Tag Archives: croatia

Reconciliation, or getting over losing to win in the Balkans

by Rhodri C. Williams

For several years now, I have provided periodic technical advice to a European Union funded program to aid refugees and displaced persons in Serbia. Although the deck has been stacked pretty heavily against the program’s clients and the rest of the world’s attention long since wandered from their plight, it means a lot to me to be able to continue participating in picking up the pieces from the conflicts that shocked me into political consciousness back in the distant 1990s.

My most recent trip came last week, for a training in Belgrade. Much on the way to Serbia was bracingly familiar, beginning with the blithe surliness of the nicotine-raspy JAT stewardesses who make you eight again and dealing with the cafeteria ladies as they slap a canned sandwich down on your bobbling tray. Belgrade itself was indecently unchanged, with its steady throng of cheerful and careworn pedestrians wandering amidst canyons of faded glory. Of all the Eastern European places I return to, Belgrade seems to change the least, not resisting so much as ignoring the tsunami of Benetton gentrification that rages all around it.

This is not to say that the politics haven’t changed. In many respects, its been a banner year for the West Balkans. As Besar Likmeta recently pointed out in Foreign Policy, the accession of Croatia to the EU on July 1 capped a sequence of breakthroughs ranging from the belated election of a true reform candidate in Albania to the political galvanization of Bosnia and most notably, the power-sharing agreement arrived at between Belgrade and Pristina. At first glance, the only parties that seem bitterly divided or incapable of applying the rule of law at all these days are within the Tribunal that was meant to fix all that (on which, see Eric Gordy’s latest ruthlessness here).

However, an atmosphere of palpable unease remains over issues like the delicate détente over Kosovo. The lawyers I met with last week exemplify the paradoxical nature of post-Yugoslav normalization. On one hand, there they are, Serb lawyers representing Serb clients in Serbian, working the Kosovo courts every day. The first time I went to Kosovo in early 2000, the idea was unimaginable (‘suicidal’ would not be out of place) and its realization gives some hope for a viable multi-ethnic future.

On the other hand, the lawyers had a laundry list of shenanigans, underhand, bureaucratic and worse. In many senses, the uprooted and impoverished clients they represent are the most easily dispensable part of a veritable mountain of irregularities and grievances accumulated during a decade of international administration. Property claims remain a significant issue, but must be viewed alongside unresolved disappearances, highly contested privatizations, potentially massive liability to the former employees of state firms and other pending calamities.

That said, the lack of trust remains striking. After dinner one evening, the conversation revolved around plots. Is this a blocking maneuver meant to distract us from that or wedge us out of there? There was some ironic laughter but an undertone of real worry. For Serbs living and working in Kosovo, a sort of elemental uncertainty that long since evaporated from more settled former war zones like Bosnia still clings.

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Svaka čast Croatia

by Rhodri C. Williams

And let me say how honored I am that you chose my birthday for accession to the EU! I’ve had a pretty complicated relationship with you in the past, I have to admit. On the positive side, I used to flee to you when the narrow valleys of Bosnia got me feeling fenced in and I needed to pop over that last rise after the Metkovic border crossing and let that view – the burnished expanse of the Adriatic – seep physically into me. We also used to pile out to the north, going hell for leather from Slavonski Brod along the ex-Highway of Brotherhood and Unity, anything just to hit Zagreb before the only Mexican restaurant in the West Balkans announced last call.

Beyond my personal enjoyment of your charms, I was also impressed in a grim way by your ability to stick it out as a small country in a historically tough neighborhood. The sort of existential problems you faced in the 1990s were unlikely anything I could imagine, having grown up in the protected suburban vastnesses of the 1970s US midwest. The problem, in my mind, was not (only) that you didn’t have clean hands (nobody did). The problem was that you couldn’t come clean about it. Of course, nobody else could either, but you, unlike the others, just galumphed right over your historical indiscretions like so many speed bumps on the boulevard to European integration.

So what is my beef? Well, I worked on property restitution in Bosnia. So I watched as the ‘international community’ in Sarajevo turned the screws on the Bosnians until they extended restitution to cover not only all private houses but also all socially owned apartments (with a few fateful exceptions of course). And I watched as the same international community in Zagreb gradually conceded points that we had gone to the wall over in Sarajevo and started to purge terminology like ‘tenancy rights’ from documents like EU accession progress reports.

I also worked on the OSCE and ICHR friend of the court briefs in the ill-fated Blecic case before the European Court of Human Rights, and assisted the Council of Europe Parliamentary Assembly’s attempt to push for uniform restitution standards in Europe. I marveled both when the ICTY condemned the uncompensated confiscation of 30,000 socially owned apartments as part of a broader plan to remove Serbs from Croatia, and when that ruling fell on a seeming technicality. And I am left to conclude that the relatively prosperous and self-confident Croatian political elite was simply not held to the same rigorous standards still being applied to their poor and less organized cousins in Bosnia.

The bottom line is that the country that declared independence in 1991 had a 12.2% Serb minority while the country that joined the EU today has a 4.4% Serb minority, and that little statistic patches over a lot of ongoing misery and unredressed violations. Now I know its still not an easy time for you what with sliding EU support and all the commentators cracking wise about how you fought your way out of one oppressive, economically troubled confederation twenty years ago only to fling yourself into another today. So I’ll say only this. It is entirely to your credit that you have entered the hallowed precincts of the EU but it is troubling that you did so with a certain number of skeletons clanking around in your luggage.

Of course, one might as easily find fault for this state of affairs in Brussels as in Zagreb. But pressuring countries that are already in to observe such niceties as the Copenhagen criteria and the rule of law is not the EU’s traditional strong suit. In any case, that is nothing that should prevent you from finding that it lies in your own best interest to engage sooner rather than later with your past. And doing so in a clear-eyed way would, at a stroke, remove many of the excuses holding back your EU-aspirant neighbors from doing the same. And maybe leave both the EU and the western Balkans in better shape as a result. So, congratulations, and good luck as part of the European project of building a future worthy of the sacrifices and suffering of the past.

The Yugoslavia Tribunal produces a new conviction and more confusion

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. Continue reading

The fog of war crimes prosecution – the ICTY Appeals Chamber acquits Perišić

by Rhodri C. Williams

The Appeals Chamber of the ICTY continued its run of high-profile acquittals yesterday, rejecting all the charges against former chief of staff of the Yugoslav Army (Vojska Jugoslavije or VJ) Momčilo Perišić. The real shock in this series came early, with the highly controversial and bitterly split decision releasing Croatian Generals Ante Gotovina and Mladen Markač last November. Two weeks later, the blogosphere took the acquittal of Kosovo Albanian former fighters Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj somewhat more in stride. Here, the case against the accused was known to be shakier and the Chamber managed a unified decision. 

So in some senses, the Perišić decision seems to establish a pattern. The Appeals Chamber appears to be applying a stricter level of scrutiny than anyone initially expected, and cases seen as relatively strong must therefore fall along with the shaky ones. Perišić appears to have been somewhere in the middle. As BBC notes, the Trial Chamber had sentenced Perišić to hard time – 27 years – for having knowingly supported Serb forces in Bosnia that carried out crimes against civilians in Sarajevo and Srebrenica. On the other hand, Perišić had already been acquitted of any direct involvement in crimes such as the Srebrenica massacre, and the remaining ‘aiding and abetting’ charges proved easy for the Appeals Chamber to unpick.

This is not to say that some legal controversy is excluded. In this case, the Appeal Chamber’s decision was not unanimous, and the lone dissenter, Judge Liu, asserts that the majority effectively raised the bar in a manner that “risks undermining the very purpose of aiding and abetting liability by allowing those responsible for knowingly facilitating the most grievous crimes to evade responsibility for their acts” (para. 3). However, whatever legal debates will arise from the relatively pithy 50 page decision in Perišić, a great deal of speculation will continue to focus on what remains unsaid. In discussing the earlier Haradinaj decision, I tried to get at what I considered to be some serious non-legal concerns about the ICTY legacy:

… the Tribunal’s jurisprudence remains not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

In discussing these issues, it is crucial not to fall into an unquestioning reliance on the same ethnic stereotypes and tropes that fuelled the war. Dunja Melcic provided a useful reminder on this point in her recent discussion on Greater Surbiton of the popular and media reception of the Gotovina judgment:

‘The Serbs’ didn’t perpetrate any act of genocide and there is no formulation in the Court’s documents that would justify such reckless language. A war-crimes tribunal should be the place where this supercilious ethnicistic treatment of the conflict and the war finds its end. What counts at the Court, is the crime and not the nationality of the accused.

It is nevertheless impossible to ignore the fact that the Court has become enmeshed between two opposing Yugoslav ethno-nationalist theses, either of which would gravely undermine the credibility of the Court if they could be proven, and – crucially – both of which are incompatible with the fundamental idea of the Court as an impartial judicial actor without political motives.

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Two weeks after Gotovina, the ICTY acquits Haradinaj defendants

by Rhodri C. Williams

Just as the controversy surrounding the recent ‘Gotovina decision’ by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) was beginning to subside, another bombshell. In this case (involving a re-trial), the Trial Chamber yesterday acquitted three Kosovo Albanians accused of torture and murder against Serbs and others in western Kosovo in the late 1990s, ordering their immediate release.

This decision will no doubt be turned inside out today in the blogosphere, and rightly so. Taken together with the recent Gotovina judgment, it is part of the swan song of an institution created with great hopes (mixed with a degree of healthy skepticism from some quarters) just as the great post-Cold War wave of belief in the restorative power of human rights and international justice arguably crested.

Having endured into the post 9-11 era (in large part due to inexplicable delays in acquiring its most prominent suspects), the Tribunal’s jurisprudence remain not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

This in itself is not a critique of the ICTY. The Tribunal can hardly be blamed if far more is read into their decisions than either they or those who shaped their mandate ever intended. However, it does place a particular onus on the Court to be seen to act professionally and impartially. Observers such as Marko Milovanovic have argued that the Appeals Chamber failed this test in Gotovina, overturning a unanimous and comprehensive Trial Chamber decision by means of a rancorously split judgment only sixty pages long.

So what impact can Haradinaj be expected to have on the debate? At first blush, both the parallels and differences with the Gotovina judgment are striking.

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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.

Bosnia twenty years on

by Rhodri C. Williams

Observant TN readers will have noticed that Halisa Skopljak’s recent guest posting on lingering return and restitution issues in Bosnia was taken down a few days ago. Halisa found it necessary to ask me to remove the piece for compelling reasons that I am not at liberty to disclose. However, I am hopeful that the post may return from its business trip shortly, allowing the broader public to benefit once again from her unique analysis of a little-known judicial case with important national (and even regional) implications.

In the meantime, I thought it might be worth pointing out a few contextual issues. First, the case Halisa describes is generating a good deal of political heat in Bosnia. Most recently, the Sarajevo based broadsheet Dnevni Avaz described this week’s eviction of Faik Zulcic from his home in the terms it is perceived by many Bosnians – as a judicially sanctioned and ethnically biased attempt to roll back the relatively meager gains achieved by those displaced persons that took the right of return set out in the Dayton Peace Accords seriously. As the Office of the High Representative (OHR) noted, in apparent response to Halisa’s posting, the decision threatens the “right of returnees to the peacefully enjoy their prewar homes.” With the story now having been picked up in Al Jazeera’s Balkan service, there is a chance it may soon hit the mainstream media.

Unfortunately the nature of this case tends to play into Bosnia’s post-war ethnic stereotypes; here, the high court of the Serb-dominated entity of Bosnia upheld the ruling of a (subsequently discredited) lower court judge in expelling a returned Bosnian Muslim from his home for failure to pay exorbitant and legally dubious compensation for improvements made by the Serb wartime occupant. However, as Halisa pointed out in her posting, this ruling comes as part of a nationwide failure to fully act in the spirit of the Dayton Accords. Indeed, the most significant ongoing return-related problem in Bosnia is arguably the failure of the Muslim-Croat entity of Bosnia to implement a European Court of Human Rights decision requiring remedies for the wartime confiscation of semi-privatized military apartments. In this case, the victims are overwhelmingly Serbs.

Given this context, one of the central contributions of Halisa’s post was to shift attention from the heated and frequently unconstructive political debate over these issues, and refocus it squarely on legal arguments and Dayton obligations. At a time when neighboring Croatia is on the threshold of the EU and the Bosnian political discourse is increasingly (and rightly) dominated by European integration issues, it is useful to recall that EU accession should not only signal a new beginning but also closure for the lingering grievances from the past. Supporters of Bosnia’s rapid accession should therefore be concerned by the case of Croatia, which is likely to enter the Union with a number of property and return-related skeletons still jangling in its closet. In fact, a comment on Halisa’s posting by ‘Chris’ touched directly on potential synergies arising from this connection:

Maybe the issue of so called unsolicited investments could be resolved the way it has been in Croatian with the State offering extra judicial settlements to temporary users of occupied properties for the investments made. This is the solution the EU pushed for in Croatia, maybe somebody within the EUSR office should remember about it.

Meanwhile, a few observers have noted the fact that it is now twenty years since the spring of 1992, when the full horrors of ethnic conflict cascaded across a beautiful country inhabited by resilient people who had already survived enough privations in the past and deserved a far better future. For me, it was a time of grim political awakening. As a Fulbright scholar in a sleepy town in northern Bavaria, I followed the blood-streaked headlines from not-at-all-so-far south, and felt the tipsiness of 1989 fade into something sadder and more realistic. However, Ed Vulliamy, who reported from Bosnia at the time, has reminded us of the fates of those who fell directly into the path of the war’s immeasurable cruelty and are still struggling with its legacy. Even twenty years on, it would be grossly unfair to expect ordinary Bosnians to just get over it, but one might ask more of their courts and elected representatives.