The Relevance of the Gotovina Judgment
December 3, 2012
By Iva Vukusic, The Hague
The Appeals Judgment
‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice’# is what judge Fausto Pocar, one of the five appellate judges in the Gotovina and Markac trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), states in his Dissenting opinion (paragraph 39). That harsh statement, along with others in the Opinion, indicates just how significant the differences were between the judges’ interpretations during the deliberations on the responsibility of Croatian generals Ante Gotovina and Mladen Markac, sentenced by the Trial Chamber in April 2011 to 24 and 18 years of imprisonment, respectively, for taking part in a joint criminal enterprise the objective of which was the permanent removal of the Serb population from the Krajina region #. The events took place during and after Operation Storm conducted by the Croatian Military and Police forces in August 1995.
Gotovina was the Commander of the Split Military District of the Croatian Army and overall operational commander of the southern portion of the Krajina region during the military offensive called ‘Operation Storm’. Markac was the Commander of the Special Police of the Ministry of the Interior#. Charged with them was also Ivan Cermak, Commander of the Knin Garrison who was acquitted by the Trial Chamber.
Gotovina, Cermak and Markac were charged on the basis of individual criminal responsibility (Article 7(1) and 7(3) of the Statute of the Tribunal) with: Persecutions on political, racial and religious grounds, deportation and inhumane acts (forcible transfer) (crimes against humanity, Article 5); Plunder of public or private property and wanton destruction of cities, towns or villages, or devastation not justified by military necessity (violations of the laws or customs of war, Article 3); Murder (violations of the laws or customs of war, crimes against humanity, Articles 3 and 5); Inhumane acts (crimes against humanity, Article 5) and Cruel treatment (violations of the laws or customs of war, Article 3)#. The crimes in relation to Operation Storm were documented by the Croatian Helsinki Committee on the ground at the time and include around 600 civilian deaths and around 22 thousand houses and other buildings pillaged or burned. These numbers are the only reliable source we have in relation to the crimes and so far they have not been credibly disputed. Around 200 000 Serbs left Krajina during this time. Their reason for leaving was one of the issues discussed and decided on by the ICTY judges.
The decision to acquit the two generals on appeal was reached by a 3:2 majority and one could often hear, as judge Theodor Meron read out the judgment summary in the courtroom, the words ‘judge Agius and judge Pocar dissenting’. It is striking just how different the interpretations of evidence and application of law were between the judges on appeal but also between the Trial chamber and the appeals majority that ultimately had the last word. There are very few cases in the almost twenty years of the ICTY where the conclusions of the Trial chamber and the Appeals Chamber were so different and even fewer with such harsh language used in the dissents#.
The ‘200 meters standard’ applied by the Trial Chamber was what, apparently, took the entire judgment down as it proved to be essential in the interpretation of the majority in the Appeals Chamber (paragraphs 57 – 67)#. That standard implemented by the Trial Chamber basically states that if projectiles fall more than 200 meters away from legitimate military targets that then the artillery attack can be seen as unlawful (the lawfulness of the attacks on Knin and the other three towns – Obrovac, Benkovac and Gracac – were what the judges needed to rule on). The appellate judges disagreed and the reasoning seems to have been, to simplify: the standard of 200 meters for unlawful artillery attacks was flawed (because the Trial Chamber failed to explain why it was specifically 200 meters and not some other margin of error, and because they applied the same standard in all the incidents no matter any potential specific circumstances), and then concluded the unlawful artillery attacks could not be proved beyond a reasonable doubt. Crucially, the Appeals Chamber majority interpreted the Trial Chamber judgment in a way in which without the unlawful artillery attacks no joint criminal enterprise (JCE) can be proved to have existed and the defendants could not be found guilty of participating in it. Other modes of liability were discussed (primarily aiding and abetting and superior responsibility) in the Appeals Judgment but, according to the majority, no finding could have been entered as it would have constituted a fair trial rights violation as these were not the modes charged or guilt could not have been established beyond a reasonable doubt.
Many commentators such as former consultant for International Center for Transitional Justice and Human Rights Watch researcher Bogdan Ivanisevic or other long-time ICTY observers are critical claiming that the ICTY Appeals Chamber failed to fully justify the acquittal#. Nevertheless, the ICTY Appeals Chamber reached a decision and with it, the discussion on the criminal responsibility of Gotovina and Markac is over. What is yet to be discussed are the policies the Croatian leadership implemented during the 1990es in relation to the Serb population and what the Croatian institutions have to do to bring justice to all victims, including those of Serb ethnicity.
The Effect of the Decision in the Region
For anyone following the reactions after the judgment in Croatia, Serbia and Bosnia and Herzegovina, it is rather clear how controversial this decision of the Appeals Chamber is and how this is still a painful and very politicized topic that, when discussed, often brings about old passions and grievances. What in Croatia was celebrated as a victory, in Serbia was perceived as a travesty. This decision of the majority will have a long term effect on inter-ethnic relations in the region as well as the perceptions of the Tribunal in the former Yugoslavia and, most likely, those effects won’t be very positive.
This judgment effectively seals several discussions in the region for a long time to come. Within Croatia, the public debate on Operation Storm was difficult as it is, one dimensional and simplistic where little space and compassion was given to Serb victims of crimes committed during ‘Storm’ which was an operation to regain control over the territory within what was internationally recognized as Croatia. Belgrade-backed forces took that territory back in 1991 with crimes committed against the ethnically Croatian population.
The Croatian public overwhelmingly viewed Operation Storm as a military victory in which the Croatian forces fought bravely, led by, among others, Gotovina. He enjoys the status of a hero with much of the population. So far, there is no legally binding judgment in Croatia on any of the crimes such as killings of civilians in Golubic, Gosic, Varivode and Mokro Polje in the Knin area, attack on the refugees’ convoy between Glina and Dvor and death of a large number of civilians, murders in Komic in the Korenica area. Some of these crimes had been tried, but judges decided to order retrials, while a trial for crimes committed in Grubori is taking place in Zagreb, reminds the Croatian non-governmental organization Documenta#. It is now up to the Croatian authorities to act, the State Prosecutor’s office primarily, in establishing who is responsible for those crimes#. Gotovina and Markac have been acquitted but someone else is guilty of those crimes and justice for victims has to be provided – justice for all victims, no matter their ethnicity.
The Croatian media had given almost no space at all, throughout the years after the end of the war, to the suffering of the families of those who were killed. Their pain hasn’t been acknowledged in society. It was as if empathy was reserved only for those ethnically Croat. It was difficult to find cracks in this black and white narrative before (one in which the Serbs are the ‘agressors’# and the Croats have only defended themselves and where there is no space for nuances or individual stories of tragedy ’on the other side’). Now, after this, it will be virtually impossible especially because, in the eyes of most of the public, details won’t matter – few will be discussing the application of the 200 meters standard, the problems of such strong dissents, the potential mistake made by the prosecution in its charging strategy or broader issues of how the institutions failed those victims so far by not providing justice. The public perceptions have been and will probably remain simplistic: Croatia won, Serbia lost and that is not a helpful starting point in the transitional justice processes the region is still to embark upon.
While Croatia celebrated as if the national football team won a championship title, the journalists there openly rejoiced, apparently not fearing for their perceived professionalism at all. They were openly cheering, not only the release of Gotovina and Markac, but also more problematically, the ‘innocence’ of Croatia# – a country whose political leadership headed by Franjo Tudjman in the 1990es made choices that did, no doubt, make it hard for Serbs to live in Croatia. It is also a country where no real political will ever existed to truly discuss the policies of the 1990es in which nationalism ruled almost undisturbed. Those debates about how the Croatian political leadership behaved and what the policies it implemented were are still necessary.
Vesna Terselic from Documenta stresses the necessity of creating a more inclusive narrative in Croatia in the future where there will be space for victims, Serb civilians from Krajina, who died or left their homes during and after Operation Storm, whose houses were burned or whose property was plundered. She also keeps calling the national judicial institutions to step up and provide some justice for the victims#. The society should extend to them the same empathy it provides to the Croats victimized during the war.
In Serbia, there is little chance that the ICTY will have an opportunity to do something about its standing that is, most likely, at its all time low. Harsh statements were made by politicians, protests organized by refugees# but also several nationalist groups and an atmosphere of victimhood and injustice prevails in the country. Those strong sentiments in the region are not a positive development for normalizing inter-ethnic relations. The Tribunal never had many fans in Serbia, but after the Appeals Judgment in Gotovina, it will most likely have even fewer. It will be a near impossible task to convince the Serbian public that the ICTY is not an anti-Serb court. All other judgments, including those that we should receive in the final stage of the Tribunal’s operation such as in trials of Karadzic and Mladic are therefore devalued and won’t carry as much weight in the Serbian public. For those that support the Tribunal, not many convincing counter-arguments remain when someone accuses the Tribunal of being biased against the Serbs. Individuals such as Republika Srpska’s Milorad Dodik have been given an easy argument to attack the Tribunal even harder.
This appellate judgment will be the subject of many analyses in the coming months and years, both from a strictly legal perspective (discussing details of legal reasoning) and from a broader perspective of impact of judgments on societies and inter-ethnic relations. Some open questions include: is it reasonable to think that the Office of the Prosecutor committed a serious error of judgment in relying solely on joint criminal enterprise charges (especially bearing in mind that this legal concept is often criticized as vague and the results of charging it are fairly unpredictable)? Should the prosecutor have considered other modes of liability? Was the entire Trail Chamber judgment really based on the ‘200 meters’ standard? The fact that there is very little personal accountability and possibility to hear from prosecutors (and even judges) directly in charge of the case makes obtaining the answer to those and similar questions difficult. Clearly, judgments and conclusions on innocence or guilt of defendants should be made based on the evidence presented in court and not on wider considerations, such as the impact in the region. Yet, what should be done when the interpretations of judges serving at an international tribunal such as the ICTY (all coming from various legal backgrounds – both civil and common law jurisdictions; academics and practitioners) are completely opposite? Should the judgment in a trial as important as this one even be issued before there is more agreement on substantial matters?
Now that Gotovina and Markac have been acquitted and the ICTY had its final say about Operation Storm and the events surrounding it, it is up to the Croatian state and its judiciary to make sure that victims get some justice for the crimes their families suffered. There have been no legally binding judgments yet for any of the crimes in and after Operation Storm in Croatian courts. The European Union, which Croatia is set to join in July 2013, should make sure this task of providing justice to victims does not remain uncompleted. If these two men are innocent as the majority of the Appeals Chamber concluded, someone else is probably guilty.
Iva Vukusic is an analyst and researcher from Zagreb, Croatia living and working in The Hague. She is a political scientist and a journalist with a masters’ degree in human rights and a practitioner in the field of war crimes prosecution. Her expertise lies mainly in transitional justice processes and the former Yugoslavia. Iva worked for the Research and Documentation Center as well as the Special War Crimes Department of the State Prosecutor’s office in Sarajevo, BiH and now works for the Sense News Agency in The Hague where she currently manages archival material from ICTY trials. She frequently collaborates on research projects with the academic community, mostly colleagues from King’s College London, War Studies Department and has presented at conferences in New York, Washington DC, Los Angeles, London, Paris, Brussels, Kigali about war crimes prosecution and transitional justice in the former Yugoslavia.