By Andrea Matačić Cayley*
(FPRI) — The end of November at the International Criminal Tribunal for the Former Yugoslavia (ICTY) was a period filled with anticipation about the forthcoming decision on Bosnian Serb former general Ratko Mladic. The court was also reaching the conclusion of its mandate with its doors finally closing at the end of December. A few days after the Mladic decision, the ICTY threw a large celebration for current and former staff to celebrate the wrapping up of the court’s work, which had spanned from 1994 until 2017.
It was easy to forget that one more decision was coming out the following week. The final decision in the appeal of Jadranko Prlic et al, a prosecution of six Bosnian Croats for crimes committed against Bosnian Muslims in eight municipalities in Bosnia between 1992-1995. The hearing was scheduled for November 29. The rendering of this appeal judgment—after the final Mladic decision—promised to be an anticlimactic ending to the tribunal’s work. In fact, the opposite was to be the case.
One of the six defendants, Slobodan Praljak, a former theater director and businessman, reacted to the reading of his verdict by shouting “Slobodan Praljak is not a war criminal. I reject your verdict.” Then, in front of the judge and courtroom, Praljak swallowed a vial of poison and the verdict which had promised to slip under the radar suddenly became the lead news story all over the world.
The appellate decision had acquitted Praljak of some of the charges against him, and since he had already served 13 years of his 20-year sentence and since the Tribunal allows early release after the serving of two thirds of a sentence, Praljak in fact had very little time left to serve. Comparisons were immediately made to the suicide of Hermann Goering right before he was scheduled to be hanged. But unlike Goering, Praljak only faced a few more years in prison. Dramatic to the end, the man who had allowed himself to be filmed ordering the destruction of the 16th century bridge at Mostar, Bosnia and Herzegovina became the third suicide at the ICTY—albeit the first publically televised suicide in the court’s history.
While Praljak’s suicide became the focus of the international media, this case raised significant legal and political issues that were at the heart of the ICTY’s work and which directly affected the ICTY’s legacy and impact in the region of the former Yugoslavia.
A Look into the Praljak Case
Praljak and the five other Bosnian Croats were indicted as part of a Joint Criminal Enterprise (JCE) theory. JCE is an ICTY-created mode of liability which tied their own individual culpability to a joint criminal policy in this case headed by the now deceased President of Croatia, Franjo Tudman. The judges in their appeal upheld that there had been a criminal plan by the Croatian government, under the control of the then-president, to seize parts of Bosnia and displace the Bosnian Muslim population from the seized areas. The prosecution had shown that the Croatian army controlled the Bosnian Croat army, and the government in Zagreb controlled the policies of the Bosnian Croats in Bosnia-Herzegovina.
Paradoxically, the ICTY had never definitively proven or worked to prove that Serbia and Slobodan Milosevic controlled the army and government of the Bosnian Serbs. In fact, in the Mladic decision, although Serbia is mentioned, it was never found to be the focus of the JCE nor to be the controlling entity in the actions taken by the Bosnian Serbs. The fact that Croatia and its leaders were directly implicated in the destruction of Bosnia, while Serbia’s were not, has caused endless fury in Zagreb throughout the ICTY’s mandate. This fury only escalated with this final decision.
The current Croatian government became consumed with getting the court to reject the JCE involving its first president and remove blame from the Republic of Croatia for crimes committed by Bosnian Croats. In the months leading up to the appeals decision, the Croatian government sent representatives to the court hoping to sway the court to drop any findings of Croatian involvement and control in the war in Bosnia. The government went as far as hiring a top U.S. consulting firm to put pressure on the court and to insure that these findings of culpability were stricken.
While Croatia is currently struggling through an economic crisis and has not reaped much in the way of financial reward from its membership of the European Union, it is astonishing to think that it was expending significant financial resources to ensure that it be historically cleared in an appeals decision that no one was much interested in prior to Praljak’s suicide.
The Role of the Croatian Government
The Croatian involvement in Bosnia-Herzegovnia had from the very start of the Tribunal been a point of particular sensitivity for the Croatians. The Croatians thought of themselves as victims of Serbian aggression, which is why they eagerly signed on to the creation of the Tribunal. When Croatia became a target of investigations, its behavior towards the court turned from one of cooperation to one of obstruction. The Croatian army did have a legitimate interest in defending its most eastern borders with Bosnia. The Serbs could access Croatia through those borders and were attacking villages in Croatia resulting in the destruction of property and civilian casualties. The ICTY never questioned that motivation. It was only when the Bosnian Croat army began to attack Muslim villages in Central Bosnia that the ICTY opened an investigation into the Bosnian Croat government and military apparatus. Then, based on a demand by the court, this examination grew into a full investigation Croatian involvement and support for the Bosnian Croats in Bosnia.
On August 29, 1995, the ICTY indicted Colonel Ivica Rajic. Rajic was the first Bosnian Croat military official to be charged by the ICTY for the October 23-24, 1993 massacre in the village of Stupni Do, where at least 37 Bosnian Muslims including the elderly, women, and children, were murdered. Some of them were burned alive, and several women were raped by Rajic’s forces. The ICTY held a Rule 61 hearing in the Rajic case in September 1996. Rule 61 hearings, which were later dropped by the ICTY, were held in order to determine whether there was sufficient evidence in the indictment to validate an international arrest warrant. This was an ICTY device to start public legal proceedings without the presence of an indicted individual. Rule 61 was born out of the early fears that arrests were going to be impossible.
In order to charge Grave Breaches of the Geneva Conventions in any indictment, the prosecution had to prove that the war in Bosnia-Herzegovina had been an international armed conflict. This was a chapeau requirement of the Grave Breaches provisions. This meant that the ICTY Prosecutor had committed herself to the theory that this was not a civil war, but an international armed conflict made such by the financial and military support to the Bosnian Croats provided by an independent state, the Republic of Croatia. The judges in the Rajic Rule 61 hearing decided that they needed more evidence of Croatia’s involvement in Bosnia-Herzegovina. Therefore, in 1996, an entire group of analysts began compiling evidence of Croatia’s political, military, and financial support to the Bosnian Croats.
A Look into the Investigations
The ICTY investigation of the Bosnian Serbs never made enquiry into Serbian support of the Bosnian Serbs a priority. This created, especially in the eyes of Croatia, a lopsided focus on Croatian involvement in Bosnia as opposed to Serbian involvement in Bosnia. The ICTY Office of the Prosecutor was set up with groups of lawyers, investigators, and analysts divided into teams that focused on crimes committed by a particular ethnic group. Thus, there was never any overarching strategy to show involvement or control by the Republics of Croatia or Serbia, or a bigger picture of the conflict. Teams acted independently under their own leaders. The Bosnian Croat teams, because of the initial desire to prove international armed conflict, devoted greater resources to proving Croatian involvement than the Bosnian Serb teams ever did to show Serbian involvement.
As the Bosnian Croat trials progressed, the prosecution was able to introduce evidence of Zagreb drafting the laws of the Bosnian Croats and assisting in the establishment of a mini Croatian state in Bosnia, Herceg-Bosna, with Croatian national symbols and Croatian financial support. The pressure in the Office of the Prosecutor grew to indict the then-living Croatian president, Franjo Tudman, for crimes committed in Bosnia against the Bosnian Muslim population. While a strong indictment would have been possible against Tudman for crimes in Bosnia, the then-chief of investigations made a decision to indict Franjo Tudman for crimes committed in the Medak pocket, a small region inside Croatia where the Croats attacked Serb forces to regain control of the Krajina region. Then-Chief Prosecutor Louise Arbour refused to sign the indictment for lack of evidence linking Tudman to the Medak crimes. President Tudman died soon after, allowing him to avoid being indicted by the ICTY.
The current Croatian complaint with the ICTY was that through this theory of JCE, Tudman was indicted and found culpable in the Prlic et al case, while Slobodan Milosevic, the President of Serbia, had avoided culpability by dying before his verdict was issued. The Croatian obsession with this incongruence, years after the crimes and long after the ICTY has basically become irrelevant, points to a bigger problem in the region.
Complaints about the ICTY
The Croatians, Serbs, and Muslims have all expressed disappointment and frustration with the ICTY in that they all claim that they have been unfairly targeted and insufficiently regarded as victims. There is no doubt that even though early CIA reports from 1995 had found the Serbs more than 90% culpable for all crimes in the Former Yugoslavia, the UN had pressured the ICTY to treat each side as equally culpable. In the early days, teams scrambled to figure out how to indict quickly the Muslims for crimes in Bosnia. This quest for equitable prosecutions unfortunately left each side feeling as if the truth of what had really happened was misrepresented by the ICTY. The division of investigative teams on an ethnic basis further exacerbated the problem as the teams began to take on the natural biases and prejudice of the victims that they were representing.
It therefore should not be surprising that the Prime Minister Andrej Plenkovic of Croatia said: “His [Praljak’s] act, which we regrettably saw today, mostly speaks about a deep moral injustice towards six Croats from Bosnia and the Croatian people. . . . We voice dissatisfaction and regret about the verdict.” In the minds of Croatians, the feeling of inequitable prosecutions outweighs the dreadful consequences of the actual crimes, which these six men undoubtedly committed.
None of these six men are heroes. While they may have started as defenders of the Croatian borders, each one of them was a part of an organized plan to terrorize and remove Bosnian Muslims from territory that they had historically occupied. I spent over a month in Norway interviewing and working with Bosnian Muslims from Mostar who had been tortured and held in concentration camps run by the Bosnian Croats. They had been forced to seek refuge in Norway after being ethnically cleansed from Bosnia by their Croatian neighbor.
The Legacy of the ICTY
The evidence was presented by the Office of the Prosecutor, and the verdict upheld on Appeal. Rather than accept this verdict, the Croatians hail these criminals as heroes. At a memorial service for Slobodan Prlajak, several thousand people came out to honor this newly declared national hero.
The ICTY, and future courts, must examine what steps they could have taken and what errors they made that have resulted in national groups seizing victimhood and praising criminals. In Serbia, a statute of Milosevic is being erected, and many Serbs deny the Srebrenica genocide ever occurred. Perhaps, if the ICTY had focused on examining a particular region and what each group had done in that region, rather than focusing its investigations on each ethnic group, the national groups would have believed the court to be more equitable.
Also, judgments that appeared purely political further chipped away at the ICTY’s legitimacy. Momcilo Perisic, head of the Yugoslav People’s Army, was originally convicted for 27 years for his role in the Bosnian and Croatian war, but then, in a shocking turn of events, had his entire conviction overturned on appeal. The judges, to the horror of the victims of the war, decided that the military assistance which the Yugoslav Army provided to the Bosnian Serb and Bosnian Croat militias was intended to support their general war efforts rather than facilitate war crimes. This appalling decision led to an open letter sent by a Danish Judge, Fred Harhoff, at the ICTY accusing the Appeals Chamber led by the President of the ICTY, Theodore Meron, of overturning the conviction in order to protect the military establishments of powerful states, specifically the U.S. and Israel, from expansive forms of criminal liability previously developed by the ICTY. Harhoff wrote, “The worst of it is the suspicion that some of my colleagues have been exposed to short-term political pressure and this completely changes the premises of my work to serve the principles of justice and reason.” With the acquittal of Perisic, the chance to hold Serbia accountable for the crimes it assisted and orchestrated openly, and through its control of the Republika Srpska army, was finally extinguished. The suspicions behind this decision caused Croatia to hope to be able to influence the court with expensive U.S. consultants and made the final decision in Prlic et al even more difficult for Croatia to accept.
Unless the ICTY looks critically and publicly at its legacy, its impact in the region will be left in question, and blind nationalism—rather than the historic examination of individual responsibility for massive crimes—will dominate how each nation examines its wartime legacy.
About the author:
*Andrea Matačić Cayley, JD, Ph.D. is a Senior Legal Fellow with the Center of Justice and Accountability and the US Coordinator for Civitas Maxima, a Swiss-based Human Rights Organization. From 1995-2010, she worked as an attorney with the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia.
This article was published by FPRI