By highlighting again the atrocities of the war in Herzeg-Bosna, and by pinning liability for grave crimes upon some of that war’s leaders, the Hague Tribunal may have been lending moral stigma to a political project that threatens again to awaken from an extended slumber.
By Matthew Parish
Amidst angry debates over the Srebrenica massacre and the Siege of Sarajevo, it is sometimes forgotten that Bosnia’s war cut three ways. While Serbs and Muslims (Bosniaks) were entrenched in siege warfare in the centre and north of the country, an equally vicious struggle was underway in the southwest. This majority-Croat area, adjoining the city of Mostar, was undergoing its own torment. For while Croats had joined Bosniaks in supporting the early 1992 referendum on Bosnian independence from Yugoslavia that triggered the country’s civil war, they had in mind a subsequent act of secession of their own. Irredentist aspirations are recurrent in the history of the Western Balkans. Just as the Bosnian Serbs declared their own parliament and institutional structure, the Bosnian Croats did the same in November 1991 and pronounced the newly-formed Croat Community of Herzeg-Bosna, later declared to be an independent republic but never recognised by the outside world.
The intention was always union with neighbouring Croatia, but this required war because the Bosniaks would never countenance partition of Bosnia just after it had secured its notional independence. After discussions in March 1991 between Croatia’s president Franjo Tudjman and rump (Serb-dominated) Yugoslavia’s Slobodan Milosevic, a rudimentary plan was hatched to divide Bosnia into Croat and Serb spheres of influence. It is not clear to what extent this agreement ever translated into military or political policy for either side. Shortly after the “Karadjordjevo Agreement”, as it became known, Serb and Croat forces were engaged in bitter conflict within Croatian territory.
Nor was there significant cooperation between Serb and Croat forces in Bosnia to give effect to the envisaged partition plan. Nonetheless Bosniaks perceived themselves as being trapped in a pincer between two aggressors, and their resistance was fierce. There was a significant Bosniak minority in east Mostar, and the city became the focal point for Bosniak-Croat hostilities in southern Bosnia that intensified between April 1993 and February 1994 when the two sides ultimately agreed, under US diplomatic pressure, to create a federation of cantons between them and to combine their military efforts to fight the Bosnian Serbs.
In the intervening period, Herzegovina suffered the same horrors of war as the rest of the country. Civilians living in areas controlled by the other side were expelled from their homes. Cruelty and shocking treatment were in abundance. Mostar was bombed and shelled into oblivion. Inhumane acts took place in prisoner of war camps. Ethnic groups were forcibly separated. In perhaps the most iconic display of the Bosnian war’s cultural barbarism, Mostar’s Ottoman-era Old Bridge, a symbol of the former Yugoslavia’s beauty, was shelled into oblivion.
Now the question arises of who, if anyone, should be held criminally liable for the torrid events in Herzeg-Bosna. After a trial lasting over six years (the defendants were in custody for even longer), the conclusion reached by the International Criminal Tribunal for the former Yugoslavia is that all the principal Bosnian Croat political and military leaders are guilty. We do not yet know the details of their convictions. A summary of the judgment was handed down on 29th May 2013. Extraordinarily, we are told that a 2,629-page full judgment has been prepared but it has not been published contemporaneously with the conviction. We must wait to see what it says.
In the intervening period, the contours of the judgment’s reasoning are already clear from the summary the Court has provided. There was a “joint criminal enterprise” on the part of the Croat military and political leadership to detach Herzeg-Bosna from the rest of Bosnia and Herzegovina. The tools used to achieve this goal included forcible extermination of non-Croat populations, destruction of religious buildings, and excessive use of military force against civilian populations. Pursuant to this joint criminal enterprise, civilians were mistreated or murdered. The behaviour of the Bosnian Croat armed forces was systematic in its wanton disregard for human life and property. The Court’s view is that the Bosnian Croat political and military leaders must be held responsible for the actions that occurred. Therefore all six of those indicted, leading with Jadranko Prlic (the Bosnian Croats’ political leader at the time), are guilty of the crimes of persecution, murder, rape, inhuman treatment, deportation, unlawful confinement, cruel treatment, unlawful labour and more.
Conviction on this basis raises a variety of legal issues. First, is it legitimate to describe the act of seeking secession of Herzeg-Bosna from Bosnia and Herzegovina as a “criminal enterprise”? Surely not just any act of state secession is criminal. Bosnia and Herzegovina itself seceded from the Federal Republic of Yugoslavia, as did the Republic of Croatia. Were these secessionist projects likewise criminal? If so, then why has nobody been prosecuted for them and why does Yugoslavia not remain a single country? By contrast if Bosnia’s secession was not criminal, then it is hard to see why Herzeg-Bosna’s secession attempted secession itself be criminal. Secession begets secession, and criminalising an attempt at secession merely because it was ultimately unsuccessful appears arbitrary.
Alternatively, was it the means of attempted secession (i.e. expulsion of non-Croat members of the population and use of disproportionate military force) that made the attempt to secede criminal? This hypothesis might be more plausible. But there was scant evidence that the very act of secession required such crimes to be committed. Indeed the Bosnian Croats declared the existence of Herzeg-Bosna before the Bosnian war started or anyone was killed. It seems possible that, at least in principle, the Bosnian Croats’ secessionist project could have been undertaken peacefully. Once war began, however, the methods adopted to advance the secessionist goal took a more sinister turn.
Automatic attribution of criminal responsibility to the individual political and military leaders for the horrors that undoubtedly unfolded in the course of the Herzegovinian conflict is also controversial. Undoubtedly those individuals knew what was going on. They surely appreciated the destruction of Mostar and the expulsion of populations. They must have known that their armed forces were behaving dishonourably. Therefore they might be held guilty of the sin of omission: they must have been aware of what was happening but they failed to prevent it. But by attributing criminal liability to oversight, international courts stray perilously close towards the ambiguous contours of historical judgment rather than legal pronouncement. Judges are required to pre-empt decisions undertaken in the course of complex military operations: a task which they may not have the experience and expertise to do. The decision to bomb Mostar’s Old Bridge was undoubtedly a controversial one. Evidence suggests that the bridge was being used as a conduit for arms and fighters by Bosniak paramilitaries and more regular armed forces. Arguably therefore it was a legitimate target. A majority of the Judges disagreed with this conclusion, but this might be a conclusion better drawn by military men than lawyers.
The massive property damage suffered in central Mostar was the product of a campaign of relentless shelling and sniping executed by both sides. The brutal circumstances in which civilians on all sides found themselves expelled from their homes was a disgrace. But in this judgment of the Court, disproportionate responsibility is assigned to the Croats in a war which had three unequivocally guilty sides. The question of how much responsibility attaches to a political leader for the excessive acts of soldiers in a civil war is wrapped in a series of unanswerable hypotheticals. What else might those leaders have done? Should they have disciplined their informal, militia-like troops more effectively? Should they have deployed non-existent military police units to discipline their rabble forces? Amidst the fog of war, little is clear.
At over 2,500 pages, the Court’s judgment will no doubt catalogue in some detail the atrocious events that played out in Herzeg-Bosna. But the final judgment on relative guilt of the sides and the individuals involved may be the subject of debate for some time to come. It is not obvious that judges are in the best place to undertake the sort of primarily historical evidence-gathering research that has clearly occupied the Court in the Prlic trial. However thorough the Judges and Prosecutor have been, new facts may emerge in the future that colour the events which scoured Bosnia’s landscape. The Bosniak public may be baying for vengeance. This is understandable for families who lost loved ones. But the challenge facing international criminal justice is that it must provide more than mere retribution for mindless atrocities that inevitably incur in any civil conflict. Legal and moral judgments, handed down with the institutional legitimacy of an international tribunal some twenty years after the events they describe, must serve some broader social purpose.
As a court inevitably involved in the adjudication of matters of high political sensitivity, the International Criminal Tribunal for the former Yugoslavia is bound to remain acutely aware of the political consequences of its decisions. At the time, the Herzeg-Bosna project was a failure. Bosnian Croat secession was repulsed by US diplomatic determination to maintain post-Yugoslav Bosnia as a single state. Whatever American motives drove this course at the time, since then much has changed. Many years of gradual political decomposition have brought the accords creating the Federation of Bosnia and Herzegovina to a stammering halt. Bosnian Croat cantons are now run through parallel political structures that pay scant regard to the ostensible institutions of Bosnian central government. With Croatia’s impending EU accession, the most compelling impediment to explicit Bosnian Croat disavowal of Bosnia and Herzegovina – Zagreb’s pressure upon Bosnia’s Croats to keep quiet – is about to dissolve. What will happen afterwards is anyone’s guess. Bosnian Croats remain profoundly dissatisfied with their third-class role in the country’s dysfunctional multi-ethnic polity. They all hold Croatian passports, and the Croatian border with Herzeg-Bosna is indefinitely permeable. It would take very few formal steps for this volatile, mountainous region now to detach itself altogether from its unloved mother country.
Hence we might speculate that the Judges in the Prlic trial were all too aware of the contemporary political realities facing the region over which they stood in judgment. Perhaps they saw their role as being to prevent Bosnia’s imminent collapse. By highlighting again the atrocities of the war in Herzeg-Bosna, and by pinning liability for grave crimes upon some of that war’s leaders, the Court may have been lending moral stigma to a political project that threatens again to awaken from an extended slumber. Whether in the long run the international community is right to try to prevent the Bosnian Croats from going their separate ways, only time will tell. All we can say for now is that the last twenty years of unhappy cohabitation between Bosnia’s Muslims, Croats and Serbs have resulted in stagnation, corruption, sloth, waste and want. Let us hope that whatever political shifts take place in the region over the next twenty years, their impact upon the long-suffering people of the region are not so enduringly negative.
Matthew Parish is an international lawyer based in Geneva, Switzerland and a partner with the law firm Holman Fenwick Willan. He formerly served as Chief Legal Advisor to the International Supervisor of Brcko, as part of the Office of the High Representative of Bosnia and Herzegovina. His first book, A Free City in the Balkans, describes the course of state-building in post-war Bosnia. His second book, Mirages of International Justice, includes a sharp critique of international criminal courts in bringing peace and reconciliation to war-torn societies. In 2013 he was named as a Young Global Leader of the World Economic Forum and Bilan magazine named him as one of the 300 most influential people in Switzerland. www.matthewparish.com