On 21 January, the Croatian journalists’ website autograf.hr published an article about me written by Dejan Jovic, chief analyst and special coordinator at the office of the president of Croatia, Ivo Josipovic. The Croatian newspaper Vecernji list republished Jovic’s article, then published my reply on 30 January, which is reproduced here with Croatian-language passages translated into English. My reply was also published in BCS translation by tacno.net.
[My four-part refutation of David Gibbs’s book ‘First do no Harm’ can be found here.]
Dejan Jovic’s attack on me, published by autograf.hr on 21 January, contains numerous falsehoods. For example, he accuses me: ‘To justify the war in Iraq, they employed the metaphor of Hitler (for Saddam Hussein)’. Yet I have never used the Hitler metaphor to describe Saddam Hussein, and in June 2013 I described the Iraq war in the pages of the Guardian as a ‘misguided adventure’. He claims ‘people like Hoare advocate further interventions as the solution to new problems: in Syria, maybe afterwards in Iran, then who knows where tomorrow.’ In fact, I explicitly condemned the idea of a US or Israeli attack on Iran on my blog back in April 2012. Jovic claims: ‘Indeed, those same people who attack me have already attacked many others, including the Washington Times, The Guardian, and proclaimed some other reputable individuals and media outlets to be “genocide deniers”.’ But I have never accused either the Washington Times or the Guardian of genocide denial, and I doubt whether Jovic’s other critics have either. Jovic links me to the politics of the Henry Jackson Society. Yet I resigned from that organisation at the start of 2012, and have explicitly and strongly condemned its politics repeatedly since.
Jovic’s string of ad hominem falsehoods directed against me appear to be his way of distracting attention from the matter at hand: his uncritical endorsement of David Gibbs’s Great Serb propaganda tract (First Do No Harm: Humanitarian Intervention and the Destruction of Yugoslavia, Vanderbilt University Press, Nashville, 2009), which denies the Srebrenica genocide. Jovic claims: ‘In criticising my review of Gibbs’s book, Hoare “forgets” that Gibbs personally replied to his thesis on “genocide denial” – and completely refuted it.’ But this is untrue. In his book (p. 281), Gibbs says of Srebrenica: ‘Certainly, the murder of eight thousand people is a grave crime, but to call it “genocide” needlessly exaggerates the scale of the crime’ (p. 281). Furthermore, Gibbs claims the massacre was provoked by the Bosniak victims: ‘The origin of the Srebrenica massacre lay in a series of Muslim attacks that began in the spring of 1995… Such actions invited Serb reprisals, and this dynamic contributed to the fall of the safe area’ (p. 160). As for Jovic’s claim that Gibbs ‘totally refuted’ my accusation of genocide denial: this is also untrue; Gibbs was completely unable to defend himself from the charge. Readers can view my refutation of him and see for themselves.
Jovic first tries to deny that Gibbs engages in genocide denial, then tries to justify Gibbs’s genocide denial. He argues that ‘in the academic community – not our own post-Yugoslav one, but more broadly – there is no consensus on whether in the wars in the former Yugoslavia genocide was committed or not.’ But none of the people he cites, in support of the view that there was no genocide, is an expert on the former Yugoslavia. Jovic then claims ‘courts have ruled that in Bosnia-Hercegovina there was no genocide (apart from in Srebrenica)’. But this is untrue: the ICTY has not ruled that there was no genocide in Bosnia-Hercegovina apart from in Srebrenica. Both Karadzic and Mladic are currently being tried for genocide in municipalities across Bosnia-Hercegovina – not only in Srebrenica. Karadzic’s acquittal by the ICTY Trials Chamber for one count of genocide (in municipalities outside of Srebrenica) was recently reversed by the ICTY Appeals Chamber. Furthermore, in 1997, a German court convicted Nikola Jorgic, a Bosnian Serb, for genocide in the north Bosnian region of Doboj in 1992, and this ruling was upheld by the European Court of Human Rights.
Finally, Jovic claims that genocide is something invented by warmongers to justify military intervention, whereas people who deny genocide are really just trying to protect peace:
‘”Genocide” and “Hitler” are always there when it is necessary to start a new war – they are the “idea” explanation of the reason why one more is being launched. The difference between Gibbs and Hoare is, therefore, that one thinks that the wars are not waged out of altruism and that they do not solve problems, whereas the other maintains that liberal interventions are necessary and important, and that there is nothing controversial in them even if they result in a large number of deaths. One is an advocate of peace, the other of war.’ The reality is somewhat different: both Jovic and Gibbs seek to minimise the guilt of the Serbian aggressor for the 1990s war, and to shift as much blame as possible onto the Croatian and Bosnian victims of the aggression. The agenda of people like Jovic and Gibbs is to ensure that the real warmongers – tyrants like Slobodan Milosevic and Bashar al-Assad – should be free to wage their wars without fear of Western military intervention, or even of serious condemnation from the Western media.
Following his review of Gibbs’s book in Politicka misao, Jovic has now for the second time, in his reply to me and to the Bosnian organisations who criticised him, praised this book in glowing terms, while refusing to make any substantial criticisms of it. Yet Gibbs’s book is a Great Serbian propaganda pamphlet of no scholarly value. Gibbs has no expertise on the subject of the former Yugoslavia; he does not even read Bosnian/Croatian/Serbian; and his arguments are based on the distortion and manipulation of source material. He minimises the guilt and crimes of the regimes of Milosevic and Karadzic and of the JNA; exaggerates the guilt and crimes of the Croatians and Bosnians; and seeks to blame the West for the break-up of Yugoslavia and war.
1) Gibbs writes ‘And we will see later in the chapter that the post-Yugoslav state of Croatia, which became independent in 1991, had important historical links with Pavelic’s puppet state.’ (p. 48).
Discussing World War II, Gibbs mentions Ustasha genocide and collaboration, as well as the collaboration of Bosnian Muslims and Albanians, but fails to mention the crimes or collaboration of the Chetniks, or of Serbia’s Nedic regime.
2) Gibbs claims Tudjman ‘recommended’ genocidal violence against the Jews (p. 67)
3) Gibbs claims Croatia and Slovenia were not experiencing any oppression at Serb hands prior to declaring independence, so had no legitimate grounds for seceding: ‘In fact, there was no serious evidence of Serb oppression in Slovenia or Croatia prior to the secessionist actions. The main reasons for seceding, as we saw in the previous chapter, were economic in nature. The JNA’s initial use of force in Slovenia was quite mild’ (p. 97). Thus, he disregards the Serbian economic sanctions against Slovenia; the JNA’s disarming of the Slovenian and Croatian territorial defence; the Serb rebellion in Croatia; the ‘Log Revolution’; the JNA’s intervention in support of the Serb rebels; and the massacre of Croatian policemen at Borovo Selo.
4) Gibbs blames the war in Croatia on the Croatian side: ‘The Croatian war had its origins with the nationalist forces that were unleashed during the election campaign of 1990, when Franjo Tudjman’s HDZ party came to power.’ (p. 87)
5) Gibbs claims Germany engineered Croatia’s independence and the war in 1991: ‘We will see that Germany began encouraging Croatian nationalists and preparing them for independence months before the war began. Based on this new information, I argue that German officials did not simply respond to the war; they helped initiate it.’ (p. 77)
And again: ‘Germany played a key role in encouraging Slovenia and Croatia to secede, and surreptitiously assured them of external support for the secession efforts. Once the republics actually seceded, the European Community (backed by the United States) condemned the JNA’s efforts to block secession.’ (p. 105)
Gibbs’s anti-German conspiracy theory – which Jovic particularly praises – is based on biased, unserious and manipulated sources; he does not have even a single piece of real evidence to demonstrate that Germany encouraged Croatia to secede from Yugoslavia. I have exposed Gibbs’s anti-German falsifications in detail.
6) Gibbs condemns the European Community for recognising Croatia’s independence in its republican borders, and its failure to recognise the independence of the Krajina Serbs: ‘The European Community took the view that Croatia and other republics could not be divided. In effect, this meant the following: Croatia had the right to secede from Yugoslavia but this same right would not be recognised for the Krajina Serbs, who wished to separate from Croatia. In the ensuing conflict in Krajina, the European Community supported the Croatian position and opposed that of the Serbs. At the Hague conference, Van den Broek, the Dutch foreign minister, affirmed that any changes in the republican borders “were not an option”. This anti-Serb bent was evident at many levels.’ (p. 96).
And again: ‘On the one hand, the Community accepted the right of Croatia to separate from Yugoslavia, or at least viewed such separation with leniency. On the other hand, the European Community condemned efforts by the Krajina Serbs to separate from Croatia. Why the double standard ?’ (p. 97)
7) Gibbs claims: ‘In addition, the Muslim/Croat alliance of 1990-1991 recreated a similar alliance that had existed during World War II, when the two groups were the main supporters of the pro-Nazi Ustasa state, and both participated in the massacres of the Serbs that occurred during this period.’ (p. 116)
8) Gibbs claims: ‘Operation Storm also generated a humanitarian disaster. The attack forced from 150,000 to 200,000 Serbs to flee, producing what was probably the largest single act of ethnic expulsion of the entire war.’ (p. 163)
9) Gibbs writes: ‘Another feature of the Balkan conflict was the tendency of the Western media needlessly to exaggerate the atrocities committed by Serb armies… Atrocities committed at Serb-run detention camps were presented in sensationalist fashion, for example, and they became “extermination camps” comparable to Auschwitz. President Izetbegovic himself encouraged these interpretations. Yet, in 2003, shortly before his death, Izetbegovic conceded that “there were no extermination camps” in Bosnia. He also conceded that his previous claims to the contrary had been deliberate misrepresentations, intended to outrage Western public opinion and thus trigger Western military intervention against the Serbs.’ (p. 216) In this way, Gibbs minimises the criminal nature of Serb concentration-camps like Omarska, Keraterm and Trnopolje.
10) Gibbs accuses the Bosnian armed forces of shelling their own civilians during the siege of Sarajevo, in order to blame it on the Serbs ‘: ‘In several cases, Bosnian forces themselves bombarded Sarajevo and blamed the resulting deaths on the Serbs.’ (p. 125)
Furthermore: ‘In should also be noted that the [Bosnian] government restricted the right of Sarajevo residents to flee the city, effectively blocking the exit for many besieged civilians. This policy increased the potential for casualties and fit in nicely with the government’s public relations strategy. In the world’s media, the deaths from shelling and sniper fire were blamed exclusively on Serb forces, but in reality the Bosnian government bore some responsibility as well.’ (p. 126)
11) Gibbs claims the Serbs legitimately owned most of Bosnia: ‘: ‘It is clear that Serb forces were on the offensive during much of the war, and they conquered large areas of Bosnia-Herzegovina. But the extent of Serb aggression was once again exaggerated. Newspaper articles repeatedly noted that Serbs controlled some 70 percent of Bosnia’s territory, despite the fact that they only constituted 31 percent of the total population… What such reports omitted was that Serbs had always occupied most of Bosnia’s land area, owing to their demographic dominance in rural regions.’ (p. 124)
12) Gibbs claims that it was the Muslims and Croats who caused the war to break out in Bosnia in 1992, whereas the Serbs wanted peace: ‘In March 1992, however, before full-scale war had begun, Serb leaders welcomed the Lisbon agreement and they endorsed it in the strongest terms. Radovan Karadzic, who represented the Serbs at Lisbon, called the agreement a “great day for Bosnia and Herzegovina.” And it should be recalled that it was the Muslims and the Croats, not the Serbs, who actually reneged. There is no evidence that the Serbs were bent on war at this point.’ (p. 111)
So, those are the theses of David Gibbs, which Jovic has now chosen to praise on two occasions. For Jovic to praise so highly Gibbs’s extreme anti-Croatian, anti-Bosnian and Great Serb propaganda tract is scandalous. Yet it is scarcely surprising, since in his own book about the break-up of Yugoslavia (Jugoslavija – država koja je odumrla: Uspon, kriza i pad Kardeljeve Jugoslavije (1974-1990), Prometej, Zagreb, 2003), Jovic already revealed that his sympathies in the 1990s were with Slobodan Milosevic and the JNA. Jovic praised Milosevic as a fighter for Yugoslav statehood and unity and defender of Tito’s legacy, regretted the failure of the JNA to crush Croatian rearmament in 1991, and absolved both Milosevic and the JNA as instigators of the war and perpetrators of the mass killing:
1) Comparing Slobodan Milosevic and Vaclav Havel:
Jovic, p. 56: ‘The direction of the protests against the regime, for example in Czechoslovakia and in Serbia, was totally different, so Havel and Milošević became antipodes in everything. While one led a liberal-democratic revolution against the state, the other led an anti-bureaucratic revolution against an anti-state ideology and anarchy, for the establishment of a state. ‘
2) Lamenting the JNA’s inability to halt Croatia’s rearmament
Jovic, p. 64: ‘The British reaction to separatism in Northern Ireland is a typical example of a liberal (minimal) state, which did not refrain from introducing a state of war and employing tanks in order to halt a civil war before it had begun. In contrast to this, in the state that was withering away, Socialist Yugoslavia, the Yugoslav People’s Army turned itself into a filmmaker recording the illegal import of weapons at the border (with Hungary) whose duty it was to protect from that sort of illegal activity.’
3) On Milosevic as a ‘Yugoslav nationalist’
Jovic, p. 65n: ‘In his first phase, Milosevic was probably a Yugoslav nationalist, but he never became a Serb nationalist, as many call him today. Never, indeed, did he want to form a Serb national state. His attachment to Yugoslavia, even to the point when Yugoslavia had become just a name and nothing more, was the main reason why he in the end lost popularity and the elections (2000).’
4) On the Chetniks as a ‘strong-pro-Yugoslav resistance movement’
Jovic, p. 141: ‘He who claims that Yugoslavia had to collapse in 1941 because of ethnic tension, should have to explain how it was possible that there arose, immediately following the occupation, two strong pro-Yugoslav resistance movements (Mihailovic’s and Tito’s).’
5) On Milosevic’s loyalty to Tito’s legacy
Jovic, p. 156: ‘In destroying the fourth Yugoslavia, Milosevic rejected Kardelj but not Tito.’
6) On Milosevic’s desire to bring about the ‘unity of Yugoslavia’
Jovic, p. 400: ‘His program now [in 1987], for the first time, seemed clear even to those at the lowest level of the social hierarchy, and he carried it out decisively: first the unity of the Serb Party, then unity of Serbia, then of the Yugoslav Party, then of Yugoslavia. That programme had four phases – Milosevic had now accomplished the first; at the third he would be halted, and at the fourth defeated.’
7) On Milosevic’s desire to restrain Serb nationalism
Jovic, p. 471: ‘Treating Milosevic and Kucan with a bit of benevolence, one could say that at least part of their motive could be explained by an attempt to retain power in order to prevent the “real nationalists” (those gathered around the New Review or people such as Vuk Draskovic was at the time) from coming to power in Slovenia and Serbia. As David Owen later said of Milosevic, they had to “ride the tiger of nationalism if they did not want the tiger to swallow them” (1995: 129). They appeared powerful, omnipotent, but in reality they were both afraid that the exit of the League of Communists from the political scene could bring about only worse nationalism. They accepted nationalism in order to prevent it.’
8) On the JNA’s ‘good intention’ to prevent ethnic conflict in Croatia
Jovic, p. 485: ‘When the Croatian government attempted to prevent the [Serb rebel] takeover, the Yugoslav People’s Army imposed itself between it and the Serbs, perhaps with the good intention of preventing direct ethnic conflict in Croatia.’
9) On Milosevic as ‘genuinely surprised’ by break up of Yugoslavia and war
Jovic, pp. 491-492: ‘The sources that were at the disposal of the author of this book do not give sufficient reason to support the conclusion that the members of the Yugoslav political elite in this period (including, thus, Slobodan Milosevic and Milan Kucan as well) intended to destroy Yugoslavia. Many of them, like most Yugoslavs, most analysts at home and abroad and the international political community as a whole, were genuinely surprised by the break-up, and still more by the war that broke out after that.’
10) On war in Yugoslavia as expression of state weakness and ‘private violence’
Jovic, pp. 492-493: ‘‘The violence that, in the ruins of Yugoslavia, in a stateless terrain, erupted in the ‘90s of last century had, indeed, the same cause as the collapse itself: it was the expression of a weak, ineffective state that was not in a position to suppress the private armies, private revenge, private “laws” and private violence. The wars that were waged in those ruins were to a large extent private revenge in which neighbours repaid some imaginary quid pro quo to their neighbours.’
Jovic is right about one thing: the criticisms being made against him are political, not academic in motivation. If Jovic were simply a scholar expressing his private opinion, it would not matter that his work rehabilitates Milosevic and the JNA. It would not matter that he praises a propaganda pamphlet with no academic value, that supports Croatia’s territorial dismemberment and denies the Srebrenica genocide. Jovic has the right, as a scholar, to express his views freely. But he is the Croatian president’s chief analyst and special coordinator. It is dangerous to both Croatia and Bosnia-Hercegovina for someone holding such views, and with such poor analytical judgement and grasp of reality, to occupy the position that he does.
Marko Attila Hoare
My review article ‘Slobodan Milosevic’s place in Serbian History’ was published in a special edition of European History Quarterly guest edited by Dejan Djokic, vol. 36, no. 3, July 2006, pp. 445-462. What follows is an extract from it.
The widespread portrayal of Milošević as promoter of Great Serb nationalism and instigator of the break-up of Yugoslavia has not gone unchallenged. In Yugoslavia – the state that withered away: The rise, crisis and fall of Kardelj’s Yugoslavia (1974-1990) [Jugoslavija – država koja je odumrla: Uspon, kriza i pad Kardeljeve Jugoslavije (1974-1990)], Dejan Jović attempts perhaps the most ambitious revisionist treatment of Milošević, arguing: “In his first phase, Milošević was probably a Yugoslav nationalist, but he never became a Serb nationalist, as many label him today” (p. 65n, emphasis in original). For Jović, the real villain who destroyed Yugoslavia was Edvard Kardelj (1910-1974), Tito’s right-hand man who successfully pushed for an increasingly decentralised Yugoslav state from the late 1960s on; Jović argues that from1966 and particularly from 1974, Yugoslavia was ‘the fourth (Kardelj’s) Yugoslavia’ (p. 16), which ‘withered away’ as the result of the deliberate intention of its creator, inspired by the socialist principle that the state should do just that. By contrast, Milošević sought to restore Yugoslavia to its former strength and unity, and therefore comes across as an initially relatively benign figure in Jović’s account, only turning to Serb nationalism reluctantly, under the pressure of events outside his control.
Taken simply as a study of the Serbian Communist elite in Titoist Yugoslavia, Jović’s study is illuminating and provides valuable new insights into key events up until 1990. But in attempting to reinterpret the history of the break-up of Yugoslavia, Jović ties himself in knots. By virtually ignoring the Yugoslav republics other than Serbia, except for Slovenia in the 1980s, and by abruptly ending his story in mid-1990 – a full year before the final collapse of Yugoslavia – Jović has adopted too narrow a focus for such an ambitious undertaking. Since, as Jović himself notes (pp. 145-146), Kardelj promoted the withering away of the republican as well as the Federal states, and since it was only the Federal state that eventually disappeared, it is difficult to see how this can be blamed on Kardelj’s constitutional model. Yet elsewhere, Kardelj is portrayed as promoting the statehood of the republics (p. 179), in which case Kardelj’s constitutional model cannot be ascribed to a socialist belief in the ‘withering away’ of the state.
Since Jović describes Kardelj as supporting the Serbian Communist aim of reducing the autonomy of Kosovo and Vojvodina, and Tito as preventing this (pp. 177, 261-262), it is difficult to accept Jović’s claim that the ‘fourth’ Yugoslavia was indeed Kardelj’s and not Tito’s; or that “in destroying the fourth Yugoslavia, Milošević rejected Kardelj but not Tito” (p. 156). Jović appears to want it both ways, arguing that Yugoslavia had ‘withered away’ by 1990, but also that Yugoslavia was destroyed by politicians in the late 1980s. But Milošević could not be guilty of “destroying the fourth Yugoslavia” if it had, according to Jović, already destroyed itself. Nor can Jović fairly accuse Tudjman’s Croatia of “separatism” (p. 63), since he also argues that, by the time Tudjman was elected in the spring of 1990, there was no Yugoslavia left to practise separatism from.
In portraying Serb and other nationalisms as the consequence, not the cause, of Yugoslavia’s break-up (pp. 57-58), Jović gets into further difficulties. For if Milošević was indeed a “Yugoslav nationalist”, and if, as Jović argues, the Yugoslav population was more supportive of the Yugoslav idea than were the Yugoslav elites (p. 42), it is unclear what the impetus was that shifted Milošević toward Serbian nationalism, as Jović describes (pp. 471-473). Jović’s theoretical model appears to be in constant rebellion against his facts: he quotes Borisav Jović’s diary to show that Milošević planned the expulsion of Slovenia and Croatia from Yugoslavia (pp. 482-483), saying that this decision “formally destroyed Yugoslavia” (pp. 482-483), yet subsequently concludes that “[t]he sources which were at the disposal of the author of this book do not give sufficient reason to support the conclusion that the members of the Yugoslav political elite in this period (including, thus, Slobodan Milošević and Milan Kučan), intended to destroy Yugoslavia” (p. 491). He goes on to say that many of these figures were “genuinely surprised by the collapse, and still more by the war that occurred after it” – he does not except Milošević (pp. 491-492).
This comes dangerously close to whitewashing the warmongers. Jović describes the JNA’s intervention in Croatia as motivated by the goal, “perhaps in good faith, of preventing direct ethnic conflict in Croatia” (p. 485), and the war as “the expression of a weak, ineffective state that was not in a condition to restrain the private armies, private revenge, private ‘laws’ and private force” (pp. 492-493). Yet it was not “private armies” but the JNA, under the direct and formal leadership of Milošević’s Serbia (and Montenegro), that destroyed the Croatian city of Vukovar and assaulted Bosnia in 1991-92. Jović’s thesis shows that attempting to shift the blame for the destruction of Yugoslavia away from Milošević and Serb nationalism creates far more theoretical problems than it solves.
Appendix: Key passages from Jovic’s book
Comparing Slobodan Milosevic and Vaclav Havel:
p. 56: ‘The direction of the protests against the regime, for example in Czechoslovakia and in Serbia, was totally different, so Havel and Milošević became antipodes in everything. While one led a liberal-democratic revolution against the state, the other led an anti-bureaucratic revolution against an anti-state ideology and anarchy, for the establishment of a state. ‘
Lamenting the JNA’s inability to halt Croatia’s rearmament:
p. 64: ‘The British reaction to separatism in Northern Ireland is a typical example of a liberal (minimal) state, which did not refrain from introducing a state of war and employing tanks in order to halt a civil war before it had begun. In contrast to this, in the state that was withering away, Socialist Yugoslavia, the Yugoslav People’s Army turned itself into a filmmaker recording the illegal import of weapons at the border (with Hungary) whose duty it was to protect from that sort of illegal activity.’
On Milosevic as a ‘Yugoslav nationalist’:
p. 65n: ‘In his first phase, Milosevic was probably a Yugoslav nationalist, but he never became a Serb nationalist, as many call him today. Never, indeed, did he want to form a Serb national state. His attachment to Yugoslavia, even to the point when Yugoslavia had become just a name and nothing more, was the main reason why he in the end lost popularity and the elections (2000).’
On the Chetniks as a ‘strong-pro-Yugoslav resistance movement’:
p. 141: ‘He who claims that Yugoslavia had to collapse in 1941 because of ethnic tension, should have to explain how it was possible that there arose, immediately following the occupation, two strong pro-Yugoslav resistance movements (Mihailovic’s and Tito’s).’
On Milosevic’s loyalty to Tito’s legacy
p. 156: ‘In destroying the fourth Yugoslavia, Milosevic rejected Kardelj but not Tito.’
On Milosevic’s desire to bring about the ‘unity of Yugoslavia’:
p. 400: ‘His program now [in 1987], for the first time, seemed clear even to those at the lowest level of the social hierarchy, and he carried it out decisively: first the unity of the Serb Party, then unity of Serbia, then of the Yugoslav Party, then of Yugoslavia. That programme had four phases – Milosevic had now accomplished the first; at the third he would be halted, and at the fourth defeated.’
On Milosevic’s desire to restrain Serb nationalism:
p. 471: ‘Treating Milosevic and Kucan with a bit of benevolence, one could say that at least part of their motive could be explained by an attempt to retain power in order to prevent the “real nationalists” (those gathered around the New Review or people such as Vuk Draskovic was at the time) from coming to power in Slovenia and Serbia. As David Owen later said of Milosevic, they had to “ride the tiger of nationalism if they did not want the tiger to swallow them” (1995: 129). They appeared powerful, omnipotent, but in reality they were both afraid that the exit of the League of Communists from the political scene could bring about only worse nationalism. They accepted nationalism in order to prevent it.’
On the JNA’s ‘good intention’ to prevent ethnic conflict in Croatia:
p. 485: ‘When the Croatian government attempted to prevent the [Serb rebel] takeover, the Yugoslav People’s Army imposed itself between it and the Serbs, perhaps with the good intention of preventing direct ethnic conflict in Croatia.’
On Milosevic as ‘genuinely surprised’ by break up of Yugoslavia and war:
pp. 491-492: ‘The sources that were at the disposal of the author of this book do not give sufficient reason to support the conclusion that the members of the Yugoslav political elite in this period (including, thus, Slobodan Milosevic and Milan Kucan as well) intended to destroy Yugoslavia. Many of them, like most Yugoslavs, most analysts at home and abroad and the international political community as a whole, were genuinely surprised by the break-up, and still more by the war that broke out after that.’
On the war in Yugoslavia as the expression of a ‘weak, ineffective state’ and ‘private violence’:
pp. 492-493: ‘‘The violence that, in the ruins of Yugoslavia, in a stateless terrain, erupted in the ‘90s of last century had, indeed, the same cause as the collapse itself: it was the expression of a weak, ineffective state that was not in a position to suppress the private armies, private revenge, private “laws” and private violence. The wars that were waged in those ruins were to a large extent private revenge in which neighbours repaid some imaginary quid pro quo to their neighbours.’
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.
I have long looked at Bulgaria as a successful example for Serbia to follow. The two countries have much in common; speaking closely related Slavic languages and sharing the Christian Orthodox religion, both nations were shaped by the experience of centuries of Ottoman rule. The Ottoman Empire wholly destroyed the medieval Serbian and Bulgarian states, so their modern successors had to be built from scratch as they were carved out of the decaying Empire during the nineteenth and twentieth centuries. The uncertainties, among the nationalists of both people, as to where their true national borders lay, were part of the reason for the confused strategies for expansion and consequent military catastrophes experienced by both.
Until the 1990s, one could have been forgiven for thinking that Serbia had been luckier in the outcome of its wars. Serbia and Bulgaria were on opposite sides in the Second Balkan War of 1913 and in the First and Second World Wars. Though it would be a gross oversimplification to say that Serbia had been victorious and Bulgaria defeated on the battlefield in these three wars, yet Serbia certainly ended up on the winning and Bulgaria on the losing side in all three of them. Bulgaria then suffered the misery of a Communist regime imposed by the Soviet Union – one of the most brutal in the Soviet bloc – while Serbia enjoyed the comparative liberalism and prosperity of Tito’s independent model of socialism, so that particularly from the 1960s, Serbia appeared to move far ahead of its eastern neighbour. I recall being told in Belgrade how, for visitors from Bulgaria and Romania, Serbia was the West.
For all that, Bulgaria achieved a victory in defeat. Definitely confined within its actual state borders after its final defeat in World War II, further expansionism was no longer an option. Serbia, on the other hand – its political and intellectual classes suffering from the illusion that its borders with its Yugoslav neighbours, by virtue of supposedly being ‘administrative’, were not set in stone – embarked upon a final, catastrophic expansionist adventure in the 1990s. Consequently, the repressive and impoverished Bulgaria of the 1980s joined NATO in 2004 and the EU in 2007, while the relatively prosperous and liberal Serbia of the 1980s became the new Balkan loser and outcast in the twenty-first century. Bulgaria has generally pursued a responsible foreign policy since the end of the Cold War, recognising the independence of Macedonia under its constitutional name of ‘Republic of Macedonia’ in 1992, recognising the independence of Kosovo in 2008, and avoiding anti-Western nationalist outbursts of the kind characteristic of Serbia and Greece. Bulgaria has contributed troops to the allied forces in both Iraq and Afghanistan.
However, Bulgaria’s record was not perfect; a trace of its former irredentist ambitions remained in its refusal to recognise the existence of a Macedonian nation or language. This has involved also the refusal to recognise the existence of the ethnic-Macedonian minority in Bulgaria and undemocratic restrictions on the minority’s freedom of expression: the ethnic-Macedonian party ‘OMO “Ilinden” – Pirin’ was ruled unconstitutional by the Bulgarian Constitutional Court in 2000. This, in turn, resulted in the censure of Bulgaria by the European Court of Human Rights, which ruled that the ban was in violation of the European Convention on Human Rights.
This caveat aside, the Bulgarian lesson for Serbia appeared clear: keep the country tightly confined within its own legal international borders and shut off all outlets for irredentist activity, and it will evolve into a responsible member of the international community. Unfortunately, membership of the EU, far from acting as a framework in which Bulgaria would continue to evolve harmonious relations with the rest of the Balkan region, has breathed new life into the weakened body of Great Bulgarian chauvinism. In December 2009, despite Bulgaria’s continued defiance of the European Court of Human Right’s refusal to permit the registration of OMO ‘Ilinden’-Pirin, the EU’s Committee of Ministers decided to end the monitoring of the execution of the 2005 ECHR judgement regarding the matter.
That month, Bulgarian prime minister Boyko Borisov of the Citizens for European Development in Bulgaria (GERB) held a joint news conference with his ally Volen Siderov, leader of the fascist party National Union of Attack (‘Ataka’) to announce a referendum on the abolition of Turkish-language news broadcasts on Bulgaria’s BNT1 public television channel, despite the fact that nearly 10% of Bulgaria’s population of nearly eight million is ethnic-Turkish and has a long experience of persecution in Bulgaria, particularly in the Communist era under Todor Zhivkov. Borisov was, however, forced to abandon the plan for a referendum in the face of international and domestic opposition, including from the Bulgarian president and parliamentary opposition.
Image: Bulgarian Prime Minister Boyko Borisov
Now, Great Bulgarian chauvinism has reappeared on the international stage: Bulgaria has abused its EU membership to veto, at a meeting on 11 December of the General Affairs Council of the EU, the setting of a date for the opening of talks with Macedonia on its EU accession – despite the fact that the European Commission and Enlargement Commissioner Stefan Fule recommended that, since Macedonia has met all the necessary criteria, it should be permitted to start accession negotiations. This was the fourth time that the start of accession negotiations with Macedonia has been vetoed – by Greece on each previous occasion.
Whereas in 2009, the then Bulgarian President Georgi Parvanov helped to block Borisov’s anti-Turkish referendum, on this occasion, current Bulgarian president Rosen Plevneliev – GERB’s candidate for the post – has joined Borisov to lead the nationalist assault. The veto was apparently coordinated with Greece – the country that has consistently obstructed Macedonia’s Euro-Atlantic integration and with which, back in 1912-1913, Bulgaria joined to dismember the historical region of Macedonia. It is as if Germany and Austria had banded together for nationalistic reasons to block Poland’s or the Czech Republic’s EU accession. Greece (population nearly 11 million) and Bulgaria (population over 7 million) are now openly collaborating against Macedonia (population 2 million) in a manner reminiscent of the collaboration of Serbia’s Slobodan Milosevic and Croatia’s Franjo Tudjman against Bosnia-Hercegovina during the 1990s.
Bulgaria’s new hostility to Macedonia focuses on its attempt to dictate to its smaller neighbour an official version of history that accords with the Bulgarian-nationalist viewpoint – including the way history is taught in schools and the way national anniversaries are celebrated. Thus, Plevneliev had proposed in October that Macedonia and Bulgaria celebrate certain historical anniversaries jointly, in order to stress the supposedly Bulgarian character of Macedonia and the Macedonians. Macedonian President Gjorge Ivanov rejected this, responding that Macedonia would only jointly celebrate anniversaries concerning the two states’ contemporary friendship: Europe Day; the date on which Bulgaria recognised Macedonia’s independence; and the date on which the two states established diplomatic relations.
The Bulgarian government is also attempting to curb freedom of expression in Macedonia. It has cited, as a reason for its veto, the production of a film in Macedonia, The Third Half, that highlights Bulgaria’s role in deporting the Macedonian Jews to their deaths in the Holocaust, at a time when the land that is today the Republic of Macedonia was under Bulgarian occupation. According to the website of Yad Vashem:
In February 1943 the Bulgarians signed a pact with Germany, in which they agreed to deport to the east 20,000 Jews from their territories. Since nowhere near 20,000 Jews lived in the newly annexed territories of Macedonia and Thrace combined, the Bulgarian authorities intended to include Jews from Bulgaria itself in the deportations. In March 1943 almost all of the Jews in Bulgarian-occupied Thrace (some 4,000) were arrested and surrendered to the Germans, who then deported them to their deaths at Treblinka. Another group of about 1,200 Thrace Jews was moved to Salonika and then sent to Auschwitz. At the same time, all of the Jews of Macedonia were rounded up by the Bulgarian authorities; all but 165 were deported to Treblinka. Some 200 Macedonian Jews survived the war, along with some 250 Jews from Thrace, who either joined the Partisans or hid with their Christian neighbors. Other Thrace Jews managed to escape to Italian-held territories during 1941–1942.
In his attack on Macedonia over the film The Third Half, Borisov whitewashed the Nazi-allied Bulgarian regime’s role in deporting the Macedonian Jews: ‘If we could save all Jews in the world, we would have, but we couldn’t and saved the 50,000. Other countries couldn’t do much and didn’t do much, maybe one two countries that saved 300-400 people. And Bulgaria deserves to see movies made against Bulgaria? Why? Because of its friendliness, its love, its openness … this is the same as accusing someone that there are thirsty people in Africa.’
Thus, Macedonia’s EU accession has been further obstructed because a film was made in Macedonia highlighting the role of the Bulgarian occupiers in deporting Macedonia’s Jews to their deaths in the Holocaust, and the Bulgarian government wishes to suppress the memory of Bulgaria’s participation in the Holocaust. The EU has enabled Bulgaria to do this, just as it has enabled the resuscitation of Great Bulgarian irredentism vis-a-vis Macedonia. As the film’s director Darko Mitrevski said, ‘To call “Third Half” anti-Bulgarian is analogous to calling “Schindlerˈs List” anti-German. My movie is anti-fascist. The fact there are EU parliamentarians who classify anti-fascism as “hate speech” is a European Parliament problem as well as a problem for the country they represent, not mine.’
The EU this year received the Nobel Peace Prize. It was already undeserved, but in light of the EU’s currently active role in undermining peace and stability in the Balkans, it is definitely time that this award be revoked.
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.
There is a scene in the film ‘Bean’, in which Rowan Atkinson’s Mr Bean, mistaken for an expert, is forced to give a speech about a painting in an art museum, about which he knows nothing. Trying to think of something to say, he points out that the painting is ‘quite big, which is excellent, because if it was really small, you know, microscopic, hardly anyone would be able to see it’. That scene sometimes comes to mind when reading Michael Dobbs, a Fellow at the United States Holocaust Memorial Museum (USHMM) who blogs for Foreign Policy magazine. For reasons that are beyond me, Dobbs has been tasked by these two bodies with investigating and writing about the Bosnian war, Srebrenica massacre and Ratko Mladic trial – despite apparently having no prior knowledge or expertise about these topics, or about the topic of genocide.
Dobbs is a well intentioned individual who tries hard to be balanced and objective. He writes frankly about the horrors of the Bosnian war. He consequently comes under regular vicious attack from the creepy-crawlies of the Srebrenica genocide-denial lobby and has been forthright in confronting them. He responds to criticism in a fair and measured way. Yet it’s as if the USHMM and Foreign Policy had simply walked into a random bar, pulled out a random Joe Bloggs, and told him to write about Bosnia and genocide. In October 2011, he wrote ‘I must admit that I find it difficult to use [in relation to Srebrenica] the word genocide, which conjures up images of the Holocaust… In the popular culture, at least, when we talk about “geno-cide,” we think about the killing of an entire race or ethnic group.’ That a Fellow of the USHMM should be guided by ‘popular culture’ when considering the meaning of genocide – instead of by expertise in the history and literature of the study of genocide – is incredible. It is, on the other hand, not in the least incredible, but wholly predictable and understandable, that his comment should have caused enormous offence among Bosniak people, prompting a letter of protest to the USHMM from the Congress of North American Bosniaks, Institute for the Research of Genocide Canada and Bosnian American Genocide Institute and Education Centre.
Now, Dobbs has put his foot in it again, with an article entitled ‘In Defense of the Serbs’, containing his pearls of wisdom regarding the international recognition of Bosnian and Croatian independence in 1991-1992:
‘Looking back at the start of the Yugoslav wars two decades later, I am struck by a contradiction in western policy to the former Yugoslavia. Europe, supported by the U.S., recognized the independence of the breakaway republics. In other words, the borders of the multi-ethnic state that resulted from the Versailles conference decisions of 1919 (see photograph above) were not inviolate. On the other hand, the international community (in the form of the Badinter commission set up by the European Union) also decreed that the borders of Croatia, Bosnia, and the other republics could not be changed simply because a minority wished to secede.
The practical effect of these decisions was that Croats and Muslims were given the right to secede from Yugoslavia, but Serbs did not have the right to secede from Croatia or Bosnia. The delicate ethnic balance sanctioned by the Great Powers after World War I and enforced by Marshal Tito (a Croat) in the four decades after World War II was upset.
For what it is worth, my own personal view is that the breakup of Yugoslavia was inevitable, just as the breakup of the Soviet Union was inevitable. On the other hand, the United States and Europe (the nations that created Yugoslavia in the first place) should have been much more vigorous about establishing and enforcing rules for the breakup that guaranteed minority rights.
To use a phrase attributed to the French statesman Talleyrand, leaving two million well-armed Serbs in other people’s republics was “worse than a crime.” It was a gross error of political judgment.’
Two decades since the start of the Bosnian war, and a Fellow of the USHMM and writer for Foreign Policy can do nothing better than trot out the same, tired old sophistry that was being peddled by the Serb nationalists back then. It’s as if all the scholarship on the subject of the break up of Yugoslavia and recognition of new states, written in the interval by Richard Caplan, Michael Libal, Josip Glaurdic and others, simply did not exist. Dobbs is making a point that has been extensively addressed and refuted by real experts on the subject over a period of twenty years.
It would take a lot of space to refute all the misconceptions in Dobbs’s small passage above, so let me pick just one. There was, of course, no ‘contradiction’ in the policy of the international community as regards the right to secede of Serbs and of non-Serbs in the former Yugoslavia in 1991-1992. Dobbs claims that ‘The practical effect of these decisions [by the international community] was that Croats and Muslims were given the right to secede from Yugoslavia, but Serbs did not have the right to secede from Croatia or Bosnia’. This is false: ‘Croats and Muslims’ were not given the right to secede from Yugoslavia. Yugoslavia was recognised as being ‘in the process of dissolution’, and the six constituent republics were recognised as the entities that inherited its sovereignty. Thus, it was the six republics – including Serbia – not the ‘Croats and Muslims’, whose right to independence was recognised. Serbia was not treated differently from Slovenia, Croatia or Bosnia in this respect, and was entirely free to seek and receive international recognition of its independence, just as they did.
The right of the Serbs of Croatia and Bosnia to secede from their respective republics was not recognised; neither was the right of the Croats of Bosnia. Nor of the Muslims/Bosniaks of Serbia’s Sanjak region. Nor of the Hungarians of Vojvodina, within Serbia. Nor of the Albanians of Macedonia and Montenegro. Nor, at the time, of the Albanians of Kosovo. In fact, the only group on the territory of the former Yugoslavia whose carving out of a wholly new entity has ever been recognised by the international community is the Bosnian Serbs. Thus, at Dayton, the ‘Republika Srpska’ was recognised, whereas the Bosnian Croats’ ‘Croat Republic of Herceg-Bosna’ has been dissolved, and the right of the Bosnian Croats to establish their own entity within Bosnia has been consistently denied.
It is difficult to believe that anyone could think about this for even a few minutes before realising that the ‘contradiction’ Dobbs posits is no contradiction at all. But I’m not suggesting he’s being insincere; merely that he hasn’t bothered to think seriously about this, let alone read anything much – if at all – on the subject. Hamdija Custovic, Vice-President of the Congress of North American Bosniaks, has quite rightly written another letter of protest to Foreign Policy about Dobbs’s article. What saddens me about this is not that Dobbs’s views are particularly outrageous – as I said, I believe he is a well intentioned individual trying hard to be balanced and objective. It is that respectable bodies like the USHMM and Foreign Policy consider it acceptable to provide a lot of space and opportunity for someone with no expertise on the former Yugoslavia or the Bosnian genocide to write about them, as if the subject wasn’t important enough to recruit a proper expert who actually has something informed to say.
The victims of the Bosnian genocide deserve better than this.
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.
- Basque Country
- Central Europe
- East Timor
- European Union
- Faroe Islands
- Former Soviet Union
- Former Yugoslavia
- Holocaust denial
- Marko Attila Hoare
- Middle East
- Political correctness
- Red-Brown Alliance
- South Ossetia
- The Left
- World War II