by Rhodri C. Williams
Last week, I had the opportunity to join a symposium at the Hugo Valentin Center (HVC) at Uppsala University on the aftermath of the November 2012 Gotovina decision by the Appeals Chamber of the ICTY. Gotovina was the first in a run of three high profile acquittals, of which two (Gotovina and the more recent Perisic) involved defendants previously sentenced to lengthy jail terms by their respective Trial Chambers.
It was a good discussion, which I can summarize briefly. Tomislav Dulić of the HVC opened by contrasting many historians’ acceptance of the now notorious “Brioni transcripts” as establishing the intent of the Croatian Government to expel Serb civilians from the Krajina region in 1995, against the Gotovina Appeals Chamber judges’ reluctance to convict in the face of ambiguities in the recordings.
Mark Klamberg of Stockholm University followed with a cogent legal analysis of Gotovina (available here on his blog). He noted that judicial fact-finding is necessarily narrower than historical fact-finding, both in order to speed the conclusion of cases and secure the stability of their outcomes, but pointed out a number of troubling questions raised by the Gotovina decision, including the peremptory rejection of the Trial Chamber’s finding of a joint criminal enterprise (JCE) to expel the Krajina Serbs based on the collapse of a single element in the case for a JCE (related to mortar targeting).
Roland Kostić (HVC) then presented some of his findings from repeated surveys in Bosnia, noting how the Tribunal’s rather modest efforts to explain itself have long since been marginalized by a torrent of predictable and frequently dogmatic local spin (among other glum statistics, it seems the average Bosnian currently ‘tunes in’ to the ICTY about once a year).
I contributed as well, with a post-mortem of the various post-mortems of Gotovina, et.al., including the current blame debate between those who see a well-earned rebuke to an overreaching and under-informed Del Ponte Office of the Prosecutor (OTP) and those who see the Meron Appeals Chamber as obtusely pedantic at best and politically motivated at worst. The fact that both sides largely agree that the resulting acquittals represent an institutional failure, particularly with regard to the victims of the war, is cold comfort.
All in all, one came away with the impression of an institution that had lost its way, and, being burdened with far too many expectations, looked set to achieve few of them. On the other hand, the crisis may have spurred a trend toward clearer thinking on what the Tribunal really can and should do. Richard Dicker at Human Rights Watch recently pointed out that reconciliation can never be a realistic short-term goal for any institution and deterrence remains elusive, but that international trials nevertheless “can, by honoring victims, rendering justice and imposing punishment on the guilty, demonstrate the rule of law in the communities most affected by the crimes.”
The fundamental importance of restoring civic trust by reaffirming norms subverted by mass atrocities has been a central theme for the current UN Special Rapporteur on transitional justice issues, Pablo de Greiff. A recent post in EJILTalk on the current concentration camp guard trials in Germany by Kai Ambos forcefully underscores this point:
Punishment reconfirms and thus restores the norms which have been broken by the criminal act. Thus, with punishment the law reaffirms itself against its negation, … . In this perspective punishment is supposed to strengthen the society’s trust in legal norms and therefore to ensure that the people act according to the law…. That goes far beyond a mere symbolic effect.… For without the society’s trust in legal norms and of course in the institutions which apply these norms, no state can permanently claim any legitimacy vis-à-vis its society.
So there is still an important job for the ICTY to complete, in other words. However, it is unlikely to happen if the prior OTP and the current Trials Chamber keep conspiring to produce unbroken acquittals. Meanwhile, there seems to be little public soul-searching going on at the Tribunal itself. The institution’s twentieth anniversary passed in near-funereal silence outside the Hague, but was celebrated there with diagrams and speeches that seem to exude damage control. While all involved cited undoubted successes on the part of the Tribunal, there was a sense between the lines of the institution seeking to reassure itself of its importance.
This week, however, the ICTY Trial Chamber pulled off the remarkable feat of creating yet more confusion, and this in the course of a mere 48 hours. First, on Wednesday, the Trial Chamber chalked one up for the prosecution in the case of six Bosnian Croats accused of engineering atrocities in the southern Bosnian region of Herzegovina. The crimes alleged were severe and the defendants were dealt out correspondingly hard time:
Jadranko Prlić, former president of the Croatian Defence Council (HVO), and later of the government of the Croatian Republic of Herceg-Bosna, was convicted to 25 years of imprisonment; Bruno Stojić, former head of the HVO department of Defence received the punishment of 20 years in prison; Milivoj Petković, Chief of the HVO Main Staff and later deputy commander of the HVO forces – 20 years; Valentin Ćorić, Chief of the Military Police Administration and later on Minister of the Interior – 16 years.
Rather boldly in light of the foregoing Appeals Chamber decisions, the Prlic Trial Chamber not only found a joint criminal enterprise, in this case aimed at “the establishment of a Croatian territorial entity [within Bosnia] … to enable a reunification of the Croatian people” but also linked it explicitly with the top leadership in neighboring Croatia, including then-President Franjo Tudjman. While the decision is a serious piece of work comprising 2,600 pages (see summary here), wags in the twittersphere such as my former colleague Toby Vogel could not resist drawing the obvious conclusion:
Lots of guilty verdicts today for the appeals chamber to overturn. #ICTY
— Toby Vogel (@tobyvogel) May 29, 2013
And as if to underscore that the Trial Chamber can also choose to play it safe, a subsequent decision was announced today in the case of Jovica Stanišić and Franko Simatović, alumni of the Serbian State Security Service accused of playing a supporting role to ethnic cleansing in Croatia and Bosnia on both a JCE and an aiding and abetting theory of liability. As in Prlic, the alleged JCE went to the very top, including former President Tudjman’s former counterpart in Belgrade, Slobodan Milošević. And to make a long story short, the Trial Chamber acquitted in explicit reliance on the stringent criteria for both JCE and aiding and abetting liability enunciated recently by the Appeals Chamber.
There will no doubt be a great deal of impressive analysis by those with time to read 2,600 page documents, as well as intense speculation over the fate of the Prlic decision as it moves inexorably toward the tender mercies of the Appeals Chamber. There may also be further rounds of soul-searching about the legacy of the Tribunal. However, the Prlic decision, at least, gave the momentary impression of a Tribunal that had returned to work. Horrifying crimes were committed not long ago and not far away from the Hague, and the Prlic Trial Chamber delivered a thoroughly documented accounting of some of those crimes in attributing responsibility. Despite the accumulating failures of the Tribunal to perform this basic task with regularity, Prlic gave a bit of oxygen to those who still hope that the Tribunal can make a difference.
The Prlic judgment, in particular, also serves as a reminder of the tangled web of personal and political relations that were fractured and re-woven by the conflicts in the former Yugoslavia and their aftermath. A case in point is the main defendant himself, Dr. Jadranko Prlic, who has been through the same revolving door as many of his predecessors in the Hague, from early beginnings as a colorless Yugoslav bureaucrat through metamorphosis into a facilitator of wartime ethnic atrocities and subsequent rehabilitation as “a man we can work with” in the immediate post-Dayton era – and then on to Scheveningen when the stars once again realigned.
My recollection of Dr. Prlic from working at the OHR in the late-1990s was of an egghead in a three piece suit who turned up on the evening news a lot, the kind of guy who could calmly glom onto a fractious post-war Foreign Minister post for five years and might credibly be invited to come and speak at the US Institute of Peace when he happened to be passing through town. However, while I had no direct contact with Dr. Prlic, I can hardly say the same for his co-defendant Valentin Coric.
As a wet-behind-the-ears legal officer at the Office of the High Representative (OHR) in 1998, I was tasked with coordinating a committee to redraft the immigration and asylum law in Bosnia. The less memorable original Croat member moved on at some point, and rumors circulated that his replacement had a challenging wartime past. I recall pausing a bit over the early 1990s engagement as a ‘military engineer’ for the notorious Bosnian Croat HVO listed in his resume. All I can recall about the man himself from the meetings he sat in on was that he was built like a Yugoslav point guard, but seemed nervous and out of his depth. Despite the commonality of their current situation, it seems Mr. Coric was far less suited to his stint in politics-as-a-bolt-hole than Mr. Prlic.
Thinking of the week’s decisions, I also recall a Saturday morning in 2004, my last spring in Sarajevo, when I found myself having an al fresco coffee at Restaurant Michele, observing the first stirrings of pedestrian life on Ferhadija’s worn cobble-stones, and leafing through Oslobodjenje. There was a column I wish I had clipped about one of the defendants in the current case who had just been arrested at the time, accused of ordering the destruction of the bridge in Mostar. Turns out his father had been the Partisan general assigned by Tito to hunt down and eliminate remaining Croat nationalists in the Mostar area after World War II. As a young boy, the father had walked over the Old Town bridge to school every day. Urbicide, fratricide and patricide, marinated in silence for half a century and then scorched to perfection.
That line of Churchill’s about the Balkans producing more history than they can digest? I think it may be about time to let the digesting begin. One can only hope for the sake of all involved that the Trial Chamber in Prlic proves to be both bold and well-founded in equal measure.