Thursday, 19 May 2011

Far Away Tales of Freedom

When I was a pre-teen, my world consisted of my house, my grandma’s house, my school, and the people  who belong to those places. I almost never considered the outside world. I was young, all too ignorantly innocent. When I really started reading books, interesting books, I discovered a new dimension of adventure in the world. However, I thought adventures were only for mighty heroes and brave warriors like the ones in the books. That all changed through, when my dad showed me the tickets he had bought for our family trip to Croatia. Croatia is a small eastern European country opposite to Italy across the Adriatic Sea. Many consider Croatia’s coastline one of the most beautiful and majestic in all of Europe. Tourism is the foundation of the economy. Yet, to my mother’s parents and my father’s parents, it was home.

Countless times I listened to my family describe the beauty of the land and their love for the country. Some of my relatives fought in the war that won Croatia’s freedom and democracy from the clutches of communist Yugoslavia. Even my father and mother did their part here in the United States by writing articles and doing interviews on the news exposing the communists. My grandfather has pictures from when he was behind enemy lines helping the resistance gather weapons and supplies. In their own small or great way, my whole family had fought for Croatia. They all cherished the country dearly.

Every summer, many of my relatives take a month off to go back home to Croatia. Surprisingly, my brother, sister, and I had never gone. My parents had always been so busy. But that year we would finally go! I was twelve that summer, about to become a teenager. When my dad first announced we were going, I got my camera and prepared to experience firsthand all the stories about the castles and the beautiful land. After the long flight over the Atlantic, we boarded a 30-passenger propeller plane to fly over the Alps. The engines were so noisy I could not hear my mom talk. That plane was hot and small. Nevertheless, one look outside the window at the ice tipped mountains of the Alps and that low altitude flight was well worth it.

We landed in Zagreb, the capital of Croatia. The journey from Zagreb to the coast is a four-hour drive, but a beautiful one. On our way, we stopped at a national park called Plitvice. Plitvice is, in my opinion, one of the most beautiful places on Earth. Judging only from pictures I would still believe it, but being there was an experience I will never forget. The waterfalls splash and twist around the walkways, rocks, and bridges. Plitvice is a ravine, about 500 feet wide about 150 feet deep, with a river running at its bottom. When we arrived and walked to the edge of the ravine, I saw the river turn into waterfalls as it passes over rocks and flows around the boardwalks. To get to the boardwalks we had to climb down steep steps made of wood and some steps chiseled into rock. Once we reached the bottom, we walked among the most beautiful waterfalls and radiant pools I ever saw. They looked so uncorrupted, as if the earth was just born. A steady pace without stopping for pictures will get you through to where the river broadens in about 20 minutes. I took much longer than that.

After we left Plitvice, we made a beeline to the coast. Almost there, we stopped at the village where my grandparents lived and where my father was born. I even saw the rock he said he was stuck in as a kid. I saw the fields where my relatives used to grow grain and grapes. I saw the village cat peering at us from a distance like it knew we were strangers. However, once our relatives and friends invited us in to one of the little yellow cottages for drinks and snacks it almost felt like home even though I never saw the place before.

After a while, we finished our journey to the coast. Split was the city where we would be staying. The view from my grandfather’s condominium was incredible: beaches with cafes right alongside, docks with multi-million dollar yachts attached, and the sun shining on Croatians and tourists alike. I do not remember which I liked better, looking at the church steeple lit up against the night sky, or walking beside the Roman Emperor Diocletian’s Palace. The palace dates back to 300 A.D., but the yachts not more than a 5-minute walk away are modern and distinctively sophisticated. From the windy balcony, I felt like a mixture of both native and tourist inside me. It felt like a home, but there was so much to discover and learn. My camera was always clicking and keeping the memories stored safe.

After a few days, my parents told us we were getting on the road again. However, we were not starting the long journey home just yet. We were on our way to Dubrovnik, Croatia’s iconic walled city perched right on the rocks, with waves washing up against the walls that protected the Croatian people hundreds of years ago. A cross shaped Christian church at its center, the city streets look as if a chase scene from a James Bond movie is about to take place. The houses are made of stone, same as the walls. The walls that stood for hundreds of years now hold a city alive with cafes, shops, and tourists. The sun is shining, and the cool breeze makes the temperature feel about 75. As I walked the walls perched 40-feet high over the ocean, I thought about my relatives who fought for the country, and I thought about my ancestors who fought off the Ottoman Turks while the rest of Europe was having its Renaissance. I thought about the bravery, I thought about the determination. I was proud to be Croatian.

Yet, even more importantly, I realized how big of a world this really is. I found that the stories my family told me were extremely real. Stories and tales far more exciting than any book I ever read. Stories and tales that encourage me to overcome problems just like my country did. I peaked within and I saw, as so many other Croats do, an independent soul that lusts for freedom. As I stood on the beautiful and ancient towering walls of Dubrovnik, still very young, I realized my blood belonged to a place where freedom from oppression, freedom from limitations, and freedom of mind are not just good things to strive for, they are virtues to fight for.

Nik Susnjara
Naples, Florida
15 February 2011
submitted to

Saturday, 7 May 2011

Croatia and the ICTY: Politics or Justice? – A British Perspective - Robin Harris, PhD


Robin Harris, PhD

It is an honour to be asked to address this distinguished gathering of Croatian intellectuals. The subject of your conference might appear, on the face of it, to be rather narrow. But any such initial impression is misleading. The question of what constitutes a »joint criminal enterprise«, in the sense in which that expression is used by the International Criminal Tribunal on the former Yugoslavia (the ICTY), requires much more than a technically correct judicial answer – if such a thing could, by chance, be found. It goes, in fact, to the heart of the relationship between politics and justice and to the role of national and international courts. It bears directly on the interests and, indeed, the sovereignty of Croatia. It has, by extension, profound implications for the future conduct of Western foreign policy. And last, but by no means least, it involves the fate of General Ante Gotovina and his co-accused in the Hague – something which concerns me, and doubtless concerns you too, very much indeed.

We do not, and should not, try to escape the cultural background from which we approach such matters. Inevitably, I bring with me a British perspective. But let me say, at once, that it is what could be termed a traditional British perspective, one rooted in well established national values, rather than one which coincides in any fashion at all with that adopted by recent British governments. And even in democracies, nations rarely deserve to be judged by their political class.

British political influence in the affairs of the former Yugoslavia over the last fifteen years has been wholly bad. British policy has been, successively – to try to keep an unviable Yugoslavia together; to deny the victims of aggression the means to defend themselves; to veto international action to help the helpless; to support by a range of means the perpetrators of genocide; to perpetuate the myth that all the parties involved in the conflict were equally guilty; to indulge in a pitiful campaign of self-justification, as the failure of past British policy became evident; and, most recently, to erect, from sheer spite, as a high a hurdle as possible against Croatia's re-joining Europe. I do not apologise for any of this, myself, because I and many others in Britain, most notably Lady Thatcher, opposed these policies at every turn. I merely note this litany of failure as a shameful fact.

The British perspective I adopt is, therefore, different and, I would argue, more authentic. Britain is historically home to a (properly defined) liberal tradition, one which places a high view on the rule of law, which respects dissent, which is inveterately hostile to the concentration and centralisation of power. This traditionally predisposes us to sympathy for the underdog and to dislike for arrogance and brutality. The tradition extends across the political spectrum. It was George Orwell a great British writer of the Left, who in his novel 1984 conjured up the memorable image of communism as »a boot stamping on a human face – for ever«. British governments should have seen who, in Greater Serbian Yugoslavia, was wearing the jackboots.

There is another side, however, perhaps a more conservative one, to British political values. The British are naturally sceptics – often unfortunately in religion, usually and healthily in politics. Unlike our American cousins, with whom we share much else, we traditionally distrust plans to create a perfect future at the expense of an acceptable present. We prefer the known to the unknown, let alone the unknowable. We are sometimes idealists. But, when we are true to ourselves, we are never utopians.

Utopianism, like totalitarianism, to which it is wrongly prescribed as an antidote but with which it in fact shares many features, is an eternal temptation. It is based upon hubris, of which there is no end. And like all such hubris, from the erection of the Tower of Babel described in the Book of Genesis to today's ideas of universal international jurisdiction embodied in the ICTY, it always ends in tears.

The ICTY, measured against these instincts and impulses, is a thoroughly unsatisfactory institution. It embodies the assumption that justice will be surer, more honest and more effective, if it is removed from nations and local communities and administered by an unaccountable class of quasi-legal professionals. That assumption is manifestly false. It defies any of the logic we use to create or to assess other kinds of institution. It amounts not so much to the rule of law but, at best, to the rule of lawyers – in this case lawyers who feel no compunction about making up law as they go along. Some results are immediately obvious. The ICTY is grossly over-manned. It has over 1100 staff, costing a quarter of a million dollars a year to run. Despite or because of these bloated resources, it is cumbersome, inefficient and slow. »Justice deferred is justice denied«, runs the ancient proverb. ICTY justice is always deferred, often distorted and frequently discarded as well.

Turn to its website and you will witness the Court's hubristic view of its own alleged significance. It claims to be a »pioneering institution«, one which has transformed the application of international law – for instance by broadening the (in fact, enormously dangerous) concept of »command responsibility«. Indeed, its public pronouncements read like those of political lobbyists, not officers of a court, and they are redolent of a vast, self-serving agenda.

The ICTY behaves in a more capricious and arrogant manner than any ordinary government would dare to do. It has, for example, taken to asserting its power and protecting its interests by outrageous interventions against Croatian journalists. If such abuses were perpetrated against press freedom in Britain or America, they would bring excoriation upon the authorities; they deserve to do so wherever and whenever they occur.

Yet here I must make a confession. When the ICTY was instituted by the UN Security Council in 1993 I was delighted. The reason was simple. The failure of will by the international community to uphold justice and order in this region was manifest and seemed immovable. The distant threat of global justice at least seemed better than no threat at all. Just to get the phrases »war crimes«, »crimes against humanity« and even »genocide« into public discussion made it more difficult for the cynical accomplices of violence in London, Paris, Washington or Moscow to pretend that Vukovar and Sarajevo just constituted »business as usual« in the Balkans. But I was wrong.

The ICTY has become a monster, and given the ideology and interests of its proponents and practitioners, it was bound to do so. It has probably not saved a single life. It has certainly not prevented a single atrocity. Ratko Mladic and his confederates were not deterred from murdering thousands of Muslim men and boys at Srebrenica by knowledge of its existence. And Milosevic was not deterred from ethnically cleansing Kosovo of its Albanians either.

In fact, the ICTY only began to be effective at all, in the sense of laying its hands on indictees, when the military tables were turned against Belgrade. The figures show that almost all the 161 indictments issued, and the 94 cases processed, occurred after Operation Storm. Before then the Court was virtually powerless. In other words, it is thanks to President Tudjman and Generals Gotovina, Cermak and Markac, with help from the Bosnians and the Americans – thanks, then, to those named in the indictments for participation in a »criminal enterprise« – that the ICTY can function properly at all. But somehow I doubt whether the ICTY prosecutor, Carla Del Ponte, is likely to say 'thank you' – any more than she is likely to say 'sorry' for accusing the Vatican of helping shelter General Gotovina in a Croatian monastery, which proved totally false and a gross slander.

The decision to set up the Court was made, we should recall, in lieu of a lack of consensus by outside powers on intervention. But the ICTY itself solved nothing. Only when the United States belatedly overrode European objections and gave support to the Croatian Government's action to re-take the so-called Krajina was some kind of solution possible. It cannot be said too often or too loudly in every international arena: No Operation Storm; no Dayton. No Dayton; no Bosnia. No Bosnia; no stable peace in the region. It's really as simple as that.

Unfortunately, the decision to set up the ICTY injected a new factor into the equation. It threatened to steal defeat from the jaws of victory, not least for Croatia. In order to justify its existence, the Court had to show results that neither the processes of war, nor politics nor nationally administered justice could provide. This gave it a perverse incentive to focus on alleged crimes that nobody else would seriously consider crimes at all. The Court sought to enhance its credibility by treating the guilty and the innocent nations alike. It was predictable. The Court has been doing what all such institutions always do. It was preserving and advancing its own interests. That is the background to the indictments of General Gotovina and his colleagues.

But why has it been allowed to behave in a way so different from that originally envisaged and expected? Why has it not been called to order? The answer is that it suited the great powers for the ICTY to function in this way. The US wanted to make it easier for the Serbs to hand over Mladic and Karadzic, which was at least a worthwhile goal – though the US will certainly regret its decision when the details of its involvement in Operation Storm come out, as they must and will. For their part, the British, French and Russians, who had no time for Croatia anyway, were simply pleased to have the Croatian operation in 1995 put on an equal footing with the earlier Serb ethnic cleansing and aggression, which they had tacitly supported and publicly minimised. Examining the behaviour of the ICTY in these matters, one can see how the utopian goal of total justice for all has merely opened the way to gross injustice for some. The judicial process, adapting Clausewitz's famous formula, is now merely the extension of politics by other means.

But let us look more closely at Operation Storm itself. And if these facts are still better known to this Croatian audience than to me, I still rehearse them, because it worth a foreigner re-stating the truth – not least for the benefit of other foreigners.

In no sense can Storm be made the equivalent of, say, the cruel devastation inflicted by the Serbs in Eastern Slavonia. Knin never became a Vukovar, nor was ever likely to be. Storm was, after all, an operation to regain Croatian territory, internationally recognised as such. Moreover, it was a triumph – a rapid exercise based on overwhelming firepower, real time intelligence, efficient logistic support and the avoidance of civilian casualties, in short a text-book NATO-style operation. And not surprisingly, since so much American technical assistance, training and advice was involved.

Its consequences were overwhelmingly beneficial. The Bihac pocket, one of the very unsafe »safe areas« designated by the UN, was relieved. The occupied area of Western Croatia was re-taken. The siege of Sarajevo was lifted. The greatest regret is that Storm did not occur earlier, or Srebrenica too might have been saved.

Civilian casualties in Storm were amazingly light. But the only way in which such an outcome can ever be assured is to allow civilians freedom to flee the fighting. As it is, some 80,000 or so Serbs left, not just the immediate area but Croatian territory altogether. The ICTY indictment claims, of course, that this was the intention, the root of the »joint criminal enterprise«. But it has produced no evidence to substantiate this. In particular, unlike the case of earlier Serb attacks and ethnic cleansing, it can point to no public statements, and as far as I know no private plans, to achieve an ethnically purged territory. Indeed, I cannot see any reason why Zagreb would have wanted a mass exodus of Serbs at this point, since it was bound to create enormous political problems.

Anyway, although evidence of mens rea in the alleged crime is entirely lacking, this does not seem to bother the ICTY prosecutor in the slightest. She proceeds instead to an extraordinary tactic which can best be summed up with another Latin tag, namely post hoc, propter hoc – that is the assumption that intentions can be derived from subsequent events. In this case – the Serbs left – so they must have been expelled – so their expulsion must have been the original intention. Such reasoning would not hold up, and would not, I believe, even be advanced, in any British or other Western court; but it is typical of the maverick way in which the ICTY proceeds.

In any case, the Serb population was not expelled. As Peter Galbraith, US ambassador to Croatia at the time has pointed out: »The fact is, the Serbs population left before the Croatian army got there. You can't deport people who have already left«. He is right.

In fact, we can think of many probable reasons why the Serb population might decide of its own accord to leave Croatia. The scale of the persecution and pillaging suffered by the Croat population in the area during the previous four years was so great that many of these Serbs must have been involved. They may have feared either rough justice or real justice and they will have hoped to avoid it. The area they left was in a deplorable condition, partly because of economic blockade, but mainly because of the incompetence, disorder and criminality which flourished under the so-called SRK government. Why stay?

In fact, though, we do not need to speculate. We know precisely what prompted the Serbs to leave – they were instructed to do so by their leaders. The evidence is clear and irrefutable. It comes from testimony given in the Milosevic trial and so was available to the ICTY prosecutor. And if she was not paying attention that day she could surely have consulted the ICTY official press spokesman, Florence Hartmann. Previously a journalist on Le Monde, she has given her own account of these events in her book Milosevic – La Diagonale du Fou. Mme Hartmann heartily disliked President Tudjman and so is the last person to give him and his colleagues the benefit of the doubt. Therefore, what she says of these events must bear particular weight when she exculpates Zagreb and inculpates Belgrade. She writes (I quote):

»Each (Serb) refugee could bear witness that the population had fled at the summons of its own leaders. Each (Serb) soldier could testify to the deliberate withdrawal of the Serb army...In sum, the consciously planned abandonment of Krajina«.

Florence Hartmann places the blame for the exodus of Serbs on Milosevic, acting through his nominee General Mrksic, and so did many Serbs. She is probably right, and probably right too in thinking that these Serbs were seen by Belgrade as more useful to populate a Greater Serbian Bosnia than to fight a losing battle against Croatia. But the precise allocation of responsibility between Serb leaders is unimportant. The Belgrade journal Politika subsequently published a facsimile, which I have with me, of an order by Milan Martic, so-called President of the so-called SRK, dated 4 August 1995, which orders the (I quote) »planned evacuation of all the population not able to fight« from the area. The Serbs were told to leave by other Serbs not forced to leave by Croats.

The later real and inexcusable abuses against what remained of the Serb population committed by returning Croats do not change this judgement. The departure of the Serbs was not ethnic cleansing – it was (in Martic's expression) an »evacuation«. The indictments against Generals Gotovina, Cermak and Markac are, therefore, fundamentally flawed. Without the convenient device of the »joint criminal enterprise« the specific charges against them cannot stand. But this existence of this »enterprise« is unproven and, indeed, unprovable – for the simple reason that it did not exist. The case against the Croatian generals and, by extension, against the Croatian Government of the day is, therefore, baseless.

But this does not mean that responsibility by other parties for other crimes should be ignored, at least if the ICTY is to continue its activity. Let us here recall that the founding statute of the Court does not exclude crimes committed by those coming from outside Yugoslavia. It is surely questionable whether Western leaders and commanders should not have been indicted for allowing atrocities to continue which they could have prevented. The fact that UN commanders tasked with protecting the safe havens like Srebrenica have escaped such indictments, despite the apparently limitlessly flexible concept of »command responsibility«, merely confirms that the Court's decisions are always politically circumscribed and sometimes politically determined – though not, unfortunately, in any sensible or defensible manner.

The West in general and America in particular should be very concerned about the precedent which is being set by the ICTY cases relating to Storm. The Americans are, of course, right to be confident that the ICTY will not suggest that they were part of a criminal enterprise, despite the fact that they were participants in the planning of Storm and had real time knowledge of everything significant that occurred in the course of it. But the suggestion that a »joint criminal enterprise« can be inferred if, as a result of a military intervention which is otherwise properly conducted, some civilians are killed, civilian property is damaged and large numbers of civilians leave, should give Washington and London nightmares.

At a rough guess, some 150 civilians were killed and 80,000 more fled from the so-called Krajina, when the Croatian army liberated its territory in 1995. By contrast, about a thousand civilians probably died and 190,000 more fled Kosovo when NATO took military action in what was Serbian territory in 1999. I support the Kosovo action. But then I supported Storm. I also support the subsequent decisions to attack first Afghanistan and then Iraq. But the US and the UK do not have to bother with people who think like me, people who know right from wrong and who know that force is sometimes needed to ensure that right prevails. They have to worry about people like Carla del Ponte and her more than eleven hundred colleagues, and even more about the new International Criminal Court established by the Rome statute. They have reason to fear that out of the Pandora's box they opened when they set up the ICTY, a completely new kind of political justice will emerge – one which will render national courts and national governments increasingly irrelevant, which will paralyse peace making and peace keeping interventions, and which will play into the hands of tyrants and aggressors.

That great Anglo-Irish patriot and thinker, Edmund Burke, famously observed: »All that is necessary for evil to triumph is that good men do nothing«. Good men, and not just good Croats either, have a duty to act to have the Storm indictments thrown out – and then to bring down the shutters on the ICTY.