The conviction by the international war crimes tribunal for former Yugoslavia (ICTY) of the retired Croatian generals, Ante Gotovina and Mladen Markac, for their roles in the 1995 Operation Oluja (Storm), which recovered large swathes of Serb-controlled territory, has reopened old wounds in Croatia. Most Croats reacted with fury against a verdict they saw as a gross distortion of the conflict, a reversal of the positions of aggressor and victim. For them, Oluja was a just campaign to take back territory that had been occupied, and from which its Croat population had been expelled four years earlier.
This furore invites responses on several levels. Firstly, one can only react with distaste to the Croatian portrayal of Oluja as a heroic victory. There was nothing heroic about a campaign that involved the indiscriminate bombarding of civilian areas, the murder of hundreds of people, inhuman acts of cruelty and revenge, the terrorised flight of almost the entire Serb population, and the plundering and destruction of their property in a deliberate attempt to prevent them ever returning.
The whole ‘Homeland War’, as Croatia remembers the Wars of the Yugoslav Succession, was far from the glorious affair that many Croats like to remember. From the massacre of Serbs in Gospic in 1991, to the shameful collusion with Serbia’s Slobodan Milosevic in the attempted carve up of Bosnia, to the crimes committed against Serb civilians in the Medak Pocket operation in 1993, Croatia’s war was a shabby affair. If Croat crimes were on a lesser scale than those of the Serbs, they were no less barbaric. And Oluja was the crowning stain on Croatia’s wartime record of shame and infamy.
But if the way that Croatia carried out its war was repellent, that does not mean that its resort to military means to recover its territorial integrity was unjustified. The court in The Hague was careful to stress that it was not ruling on Croatia’s right to resort to war. Yet its description of Oluja as a ‘joint criminal enterprise’ appeared to come pretty close to such an evaluation.
The point of this concept of a ‘joint criminal enterprise’ was to establish a general political guilt for those that planned and ordered the campaigns during which atrocities were committed. On the Serb side, ex-Serbian President Milosevic was indicted, as were the Bosnian Serb leader, Radovan Karadzic, as well as General Ratko Mladic and others. On the Croat side, all the most obviously responsible people, President Franjo Tudjman, the wartime Defence Minister, Gojko Susak, the Bosnian Croat leader, Mate Boban, were already dead by the end of the 1990s. So Gotovina was targeted as a senior figure who could take the rap for the “joint criminal enterprise” behind Operation Oluja.
The whole concept looks dubious in principle. What it means is that those who were involved in the decision-making behind an operation are held responsible for any crimes committed, even though they may have had no involvement in the crimes, may not have intended that crimes would be committed, and may not have approved of any crimes that were committed. This is not about personal responsibility, but about general, collective guilt for anyone involved in the operation, whatever their personal responsibility.
The results can be perverse. Thus Gotovina is held to have been guilty of crimes for which, in a repeatedly shown video recording, he angrily harangued his officers after the operation. That he should be held guilty of crimes in which he had no personal involvement, and which he condemned, would seem to be a perversion of justice according to any standard that I can think of. Sure, he could have done more to see to it that the actual perpetrators were brought to justice. But that is a charge that can be levelled at the whole Croatian justice system, which was pitifully remiss when it came to investigating crimes committed by its own side. That omission on Gotovina’s part is worthy of condemnation, but should never have been used as a basis for international justice to lay the collective responsibility for the crimes of others, in which he did not personally share, on his shoulders.
A further perversity is that, while Gotovina pays the price for the crimes of Oluja, hundreds of others, including middle and lower ranking officers, who were directly responsible, are allowed to walk free. Gotovina is forced to take on himself the sins of all the guilty ones. This is a consequence of a general flaw in the ICTY’s approach of focusing on the ‘big fish’, the leaders held responsible for the crimes committed by lower-ranking soldiers and militia hoodlums. Of course, the ICTY did not have the capacity to try all of those lower-ranking individuals. But by going after the senior figures on the, in some cases, dubious principle of command responsibility, while letting numerous others directly responsible for atrocious crimes walk free, they have seriously harmed the credibility of their undertaking throughout the region.
It is, of course, not just the ICTY that is at fault here. In taking such a partial, ethnically biased approach to the dispensation of justice, going after every Serb they could identify, on whatever tenuous grounds, while letting all but the most egregious cases of Croat war criminals walk free, the Croatian judicial authorities undermined every principle of accountability.
But the international community’s approach of piling huge funds into the ICTY, to go after the big fish, has singularly failed to achieve one of the original key goals; by establishing the individual guilt of those responsible for the horrors of the Yugoslav wars, to extirpate any notion of collective guilt of the nations that fought the wars, and thus contribute to reconciliation. With cases like the Gotovina trial, the ICTY has destroyed its credibility in every one of the former combatant states.
The trials that have actually helped the nations of former Yugoslavia face up to the crimes committed in their name have always been those carried out on their own soil, by their own courts. The trial in a Croatian court of General Mirko Norac for the crimes committed in Gospic, in which he had a direct hand, confronted Croats with the fact that some of their people too had committed crimes. By contrast, the Gotovina trial in The Hague has set that process of establishing accountability back years. It would have been much better if, from the outset, rather than spending so much money on the failed enterprise of the ICTY, the international community had put its funds into building the capacities of the judicial systems in the former Yugoslav states, so that proper trials could be held there, as has anyway, gradually, started to happen in recent years.
And a final perversity of the Gotovina trial is its double standards, in that there has been no accountability for the international actors that also stood behind Oluja. For the United States, Oluja was a vital prelude to the military actions that ended the war in Bosnia shortly afterwards. Washington approved the operation. The United States helped train Croatian forces, and provided support and intelligence. If this was a ‘joint criminal enterprise’, as the ICTY contended, then where were the American defendants in the dock? Unfortunately the choice of indictments at the ICTY was always politicised. Western forces that intervened in the conflicts were never going to be held accountable for any of their actions. And Gotovina, whatever his personal merits or lack of them, has been made into a hero and a martyr in Croatia.
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