It was trial as cinema, with crowds of people gathered in Zagreb to hear a simple outcome – the acquittals of former Croatian general Ante Gotovina and security chief Mladen Markač for their infamous roles in Operation Storm (or “Oluja”), deemed one of the high points of “ethnic cleansing” during the Yugoslavian Wars.
The appellate decision of the International Criminal Tribunal of former Yugoslavia was a narrow one. By a 3-2 majority in the appellate chamber, the ICTY deciding to overturn trial sentences of 24 years (for Gotovina) and 18 years (for Markač). Earlier in April, former commander of the Knin garrison Ivan Čermak was also acquitted. The nub of the decision was that there was no discernible “joint criminal enterprise” to remove Serbs from the Krajina region. The bloodied record shows that roughly 20,000 fled their homes and 600 were killed, many in summarily. The majority justices were not convinced, finding that the Croatian artillery had not illegally shelled four Serb-held towns in 1995 – Knin, Benkovac, Gračac and Obrovac. Particular criticism was reserved for the assumption that a shell that landed more than 200 metres away from a military target could not be deemed to have been fired indiscriminately. The trial chamber decision was, according to the majority, “devoid of any specific reasoning”.
The appellate decision is troubling, given that the men in question were in command of their respective units, notable figures in the structures of power at the time. They were vital instruments in executing a violently nationalist policy. The legal appeal was cunningly framed – if the artillery attacks on the “Four Towns” could not be shown to be unlawful, then a joint criminal enterprise was impossible to prove. The Trial Chamber would therefore have erred, precisely because of the assumption that those attacks led to the deportation of civilians from the Krajina region.
Such reasoning seems erroneous, as it does not detract from the key objectives of Operation Storm. The “200 metre” test might have been questioned, but the program could not. Dissenting judge Fausto Pocar was beside himself. Before the trial chamber, there was more than enough adduced evidence suggesting that Operation Storm had one fundamental purpose – to remove the Serbs in Krajina with a good deal of terror thrown in. Details were hammered out at a conference on the island of Brijuni just before the operation. Amongst those present at the meeting was then Croatian leader Franjo Tuđman.
Gotovina’s statement to Tuđman during the meeting was considered in the trial chamber. “A large number of civilians are already evacuating Knin and heading towards Banja Luka and Belgrade. That means that if we continue this pressure, probably for some time to come, there won’t be so many civilians just those who have to stay, who have no possibility of leaving.”1 The Chamber further found that Tuđman was keen to repopulate the area with Croats. Gotovina’s statement must have been music to his ears.
The ICTY has had a tumultuous history. It has been deemed clunky, slow paced and indecisive, a drawback in the function of passing judgment. But it has generated a body of jurisprudence on leadership responsibility for grave crimes which are now hard to ignore. That said, questions of legitimacy continue to arise. These latest decisions will raise more than a few eyebrows in terms of their historical myopia. The law is not necessarily good with generating consciousness.
The convicted will regard such bodies as impossibly constituted and biased. Those acquitted will, however, we welcomed as the cleansed heroes, the figures who knew better in the moment of murderous battle. The treatment of Gotovina will also be under the microscope, having spent near seven years in prison after being apprehended by Spanish policy in Tenerife.
Gotovina sees the past as lodged distant, even irrelevant. It won’t move and there’s no reason to keep gazing back at it. “The war belongs to history, let’s turn to the future all together” (Al-Jazeera, Nov 16).2 Serbian President Tomislav Nikolić disagrees. “Today’s decision of The Hague tribunal will not contribute to stabilising the situation in the region, it will open old wounds.” Tragically, Operation Storm has by virtue of the decision, been legitimised. This is something Gotovina’s defence lawyer Greg Kehoe is all too aware of. “This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia. More importantly, it vindicates what kind of soldier Gotovina was.”3