When the war is over – the Gotovina verdict and confronting the past

All until war crimes committed during the Tudjman-era are confronted and accounted for, Crotia will not be able to say with confidence that, finally, “the war is over”.

Endorse the principles of conflict transformation!

By James McDonald

Two days after the ICTY acquitted Generals Ante Gotovina and Mladen Markač of war crimes and crimes against humanity, the cartoonist Korax published a commentary in Danas. His cartoon showed Ante Pavelić, Adolf Hitler and Franjo Tudjman watching the verdict live on TV in Hell. With outstretched arms, they appeared to be asking: “What about us?” Korax’s point was obvious: without an honest accounting for the past and justice for victims there could be no meaningful reconciliation between the peoples of the former Yugoslavia.

It is sometimes argued that one of the unwritten aims of the ICTY is to promote peace and reconciliation in the region through holding individuals responsible for war crimes to account. If this is true, then it has clearly failed. This verdict, in particular, has damaged relations with Serbia and dismayed Croatia’s Serb minority. The euphoric celebrations in Zagreb, meanwhile, have harmed Croatia’s reputation. The political scientist Roland Kostić has demonstrated the way in which transitional justice in the former Yugoslavia has often impeded reconciliation and empowered local nationalist leaders: as a result, national public opinion in each republic has tended to view the ICTY positively only insofar as its verdicts have supported their own discourse on the conflicts of the 1990s. Not surprisingly, the ICTY verdict has widened divisions between Serbian and Croatian interpretations of the war not only because it absolved Gotovina and Markač of individual involvement in a joint criminal enterprise to expel Serbs from Croatia, but also because in finding that there was no joint criminal enterprise at all, it exonerated the very Croatian state which had facilitated that expulsion too. The ICTY verdict judged that even the preparations for deportations discussed in the Brioni transcripts was not evidence of a joint criminal enterprise to forcibly deport Serbs, but a legitimate action to help civilians leave an area of conflict and reduce civilian casualties. This led one of the two dissenting judges Augusto Pocar to call the interpretation “simply grotesque,” contradicting “any sense of justice.”

It also contradicted the conclusions of a number of senior witnesses at the original trial. Peter Galbraith, the US ambassador to Croatia in 1995, for example, testified that president of Croatia Franjo Tudjman had sought a “homogeneous” Croatia, perceiving the Serbs as “too numerous and a strategic threat to the state.” According to a US Embassy cable of 31 August 1995, guarantees of human rights for Serbs were for “propaganda purposes.” Indeed, at a rally of 26 August 1995 in Knin Tudjman stated that never again would Knin “go back to what it was before when [the Serbs] spread cancer which has been destroying the Croatian national essence.” They had gone for good and “didn’t even have time to collect their rotten money and dirty underwear.” The trial also established how, following the departure of the Serbs, Tudjman and his advisers held meetings to discuss how the area could be “urgently colonised with Croats” so that the Serbs could not return. The Brioni tapes themselves revealed the extent to which both Markač and Gotovina were involved in the central planning for the military attacks to ensure, as Tudjman stated, that the Serbs “for all practical purposes disappear.” As Gotovina observed at the time, only “those who have to stay, those who have no possibility of leaving” would remain.

When he returned to Zagreb from The Hague, Markač confidently predicted that “in the future every Croatian, wherever he is in the world, will be able to say that we have a Croatian homeland and are liberated from any stain.” Legal scholars, as well as much of the international media, disagreed. Tara McCormack, for one, pointed to the inconsistency of the verdict, not the least the fact that part of the reasoning given for Gotovina’s acquittal – that he had not been there at the time the alleged crimes were committed, that he was not aware of crimes having been committed and had ordered that civilians were not to be harmed – constituted the very same legal reasoning by which both Radoslav Krstić in the case of Srebrenica and Veselin Šljivančanin in the case of Vukovar were found guilty.

In the European press, the verdict was widely interpreted not as an exoneration of the defendants but as an injustice to the victims. The Swiss Neue Zürcher Zeitung argued that the verdict had “buried the credibility” of the ICTY, lamenting that no one would now be brought to justice while Der Spiegel viewed the verdict as legitimising the entire Tudjman era. A number of commentators also argued that the verdict demonstrated bias which would do little to promote reconciliation. David Harland of the Center for Humanitarian Dialogue accused the ICTY of “selective justice” while Marie Dhumeres noted that, although tribunals “don’t erase history,” the “recognition of suffering, justice and punishment of those responsible definitely helps rehabilitation.”

As Dhumeres pointed out, the verdict undid over a decade of advocacy by human rights campaigners in Serbia to increase public confidence in the work of the tribunal and persuade ordinary Serbians that the ICTY was not anti-Serb despite the constant assertions to the contrary by Serb nationalists. In the aftermath of Gotovina and Markač’s acquittals, there was a powerful sense of disillusionment even among veteran human rights activists such as Nataša Kandić of the Humanitarian Law Centre, something which the recent acquittal of Momčilo Perišić has done little to dissipate. Understandably, of course, the reaction in Croatia was completely different. For the president Ivo Josipović Operation Storm and the release of the generals was “our common victory,” bringing to an end “the dream of a Greater Serbia.” He conceded that “crimes were committed during Operation Storm” by “specific individuals,” promising that Croatia would “fulfil its legal and moral duty to the victims by ensuring that those responsible for the crimes were brought to justice.” However, he also added that the numbers of those who had been killed during Operation Storm had been “greatly exaggerated” for “political reasons.” This does not suggest a readiness to confront the past.

Indeed, at his reception honouring the generals, Josipović made it clear that the verdict exonerated not just the generals but the state itself. Praising them for being “warriors in war and victims in peace,” the ICTY verdict demonstrated, he said, that “right and justice had prevailed,” that “there was no joint criminal enterprise which had as its aim the persecution of our fellow citizens of Serb nationality” and that Croatia “did not carry out ethnic cleansing.” Reinforcing the way in which transitional justice has often been framed to serve the interests of nationalist sentiment, he added that the verdict had strengthened his “faith in international law and justice,” serving as a kind of “symbolic restitution” to all the victims of Vukovar. Likewise, the Prime Minister Zoran Milanović stated that “justice” had prevailed over “injustice” and “truth” over “lies” while promising that, as the state bore responsibility for crimes committed against Serb civilians, it would “fulfil its obligation for justice.” How this was meant to happen was not clear, given that, as human rights lawyer Ante Nobilo pointed out, Croatia had had seventeen years to prosecute war crimes associated with Operation Storm and had failed to do so. The recent decision by the Croatian Chief Prosecutor to return war crimes indictments by his Serbian counterpart against a number of prominent Croatian politicians and military figures does not indicate that this is situation is likely to change soon.

How widely nationalist interpretations of Croatia’s war and concepts of transitional justice are shared across the political spectrum was demonstrated by the comments of Žarko Puhovski, a Zagreb University professor and noted liberal commentator. He wrote that the verdict demonstrated that “Serbia has finally been defeated” while highlighting the “injustice” of the original verdict. Although he conceded that the “national euphoria” might lead some to forget crimes were committed in 1995, it had, nonetheless, released “positive emotions” in Croatia, increasing national self confidence, support for western institutions and leaving it “unburdened” as it enters the European Union. This was indicated by the fact that many of those who came to greet Gotovina and Markač at Ban Jelačić Square were saying: “The war is finally over.”

Whether a society which has not yet confronted the crimes of the past can meaningfully embrace western norms was a question which Puhovski did not address. It was left to the Youth Initiative for Human Rights to remind a euphoric nation that the ICTY decision might represent not just a defeat for Serbia, as Puhovski had asserted, but also for the victims of Operation Storm, human rights and, ultimately, Croatia itself. YIHR argued that those individuals who had committed crimes against Serb civilians had enjoyed “systematic impunity” while the victims “are without justice or recognition.” They also sharply criticised the ICTY view that there was no joint criminal enterprise, pointing out that the totality of evidence – including not only the minutes of the Brioni meeting and widespread nature of the crimes, but also the laws which aimed at preventing Serbs from returning – suggested that the crimes had a premeditated and systematic nature. Far from absolving the Croatian state of involvement in a joint criminal enterprise, then, the failure to prosecute those responsible would “irreversibly confirm the existence of a discriminatory system” and mean that “a stigma from these crimes” would “permanently remain over Croatia.” In order to prevent the collectivisation of guilt for crimes committed during the Tudjman era, YIHR called on the judiciary not only to prosecute the perpetrators of these crimes, but also “establish the command responsibility of those who allowed the situation in which these crimes were committed.”

Such a process would involve re-examining not just the culpability of Gotovina and Markač, now raised to the status of “national heroes” and “martyrs,” but the entire Croatian state under Tudjman. There is little indication that the Croatian state is ready for this. On the contrary, some commentators such as Slobodan Lang publicly called for a return to the right-wing values of the Tudjman era. While Croatian official discourse sticks firmly to the view that the “homeland war” was entirely just and defensive, the role which Tudjman’s administration played in provoking distrust, fear and, ultimately, war has been forgotten or ignored. The claims of Josip Boljkovac, Tudjman’s former chief of police, that the state had deliberately attacked Serbs in order to provoke conflict and, that, “according to Tudjman’s concept, the Serbs had to disappear from Croatia,” caused shock precisely because it struck at the core of this mythology. Subsequently, Boljkovac was indicted by prosecutors for crimes he had allegedly committed during the Second World War as a Partisan fighter.

While there have been some recent positive developments in the human rights of the Serb minority – for example, the introduction of a law granting the Cyrillic script an equal status with Latin in areas where Serbs constitute a third of the population or more – the state has demonstrated little willingness to investigate or prosecute those responsible for committing war crimes and crimes against humanity against Serbs, as Amnesty International has detailed in a number of reports. In fact, according to Ante Nobilo, the fact the Gotovina case went to the ICTY was a direct consequence of the culture of impunity which still exists in Croatia. Meanwhile, Amnesty International has detailed the way in which war crimes indictments in Croatia have overwhelmingly targeted ethnic Serbs as a means of putting pressure on the Serb community and discouraging Serb refugees from returning. Most recently, the government levied fines against Serb returnees for the non-use of reclaimed properties even in cases where this non-use was caused by experience or fears of ethnically-motivated violence, harassment or vandalism. It also decided that Serb refugees who had not returned to Croatia in the past ten years would lose their right to a Croatian passport, thus effectively preventing them from returning permanently to Croatia or reclaiming property.

Since Croatia is scheduled to join the EU in July 2013, the challenges Croatian politicians and the judiciary face in confronting war crimes committed during the Tudjman-era are all the more pressing. But confronting and accounting for them is unavoidable irrespective of the ICTY verdict not just for the victims but also because, until it does, Croatia will not be able to say with confidence that, finally, “the war is over.”

James McDonald is a UK-based international research analyst, with a specialist interest in the Balkans.

What are the principles of conflict transformation?

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24 Responses

  1. Rufin

    Excellent work, Mr. McDonald! A minor correction, though: in the second paragraph, the name of the dissenting judge who categorized the Appeals Chamber verdict as “simply grotesque” is Fausto Pocar (not Augusto Pocar, as mistakenly appears in the text).

  2. Mirel

    If Hague would have jailed general Gotovina, and the Nuremberg trial should have done the same for Dwight Eisenhower and Georgy Zhukov along with Nazis.

    Gotovina just protected his country and his army didnt go to Belgrade.On the other side serbian army was attacking Croatia by shelling Dubrovnik.
    It is because of the Storm,that Croatia today is a stable country not like Bosnia.

    Gotovina is a hero and Croatia should be proud of him.

  3. Pingback : When the war is over – the Gotovina verdict and confronting the past

  4. Darko Peric

    It seems that Mr. McDonald still wants Croatia punished for having liberated itself and for having spoiled British foreign policy objectives in the region. This is why the truth that came out during the appeals process holds no interest for him, much less the flimsy charges directed at generals Gotovina and Markac.

  5. PEN

    It is stretching credulity to the point of farce to expect any reasonable person to believe that Markac and Gotovina were unaware of the atrocities being committed by their subordinates. The entire Croatian leadership were complicit in the ethnic cleansing, murder, and expulsion that took place in August 1995 and prior to that the pogrom in the Medak pocket which was a precursor to operation storm. The expulsion of the Serbian population was planned from the very outset by a leadership not very far removed in mentality from that which ruled in 1941. The triumphalism and extreme right sentiment manifest in large segments of the Croatian population is quite frankly repugnant. Furthermore the release of war criminals such as Naser Oric and Ramush Haradinaj only serves to reinforce the perception that Serbian victims of that war don’t matter. Punishing one side in a vindictive and humiliating way does nothing to foster reconciliation.

    1. Darko Peric

      As came out during the process, the Serbs of RSK cleansed themselves as per the order of their leadership. Any war crimes that occurred happened after command leadership passed out of Gotovina’s hands as his units were already in BiH per the Washington Agreement.

      Facts are facts and no amount of whining will change this.

  6. PEN

    The Serbs of RSK had no intention of leaving themselves to the tender mercies of the Croatian army. Tudjman saw conflict as an ideal opportunity to finish off what his countrymen began in 1941. Milosevic decided to abandon them to their fate. They knew they would be no match for an American trained and logistically supported Croat forces. I pity those who crow in a triumphalist manner at the expulsion of a largely civilian population. The wanton destruction, pillage, and systematic murder of helpless villagers speaks for itself. Croatian courts have absolutely no intention of prosecuting Croatian war criminals. Joining the EU will not expunge crimes committed and resolutely denied.
    Facts are facts after all.

  7. Lt Rinas

    As Serbian citizen, It is hard to objectively comment Hague’s recent decision. Anyway, this case, especially having in mind Vojislav Seselj, who is there for 10 yrs without any sentence, in the Serbs’ point of view, indicates the standards of this court, i.e. standards of international community. Also, with this Court’s outcome, Croatia got the abolition for the deeds in WWII as Independent State of Croatia, proclaimed Serbs as disturbing factor in Croatia, and justified the Serbs’ exodus in 1995. i.e. denied Srebs’ right to exist in Croatia. Claims that they left Croatia by they own will are not based in law. 250.000 persons left their places of residence by force, and nobody is responsible?! Serbia was bombed from similar reason for 78 days, even exodus started AFTER the beginning of bombing.

  8. Americro

    QUOTE “Not surprisingly, the ICTY verdict has widened divisions between Serbian and Croatian interpretations of the war not only because it absolved Gotovina and Markač of individual involvement in a joint criminal enterprise to expel Serbs from Croatia, but also because in finding that there was no joint criminal enterprise at all, it exonerated the very Croatian state which had facilitated that expulsion too.” ENDQUOTE

    No mention of the fact that the current Serbian government is nationalist, more nationalist than the natioanlist governments that preceded it save Milosevic’s, and that Serbia’s propaganda war is premised on a) Fables about “revenge” for WWII and b) Distributing and equating guilt.

    The problem with this argument of the author is that there was, as the mountain of evidence at the trial showed, and as the judges ruled, no “joint criminal enterprise” and no “ethnic cleansing” or “expulsion” or “deportation” of Serbs, but rather, a pre-planned, pre-rehearsed (http://www.youtube.com/watch?v=q_hJcjIYSBg), organized military-police-civilian ethnic Serbian withdrawal that the then “Krajina” Secretary, the still unindicted war criminal Savo Strbac (who with direct personal and party financing from Milosevic and his party, as well as ultra-nationalist Serb diaspora organizations and the Serbian government), who was a Martic, Babic, Hadzic, Simatovic, Mrksic, Milosevic, and Stanisic Joint Criminal Enterprise participant, defended on RS television while the operation was still ongoing (http://www.youtube.com/watch?v=qSRXAYeSo3M – with English subtitles).

    There was only a pre-planned, pre-rehearsed, orderly withdrawal that was ordered by the top “Krajina” war criminal leadership, namely “President” Mile Martic and the VJ-RSK General Mile Mrksic on August 4, 1995.

    QUOTE: The ICTY verdict judged that even the preparations for deportations discussed in the Brioni transcripts was not evidence of a joint criminal enterprise to forcibly deport Serbs, but a legitimate action to help civilians leave an area of conflict and reduce civilian casualties. This led one of the two dissenting judges Augusto Pocar to call the interpretation “simply grotesque,” contradicting “any sense of justice.”
    ENDQUOTE

    Yet again, the author ignores the majority opinion – and the fact that the Briuni Transcripts were repeatedly and sinisterly misquoted.

    The misquoted Briuni Transcripts were the other “smoking gun” (the first “smoking gun,” introduced by the prosecution, was a shabbily edited Yugoslav Army Counterintelligence video – that was proven to be such in the proceeding as it was a “gift” to the secret witness, who provided it to the prosecution which he was closely working with from the summer of 1993, putting the ICTY Office of the Prosecutor in a blatant, and continuing conflict of interest: http://www.youtube.com/watch?v=_cuefdyuyFA) that demonstrated the Prosectuion’s own direct, dishonest and quite frankly, sinister, Stalinist manipulation of the facts.

    Here is the entire context of the infamous Prosecution misquoted half of a sentence (“We must deliver such blows that the Serbs practically disappear…”):

    “Because even our friends worry that Yugoslavia will enter the war entirely, and with Yugoslavia, Russia, and therefore total war. Therefore, the east [Sector East] we will leave entirely alone, but we will have to solve the south and north. Solve, but by what means? We must deliver such blows that the Serbs practically disappear, meaning that which we do not take must capitulate in a few days. Therefore, the forecasted plan will have to be reconsidered and modified… Therefore, our main task is not Bihac but delivering via multiple directions those blows that Serbian forces cannot recover, but that they must capitulate.”

    What is the conclusion of the paragraph quoted by the Prosecution / conclusion of the misquoted sentence to any honest, objective observer: Tudman stating that the Croatian military’s main task was to deliver multiple blows from multiple directions to ensure that SERBIAN FORCES cannot recover, only capitulate.

    Lets not forget that Milosevic’s own transcripts (that the prosecution frenzily and successfully blocked from being submitted into evidence) that proves, yet again, that the “Krajina” war criminal leadership ordered a full withdrawal and that there was no “expulsion,” “deportation,” or “ethnic cleansing” in Kordun, Banija, Lika and Northern Dalmatia.

    Milosevic’s transcripts from the Supreme Defense Council meeting:

    QUOTE: “I beg of you, 6,000 Croats defended Vukovar for half a year; the entire 1st Army attacked, the air force, a miracle, all the force that the JNA had, and they [Serbs] didn’t defend Knin, which can only be approached from three directions; they couldn’t defend it even 12 hours?

    They did not defend it, because according to all reports that we have received from the police, citiizens and the rest, as soon as the artillery preparations ended at seven in the evening, they ordered – a fleeing! According to this, there was no resistance nor even an armed encounter with Croatian forces. (…) – There came the order that all leave Krajina the same day, even without a single engagement with the Croatian Army on most of the front. If we that same day made the idiotic decision to help them, who would have made it to Knin by the evening to help them?
    And, no one would be able to make it there from their [military] columns that congested all roads in their fleeing together with the population. (…) The question is, indeed, who made the decision that the Krajina leadership leaves the Krajina? That decision,when they had all of the means to defend, caused an exodus. Now that has to be the reason that Yugoslavia rushes there to defend that territory, from which they fled like rabbits?!” ENDQUOTE

    That is, except for in 1990-1991 when 99.5% of all Croats and non-Serbs were violently ethnically cleansed by the JNA and the VRSK it created, trained, armed, supplied, partially manned, and led from Belgrade.

    With that 99.5% of Croats and non-Serbs having their homes, businesses, and churches looted, burned, and or blown up across JNA-VRSK controlled Kordun, Banovina, Lika and Northern Dalmatia – with 10,000 civilians killed (over 300 of them children), 30,000 maimed (over 3,000 of them children), and another 400+ sick and elderly of the 0.5% of non-Serbs that stayed killed by the RSK “police” (http://www.youtube.com/watch?v=DfAJI3CMmLE), VRSK, and local Serbs in front of the UN “impartial peacekeepers” (http://www.youtube.com/watch?v=mAa2nqIjyM4), with neither the “Krajina” or UN authorities bothering to investigate a single one of the over 400 murders of sick and elderly Croats between January 1992 and August 1995 in the “Krajina.

    Croats and non-Serbs ethnically cleansed by the JNA/VRSK were legally barred by the “Krajina” Serbs’ “government” from ever returning.

    The “Krajina” government refused to accept any negotiation that conditioned non-Serb refugees returning the reason why, along with the imminent Srebrenica-style genocide of over 250,000 Bosniaks in the Bihac pocket, and Croatia’s economy near total collapse due to Serbia’s genocidal aggression and five full years of excessive and indiscriminate shelling and rocket attacks against all Croatian hamlets, villages, towns and cities within VRSK-VJ range, why Operation Storm had to be launched.

    Finally, even according to the Prosecution’s own “evidence,” Croatian forces’ projectile fire was 94.5% accurate, and in the entire operation and its aftermath, there were 49 Serb civilians who were killed, with 65% of those killings solved and punished by Croatian authorities (which means Croatia, still then a state in building, had a higher ratio of solving murders than the US national average in terms of Operation Storm and its aftermath, as nearly every civilian death took place AFTER storm and AFTER Markac and Gotovina were in W Bosnia crushing Ratko Mladic and his forces).

    It is interesting to note that, despite endless instructions on the Geneva Convention and the Laws of Land Warfar, Gotovina on video threatening to make his subordinate commanders privates and send them to the fronts if military order, discipline and professionalism was not upheld (http://www.youtube.com/watch?v=1_9qwy5lmcw), and despite over 2,000 courts martial and civilian trials during and immediately after Storm (65% of all of the murders solved) with some cold cases reopened and some of them ongoing, the prosecution – and this article’s author – argue(d) that Gotovina & Markac did not do “enough” to “prevent or prosecute” any misconduct by their subordinates, despite all of the overwhelming evidence to the contrary.

    It would be interesting to see if Mr. McDonald argue for the same “standards” he calls for above to be applied to all JNA, TO, VRSK, VRS, RSK MUP, Serbian MUP, and RS MUP, Operational Zone Commanders and General Staff members, as well as the UK Army itself as their mortar, artillery and rocket fire accuracy was, as senior UK Army members have pointed out, less accurate in Afghanistan than the Croatian forces’ during Operation Storm.

    That would be quite interesting.

  9. Americro

    Correction:

    organized military-police-civilian ethnic Serbian withdrawal that the then “Krajina” Secretary, the still unindicted war criminal Savo Strbac (who with direct personal and party financing from Milosevic and his party, as well as ultra-nationalist Serb diaspora organizations and the Serbian government formed the sham human rights group Veritas in ethnically cleansed of non-Serb Knin in 1993), who was a Martic, Babic, Hadzic, Simatovic, Mrksic, Milosevic, and Stanisic Joint Criminal Enterprise participant, defended on RS television while the operation was still ongoing (http://www.youtube.com/watch?v=qSRXAYeSo3M – with English subtitles).

  10. Americro

    If the ICTY Prosecution “standards” were upheld by the Appeal Chamber, NATO would not be able to engage in any military operations whatsoever as the burden of proof for a “Joint Criminal Enterprise” would be a repeatedly misquoted sentence entirely out of context and application of projectile fire that is less than 94.5% accurate, which is absurd considering the order to “adjust fire” is omniscient in the application of mortar, artillery, rocket, tank and machine gun fire due to wind, dust, rain, and other mitigating external factors which makes the science of military projectile application inherently innacurate.

    That the ICTY Prosecution was in a mortifying conflict of interest with its work with Milosevic’s fanatically devout follower and apologist, as well as “Krajina” Secretary and Milosevic, Martic, Babic, Stanisic, Simatovic, Hadzic, and Mrksic JCE participant Savo Strbac from 1993 through the Gotovina and Markac trial and appeal, is worth noting and is worth legal and historical experts as well as academics and journalists, writing about extensively.

    1. Americro

      Facts vs. blatant lies ; – )

      BTW, thanks for not addressing a single point I made and referring readers to a Malagurski’s perfect example of recurrent themes in Serbian propaganda and its inculcating of collective neurotic and psychotic syndromes.

  11. Lt Rinas

    OK, here are my comments:
    (http://www.youtube.com/watch?v=q_hJcjIYSBg) for non-Serbian/Croatian/Bosniak speakers who decided to click the link, the footage shows an exercise of displacement of civilians out of area of military operation, to pre-planned save havens, while (mentioned in the footage) armed forces are entering into fight in designated area. All of that in order to avoid conflict between civil and military activities. To simplify, that was a CIMIC or CMO exercise. I will have to make comments in smaller portions according to leisure time available. Over

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