By Vojin Joksimovich, PhD
On November the 16th the Appeals Chamber of the International Criminal Tribunal for Former Yugoslavia (ICTY) outrageously reversed convictions, acquitted and ordered immediate release of the Croatian Colonel General Ante Gotovina, commander of a military offensive known as Operation Storm (Oluja in Serbian), and Colonel General Mladen Markac, Operation Commander of the Special Police in Croatia. Gotovina was on the run until 2005, when he was arrested in Spain and transferred to the ICTY. Needless to say the acquitted generals returned to Zagreb to a hero’s welcome with the 100,000 large crowd chanting “Victory, Victory.” In Belgrade there was a fury in denouncing the verdict as a scandalous injustice towards those Serbs ethnically cleansed. The Serbs have always viewed the ICTY as a political and not a legal body.
The Appeals Chamber ruled on 3:2 decision that the original chamber had “erred” in finding the existence of a Joint Criminal Enterprise (JCE) whose purpose was the permanent and forcible removal of Serbian civilians from the Krajina region in today’s Croatia, where the Serbs had lived for some 500 years. Last year Gotovina and Markac were sentenced to 24 and 18 years respectively. The Majority judges, without the benefit of hearing all the evidence as the Trial judges did, were: the American judge Theodor Meron, the Jamaican judge Patrick Robinson and the Turkish judge Mehmet Guney.
Operation Storm took place during August 1995 and it was the largest European land offensive since WWII, involving 150,000 Croatian troops, and resulted in the largest single movement of refugees in Europe since the Hungarian uprising which erupted in 1956. About 2,000 Serbian civilians were murdered (1,922 according to the Veritas Documentation and Information Center and between 200,000 and 250,000 were ethnically cleansed in a matter of 84 hours. The UNHCR quotes lower figures of hundreds of civilians killed and 200,000 displaced. While passing through the hostile Croatian territory Serbs were dragged from their carts and beaten to death. NATO planes participated on the side of Croatia. Retired US four-star generals (MPRI) trained and directed the Croatian army. While the 50th anniversaries of V – E Day celebrations were taking place in Europe in May 1995, Croatia committed another genocide over the UN cease-fire lines against the Serbian population of Western Slavonia in the vicinity of Jasenovac, the largest genocide per unit of territory during WWII. About 1,500 were slaughtered. In one village alone, Bela Stena, 500 women and children were the victims. Hence, the extermination of Serbs continued after 50 years in full view and support from the democratic and human rights advocates in the West. It should also be noted that Rahim Adeni, Kosovo Albanian and the Croatian Army general was acquitted by the Zagreb District Court for well documented war crimes by the Canadian UN contingent in the Medak Pocket in Krajina. Another Croatian Army general, Ivan Cermak, was also acquitted last year by the Tribunal for his Operation Storm crimes.
The two dissenting judges were: the Italian judge Fausto Pocar and the Maltese judge Carmel Agius. Agius in his 30 page dissenting opinion said: “I respectfully but strongly disagree with almost all of the conclusions reached by the Majority.” He added that he was “distancing himself” from the decision to acquit and together with judge Pocar expressed his concern at the way fellow judges handled the appeal. Pocar in his 20 page dissenting opinion disagreed with the verdict “which contradicts any sense of justice” and stated: “Given the sheer volume of errors and misconstructions in the Majority reasoning and the fact that the Appeals judgment misrepresents the Trial Chamber analysis, I will not discuss everything in detail—only three most fatal errors: 200m standard, artillery attacks of four towns and the JCE.”
It was mind-boggling how the Majority could credibly deny the “existence of the JCE whose purpose was the permanent and forcible removal of Serb civilians from the Krajina region” when they had the President of Croatia on record saying: “We have to inflict such blows that the Serbs will to all practical purposes disappear” and when they had a videotape of the Croatian Defense minister saying that “Serbs in Croatia will never be there again for as long as we are there.” On September 12, 1993, the Croatian President Tudjman told his cabinet that “Croatia must resolve the Krajina problem by war, contrary to international norms, meaning by ethnically cleansing the Serbs from Croatia.”
Former Chief Prosecutor
Former chief ICTY prosecutor from 1999 to 2008 and the author of Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, Carla Del Ponte, in an interview with Belgrade’s Blic said that she was shocked, surprised and stunned. “It was not justice. Unbelievable. I cannot accept it. I feel complete solidarity with the Serb victims of the crimes we proved with evidence.” I assume that “the facts were reinterpreted.” Del Ponte agreed with everything she heard on the Serbian TV because it was obvious that crimes were committed and now the question remains who committed them. It should be noted that Del Ponte, while in office, was viewed as a Serb-hater and never concealed her dislike of Serbia. “I expect that a verdict will be brought in the Ramush Haradinaj case within 15 days and there is a danger that the same thing occurs. I am very disappointed.” Haradinaj is a Kosovo Albanian, former Prime Minister of Kosovo, indicted on 37 charges for actions while regional commander of the Kosovo Liberation Army (KLA) including mounting a “widespread and systematic campaign to abuse, kill and expel Serbs and other minorities.” Nine witnesses linked to the Haradinaj case have been killed, while the main witness was shot during the investigation. He was found not guilty on all counts and released in 2007, but partial re-trial was ordered in 2010.
It is of interest that Serge Brammertz, Del Ponte’s successor as the chief ICTY prosecutor, was also very disappointed. He indicated that the prosecution will consider reexamination of the verdict. The New York Times characterized the decision as the most dramatic in the Tribunal’s 19-year history. The Times expects that, given the role Croatia played in the war as well as sharp criticism of the two dissenting judges, the verdict will be studied by attorneys and war historians.
Perspectives of this Writer
This writer was not surprised by the ICTY Appeals Chamber decision because for the purposes of his books he had researched modus operandi of the ICTY for over a decade and had even compared the ICTY trials with the Stalinist Moscow 1936-1938 trials. The people who pay for the Tribunal and support it were themselves complicit in the crimes that were part of the ICTY charter. In particular I came to the conclusion that another miscarriage of justice would take place after I had learned that General Gotovina was preparing the Operation Storm with the deputy CIA director George Tenet in the military base Sepurine near Zadar. After the so called “Srebrenica Massacre” President Clinton, concerned about his reelection, decided to intervene militarily against the Serbs and offered an alliance to the Croatian leadership under president Tudjman. My speculation is that the American judge acted upon the State Department instructions and swayed opinions of the other two judges. Judge Meron is probably the most influential ICTY judge having served two terms as the president. He joined the Tribunal in 2003 after serving in the US State Department. His anti-Serb bias has been well known. There are numerous examples when he violated human and process rights of the Serbian inductees’ and those of Vojislav Seselj’s in particular. He banned even his telephone communications and visits. He was a member of the Appeals Chamber, which freed thuggish Naser Oric, who as a Muslim commander of Srebrenica, was responsible for the murder of 1,300 Serbs and who boasted for his crimes in an interview with the Toronto Star in 1995.
From the perspectives of this writer, the most significant outcome of the Appeals Chamber decision is that nobody will be responsible for the war crimes committed not only in the Operation Storm but throughout the civil wars in Croatia. Hence, ethnic cleansing committed by the sides in the conflict favored by the US/NATO is not a war crime. No Croat from Croatia was sentenced by the ICTY (Croatian General Mirko Norac was sentenced by the Zagreb District Court to 7 years imprisonment). Only 12 Bosnian Croats were sentenced with 6 still at trials. All of those Croats were sentenced or indicted for the crimes against the Bosnian Muslims, not the Serbs. The Court’s decision will undoubtedly reopen the wounds as indicated by the Serbian president Tomislav Nikolic, which is contrary to the Court’s often stated principle of promoting reconciliation between former warring parties. It is obvious that the South African style Truth and Reconciliation Commission would have much better served that purpose but it was unacceptable as it didn’t serve the US/NATO objectives.
Most alarming from the international justice aspect as well as that of the western civilization in general, which takes pride in the rule of law, this will be the second time since WWII that nobody was found accountable for the Croatian war crimes over the Serbs and hence those genocides will be concealed from the history. Evil continues to win against justice. Croatia, which has been a NATO member since 2009, can enter the EU on July 1, 2013 with its legal state clear.
ICTY Modus Operandi
The ICTY was established by the UN Security Council in 1993. The Tribunal is of dubious legality as the UN Charter does not give the Security Council the authority to create a body with supranational powers to prosecute individuals. Michael Mandel, professor of Law at Osgoode Hall Law, York University in Toronto, in his remarkable book How America Gets Away with Murder, provides an excellent account of how the ICTY was born. Lawrence Eagleburger, US Secretary of State, and presidential candidate Clinton had publicly launched the idea in August 1992 as a way of opposing the peace process in Bosnia and to justify the military solution they favored. Eagleburger even named ten individuals: seven of them were low level (four Serbs, two Croats. and one Muslim), but there were also big names: Milosevic, Karadzic and Mladic. This practically dictated the Tribunal agenda. In other words, the proposal was used by the Americans to justify its intention to go to war by branding their adversaries as post-WWII Nazis. This conspiracy killed the Vance-Owen peace plan, which depended on the involvement of the leaders named, and thus unnecessarily prolonged the war.
The ICTY is the best first test of the outcome of post-WWII politics – the Nuremberg Doctrine, which makes individuals liable to international prosecution for actions committed during a war. The Nuremberg trials of German major war criminals introduced judicial legitimacy – a tribunal with a panel of judges, prosecutors and defense attorneys. Initially, mostly US appointees staffed the Tribunal. In 1994, in the Office of Prosecutor there were 22 from the US, four from the Netherlands, two from Germany, two from Denmark, two from Norway, two from Sweden, two from Zimbabwe, and one from Great Britain. With the exception of Zimbabwe all were from NATO countries. NATO was the aggressor first in the civil/religious war in Bosnia and subsequently in the KLA insurrection from Northern Albania into Kosovo. It was immediately assailed as a NATO political instrument. It has been a rogue court with rigged rules and scandalous protocol to achieve the political objective to convict. John Laughland wrote: “It is not victor’s justice; it is no justice at all.”
The court indicted 161 people: 94 Serbs, 29 Croats, 9 Albanians, 9 Bosnian Muslims, 2 Macedonians and 2 Montenegrins. There are no indictees remaining at large. 126 cases have been completed. 13 defendants were transferred to local courts with 11 being convicted. Fifty Serbs have been sentenced thus far to over 700 years in jail. Six Serbs died in the Hague jail, including the Serbian President Milosevic, without being convicted. Canada’s best-known criminal lawyer, Edward Greenspan, writing in the National Post, pronounced the Milosevic trial as “lynching,” a ”show trial,” and a “kangaroo court.” The British lawyers attending the opening sessions stated that 80% of charges were hearsay, as such would be inadmissible in British courts. The Milosevic trial lasted over four years. It ended in March, 2006, when he was found dead in his cell. It was known that he was a sick man when he arrived in The Hague. However, the Court denied his request for provisional release in order to have heart surgery at the Bakoulev Center in Moscow despites guarantees from the Russian government. His basic human rights were grossly violated.
Not only was Milosevic indicted, but also his top civilian and military leaders. On the other hand, the court waited for the Croatian President Tudjman and the Bosnian Muslim President Izetbegovic to die and then issued statements that they were about to be indicted. The civilian and military leaders of the Bosnian Serbs, i.e. Dr. Karadzic and General Mladic, have been indicted and deported to the Hague by the Serbian authorities as they were hiding in Serbia. Their trials are in progress. They are indicted among other charges for the “Srebrenica genocide.” The legal definition of genocide is the systematic and planned extermination of an entire national, racial, political, or ethnic group—what the Nazis did to the Jews and Croatian Ustashi to the Serbs, Jews and Roma at Jasenovac during WWII. This definition was violated by the ICTY in order to appease the Islamic world as they wanted to have an equivalent of the Holocaust.
The track record very briefly summarized above clearly shows that it is not a court of justice but a political servant of the US/NATO political interests. Serbian president Milosevic was indicted when the NATO bombs were falling on his country making collecting real evidence impossible. Of course, the US/NATO could have been accused of war crimes against the Serbs for the naked aggression which took place. However, the NATO aggression, which was a supreme international crime, was declared “a law-enforcement mission against war criminals who were right then perpetrating unspeakable acts, Nazis in fact, and the ICTY drove this point home at every opportunity.” Prof. Mendel wrote the following in his book: “But the role the ICTY was born to play came in the Kosovo war. This has nothing with trying and punishing criminals, and everything to do with lending crucial credibility to NATO’s cause. Starting in the fall of 1998, the ICTY became a virtual press office for NATO, issuing press releases containing official statements that the Federal Republic of Yugoslavia (FRY) as an outlaw state whose leaders were inveterate war criminals up to their old tricks in Kosovo. There was an exclusive concentration on the Serbs as criminal non-compliers with international law, to the complete neglect of similar behavior by the KLA, Bosnian Muslims and Croats, and ultimately NATO itself.”
UN General Assembly Debate
The Appeals Chamber decision was met with outrage in many parts of the world resulting in damage to the prestige of the UN. Former Serbian foreign minister Vuk Jeremic, who serves as the UN General Assembly president for this year, has been successful in scheduling a debate for April 10, 2013 with regard to the role of ad-hoc criminal tribunals in accomplishing justice and reconciliation between nations. His initiative was supported by Russia and China but opposed by the US, Britain and France. Jeremic stated that the debate is important so that nobody should think that committing war crimes is acceptable if a superpower provides the green light. Somebody might think that the same recipe can be applied to the situation in northern Kosovo.
Vojin Joksimovich, PhD is the author of three books and over 100 articles on the subjects of World Affairs