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.



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