Saturday, 30 April 2011

ICTY – How the Prosecutor Tampered with the Truth


Visnja Staresina

In his memoirs the former U.S. President Clinton wrote of about Storm: »In August (1995), there came a dramatic turnaround. The Croatian launched an offensive to take back Krajina, a part of Croatia that the local Serbs declared their territory. European and some U.S. military and intelligence officials were opposed to the operation, believing that Milosevic would intervene to save the Krajina Serbs, but I was rooting for the Croatians. Helmut Kohl did the same because he knew, just like I did, that diplomacy would not work until the Serbs have suffered serious losses in the field«. This Croatian operation to restore the constitutional order on 18% of its area that was four years under the occupation of the Serb insurgents and the UN protection, was congratulated on by numerous diplomats included in the post-Yugoslav peace process, powerless to stop the Serb war machine with their peace messages. With its professional execution, Storm commanded respect of military analysts and surprised laymen. In mere 36 hours, the Croatian Army liberated Knin, until then considered the unconquerable stronghold of the Serb insurgents from which they had spited all the international peace efforts for four years. »Until the very moment the Croatian Army heisted the Croatian flag over Knin after mere 36 hours on the offensive, the spokesman for the UN continued to rave on the alleged fantastic fighting qualities and skill of the Serb troops. Croatian victory showed that they talked rubbish. In addition to putting UNPROFOR and Western policy-makers to shame, Croatian victory created a fundamentally new situation, opening the door to serious peace negotiations«, commented the Wall Street Journal several days later (WSJ of 10.08.95). New York Times reported from Sarajevo: »Both the staff and the patients from the Sarajevo hospital thanked the offensive of the Croatian Army against the Serb insurgents in Croatia for the breath of normality they are now experiencing... Both the staff and the patients reckon that the Serb forces have been destabilised by the serious attacks on their collaborators in Croatia«. The official Washington was satisfied with the result. »It was the first defeat of the Serbs in four years, and it changed the power status on the ground and the psychology of all the parties«, wrote Clinton. He revealed that one day prior to the launch of Storm he had visited the famous ABC News correspondent Sam Donaldson at the hospital, and the latter said from his hospital bed that a Croatian offensive could be beneficiary to settling the conflict.

On the other hand, the official UK was initially reserved towards the operation and in agreement with other members of the peace contact group – the U.S.A., France, Germany and Russia – invited Croatia to call off the offensive. Already on the very first day of the Storm operation, the co-chairman of the International Conference on the Former Yugoslavia, former Swedish Prime Minister Carl Bildt, called for an indictment of Croatian President Tudjman, and for no other thing than for – excessive shelling of Knin, the stronghold and the »capital« of the Serb insurgents. From his base in Knin, the UN spokesman reported that civilian buildings were also targeted, including the hospital, and that there was shattered glass lying all around. Several days after the dramatic reports, the correspondent of the Washington Post found a different picture at the Knin hospital: »The town hospital, allegedly severely damaged, seems to have only sustained a single shell hit. A UN clerk who was at the hospital at the time believed that Croatian gunners were aiming at a firing Serb tank that was positioned close to the hospital«.

In the meantime, Prosecutor Carla del Ponte explicitly made Storm into »joint criminal enterprise« and towards the end of February 2004 issued new indictments against the then administrator of Knin after the end of the military operation, General Ivan Cermak, and the Military Police Commander, Mladen Markac. The first row among the participants of the criminal enterprise was populated by the deceased: first Croatian President Franjo Tudjman, wartime Defence Minister Gojko Susak, the Commanders of the Generalstaff of the Croatian Army, Generals Janko Bobetko and Zvonimir Cervenko. Moreover, as aids of the »joint criminal enterprise« Carla del Ponte also mentioned »other members of the HDZ and local authorities«. At the initiative of UK diplomats, Security Council resolution listed General Gotovina among the most wanted fugitive war-crime indictees, alongside Greater-Serbian leaders Radovan Karadzic and Ratko Mladic. Based on the claims of Carla del Ponte that Ante Gotovina was in Croatia and the Government would not arrest him, Croatia was barred from opening the EU accession negotiations and the process of its joining NATO was stopped. Gotovina was arrested in December 2005 on the Canary Islands.

Just as announced back in 1996 by UK policeman Simon Leach, the head of the ICTY investigation team in the Lasva Valley case, the first Croatian President Franjo Tudjman and Defence Minister Gojko Susak were included in the »joint criminal enterprise« of ethnic cleansing of the Muslims in Bosnia and Herzegovina. The indictment itself would require a careful legal analysis because of its vagueness and its collectivisation of criminal responsibility. The way it stands written it practically criminalizes all the Croatians in Bosnia and Herzegovina. »Croatian joint criminal enterprise in Bosnia and Herzegovina« began, according to Carla del Ponte, »on 18 November 1991 or earlier«, and it lasted until »about April 1994 and afterwards«. Its goal was to »subject, in political and military terms, and to permanently eliminate and cleanse the Bosnian Muslims and other non-Croatians«, in order to create Greater Croatia within the borders of historical Banovina Hrvatska. The first rows of the members of the »joint criminal enterprise« were populated – in addition to Tudjman and Susak – by Joint Chief of Staff of the Croatian Army Janko Bobetko and President of the Croatian Community of Herzeg-Bosnia Mate Boban. They were followed by Jadranko Prlic, Prime Minister of Herzeg-Bosnia, Bruno Stojic, Defence Minister of Herzeg-Bosnia, Slobodan Praljak and Milivoj Petkovic, HVO Commanders, Valentin Coric, Minister of the Interior, and Berislav Pusic, in charge of the exchange of camp prisoners. Their trial began in The Hague in 2006. This indictment, too, includes the category of »others«.

Who are these »others« in the joint criminal enterprise? According to Prosecutor del Ponte they are: »various other officials and members of the Government and political structures of Herzeg-Bosnia/HVO, on all levels, including municipal authorities and local organisations, various leaders and members of the HDZ and HDZ BiH on all levels, various members of the armed forces of Herzeg-Bosnia: HVO, special units, military and civilian police, security and intelligence services, paramilitary formations, local defence forces and other persons acting under the control of or in cooperation with such armed forces, police and other elements; various members of the Armed Forces of the Republic of Croatia and other known and unknown persons«. Criminal liability of the accused, according to Carla del Ponte, did not even require that they all, »known and unknown«, be members of an all-Croatian criminal enterprise. »Additionally or alternatively«, they may be criminally liable for aiding and abetting a joint criminal enterprise. If the formula »additionally or alternatively« were applied to the letter, criminal liability for participation in Croatian joint criminal enterprise in Bosnia and Herzegovina could also extend to include the entire Muslim political and military leadership, including Alija Izetbegovic and all his military leaders because in many instances, even during the severest Muslim- Croatian conflict in Bosnia and Herzegovina, they signed agreements in which HVO and the BH Army were the legal armies of Bosnia and Herzegovina.

To the ICTY Prosecutor, the JNA »undertook a military operation« against Vukovar in Croatia, whereas the Croatian Army in liberating 18% of its own territory around Knin in the Storm operation conducted a »joint criminal enterprise with the goal of ethnic cleansing«. In her interview to the Croatian Television Prosecutor del Ponte noted that General Gotovina »seemingly, conducted the operation in accordance with the rules of warfare«, but she also added: »had there been no crimes, the Serbs would not have left«. Just one day prior to the Storm operation, at the negotiating table in Geneva, Serb leaders were given the ultimating Croatian offer – to accept autonomy in accordance with the Croatian Constitutional Law passed in early 1992 in accordance with the recommendations of the Badinter Commission and as a prerequisite to the international recognition of Croatia. On top of that, the Prosecutor also has the documents that show that the evacuation of the Serbs from Krajina was organised in advance by Milosevic i.e. Serb authorities. To paraphrase Carla del Ponte, had the Croatians not wanted to bring back their occupied territories and had they left it to Greater Serbians – there would have been no indictment for a »joint criminal enterprise«.

The Prosecutor's approach to the Croats in Bosnia and Herzegovina is similar. Any military operation of the HVO is part of a criminal enterprise. Even in the cases when Croatian villages were defended, the HVO is treated as an occupation force. Paradoxically, the very same Prosecutor treats foreign Islamist mujahedeen fighters as part of the forces of the BH Army, as fighters for integral, democratic and multiethnic Bosnia and Herzegovina. Not in a single indictment mentioning their atrocities are such atrocities qualified as persecution on religious, ethnic or national basis or crimes against civilian population, but merely as a violation of the rules of warfare.


Visnja Staresina


Historical and Political Aspects of the Activity of The Hague Tribunal


Josip Jurcevic, PhD

In all armed conflicts in the territory of former Yugoslavia Serbia was involved in the role of aggressor while all others defended themselves on their territories. In addition Serbia was the only one systematically preparing itself for an armed solution of »the Yugoslav crisis«, and the only one controlling an armed force, so that all other inner Yugoslav actors where predetermined to play the role of victims.

The only factor, »complicating and obfuscating« an objective understanding and a determined, civilized proceeding with respect to a simple and clear situation in the region of former Yugoslavia, can be found in exterior circumstances and actors. These range from the circumstances of Communism breaking down in Europe, followed by activation of a new European interest dynamics, to the traditional strategic importance of Southeastern Europe from the standpoint of different international circles of interest and powerful governments.

All of the above can, among the rest, be appreciated as well in the establishment and subsequent proceedings of the Hague tribunal, which are far below the level of international legal standards adopted a long time ago, as well as below the worst experiences in international relations so far.

The Hague tribunal was formally granted an exceptionally limited jurisdiction. It was created as an ad hoc court for the region of former Yugoslavia with the right to try individuals exclusively, with neither power over organizations, nor a right to try for aggression itself. In this manner the Tribunal theoretically and practically does not distinguish, equivocating instead, between aggressor and victim, in opposition to basic humane values, as well as moral and legal principles thousands of years old. Furthermore, the Tribunal never announced a trial against any individual outside the region of former Yugoslavia, although there are numerous and various grounds for that, the responsibility for the horrible war crimes committed in the internationally »protected zone« of Srebrenica being the most prominent.

The Prosecution of the Hague tribunal (which is one of the parties in trial proceedings) presents itself as The Court by media techniques and, which is especially worrisome, appears in international affairs as a political institution. In this way the Hague prosecutors have de facto become a political arbiter whose opinion is critical at the UN for imposing sanctions on individual countries.

By political and media pressure on governments and media, the Hague tribunal pro- motes the principle that all suspects are proven criminals, who have to prove their innocence before the Tribunal, a presumption in complete contravention with the common legal standard that guilt has to be proven in court and no one can be considered guilty without a binding court verdict.

The Hague tribunal grossly exceeded its allocated jurisdiction by introducing in practice indictments and trial of individuals for the so-called joint criminal enterprise (JCE), so that in proceedings against individuals it in effect puts on trial »criminal organizations«, meaning states. In addition the term itself is so broadly defined it introduced complete legal insecurity, a situation in which any individual, neglecting customary standards of guilt determination, can be indicted and convicted as a member of a criminal organization. The defendants are put in a position in which they cannot even appreciate of what they are accused, rendering them incapable of exercising their equal right to rebut the points of the indictment. The responsibility, or guilt, of an individual is immersed into a vague collective guilt, which is also in opposition to common legal principles.

Following the proceedings before the Hague tribunal, one is especially struck by the problem of establishing points of fact, either simple or complex. This does not refer to establishing the legal relevance of a fact for the court proceedings, but to the unsound methodology by which the Hague tribunal acquires facts in the first place.

Concerning the Republic of Croatia, the systematic repeating of Hague theses by the Tribunal already achieved psychological and social effects involving first disbelief and apathy, and eventually desperation. If the Hague truths were incorporated into textbooks, a complete breakdown of identity and social disintegration of the Croatian society would result, followed by its thorough remodeling in the service of interests already deeply embedded as financiers and owners.

Opposition to the Hague theses was left to self-appointed individuals, until recently, when general S. Praljak, himself one of the 6 Croats indicted for a JCE in Bosnia, began to resist them systematically, backed by the enormous resource of an archive containing more than 60,000 documents.

It should be pointed out that this database, containing documents of all the parties in conflict, as well as the international community, objectively renders absurd the Hague indictment against six Croats from Bosnia and Herzegovina (B&H) in which they and Croatia are accused of a JCE against B&H. Namely, a large number of documents attests without any doubt that no Croat institution (President, Government, Parliament) did at any time pass an act or a hint thereof in line with destroying B&H and/or annexing any part of it. Furthermore, documents of both states, B&H and Croatia, demonstrate that the institutions of the Croatian state, during the period of conflict between Croatian and Muslim units in B&H, continuously participated in and contributed to the arming of the Army of B&H, as well as established and trained its units on the territory of Croatia. In Croatian hospitals several thousands of wounded soldiers of the B&H Army were treated, many of which wrote grateful letters to Croatian authorities after becoming well, and humanitarian aid also reached the Muslim population over Croatian territory without obstruction.

In the same period of time a large number of Muslim refugees were cared for without any discrimination, and Croatian authorities established and financed a system of schools for Bosnians, featuring a Bosnian teaching program, on Croatian territory. Likewise, numerous national sports representations of B&H where trained in Croatia and supported financially by the Croatian state, etc. Nevertheless, these aggregate facts and thousands of original documents supporting them never were made a centerpiece of public attention even in Croatia, while the Hague indictment for the alleged JCE against B&H remains a most severe threat to the Republic of Croatia.

A similar situation pertains with three generals of the Croatian army (HV) being accused, together with Croatian institutions, for an alleged JCE against Serbs in Croatia, during and after the liberation action »Storm.« Even though the media and several books published a number of original documents from the Croatian occupied territories, clearly demonstrating that the Serbian occupation forces planned and prepared the exodus of Serbian civilians from Croatia for several years, carrying it out before »Storm« – the supporters of the Hague theses both in The Hague and in Croatia insist on these points of the indictment.

Concerning the public perception and interpretation of »Storm« and other Croatian liberation operations, basic facts in their historical, political, and legal context are being ostentatiously neglected. First of all, beginning with the second half of 1991, Croatia acquired international legal status in a stepwise fashion, being eventually diplomatically recognized by key governments in January 1992, and becoming member of the UN in May of the same year. Based on its international status the Republic of Croatia had, according to all international laws and customs, full legality and legitimacy in establishing its jurisdiction over the occupied parts of its internationally recognized territory, the matter being its internal affair.

On all these grounds Croatia was fully within its rights to undertake liberation operations, »Storm« in particular, which, beside reintegrating a large portion of occupied Croatian territory, prevented a repetition of the Srebrenica humanitarian catastrophe in the Bihac region, and made it possible for the war in B&H to end, and the Dayton peace accords to be signed.



Friday, 29 April 2011

Paradoxes and absurdities of the Hague indictment


Nedjeljko Mihanovic, PhD

General Ante Gotovina is being accused of the war crime, »that he knew, or had reason to know, that forces under his effective control were preparing to commit murder of Krajina Serbs« (150 of them). A war crime, as defined under the Hague convention of 1907, stipulates and includes: »killing, maltreatment, or deportation to forced labor of civilians; killing or maltreatment of prisoners of war; execution of hostages, destruction of towns and villages, or such devastation as cannot be justified by military necessity«.

None of that could have been committed in the military-police operation »Storm«:

a) because there was no way to kill a population which had already fled, because the Serbian population has evacuated itself to the Republic Srpska in B&H, and further towards Serbia proper, of its own volition, according to the plans of its leadership from the top of the Knin authorities;

b) because no one could organize any forced labor of civilians who have willfully fled, nor was this planned in any which way; and

c) because all prisoners of war have been unconditionally released by the Croatian authorities after the capitulation had been signed, and the »Storm« operation, which had lasted for four days, was over; finally

d) »destruction of towns and villages« was logically not part of the military-police operation, because all the towns and villages in question, which had been occupied by Serbian terrorists for four years, were Croatian state territory, so rather than stumbling into self-destruction, the purpose was to liberate the country.

Crimes against humanity include »organized murder, extermination, delivery into bondage, deportation of civilian population, their disappearance, torture, or inhuman procedures.« In point I, article 23, general Ante Gotovina is being summarily accused of all these crimes.

First of all, the quoted number of »150 murdered Krajina Serbs« is not broken down in the indictment. It is known that Serbian terrorist squads, as they carried out the orders of their superiors for the evacuation of the Serbian population, punished those Serbs who refused orders to evacuate by shooting them.

The indictment accuses General Ante Gotovina (along with Cermak and Markac) for »extermination of the civilian population«. It is a generally known fact that the Serbian population started to withdraw and evacuate according to its own strategic plans, respectively the orders of its paralegal government (Milan Martic and Milan Babic), several days before the military-police operation »Storm« was due to begin. Most of the Serbian population accepted this strategic inspiration of their leaders, and such a contrarian plan, to return in an organized fashion, after a new campaign of war, as victors. There was no »forcing to flee« (point I, article 23), nor could it have, physically, taken place.

In order to acquire a complete picture of the events surrounding the military-police operation »Storm« one should know that the Serbs from the so-called Krajina did not only flee. They also put up armed resistance, especially in ambushes, in which 200 Croatian civilians and more than 100 Croatian soldiers, defenders, lost their lives.

On August 6, 1995, I was in Knin and on the Knin citadel as President of the Croatian Parliament, in the company of President Dr Franjo Tudjman. I had unofficial exchanges with Croatian operational officers, who were involved in »Storm«. They recounted how they followed the evacuation of the Serbian population through binoculars, two days before »Storm« began. They thought the evacuation was in preparation for vigorous military activity by the Serbian paramilitary units. However, they were puzzled by the Serbian refugees burning their own homes and property, immediately after abandoning them on tractors and trucks in the direction of the Bosnian border. Similar Serbian burning of own houses was observed in the conflict of Serbs and Albanians in Kosovo, when individual Serbs were abandoning the region. It was motivated by an irrational contrarian attitude: let there be nothing left to the enemy!

Florence Hartmann, spokeswoman for the Hague tribunal, commented on this self-induced and strategically malign planned evacuation of the Serbian population in her book Milosevic – La Diagonale du Fou: »Every Serbian refugee could testify that the Serbian population was fleeing under instructions from their own leaders. Every (Serbian) soldier could testify to the intentional withdrawal of the Serbian army, a consciously planned abandonment of the Krajina«.

We ask, what is this »deportation« (point I, article 23) all about? Within the scope of such a qualification, one should be aware of the testimony of US Ambassador Mr. Peter W. Galbraith, who was peaceably driven on a refugee tractor during the withdrawal of Serbs from Croatia. One should also consider the reports of UNPROFOR observers, which testify to the willful, premeditated and planned evacuation of the Serbian population from the territory which they kept under terror and occupation for four years. Thus no organized and premeditated war crime against the rebel Serb population was committed on Croatian territory, because that population was withdrawing several days before the military-police operation »Storm«, according to its own contrarian strategic plan, aiming to return to Croatia in organized fashion following a new campaign of war.

In point 7, article 46, of the Indictment it is stated that the »Croatian army already applied itself to planning to return by force the RSK, i.e. Krajina region«. In objective reality, Croatian diplomacy had undertaken everything, up to and including the Geneva talks of August 3, 1995, in numerous exhausting and patient negotiations with the intransigent structures of the Knin authorities, to peacefully resolve and terminate a state of occupation, violence, persecution and liquidation of the Croatian population, and put an end to the nightmarish despotism of a terrorist para-state set up on Croatian historical state territory, such as it was continuously from the 6th century to this day. Logically the malicious and insulting formulation »to return by force« should read, by all standards of international law and moral/intellectual awareness, »to liberate« the territory usurped by the RSK. With the Serb occupation of Middle-Dalmatian Croatian territory, Croatia was geographically de facto cut in half, the southern maritime Croatia separated from the northern Pannonia one. One could only reach Zadar, Split and Dubrovnik through the Gorski Kotar and by Rijeka. Which nation, and which state, would have tolerated such an endangered and paralyzed national existence. In the Falklands war, England had protected its islands, 12,000 km away from Great Britain. Why should permission to protect the territorial integrity of the state only be granted to great imperial powers, and denied to little nations. O tempora, o mores!

In my several conversations with President Tudjman, which I led at the time as President of Parliament, he expressed a markedly humanistic approach. His main political goal was: a peaceful ending to the state of war, into which we had been thrown by the Greater Serbian conquering megalomania, territorial expansion and greedy economic voracity. His war options and victorious impulses were both humane and peacemaking. In carrying out his decisions he acted according to the highest standards of humanitarian law. Immediately after »Storm,« he amnestied and released all prisoners of war, members of Serbian paramilitary units, among which there were Seselj's and Arkan's volunteer Chetnik hordes, soaked in blood to their whiskers. He let them go as if they were innocent tourists, who had strayed into Croatia by accident. There was not a case of segregation or exclusion when turning over Serbian paramilitary prisoners. There is no occasion of such a generous and humane turning over of prisoners of war in the whole history of warfare. According to his own statement, for Tudjman »Storm« was: »The end of Croatia's historic cross«. (Vlak slobode (Freedom train), Zagreb 1996). Similar peaceable motives can be established from Tudjman's public speeches and missives to the nation and the world.

We must be truthful and objective enough to admit that, immediately after the »Storm« operation moved towards the border of Bosnia and Herzegovina, there took place random destruction of property of the fleeing Serbian population, in the villages and hamlets of the recently occupied territory (burning of houses, barns, and stables). This was done by Croatian refugees who had started returning to their houses after four years of displacement, and found them completely destroyed, burned to the ground. These were displaced Croatian returnees, who carried by themselves the enormous burden of memories, displacement, and bitterness, who had encountered in their villages their own houses in a sorry state, with schools, churches, cultural buildings, and all their property destroyed. It should similarly not be forgotten, that Serbian terrorist squads also acted as a kind of punitive expedition for those Serbs which turned a deaf ear to the evacuation orders, and themselves burned the greater part of Serbian homes, especially all public property (factories, commercial buildings and industrial halls), with the mindless intention: let it not be left to the enemy! After four years of adversity, suffering and displacement, the Croatian population was greatly embittered. The anger people felt, on whom such a misfortune was inflicted, was difficult to overcome. Nevertheless, this was not a »systematic attack against the civilian population,« as claimed in the Indictment, but a desperate, random, unpremeditated outburst of irrational revenge.

It is known from World War II that military and civilian units of the French Resistance movement persecuted the German national minority in Alsace and Lorraine, including destruction of their private property. The American front-line general George Smith Patton was on the Franco-German border at the time and led military operations. He too did not know, nor could he have known, what was to happen behind the front lines. Neither General Ante Gotovina knew, nor could he have known, what was to happen, and had begun to happen, behind the front lines. No one from the current Prosecution would dare indict General Patton for a »joint criminal enterprise« with the French Resistance, involving a »planned« destruction of the German minority's property. Why is a double and duplicitous moral position applied in the judgment of equivalent acts, in the case of Gotovina?

On August 13, 1995, President Tudjman spoke on the phone with US Vice-President Al Gore about the basic, essential question of the strategic effects of the military-police operation »Storm«. Vice-president Gore expressed in most unequivocal fashion his praise and appreciation, what »Storm« meant for the international community and the unsuccessful, impotent UNPROFOR: »liberation from the efforts to protect Bihac and its 'pink zones', thus greatly contributing to the realization of the American peace initiative on the territory of former Yugoslavia«. President Tudjman received a similar admission from the aide to the US Secretary of State for European affairs Peter Holbrooke on August 16, 1995. The American ambassador Peter W. Galbraith, who had followed the Serbian evacuation from the occupied territories of Croatia physically in person, also expressed his agreement and appreciation. Between October 21 and 25, 1995, President Tudjman took part in the celebration of 50 years of the UN in the US, and met with a number of statesmen, among them the American President Bill Clinton, who praised him for the quick and successful operation »Storm,« and for establishing the peace in the region of western Bosnia. We cannot imagine that President Clinton was not well informed by his observers in the »Storm« operation. Now all of a sudden, ten years later, this liberating and peace-bringing undertaking is being called in the Indictment »criminal«, and in addition »joint«, »combined«, a collective, general national crime. Even the German people at Nuremberg were not stigmatized with such attributes. It is glaringly clear and conspicuous to any objective and impartial judgment, that such a construction to perceive the Croatian liberation war, with its fatal ignorance and neglect of actual facts, is itself monstrous, unscrupulous, absurd, scandalous, and more personal than professionally objective.



»Joint Criminal Enterprise« – What is that?

»Joint Criminal Enterprise« – What is that?


Milan Vukovic, PhD

If we define international criminal law as a set of norms with the objective of suppressing crimes that cross the borders of individual countries, that is, crimes that violate certain basic values of humanity and of the international legal order, it is obvious that neither The Hague Tribunal nor its Statute can be grouped in the traditional concept of international criminal tribunal with legal competence.

This specific characteristic of The Hague Tribunal is obvious from the decision of its founding, because it was established by the UN Security Council, under the authority of Chapter VII of the Charter of the United Nations, while its competence was defined in Security Council Resolution 827 from May 27, 1993, paragraph 2, as well as the Statute, which is an integral part of the decision on the establishment of the tribunal. The judges themselves are authorized, under Article 15 of the Statute, to pass rules on the procedure and on evidence for prosecution prior to the start of trial and of the appeal procedure on the evidence procedure, on the protection of victims and witnesses, and on other related matters.

Although resolution 827, paragraph 2 emphasizes and defines the competence of the ad hoc established International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, the same provision is formulated in the same manner in Article 1 of the Statute. It is necessary to emphasize the power to prosecute »persons«, meaning natural persons.

I believe that it is necessary to emphasize that, in Article 2 of the Statute, stated in detail are acts considered grave breaches of the Geneva Conventions of August 12, 1949, as well as those »ordering grave breaches to be committed«, because the Croatian state leadership had constantly insisted that their defense efforts be supervised by international forces on the front lines, and had insisted that the international forces undertake certain efforts so that this would not be the obligation of the Croatian Army.

The Statute of the International Criminal Tribunal in The Hague introduces the criminal offence of GENOCIDE in Article 4, whereby it is first provided in a descriptive manner, stating that the International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article, or committing any of the acts enumerated in paragraph 3 of this article. The definition of genocide is provided in paragraph 2 of this article, defining it as: »Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a) killing members of the group,

b) causing serious bodily or mental harm to members of the group,

c) deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part,

d) imposing measures intended to prevent births within the group,

e) forcibly transferring children of the group to another group«.

Paragraph 3 of Article 4 defines the acts that shall be punishable:

a) genocide,
b) conspiracy to commit genocide,
c) direct or public incitement to commit genocide,
d) attempt to commit genocide,
e) complicity to genocide.

In Article 5 of the Statute, all acts against humanity are specified: a) murder, b) extermination, c) enslavement, d) deportation, e) imprisonment, f) torture, g) rape, h) persecution on political, racial or religious grounds, i) other inhumane acts.

From all of the above, it follows that the elements of the incrimination, that is, the characteristics of the criminal act, must be indisputably defined by the norm that describes the act, because judges are not permitted to resort to analogy. If it is shown that there is a need, in addition to the Statute of the International Tribunal for the Former Yugoslavia, to call on an additional source of international law, then the general principles of law in question must be recognized by the civilized world, as in Article 31 of the Rome Statute of the International Criminal Court, which defines the grounds for excluding criminal responsibility in general.

With the belief that the provisions of the Statute on the competence of the International Tribunal for the Former Yugoslavia are insufficient, it is obvious that the prosecution and the judges themselves at times, interpret these voids at will in the manner that it is like there are no general rules on the International Criminal proceedings, as a consequence, they take on a quasi-legislative role when adopting and supplementing rules of procedure and evidence.

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed

This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations

The criminal offence must be committed after the adopted regulation, and the punishment must be prescribed prior to commitment itself (Article 31 of the Croatian Constitution, Article 7 of the European Convention).

It is indisputable that contemporary criminal law excludes collective responsibility of one side in an armed conflict, war, so the International Tribunal, also known as The Hague Tribunal, was founded on the principles of individual criminal responsibility, rejecting collective responsibility of individual nations or states for possible crimes committed in its name, because criminal law, in principle, excludes strict liability.

At the beginning of 2004, in the month of March, partially changing the Indictment against general Gotovina, Cermak and Markac, the prosecution in The Hague used the qualification of guilty under the all-encompassing expression »joint criminal enterprise«. With this qualification, the prosecution, and the Tribunal as well, because the Tribunal provides approval of the Indictment – which is, otherwise, nonsense – attempts to qualify the Homeland Defense War, which took place on Croatian territory to defend against Serbian-Montenegrin aggression, the uprising of a part of the Serbian population in Croatia and the full military attack by the former Yugoslav Army, as a crime because Croatians managed to defend and liberate their territory.

The »criminal enterprise« qualification is not only an insult to the legal facts in relation to the »right to peace«, but rather this qualification attempts to annul, in relation to Croatia's defense and victorious military operation, the very meaning of freedom and constitutional independence of Croatia, using the term 'crime' to depict its fight for freedom!

Inadequate knowledge of the facts that emerged with the breakup of the European division into blocs in those nations which, at that time, were structured as states, and the Croatian nation, which did not have its state independence, resulted in the mixing of the terms aggression and defense to the degree that the battle in defense of freedom and independence has been labeled a »criminal enterprise«!

When the Hague Tribunal's practice to accuse Croatia's victory and the persons who won these victories through battles appeared, the Constitutional Court of the Republic of Croatia responded with its REPORT no.: U-X-2271/2002, dated November 12, 2002 (Official Gazette, no. 133/02, November 15, 2002).

»The activities of the armed forces of the Republic of Croatia, conducted with the objective of liberating parts of the occupied territories of the Republic of Croatia, including removing direct threats to the lives of inhabitants and preventing the destruction of real estate caused by armed (military and paramilitary, para-police and/or terrorist) attacks by occupying forces undertaken from occupied territories, were in accordance with the constitutional obligation of the armed forces of the Republic of Croatia to protect the sovereignty and independence of the Republic of Croatia and the defense of its territorial integrity.

When liberating the occupied territories of the Republic of Croatia, the armed forces of the Republic of Croatia acted in the name of and according to the authority of a contemporary, sovereign, internationally recognized state.

By liberating areas of the Republic of Croatia in which an unconstitutional entity without democratic legitimacy and international recognition was formed, the armed forces of the Republic of Croatia suppressed the armed uprising and removed the results of external armed aggression. In these territories, the armed forces simultaneously introduced the national (constitutional-legal) and, in doing so, the international-legal order as its part, with all rights, obligations and responsibilities that arise from the Constitution and the legislation of the Republic of Croatia and from international legal acts that the Republic of Croatia has accepted and ratified.

The Constitutional Court regards such a constitutional position and role of the armed forces of the Republic of Croatia during the Homeland Defense War indisputable and irrefutable«.

Milan Vukovic: »JOINT CRIMINAL ENTERPRISE« – What is that?

Croatian generals are not guilty - Introduction

Croatian generals are not guilty - Introduction

In August, 1995, the Croatian Army liberated large sections of its territory, which had been occupied by the Serbs for many years. This operation is known as Operation Storm (Oluja). In Dalmatia, the most critical part of the operation was headed by Croatian general Ante Gotovina.

At the beginning of the 21st century, the International Criminal Tribunal for the Former Yugoslavia accused general Gotovina of crimes against humanity and violations of laws and customs of war. Also accused are Croatian generals Mladen Markac and Ivan Cermak. They are suspected, together with the late Croatian President, Franjo Tudjman, of participating in a joint criminal enterprise, whose goal was to remove the Serbian population from that part of Croatia.

The trial was completed in 2010. The prosecution of the International Criminal Tribunal in The Hague had not succeeded in proving a single count of the indictment. The verdict is awaited.

In the meantime many world-renown experts on international law wrote critically about the work and character of the tribunal in The Hague, deeming that it had distanced itself from the values on which international law is founded, and that it acted under the influence of politics.

They asked themselves and are still asking how is it possible to put on trial the commanders of an army that liberated its own territory in a brilliant military operation with a minimum number of killed and wounded. How was it possible to put Croatia and Croatians on trial, the victims, in 1991, of internal (terrorist uprising by a part of the Serbs) and outside aggression (Serbian and Montenegro) with thousands and thousands of dead and wounded, as well as devastated villages and cities (Vukovar). The objective of this genocide, including culturocide (devastation of Dubrovnik and Zadar), was the creation of a »Greater Serbia«, with many Croatian areas in its composition. Krajina, the Serbian terrorist para-state with Knin as its center, was formed on a part of the territory of the internationally recognized Republic of Croatia, from where the attacks on the Croatian cities on the Adriatic Sea were initiated. Aggression on the entire area of Croatia was planned in Belgrade under the leadership of Slobodan Milosevic.

The International Tribunal in The Hague neglects this entire context and highlights only the Croatian military operation in 1995, accusing Croatian generals of »persecuting Serbs from Croatia«. The facts indicate otherwise: the supreme defense council of the »Republic of Serbian Krajina« made a decision on the planned evacuation of civilians; it was to take place in front of representatives of the international community; and Serbs from this part of Croatia did not wish to remain despite the proclamation by the President of the Republic of Croatia, which called on them to stay.

The Tribunal in The Hague also neglects the fact that the army of the Republic of Croatia, after the fall of Knin (which was practically undamaged) continued with its operation on the territory of Bosnia and Herzegovina, in accordance with the agreement signed by Bosnian President Alija Izetbegovic and Croatian President Dr. Franjo Tudjman. This operation too was led by general Ante Gotovina. Civilians in the city of Bihac, Bosnia and Herzegovina, which was surrounded by the Serbian army, were saved. Bihac was a safe haven, as was Srebrenica, the site of a terrible genocide of Muslims not long before. Thanks to the Croatian Army and general Gotovina, a massacre in Bihac was averted. What is more, the Serbs were retreating in panic towards northern Bosnia, and from that point on no longer represented a real military threat. They accepted the Dayton Agreement, which, actually, ended the war in Southeast Europe.

It was this kind of general Gotovina and others in the indictment who were put on trial in The Hague for a non-existent »joint criminal enterprise«, which is absurd, even more so because the prosecution raised indictments on the basis of information provided by the enemy in the conflict.

The lawyers of the Croatian generals were not the only ones participating in their defense. Given that the tribunal in The Hague did not allow the Republic of Croatia to appear as »amicus curiae«, legal experts gathered in an attempt to replace this role, as has the non-governmental organization of intellectuals under the name »Hrvatsko kulturno vijece – Croatian Cultural Council«. The book that you have in your hands is a summary of the eight collections of symposium papers (a total of 1200 pages) that originated on the basis of presentations by Croatian intellectuals at eight symposiums of the Croatian Cultural Council held from the middle of 2006 to 2010.

Hrvoje Hitrec President of the Croatian Cultural Council