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


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