Vindication or travesty ? Operation Storm’s Ante Gotovina and Mladen Markac acquitted

‘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 ICTY’s U-turn over genocide in Bosnia

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.

The arrest of Ejup Ganic: Serbia’s aggression against Bosnia continues

Image: Bosnian forces destroy a JNA convoy at Brcanska Malta, Tuzla, on 15 May 1992

Imagine if, fifteen years after the end of World War II, the Japanese government had tried to have Henry A. Wallace, Vice President of the US during the war, extradited to face trial in Japan for the deaths of Japanese soldiers during the Battle of Pearl Harbour. Imagine if the German government after the war had tried to have survivors of the Warsaw Ghetto Uprising extradited from Israel to Germany to face trial for the killing of German soldiers during the uprising.

On Monday, Ejup Ganic, the former de facto Bosnian vice-president during the war of 1992-95, was arrested in London at the request of the Serbian government, which seeks his extradition to face trial in Serbia for the killing of Yugoslav People’s Army (JNA) soldiers in Sarajevo on 3 May 1992. This incident demonstrates that Serbia is still very far from showing repentence for its aggression against Bosnia during the 1990s. On the contrary, with the arrest of Ganic, Serbia is continuing this aggression, by attempting to persecute Bosnians guilty only of trying to defend their country from it.

The incident for which Ganic’s extradition is being sought by Belgrade occurred at Dobrovoljacka ulica (Volunteers’ Street) in Sarajevo on 3 May 1992. At this time, the JNA forces in Sarajevo and in Bosnia as a whole were de jure and de facto the forces of the neighbouring state, the self-proclaimed ‘Federal Republic of Yugoslavia’ (i.e. Serbia and Montenegro), which was then engaged in a full-scale war of conquest against Bosnia-Hercegovina, involving the systematic massacre and expulsion of non-Serbs from the areas that it occupied. In principle, the JNA should have been the joint army of all the former Yugoslavia’s republics and peoples. But thanks to the Serb preponderance in its top command and its officer corps, from 1990 the JNA had been transformed into an exclusively Serbian (and technically also Montenegrin) army. On 27 June 1990, Veljko Kadijevic, the Yugoslav Secretary of People’s Defence and the most senior officer of the JNA, agreed with Borisav Jovic, Serbia’s representative on the Yugoslav Federal presidency and Slobodan Milosevic’s right-hand man, a plan ‘forcibly to expel’ Slovenia and a dismembered Croatia from Yugoslavia, thereby breaking up the common state and creating what was in effect a Great Serbia. The JNA was thereafter steadily transformed into a Serbian army.

During the war in Croatia in 1991-92, the JNA fought against Croatia, bombarding Croatian cities, killing and expelling Croatian civilians and turning over territory to the Serb rebels in Croatia – all without any authorisation from its constitutional commander, the Yugoslav Federal presidency, or from the Yugoslav government of Ante Markovic. The JNA simply disregarded orders given to it by Stjepan Mesic, the Yugoslav president. On 3 October 1991, even formal pretence that the JNA was still ‘Yugoslav’ was dropped; the Serbian and Montenegrin members of the Yugoslav presidency carried out a coup d’etat, appropriating to themselves the right to command the JNA. This represented a violation of the rights of Bosnia-Hercegovina, which was still part of Yugoslavia. From then on, the JNA on Bosnian territory was a Serbian and Montenegrin army of occupation.

The Bosnian presidency and government under Alija Izetbegovic remained neutral during the war in Croatia. They bent over backwards to avoid provoking the JNA on Bosnian territory, and to retain good relations with it. Izetbegovic, his fellow Bosnian presidency member Ejup Ganic and other senior Muslim political leaders naively believed that war could be avoided and that the JNA would not support the Serb extremists. This was an error of monumental proportions. Following a long and careful preparation, at the start of April 1992 – before Bosnia-Hercegovina’s independence had been recognised by the international community – the JNA, under Serbia’s formal control, launched a full-scale military attack on Bosnia-Hercegovina. Eventually, the Bosnian Serb nationalists under Radovan Karadzic and Ratko Mladic would assume command of a formally independent Bosnian Serb army (‘Army of the Serb Republic’). But until 19 May 1992, all Bosnian Serb forces were either themselves part of the JNA, or under JNA command.

The International Court of Justice (ICJ), in its 2007 verdict in Bosnia’s case against Serbia for genocide, ruled that ‘it is established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict’ and that ‘the victims were in large majority members of the protected group [the Muslims], which suggests that they may have been systematically targeted by the killings.’ Moreover, ‘it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during the conflict and, in particular, in the detention camps.’ This process began while all Bosnian Serb forces were still under the command of Serbia and the JNA, whose central role in these crimes has been extensively documented.

Izetbegovic and Ganic were certainly guilty in relation to the JNA – they were guilty of failing to prepare their country to resist its aggression, and for failing to take action against it even after this aggression had begun. Already during 1990, in preparation for its attack on Bosnia, the JNA had begun disarming the Bosnian Territorial Defence, but had run into resistance from sections of the latter, which refused to turn over their weapons. After Izetbegovic and Ganic came to power in the Bosnian elections of autumn 1990, their Bosnian presidency actually ordered the Bosnian Territorial Defence to turn over its weapons to the JNA. Izetbegovic and Ganic would continue to restrain Bosnian resistance to the JNA until long after the aggression had begun. When the Serbian paramilitaries of Zeljko Raznatovic ‘Arkan’ attacked the Bosnian city of Bijeljina on 1 April 1992, Izetbegovic sanctioned the JNA’s occupation of the city, in the belief that it would restrain the Serb extremists. Weeks after the JNA and Serbia’s paramilitaries had already begun conquering Bosnian towns and killing and expelling their non-Serb inhabitants – Bijeljina on 1-3  April, Kupres on 8 April, Zvornik on 8-10 April, and so forth – Izetbegovic was still systematically vetoing moves by Bosnia’s commanders to strike back against the JNA.

On 26 April, Izetbegovic negotiated in the Macedonian capital of Skopje with Branko Kostic, acting president of the self-declared rump presidency of ‘Yugoslavia’ (i.e. Serbia and Montenegro), and with Blagoje Adzic, chief of staff of the JNA, over the possible withdrawal of the JNA from Bosnia. Agreement was reached that JNA troops from Serbia and Montenegro should be withdrawn. But agreement was not possible over the more than 80% of JNA troops on Bosnian territory, mostly Serbs, who were citizens of Bosnia. The Bosnian presidency demanded that they either be withdrawn or place themselves under Bosnian command, while the Belgrade leadership rejected either option, seeking instead to have them placed under Bosnian Serb command, and rejected furthermore any solution that was not agreed to by the Bosnian Serb leadership. Consequently (contrary to what was subsequently claimed by Serbia in its request for Ganic’s extradition) no agreement was reached between Izetbegovic and Belgrade over the withdrawal of the JNA from Bosnia.

Sarajevo was the object of a full-scale offensive on 2 May, on the part of Colonel General Milutin Kukanjac, commander of the Sarajevo-based Second Military District of the JNA, attacking with his garrison within the city and attempting to seize control of the Bosnian presidency building, while additional JNA forces attacked the city from outside. Sarajevo’s post office, telephone exchange and other public buildings were bombarded. On the same day Izetbegovic, returning from peace negotiations at Lisbon, was kidnapped by the JNA at Sarajevo airport. This amounted to a concerted assault by JNA forces on the organs of Bosnia’s democratically elected government. But the JNA’s offensive against Sarajevo was defeated by the Bosnian Territorial Defence, and Kukanjac’s column was surrounded.

It was perhaps Bosnia’s greatest military victory to date, and it was largely squandered by Izetbegovic. Initially, on 3 May, Izetbegovic negotiated his own release from JNA captivity in exchange for the Bosnian armed forces allowing Kukanjac to leave Sarajevo. But immediately afterward, Kukanjac demanded that his entire JNA garrison be allowed to leave Sarajevo as the price for Izetbegovic’s release. This revised deal was not supported by Ganic and the Bosnian military commanders in Sarajevo, but it was supported by General Lewis Mackenzie, the UN commander in Sarajevo and subsequently a paid lobbyist of SerbNet, a Serb-nationalist lobbying group in the US. Once Izetbegovic was safely back in Bosnian hands, the Bosnian forces opened fire on the JNA convoy in Volunteers’ Street, succeeding in killing or capturing dozens of JNA soldiers.

There is some uncertainty as to whether the initiative to attack the JNA convoy was taken spontaneously by the Bosnian soldiers on the ground themselves, as Jovan Divjak, the then deputy commander of the Bosnian Territorial Defence, claims, or whether it was ordered by the top Bosnian commanders or even by Ganic himself, deputised by Izetbegovic to head the Bosnian presidency and critical of the deal with Kukanjac. Were the attack on the JNA convoy a war-crime, it would make no difference: Ganic and other members of the Bosnian wartime presidency - including Izetbegovic himself - as the supreme command of the Bosnian armed forces, would be automatically responsible. But the attack was not a war crime: it was an attack on a legitimate military target. At most, the Bosnian defenders were guilty of violating a ceasefire agreement extracted from them under duress, by an enemy that had attacked them, been defeated, then sought to extricate itself from its defeat by kidnapping their democratically elected president and holding him as a hostage.

The real guilt of Bosnia’s leadership in the spring of 1992 was not that, on this and one or two other occasions, its forces attacked and killed soldiers belonging to the army of a foreign state that was attacking its country. Its guilt lies in the fact that its forces did not do so more often. Where Bosnia’s defenders did prepare their defences and fight back against the JNA, they were sometimes able to protect their people from killing and massacre. So it was at Tuzla, where on 15 May 1992, the city’s defenders successfully destroyed the city’s JNA garrison, as a result of which Tuzla’s population was spared the massacres, expulsion, torture and rape that befell the citizens of other East Bosnian towns. So it was initially in Srebrenica, where the local defenders fought back and saved their town from destruction for three years, though they would eventually pay a very heavy price for their resistance. But in towns where the Bosnian authorities followed Izetbegovic’s lead and did not resist the JNA, such as in Foca and Visegrad, the non-Serb population was massacred or expelled.

The JNA would nevertheless probably have been allowed to withdraw peacefully from Sarajevo and Tuzla had it been willing to return the weapons it had confiscated from Bosnia’s Territorial Defence. Yet Belgrade’s strategy – carried out via the JNA - was to disarm Bosnia’s defenders and keep them disarmed, while arming the Bosnian Serb forces to the teeth, to enable them to carry out their genocidal plans against a defenceless enemy. In principle, the JNA had been the collective army of all Yugoslavia’s republics, and even its own weapons were therefore the collective property of all of them; the claim by Serbia and Montenegro (the ‘Federal Republic of Yugoslavia’) to be the sole successor state of the defunct Yugoslavia was never accepted by the UN or the international community. The ability of Bosnia’s defenders to defend their civilian population from the Serbian genocidal attack depended largely on their ability to recapture their weapons from the JNA – their attacks on the JNA in Sarajevo and Tuzla were a matter of life and death.

With the arrest of Ejup Ganic and attempt to have him extradited to Serbia, Belgrade is persecuting a former member of the democratically elected presidency of the state that it attacked in 1992, for the crime of having resisted that attack. Last September, Ilija Jurisic, one of the Bosnian military commanders who directed the attack on the JNA at Tuzla on 15 May 1992, was sentenced by a Belgrade court to twelve years in prison for his role in the attack. Fifteen years after the end of the Bosnian war and ten years after the overthrow of Milosevic, Serbia is still hounding Bosnians who attempted to resist its aggression and genocide in the 1990s. Such behaviour is of a kind with the Serbian parliament’s unwillingness to recognise the Srebrenica massacre as an act of genocide, despite the fact that this genocide has been recognised by two different international courts.

Britain must release Ejup Ganic at once. Britain and other EU members must make it absolutely clear that such behaviour on Serbia’s part will not be tolerated; that until Belgrade ceases its persecution of Ganic, Jurisic and other politicians and soldiers of the Bosnian war of independence, it will have no place in the EU or in democratic Europe.

This article was published today on the website of the Henry Jackson Society.

Update: This article has been published in Bosnian in BHDani.

Correction: When it was published on 3 March 2010, this article contained the following claim:

‘On 26 April, Izetbegovic signed an agreement with the regime in Belgrade to permit the JNA to withdraw from Bosnia, along with its own weapons and those that it had confiscated from the Bosnian Territorial Defence. This was arguably an act of treason on Izetbegovic’s part, since he had turned over Bosnia’s confiscated armaments to the army of a neighbouring state that was currently engaged in attacking and conquering his country. But it did not mollify the JNA, whose operations against Bosnia did not cease; at the start of May, JNA forces previously withdrawn from Croatia were used to conquer the Bosnian towns of Derventa and Doboj.’

Subsequently, my research on behalf of Ejup Ganic’s legal defence team revealed this claim to be false: no agreement was reached between Izetbegovic and Belgrade over the withdrawal of the JNA from Bosnia, either on 26 April 1992 or thereafter. Nevertheless, Serbia’s request for Ganic’s extradition from the UK claimed falsely ‘On April 27, 1992, the Agreement was made between B&H and FRY on peaceful withdrawal of JNA until May 19, 1992 [sic - all grammatical errors in original].’

The article has been amended accordingly.