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.
