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But
the attempt to paint Oluja as an ethnic-cleansing operation – indeed
as an ethnic-cleansing operation larger in scale than the Serbian
assaults on Croatia and Bosnia in 1991-1992 – has always been
rightly contested.
Yesterday’s acquittal by the Appeals Chamber of
the International Criminal Tribunal for the former Yugoslavia (ICTY)
of Croatian commanders Ante Gotovina and Mladen Markac for crimes
against Serb civilians between July and September 1995, above all
during ‘Operation Storm’, leaves the victims without justice, but
represents a defeat for long-running attempts in the West to
redistribute guilt from the aggressors to the victims.
Had the ICTY’s prosecution simply sought to
indict, prosecute and punish Croats guilty of atrocities against
Serbs in the period July-September 1995, it would no doubt have been
successful, and the victims would have received at least some
justice. Unfortunately, the prosecution attempted something more: to
write the historical record of the wars of Yugoslav succession, in a
manner that reflected the predominant perception of Western
policy-makers. This perception was that, whereas the Serb side was
responsible for the largest proportion of the crimes and killing,
there was ultimately no fundamental difference in the guilt and
actions of each of the sides during the war; it was merely a
quantitative difference. In her published memoirs, Carla del Ponte,
the Chief Prosecutor of the ICTY at the time when the original
indictment against Gotovina was issued, explicitly equalised the
blame of Serbia’s Slobodan Milosevic and Croatia’s Franjo Tudjman as
the two individuals primarily responsible for the war (Carla del
Ponte and Chuck Sudetic, Madame Prosecutor: Confrontations with
Humanity’s Worst War Criminals and the Culture of Impunity, Other
Press, New York, 2008, pp. 37, 87, 125). Del Ponte was less of an
equaliser than some others, and did at least insist on indicting
some Serb perpetrators for genocide, in the face of resistance from
other senior prosecution staff. But she also became inveigled in
diplomatic and propaganda games with Serbian government ministers,
who put her under pressure to prove that the Tribunal was not
‘anti-Serb’.
Consequently, the ICTY prosecutors pursued a
policy of indictments that would result in judgements that would
support their politics. As I have written before, these indictments
thus disproportionately targeted Croatians, Bosnians and Kosovo
Albanians; the forces of the Serb side were responsible for well
over 80% of the killing of civilians during the whole of the wars of
Yugoslav succession, but their officials made up only 68% of
indictees. Only six officials of Serbia or the rump Yugoslavia, as
opposed to Bosnian Serbs, were ever indicted for war-crimes in
Bosnia. The top Yugoslav military commanders and presidency members
who led the assaults on Croatia and Bosnia in 1991-1992 (Borisav
Jovic, Branko Kostic, Veljko Kadijevic, Blagoje Adzic, Zivota Panic
and others) were never indicted. Conversely, the ICTY prosecutors
indicted such high-ranking and prominent Croatian and Bosnian
officials as former Croatian Army chief of staff Janko Bobetko,
Bosnia’s two most important military commanders Sefer Halilovic and
Rasim Delic, and Bosnian commander in Srebrenica Naser Oric. When
Alija Izetbegovic died in 2003, del Ponte indicated that he might
have faced charges had he lived. Unfortunately for the prosecutors,
however, the courts stubbornly refused to uphold the picture the
prosecution sought to paint: Halilovic and Oric were acquitted, and
Delic was sentenced to a mere three years in prison, after the
prosecution had sought fifteen. Bobetko was already near death when
he was indicted, and died before being extradited.
The sorry story of the Operation Storm indictments
and trials should be seen against this background. In Operation
Storm, the Croatians were not trying to conquer anyone else’s
territory; they were engaged in a defensive operation to free their
own territory from occupation by troops controlled by a foreign
state (Serbia); troops that were engaged at the time in armed
aggression against a neighbouring state (Bosnia) and threatening to
carry out a further genocidal act against its population, following
the genocidal massacre at Srebrenica a month before. As I have
written, Operation Storm was a successful case of genocide
prevention that saved the Muslim population in the Bihac enclave of
north-west Bosnia from experiencing the fate of the people of
Srebrenica. Yet for those seeking to equalise, as much as possible,
the guilt of the sides in the former-Yugoslav war, Operation Storm
had to be presented as a gratuitous act of ethnic-cleansing by Croat
perpetrators against Serb victims – equivalent to the Serb crimes of
1991-1992.
The indictees, Gotovina, Markac and Ivan Cermak
were accused of being part of a ‘Joint Criminal Enterprise’ (JCE)
whose ‘common purpose’ was ‘the permanent removal of the Serb
population from the Krajina region by force, fear or threat of
force, persecution, forced displacement, transfer and deportation,
appropriation and destruction of property or other means.’ This
accusation therefore paralleled the prosecution’s accusations of a
JCE levelled against the top Serbian leadership, whose goals were
‘the permanent removal of a majority of the Croat and other non-Serb
population from a large part of the territory of the Republic of
Croatia’ and ‘the forcible and permanent removal of the majority of
non-Serbs, principally Bosnian Muslims and Bosnian Croats, from
large areas of the Republic of Bosnia and Herzegovina’. But
Operation Storm had not involved the acts previously associated with
ethnic cleansing in the former Yugoslavia: the rounding up of
civilians; their being made to sign away their property to the
authorities; their imprisonment, torture and killing in
concentration camps; their being bussed out of the area. Instead, at
the time of Operation Storm, the Serb authorities themselves
organised and ordered the evacuation of the Serb civilians in the
face of the Croatian offensive; whatever their intentions, the
Croatians never had the chance to organise their removal.
To attribute the exodus of Serb civilians to
Croatian actions therefore required the prosecution to develop a new
model of how ethnic cleansing occurs. The ICTY prosecutors therefore
argued that the Croatians aimed and succeeded in bringing about the
removal of the Serb population from the so-called Krajina by
artillery bombardment. This was already a dubious proposition –
towns in Bosnia had been shelled for years by Serb and Croat forces
without their entire population fleeing overnight. The prosecution
nevertheless argued – and the original ICTY Trial Chamber accepted –
that the exodus of Serb civilians was caused by the bombardment, not
by the orders given by the Krajina Serb authorities to evacuate.
However, attributing the cause of the exodus to the bombardment was
not enough to establish the existence of the JCE, in the absence of
evidence that this had been the intent behind the bombardment. Since
only the most ambiguous support could be found for the thesis in the
statements of the Croatian leadership – above all, the minutes of
the Brioni meeting of 31 July 1995 – the intent had to be deduced
from the character of the Croatian artillery fire, and whether it
appeared accurately to be directed at civilian targets. So the
prosecution argued that the existence of a JCE could be deduced from
the fact that the Croatian artillery had targeted civilian areas in
the so-called Krajina, and that this bombardment succeeded in
bringing about the exodus of the Serb population. But since the
Croatian forces were engaged in a lawful military operation against
enemy armed forces in control of those same civilian centres, the
prosecution had to show that Croatian artillery fire was not simply
a part of those operations. The existence of the JCE therefore stood
or fell on an analysis of the accuracy of Croatian artillery fire.
At The Hague on Friday, it fell like the house of cards it
essentially was. Most of the judgement of the Appeals Chamber
consists, somewhat surreally, of a lengthy analysis of Croatian
artillery fire.
ICTY prosecutors have long demonstrated a confused
understanding of the wars in the former Yugoslavia. Their
indictments have tended to target ‘famous names’ and acts people in
the West had heard of; hence the notorious Zeljko Raznatovic Arkan
and Vojislav Seselj were indicted, instead of Serbian leaders less
well known in the West, but whose responsibility for crimes was much
greater. The accusation that the Croatian bombardment of Knin, the
capital of the ‘Republic of Serb Krajina’, was a ‘war crime’
originated with the arch-appeaser Carl Bildt, who was the EU’s
special envoy for the former Yugoslavia at the time of Operation
Storm. It was made in the context of an EU strategy that opposed any
military action against Serb forces – either on the part of the
international community, or on the part of the Croatians and
Bosnians – and that sought instead to achieve peace in the former
Yugoslavia through collaboration with the regimes in Belgrade and
Pale. Bildt’s loud condemnation, at the time, of the Croatian
bombardment of Knin, and his suggestion that it was a war-crime for
which Tudjman himself should be held responsible, may have stuck in
the minds of ICTY investigators as they considered how to pick
Croatians to indict. Yet Knin had suffered minimal damage and
civilian casualties as a result of the bombardment, made in the
course of a legitimate military operation to recapture the town.
This was in stark contrast to Vukovar, which was wholly destroyed by
Serbian forces in 1991, and for whose destruction nobody was
indicted by the ICTY (though some were indicted for atrocities
carried out against the patients at Vukovar Hospital after the town
fell).
Seventeen years later, Bildt’s red herring
regarding the bombardment of Knin has met its ignominious demise.
Since the Appeals Chamber ruled that the existence of a JCE could
not be deduced from the pattern of Croatian artillery fire, the
central premise of the prosecution’s case was thrown out. And since
Gotovina and Markac had been selected for indictment on the basis of
this premise, the rest of the case against them collapsed with it:
the Appeals Chamber ruled that they had either attempted to prevent
crimes against Serb civilians and property, or had not had effective
control of those Croatian forces that had committed them. Had the
prosecutors not focused on a supposed JCE, but instead sought to
indict Croatian perpetrators who could actually be definitely linked
to actual killings, they would no doubt have succeeded.
The Appeals Chamber’s verdict has not exonerated
the Croatian side of crimes carried out during and after Operation
Storm; on the contrary, it explicitly refers to crimes against Serb
civilians in its acquittal of Gotovina and Markac. These victims
have not now received justice, and critics are right to point out
that the ICTY has failed them. The failure should be attributed,
however, to the prosecution’s flawed indictment, not to the decision
of the Appeals Chamber.
Not all these critics have been ready to point out
the converse: that long before this verdict, the ICTY had already
failed the victims of Serbia’s aggression and ethnic cleansing
against Croatia. Almost no official from Serbia, Montenegro or the
Yugoslav People’s Army (JNA) has been prosecuted and seriously
punished for crimes against Croatian citizens in 1991-1992. Of the
three relatively minor JNA officers tried over the Vukovar Hospital
massacre, one was acquitted (Miroslav Radic) and one freed after
serving six and a half years in prison (Veselin Sljivancanin), while
only the third received a lengthy punishment of 20 years (Mile
Mrksic). Of those JNA officers or admirals indicted over the
shelling of Dubrovnik, Miodrag Jokic received a seven-year sentence
and was granted early release after three years; Pavle Strugar
received seven and a half years and was released on compassionate
grounds less than a year later; the indictment against Milan Zec was
withdrawn; and Vladimir Kovacevic had his trial transferred to the
Serbian courts. Yugoslav Army Chief of Staff Momcilo Perisic was
sentenced to 27 years – not for his actions in Croatia in 1991-92,
but in part for the rocket attack by the Krajina Serbs on Zagreb in
May 1995. Otherwise, the ICTY’s punishment to date has spared Serbia
and fallen on Croatia’s own ethnic-Serb citizens who collaborated in
the aggression (Milan Babic and Milan Martic). No official of Serbia
or the JNA has so far been convicted over the Serbian conquest and
ethnic cleansing of the so-called Krajina in the first place – the
crime that made Operation Storm necessary.
With the quashing of the Operation Storm
sentences, the ICTY can be accurately said to have failed seriously
to punish the officers on either side in the war between Serbia
(including Montenegro and the JNA) and Croatia of 1990-1995.
Whether, having failed to punish the Serbian officers who occupied
Croatian territory, justice would have been better served had the
ICTY at least succeeded in punishing some of the Croatian officers
who defeated the occupation, is a moot point. |
