nations were forged in war. Where the separation of hostile peoples was complete, as in Croatia and Serbia, a subsequent diplomatic rapprochement has proven imaginable.

Where different ethnic groups remain held unhappily together, as in Bosnia and Kosovo, political turmoil and instability have prevailed. If this is the lesson of the Balkan conflicts, it is an unhappy portent of human nature.

Have the ICTY prosecutions over Operation Storm led to ethnic reconciliation? This seems unlikely. Gotovina’s heroic stature in Croatian folklore appears cemented by his conviction, as the tens of thousands of demonstrators in his favour across Croatia in the short period since the pronouncement of his guilt have illustrated.

Taking into account the time he has already served awaiting trial, and the Hague Tribunal’s rules for early release, Gotovina may be released in 2021, when he is 65.

A convicted war criminal, duly embittered by an extended period of incarceration and abandonment by his former US allies, might turn out to be a future president of the EU’s next accession state.

In the long run, his reputation amongst his own people may emerge as immeasurably higher than that of the Tribunal that convicted him. We should remember this over the careless platitudes of those who pretend that international criminal courts heal the wounds of ethnic civil war.

Matthew Parish was formerly the Chief Legal Adviser to the International Supervisor of Brcko. He is a regular commentator on Balkan current affairs. His first book, ‘A Free City in the Balkans: Reconstructing a Divided Society in Bosnia’, is published by I.B. Tauris. His second book, ‘Mirages of International Justice: The Elusive Pursuit of a Transnational Legal Order’, is published by Edward Elgar. His third book, ‘Ethnic Civil War and the Promise of Law’, will be published by Edward Elgar in 2012.

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