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.

Alan Mendoza’s Henry Jackson Society and William Shawcross’s Charity Commission

Before the last British general election, I expressed the hope that under David Cameron’s leadership, the Conservatives might become a centrist counterpart to New Labour. In retrospect, this was very naive, and the left-wing Cassandras were right: whereas Cameron’s coalition government has followed a generally progressive, Blairite foreign policy, its domestic policy has been aggressively Thatcherite; arguably more so than was Thatcher’s own. The dynamic at work within the Conservative Party appears to be the opposite to that within the Labour Party under Neil Kinnock, John Smith and Tony Blair in the 1980s and 1990s: instead of a moderate leader reining in the radicals, the radicals are pushing the leader away from the centre ground. In the words of the Daily Telegraph‘s Peter Oborne, the Conservative Party is ‘out of control’. Cameron appears to have wanted to temper his government’s economic Thatcherism with some socially and constitutionally liberal policies such as legalising gay marriage and House of Lords reform, but this is not being permitted him by his party; a party that did not even win the last election, but behaves as if it has a mandate to reshape the country according to its own image.

Indeed, what is striking about this contemporary Conservative Party is not merely its actual politics, but the arrogance and sense of entitlement that its politicians and supporters exhibit. My own experience in working with a Tory-dominated organisation, the Henry Jackson Society (HJS), which I left at the start of this year, has confirmed me in this view. The HJS is a registered charity that describes itself as a ‘think-tank’, and is perhaps the loudest voice in Britain in favour of war with Iran, if necessary to prevent the country acquiring nuclear weapons. But over and above this, it acts as a network for members of the British elite, particularly Tories, in which – to put it tactfully – boundaries become somewhat blurred.

Aspiring Conservative Party politician Alan Mendoza is a director of at least six registered companies, including the Henry Jackson Society. He received £75,000 in remuneration in 2011 for his work as Executive Director of the HJS; it was an increase of 63.64% on the £45,833 he received for the job in 2010. Mendoza is not only the HJS’s Executive Director, but also one of its trustees, therefore a member of the body that determines his own remuneration. Meetings of the HJS’s board of trustees are quorate with only three of the eight members present, and Mendoza is the only trustee whose signature appears on the trustees’ report and accounts for 2011. The HJS is currently advertising for a personal assistant for Mendoza, with a salary of up to £30,000.

Mendoza is not the only HJS trustee to enjoy also a staff position in the organisation. Lady Caroline Dalmeny was appointed to the board of trustees in July 2010. She was formerly of Saatchi and Saatchi and the Conservative Central Office, and was political assistant for Michael Portillo when he was Secretary of State for Defence and for Lord Strathclyde, Leader of the Opposition in the House of Lords. According to Tatler, ‘Auctioneer Lord Dalmeny’s wife hosts fabulous shooting weekends at their Scottish estate, Dalmeny House. She also once played a cameo part in a film, Scooterman, alongside Ed Stoppard, and has written about the joys of having a “manny” – she’s a mother of five children under 10, including triplets. Makes cracking roast beef.’

During 2011, Dalmeny’s husband, Lord Harry Dalmeny, UK deputy chairman of Sotheby’s, donated interest-free loans totalling £250,000 to the Henry Jackson Society. In 2012, Lady Dalmeny was appointed Associate Director of the HJS, therefore Mendoza’s immediate office subordinate. She has a BA (Hons) from UCL, and is in the process of completing a postgraduate degree at King’s College London. The HJS website describes her as ‘an expert in defence, military history and international relations, an activist for the rights of women in failed states [who] is currently focusing on Afghanistan, Pakistan, East Africa and US-UK relations.’ Her work has not yet appeared on the HJS website.

The HJS is a registered charity, and according to the Charity Commission’s guidelines, ‘a charity cannot exist for a political purpose, which is any purpose directed at furthering the interests of any political party, or securing or opposing a change in the law, policy or decisions either in this country or abroad.’ Nevertheless, when Mendoza was asked in July 2008 by the organisation ConservativeHome ‘to offer 100 word thoughts on how the Conservatives might make some ground on foreign policy’, he responded in his capacity as Executive Director of the HJS, asserting that with ‘Labour heading down the route of international irrelevance, Conservatives should have the courage to explore where to stand on’ various issues.

It is a moot point whether the Charity Commission will ensure that the HJS will abide by its guidelines. The Charity Commission’s new chair, William Shawcross, told the Civilsociety.co.uk website this month: ‘Most of the 160,000 registered charities don’t require regulation – they’re small and they get on with their work properly and independently and it’s only a few that do require to be looked at.’ Shawcross is politically somewhat to the right of Lord Voldemort, and on 19 October 2011 was appointed a member of the board of directors of none other than the Henry Jackson Society.

Shawcross agitated for a Conservative victory in the last general election, on the grounds that ‘New Labour has forced Britain to become a mere piece of the bland but increasingly oppressive Bambiland of the E.U., promoting such PC global issues as gay rights (except in Muslim lands) and man-made climate change’, and ‘Those who hate the rise of the British National Party should blame Labour, not the poor white voters whom Labour abandoned and whose lives have been changed forever by uncontrolled immigration. Last week, two London taxi drivers told me that they were going to vote BNP because it’s the only party that cares at all about them.’ Shawcross has described Guantanamo Bay as representing ‘model justice’ and as being ‘probably the best-run detention centre in the world and with more habeas corpus rights for detainees than anywhere else’, and has claimed that ‘Rupert Murdoch has been the bravest and most radical media owner in Britain in the last 40 years’, whose ‘real crime is to have challenged liberal conventions in the US and here.’

William Shawcross

It was announced on 29 August 2012 that Shawcross was the government’s preferred candidate to head the Charity Commission, and he was elected to the role at a meeting of the Public Administration Select Committee of the House of Commons on 5 September. At the meeting, his membership of the HJS featured prominently in the discussion. One of the participants, Labour MP Paul Flynn, had this to say: ‘A pre-appointment hearing to decide whether William Shawcross is sufficiently politically independent to do the job as head of the Charity Commission. Three of us thought he was not. Four Tories thought he was.’ The chair of the Public Administration Select Committee was Conservative MP Bernard Jenkin, himself a member of the Political Council of the Henry Jackson Society, for which he has contributed analysis. Another Conservative member of the committee that elected Shawcross was Robert Halfon MP, who declared ‘that I was a founding patron of the Henry Jackson Society when it was first set up and I am fairly involved with the organisation.’ Halfon is also a member of the HJS’s Political Council. In the view of Fraser Nelson, editor of the Spectator, Shawcross’s appointment was a ‘declaration of intent’ on the part of the government to deal with ‘Labour’s new fifth columnists’ in the ranks of the charities.

Flynn said during the meeting that ‘The Henry Jackson Society is a promoter of a particular view in this House, which is representing rightwing American opinion.’ Shawcross promised that, were he elected chair of the Charity Commission, ‘Obviously I would wish to resign all my memberships of the Henry Jackson Society and other charities with which I am involved.’ Since his election, the old HJS charity has been formally dissolved and a new HJS charity has been registered, of which Shawcross is no longer listed as a trustee. However, he was until recently still listed on various corporate databases as a member of the board of directors of the Henry Jackson Society registered company, whose membership is otherwise identical to the board of trustees of the registered charity.

Shawcross’s biography on the Charity Commission’s website makes no mention of his past involvement with the HJS. However, the website still lists him as the sole trustee of the charity ‘Response’, as does his personal website. Shawcross has a somewhat uneven record as regards respecting Charity Commission guidelines; he chaired Response for 23 years, but as the website Civilsociety.co.uk revealed this month, he ‘did not bother to file its annual update within the recommended good-practice deadline for four out of the last five years… the charity, Response, only filed its updates for 2011 and 2012 five days before Shawcross was announced as preferred candidate for the job [of Charity Commission chair], and the updates for 2010 and 2009 were submitted in June and May of this year.’

Still, no doubt all the rules are being obeyed to the letter.

Update: Since this article was published, Shawcross’s resignation from the board of directors of the HJS has been published as having occurred on 30 September 2012. This article has been modified accordingly.

Below: Alan Mendoza turns on the charm in a debate over Iran at the Cambridge Union Society.