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.