The International Criminal Tribunal for the former Yugoslavia has acquitted on appeal Momcilo Perisic, former Chief of Staff of the Army of Yugoslavia (VJ), who had previously been sentenced to 27 years in prison for war-crimes in Croatia and Bosnia-Hercegovina. He was one of only six officials from Serbia-Montenegro ever indicted by the ICTY for war-crimes in Bosnia. He was the only member of the high command of the Yugoslav People’s Army (JNA) or VJ ever indicted for war-crimes in Croatia or Bosnia, and the only former JNA officer from Serbia or Montenegro of any rank ever indicted over Bosnia. His acquittal means that, to date, no official or army officer of Serbia-Montenegro and no member of the JNA or VJ high command has been convicted by the ICTY for war-crimes in Bosnia. By any standards, this represents a monumental failure on the part of the Tribunal. Precisely what kind of failure, and whether it is a failure of the Prosecution or the judges or both, is open to debate.
Perisic’s acquittal follows the ICTY’s recent acquittals of Croatia’s Ante Gotovina and Mladen Markac, and of Kosovo’s Ramush Haradinaj. Those previous acquittals had provoked a veritable paroxysm of fury from Serbia’s politicians such as President Tomislav Nikolic, Prime Minister Ivica Dacic and UN General Assembly president Vuk Jeremic, who condemned them as proving that the ICTY was an anti-Serb and/or a political court. Commentators in the West widely agreed; an ill-informed rant by David Harland, former head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, upholding all the old Serb-nationalist stereotypes of the ICTY’s and West’s supposed anti-Serb bias, was published in the New York Times and received wide publicity even from reputable sources. People who had apparently been fairly satisfied with the ICTY’s not entirely glorious performance over the past two decades now emerged from the woodwork to denounce it in bitter terms.
The acquittal of such a high-ranking Serbian official, following the acquittal of two high-ranking Croats and one high-ranking Kosovo Albanian, provides further proof – if any were needed – that the ICTY is not ‘anti-Serb’. Perisic is, in fact, neither the first nor the most high-ranking senior Serbian official to be acquitted by the Tribunal; former Serbian President Milan Milutinovic was acquitted back in 2009 of war crimes against Kosovo Albanians.
Consequently, the Serbian government has now made a rapid U-turn in its view of the Tribunal. Prime Minister Dacic (also leader of the Socialist Party of Serbia founded by Slobodan Milosevic) had responded to the Gotovina and Markac acquittals by stating ‘This confirms the claims of those who say that the Hague Tribunal is not a court and that it completes political tasks that were set in advance’. Yet his reaction to the Perisic acquittal is that it ‘negates accusations about the alleged aggression of the Army of Yugoslavia against Bosnia and Croatia’. The latter conclusion is echoed by the Sense News Agency, which provides detailed overage of the activities of the ICTY and which claims that ‘Momcilo Perisic was the only senior official from Serbia and FR Yugoslavia convicted by the Tribunal and sentenced for crimes in Bosnia and Herzegovina. Slobodan Milosevic was charged with the same crimes, and the judgment can be considered as Milosevic’s posthumous acquittal for Sarajevo and Srebrenica.’
In these circumstances, there is naturally a temptation for those on the other side of the front-lines from the Serb nationalists – those who wanted to see the Serbian perpetrators of war-crimes in Croatia and Bosnia punished, and the victims receive justice – to cry foul, and to carry out a Dacic-style U-turn of their own. A temptation, that is, to say that the supporters of Milosevic, Seselj and Tudjman were right after all, and the ICTY is really just a kangaroo court whose verdicts are political. But this temptation should be resisted, both for pragmatic reasons and, more importantly, for reasons of principle.
Pragmatically, conceding that the ICTY is a kangaroo court whose verdicts are political means handing an enormous victory to those extremists – Serb and Croat, right-wing and left-wing – who supported the elements that carried out the war-crimes and that have always resisted the efforts of the ICTY to punish them. It is not for nothing that – both in the former Yugoslavia and in the West – ethnic cleansers, fascists and extremists have consistently opposed the Tribunal, whereas liberals, democrats and progressives have supported it. To reject the legitimacy of the ICTY and its verdicts means negating not only those verdicts we don’t like, but all the good that has been achieved by precisely this Tribunal, despite its undeniable numerous failures. The ICTY was the first international court to establish that the Srebrenica massacre was an act of genocide, paving the way for the confirmation of this fact by the International Court of Justice.
Immediately following the acquittals of Gotovina, Markac and Haradinaj, the ICTY in December of last year convicted Zdravko Tolimir, Assistant Commander of Intelligence and Security of the Army of Republika Srpska (VRS), for genocide, and in the process established that the group targeted for genocide by the VRS was the Muslim population of East Bosnia as a whole – not just of Srebrenica – and that the genocidal act extended to Zepa as well as Srebrenica. It is a tremendous breakthrough for the legal recognition of the Bosnian genocide beyond Srebrenica. If the Perisic acquittal is to be dismissed as a political verdict, it undermines the Tolimir verdict as well. You cannot have it both ways, and cheer the verdicts with which you agree while denouncing those you don’t like. Either the ICTY is a legitimate court or it is not.
Which brings us to the matter of principle: a genuine, legitimate court must have the right and ability to acquit, as well as to convict. If the ICTY were really a kangaroo court, all those accused would be convicted. Instead of which, we have proof of genuine pluralism, with panels of judges dividing 2-1 and 3-2 over major cases, and the Appeals Chamber reversing the decision of the Trial Chambers. Whatever his political views or personal inclinations, Judge Theodor Meron, presiding judge at both the Appeals Chamber that acquitted Gotovina and Markac and the one that acquitted Perisic, and currently under attack from critics for the acquittals, was in each case only one judge in a panel of five who came from different countries. He was the only judge who acquitted both Gotovina and Markac on the one hand and Perisic on the other, and was not even a member of the Trial Chamber that acquitted Haradinaj. The only other judge who was a member of the Appeals Chamber both for Gotovina-Markac and for Perisic was Carmel Agius, and he strongly opposed the acquittal of Gotovina and Markac but supported that of Perisic. Judge Bakone Justice Moloto was presiding judge both in the Trial Chamber that convicted Perisic and in the Trial Chamber that acquitted Haradinaj. In the first case, he dissented from the majority opinion but was outvoted – something that took place in September 2011, a mere year and a half ago. Hence, I must respectfully disagree with my colleague Eric Gordy, who argues that the acquittals all form part of a consistent policy on the part of the judges in this period.
The conspiracy theorists (among whom I do not include Eric) would either have us believe that the initial indictments of Gotovina/Perisic and their initial convictions were simply elaborate deceptions paving the way for the final, pre-determined acquittals. Or they would have us believe that whenever the ICTY convicts it is acting legitimately and whenever it acquits it is acting politically. But a court that only convicts and never acquits is not a genuine court. Even at the International Military Tribunal at Nuremberg that tried the leaders of Nazi Germany after World War II, three of the twenty-four defendants – i.e. one in eight of the high-ranking officials of Nazi Germany who were prosecuted – were acquitted. The whole point of a fair trial is that guilt is not assumed and defendants are assumed to be innocent until proven guilty.
The present author has, in the past, condemned the ICTY for retreating in the face of Serbian obstruction of its activities, citing such instances as the failure to indict most of the leading members of the Joint Criminal Enterprise from Serbia and Montenegro; the acquittal of Radovan Karadzic on one count of genocide; and the censoring of the minutes of the Supreme Defence Council. However, the acquittal of Perisic is not part of this pattern; he had already been arrested and convicted, so any Serbian resistance in his case had already been overcome.
It is one thing to accuse the Tribunal of shabby or unprincipled compromises and retreats, but quite another to accuse it of actually falsifying the guilt or innocence of suspects. Karadzic’s acquittal aside, the present author has never accused the Tribunal either of acquitting anyone guilty or of convicting anyone innocent. I did not, for example, condemn its initial conviction of Gotovina and Markac. Nor did I condemn its acquittal of Milutinovic or of Miroslav Radic (one of the three JNA officers indicted over the Vukovar hospital massacre). I am somewhat amazed that so many people, of all national backgrounds and political persuasions, have so little respect for the principle that it is ultimately for the court to decide who is innocent and who is guilty. Of course, it is entirely possible for a court to get things wrong and for a miscarriage of justice to occur. But a miscarriage of justice needs careful explaining as to how it was arrived at, not mere petulant denunciation.
In the case of Perisic, the essence of the disagreement between the Trial Chamber majority and the Appeals Chamber majority was that the first considered that ‘under the VRS’s strategy there was no clear distinction between military warfare against BiH forces and crimes against civilians/and or persons not taking active part in hostilities’, while the latter argued that ‘the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war’, albeit one that also engaged in criminal activities. Thus, the Trial Chamber considered that there was no clear distinction between the VRS’s lawful and its criminal actions, while the Appeals Chamber considered that there was.
Furthermore, the Trial Chamber ruled that though it could not be proven that the military assistance provided by Perisic to the VRS was specifically intended by him to support its criminal as opposed to its legal activities, nevertheless, since he clearly knew that his assistance would be used for criminal activities at Sarajevo and Srebrenica, as well as for legal military purposes, he was therefore guilty of aiding and abetting its criminal activities. The Appeals Chamber, by contrast, ruled that since it could not be proven that that he intended his military assistance to be used for criminal as opposed to legal military purposes, he could not be held to have criminal intent and therefore be held culpable for aiding and abetting the VRS’s crimes.
In other words, there is little disagreement between the two Chambers regarding facts of the case (so far as the Bosnian part of it is concerned) but principally over what conclusion should be drawn from them. The disagreement is not equivalent to that between the Trial Chamber and Appeals Chamber in the case of Gotovina and Markac, when the two chambers fundamentally disagreed over what the facts were; i.e. over whether the Croatian Army had deliberately shelled civilian targets with the intent of bringing about the removal of the Serb population from the so-called Krajina region. In the case of Perisic, the Appeals Chamber was not throwing out an unsafe conviction based upon a highly spurious interpretation of events, as was the case with the acquittal of Gotovina and Markac. Rather, it was expressing a different judgement on the nature of culpability to that of the Trial Chamber.
In this disagreement, my own sympathies are entirely with the Trial Chamber, and I applaud the dissent from the Appeals Chamber majority opinion of Judge Liu Daqun, who argued that by acquitting Perisic, the Appeals Chamber was setting the bar too high for convictions on grounds of aiding and abetting. However, personal sympathies aside and on the understanding that judges are supposed to be wholly impartial, the conclusions of either Chamber could legitimately be drawn from the facts. Unfortunately, the more conservative type of conclusion of the Appeals Chamber is the one I would have predicted judges at the ICTY usually to reach. My colleague Florian Bieber has made the reasonable point that ‘arguing that not all [the VRS's] activities were criminal is about as convincing as stating that the Mafia is not only involved in criminal activities and thus supporting it does not mean that one is “aiding and abetting” criminal activities.’ Following that analogy, Perisic could be compared to a powerful businessman who donates money, vehicles and properties to a charity known to be acting as a front for Mafia activities. Even if he clearly knew the charity’s true purpose, convicting him might not be so easy for the courts. Al Capone was, after all, only convicted for tax evasion.
This brings us to the ultimate reason for Perisic’s acquittal: the Prosecution’s case against him, resting as it did on a model of culpability that was judicially controversial, was not a strong one. The Prosecution was unable to prove his intent to commit crime, or that the assistance he provided to the VRS was intended to further its crimes. It was unable to link him directly to any specific crime. It could merely prove that he aided and abetted an army – the VRS – that he knew was engaging in criminal activities, but which was also engaging in lawful military activities.
The second reason why the Prosecution’s case was weak concerns the question of command responsibility. The Trial Chamber ruled that Perisic had no command responsibility over VRS forces, but that he did have such authority over the ‘Serb Army of Krajina’ (SVK – so-called ‘Croatian Serbs’), and in addition to aiding and abetting the VRS forces engaged in criminal acts as Sarajevo and Srebrenica, it convicted him for failing to punish the SVK perpetrators who shelled Zagreb in May 1995, killing and injuring civilians. But the Trial Chamber recognised that Perisic had ordered the SVK not to shell Zagreb and that it had disregarded his orders, choosing instead to obey the orders of Milan Martic, ‘President of the Republic of Serb Krajina’, to shell the city. This implicit recognition of Perisic’s lack of effective command responsibility over the SVK forces formed the basis for the Appeal Chamber’s overturning of his conviction for the war-crime at Zagreb – and even Judge Liu, who dissented from the majority over Perisic’s acquittal for Sarajevo and Srebrenica, agreed with the majority on this count. In other words, the Prosecution chose to indict someone who had no command responsibility over the Bosnian Serb forces guilty of crimes in Bosnia (Sarajevo and Srebrenica) and only ambiguous command responsibility over the Croatian Serb forces guilty of crimes in Croatia (Zagreb).
Having myself worked as a war-crimes investigator at the ICTY, I am not at all surprised that four out of the five judges (and one out of three in the original Trial Chamber) were not convinced by the Prosecution’s case. Generally speaking, cases involving high-ranking perpetrators far removed from the crime base are complicated to build unless their command responsibility is clear and unambiguous. Thus, it was relatively straightforward to build a case against Milosevic for war-crimes in Kosovo, where his command responsibility (as President of the Federal Republic of Yugoslavia) was clear. But more complicated to do so over Bosnia, where (as President of Serbia) it was not. In such cases where evidence of de jure responsibility is lacking, prosecutors need strong evidence of de facto responsibility.
But Perisic was not a Milosevic, Karadzic or Mladic. He was not a member of the top Serbian-Montenegrin-JNA leadership that planned and instigated the wars against Croatia and Bosnia, and his name is not listed among the principal members of the Joint Criminal Enterprise as laid down in the Milosevic indictments. He was commander of the Artillery School Centre in Zadar in Croatia, and in January 1992 became commander of the JNA’s 13th Corps, based in Bileca in Hercegovina. In these roles of less than primary importance, he participated directly in the wars in Croatia and Bosnia. Had the Prosecution chosen to indict him for war-crimes committed by his forces in this period, he would in all likelihood have been convicted. However, it did not.
The three principal phases of mass killing by Serb forces in the Bosnian war were the initial Serbian blitzkrieg of spring, summer and autumn 1992, resulting in the Serbian conquest of about 70% of Bosnian territory; the siege of Sarajevo, lasting from spring 1992 until autumn 1995; and the Srebrenica massacre of July 1995. The first of these claimed by far the largest number of victims; according to the figures provided by Mirsad Tokaca’s Research and Documentation Centre, more Bosniaks were killed in the Podrinje region (East Bosnia) in 1992 than in 1995, the year of the Srebrenica massacre. Moreover, the regular Serb army forces that undertook the initial blitzkrieg, until 19 May 1992, were formally part of the JNA and not only de facto but also de jure under the command and control of Serbia-Montenegro, in the form of the rump Yugoslav Federal presidency made up of members from Serbia and Montenegro, and of the high command of the JNA/VJ.
Had the ICTY Prosecution indicted the top JNA commanders and Yugoslav Presidency members (from Serbia and Montenegro) who commanded these Serb forces during the blitzkrieg, and prior to that the earlier assault on Croatia, they would no doubt have been successful and Serbia’s direct responsibility for the war in Bosnia would have been judicially established. A successful outcome would have been particularly likely, given that a couple of these war-criminals have been obliging enough to publish their memoirs or diaries in which they admit their planning of the war.
On 19 May 1992, however, the newly proclaimed Federal Republic of Yugoslavia (FRY), comprising Serbia and Montenegro, formally withdrew its forces from Bosnia, and a Bosnia Serb army – the VRS – formally came into being. Serbia’s political and military leadership thereby ceased to have de jure command and control over the Bosnian Serb forces. Furthermore, the Trial Chamber that convicted Perisic ruled that, in fact, the Serbian leadership in this period did not have even de facto control over the Bosnian Serb forces either – as did the International Court of Justice, in its own 2007 verdict in the case of Bosnia vs Serbia. The arrangement whereby the Bosnian Serb war-effort would be formally independent of Belgrade was put in place with the deliberate intention by Serbia’s leadership of avoiding accusations of aggression and involvement in the Bosnian war. Of course, Serbia continued to provide extensive financial and military support to the Bosnian Serb forces. But it should have been clear to any war-crimes investigator worth their salt that convicting FRY military commanders of war-crimes in Bosnia after 19 May 1992 would be a much more difficult task.
Momcilo Perisic became Chief of Staff of FRY’s army, the VJ, only in August 1993, and his indictment by the ICTY only covers his activities from this period. The policy of supporting the VRS had been put in place under his predecessors, and though he was a strong supporter of the policy and apparently institutionalised it, he was scarcely its architect. Even as regards the siege of Sarajevo – one of the two crimes in Bosnia for which Perisic was indicted – the Serb killings of civilians peaked in the spring and summer of 1992 and dropped considerably thereafter, dropping particularly from around the time that Perisic took over (according to Tokaca’s figures). Chief of Staff Perisic was therefore a singularly bad choice of individual to indict for war-crimes in the period from August 1993: though he was not a simple figurehead equivalent to President Milutinovic, and enjoyed real authority in a post of considerable importance, he was ultimately just one of Milosevic’s interchangeable officers; little more than a cog, albeit a large one, in the military machine, and moreover in a part of the machine whose culpability for actual war-crimes was secondary at the time, since the Milosevic regime had devolved most of the killing to a different part – the VRS.
Had the ICTY prosecutors ever really understood the chronology and organisation of the Serb aggression against Bosnia, they could have avoided such a poor decision. But it is clear from reading Carla del Ponte’s memoirs that she, at least, never had more than a muddled understanding of it. She nebulously attributes primary and equal responsibility to the war as a whole to two individuals, Slobodan Milosevic and Franjo Tudjman, but is unable to explain how that responsibility translated into the form that the war took. Although she deserves credit for eschewing a narrowly legalistic and lawyerly approach to war-crimes prosecutions and for attempting to view the big picture of the war – and therefore for insisting on genocide indictments in the face of conservative resistance from some of her colleagues – the big picture that she viewed was an erroneous one. Her starting point was not a global systemic analysis of the aggression, but apparently the big crimes with which she herself, as a non-expert on the war, was familiar – the siege of Sarajevo and the Srebrenica massacre.
In her own memoirs, del Ponte’s former spokeswoman Florence Hartmann recalls that del Ponte insisted, among other things, that Milosevic himself be indicted for Srebrenica and Sarajevo, in the face of resistance from Geoffrey Nice and others, who feared that they would not be able to convince the judges of the validity of the charge. Del Ponte was thus motivated by the commendable desire to ensure that Serbia’s leadership would not escape responsibility for the killing in Bosnia, but her analytical confusion ensured her plan would not go well. In light of Perisic’s acquittal, Nice’s caution, as recalled by Hartmann, appears entirely vindicated. That said, it is worth restating that Perisic’s indictment covered only the period from August 1993, when he was Chief of Staff, not the period when the Serbian aggression was actually launched and the largest part of the killings occurred. Thus, the claims made by Dacic and by the Sense News Agency, that the verdict exonerates Milosevic and Serbia of aggression against Bosnia and Croatia and of culpability in the siege of Sarajevo, are unfounded. Furthermore, as noted above, the Appeals Chamber has not actually changed the facts as established by the Trial Chamber: that the VRS was engaged in criminal activity, at Sarajevo and Srebrenica, and that Serbia’s army was aiding and abetting it while it was doing so.
On Twitter, Luka Misetic, the lawyer who successfully represented Gotovina, has succinctly referred to ‘Carla Del Ponte’s dark legacy: Perisic, Haradinaj, Oric, Gotovina, Cermak, Markac, Boskoski, Halilovic all indicted by CDP, all acquitted.’ The failure at the ICTY is that of a Prosecution that has repeatedly failed to secure the convictions of those it has indicted, not of the judges who were unconvinced by its cases.
David Harland, Executive Director of the Center for Humanitarian Dialogue and head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, recently published, in the New York Times, a polemic against the International Criminal Tribunal for the former Yugoslavia (ICTY). Responding to the recent acquittals of Croatia’s Ante Gotovina and Mladen Markac and Kosovo’s Ramush Haradinaj, he accused the Tribunal of ‘selective justice’ on the grounds that it has essentially only convicted Serb perpetrators, acquitted non-Serb perpetrators and failed to punish crimes against Serbs. This is, of course, the claim that hardline Serb nationalists and supporters of Slobodan Milosevic have been making for about the last two decades. Instead of carrying out any research into the actual record of the ICTY in order to support his thesis, Harland simply repeats a string of cliches of the kind that frequently appear in anti-Hague diatribes by Serb nationalists.
1) Harland writes: ‘More Serbs were displaced — ethnically cleansed — by the wars in the Balkans than any other community. And more Serbs remain ethnically displaced to this day.’
Harland doesn’t provide any statistical evidence to support this claim, but he appears to be conflating being ‘displaced’ with being ‘ethnically cleansed’, and to count all Serbs displaced by all the wars in Croatia, Bosnia and Kosovo as having been ‘ethnically cleansed’ – as opposed to being evacuated by the Serb authorities themselves, for example, or fleeing Sarajevo to escape the siege. The Appeals Chamber of the ICTY, in acquitting Gotovina, Markac and Haradinaj, rejected the prosecution’s claims that a Joint Criminal Enterprise (JCE) existed, on the part of either the Croatian or the Kosovar Albanian perpetrators, to bring about the removal of the Serb population from either ‘Krajina’ or Kosovo. Harland has not attempted to address the Appeal Chamber’s conclusions. He has simply re-stated a falsehood after two panels of judges carefully explained why the claims on which it was based are false.
2) Harland writes ‘Almost no one has been held to account [for these crimes against Serbs], and it appears that no one will be… Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics.’
It is untrue that nobody has been convicted by the ICTY for crimes against Serbs, or that no non-Serbs have been convicted. Bosniaks, Croats and Albanians convicted of crimes against Serbs include Rasim Delic, the top Bosnian army commander in 1993-1995; Enver Hadzihasanovic, former commander of the Bosnian army’s 3rd Corps; Amir Kubura, former commander of the 7th Muslim Mountain Brigade; Zdravko Mucic, Hazim Delic and Esad Landzo, former commanders and guard for the Celebici prison-camp; and Kosova Liberation Army camp guard Haradin Bala. Former Croatian Army major-general Mirko Norac was indicted by the ICTY for crimes against Serb civilians in the Medak Pocket in September 1993; his case was transferred to the Zagreb District Court, which convicted him.
3) Harland writes: ‘Altogether, almost all of the West’s friends have been acquitted; almost all of the Serbs have been found guilty.’
Harland appears here to be following the example of the extreme Serb nationalists who divide all former Yugoslavs into ‘Serbs’ on the one hand and ‘friends of the West’ on the other, and who claim that the ICTY ‘persecutes’ Serbs because they are independent of the West. Yet two of the most senior Serb officials to be convicted by the ICTY, former Republika Srpska president Biljana Plavsic and former Yugoslav Army chief of staff Momcilo Perisic, had pursued friendly relations with the West in the second half of the 1990s. On the other hand, being unfriendly to the West is scarcely something of which other prominent Serb indictees can be accused, since Western and Serb officials spent the best part of the 1990s collaborating with one another.
Ratko Mladic and Britain’s Michael Rose
Slobodan Milosevic and the US’s Richard Holbrooke
Ratko Mladic and the Netherlands’ Thom Karremans
Milosevic and Holbrooke again
4) Harland writes: ‘Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics. The Croatian leaders connived in the carve-up of Yugoslavia, and contributed mightily to the horrors on Bosnia and Herzegovina. I witnessed for myself the indiscriminate fury of the Croatian assault on the beautiful city of Mostar.’
Harland either does not know, or chooses not to mention, that the ICTY is currently prosecuting a group of prominent Bosnian Croat perpetrators for crimes carried out in Bosnia: Milivoj Petkovic, Jadranko Prlic, Slobodan Praljak, Bruno Stojic, Valentic Coric and Berislav Pusic. They are specifically being tried over the Croatian attack on Mostar. The ICTY has already convicted a large number of Croat perpetrators, including Dario Kordic, wartime leader of the Croatian Democratic Union in Bosnia and vice-president of the Croat Community of Herceg-Bosna, and Tihomir Blaskic, former commander of the (Bosnian) Croat Council of Defence (hence equal in rank to the Bosnian Serbs’ Ratko Mladic) and inspector in the General Inspectorate of the Croatian Army. NB Blaskic spent longer in prison than any Yugoslav army officer sentenced over the 1991-1992 Croatian war, except Mile Mrksic.
5) Harland continues: ‘The Bosnian Muslim leadership had deeply compromising links to the international jihahist movement, and hosted at least three people who went on to play key roles in the 9/11 attacks on the United States. I witnessed attacks by foreign mujahedeen elements against Croat civilians in the Lasva Valley.’
The accusation regarding the Bosnian government’s supposed links to the international jihadist movement and 9/11 attackers is sheer Islamophobic defamation. As regards the mujahedin, Harland either does not know, or chooses not to mention, that Rasim Delic, commander of the Bosnian army from June 1993 until the end of the war, was convicted by the ICTY over crimes carried out by the mujahedin against Serb civilians. On the other hand, the ICTY Appeals Chamber found in the case of Bosnian army 3rd Corps commander Enver Hadzihasanovic that he could not be held culpable for the crimes of the mujahedin, since ‘the relationship between the El Mujahedin detachment and the 3rd Corps was not one of subordination. It was quite close to overt hostility since the only way to control the El Mujahedin detachment was to attack them as if they were a distinct enemy force.’
As with the Croatian attack on Mostar, so with the Bosnian government and the mujahedin, Harland’s portrayal of the ICTY as simply having ignored the crimes in question reflects either an extraordinary degree of ignorance regarding the ICTY’s record, or is deliberately deceptive of his readers.
6) Harland continues: ‘And the Kosovar Albanian authorities deserve a special mention, having taken ethnic cleansing to its most extreme form — ridding themselves almost entirely of the Serb and Roma populations. Kosovo’s ancient Christian Orthodox monasteries are now almost the only reminder of a once-flourishing non-Albanian population… Haradinaj has been cleared of the charges brought against him, but the fact remains that hundreds of thousands of Serbs — mostly the elderly, women and children — were ethnically cleansed from Kosovo by the Kosovar Albanians.’
Again, Harland does not attempt to address the ICTY judges’ refutation of the claim that Kosovar Albanians had engaged in a ‘Joint Criminal Enterprise’ to remove the Serb and other non-Albanian population from Kosovo. His claims that the Kosovar Albanian authorities have succeeded in ‘ridding themselves almost entirely of the Serb and Roma populations’ and that ‘hundreds of thousands of Serbs — mostly the elderly, women and children — were ethnically cleansed from Kosovo by the Kosovar Albanians’ are further falsehoods: of the roughly 200,000 Serbs living in Kosovo before 1999, roughly half are still there.
7) Harland concludes: ‘What has happened at the tribunal is far from justice, and will be interpreted by observers in the Balkans and beyond as the continuation of war by legal means — with the United States, Germany and other Western powers on one side, and the Serbs on the other.’
To which one can reply: only by anti-Western Serb-nationalist politicians and ideologues and their fellow travellers.
Perhaps the most disgraceful statement in Harland’s tissue of falsehoods is his claim that ‘I lived through the siege of Sarajevo.’ In fact, as the UN’s head of Civil Affairs in Bosnia from June 1993 until the end of the war, Harland was scarcely a victim of the siege. Following the Markale massacre in Sarajevo of 28 August 1995, when Serb shelling killed 37 civilians, Harland engendered the myth that the Bosnians themselves might have been responsible; as he testified, ‘I advised [UN commander] General Smith on that one occasion to be a little unclear about what we knew about the point of origin of the mortar shell that landed on the Markale market-place in order to give us time, give UNPROFOR time, to get UNPROFOR and UN people off Serb territory so they couldn’t be harmed or captured when General Smith turned the key to authorise air-strikes against the Serbs. That is true. That was less than fully honest.’
Indeed, the UN in Bosnia collaborated with the Serb besiegers of Sarajevo and helped to maintain the siege. It obstructed any possibility of outside military intervention to halt the genocide. It maintained an arms embargo that prevented the victims of the genocide from defending themselves properly. It was complicit in the murder of Bosnian deputy prime-minister Hakija Turajlic by Serb forces in January 1993. It abandoned the ‘safe areas’ of Srebrenica and Zepa to Mladic’s genocidal operations. Romeo Dallaire said of the UN, ‘Ultimately, led by the United States, France and the United Kingdom, this world body aided and abetted genocide in Rwanda. No amount of its cash and aid will ever wash its hands clean of Rwandan blood.’ The same could be said of the UN with regard to Bosnia and Bosnian blood. Yet no former UN or other international official has been prosecuted by the ICTY or any other court for complicity in genocide or war-crimes. That is a real scandal of selective justice about which Harland has nothing to say.
This is a guest post by Dunja Melcic
The judgment of the Appeal Chamber, presided over by the eminent lawyer and Tribunal President Theodor Meron, to quash on all counts the first instance convictions handed down against two Croatian military commanders in connection with the so-called ‘Operation Storm’ (August 1995) is to be welcomed all round. This decision helps to repair the damage done to the Court’s reputation by the first instance judgment. Western agencies and media have generally reported this ruling as ‘surprising’. It is not; it is absolutely sound, as anyone will agree after rapidly reading through the summary of the judgment.
The five-member Appeal Chamber panel unanimously agreed that the Court had erred in its original conclusion that the attack on four towns in the area controlled by the Serb rebels was unlawful. The premise on which this finding was based was the Trial Chamber’s application of a principle which deemed all shots landing more than 200 metres from the target to be unlawful artillery attacks; the Trial Chamber’s conclusions gave no explanation for the adoption of this principle, the previously unknown ’200 Metre Standard’. ‘The Trial Judgement contains no indication that any evidence considered by the Trial Chamber suggested a 200-metre margin of error, and it is devoid of any specific reasoning as to how the Trial Chamber derived this margin of error’. Because all of the Court’s other findings were dependent on this finding, now proved incorrect, they were set aside by the majority at Appeal Chamber, two members dissenting. Since as a consequence there was no unlawful attack against the four towns, the Trial Chamber’s judgment that the Serb population were deported must fall.
The verdict of the Trial Chamber presided over by the Dutch lawyer Alphons Orie, handed down on 14 April 2011, was wrong and its finding of guilt absurd; highly so, even, the terse summary of the Appeal Chamber’s conclusion would suggest. The verdict had to be quashed because the good name of the International Tribunal would have been damaged beyond repair and along with it the reputation of a Court which has achieved historic advances in the field of international criminal law as a result of the investigations it has carried out since 1995, numerous soundly-crafted verdicts and important ground-breaking decisions. The prattling, ill informed international media may not have realised that the outstanding lawyer that Meron is, was unwilling to jeopardise his own reputation, his judicial prestige and his moral integrity by allowing such a defective judicial finding to stand unchallenged.
Some events during the trial and the evaluations of the Trial Chamber
Many negative reactions to the Appeal Chamber’s decision suggest that the critics were not aware of what was really happening at the trial against the three accused Croatian commander, nor did they look into the original verdict of the Trial Chamber with due commitment. According to this verdict, i.e. after a close reading of the full text of it, the Trial Chamber points to no satisfactory proof for the allegations made by the prosecution. The alleged criminal cases are extremely contradictory. One example is the case of the death of a Mrs Stegnajic, who was found dead in a well by her husband. UNCIVPOL and Jacques Morneau, the Battalion Commander of Canbat who testified at the Court, had found on the spot that it was a suicide. The Trial Chamber inferred from the ‘relevant evidence with regard to the alleged murder of Ljubica Stegnajic’ that it ‘does not allow for a conclusion that Ljubica Stegnajic was killed’. So the Court establishes that this was not the alleged murder and that ‘the Trial Chamber will not further consider this incident in relation to Count 1 of the Indictment.’ But there is more to the story. In mid-August 1995, Mrs Stegnajic remained alone in her house in Benkovac because her husband had been compelled to leave home by some marauding troops; he told the staff of the Canadian camp that ‘two Croatians, dressed in civilian clothing, with long hair, carrying AK-47 rifles, had come to his house and told him to go away’. It is difficult to understand why the Trial Chamber was discussing this case in extenso in the first place. And even less understandable is the Chamber’s relying on this case of indeed appalling harassment of civilians as a ‘finding’ of ‘deportation and forcible transfer’ of Serb population committed by the accused.
This example may serve as a demonstration of the Chamber’s method: where there was no proof, the Chamber invented constructions as ‘findings’: the prosecution did not prove the alleged unlawful artillery attacks, so the Chamber invented the 200-Metre Standard. Another curious invention by the Trial Chamber is the ‘whole towns’ theory. In the indictment, the prosecutors interpreted Gotovina’s orders to put the towns of Knin, Benkovac, Obrovac, and Gračac under artillery fire as a strategy ‘to treat whole towns as targets’ concocted by ‘members of the Croatian political and military leadership’. This is in open contradiction to the orders of the Croatian president from the same minutes the prosecutor was using, albeit skipping the passage stating that all targets should be precisely defined – every spot, direction and line. The Trial Chamber disregarded this; it dismissed the testimony of the Croatian artillery officer Marko Rajcic, involved in implementing that order, concerning ‘previously selected targets with specific coordinates in these towns’ to be ‘put under constant disruptive artillery fire’ because it deemed this testimony to contradict their conclusion about the disproportionate attack on Knin. This conclusion was drawn on the basis of the testimony by expert Harry Konings, whose expertise was disputed at the trial; the Trial Chamber was ready ‘to accept certain parts of witness’s testimony while rejecting others’. So it accepted the expert’s sagacious opinion that ‘firing twelve shells at Martic’s apartment’, had ‘created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects’ because ‘civilians could have reasonably been expected to be present on the streets of Knin near Martic’s apartment and in the area’ (emphasis added). Such purely hypothetical inferences are highly characteristic of the Chamber’s argumentation. Since the hypothetical ‘significant risk’ that could have caused civilian casualties was enough to diagnose ‘deliberate firing at areas in Knin’, the Chamber was not troubled by any doubt when it declared this ‘finding’ ‘inconsistent with Rajcic’s explanation of the HV artillery orders’.
The Chamber repeated its mantra of ‘whole towns’ over and over again, but lacking proof on the ground, it turned to synonymy like ‘towns as such’, ‘towns themselves’ or ‘on the whole’. This did not help much, and resulted in peculiar formulations such as: ‘the Trial Chamber considers that even a small number of artillery projectiles can have great effects on nearby civilians’ (emphasis added). There are numerous episodes of the same type in the verdict; it would take hundreds of pages to discuss all of the cases of faulty conclusions.
There is one additional matter I would like to address. Apart from the dubious 200-metre standard, the Chamber deemed the panic among the civilians caused by the use of artillery to serve as proof of the criminal responsibility of the accused basing it on the expert’s Konings evaluations: ‘Expert Konings also testified generally about the harassing and frightening effect the use of artillery can have on civilians, causing fear, panic, and disorder’ (emphasis added). So the Chamber had classified Konings testimony as credible although it had heard that this expert equalized without turning a hair the shelling of Knin (which lasted a few hours) with the shelling of Sarajevo (which lasted over three years). The Chamber heard together with everybody who was present at the hearing – through whatever means – that Konings lost his temper, raging against at in that moment actual Israeli artillery shelling against Hamas in the Gaza strip, that he regarded as an assault on civilians. All quotes above originate from the transcripts of the Tribunal. This outrage of the expert Konings (a fellow countryman of the presiding judge Orie) against Israel’s behaviour in the Gaza Strip in 2009, is not documented in the transcripts. It has been, I assume, ‘redacted’; I heard it by chance through the session’s broadcast. But this ‘incident’ alone should have been ground enough to put the expert’s credibility in question. In fact, it can be seen as the substantiation of his incompetence as an expert in this field. Prior to that, he was incapable of understanding that the order to shell a ‘catholic church’ meant the police station of the Serb rebels and not a place of worship. This St Ante monastery at Knin was seized by the Serb-rebel special police and everybody but the expert of the prosecution would classify it, i.e. the VRSK special police headquarters where the counter assaults were still being planned and coordinated, as a legal target for the HV’s artillery shelling, as in fact the Chamber has done too. This expert played the central role in the passing of the sentence of imprisonment for Gotovina and Markac, though he was not helpful for defining the 200 metre margin.
This short review may perhaps help to explain the reasons behind the Appeal Chamber’s decision. It has been outlined from the layman’s standpoint and meant to address the general public in order to explain the evident shortcomings of the original sentence by Trial Chamber.
A proposal for critics of the Appeals Chamber’s judgment
Against this background, the decision of the Appeal Chamber can be better understood. Also, the very wise decision to take the touchstone, the ‘200-Metre Standard’, of the Trial Chamber’s argumentations as a guiding principle for its revocation might be better understood. It was a shrewd method to reduce the complexity. The Appeal Chamber’s judgment resembles an elegant mathematical formula. This might well be one reason why it is encountered with such a lot of misapprehension.
Since the five judges disagreed heavily concerning other question, this was the one finding that they reached unanimously: ‘The Appeals Chamber unanimously holds that the Trial Chamber erred in deriving the 200 Metre Standard’. It is perfectly clear why this unanimity was inevitable: ‘the Trial Chamber adopted a margin of error that was not linked to any evidence it received’ (emphasis added). About such an error of judgment there can be no disagreement. Also it is not just a formalistic pettiness as some critics tend to think. It was the Trial Chamber that made the unlawful artillery attacks crucial to its verdict and it was the Trial Chamber that pinned all charges to the alleged unlawfulness of the artillery attacks based on its impact analysis. Since the evidence it had received through the prosecution was not sufficient, the Chamber constructed its one standard of impact error for which it had received no evidence at all.
The Trial Chamber itself already rejected a big part of the prosecution’s allegations about forcible expulsion, or in the words of the Appeal Chamber, it ‘declined to characterise as deportation civilians’ departures from settlements targeted by artillery attacks which the Trial Chamber did not characterise as unlawful’. Since the Appeal Chamber has quashed the finding about the unlawful artillery attacks in its entirety, it consequently infers: ‘Absent the finding of unlawful artillery attacks and resulting displacement, the Trial Chamber’s conclusion that the common purpose crimes of deportation, forcible transfer, and related persecution took place cannot be sustained’.(96)
The Appeals Chamber refers to the Trial Chamber’s conclusions as ‘mutually-reinforcing findings’; if we take the diplomatic aspects of this formulation away, one would speak rather of circular conclusions. Essentially, the Trial Chamber declared the Croatian war council to be a session of JCE (joint criminal enterprise) because it concluded that there were ‘unlawful artillery attacks’ taking place in four towns, and it pronounced these attacks to be unlawful because they were designed by the JCE to force the transfer of Serb civilians. Such conclusions are not valid. So the Appeal Chamber concludes: ‘The Brioni Transcript includes no evidence that an explicit order was given to commence unlawful attacks, and Gotovina’s statement regarding a strike on Knin could be interpreted as a description of HV capabilities rather than its aims, especially in the context of general planning for Operation Storm which took place at the Brioni Meeting’. This means, of course, that the Trial Chamber didn’t have any evidence either. But it wanted to have a sentencing verdict and I suppose it is not too intrepid to guess that this had motivated the Trial Chamber to drawing invalid (circular) conclusions; to inventing unsound impact margin standards; to dropping the evaluation of the expert testimony from a retired general familiar with the responsibilities of military commanders, which was directly relevant for weighing Gotovina’s effort concerning the disciplinary measures (AT 132-134); and also to expressing itself more in a lyrical than in a judicial manner by stating that ‘within days of the discussion at Brioni, Gotovina’s words became a reality’.
One can now presume that the dissenting two judges in the Appeal Chamber shared such attitudes and that they met the plea by the prosecutor Brady, who said at appeals hearing 14.05. 2012: ‘Instead, just as the Trial Chamber did, this Chamber needs to take a holistic view based on all the evidence considered together and not examine the facts and the evidence in this deconstructed in an artificial way and today in this afternoon’s submission, what I would like to do is to put this picture, the evidence and the facts, back together again, as they were properly understood by the Trial Chamber’. (p. 167) The two dissenting judges might have taken ‘a holistic view’ disregarding the conclusive evidence put forth by the other three judges who obviously declined the advice ‘not [to] examine the facts and the evidence’. But what, in fact, is ‘a holistic view’? It’s an overall interpretation of the events and in this case it is the prosecutor’s completely flawed interpretation.
Some critics are arguing that if one takes the Trial Chamber and Appeal Chamber together, then five judges were for the sentencing judgment, so eventually the majority. This really cannot be accepted as a valid argument. But the question that ought to be put is why some judges at an international law court prefer holistic interpretation of events rather than conclusive evidence. I think that this has to do with the ambiguous character of the court established by the Security Council under the name ICTY.
The ambivalent concept of the ICTY
Founding the ICTY through the Security Council in 1993, its members followed the principles of international law as established since the Nuremberg trials, but they adopted the Charter selectively. This problem can be put aside here, but what is relevant in this context is that they were under the influence of the worldwide discourse concerning the dissolution of the Socialist Federative Republic of Yugoslavia and the subsequent wars. The outstanding feature of this discourse was its ethnicistic character. I can outline this problem only very roughly. Putting ethnicity in the foreground corrupts the whole complicated issue. This ethnicistic perception shows itself already in the denotation of the Court as the tribunal for the former Yugoslavia – a name that in every sense is wrong. It refers to the Yugoslav nations instead of to the political background of the war. So it suggests that the war that took place in that region was an ethnic or civil war. So gradually the idea emerged that all, or at least most of, the peoples were somehow engaged in the war or some ethnic conflict.
The prosecutors seemed to be getting nervous that they will have to issue charges only against the Serbs and thought obviously that they had to balance this out. But there is nothing to balance out; what should have been done was to take in account that nobody is charged because of her or his nationality but because of war crimes. The nationality of the accused is of secondary importance. Instead of changing its perspective, the prosecution tried to change the reality by issuing indictments against accused from other national groups. But it was also the error of the Court to pass such indictments, for example against Macedonian officials, as a matter of war crimes. It is a big difference if one writes ‘Seven convicted for the massacre of Srebrenica’ as opposed to ‘the Serbs perpetrated an act of genocide at Srebrenica in July 1995’ (cf. Ian Traynor, ’Croatia’s “war crime” is no longer a crime after UN tribunal verdict’, guardian.co.uk, Friday 16 November 2012). ‘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. In most cases, the judges of the ICTY did their job well, as did lawyers in the prosecutions regarding the Kosovo, Sarajevo and Srebrenica cases; partially also in the Vukovar case. It is the dimension of the crime that was in focus and not the nationality of the indicted. So in respect of the mentioned seven sentenced in the 2nd ‘Srebrenica Trial’ on 10 June 2010 – trial judgment pending appeal for six of the accused – the Chamber’s findings differentiate the grades of responsibility of the accused and convicted two of them (Ljubisa Beara and Vujadin Popovic) of genocide, extermination, murder and persecutions. Not even in the slovenly and tendentious indictment against Gotovina et al. was such a formulation as ‘Croatia’s ‘war crime’’ used. Instead the prosecutor writes in the final brief: ‘Now it should be noted first that no one is alleging that Croatia had a plan or policy to expel. It was the members of the JCE’ (T. 29025).
But referring to the case also by ‘Oluja’ created confusion, and this case was (mis)understood as a trial about the operation named ‘Storm’; since this endeavour was legal it cannot and it is not going to be put to any trial. This also has to do with irresponsible language. The gap between the sentenced perpetrators in relation to their nationality has causes that are not ethnic. It is the completely diverging characters of the warring parties; the party that was waging war and that was engaged in vast battlefields was carrying out its campaigns in a fundamentally different manner than the parties in resistance to this crusade. The scope of crimes done by the main belligerent with the headquarters in Belgrade cannot be balanced out by dubious indictments against commanders and leaders of the resistance parties, such as the recently acquitted Ramush Haradinaj. Though the court in The Hague was cautious in its language, in practice it givee in to the ethnicistic politics of balancing the national groups of the accused, with the disastrous consequence that now the sentenced war criminals are being counted according their nationality.
Now Zdravko ‘Tolimir was found guilty by the Majority of Trial Chamber II, Judge Nyambe dissenting, of genocide, conspiracy to commit genocide, murder as a violation of the laws or customs of war, as well as extermination, persecutions, inhumane acts through forcible transfer and murder as crimes against humanity’ (Press Release, The Hague, 12 December 2012). He was convicted because of the conclusive evidence of his criminal responsibility as the ‘right hand’ of Ratko Mladic – but not as a Serb.
‘The largest single ethnic-cleansing operation of the Yugoslav wars’ – such was the soundbite that was linked to Operation Storm (Operacija Oluja), from soon after the successful Croatian military operation was waged back in August 1995. That atrocities were carried out by Croatian soldiers and civilians during and after the operation has never credibly been disputed. But the attempt to paint Oluja as an ethnic-cleansing operation – indeed as an ethnic-cleansing operation larger in scale than the Serbian assaults on Croatia and Bosnia in 1991-1992 – has always been rightly contested. Yesterday’s acquittal by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) of Croatian commanders Ante Gotovina and Mladen Markac for crimes against Serb civilians between July and September 1995, above all during ‘Operation Storm’, leaves the victims without justice, but represents a defeat for long-running attempts in the West to redistribute guilt from the aggressors to the victims.
Had the ICTY’s prosecution simply sought to indict, prosecute and punish Croats guilty of atrocities against Serbs in the period July-September 1995, it would no doubt have been successful, and the victims would have received at least some justice. Unfortunately, the prosecution attempted something more: to write the historical record of the wars of Yugoslav succession, in a manner that reflected the predominant perception of Western policy-makers. This perception was that, whereas the Serb side was responsible for the largest proportion of the crimes and killing, there was ultimately no fundamental difference in the guilt and actions of each of the sides during the war; it was merely a quantitative difference. In her published memoirs, Carla del Ponte, the Chief Prosecutor of the ICTY at the time when the original indictment against Gotovina was issued, explicitly equalised the blame of Serbia’s Slobodan Milosevic and Croatia’s Franjo Tudjman as the two individuals primarily responsible for the war (Carla del Ponte and Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst War Criminals and the Culture of Impunity, Other Press, New York, 2008, pp. 37, 87, 125). Del Ponte was less of an equaliser than some others, and did at least insist on indicting some Serb perpetrators for genocide, in the face of resistance from other senior prosecution staff. But she also became inveigled in diplomatic and propaganda games with Serbian government ministers, who put her under pressure to prove that the Tribunal was not ‘anti-Serb’.
Consequently, the ICTY prosecutors pursued a policy of indictments that would result in judgements that would support their politics. As I have written before, these indictments thus disproportionately targeted Croatians, Bosnians and Kosovo Albanians; the forces of the Serb side were responsible for well over 80% of the killing of civilians during the whole of the wars of Yugoslav succession, but their officials made up only 68% of indictees. Only six officials of Serbia or the rump Yugoslavia, as opposed to Bosnian Serbs, were ever indicted for war-crimes in Bosnia. The top Yugoslav military commanders and presidency members who led the assaults on Croatia and Bosnia in 1991-1992 (Borisav Jovic, Branko Kostic, Veljko Kadijevic, Blagoje Adzic, Zivota Panic and others) were never indicted. Conversely, the ICTY prosecutors indicted such high-ranking and prominent Croatian and Bosnian officials as former Croatian Army chief of staff Janko Bobetko, Bosnia’s two most important military commanders Sefer Halilovic and Rasim Delic, and Bosnian commander in Srebrenica Naser Oric. When Alija Izetbegovic died in 2003, del Ponte indicated that he might have faced charges had he lived. Unfortunately for the prosecutors, however, the courts stubbornly refused to uphold the picture the prosecution sought to paint: Halilovic and Oric were acquitted, and Delic was sentenced to a mere three years in prison, after the prosecution had sought fifteen. Bobetko was already near death when he was indicted, and died before being extradited.
The sorry story of the Operation Storm indictments and trials should be seen against this background. In Operation Storm, the Croatians were not trying to conquer anyone else’s territory; they were engaged in a defensive operation to free their own territory from occupation by troops controlled by a foreign state (Serbia); troops that were engaged at the time in armed aggression against a neighbouring state (Bosnia) and threatening to carry out a further genocidal act against its population, following the genocidal massacre at Srebrenica a month before. As I have written, Operation Storm was a successful case of genocide prevention that saved the Muslim population in the Bihac enclave of north-west Bosnia from experiencing the fate of the people of Srebrenica. Yet for those seeking to equalise, as much as possible, the guilt of the sides in the former-Yugoslav war, Operation Storm had to be presented as a gratuitous act of ethnic-cleansing by Croat perpetrators against Serb victims – equivalent to the Serb crimes of 1991-1992.
The indictees, Gotovina, Markac and Ivan Cermak were accused of being part of a ‘Joint Criminal Enterprise’ (JCE) whose ‘common purpose’ was ‘the permanent removal of the Serb population from the Krajina region by force, fear or threat of force, persecution, forced displacement, transfer and deportation, appropriation and destruction of property or other means.’ This accusation therefore paralleled the prosecution’s accusations of a JCE levelled against the top Serbian leadership, whose goals were ‘the permanent removal of a majority of the Croat and other non-Serb population from a large part of the territory of the Republic of Croatia’ and ‘the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina’. But Operation Storm had not involved the acts previously associated with ethnic cleansing in the former Yugoslavia: the rounding up of civilians; their being made to sign away their property to the authorities; their imprisonment, torture and killing in concentration camps; their being bussed out of the area. Instead, at the time of Operation Storm, the Serb authorities themselves organised and ordered the evacuation of the Serb civilians in the face of the Croatian offensive; whatever their intentions, the Croatians never had the chance to organise their removal.
To attribute the exodus of Serb civilians to Croatian actions therefore required the prosecution to develop a new model of how ethnic cleansing occurs. The ICTY prosecutors therefore argued that the Croatians aimed and succeeded in bringing about the removal of the Serb population from the so-called Krajina by artillery bombardment. This was already a dubious proposition – towns in Bosnia had been shelled for years by Serb and Croat forces without their entire population fleeing overnight. The prosecution nevertheless argued – and the original ICTY Trial Chamber accepted – that the exodus of Serb civilians was caused by the bombardment, not by the orders given by the Krajina Serb authorities to evacuate. However, attributing the cause of the exodus to the bombardment was not enough to establish the existence of the JCE, in the absence of evidence that this had been the intent behind the bombardment. Since only the most ambiguous support could be found for the thesis in the statements of the Croatian leadership – above all, the minutes of the Brioni meeting of 31 July 1995 – the intent had to be deduced from the character of the Croatian artillery fire, and whether it appeared accurately to be directed at civilian targets. So the prosecution argued that the existence of a JCE could be deduced from the fact that the Croatian artillery had targeted civilian areas in the so-called Krajina, and that this bombardment succeeded in bringing about the exodus of the Serb population. But since the Croatian forces were engaged in a lawful military operation against enemy armed forces in control of those same civilian centres, the prosecution had to show that Croatian artillery fire was not simply a part of those operations. The existence of the JCE therefore stood or fell on an analysis of the accuracy of Croatian artillery fire. At The Hague on Friday, it fell like the house of cards it essentially was. Most of the judgement of the Appeals Chamber consists, somewhat surreally, of a lengthy analysis of Croatian artillery fire.
ICTY prosecutors have long demonstrated a confused understanding of the wars in the former Yugoslavia. Their indictments have tended to target ‘famous names’ and acts people in the West had heard of; hence the notorious Zeljko Raznatovic Arkan and Vojislav Seselj were indicted, instead of Serbian leaders less well known in the West, but whose responsibility for crimes was much greater. The accusation that the Croatian bombardment of Knin, the capital of the ‘Republic of Serb Krajina’, was a ‘war crime’ originated with the arch-appeaser Carl Bildt, who was the EU’s special envoy for the former Yugoslavia at the time of Operation Storm. It was made in the context of an EU strategy that opposed any military action against Serb forces – either on the part of the international community, or on the part of the Croatians and Bosnians – and that sought instead to achieve peace in the former Yugoslavia through collaboration with the regimes in Belgrade and Pale. Bildt’s loud condemnation, at the time, of the Croatian bombardment of Knin, and his suggestion that it was a war-crime for which Tudjman himself should be held responsible, may have stuck in the minds of ICTY investigators as they considered how to pick Croatians to indict. Yet Knin had suffered minimal damage and civilian casualties as a result of the bombardment, made in the course of a legitimate military operation to recapture the town. This was in stark contrast to Vukovar, which was wholly destroyed by Serbian forces in 1991, and for whose destruction nobody was indicted by the ICTY (though some were indicted for atrocities carried out against the patients at Vukovar Hospital after the town fell).
Seventeen years later, Bildt’s red herring regarding the bombardment of Knin has met its ignominious demise. Since the Appeals Chamber ruled that the existence of a JCE could not be deduced from the pattern of Croatian artillery fire, the central premise of the prosecution’s case was thrown out. And since Gotovina and Markac had been selected for indictment on the basis of this premise, the rest of the case against them collapsed with it: the Appeals Chamber ruled that they had either attempted to prevent crimes against Serb civilians and property, or had not had effective control of those Croatian forces that had committed them. Had the prosecutors not focused on a supposed JCE, but instead sought to indict Croatian perpetrators who could actually be definitely linked to actual killings, they would no doubt have succeeded.
The Appeals Chamber’s verdict has not exonerated the Croatian side of crimes carried out during and after Operation Storm; on the contrary, it explicitly refers to crimes against Serb civilians in its acquittal of Gotovina and Markac. These victims have not now received justice, and critics are right to point out that the ICTY has failed them. The failure should be attributed, however, to the prosecution’s flawed indictment, not to the decision of the Appeals Chamber.
Not all these critics have been ready to point out the converse: that long before this verdict, the ICTY had already failed the victims of Serbia’s aggression and ethnic cleansing against Croatia. Almost no official from Serbia, Montenegro or the Yugoslav People’s Army (JNA) has been prosecuted and seriously punished for crimes against Croatian citizens in 1991-1992. Of the three relatively minor JNA officers tried over the Vukovar Hospital massacre, one was acquitted (Miroslav Radic) and one freed after serving six and a half years in prison (Veselin Sljivancanin), while only the third received a lengthy punishment of 20 years (Mile Mrksic). Of those JNA officers or admirals indicted over the shelling of Dubrovnik, Miodrag Jokic received a seven-year sentence and was granted early release after three years; Pavle Strugar received seven and a half years and was released on compassionate grounds less than a year later; the indictment against Milan Zec was withdrawn; and Vladimir Kovacevic had his trial transferred to the Serbian courts. Yugoslav Army Chief of Staff Momcilo Perisic was sentenced to 27 years – not for his actions in Croatia in 1991-92, but in part for the rocket attack by the Krajina Serbs on Zagreb in May 1995. Otherwise, the ICTY’s punishment to date has spared Serbia and fallen on Croatia’s own ethnic-Serb citizens who collaborated in the aggression (Milan Babic and Milan Martic). No official of Serbia or the JNA has so far been convicted over the Serbian conquest and ethnic cleansing of the so-called Krajina in the first place – the crime that made Operation Storm necessary.
With the quashing of the Operation Storm sentences, the ICTY can be accurately said to have failed seriously to punish the officers on either side in the war between Serbia (including Montenegro and the JNA) and Croatia of 1990-1995. Whether, having failed to punish the Serbian officers who occupied Croatian territory, justice would have been better served had the ICTY at least succeeded in punishing some of the Croatian officers who defeated the occupation, is a moot point.
The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia has acquitted Radovan Karadzic, wartime president of the Bosnian Serb nationalist rebels’ ‘Republika Srpska’, of one count of genocide, relating to crimes committed in municipalities across Bosnia in 1992. According to its press release:
The Chamber’s oral ruling was delivered pursuant to Rule 98 bis of the Tribunal’s Rules of Procedure and Evidence which provides that at the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction.
The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.
This represents a 180-degree U-turn from the Trial Chamber’s decision eight years ago over Slobodan Milosevic. On 16 June 2004, in ‘Prosecutor v. Slobodan Milosevic: Decision on Motion for Judgement of Acquittal’, the Trial Chamber refused to acquit Milosevic on the same grounds, and ruled:
246. On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence, including the evidence set out in paragraphs 238 -245. The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide.
247. Having examined the evidence, the Trial Chamber finds no evidence of genocide in Kotor Varos.
323. With respect to the Amici Curiae submissions concerning genocide, the Trial Chamber, except for its holding in paragraph 324, DISMISSES the Motion and holds that there is sufficient evidence that
(1) there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group, and that its participants committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi;
(2) the Accused [Slobodan Milosevic] was a participant in that joint criminal enterprise, Judge Kwon dissenting ;
(3) the Accused was a participant in a joint criminal enterprise, which included members of the Bosnian Serb leadership, to commit other crimes than genocide and it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise, and it was committed;
(4) the Accused aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise, and that he gave its participants substantial assistance, being aware that its aim and intention was the destruction of a part of the Bosnian Muslims as group;
(5) the Accused was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group, and he failed to take the necessary measures to prevent the commission of genocide, or punish the perpetrators thereof.
324. The Trial Chamber finds no evidence that genocide was committed in Kotor Varos.
The contradiction between the Trial Chamber’s rulings over Milosevic in 2004 and Karadzic in 2012 indicates that it is not operating on the basis of consistent legal principles, and suggests a change of policy. A full analysis of the reasons behind this shift will have to await the Tribunal’s publication of the text of its decision.
I have been arguing since 2005 that the ICTY has been retreating in the face of international and Serbian resistance to its pursuit of justice. The list of failures, retreats, betrayals and unethical compromises has only grown over the years: the failure even to indict most of the principal members of the Joint Criminal Enterprise from Serbia and Montenegro – Veljko Kadijevic, Blagoje Adzic, Momir Bulatovic, Borisav Jovic, Branko Kostic and others; the failure to indict anyone at all for the destruction of the Croatian town of Vukovar; the indictment of only six officials in total from Serbia and Montenegro for war-crimes in Bosnia, and the conviction to date of only one of them; the sentencing of Republika Srpska vice-president Biljana Plavsic to only eleven years in prison, without making her testify, and her release after serving only seven years, despite her withdrawal of her acknowledgement of guilt; the censoring of the minutes of the Supreme Defence Council, preventing their use by Bosnia in its case against Serbia at the International Court of Justice; the prosecution of the ICTY’s own former chief prosecutor’s spokeswoman, Florence Hartmann, for having the temerity to reveal its dubious underhand dealings.
The ICTY’s U-turn over genocide in Bosnia is therefore par for the course. The people of the former Yugoslavia have not received justice from this tribunal.
As part of his recently announced policy shift on immigration, whereby he hopes to win a larger share of the votes of the readership of the Sun and the Daily Mail, Labour Party leader Ed Miliband has suggested that one of the first steps in Labour’s immigration policy would be to ‘impose maximum transitional controls for 7 years on the future EU accession countries such as Croatia’, The Guardian reported on Thursday. ‘Croatia has a population larger than China’s but poorer than Somalia’s, and unless something is done, millions of Croats are set to flood across Britain’s borders after Croatia joins the EU next year’, Mr Miliband said. ‘It’s all very well to speak about the net economic benefits of immigration, but try telling that to someone who’s just had a Croat family move in next door, and his whole street is smelling of cevapcici.’
Representatives of British football hooliganism expressed their support for Mr Miliband’s stance, citing their fears of being squeezed out of the labour-market by more highly-skilled Croatian competitors working at or below the minimum wage. ‘Croatian soccer fans have a global reputation for assaulting gay marchers and racially abusing black players, yet they’re paid almost nothing. So we’re really concerned about the future of our jobs after Croatia joins the EU’, one said. ‘My ambition is to throw a banana at Mario Balotelli, but the way things are going, I’m worried I may never get the chance. It’s high time that British politicians started listening to the concerns of ordinary people.’
Greater Surbiton News Service
Review of Josip Glaurdic, The Hour of Europe: Western Powers and the Breakup of Yugoslavia, Yale University Press, New Haven and London, 2011
The break-up of Yugoslavia has generated an enormous literature – much of it poor, some of it acceptable and some of it excellent. There are several decent introductory accounts of the break-up that competently summarise familiar information. There are some very good studies of Slobodan Milosevic and his regime that do justice to the break-up as well. There are some excellent studies of sub-topics or related topics. But there have been few truly groundbreaking studies of the process as a whole. Too many of the older generation of pre-1991 Yugoslav experts had too many of their assumptions shattered by the break-up; too many journalists and casual scholars flooded the market in the 1990s with too many under-researched, third-rate works; too many younger scholars were handicapped by political prejudices that prevented them from addressing the truth squarely. Furthermore, the body of relevant primary sources has been vast and growing exponentially while the body of good supporting secondary literature has only slowly grown to a respectable size. In these circumstances, to write a groundbreaking general study of the break-up of Yugoslavia has been a difficult task that has required both a lot of talent and a lot of patient hard work.
Josip Glaurdic’s The Hour of Europe: Western Powers and the Breakup of Yugoslavia is such a study. As far as general accounts of the break-up go, there are only two or three that rival this work; none that is better. A great strength of this work lies in Glaurdic’s careful balance between the domestic and international dimensions of Yugoslavia’s break-up; he gives equal space to each and shows carefully the interaction between them. As far as the domestic dimension is concerned, he has skilfully summarised and distilled the existing knowledge about the subject as well as anybody before him. But where this book is truly original and groundbreaking is in its analysis of the international dimension. For this is the best serious, comprehensive, scholarly analysis of the role of the West – specifically, of the US, European Community and UN – in the break-up of Yugoslavia.
The mainstream literature has tended to present the West’s involvement in the break-up in terms of a reaction after the fact: Yugoslavia collapsed and war broke out due to internal causes, and the West responded with a weak, ineffective and primarily diplomatic intervention. Some excellent studies of the responses of individual Western countries have appeared, most notably by Michael Libal for Germany, Brendan Simms for Britain and Takis Michas for Greece. Apologists for the former regime of Slobodan Milosevic or for the Great Serb nationalist cause have, for their part, churned out innumerable versions of the conspiracy theory whereby the break-up of Yugoslavia was actually caused or even engineered by the West; more precisely by Germany, the Vatican and/or the IMF. But up till now, nobody has attempted to do what Glaurdic has done, let alone done it well.
Glaurdic’s innovation is to begin his study of the West’s involvement not in 1991, when full-scale war broke out in the former Yugoslavia, but in 1987, when Milosevic was assuming absolute power in Serbia. This enables him to interpret the West’s reaction to the eventual outbreak of war, not as a reflex to a sudden crisis, but as the result of a long-term policy. He places this long-term policy in the broader context of the evolution of the West’s global considerations in the late 1980s and early 1990s. The most important of these considerations concerned a state incomparably more important than Yugoslavia: the Soviet Union.
Yugoslavia’s principal significance for the Western alliance during the Cold War was as a buffer state vis-a-vis the Soviet Union and as a model of an independent, non-Soviet Communist state. These factors became less important in the second half of the 1980s, when Mikhail Gorbachev ruled the Soviet Union and the Cold War was winding down. Milosevic was initially identified by some influential Western observers as a possible ‘Balkan Gorbachev’; a Communist reformer who might bring positive change to Yugoslavia. The most important such observer was the veteran US policymaker Lawrence Eagleburger, who became deputy Secretary of State in January 1989. In his confirmation hearings in the Senate Foreign Relations Committee on 15-16 March 1989, Eagleburger stated that ‘there is no question in my mind that Milosevic is in terms of economics a Western market-oriented fellow… [who] is playing on and using Serbian nationalism, which has been contained for so many years, in part I think as an effort to force the central government to come to grips with some very tough economic problems.’ (Glaurdic, p. 40).
This initial US appreciation for Milosevic dovetailed with a more important consideration: the fear that a collapse of Yugoslavia would create a precedent for the Soviet Union, weakening the position of Gorbachev himself. Of decisive importance was not merely that Western and in particular US leaders viewed Gorbachev as a valued friend, but the extreme conservatism of their ideology as regards foreign policy. Simply put, the US administration of George H.W. Bush valued stability above all else, including democratic reform, and actually preferred Communist strongmen, not only in the USSR but also in Poland, Hungary and Czechoslovakia, to the democratic opposition to them. Bush and his team feared the collapse of the Soviet Union and the destabilisation that this threatened – given, among other things, the latter’s nuclear arsenal. This led them to acquiesce readily in Soviet repression in Lithuania, Latvia, Azerbaijan and Georgia. Their acquiescence in Milosevic’s repressive policies was a natural corollary.
As Glaurdic shows, this conservative-realist worldview led the Bush Administration, right up till the end of 1991, to champion Yugoslavia’s unity rather than its democratic reform. Though the US gradually lost faith in Milosevic, its animosity in this period was above all directed at the ‘separatist’ regimes in Croatia and Slovenia. The irony was not only that Croatian and Slovenian separatism was a direct response to the aggressive policies of the Milosevic regime, but also that the latter was promoting the break-up of Yugoslavia as a deliberate policy. Through its unwillingness to oppose Milosevic and its hostility to the Croats and Slovenes, Washington in practice encouraged the force that was promoting the very break-up of Yugoslavia that it wished to avoid.
The problem was not that the Bush Administration lacked accurate intelligence as to what Milosevic’s regime was doing, but that it chose to disregard this intelligence, instead clinging blindly to its shibboleth of Yugoslav unity, indeed of Yugoslav centralisation. Thus, as Glaurdic shows, a ‘conservative realist’ ideology resulted in a highly unrealistic, dogmatic policy. In October 1990, the CIA warned the US leadership that, while the latter could do little to preserve Yugoslav unity, its statements would be interpreted and exploited by the different sides in the conflict: statements in support of Yugoslav unity would encourage Serbia while those in support of human rights and self-determination would encourage the Slovenes, Croats and Kosovars (Glaurdic, p. 110). The Bush Administration nevertheless continued to stress its support for Yugoslav unity.
This meant not only that the West failed to respond to Milosevic’s repressive and aggressive policy, but that Milosevic and his circle actually drew encouragement from the signals they received from the West. Milosevic scarcely kept his policy a secret; at a meeting with Western ambassadors in Belgrade on 16 January 1991, he informed them that he intended to allow Slovenia to secede, and to form instead an enlarged Serbian stage on the ruins of the old Yugoslavia, that would include Serb-inhabited areas of Croatia and Bosnia and that would be established through the use of force if necessary. This brazen announcement provoked US and British complaints, but no change in policy (Glaurdic, pp. 135-136).
The problem was not merely ideological rigidity and mistaken analysis on the part of Western and particular US leaders, but also sheer lack of interest. Glaurdic describes the paradoxical Western policy toward the Yugoslav Federal Prime Minister, Ante Markovic, who – unlike Milosevic – really did want to preserve Yugoslavia, and whose programme of economic reform, in principle, offered a way to achieve this. In comparison with the generous financial assistance extended to Poland in 1989-1990, no remotely similar support was offered to Markovic’s government, because in US ambassador Warren Zimmermann’s words, ‘Yugoslavia looked like a loser’. (Glaurdic, p. 68).
The US’s dogmatic support for Yugoslav unity was shared by the West European powers. Glaurdic demolishes the myth – already exploded by authors like Libal and Richard Caplan – that Germany supported or encouraged Croatia’s and Slovenia’s secession from Yugoslavia. When the president of the Yugoslav presidency, Janez Drnovsek, visited Bonn on 5 December 1989, German chancellor Helmut Kohl expressed to him his ‘appreciation for Yugoslavia’s irreplaceable role in the stability of the region and the whole of Europe’. On the same occasion, German president Richard von Weizsaecker informed the Yugoslav delegation that he supported a ‘centralised’ Yugoslavia (Glaurdic, p. 59). A year later, on 6 December 1990, German foreign minister Hans-Dietrich Genscher told his Yugoslav counterpart, Budimir Loncar, that Germany ‘has a fundamental interest in the integrity of Yugoslavia’, and consequently would make ‘the Yugoslav republics realise that separatist tendencies are damaging to the whole and very costly’ (Glaurdic, pp. 124-125).
This German opposition to Croatian and Slovenian independence continued right up till the latter was actually declared in June 1991, and beyond. According to Gerhard Almer, a German diplomat and Yugoslav specialist at the time, ‘Everything that was happening in Yugoslavia was viewed through Soviet glasses. [Genscher's] idea was, “Well, Yugoslavia disintegrating is a bad example for Soviet disintegration, and this was bad for us since we needed a Soviet Union capable of action because we needed to get a deal with them on our unity”. This was widely accepted in the ministry.’ (Glaurdic, p. 160). Contrary to the myth of anti-Yugoslav imperialistic tendencies on the part of Helmut Kohl’s Christian Democratic government, the latter’s support for the Yugoslav status quo in the face of Belgrade’s abuses was so rigid that it provoked strong resistance from the Social Democratic opposition.
Genscher, subsequently demonised as a supposed architect of Yugoslavia’s break-up, actually resisted this pressure from the Bundestag for a shift in German policy away from unbending support for Yugoslav unity and toward greater emphasis on human rights and self-determination. The turning point for him, as Glaurdic shows, came with his visit to Belgrade on 1 July 1991, after the war in Slovenia had broken out. The combination of the overconfident Milosevic’s aggressive stance in his talk with Genscher, and the Yugoslav government’s inability to halt the Yugoslav People’s Army [JNA] operations against Slovenia, destroyed the German foreign minister’s faith in the Belgrade authorities, leading to his gradual shift in favour of Croatia and Slovenia. Eventually, after a lot more Serbian intransigence and military aggression, Germany would reverse its traditional policy by 180 degrees, and come out in favour of the recognition of Slovenia’s and Croatia’s independence, while the EC would split into pro- and anti-recognition currents of opinion.
Nevertheless, as Glaurdic shows, Germany’s change of heart was a double-edged sword, since it aroused the anti-German suspicions and rivalries of other EC states, particularly France and Britain, which consequently hardened their own stances against recognition. On 6 November 1991, while the JNA’s military assaults on the Croatian cities of Vukovar and Dubrovnik were at their peak, Douglas Hogg, the UK’s Minister of State for Foreign and Commonwealth Affairs, explained to the Foreign Affairs Committee of the House of Commons that his government was opposed to the recognition of Croatia since it would create an ‘obstacle’ to territorial adjustments in Serbia’s favour and at Croatia’s expense. Several days later, the French president, Francois Mitterand, made a similar public statement, indicating that he saw Croatia’s existing borders as a ‘problem’ that prevented its recognition (Glaurdic, pp. 253-254).
The Bush Administration, meanwhile, acted as a brake on the EC’s shift against Belgrade and in favour of recognition, teaming up with the British and French to counter Germany’s change of policy. US Secretary of State James Baker and his deputy Lawrence Eagleburger, as well as the UN special envoy Cyrus Vance (himself a former US Secretary of State) waged a diplomatic battle in this period against any shift away from the West’s non-recognition policy, and against any singling out of Serbia for blame for the war – even as the JNA was massively escalating its assault on Vukovar in preparation for the town’s final conquest. Eagleburger had signalled to the Yugoslav ambassador in October that, although the US was aware that Milosevic was attempting to establish a Greater Serbia, it would do nothing to stop him except economic sanctions, and even these only after Greater Serbia had been actually established (Glaurdic, pp. 243-246). As late as December 1991, Vance continued to oppose recognition and to support the idea of a federal Yugoslavia, and continued moreover to put his trust in Milosevic, the JNA and Bosnian Serb leader Radovan Karadzic, while viewing the Croatians dismissively as ‘these Croatian insurgents’ (Glaurdic, pp. 264-265).
Glaurdic has marshalled an enormous wealth of documentary evidence to show that the British, French and Americans, far from reacting in a weak and decisive manner to a sudden outbreak of war, actually pursued a remarkably steady and consistent policy from before the war began, right up until the eve of full-scale war in Bosnia-Hercegovina: of vocally supporting Yugoslav unity and opposing Croatian and Slovenian secession; of resisting any singling out of Serbia for blame or punishment; of opposing recognition of Slovenia and Croatia; of seeking to appease Milosevic and the JNA by extracting concessions from Croatia as the weaker side; and finally of appeasing the Serb nationalists’ desire to carve up Bosnia. EC sanctions imposed in November 1991 applied to all parts of the former Yugoslavia equally, while there was no freezing of the international assets or financial transactions through which the JNA funded its war. The UN arms embargo, whose imposition had actually been requested by the Yugoslav government itself, favoured the heavily-armed Serbian side and hurt the poorly armed Croatians. Although, largely on account of Germany’s change of heart, the EC at the start of December 1991 belatedly limited its economic sanctions to Serbia and Montenegro alone, the US immediately responded by imposing economic sanctions on the whole of Yugoslavia.
According to myth, the Western powers applied the principle of national self-determination in a manner that penalised the Serb nation and privileged the non-Serbs. As Glaurdic shows, the reverse was actually the case. In October 1991, Milosevic rejected the peace plan put forward by the EC’s Lord Carrington, which would have preserved Yugoslavia as a union of sovereign republics with autonomy for national minorities, in part because he feared it implied autonomy for the Albanians of Kosovo and the Muslims in Serbia’s Sanjak region. Carrington consequently modified his plan: Croatia would be denied any military presence whatsoever in the disputed ‘Krajina’ region, despite it being an integral part of Croatia inhabited by many Croats, while Serbia would be given a completely free hand to suppress the Kosovo Albanians and Sanjak Muslims. Carrington’s offer came just after leaders of the latter had organised referendums for increased autonomy, and after the Milosevic regime had responded with concerted police repression (Glaurdic, p. 242).
Milosevic nevertheless continued to reject the Carrington Plan in the understandable belief that the West would eventually offer him a better deal. He consequently asked Carrington to request from the EC’s Arbitration Commission, headed by Robert Badinter, an answer to the questions of whether the Serbs in Croatia and Bosnia possessed the right to self-determination, and of whether Serbia’s borders with Croatia and Bosnia should be considered borders under international law. Carrington submitted these to the Commission, along with a third question, of whether the situation in Yugoslavia was a case of secession by Slovenia and Croatia or a case of dissolution of the common state. That the Arbitration Commission ruled against Serbia on all three counts was, in Glaurdic’s words, a ‘terrible surprise for Milosevic and for many in the international community’ (p. 260), given that Badinter was a close associate of President Mitterand, whose sympathies were with Serbia’s case. The Badinter Commission’s ruling dismayed both Carrington and French foreign minister Roland Dumas, and paved the way to international recognition of Croatia and Slovenia. But it did not fundamentally change the West’s policy.
Glaurdic’s account ends with the outbreak of the war in Bosnia, which as he argues, should be seen as the logical culmination of this policy. The failure of the EC foreign ministers to recognise Bosnia’s independence in January 1992 along with Croatia’s and Slovenia’s was, in Glaurdic’s words, ‘the decision with the most detrimental long-term consequences, all of which were clearly foreseeable… The EC had missed a great chance to preempt a war that would soon make the war in Croatia pale in comparison. Of all the mistakes the European Community had made regarding the recognition of the Yugoslav republics, this one was probably the most tragic.’ (pp. 281-282). Recognition of Bosnia at this time would have upset Milosevic’s and Karadzic’s plans for destroying that republic; instead, they were given every indication that the West would acquiesce in them.
Thus, on 21-22 February 1992, Bosnia’s politicians were presented with the first draft of the plan of the EC’s Jose Cutileiro for the three-way partition of Bosnia-Hercegovina into loosely linked Serb, Croat and Muslim entities. Since the plan, based on the ethnic majorities in Bosnian municipalities, offered the Bosnian Serb nationalists ‘only’ 43.8% of Bosnian territory instead of the 66% they sought, the latter’s assembly unanimously rejected it on 11 March. Once again, the EC abandoned universal standards in order to accommodate Serb intransigence, and Cutileiro modified his plan so that the three constituent Bosnian entities ‘would be based on national principles and would be taking into account economic, geographic and other criteria’ (Glaurdic, p. 294), thereby opening the way for a Serb entity with a larger share of Bosnian territory than was justified on demographic grounds.
Ultimately, Bosnian president Alija Izetbegovic rejected the plan. But as Glaurdic writes,
‘The damage that the Cutileiro plan did to Bosnia cannot be overstated. By accepting the ethnic principle for the reorganisation of the republic, Cutileiro in essence recognised the platforms of the SDS [Serb Democratic Party led by Karadzic] and the Boban wing of the HDZ [Croat Democratic Union] and opened a Pandora’s box of ethnic division that still mars Bosnia to this very day. Cutileiro’s intent was obviously to appease the Bosnian Serbs and their Belgrade sponsor into not implementing their massive war machinery. However, instead of lowering tensions and giving the three parties an impetus to keep negotiating, the plan actually gave them a “charter for ethnic cleansing”.’ (p. 290)
In these circumstances, the West’s belated recognition of Bosnia’s independence in April 1992 was naturally not taken seriously by the Serb leaders; Milosevic rather wittily compared it to the Roman emperor Caligula declaring his horse to be a senator (Glaurdic, p. 298).
My principal regret is that Glaurdic did not fully apply the logic of his iconoclastic analysis to his consideration of the Croatian dimension of the Yugoslav tragedy. He carefully and correctly highlights the retrograde nationalist ideology of Croatian president Franjo Tudjman, including his equivocal statements about the Nazi-puppet Croatian regime of World War II and his promotion of the partition of Bosnia-Hercegovina. Yet he does not properly stress the extent to which Tudjman’s repeated retreats in the face of Serbian aggression merely encouraged the latter, just as did the similar retreats of the Western leaders. Thus, Tudjman capitulated to the JNA’s bullying in January 1991 and agreed to demobilise Croatia’s reservists and arrest Croatian officials involved in arms procurement, including the Croatian defence minister Martin Spegelj himself. Glaurdic argues that this ‘defused the [JNA] generals’ plan for a takeover’ and brought Yugoslavia ‘back from the brink’ (p. 134), but it would be more accurate to say that such Croatian appeasement merely encouraged further Serbian assaults, and that the killing in Croatia began only weeks later.
Glaurdic has carefully described the Milosevic regime’s secessionism vis-a-vis the Yugoslav federation, but one significant detail omitted from his book is the promulgation on 28 September 1990 of Serbia’s new constitution, which stated that ‘The Republic of Serbia determines and guarantees: 1 the sovereignty, independence and territorial integrity of the Republic of Serbia and its international position and relations with other states and international organisations;…’. In other words, Serbia declared itself a sovereign and independent state before either Croatia or Bosnia did. This is relevant when evaluating not only the Milosevic regime’s hypocrisy regarding ‘separatism’, but the extent of the West’s policy failure. Milosevic posed as Yugoslavia’s defender while he deliberately destroyed it. Western leaders were hoodwinked: they sought both to uphold Yugoslavia’s unity and to appease Milosevic’s Serbia. As Glaurdic has brilliantly demonstrated, their dogged pursuit of the second of these policies ensured the failure of the first.
Commenting on Sunday’s referendum victory in Croatia in favour of joining the EU, the veteran Guardian journalist Ian Traynor, a man with a long experience of covering former-Yugoslav affairs, has this to say:
Croatia has voted to join the EU by a sweeping majority, delivering a greater than expected yes vote in a referendum watched nervously in Brussels for fear of a backlash… The endorsement means that Croatia, barring any last-minute hiccups, will become the EU’s 28th member country in July next year, symbolising its break with the Balkans and former Yugoslavia and anchoring it strongly in the European mainstream as well as Nato.
How exactly does Traynor think that Croatia’s entry into the EU will ‘symbolise its break with the Balkans and former Yugoslavia’ ? Three Balkan states (Greece, Bulgaria, Romania) and one former-Yugoslav state (Slovenia) are already members of the EU, and the others are seeking to join. The likelihood is that most, if not all, will eventually succeed, and that EU membership will therefore unite Croatia firmly will the rest of the former Yugoslavia and the wider Balkans. Far from ‘symbolising its break with the Balkans and the former Yugoslavia’, Croatia’s entry into the EU will reaffirm its close relations and common destiny with them.
Traynor’s lazy sentence hints at a perceived dichotomy between ‘Europe’ and ‘the Balkans’, whereby the former represents things like law, democracy, progress and human rights and the latter represents things like primitivism, nationalism, authoritarianism and looking backwards. Joining ‘Europe’ would therefore mean abandoning the ‘Balkan’ world of primitivism, nationalism, authoritarianism and looking backwards. Traynor’s sentence hints that the nationalism and wars in the former Yugoslavia of the 1990s were a product of the region’s ‘Balkanness’; of traits inherent to it as a Balkan rather than a European region. In reality, Western and Central Europe have had, if anything, worse records of extreme nationalism, imperialism and genocide than have the Balkans.
Ian Traynor should know better.
‘Right after the pontiff’s visit, Zagreb announced that it will hold a Gay Pride Parade on June 18. The motto of the event is “Tomorrow belongs to us.” If that sounds familiar, here’s why.’
The link, which Malic provides, is to the famous scene in the 1972 film ‘Cabaret’, set in Germany in the early 1930s, in which a young Nazi stirs a crowd by singing the song ‘Tomorrow belongs to me’. Malic thereby links the organisers of the Croatian gay pride march to the Nazis.
However, as Malic later admitted in the comments below his post, the motto of the Croatian gay pride event was actually ‘I buducnost je nasa’. This translates as ‘And the future is ours’. By no stretch of the imagination does it translate as ‘Tomorrow belongs to us’. The word ‘buducnost’ means ‘future’. The Croatian (or Serbian) word for ‘tomorrow’ is ‘sutra’. The Serbo-Croat for ‘Tomorrow belongs to us’ would be ‘Sutra pripada nama’. In fact, real members of the Croatian far-right who have wanted to use the slogan from Cabaret have had no trouble translating it correctly.
The only possible reason I can think of, to explain how Malic could have made such a mistake, is that even though he is a native speaker of Serbo-Croat, a Bosnian born and bred, he doesn’t actually speak his own language very well.
What other explanation could there possibly be ? It’s an absolute mystery.
The start of Ratko Mladic’s trial today means that the most important Bosnian Serb war-criminal, alongside Radovan Karadzic, is now facing justice. This trial will be crucially important for two reasons.
Firstly, its proceedings may shed some light on the role of Serbia and its military in the Srebrenica massacre of July 1995. At the time of the massacre, Serbia was in a federal union with Montenegro, and the joint state went by the name of the ‘Federal Republic of Yugoslavia’ (Savezna Republika Jugoslavija – SRJ). Its army, the ‘Army of Yugoslavia’, provided logistical support for the Bosnian Serb army – the ‘Army of the Serb Republic’ – and its Croatian Serb counterpart, though these were formally independent of it. The minutes of the SRJ’s Supreme Defence Council (which comprised the presidents of ‘Yugoslavia’, Serbia and Montenegro) were recently used by the prosecution of the International Criminal Tribunal for the former Yugoslavia (ICTY) in its case against former Yugoslav army Chief of Staff Momcilo Perisic. They reveal that Perisic regularly appealed to the Supreme Defence Council to provide such logistical support to the Bosnian Serb military, and that these appeals continued up until the eve of the Srebrenica massacre. Hopefully, the trial of Mladic, alongside that of Perisic, will provide more information on the role of the Army of Yugoslavia during the Srebrenica massacre. Indeed, it is likely that Mladic’s ability to provide such information was one of the reasons that Serbia’s military shielded him from arrest for so long. This is, however, an optimistic hope, as Mladic is more likely to continue denying responsibility for the massacre and to shield his former protectors than he is to spill the beans.
The second, and more important reason why Mladic’s trial is important, is that it provides the best chance yet to prove that genocide occurred not only at Srebrenica in 1995, but in other places and at other times in Bosnia-Hercegovina as well. The judicial record on this question so far is ambiguous. Germany’s courts have convicted Bosnian Serb perpetrators for offences relating to genocide carried out in parts of Bosnia outside of Srebrenica. One of these, the paramilitary leader Nikola Jorgic, was convicted of genocide in the north Bosnian region of Doboj in 1992, but appealed his conviction all the way to the European Court of Human Rights. The latter upheld Jorgic’s conviction for genocide, ruling that the German courts’ definition of genocide was consistent with the international legal definition. The German and ECHR rulings on Jorgic corroborate the view that genocide occurred across Bosnia from 1992, not merely at Srebrenica in 1995. On the other hand, the International Court of Justice, in the case for genocide brought by Bosnia against Serbia, acquitted Serbia of all genocide-related charges apart from failure to prevent and punish genocide. The ICJ specifically stated that genocide in Bosnia occurred only at Srebrenica in 1992, not in other places or at other times. Mladic, however, stands accused by the ICTY prosecution of systematic genocide across both western and eastern Bosnia from May 1992. If Mladic is found guilty on all charges, the judicial record for a genocide in Bosnia that occurred across the country from 1992 to 1995 will be greatly strengthened.
Be this as it may, the significance of this trial, and of Mladic personally, should not be overstated. News reports have suggested that Mladic was, along with Serbia’s wartime president Slobodan Milosevic and the wartime Bosnian Serb political leader Radovan Karadzic, one of the three principal perpetrators of Serb war-crimes in Bosnia. In fact, the singling out of these three individuals, to the exclusion of all others, betrays a false understanding of the nature of the Great Serbian killing campaign and of how it was organised. In reality, the Serb military aggression against Bosnia and programme of mass killing of its non-Serb inhabitants was planned and organised by the regime in Belgrade; not merely by Milosevic the despot, but by a much wider circle of top political, military and police officials. This war followed on seamlessly from the prior war waged by Serbia against Croatia in 1991-1992.
Mladic, on the other hand, was merely a run-of-the-mill officer in the Yugoslav People’s Army (JNA) until well after the war in Croatia had begun. He served as chief of the Department for Instruction of the JNA’s 3rd Military District based in Skopje in Macedonia until January 1991, then as assistant to the commander of the Pristina Corps in Kosovo until July 1991, when he was transferred – still as a mere colonel – to Knin, which was the self-proclaimed capital of the Serb rebels in Croatia. He was appointed chief of staff of the 9th (Knin) Corps at the end of July, and played a central role in ethnic cleansing operations against Croatia. In October, after Serbia together with Montenegro had carried out a coup d’etat to establish exclusive control of the federal organs of rump Yugoslavia, including of the JNA, Mladic was promoted to major-general. From late November or early December 1991, as they were preparing to wind down the war in Croatia and to shift it to Bosnia, the Milosevic regime and the leadership of the JNA set about organising a Bosnian Serb military within the framework of the JNA, something that involved concentrating all Bosnian Serb soldiers and officers in the JNA on Bosnian territory. On 30 December, the rump Yugoslav presidency (i.e. the representatives of Serbia and Montenegro) established a new military district – the ’2nd Military District’ – based in Sarajevo, that had jurisdiction over Mladic’s Knin Corps. At the same time, Mladic was promoted to commander of the Knin Corps.
Thus, when the JNA launched a full-scale war against Bosnia in March and April 1992, Mladic was not even based in Bosnia, but was still in the relatively junior position of commander of the Knin Corps, based in Serb-occupied Croatia. He nevertheless participated in the start of the aggression against Bosnia; his forces captured the town of Kupres in south-west Bosnia from its predominantly Bosnian Croat defenders on 8 April 1992 and helped to organise the future Bosnian Serb army in that region of the country, after which he returned to the Knin region for further operations against the Croatian Army.
On 27 April 1992, Milosevic’s regime proclaimed the new ‘Yugoslavia’ – i.e., the Federal Republic of Yugoslavia (SRJ), consisting only of Serbia and Montenegro. The Bosnian Serb rebel entity, subsequently known as the ‘Republika Srpska’, had already proclaimed independence a month before. By establishing the SRJ and the Bosnian Serb republic as formally separate states, the Milosevic regime aimed to pretend to the world that it was not involved in the war in Bosnia, and that this war was really just a ‘civil war’. This necessitated a formally independent Bosnian Serb army, separate from the Yugoslav army, and Mladic was handpicked by Belgrade to be its commander. On 30 April, Milosevic and other top officials of Serbia, Montenegro and the JNA met with the Bosnian Serb leaders under Radovan Karadzic to arrange the formation of a Bosnian Serb army, and it was agreed that Mladic – who had been promoted to lieutenant general only a few days before – would serve as its commander. In early May, JNA Chief of Staff and acting Yugoslav defence minister Blagoje Adzic summoned Mladic to Belgrade to inform him that he was to be promoted to both commander and chief of staff of the JNA’s 2nd Military District, based in the Bosnian capital of Sarajevo. At about the same time, the acting president of the Yugoslav presidency, Branko Kostic, ordered the previous JNA incumbent of the post to surrender his duties to Mladic, whose appointment as commander of the 2nd Military District was reported by Belgrade TV on 9 May.
Mladic subsequently recalled that ‘When I took up duty in the 2nd Military District I immediately assigned myself the task of assembling men and forming a command and General Staff, partly from the remnants of the 2nd Military District and partly from the men who had come with me from Knin and from other areas, who were born in Bosnia-Herzegovina. We immediately began the formation of a General Staff of the [Bosnian] Serb Army.’ On 12 May, the self-declared Bosnian Serb parliament voted to establish a Bosnian Serb army incorporating all JNA units on Bosnian territory, and to appoint Mladic as its commander. Yet the law was not promulgated by the presidency of the self-declared Bosnian Serb republic until 19 May. Until that time, Mladic was still formally subordinate, along with all Serb forces on Bosnian territory, to the Yugoslav military command and Yugoslav presidency in Belgrade. Only on 19 May did the the JNA formally split into two separate armies: the ‘Army of Yugoslavia’, made up of troops from Serbia and Montenegro, which formally withdrew from Bosnia on the same date; and the ‘Army of the Serb Republic of Bosnia-Hercegovina’, subsequently simply the ‘Army of the Serb Republic’, headed by Mladic and now formally independent.
In other words, although Mladic played a prominent and significant role in the Serb military assault on Bosnia that began full-scale in the spring of 1992, he was far from being its chief instigator or organiser. The latter was the political and military leadership of Serbia, Montenegro and the Yugoslav People’s Army, which handpicked and groomed Mladic for the role. Attributing excessive importance to Mladic as organiser of the war in Bosnia downplays the party that was actually responsible: the regime of Slobodan Milosevic.
War crimes investigators at the ICTY were aware of how the war and mass killing in Bosnia were organised. According to the amended indictment of Milosevic for war crimes in Bosnia:
‘Slobodan MILOSEVIC participated in the joint criminal enterprise as set out below. The purpose of this joint criminal enterprise was the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina (hereinafter referred to as “Bosnia and Herzegovina”), through the commission of crimes which are in violation of Articles 2, 3, 4 and 5 of the Statute of the Tribunal. The joint criminal enterprise was in existence by 1 August 1991 and continued until at least 31 December 1995. The individuals participating in this joint criminal enterprise included Slobodan MILOSEVIC, Radovan KARADZIC, Momcilo KRAJISNIK, Biljana PLAVSIC, General Ratko MLADIC, Borisav JOVIC, Branko KOSTIC, Veljko KADIJEVIC, Blagoje ADZIC, Milan MARTIC, Jovica STANISIC, Franko SIMATOVIC, also known as “Frenki,” Radovan STOJICIC, also known as “Badza,” Vojislav SESELJ, Zeljko RAZNATOVIC, also known as “Arkan,” and other known and unknown participants.’
However, at the time of writing, not a single official of Serbia, Montenegro or the Federal Republic of Yugoslavia – i.e. of the regime that organised the war – nor any officer of the JNA (excluding officers of the Bosnian Serb army who had previously served in the JNA) has been convicted by the ICTY of war crimes in Bosnia. The weight of ICTY punishment has, so far, fallen exclusively on the Bosnian Serbs, while the regime of Milosevic in Belgrade and the leadership of the JNA have been mostly let off the hook. Only six such officials were ever indicted: Milosevic, Stanisic, Simatovic, Perisic, Arkan and Seselj. Arkan was assassinated before he could be arrested, while Milosevic died while his trial was in progress. This leaves a maximum of four representatives of the regime who could, if the prosecution is wholly successful, receive punishment for organising the worst case of aggression and mass killing in Europe since World War II. None of these belonged to the top rank of officials responsible for organising the war in Bosnia, with the exception of Stanisic, who was head of Serbia’s State Security Service.
Of the other representatives of the ‘joint criminal enterprise’ from Serbia, Montenegro and the JNA high command who were listed in the Milosevic indictment, Stojicic was assassinated in Belgrade before the indictment was issued. Adzic and Kadijevic, the two top figures in the JNA during the war in Croatia and (in Adzic’s case) during the first stage of the war in Bosnia, were never indicted. Neither were Jovic and Kostic, the Yugoslav presidency members for Serbia and Montenegro respectively, and therefore (along with their counterparts for Vojvodina and Kosovo) the individuals in ultimate formal command of all Serb forces in Croatia and Bosnia up until 19 May 1992. Other top officials of Serbia, Montenegro and the JNA also escaped indictment over Bosnia or Croatia – such as Montenegro’s wartime president Momir Bulatovic, and acting Yugoslav army chief of staff Zivota Panic (who died in 2003).
Some relatively minor JNA figures were indicted for war-crimes in Croatia, in relation to Vukovar and Dubrovnik, but over Croatia, as over Bosnia, the weight of the ICTY’s punishment has fallen on the Croatian Serb agents of Belgrade – such as Milan Martic and Milan Babic (and potentially also the still unarrested Goran Hadzic) – while the officials of the former Milosevic regime have escaped extremely lightly.
This extraordinary failure of international justice over Bosnia – the failure of the ICTY to indict more than a handful of the officials of the regime and army responsible for the planning and launching the war, and so far to convict a single one of them – reflects both the inability of its prosecutors to understand the war properly, as well as their poor strategy in issuing indictments. As I have indicated elsewhere, a preliminary draft of a war-crimes indictment for the leadership of the SRJ (Serbia and Montenegro) drawn up in 2001 by investigators – including the present author – aimed to indict Milosevic and other members of his regime together, including Jovic, Kostic and Adzic. But by a decision of Chief Prosecutor Carla del Ponte, the policy was then dropped in favour of an indictment of Milosevic alone. Apart from allowing his chief collaborators to escape justice, this had the unfortunate effect – as Geoffrey Nice, who led the prosecution of Milosevic, himself noted – that when Milosevic died in 2006, his trial came to an end, and with it, the trial of his regime. This contrasts with the sensible indictment strategy pursued over Serbian war-crimes in Kosovo by del Ponte’s predecessor, Louise Arbour, who indicted five top members of the regime together, including Milosevic.
In her published memoirs, del Ponte’s failure to understand the planning and organising of the war in Bosnia is apparent; it is a failure that found expression in her misguided indictment strategy. She describes Milosevic and Croatia’s Franjo Tudjman as the two figures primarily responsible for the break up of Yugoslavia – as if their respective roles in the process were equal, and as if none of the other leading members of Milosevic’s Belgrade regime was of similar importance. But this is false.
The break up of Yugoslavia and the wars in Croatia and Bosnia all formed part of a single process, planned by the regime in Belgrade under Milosevic’s leadership from at least the spring of 1990, with the goal of creating a Great Serbia (masquerading as a ‘new Yugoslavia’). So far as Bosnia was concerned, this ’joint criminal enterprise’ aimed to destroy the country and kill or expel most of the Muslim or Bosniak population. Most of Bosnia, as well as large parts of Croatia, were to be annexed by Serbia, and rump Croatia was to receive some Bosnian territory as well, with the Muslims or Bosniaks, at best, being confined to an Indian reservation in between. Tudjman was an eager collaborator in this programme of genocide and aggression, whose other leading members were, in particular, the aforementioned Jovic, Kostic, Kadijevic, Adzic, Stanisic, Panic and Bulatovic. None of these has yet been punished, and most of them certainly never will be.
As for Mladic, he was merely a middle-ranking agent in the planning and launching of this enterprise – more than a pawn, but not more than a knight or a bishop. So while his arrest and trial should be celebrated, and while we have much to expect from it, let us not pretend that justice is being served.
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