Breaking news – Gotovina and Markač convictions overturned (UPDATED)

Update 19 November 2012: I am very grateful to Mark Kersten at the Justice in Conflict blog for inviting me to expand upon the below piece and guest post it there. For a fuller treatment of the issues arising from last Friday’s Gotovina judgment, readers are therefore referred to my post at Justice in Conflict, entitled “The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth“.

by Rhodri C. Williams

In April 2011, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted two Croatian Generals, Ante Gotovina and Mladen Markač to lengthy jail terms for their parts in planning and carrying out ‘Operation Storm’, a 1995 offensive that resulted in the flight of 250,000 Croatian Serbs. Today, in what has been described as “one of the most comprehensive reversals of the tribunal’s 19-year history”, the Appeals Chamber eviscerated the Trial Chamber’s findings and ordered the immediate release of both defendants.

This shock reversal is likely to generate intense legal and political debate, with Serbian Prime Minister Ivica Dačić having immediately claimed that it confirms that the ICTY is “not a court” but rather “fulfills pre-determined political tasks.” According to the summary read out in court this morning, the Appeals Chamber accepted the defense’s key arguments, first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand.

As described in TerraNullius at the time of the Trial Chamber decision, the finding of the existence of a JCE by the Trial Chamber allowed the defendants to be imputed guilt for a range of discriminatory actions and policies that accompanied the offensive including the ex lege cancellation of urban-dwelling Croatian Serb refugees’ rights to their ‘socially owned’ apartments. As set out in the summary of today’s decision (page 4), the rejection of a JCE removed this link:

With respect to liability via JCE, the Appeals Chamber observes that the Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings, but the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the Trial Chamber’s findings on the JCE’s core common purpose of forcibly removing Serb civilians from the Krajina rested primarily on the existence of unlawful artillery attacks against civilians and civilian objects in the Four Towns. While the Trial Chamber also considered evidence concerning the planning and aftermath of the artillery attacks to support its finding that a JCE existed, it explicitly considered this evidence in light of its conclusion that the attacks on the Four Towns were unlawful. Furthermore, the Trial Chamber did not find that either of the Appellants was directly implicated in Croatia’s adoption of discriminatory policies.

When the dust settles, it may well turn out that the Trial Chamber went too far with its JCE finding and that the Appeals Chamber was right to tighten the scope of the inquiry to focus on what criminal acts could be directly and unambiguously attributed to the defendants in this case. On the other hand, few serious observers doubt that the highest political and military leadership in Croatia at the time would not have lost much sleep if not one Serb had ever returned to the region. However, as one might fear, the Court’s narrow ruling on General Gotovina and Markač has quickly been read as a blanket vindication of Croatia’s conduct and aims during its 1991-95 war. As reported in the Guardian:

Gotovina’s defence lawyer, Greg Kehoe, said the appeal verdict demonstrated that Croatia’s Operation Storm in 1995 to regain control over the last Serb-run enclaves on its territory had been entirely legitimate under international law.

“This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia. More importantly, it vindicates what kind of soldier General Gotovina was,” Kehoe said.

At a broad level, the Gotovina case may hold the same lessons on the limitations of international criminal law that the European Court of Human Rights’ Cyprus cases have demonstrated with regard to human rights law. Litigation inevitably and necessarily disappoints by applying a zero-sum approach to complex historical problems in which all parties have almost always been cast both in the role of victims and victimizers. To treat Gotovina 2 as an absolution of Croatia’s well-documented sins is patently absurd and will only complicate the way to a long overdue regional reckoning with the past. Ultimately, Croatia can only legitimise its own narrative of victimhood by recognising the validity of those of its victims.

17 responses to “Breaking news – Gotovina and Markač convictions overturned (UPDATED)

  1. Istina Voda Duboka

    Thanks for this post. This is only the last of a long series of legal and judicial defeats of those who, not entirely in bona fide, have always tried to depict, within the OSCE and other IOs, the equalisation of guilt among alll participants to the conflicts in former Yugoslavia. After Blecic and COHRE, now Prof.Theodor Meron has put a final word on all these misrepresentations. He was my professor of international law and I am proud of it.

  2. Dear Deep Water of Truth, you are welcome and I welcome your comment. However, if you really feel that Meron was motivated by any political agenda – whether one that you agree with or not – is that not part of the problem? And can you not then begin to put yourself in the shoes of others (including many displaced people from Krajina still living in wretched circumstances) who might have felt that the Trial Chamber decision was the clarion call of legal justice and the current decision is the culmination of a not entirely bona fide process of minimization of guilt? And can you see the ultimate point that these kind of judicial processes where one side gets all the marbles may not be the best way to bring either side to the level of mutual recognition necessary for everyone on both sides to get on being good European citizens with each other?

  3. Istina Voda Duboka

    Thanks, but I did not mean that Meron was inspired by any political agenda, he was probably inspired by Holy Spirit, thus I see no problem. As to those who left Krajna on 5 August 1995 escorted by Amb.Peter Galbraith (unlike others expelled from Vukovar in November 1991), I happen to have known and helped hundreds of them. As a matter of fact, all of them always confirmed to me to have been invited by the Serbian propaganda to leave their havocs right before the start of the Oluja. Today’s verdict has shattered the myth of the forced deportation once for all, the culprits sit in Belgrade together with a solid number of professional refugees living in Dedinje (certainly there are many also still collective centers like Krnjacka, unfortunate victims of the Serbian propaganda). This is where reconciliation should start from the Truth, which does not necessarily coincide, and I agree with you, with litigation, but today somehow it is. Further, one should have the same respect for the ICTY, and its decisions, in April 2011 and in November 2012 or no respect at all. I somehow detected a much more celebrative tone of Judge Orie farnetications rather thah the ICTY President’s today.

  4. Well, I haven’t read either set of farnetications in full yet, but everyone knows Courts don’t always get it right. However, to say they get it right only when you agree with them is hardly a more credible proposition.

  5. Rhodri, I agree with you entirely that this is a story about the limitations of using criminal trials to establish the historical truth of complex events.

    The Trial Chamber had found that Serbs fled the Krajina in the face of a range of crimes, including indiscriminate shelling with intent to drive the population away, persecution, murder, inhumane acts, plunder, destruction and cruel treatment. Although these were committed by a range of individuals, the totality of evidence suggests that they were part, or an inevitable result of, a joint criminal enterprise tied to Croatia’s civilian and military leaders.

    The Appeal Court took a much narrower, more technical view. It found that the legal standard the Trial Chamber used to show the shelling was indiscriminate was wrong. If a deliberate campaign of indiscriminate shelling couldn’t be proved, the rest of the evidence was not enough to establish a joint criminal enterprise, and therefore not enough to tie Gotovina to the other crimes.

    Importantly, the Appeal Court does not overturn the Trial Chamber’s findings that crimes were committed during Operation Storm, including persecution, murder, inhumane acts, plunder, destruction and cruel treatment (not to mention all the measures taken to prevent Serbs returning, which don’t fall under international humanitarian law). This is not a vindication of the conduct of Operation Storm, although it is going to be read that way by a lot of people.

    But the Appeal Court was narrowly focused on the question of Gotovina’s responsibility. It notes that there was some evidence that he had tried to familiarise his soldiers with the laws of war and prevent them acting in an undisciplined manner. It notes that bellicose rhetoric in advance of a military operation (“we’re going to destroy Knin”) is not really evidence on its own of war crimes.

    I think the Appeal Court was probably right on the question of individual responsibility. The kind of over-complex legal reasoning needed to tie the crimes to Gotovina was not wholly convincing, and crimes have to be proved beyond reasonable doubt.

    But I think the Trial Chamber was right on the bigger (and maybe more important) historical question: that the totality of the evidence shows that serious crimes were committed during Operation Storm, and not by accident.

  6. Pingback: The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth | Justice in Conflict

  7. Istina Voda Duboka

    Well, having been an insider for so many years in the Balkans, I have come to develop the conviction that the ICTY is nothing more than a political tool for the equalisation of guilt in the former Yugoslavia. I still believe it now when on Friday Divine and mortal justice have for once coincided.I do not need to recall anectodes or conversations with the staff of the ICTY liaison offices to confirm that Ante Gotovina’s indictment served to demonise the Oluja and and dicredit it internationally in accordance with Carl Bildt’s and his accolytes’ predicament to equalise guilt and present the whole conflict as a civil war. I am happy and proud that our generals have been freed “a za one koji su protiv: lako cemo s njima!” as someone said once in the Vatroslav Lisinki hall…

  8. Well, Deep Water, you have certainly put yourself at the heart of a debate that is now in full flow among the various Yugosphere-watcher websites. For example, Marko Hoare at Greater Surbiton has come out strongly in favor of your position, blaming the prosecution at the ICTY for its own failure:

    His argument is that the JCE theory represented a broader attempt to portray the ethnic cleansing in Krajina as being of the same nature and magnitude as other and much more egregious acts of ethnic cleansing carried out largely by Serb forces earlier in the war. However, he is careful not to conclude that the Croatian army has entirely clean hands:

    “The Appeals Chamber’s verdict has not exonerated the Croatian side of crimes carried out during and after Operation Storm; on the contrary, it explicitly refers to crimes against Serb civilians in its acquittal of Gotovina and Markac. These victims have not now received justice, and critics are right to point out that the ICTY has failed them. The failure should be attributed, however, to the prosecution’s flawed indictment, not to the decision of the Appeals Chamber.”

    Meanwhile, Eric Gordy at East Ethnia articulates a diametrically opposed viewpoint, accusing the Appeals Chamber of missing the forest for the trees and providing a blueprint for Radovan Karadzic’s defense team to get him off the hook:

  9. Notably, Gordy’s concern – in contrast to Hoare – is that the Appeals Chamber decision implicitly exonerates the Croatian Army of any crimes at all. Ian Traynor at the Guardian says that this will clearly be the political take-away from the case:

    In effect, according to Traynor, the Gotovina trial was a means of trying deceased President Tudjman by proxy, and it failed: “The arguments will rage, but there is unlikely to be another verdict reversing Friday’s, allowing Croatia to argue that they beat the Serbs fair and square.”

  10. Istina Voda Duboka

    I am in total agreement with Attila Hoare. Everybody knows that crimes were committed by Croatian irregulars in Grubori and Varivode (which are now object of prosecution by the Croatian local judiciary). The problem is that Del Ponte’s and the Office of the Prosecutor’s obsession with Gotovina has contributed to establish his myth and now, with the Appeal’s Chamber reversal, the same Office as well as the Trial Chamber received an amplified and well deserved slap. I guess that this is the source of the whole debate which should now leave politics and get to the prosecution of the real perpetrators and abandoning the artificial and histerical fabric of the JCE based on the Brioni transcripts once for all.

  11. Okay DW, I think we get it. Can I ask you a favor now? Stop typing for a little while and consider the fact that Croatia now exists as an independent sovereign state on the fast track to the EU whether or not its conception was immaculate. Consider that even if (shock, horror) it were to be established beyond any doubt that Tudjman and his entire circle really did plan to expel all the Serbs of Croatia – and largely succeeded – that does not revoke the fundamental legitimacy of the Croatian state nor does it expunge the responsibility of others who committed atrocities against Croats to assume the moral and legal consequences. Think of the fact that even some Serbs who wished to remain a part of Croatia were butchered (Gospic? the Zec case in Zagreb?) and many, many others suffered (and often continue to suffer) in a manner utterly unjustified by whatever political opinions they held.

    The job of a state is to protect all its citizens. That is never harder, and never more important than in times of civil conflict. Whatever Croatia did, it can make right, not by denying it, but by being open to other versions of the historical truth than those it has told itself over the years, and by voluntarily assuming responsibility for any moral and legal consequences flowing from that, even (especially) if it is now unlikely to be forced to do so through litigation.

    If Ian Traynor is right and Croatia has now taken home all the marbles, then the least its proponents can do at this point is to be genuinely magnanimous.

  12. Marko Milovanovic writes a scathing review of the Trial Chamber majority in EJILTalk:

    In effect, Marko proceeds from Gordy’s ‘forest for the trees’ critique but places it in the context of what appears to have been a failure of the majority to understand either what type of review they were applying nor what type of review they wanted to apply.

    Verdict on the outcome: “in Croatia in particular, but also in Serbia, there will be no appetite for any further attempts for reconciliation or the search for a common, if possibly objective, truth. Each will continue to live in their own bubble, their own little alternate reality.”

    Verdict on the Court: “I personally cannot recall a judgment in which dissenting judges so bluntly stated that the majority was misinterpreting, ignoring and dismissing the findings of the Trial Chamber (Judge Agius), characterized the majority’s reasoning as ‘grotesque’ (Judge Pocar), suggested that its reasoning had other than purely legal motives (Pocar dissent, para. 30), and characterized the judgment as ‘contradict[ing] any sense of justice’ (ibid, para. 39). It is indeed a collective failure of the ICTY as an institution, and a professional failure of all those involved in the case, regardless of their good intentions, to have had a decision as important as this one ultimately decided by 3 votes to 2, and in such poor form.”

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