By Elizabeth Pond
It's bad enough that the appeals chamber of the Hague Tribunal for ex-Yugoslavia has reopened old ethnic wounds by absolving Croatian General Ante Gotovina of responsibility for his troops' persecution, deportation, and murder of Serb civilians in 1995. This acquittal leaves only high-ranking Serbs sitting in jail for atrocities carried out by belligerents of all ethnicities in the vicious Balkan wars of the 1990s—and bolsters the dominant view of Serbs that international justice is biased against them.
It's even worse that the thunderbolt annulment of the 2011 sentence of Ante Gotovina to 24 years in prison might void the jurisprudence of the past twenty years in the first post-Hitler attempt to hold senior leaders to account for genocide carried out by subordinates. If it does, the contrary legacy of the effort to give legal teeth, at long last, to the 1948 Genocide Convention could instead reinforce the customary impunity of powerful luminaries who launch wars of atrocity against civilians.
This was hardly the outcome imagined by the idealists who lobbied successfully in the 1990s for the creation of special courts to try war crimes, from the Yugoslav, Rwanda, and other ad hoc tribunals to the permanent International Criminal Court that is now ten years old. Their original aim was to get beyond punishing only a few token corporals and sergeants for murder and torture of civilians and to convict top perpetrators as well. Their further aim was to establish the legal truth of mass war crimes in order to refute holocaust deniers—and even, on the basis of individual rather than collective guilt, to promote reconciliation among former foes.
Yet the November acquittal of Gotovina and his co-defendant, Mladen Markac, former Operation Commander of the Croatian Special Police—and the return of the pair to a heroes' welcome in Zagreb—is reigniting Serb-Croat hostility that successive political leaders had already calmed bilaterally. And the appeals chamber's rejection of evidence cited by the trial chamber to prove Gotovina's guilt for the "ethnic cleansing" of at least 20,000 of the 200,000 Serb refugees generated by his Operation Storm risks raising the bar for proof of command culpability to a height that prosecutors could never meet.
The risk is a triple one—individual, institutional, and moral. Defense lawyers in the ongoing trial of Ratko Mladic, the Serb commander at the 1995 Srebrenica massacre of 8,000 unarmed Muslim boys and men, will now find it much easier to discredit any incriminating evidence short of a train leading from a specific order to commit unlawful acts to the landing of specific shells on a specific house, or the specific firing of a lethal bullet into an identified person. There could now be copycat appeals to overturn completed Hague Tribunal convictions on the basis of the appeal chamber's highly unusual nullification of the trial chamber's fact-finding (and not just its interpretation of law). Obversely, the acquittal of such a high-profile defendant as Gotovina will surely deter future victims of war crimes from bearing public witness and exposing themselves to reprisals with so little chance of legal redress.
The passionate dissents by two of the judges on the five-judge appeals bench of the Hague International Criminal Tribunal for ex-Yugoslavia (ICTY) highlight these concerns.
The facts of the Croat troops killing at least 150 non-combatant Serbs and driving 200,000 Serb civilians out of their ancestral homes and out of Croatia in a 36-hour spasm in August 1995 are uncontested. What the prosecution had to prove in court, however, was Gotovina's prior intent as commander to terrorize Serb civilians into abandoning their homes in the largest forced deportation in the Balkans prior to the Serbs' ethnic cleansing of 1.4 million Albanians in Kosovo in 1998-99.
The evidence presented by the prosecution in the ICTY trial chamber followed the pattern of the Tribunal's 60-odd other convictions in establishing both command responsibility and explicit prior intent—a "joint criminal enterprise," in legalese—to effect the deportations. One indication of prior intent was a meeting on July 31, 1995 in Brioni in which Croatian President Franjo Tudjman and his senior commanders discussed "the importance of the Krajina Serbs leaving as a result and part of the imminent attack." The transcript of the meeting recorded Gotovina's assertion that "if there is an order to strike at [the ethnic Serb town of] Knin, we will destroy it in its entirety in a few hours." Proof of execution of this intent was the artillery barrage of Knin and three other Serb towns in Croatia a few days later, as Gotovina's counteroffensive expelled not only Serb military forces out of the third of Croatian territory they had occupied, but also Serb civilians whose families had lived in Croatia for generations.
The ICTY appeal chamber ruled by 3 judges to 2, however, that Gotovina's declaration at Brioni could be deemed equivocal. The majority decision, as written by Presiding Judge (and ICTY President) Theodor Meron, concluded that "the Brioni Transcript includes no evidence that an explicit order was given to commence unlawful attacks." Likewise, the majority of judges held that the artillery barrages of the four urban areas—with no recorded resistance from these towns—did not necessarily demonstrate that civilians were being deliberately and unlawfully targeted, but might have been aimed at legitimate "opportunistic" military targets (like the one police car that was hit in Knin).
Dissenting Judge Carmel Agius found "quite staggering" the majority "de novo review" and attributed the majority's abrogation of the trial court's evaluation of facts to a cursory and "compartmentalized" reading of the evidence cited in 200 pages in the original verdict. He found troubling the appeal decision's key dismissal of the lower chamber's judgment that shells falling more than 200 meters from a legitimate military target should be regarded as deliberate or indiscriminate targeting of civilians. He deplored the "benefit of the doubt ad infinitum" that the majority accorded the Croatian army when "at least 900 projectiles fell all over [Knin] in just one and a half days," at least four projectiles landed in the immediate vicinity of the Knin hospital "450 meters from the nearest artillery target," and others landed 700 meters away from military targets and bracketed Knin's southern, eastern and northern outskirts.
Agius further criticized the majority judgment as "unjustified… unorthodox and unacceptable" in overriding the original verdict's 21 detailed pages of evidence that General Gotovina was informed about crimes committed by his subordinates but failed to discipline them—and even "commended and praised his subordinates and their conduct in Operation Storm when he knew that crimes had been committed."
Judge Theodor Meron told the United National Security Council this month that the Tribunal's legacy will have "profound significance … in bringing about a new era of accountability and a new commitment to justice within the international community at large."
Just how that legacy will be perceived by the international community—and by victims who had hoped to find a legal remedy for their political impotence at The Hague—will depend to a large extent on the flurry of appeals of convictions in the few remaining years of the ICTY mandate. Above all, it will depend on the outcome of the Mladic verdict on charges of genocide due in the summer of 2016—and, in case of conviction, on the appeal thereafter.
Elizabeth Pond is a Berlin-based journalist and the author of Endgame in the Balkans.