War as a Joint Criminal Enterprise: The View from The Hague

On 16 November 2012, the International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted Ante Gotovina and another prominent figure of the “Croatian war of independence,” of all the charges brought against them in connection with Operation Storm, a major Croatian military action launched in August 1995.

During Operation Storm, the Croatian military recaptured most of the country’s Krajina region, where the ethnic Serb population had established its mini-state during the disintegration of the former Yugoslavia in 1991. The Croatian offensive was accompanied by serious atrocities against the Serb population. Some 200,000 Serbs fled within a few days from the Krajina; most of them never returned.

The Prosecutor of the Court charged Gotovina, then Colonel-General of the Croatian Army, with persecution, deportation, murder, cruel treatment, plunder of public and private property, and other heinous crimes. To be sure, the Prosecutor did not allege that Gotovina personally committed all these crimes. His responsibility was said to consist in sharing the objectives of, and significantly contributing to, a “joint criminal enterprise”, whose common purpose was to permanently remove the Serb civilian population from the Krajina by force or threat of force. The Prosecutor specified two main contributions of Gotovina to this “joint criminal enterprise” of the Croatian political leadership: first, the ordering of unlawful artillery attacks against Knin, Benkovac, and Obrovac, towns in the Krajina region and, second, the failure to prevent or investigate crimes committed by his subordinates against Serb civilians in the Krajina.

In 2011, the Trial Chamber of the Court found Gotovina guilty of the charges and sentenced him to 24 years of imprisonment. The Appeals Chamber of the Court, however, completely reversed the conviction. Why?

From a legal point of view, the reasoning of the Appeals Chamber seems rather bizarre. It starts with identifying a certain error committed by the Trial Chamber and goes on to show that the whole conviction rested on this.

The basic error identified by the Appeals Chamber was the “200 Meter Standard,” a criterion used by the Trial Chamber to assess the lawfulness of artillery attacks (judging artillery strikes more than 200 meters from legitimate targets as illegitimate strikes). In an exercise called the “impact analysis,” the Trial Chamber had applied the 200 Meter Standard to documented artillery impact sites in the said towns and concluded that the artillery attacks against them were unlawful.

The Appeals Chamber found that the 200 Meter Standard was not a reasonable criterion. It did not undertake to establish the correct standard, however. Instead, it simply discarded the whole impact analysis performed by the Trial Chamber as inconclusive.

Having revised this part of the reasoning, the Appeals Chamber rushed towards the complete reversal of the trial judgment. First, it established that other evidences – if considered independently of the impact analysis – did not prove beyond doubt that the artillery attacks were unlawful. Second, it found that the persuasiveness of the evidences showing Gotovina’s “failure to make a serious effort to prevent or investigate crimes” rested on the additional finding that he ordered unlawful artillery attacks. This finding being discarded, the remaining evidence no longer proved that Gotovina failed to prevent or investigate crimes.

By arriving at this point, the Appeals Chamber had in effect cleared Gotovina of both charges against him which formed a significant contribution to the “joint criminal enterprise”. This would have sufficed for his acquittal. The Appeals Chamber could have said that, although a “joint criminal enterprise” aiming at the permanent removal of the Serb civilian population from the Krajina region existed, Gotovina personally did not contribute to it, hence he was not guilty.

Remarkably, the Appeals Chamber went beyond that and established that the “joint criminal enterprise” of the Croatian political leadership did not exist. The Trial Chamber’s conclusion on the existence of a “joint criminal enterprise” had mainly been based on the following findings: (1) the anticipation of refugee flows in government documents leading to Operation Storm; (2) the crimes committed by the Croatian military against the remaining Serb population; and (3) the discriminatory policy imposed by the Croatian government against the Serb minority after Operation Storm. The Appeals Chamber found, however, that these facts had been considered by the Trial Chamber “in light of” its most central finding, namely, the unlawful artillery attacks against the said towns. This having been reversed, the existence of a “joint criminal enterprise” was not “the only reasonable interpretation of the circumstantial evidence on the record.”

Politically, this is the most significant aspect of the judgment. The ICTY thus acquitted not only Gotovina, but also the entire Croatian political leadership, and, by extension, the Croatian people of the charge of having committed organized “ethnic cleansing” against the Serbs during Operation Storm. This is why huge crowds celebrated in the streets of Croatian cities when news of Gotovina’s acquittal broke.

For the Serbs, by contrast, Gotovina’s acquittal seems to be only the latest in a series of unfair decisions from the side of the “international community.” It strengthens the feeling that Serbs are held solely responsible for the tragic events of the 1990s. It reaffirms the impression that similar deeds are treated differently depending on who committed them. As noted in a 2008 article against Kosovo’s independence, Serbia’s 1999 military operations in Kosovo and Croatia’s 1995 military offensive in the Krajina were similar actions, but their political treatment by the international community was anything but equal. Until the Gotovina judgment, the Serbs may have hoped that at least their legal and moral evaluation would be the same. This hope has now been shattered.

From this perspective, the judgment looks even more troubling – irrespective of its final outcome. Can it be that not only decades of imprisonment of a person but also the honor of a nation depends on a single artificial concept called the 200 Meter Standard? There seem to be a fundamental problem with the approach of international criminal tribunals as such.

The problem is that international criminal tribunals adjudicate crimes by treating tragic historical events as charges against individuals. In fact, it was the charge of “conducting an ethnic civil war” that was raised against Gotovina under the name of a “joint criminal enterprise.” This approach personifies historical events and distorts the complex processes that give rise to them.

The Court could easily have convicted Gotovina for ordering unlawful artillery attacks against the cities of Knin, Benkovac and Obrovac if it had undertaken to find a reasonable legal standard to apply. This would have been a just conviction. Instead of concentrating on this task, however, the Prosecutor and the Trial Chamber left no stone unturned to put the accused in prison for the rest of his life for participating in an ethnic civil war in order to deter future generations from doing so. The Appeals Chamber, on the other hand, went out of its way to overturn just this conviction – with the result that it overturned the whole judgment.

This essay first appeared on 11 January 2013 on Paprika Politik, the blog of Common Sense Society, Budapest.

1979 and the Collapse of Omnipotent Rationalism

In a provocative new book, “Strange Rebels: 1979 and the Birth of the 21st Century,” veteran foreign correspondent Christian Caryl argues that our century began in 1979. This was the year, for instance, when Margaret Thatcher won the general election in the UK and launched her bold agenda of privatization and de-regulation. The following year, the same political principles prevailed in the United States with Ronald Reagan’s landslide presidential victory. It was also in 1979 that Deng Xiaoping, China’s new leader, began to liberalize the Chinese economy after three decades of Maoist collectivism; collective farms were dismantled and the peasants enjoyed increased freedom to manage their land and sell their products on the market. At the same time, the Chinese economy was opened up to foreign capital by means of special economic zones.

Other important changes took take place in 1979 as well. John Paul II, who had been elected pope the preceding year, began his worldwide pastoral visits, which would serve to lend Catholicism a more open and modern image. One of his first trips was to his native Poland and dramatically showed that religion remained important for people long living under communist rule. In Iran, an Islamic revolution led by Ayatollah Khomeini overthrew the rule of the Shah, who had led one of the most secular regimes in the Middle East. In Afghanistan, Soviet troops came to the help of a socialist government, which had been facing an Islamist insurgency since it had seized power the previous year. The prolonged and costly war would be one of the main reasons for the collapse of the Soviet empire a decade later.

Caryl interprets these events as the victorious return of the dual factors of market and religion to the world stage, two forces that had long been suppressed by an arrogant rationalism. Beginning in 1979, the strong beliefs in central planning and secular perfectionism that had enjoyed significant currency for years were challenged when the chaotic, even destructive forces of market chance and religious fervor returned “with a vengeance,” writes Caryl. “The forces unleashed in 1979 marked the beginning of the end of the great socialist utopias that had dominated so much of the 20th century.”

Does Caryl’s thesis apply to Hungary?

In this country, the year 1979 does not bring to mind any particularly dramatic memory. But if one looks closely, one finds that this year witnessed two key economic turning points that indicated the collapse of omnipotent rationalism in Hungary as well. First, 1979 was the first year in more than two decades in which the average real wage fell — this decline would continue until the democratic transition and beyond (see here and here). It was also the year in which the accumulation rate (the proportion of investments as compared to consumption in the GDP) foundered: after a rapid increase, the figure plateaued at a record high of 38% in 1978. Starting in 1979, however, the rate of accumulation gradually plummeted by half to hover around 19% by 1990—it would remain between 18% and 23% over the next two decades (see here, here, and especially here).

These profound economic changes in Hungary correspond to the historical development described by Caryl on the global scene. Before 1979, the communist government in Hungary had aimed at catching up with the West via a society-wide, centrally planned modernization effort. In order to achieve this, they had withdrawn resources from consumption and social services and had invested everything they could in the productive economy. Unlike Stalin, however, Hungary’s communist leaders did not dare sacrifice existing living standards, so they instead raised foreign credit to simultaneously finance a modest improvement in living conditions.

Obviously, this model of development proved unsustainable, and it was in 1979 that this hyper-rational, scientifically socialist agenda began to unravel. Although less noisily than the United Kingdom, China, or Iran, Hungary made its own move away from 20th century rationalism in the momentous year of 1979.

This essay first appeared on 18 July 2013 on Paprika Politik, the blog of Common Sense Society, Budapest.

Gender, the Big Indo-European Problem

The past years have seen a steady rise in the global appeal of identity politics. Following its victories in academic and political discourse, it is now on its way to conquer the corporate world. Firms are increasingly expected to implement policies promoting the elevation of members of "minority" or historically "oppressed" groups into leadership positions. As a result, identifying with certain groups has become much more important than it was in the golden days of liberal individualism.

The question is which group identities count in this new paradigm - and which don't.

The Texture of the Other

Female figurine from Neolithic "Old Europe", which
archeologist Marija Gimbutas argued was a matriarchal
culture destroyed by the invasion of Indo-European
 warriors (credit: unveilromania.com)

Liberal individualism was a fairly straightforward concept: Every individual had equal intrinsic value. Political and economic structures were simply meant to provide the same opportunities and protection to each individual irrespective of any external feature – such as skin colour, ethnicity, sex or social background – which accidentally differentiated them. 

Proponents of identity politics argue – similarly to Marxism – that this principal equality failed to bring about a more meaningful levelling of social opportunities because deeper structures continued to favour those belonging to certain dominant groups.  Marxism pointed to the unequal distribution of wealth as such a deeper structure. It saw the dominant group in the bourgeoisie, which controlled the means of production. Identity politics has devised a more sophisticated theory. It argues that it is certain cultural codes – or discourses – disseminated in society that serve to establish a dominance hierarchy favouring certain groups over others. 

Yes, It’s 1979 All Over Again

It is amazing to see how people change. With Donald Trump's victory, we are fortunate enough to witness this amazing phenomenon once again. We are fortunate because it happens pretty rarely. In fact, such a radical change of mankind's spiritual condition occurred only three times in the past 150 years. In order to understand the significance of Trump's rise to power, it is useful to revisit these past epochs.

I really wanted to put a beautiful photo of "Mr Trump holding a mining helmet at a West Virginia rally" here but was unable to agree with Getty Images on the price. Maybe I should have consulted "The Art of the Deal" before I started bargaining. Fortunately, a prolific and highly influential hobby photographer came to my help (credit: Gage Skidmore).

"She called it the gold standard"

Departing from London to go round the world in 80 days, Phileas Fogg told his fellow club members with whom he had made the famous wager that “I am taking a passport with me, so that the various visas it will bear will enable you to check my itinerary when I return.” Notice that Fogg did not take the passport with him to be able to travel across the globe. It only served to document his journey – and even this was considered “unnecessary” by his friends, who would as well have trusted his “word as a gentleman”. A couple of days later he was once more reminded of the “futility” of passports by the British consul in Suez: “You know that a visa is useless, and that no passport is required?" This happened in 1872, before either Egypt or the Suez Canal came under British control.

Can Spengler Explain the Islamic State?

At university, I was sometimes jokingly accused of a tendency that, no matter what the actual topic was, the title of my writing assignments always began with “Spengler and the ...” If you take a look at my list of publications or even the posts of this blog, you will be able to establish that this was nothing more than a malicious falsehood. Still, Oswald Spengler remains a central point of reference to me and yes, sometimes I publish essays under a title featuring his name.

This and all other illustrations of this post are taken from
"Ali Baba and the Forty Thieves", a
filmstrip drawn by Sándor Lengyel, 1963.

All the more so as the range of nouns that can appear in such a title together with Spengler's name is virtually endless. Relying on his encyclopedic knowledge, Spengler wrote about almost everything. First and foremost, however, he was a civilization theorist. A recourse to his thoughts therefore commends itself most clearly when a phenomenon is examined in the context of the civilization that produced it. This is the case with the problem of how the Islamic State is rooted in Middle Eastern culture.

Scripts for the Future

My history teacher once said, “It is our loves that make life worth living.” By this measure, I have no ground to complain.

I encountered my first love at the age of 10, on a rainy autumn afternoon. I was in the 5^th grade, just having been allowed to return home every day right after the last class. The day-boarders of my class (i. e. those who remained in school for the afternoon) were brought to cinema once a month and we were invited to join them. That afternoon I was not sure if I wanted to go because the film's title reminded me of the action genre I did not like. Reluctantly, I went – and I was not the same person as I left the cinema. I fell in love with Back to the Future for the rest of my life.

The Power of Love

Hill Valley, 1955, as seen from the future
("Back to the Future", © Universal Pictures)

For a long time, I thought it was my interest in history which resonated so strongly with this time-travel movie. In fact, however, the film's protagonist does not travel back in time on a historical scale. He travels back in time on a personal scale, into a period which still lives on vividly in the memories of his parents. Instead of depicting a historical epoch, the film shows how a family's life was shaped by past events that happened to its members and how another turn of events could have led to a different form of life for the family and its members. It is this personal theme that has enchanted millions watching Back to the Future in the past three decades.

The Song Factor

This is the time of the year in which television talent shows come to their finals.

Of course there are many problems with these shows. At present, I only wish to point to the most fundamental one: They nurture the belief that it takes a talent to sing a song. Those participating in the competition think they will become stars because they can sing. Those watching the show think they will spend their evening in a meaningful way if they listen to other people singing. Both are wrong.

Doctor Faust with students and musicians in Auerbach's Cellar
(mural painting from around 1625 in Auerbach's Cellar in Leipzig)

These expectations represent a significant “rupture” in people's attitude to singing which occurred with the emergence of recorded music. Before that time, singing by oneself ranked among the most important sources of joy in people's life. Indeed, it was held in the same esteem as love and wine as evidenced by the adage “Wine, Women and Song”, variations of which were known in many languages. Please note that “song” in this context meant songs sung by ordinary people at everyday occasions, be it work, leisure or a love affair, whether on one's own or with others. It is from this cultural background that the multitude of folk songs arose.

In the twentieth century, the trinity of “Wine, Women and Song” gave way to that of “Sex, Drugs and Rock & Roll”. This change of expression symbolizes a general shift towards crudity in our lives. With regard to music in particular, it shows how the enjoyment of music recorded by a few selected "stars" took the place once held by the pastime of singing by oneself.

I remember an inscription hanging in my primary school that showed a motto coined by the famous Hungarian composer and music educator, Zoltán Kodály: “Let music belong to everybody!” In my youth I felt this motto was too pathetic and sappy. Today, I fully approve of the message it conveys: People should recognize that singing is not something extraordinary, not something that only stars or would-be stars are able or supposed to do. This insight would be the first step towards rediscovering the joys that singing can bring.

Wine and love can be next on the agenda.