by Rhodri C. Williams
The International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted two Croatian Generals, Ante Gotovina and Mladen Markač, and acquitted one, Ivan Čermak, of charges of crimes against humanity and violations of the laws or customs of war. The charges were related to crimes committed during the Operation Storm military campaign between July and September 1995, during which Croatian forces reasserted control over the breakaway Krajina region and displaced as many as 250,000 Croatian Serbs to Bosnia and Serbia.
The Storm campaign has been described both as the largest land offensive in Europe since World War II and as the single most egregious act of ethnic cleansing in the first round of fighting surrounding the breakup of the former Yugoslavia (the consecutive expulsions of Kosovo Albanians and Serbs in the 1999 Kosovo conflict would give it a run later). While I have not yet had time to read the full decision (which weighs in at hundreds of pages), the ICTY press release and summary of the judgment are more accessible and provide a picture of an important and sweeping ruling.
The Court appears to have taken further steps to shift the post-Cold War phenomenon of ethnic cleansing more clearly into the legal category of crimes against humanity involving persecution. In doing so, they have provided an important (and overdue) recognition of the central role that administrative confiscation and reallocation of property and homes play in consolidating such acts. Whether this ruling will have an impact on the somewhat murky negotiations now going on between Croatia and Serbia over compensation for the effects of these acts – in the form of the permanent loss of many Croatian Serb homes – is another question.
The scope of the Gotovina decision is quite ambitious from the outset. Rather than simply tallying up the crimes committed during the Storm offensive, it frames them in the context of a conscious effort at the highest levels of the Croatian Government to rid the country of a significant proportion of its long-established Serb minority. To quote the press release:
These crimes were committed as part of a joint criminal enterprise whose objective was permanent removal of the Serb population from the Krajina region by force or threat of force, which amounted to and involved deportation, forcible transfer, and persecution through the imposition of restrictive and discriminatory measures, unlawful attacks against civilians and civilian objects, deportation, and forcible transfer. The Chamber found that the joint criminal enterprise came into force no later than the end of July 1995 in Brioni where the Croatian President Franjo Tuđman met with high ranking military officials to discuss the military operation which commenced a few days later on 4 August.
The Chamber found that Tuđman was a key member of the joint criminal enterprise and that he intended to repopulate the Krajina with Croats. Other members of the joint criminal enterprise included Gojko Šušak, who was the Minister of Defence and a close associate of Tuđman’s, Zvonimir Červenko, the Chief of the Croatian army Main Staff.
The ruling also appears to dispense with the allegation that Serb flight from Krajina was ordered in advance by the Serb leadership rather than consciously provoked by indiscriminate attacks on civilians by Croatian forces (the following and further quotes below are from the summary):
With regard to the alleged forcible transfer and deportation, the Chamber considered that on 4 and 5 August 1995, large numbers of persons left the towns of Benkovac, Gracac, Knin, and Obrovac and went to Bosnia-Herzegovina and Serbia. The Trial Chamber considered that although there were Krajina Serb evacuation plans for certain municipalities, the extent to which they were implemented varied. Moreover, the population was already on the move by the time the Serb municipal authorities took action …. The Trial Chamber concluded that the evacuation plans and orders of the Krajina Serb authorities had little or no influence on the departure of Krajina Serbs. With respect to Benkovac, Gracac, Knin, and Obrovac, the Chamber concluded that the fear of violence and duress caused by the shelling created an environment in which those present there had no choice but to leave.
The Court specifically finds that the removal of the civilian Serb population in Krajina was bought about through documented acts of murder, cruel treatment, plunder and destruction of civilian property, and indiscriminate shelling of populated areas that created “an environment in which [Serb civilians] had no choice but to leave.” From a property rights perspective, one of the most striking findings related to the laws used to strip fleeing Serbs of their rights to their homes, and particularly to socially-owned apartments.
With regard to the alleged imposition of discriminatory measures as an act of persecution, the Chamber considered a number of Croatian legal instruments related to property which came into force after Operation Storm. The Chamber found that the motive underlying these legal instruments, as well as their overall effect, was to provide the property left behind by Krajina Serbs in the liberated areas to Croats, and thereby deprive these Serbs of the use of their housing and property. The Chamber found that this imposition of restrictive and discriminatory measures with regard to housing and property, considered in conjunction with deportation and other crimes against Krajina Serbs, constituted persecution.
In light of their responsibility for these crimes, the Court sentenced Mr. Gotovina to 24 years in prison and Mr. Markač to 18, although there will almost undoubtedly be an appeals process before the sentences become final. Interestingly, the acquitted defendant, Ivan Čermak, is described as a sort of necessary but not culpable accessory to ethnic cleansing. While he played no apparent role in driving the Serb population out, his tasks involved quickly filling the vacuum with Croatian replacements:
The Chamber found that the activities of Mr Cermak included dealing with members of the international community, cleaning up Knin, improving hygienic conditions, providing a public soup kitchen, making the hospital operational, reconnecting water and electricity to the town, reactivating public services, improving transportation conditions, restoring factories and other businesses, and de-mining Knin and its surroundings. The evidence did not establish that Mr Cermak knew or intended that his activities contribute to any goal of populating the Krajina with Croats rather than Serbs.
The summary of the sentence focuses on the prosecution issues and makes no mention of reparations for victims of Operation Storm, which is unsurprising given that the issue is not regulated in the statute of the ICTY (unlike the later Rome Statute of the ICC, see Art. 75). Indeed, the property and return aspects of addressing ethnic cleansing have up until now been left to a somewhat murky process of negotiations involving international agencies and the governments of Bosnia, Croatia and Serbia. The most important result to date was arguably the adoption in 2005 of the Sarajevo Declaration on refugee returns by the three countries concerned.
While well-intentioned, this document failed to directly mention the key remaining point of contention – some 30,000 confiscated socially owned apartments for which Croatian Serbs have received no redress – and then set up an unrealistic two-year deadline for this and all other outstanding displacement issues to be swept from the table. While the political process has been somewhat underwhelming, the human rights litigation track related to Croatian Serb occupancy rights was spectacularly derailed by the European Court of Human Rights’ decision in Blecic v. Croatia to rule the flagship case inadmissible four years into proceedings (previously discussed in TN here).
All of this serves to underscore a key point made in a 2008 article by Lea Brilmayer and Geoffrey Chepiga, namely that international humanitarian law may be a more effective vehicle than human rights law for identifying property violations because it focuses on the functional aspect of property “in assuring the survival of civilians” rather than the formal aspects of ownership (417). A difficulty identified by the authors is that human rights law has nevertheless become an established vehicle for seeking redress, whereas individual reparations are still a relatively novel concept in humanitarian law (as reflected in their absence from the ICTY Statue).
So where does this leave the victims of Operation Storm? The question in this case may be whether the ICTJ’s Gotovina decision galvanizes the current negotiation process over ending displacement in a manner that did not occur as a result of prior ‘external shocks’ such as the UN Human Rights Committee’s 2009 decision finding violations related to Croatian Serb socially-owned apartments in Vojnovic v. Croatia or the Council of Europe Parliamentary Assembly’s call for protection of rights to such apartments in a 2010 resolution. Ultimately, unless the issue is (belatedly) linked to Croatia’s EU candidacy, it may simply never be addressed in a manner appropriate to the severity of the crimes identified today by the ICTY.