‘The largest single ethnic-cleansing operation of the Yugoslav wars’ – such was the soundbite that was linked to Operation Storm (Operacija Oluja), from soon after the successful Croatian military operation was waged back in August 1995. That atrocities were carried out by Croatian soldiers and civilians during and after the operation has never credibly been disputed. But the attempt to paint Oluja as an ethnic-cleansing operation – indeed as an ethnic-cleansing operation larger in scale than the Serbian assaults on Croatia and Bosnia in 1991-1992 – has always been rightly contested. Yesterday’s acquittal by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) of Croatian commanders Ante Gotovina and Mladen Markac for crimes against Serb civilians between July and September 1995, above all during ‘Operation Storm’, leaves the victims without justice, but represents a defeat for long-running attempts in the West to redistribute guilt from the aggressors to the victims.
Had the ICTY’s prosecution simply sought to indict, prosecute and punish Croats guilty of atrocities against Serbs in the period July-September 1995, it would no doubt have been successful, and the victims would have received at least some justice. Unfortunately, the prosecution attempted something more: to write the historical record of the wars of Yugoslav succession, in a manner that reflected the predominant perception of Western policy-makers. This perception was that, whereas the Serb side was responsible for the largest proportion of the crimes and killing, there was ultimately no fundamental difference in the guilt and actions of each of the sides during the war; it was merely a quantitative difference. In her published memoirs, Carla del Ponte, the Chief Prosecutor of the ICTY at the time when the original indictment against Gotovina was issued, explicitly equalised the blame of Serbia’s Slobodan Milosevic and Croatia’s Franjo Tudjman as the two individuals primarily responsible for the war (Carla del Ponte and Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst War Criminals and the Culture of Impunity, Other Press, New York, 2008, pp. 37, 87, 125). Del Ponte was less of an equaliser than some others, and did at least insist on indicting some Serb perpetrators for genocide, in the face of resistance from other senior prosecution staff. But she also became inveigled in diplomatic and propaganda games with Serbian government ministers, who put her under pressure to prove that the Tribunal was not ‘anti-Serb’.
Consequently, the ICTY prosecutors pursued a policy of indictments that would result in judgements that would support their politics. As I have written before, these indictments thus disproportionately targeted Croatians, Bosnians and Kosovo Albanians; the forces of the Serb side were responsible for well over 80% of the killing of civilians during the whole of the wars of Yugoslav succession, but their officials made up only 68% of indictees. Only six officials of Serbia or the rump Yugoslavia, as opposed to Bosnian Serbs, were ever indicted for war-crimes in Bosnia. The top Yugoslav military commanders and presidency members who led the assaults on Croatia and Bosnia in 1991-1992 (Borisav Jovic, Branko Kostic, Veljko Kadijevic, Blagoje Adzic, Zivota Panic and others) were never indicted. Conversely, the ICTY prosecutors indicted such high-ranking and prominent Croatian and Bosnian officials as former Croatian Army chief of staff Janko Bobetko, Bosnia’s two most important military commanders Sefer Halilovic and Rasim Delic, and Bosnian commander in Srebrenica Naser Oric. When Alija Izetbegovic died in 2003, del Ponte indicated that he might have faced charges had he lived. Unfortunately for the prosecutors, however, the courts stubbornly refused to uphold the picture the prosecution sought to paint: Halilovic and Oric were acquitted, and Delic was sentenced to a mere three years in prison, after the prosecution had sought fifteen. Bobetko was already near death when he was indicted, and died before being extradited.
The sorry story of the Operation Storm indictments and trials should be seen against this background. In Operation Storm, the Croatians were not trying to conquer anyone else’s territory; they were engaged in a defensive operation to free their own territory from occupation by troops controlled by a foreign state (Serbia); troops that were engaged at the time in armed aggression against a neighbouring state (Bosnia) and threatening to carry out a further genocidal act against its population, following the genocidal massacre at Srebrenica a month before. As I have written, Operation Storm was a successful case of genocide prevention that saved the Muslim population in the Bihac enclave of north-west Bosnia from experiencing the fate of the people of Srebrenica. Yet for those seeking to equalise, as much as possible, the guilt of the sides in the former-Yugoslav war, Operation Storm had to be presented as a gratuitous act of ethnic-cleansing by Croat perpetrators against Serb victims – equivalent to the Serb crimes of 1991-1992.
The indictees, Gotovina, Markac and Ivan Cermak were accused of being part of a ‘Joint Criminal Enterprise’ (JCE) whose ‘common purpose’ was ‘the permanent removal of the Serb population from the Krajina region by force, fear or threat of force, persecution, forced displacement, transfer and deportation, appropriation and destruction of property or other means.’ This accusation therefore paralleled the prosecution’s accusations of a JCE levelled against the top Serbian leadership, whose goals were ‘the permanent removal of a majority of the Croat and other non-Serb population from a large part of the territory of the Republic of Croatia’ and ‘the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina’. But Operation Storm had not involved the acts previously associated with ethnic cleansing in the former Yugoslavia: the rounding up of civilians; their being made to sign away their property to the authorities; their imprisonment, torture and killing in concentration camps; their being bussed out of the area. Instead, at the time of Operation Storm, the Serb authorities themselves organised and ordered the evacuation of the Serb civilians in the face of the Croatian offensive; whatever their intentions, the Croatians never had the chance to organise their removal.
To attribute the exodus of Serb civilians to Croatian actions therefore required the prosecution to develop a new model of how ethnic cleansing occurs. The ICTY prosecutors therefore argued that the Croatians aimed and succeeded in bringing about the removal of the Serb population from the so-called Krajina by artillery bombardment. This was already a dubious proposition – towns in Bosnia had been shelled for years by Serb and Croat forces without their entire population fleeing overnight. The prosecution nevertheless argued – and the original ICTY Trial Chamber accepted – that the exodus of Serb civilians was caused by the bombardment, not by the orders given by the Krajina Serb authorities to evacuate. However, attributing the cause of the exodus to the bombardment was not enough to establish the existence of the JCE, in the absence of evidence that this had been the intent behind the bombardment. Since only the most ambiguous support could be found for the thesis in the statements of the Croatian leadership – above all, the minutes of the Brioni meeting of 31 July 1995 – the intent had to be deduced from the character of the Croatian artillery fire, and whether it appeared accurately to be directed at civilian targets. So the prosecution argued that the existence of a JCE could be deduced from the fact that the Croatian artillery had targeted civilian areas in the so-called Krajina, and that this bombardment succeeded in bringing about the exodus of the Serb population. But since the Croatian forces were engaged in a lawful military operation against enemy armed forces in control of those same civilian centres, the prosecution had to show that Croatian artillery fire was not simply a part of those operations. The existence of the JCE therefore stood or fell on an analysis of the accuracy of Croatian artillery fire. At The Hague on Friday, it fell like the house of cards it essentially was. Most of the judgement of the Appeals Chamber consists, somewhat surreally, of a lengthy analysis of Croatian artillery fire.
ICTY prosecutors have long demonstrated a confused understanding of the wars in the former Yugoslavia. Their indictments have tended to target ‘famous names’ and acts people in the West had heard of; hence the notorious Zeljko Raznatovic Arkan and Vojislav Seselj were indicted, instead of Serbian leaders less well known in the West, but whose responsibility for crimes was much greater. The accusation that the Croatian bombardment of Knin, the capital of the ‘Republic of Serb Krajina’, was a ‘war crime’ originated with the arch-appeaser Carl Bildt, who was the EU’s special envoy for the former Yugoslavia at the time of Operation Storm. It was made in the context of an EU strategy that opposed any military action against Serb forces – either on the part of the international community, or on the part of the Croatians and Bosnians – and that sought instead to achieve peace in the former Yugoslavia through collaboration with the regimes in Belgrade and Pale. Bildt’s loud condemnation, at the time, of the Croatian bombardment of Knin, and his suggestion that it was a war-crime for which Tudjman himself should be held responsible, may have stuck in the minds of ICTY investigators as they considered how to pick Croatians to indict. Yet Knin had suffered minimal damage and civilian casualties as a result of the bombardment, made in the course of a legitimate military operation to recapture the town. This was in stark contrast to Vukovar, which was wholly destroyed by Serbian forces in 1991, and for whose destruction nobody was indicted by the ICTY (though some were indicted for atrocities carried out against the patients at Vukovar Hospital after the town fell).
Seventeen years later, Bildt’s red herring regarding the bombardment of Knin has met its ignominious demise. Since the Appeals Chamber ruled that the existence of a JCE could not be deduced from the pattern of Croatian artillery fire, the central premise of the prosecution’s case was thrown out. And since Gotovina and Markac had been selected for indictment on the basis of this premise, the rest of the case against them collapsed with it: the Appeals Chamber ruled that they had either attempted to prevent crimes against Serb civilians and property, or had not had effective control of those Croatian forces that had committed them. Had the prosecutors not focused on a supposed JCE, but instead sought to indict Croatian perpetrators who could actually be definitely linked to actual killings, they would no doubt have succeeded.
The Appeals Chamber’s verdict has not exonerated the Croatian side of crimes carried out during and after Operation Storm; on the contrary, it explicitly refers to crimes against Serb civilians in its acquittal of Gotovina and Markac. These victims have not now received justice, and critics are right to point out that the ICTY has failed them. The failure should be attributed, however, to the prosecution’s flawed indictment, not to the decision of the Appeals Chamber.
Not all these critics have been ready to point out the converse: that long before this verdict, the ICTY had already failed the victims of Serbia’s aggression and ethnic cleansing against Croatia. Almost no official from Serbia, Montenegro or the Yugoslav People’s Army (JNA) has been prosecuted and seriously punished for crimes against Croatian citizens in 1991-1992. Of the three relatively minor JNA officers tried over the Vukovar Hospital massacre, one was acquitted (Miroslav Radic) and one freed after serving six and a half years in prison (Veselin Sljivancanin), while only the third received a lengthy punishment of 20 years (Mile Mrksic). Of those JNA officers or admirals indicted over the shelling of Dubrovnik, Miodrag Jokic received a seven-year sentence and was granted early release after three years; Pavle Strugar received seven and a half years and was released on compassionate grounds less than a year later; the indictment against Milan Zec was withdrawn; and Vladimir Kovacevic had his trial transferred to the Serbian courts. Yugoslav Army Chief of Staff Momcilo Perisic was sentenced to 27 years – not for his actions in Croatia in 1991-92, but in part for the rocket attack by the Krajina Serbs on Zagreb in May 1995. Otherwise, the ICTY’s punishment to date has spared Serbia and fallen on Croatia’s own ethnic-Serb citizens who collaborated in the aggression (Milan Babic and Milan Martic). No official of Serbia or the JNA has so far been convicted over the Serbian conquest and ethnic cleansing of the so-called Krajina in the first place – the crime that made Operation Storm necessary.
With the quashing of the Operation Storm sentences, the ICTY can be accurately said to have failed seriously to punish the officers on either side in the war between Serbia (including Montenegro and the JNA) and Croatia of 1990-1995. Whether, having failed to punish the Serbian officers who occupied Croatian territory, justice would have been better served had the ICTY at least succeeded in punishing some of the Croatian officers who defeated the occupation, is a moot point.
The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia has acquitted Radovan Karadzic, wartime president of the Bosnian Serb nationalist rebels’ ‘Republika Srpska’, of one count of genocide, relating to crimes committed in municipalities across Bosnia in 1992. According to its press release:
The Chamber’s oral ruling was delivered pursuant to Rule 98 bis of the Tribunal’s Rules of Procedure and Evidence which provides that at the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction.
The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.
This represents a 180-degree U-turn from the Trial Chamber’s decision eight years ago over Slobodan Milosevic. On 16 June 2004, in ‘Prosecutor v. Slobodan Milosevic: Decision on Motion for Judgement of Acquittal’, the Trial Chamber refused to acquit Milosevic on the same grounds, and ruled:
246. On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence, including the evidence set out in paragraphs 238 -245. The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide.
247. Having examined the evidence, the Trial Chamber finds no evidence of genocide in Kotor Varos.
323. With respect to the Amici Curiae submissions concerning genocide, the Trial Chamber, except for its holding in paragraph 324, DISMISSES the Motion and holds that there is sufficient evidence that
(1) there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group, and that its participants committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi;
(2) the Accused [Slobodan Milosevic] was a participant in that joint criminal enterprise, Judge Kwon dissenting ;
(3) the Accused was a participant in a joint criminal enterprise, which included members of the Bosnian Serb leadership, to commit other crimes than genocide and it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise, and it was committed;
(4) the Accused aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise, and that he gave its participants substantial assistance, being aware that its aim and intention was the destruction of a part of the Bosnian Muslims as group;
(5) the Accused was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group, and he failed to take the necessary measures to prevent the commission of genocide, or punish the perpetrators thereof.
324. The Trial Chamber finds no evidence that genocide was committed in Kotor Varos.
The contradiction between the Trial Chamber’s rulings over Milosevic in 2004 and Karadzic in 2012 indicates that it is not operating on the basis of consistent legal principles, and suggests a change of policy. A full analysis of the reasons behind this shift will have to await the Tribunal’s publication of the text of its decision.
I have been arguing since 2005 that the ICTY has been retreating in the face of international and Serbian resistance to its pursuit of justice. The list of failures, retreats, betrayals and unethical compromises has only grown over the years: the failure even to indict most of the principal members of the Joint Criminal Enterprise from Serbia and Montenegro – Veljko Kadijevic, Blagoje Adzic, Momir Bulatovic, Borisav Jovic, Branko Kostic and others; the failure to indict anyone at all for the destruction of the Croatian town of Vukovar; the indictment of only six officials in total from Serbia and Montenegro for war-crimes in Bosnia, and the conviction to date of only one of them; the sentencing of Republika Srpska vice-president Biljana Plavsic to only eleven years in prison, without making her testify, and her release after serving only seven years, despite her withdrawal of her acknowledgement of guilt; the censoring of the minutes of the Supreme Defence Council, preventing their use by Bosnia in its case against Serbia at the International Court of Justice; the prosecution of the ICTY’s own former chief prosecutor’s spokeswoman, Florence Hartmann, for having the temerity to reveal its dubious underhand dealings.
The ICTY’s U-turn over genocide in Bosnia is therefore par for the course. The people of the former Yugoslavia have not received justice from this tribunal.
The start of Ratko Mladic’s trial today means that the most important Bosnian Serb war-criminal, alongside Radovan Karadzic, is now facing justice. This trial will be crucially important for two reasons.
Firstly, its proceedings may shed some light on the role of Serbia and its military in the Srebrenica massacre of July 1995. At the time of the massacre, Serbia was in a federal union with Montenegro, and the joint state went by the name of the ‘Federal Republic of Yugoslavia’ (Savezna Republika Jugoslavija – SRJ). Its army, the ‘Army of Yugoslavia’, provided logistical support for the Bosnian Serb army – the ‘Army of the Serb Republic’ – and its Croatian Serb counterpart, though these were formally independent of it. The minutes of the SRJ’s Supreme Defence Council (which comprised the presidents of ‘Yugoslavia’, Serbia and Montenegro) were recently used by the prosecution of the International Criminal Tribunal for the former Yugoslavia (ICTY) in its case against former Yugoslav army Chief of Staff Momcilo Perisic. They reveal that Perisic regularly appealed to the Supreme Defence Council to provide such logistical support to the Bosnian Serb military, and that these appeals continued up until the eve of the Srebrenica massacre. Hopefully, the trial of Mladic, alongside that of Perisic, will provide more information on the role of the Army of Yugoslavia during the Srebrenica massacre. Indeed, it is likely that Mladic’s ability to provide such information was one of the reasons that Serbia’s military shielded him from arrest for so long. This is, however, an optimistic hope, as Mladic is more likely to continue denying responsibility for the massacre and to shield his former protectors than he is to spill the beans.
The second, and more important reason why Mladic’s trial is important, is that it provides the best chance yet to prove that genocide occurred not only at Srebrenica in 1995, but in other places and at other times in Bosnia-Hercegovina as well. The judicial record on this question so far is ambiguous. Germany’s courts have convicted Bosnian Serb perpetrators for offences relating to genocide carried out in parts of Bosnia outside of Srebrenica. One of these, the paramilitary leader Nikola Jorgic, was convicted of genocide in the north Bosnian region of Doboj in 1992, but appealed his conviction all the way to the European Court of Human Rights. The latter upheld Jorgic’s conviction for genocide, ruling that the German courts’ definition of genocide was consistent with the international legal definition. The German and ECHR rulings on Jorgic corroborate the view that genocide occurred across Bosnia from 1992, not merely at Srebrenica in 1995. On the other hand, the International Court of Justice, in the case for genocide brought by Bosnia against Serbia, acquitted Serbia of all genocide-related charges apart from failure to prevent and punish genocide. The ICJ specifically stated that genocide in Bosnia occurred only at Srebrenica in 1992, not in other places or at other times. Mladic, however, stands accused by the ICTY prosecution of systematic genocide across both western and eastern Bosnia from May 1992. If Mladic is found guilty on all charges, the judicial record for a genocide in Bosnia that occurred across the country from 1992 to 1995 will be greatly strengthened.
Be this as it may, the significance of this trial, and of Mladic personally, should not be overstated. News reports have suggested that Mladic was, along with Serbia’s wartime president Slobodan Milosevic and the wartime Bosnian Serb political leader Radovan Karadzic, one of the three principal perpetrators of Serb war-crimes in Bosnia. In fact, the singling out of these three individuals, to the exclusion of all others, betrays a false understanding of the nature of the Great Serbian killing campaign and of how it was organised. In reality, the Serb military aggression against Bosnia and programme of mass killing of its non-Serb inhabitants was planned and organised by the regime in Belgrade; not merely by Milosevic the despot, but by a much wider circle of top political, military and police officials. This war followed on seamlessly from the prior war waged by Serbia against Croatia in 1991-1992.
Mladic, on the other hand, was merely a run-of-the-mill officer in the Yugoslav People’s Army (JNA) until well after the war in Croatia had begun. He served as chief of the Department for Instruction of the JNA’s 3rd Military District based in Skopje in Macedonia until January 1991, then as assistant to the commander of the Pristina Corps in Kosovo until July 1991, when he was transferred – still as a mere colonel – to Knin, which was the self-proclaimed capital of the Serb rebels in Croatia. He was appointed chief of staff of the 9th (Knin) Corps at the end of July, and played a central role in ethnic cleansing operations against Croatia. In October, after Serbia together with Montenegro had carried out a coup d’etat to establish exclusive control of the federal organs of rump Yugoslavia, including of the JNA, Mladic was promoted to major-general. From late November or early December 1991, as they were preparing to wind down the war in Croatia and to shift it to Bosnia, the Milosevic regime and the leadership of the JNA set about organising a Bosnian Serb military within the framework of the JNA, something that involved concentrating all Bosnian Serb soldiers and officers in the JNA on Bosnian territory. On 30 December, the rump Yugoslav presidency (i.e. the representatives of Serbia and Montenegro) established a new military district – the ‘2nd Military District’ – based in Sarajevo, that had jurisdiction over Mladic’s Knin Corps. At the same time, Mladic was promoted to commander of the Knin Corps.
Thus, when the JNA launched a full-scale war against Bosnia in March and April 1992, Mladic was not even based in Bosnia, but was still in the relatively junior position of commander of the Knin Corps, based in Serb-occupied Croatia. He nevertheless participated in the start of the aggression against Bosnia; his forces captured the town of Kupres in south-west Bosnia from its predominantly Bosnian Croat defenders on 8 April 1992 and helped to organise the future Bosnian Serb army in that region of the country, after which he returned to the Knin region for further operations against the Croatian Army.
On 27 April 1992, Milosevic’s regime proclaimed the new ‘Yugoslavia’ – i.e., the Federal Republic of Yugoslavia (SRJ), consisting only of Serbia and Montenegro. The Bosnian Serb rebel entity, subsequently known as the ‘Republika Srpska’, had already proclaimed independence a month before. By establishing the SRJ and the Bosnian Serb republic as formally separate states, the Milosevic regime aimed to pretend to the world that it was not involved in the war in Bosnia, and that this war was really just a ‘civil war’. This necessitated a formally independent Bosnian Serb army, separate from the Yugoslav army, and Mladic was handpicked by Belgrade to be its commander. On 30 April, Milosevic and other top officials of Serbia, Montenegro and the JNA met with the Bosnian Serb leaders under Radovan Karadzic to arrange the formation of a Bosnian Serb army, and it was agreed that Mladic – who had been promoted to lieutenant general only a few days before – would serve as its commander. In early May, JNA Chief of Staff and acting Yugoslav defence minister Blagoje Adzic summoned Mladic to Belgrade to inform him that he was to be promoted to both commander and chief of staff of the JNA’s 2nd Military District, based in the Bosnian capital of Sarajevo. At about the same time, the acting president of the Yugoslav presidency, Branko Kostic, ordered the previous JNA incumbent of the post to surrender his duties to Mladic, whose appointment as commander of the 2nd Military District was reported by Belgrade TV on 9 May.
Mladic subsequently recalled that ‘When I took up duty in the 2nd Military District I immediately assigned myself the task of assembling men and forming a command and General Staff, partly from the remnants of the 2nd Military District and partly from the men who had come with me from Knin and from other areas, who were born in Bosnia-Herzegovina. We immediately began the formation of a General Staff of the [Bosnian] Serb Army.’ On 12 May, the self-declared Bosnian Serb parliament voted to establish a Bosnian Serb army incorporating all JNA units on Bosnian territory, and to appoint Mladic as its commander. Yet the law was not promulgated by the presidency of the self-declared Bosnian Serb republic until 19 May. Until that time, Mladic was still formally subordinate, along with all Serb forces on Bosnian territory, to the Yugoslav military command and Yugoslav presidency in Belgrade. Only on 19 May did the the JNA formally split into two separate armies: the ‘Army of Yugoslavia’, made up of troops from Serbia and Montenegro, which formally withdrew from Bosnia on the same date; and the ‘Army of the Serb Republic of Bosnia-Hercegovina’, subsequently simply the ‘Army of the Serb Republic’, headed by Mladic and now formally independent.
In other words, although Mladic played a prominent and significant role in the Serb military assault on Bosnia that began full-scale in the spring of 1992, he was far from being its chief instigator or organiser. The latter was the political and military leadership of Serbia, Montenegro and the Yugoslav People’s Army, which handpicked and groomed Mladic for the role. Attributing excessive importance to Mladic as organiser of the war in Bosnia downplays the party that was actually responsible: the regime of Slobodan Milosevic.
War crimes investigators at the ICTY were aware of how the war and mass killing in Bosnia were organised. According to the amended indictment of Milosevic for war crimes in Bosnia:
‘Slobodan MILOSEVIC participated in the joint criminal enterprise as set out below. The purpose of this joint criminal enterprise was the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina (hereinafter referred to as “Bosnia and Herzegovina”), through the commission of crimes which are in violation of Articles 2, 3, 4 and 5 of the Statute of the Tribunal. The joint criminal enterprise was in existence by 1 August 1991 and continued until at least 31 December 1995. The individuals participating in this joint criminal enterprise included Slobodan MILOSEVIC, Radovan KARADZIC, Momcilo KRAJISNIK, Biljana PLAVSIC, General Ratko MLADIC, Borisav JOVIC, Branko KOSTIC, Veljko KADIJEVIC, Blagoje ADZIC, Milan MARTIC, Jovica STANISIC, Franko SIMATOVIC, also known as “Frenki,” Radovan STOJICIC, also known as “Badza,” Vojislav SESELJ, Zeljko RAZNATOVIC, also known as “Arkan,” and other known and unknown participants.’
However, at the time of writing, not a single official of Serbia, Montenegro or the Federal Republic of Yugoslavia – i.e. of the regime that organised the war – nor any officer of the JNA (excluding officers of the Bosnian Serb army who had previously served in the JNA) has been convicted by the ICTY of war crimes in Bosnia. The weight of ICTY punishment has, so far, fallen exclusively on the Bosnian Serbs, while the regime of Milosevic in Belgrade and the leadership of the JNA have been mostly let off the hook. Only six such officials were ever indicted: Milosevic, Stanisic, Simatovic, Perisic, Arkan and Seselj. Arkan was assassinated before he could be arrested, while Milosevic died while his trial was in progress. This leaves a maximum of four representatives of the regime who could, if the prosecution is wholly successful, receive punishment for organising the worst case of aggression and mass killing in Europe since World War II. None of these belonged to the top rank of officials responsible for organising the war in Bosnia, with the exception of Stanisic, who was head of Serbia’s State Security Service.
Of the other representatives of the ‘joint criminal enterprise’ from Serbia, Montenegro and the JNA high command who were listed in the Milosevic indictment, Stojicic was assassinated in Belgrade before the indictment was issued. Adzic and Kadijevic, the two top figures in the JNA during the war in Croatia and (in Adzic’s case) during the first stage of the war in Bosnia, were never indicted. Neither were Jovic and Kostic, the Yugoslav presidency members for Serbia and Montenegro respectively, and therefore (along with their counterparts for Vojvodina and Kosovo) the individuals in ultimate formal command of all Serb forces in Croatia and Bosnia up until 19 May 1992. Other top officials of Serbia, Montenegro and the JNA also escaped indictment over Bosnia or Croatia – such as Montenegro’s wartime president Momir Bulatovic, and acting Yugoslav army chief of staff Zivota Panic (who died in 2003).
Some relatively minor JNA figures were indicted for war-crimes in Croatia, in relation to Vukovar and Dubrovnik, but over Croatia, as over Bosnia, the weight of the ICTY’s punishment has fallen on the Croatian Serb agents of Belgrade – such as Milan Martic and Milan Babic (and potentially also the still unarrested Goran Hadzic) – while the officials of the former Milosevic regime have escaped extremely lightly.
This extraordinary failure of international justice over Bosnia – the failure of the ICTY to indict more than a handful of the officials of the regime and army responsible for the planning and launching the war, and so far to convict a single one of them – reflects both the inability of its prosecutors to understand the war properly, as well as their poor strategy in issuing indictments. As I have indicated elsewhere, a preliminary draft of a war-crimes indictment for the leadership of the SRJ (Serbia and Montenegro) drawn up in 2001 by investigators – including the present author – aimed to indict Milosevic and other members of his regime together, including Jovic, Kostic and Adzic. But by a decision of Chief Prosecutor Carla del Ponte, the policy was then dropped in favour of an indictment of Milosevic alone. Apart from allowing his chief collaborators to escape justice, this had the unfortunate effect – as Geoffrey Nice, who led the prosecution of Milosevic, himself noted – that when Milosevic died in 2006, his trial came to an end, and with it, the trial of his regime. This contrasts with the sensible indictment strategy pursued over Serbian war-crimes in Kosovo by del Ponte’s predecessor, Louise Arbour, who indicted five top members of the regime together, including Milosevic.
In her published memoirs, del Ponte’s failure to understand the planning and organising of the war in Bosnia is apparent; it is a failure that found expression in her misguided indictment strategy. She describes Milosevic and Croatia’s Franjo Tudjman as the two figures primarily responsible for the break up of Yugoslavia – as if their respective roles in the process were equal, and as if none of the other leading members of Milosevic’s Belgrade regime was of similar importance. But this is false.
The break up of Yugoslavia and the wars in Croatia and Bosnia all formed part of a single process, planned by the regime in Belgrade under Milosevic’s leadership from at least the spring of 1990, with the goal of creating a Great Serbia (masquerading as a ‘new Yugoslavia’). So far as Bosnia was concerned, this ‘joint criminal enterprise’ aimed to destroy the country and kill or expel most of the Muslim or Bosniak population. Most of Bosnia, as well as large parts of Croatia, were to be annexed by Serbia, and rump Croatia was to receive some Bosnian territory as well, with the Muslims or Bosniaks, at best, being confined to an Indian reservation in between. Tudjman was an eager collaborator in this programme of genocide and aggression, whose other leading members were, in particular, the aforementioned Jovic, Kostic, Kadijevic, Adzic, Stanisic, Panic and Bulatovic. None of these has yet been punished, and most of them certainly never will be.
As for Mladic, he was merely a middle-ranking agent in the planning and launching of this enterprise – more than a pawn, but not more than a knight or a bishop. So while his arrest and trial should be celebrated, and while we have much to expect from it, let us not pretend that justice is being served.
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