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”.

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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.

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