A previous judgement to indict two Croatian generals of war crimes during 1995 has been overturned on appeal. While their conduct is deemed within the reasonable demands of a military offensive, Serbian prejudices against the War Crimes Tribunal process will be reinforced.
As ever in the former Yugoslavia, it is a tale of two cities. In Zagreb, the crowds cheered in jubilation as Croatian generals Ante Gotovina and Mladen Markac were acquitted by the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY). But in Belgrade, fury erupted in the press as politicians and journalists slammed the revised verdict as a whitewash of Croatia's record in the 1991-95 war of independence. The judges were similarly divided: two of the five opinions were dissenting, including a sharp rebuke by Justice Pocar who slammed the acquittal as contradicting 'any sense of justice.'
The two generals were convicted in April 2011 of a joint criminal enterprise to eject Croatia's Serbian population in August 1995 during Operation Storm. This was a large-scale conventional military offensive that retook Croatian territory lost during the outbreak of the Yugoslav wars in 1991 and knocked out the secessionist Croatian Serb republic.
The ICTY determined that the Croatian forces' behaviour was consistent with that of ethnically cleansing an area, and thus a war crime. What Croats saw as a legitimate operation of territorial liberation was, for them, therefore tarred with the indelible stain of a deliberate, systematic attempt to destroy an ethnic minority.
This much is clear: during Operation Storm, over 150,000 Croatian Serbs fled the Krajina province of Croatia, streaming into Bosnia and Serbia-proper; and around 400 Croatian Serb civilians were killed in war crimes during the operation, many of whom were residents who could not flee.
The Original Judgement
But the original judgement, in determining that these constitute a systematic, organised attempt to ethnically cleanse Croatian territory - a 'joint criminal enterprise' - has now been overturned.
The original judgement hinged on the argument that Croatian Army artillery barrages around four key towns were intended to elicit a mass exodus of Serbian civilians, rather than as strikes against Serb rebel military positions. The criterion this rested on was the notion of a 200-metre radius around military targets: shots falling outside this zone were, by the Court's definition, necessarily targeting civilians, and therefore a war crime. In other words, a 'general environment of fear' was created to compel ethnic Serbs to leave.
This attracted criticism immediately after the original verdict was delivered. For one, the number of shots falling outside this arbitrarily set zone was very low (the defence counsel contended around 5 per cent). Further, the verdict did not consider mitigating circumstances that could affect a shell's landing point - for instance, weather conditions or operator error. The appeals verdict has overturned this, finding that there was no definitive evidence that the artillery strikes were unlawful.
It is difficult to see how the evidence available to the Tribunal proved beyond all doubt that Operation Storm was not conducted in line with the reasonable demands of a military offensive. This is the basis of the quashing of the verdict by the Appeals Chamber: that the evidence from the original trial does not demonstrate conclusively that the 'only reasonable interpretation of the circumstantial evidence on the record was the existence of a [joint criminal enterprise] with the common purpose of permanently removing the Serb population from the Krajina by force or threat of force'.
The very notion of a joint criminal enterprise, which necessarily rests on intent as well as actual behaviour, is extremely hard to prove conclusively. This is particularly so when the chief architect of the operation - the former president of Croatia, Franjo Tudjman - is long dead and cannot be cross-examined or brought to trial himself.
Much debate about the first verdict has centred on the interpretation of the so-called 'Brijuni transcript' - the record of a meeting between Gotovina, Markac, Tudjman and others. The original judges took a line about civilians leaving the territory to be evidence of conspiracy to ethnically cleanse the Krajina; but other analysts have argued that this cannot be inferred from what is a vague statement.
Implication of the Revised Verdict
All in all, the Appeal Chamber has probably done the right thing: the evidence in the original verdict against Gotovina and Markac was problematic, hinging as it did on an arbitrary line between legitimate military operation and war crime.
What does this mean for the Karadzic and Mladic trials - two Bosnian Serbs sitting in the ICTY charged with a similar set of crimes? Not as much as may be reckoned.
First of all, the scope of the crimes these two men are charged with is much greater. No massacre of the magnitude of Srebrenica took place in Krajina. And there is no parallel between the overrunning of Knin and the prolonged, murderous siege of Sarajevo. It will be easier to prove criminal action, intent and responsibility for crimes that ran over years rather than days.
Second, joint criminal enterprises - in other words, conspiracy - have always been difficult to prove. And this is not the first example of such an acquittal in the former Yugoslavia; much anger followed the International Court of Justice (a separate institution to the ICTY) decision that, while having failed to prevent genocide in Srebrenica, Serbia was neither complicit nor directly responsible.
It is not enough to infer from the outcome the individuals' intent; this seems to have been the undoing of the initial Gotovina and Markac verdict.
In the end, however, it may just be more of the same. Serbs will continue to see the ICTY as a tool to pin all the blame of the Yugoslav wars on them. Croatian Serbs will quite rightly ask, if Gotovina and Markac are not responsible for the crimes of Storm, then who will be held accountable? Whether or not these generals took part in a criminal conspiracy, the fact remains that civilians were murdered and that for some years the Croatian state tried to keep the refugees out.
Neither does this verdict excuse the preference of Croatian courts to go after Serbian war criminals rather than its own. Croatia will continue to struggle to reintegrate its Serbian minority - extending to the restoration of property and minority rights. There has been good progress. In particular, Croatian governments have relied on Serb participation in recent years, demonstrating that there is no reason the two ethnic groups cannot easily co-exist.
Whether one is satisfied by this verdict may depend on what one sees as the purpose of international justice. If it is neutral application of standard legal principles, then this was probably the right verdict. But if it is to deliver a political outcome to punish national crimes and give victims a sense of closure, then the question remains: if not Gotovina, then who will be punished?
The exodus of Serbs, whatever its trigger, was a tragedy of the war - even if, as the original judgement conceded, Operation Storm as a whole was not an illegitimate campaign. Whatever the actions of the rebel Serbs' leadership, and the original ethnic cleansing of Croats in 1991, the slow return of refugees and the struggle they face in reclaiming their property cannot be ignored by Zagreb. Whether this verdict bolsters an enlightened, magnanimous Croatian response remains to be seen.
The views expressed here are the author's own and do not necessarily reflect those of RUSI.
Director of Publications/Research Fellow