There is no doubt that war crimes happened in the aftermath of Operation Storm. Croatia’s offensive in the summer of 1995 to retake Krajina left a wake of destruction. The flood of ethnic Serb refugees and murdered civilians were evidence enough. The only question was whether or not justice would ever be served.
It took more than a decade, but last year the International Criminal Tribunal for the former Yugoslavia sentenced Croatian Army Generals Ante Gotovina and Mladen Markač to 24 and 18 years in prison respectively for their role in Operation Storm. A week ago the Court reversed course and ordered the immediate release of Gotovina and Markač.
The verdict came as a surprise to most analysts and politicians. Massive celebrations were held in Croatia, filled with—albeit watered down—expressions of the nationalistic spirit straight out of the nineties. Some went so far to hail the Court’s ruling as the symbolic end to the war.
Upon his return to Croatia, General Gotovina appealed for people to look forward, and said that the homes abandoned by ethnic Serbs during Operation Storm belong to them as much as his home belongs to him. General Gotovina also recognized that although the Court found him innocent, war crimes had indeed taken place—a position maintained by the Appeals Chamber.
Accordingly, many important questions remain. How can the same court on the basis of the same evidence go from 24 years to zero? If Gotovina and Markač are not guilty, who is? How is it possible that more than ten years of work and resources spent by ICTY prosecutors has led to no one being convicted? Above all, how will the victims of these war crimes, their families, as well as all those that left their homes 17 years ago get at least some sense that justice has been served? How can they look forward?
Operation Storm was a legitimate military operation of Croatian army and police units aimed at reintegrating occupied territories, an operation that took place after rebel Serb leaders rejected a proposed international settlement. The war crimes that followed—some of them months after the initial operation—were not limited to individual incidents. Hundreds of civilians were killed, thousands of houses systematically burned, and more than 150,000 people became refugees.
These facts were first established by the Croatian Helsinki Committee for Human Rights, confirmed by other organizations. and reconfirmed in the ICTY proceedings. Furthermore, the Croatian government pursued discriminatory policies towards ethnic Serb refugees in the aftermath of Operation Storm and in many ways obstructed the return process for years to come.
At this stage there are more questions than convincing answers. There are many (former) ICTY advocates whose faith in the court and in international justice has been shaken by this verdict. The tribunal is certainly not a political court, but there has always been a significant political dimension to its work. From its establishment to the process of conditionality for EU accession all the way though to the Court’s imminent closure, there has always been a window open for political vibrations of different sorts. Viewed from this perspective, the recent judgment is yet another turn on a rocky road, and another painful setback for war crimes victims and their families.
The political dimension of the Operation Storm case itself is also rather evident. At one point the fate of Croatia’s EU accession rested directly on the words of Chief Prosecutor Carla Del Ponte. Indeed, for a long time Croatia said one thing while doing another. The Office of the Prosecutor lost focus, and became the political arm of ICTY. If the window is left open for politics the wind can come in from different directions.
I don’t believe the ICTY judges served the interests of a government or lobby group, but as any person their thinking may have been affected. Now is not the time to plunge into conspiracy theories. Perhaps in time we will understand how the verdict came to be. But as far as the legal aspects are concerned, many former ICTY employee, legal experts, and analysts have pointed to mistakes in the indictment. The decision to include the 200 meter standard for excessive bombardment as evidence of unlawful attacks was clearly a mistake: an attempt to create a novelty in international criminal law that backfired completely. In fact, this is the one thing that all five judges in the Appeals Chamber could agree upon. The idea that the generals participated in “a joint criminal enterprise” was another risky call, especially considering that the initial indictment was conceptualized in relation to the role of higher level military officers and politicians, including President Tuđman.
To me it seems logical that the focus should have been on the issue of responsibility for the crimes. There was no strategic plan for ethnic cleansing because such a plan was not necessary. Ethically this raises all sorts of questions, but legally it shifts the focus on determining responsibility. The responsibility of the Croatian state (from President Tuđman downwards) lies primarily in relation to what was not done, an issue mentioned by Prime Minister Milanović right after the verdict was announced and overlooked by many. However, instead of focusing on the issue of responsibility, the prosecutors stuck to the notions of excessive bombardment and joint criminal enterprise, and as recently as this August, the Prosecutor’s office did not seriously respond to questions posed by the Appeals Chamber.
For this reason we have to look deeper at various aspects of ICTY’s final verdict. The Court was not apolitical or completely impartial until last Thursday. It did not become pro-Croatian overnight. The same people that applauded the ICTY for years cannot now alter their assessment fully and remain convincing.
The question now is what happens next? Will the ICTY decision lead to an end of effective processing of war crimes in Croatia, as human rights activist Žarko Puhovski fears? In the second half of the nineties the President of the Supreme Court of Croatia publicly stated that ethnic Croats could not have commited crimes in a war of self-defense. In fact, they did and Croatian courts have proven this in a number of cases since. Former generals Mirko Norac and Branimir Glavaš were sentenced to prison for war crimes as were several other Croatian army officers.
What happened in the aftermath of Operation Storm is not yet over. There are two ongoing cases in front of Croatian courts, and the notorious case concerning crimes committed in Varivode was recently returned to the investigation stage. A week after the ICTY’s ruling the State Attorney’s Office of Croatia asked the Court to transfer all documentation so that further investigations can be carried out; however, the road ahead will be full of obstacles and the challenges. As ICTY winds down should we not think even more seriously about the establishment of a regional truth and reconciliation commission such as the initiative for REKOM?
The ICTY’s legacy will remain mixed. The Court has had tremendous success in apprehending all indicted persons and pushing national judicial bodies to carry out their duties (which otherwise would not have happened). Although mistakes have been made, the ICTY has had significant results in terms of the actual proceedings. But almost two decades since its establishment, the Court has clearly not set a solid basis for truth and reconciliation in the region. The continuation of national judicial proceedings for war crimes, the relentless efforts of human rights organizations and other engaged civil society actors, as well as new initiatives aimed at overcoming recent divisions in the region should be supported.
As Croatia gets ready to join the European Union in 2013, the only thing that is certain is that the struggle for justice, reconciliation and fundamental open society values is far from over.