CRIME AND PUNISHMENT
Radovan Karadzic claims that the Serbian authorities in Kljuc investigated the mass murder of non-Serbs in the village of Velagici and punished the perpetrators. Former prisoner in the prison camps Manjaca and Batkovic Asim Egrlic replied to Karadzic that he heard that some men were arrested; they were in prison for only 18 days. ‘If they had killed so many hens, they would have gotten more than 18 days’, the witness said
Asim Egrlic, former prisoner in the Manjaca and Batkovic prison camps, is testifying at the trial of Radovan Karadzic about the Serb takeover of power in Kljuc. Egrlic also described the persecution, torture and murder of Muslims and Croats in Kljuc municipality in 1992. On the eve of the conflict, the witness served as the president of the Kljuc municipal assembly executive board. Kljuc is one of the eight BH municipalities where the persecution of non-Serbs reached the scale of genocide.
The summary of Egrlic’s previous testimony at the trial of Momcilo Krajisnik was admitted into evidence today. According to the summary, the Serb forces took over power in the municipality on 7 May 1992. Soon afterwards, the neighboring villages were attacked and the mass persecution of non-Serbs began. Non-Serbs were fired, their property was seized and mosques and other religious buildings were destroyed. The witness was arrested on 28 May 1992 and was first taken to the Stara Gradiska prison. From there, he was transferred to the Manjaca prison camp. The witness finally ended up in the Batkovic prison camp. In late January 1993, the witness was released in an exchange.
Prosecutor Alan Tieger brought up two incidents listed in the indictment against Karadzic: the execution of 77 civilians on 1 June 1992 in the village of Velagici and the execution of about 144 persons in July 1992 in the village of Biljani. The witness identified some victims from Velagici on the photos; their remains were recovered after the war in Babina Dolina, in Laniste near Kljuc. The victims were of all ages: the youngest victim was only five and the oldest was 93 years old. According to the witness, the bodies of the victims from Biljani were found in the cave called Bezdana, at a depth of about 25 meters.
In the first part of the cross-examination, Karadzic put it to the witness that the Serb authorities investigated the execution in Velagici and that some perpetrators were punished. ‘Yes, I heard about it, they were held in prison for 18 days and were then released’, Egrlic replied. ‘If they had killed as many hens, they would have gotten more than 18 days’, the witness added.
Karadzic tried to prove that the witness was not arrested without cause. As he claimed, the witness took part in the operation to distribute weapons to the ‘extremists’ in the Kljuc municipality. Karadzic corroborated his claims with the statements Serb investigators had taken from the prisoners in Manjaca. The witness dismissed Karadzic’s allegations, noting that the statements were taken under duress. The witness said that before the conflict the Serb Territorial Defense moved all the weapons to the Serb settlement of Ribnik and then distributed them to local Serbs.
Karadzic will continue cross-examining Asim Egrlic tomorrow.
http://www.sense-agency.com/icty/crime-and-punishment.29.html?news_id=13254&cat_id=1
Thursday, 6 October 2011
Wednesday, 5 October 2011
A farce from beginning to end
Dear friends and all to whom the TRUTH is still the principle of life and ideology that will prevail above injustice, lies and unfairness which still rules today in this world under different management and institutions like ICTY.
I appeal to all of You in all your capacities to spread this article and send to others; friends, Members of Parliaments and Institutions throughout the world. Spread the truth about Croatians, Bosniaks and other non-Serbian nations, who suffers Serbian aggression and now are suffering from injustice by ICTY. DO NOT IGNORE THIS LETTER.
Michael PACK
Marvellous article here. On the author: 'Mishka Góra is a Tasmanian-based writer who worked as a humanitarian aid worker under the auspices of the United Nations on both sides of the frontlines during the 1990s conflict. She has no ethnic affiliation to any of the peoples of the former Yugoslavia .'
The trial of Generals Ante Gotovina and Mladen Markac: a farce from beginning to end.
By Mishka Góra
Posted Wednesday, 28 September 2011
As the International Criminal Tribunal for the former Yugoslavia (ICTY) wraps up almost two decades of war crimes trials, it seems political correctness and moral equivalence has triumphed over any passion for true justice. The April 15 conviction of two Croatian generals of crimes against humanity, for their part in an operation that saved tens of thousands of Bosniaks (Bosnian Muslims) from being massacred, has been followed by months of relative silence. This uncomfortable lull has belied the incredulous outrage of the Croatian people, because unlike previous convictions of men who were personally responsible for horrendous crimes such as mass murder, torture, and deportation to concentration camps, Generals Gotovina and Markac were convicted on the basis of a conspiracy theory that flew in the face of any rational appraisal of the evidence.
Currently on appeal, the trial of Generals Ante Gotovina and Mladen Markac for their role in Operation Storm (Croatia's recovery of Serb-occupied territory in 1995) was a farce from beginning to end. Concerned for the "reputation and integrity of the ICTY and international criminal justice", the International Bar Association questioned the appointment of Elizabeth Gwaunza as an ad litem judge, but to no avail. Apparently, the ICTY felt that her links to Robert Mugabe and her receipt of the gift of a farm, seized by the Zimbabwe regime from its white owners, would have no influence on her capacity to adjudicate a case dealing with crimes such as looting and ethnic cleansing. To add insult to injury, the presiding judge, Alphons Orie, began his career at the ICTY as defence counsel for Duško Tadic, a Bosnian Serb convicted of personally murdering at least seven people, deporting civilians to various camps, and torturing Bosnian Muslims at the Omarska concentration camp. In a radio interview in 2008, he called Tadic a "small" criminal who nowadays wouldn't even be tried at the Hague , unlike Generals Gotovina and Markac it seems, who (even going by the ICTY judgement) haven't personally committed any of the war crimes for which they have been found guilty.
Indeed, according to the ICTY judgement, it was not necessary to prove that Gotovina or Markac had personally committed any of the crimes with which they were charged, such as murder and deportation, as they were liable as part of a "joint criminal enterprise", a euphemism for what most people would call a conspiracy. Obviously, conspiracies do occur from time to time, but they weren't charged with conspiracy. Furthermore, when the supposed ringleader is the dead President of Croatia who can't defend himself, and an overwhelming amount of the evidence against the accused is pure speculation about his motives, we have a moral duty to be sceptical. We should be all the more so when we trawl through more than one thousand pages of verbiage masquerading as a judgement to find that the only relevant conclusion that the judges drew about a key meeting at which the alleged conspiracy was supposed to have crystallised, is that General Gotovina took a risk that his troops might not behave themselves. To quote the judges, General Gotovina was "aware" that war crimes were "possible consequences". He reconciled himself to "the possibility that these crimes could be committed" and "took the risk that these crimes would be committed".
Moreover, if the Croatian generals had beencharged with conspiracy, that would be one thing, but they haven't. They were charged with crimes against humanity (such as murder) "pursuant to the mode of liability of JCE". In other words, they were charged with specific crimes which they were alleged to have planned and instigated. However, the judgement not only failed to demonstrate the existence of a joint criminal enterprise. It also failed to recognise that an end result (absence of Serbs) did not prove the method of achieving that result (deportation) and that, likewise, the desire for an end result did not prove instigation of the means to achieve that result. Defying logic, the judgement pronounced that ethnic cleansing took place, that the permanent removal of Serb civilians from the Krajina was effected by force, despite evidence from Serbs and Croats alike that Serb civilians began leaving the Krajina before the onset of Operation Storm and that the remainder were ordered to evacuate by the Serb leadership on the first day of the Croatian military operation.
The judges furthermore seemed to be omniscient, concluding that this conspiracy existed even though testimony by eight witnesses (who actually knew and worked closely with the president) contradicted the ICTY theory, indicating that none of the accused planned to expel Serbs from Croatia , whether alone or in concert. The judges brushed aside a public announcement made by President Tudjman promising that civil rights would be maintained during and after Operation Storm and that elections for self-government would be held in the presence of international observers, making the hubristic declaration that the announcement "was not a true reflection of [his] will and intention". Never mind that Tudjman's political party was in an alliance with the Serb People's Party at the time; never mind that Tudjman was dead and unable to explain his words and actions or defend himself.
Even the US Ambassador to Croatia , Peter Galbraith, testified that he "did not believe that Tudjman was going to expel the Serbs" but thought the Serbs would leave regardless and that it would be a "side effect" of the military offensive. To counter this, the ICTY cited evidence that Tudjman and Gotovina discussed "how to provide the Serb civilians in Knin and elsewhere a way out during the military attack". Rather than giving them credit for their prescience, the judges decided this was not reconcilable with protecting civil rights. Apart from the obvious fact that it is reconcilable – the guarantee of civil rights does not obviate the desire of civilians to get out of the way of a military operation and avoid being victims of collateral damage – the ICTY glossed over crucial evidence that much of the Serb population might not have wanted to stay. Apparently, a report by the UN Secretary-General acknowledging that it was "difficult to determine the extent to which the mass exodus of the Krajina Serb population was brought about by fear of Croatian forces, as opposed to the desire not to live under Croatian authority", was deemed immaterial.
Instead, the ICTY created a catch-22 that denied the legitimacy of Croatia 's defensive war and vilified a country that had taken in half a million enemy refugees and harboured them in its best tourist resorts out of pure human decency. If the Croatian leadership hadn't considered evacuation routes, they'd have been guilty of failing to protect civilians; yet when they did consider evacuation routes, they were found guilty of ethnic cleansing. It was an attitude characteristic of UN involvement in the former Yugoslavia . Rather than risk being accused of facilitating ethnic cleansing by transporting Bosnian civilians to safety, the UN left them to fend for themselves, to walk hundreds of miles, across frontlines and minefields and forbidding mountains, to the safety of Croatia 's refugee camps on the Adriatic coast.
The court also chose not to acknowledge that Operation Storm was encouraged by the international community, regardless of the possible repercussions with regard to the displacement of civilians. Galbraith testified that he recommended "that we not take any action that would discourage Croatia from continuing with that campaign" and that many in the Clinton administration "welcomed Croatia 's actions". He further noted "I think that Operation Storm and the subsequent campaign in Bosnia was critical to arriving at the Dayton peace agreements" and that the war in Bosnia would not have ended when it did "if it were not for the Croatian army's military action." As for the details of the operation, the court held that Gotovina's attack on Knin was "unlawful", despite Galbraith's evidence that, according to his embassy staff, one of whom was an artillery officer, the shelling of Knin was "relatively brief" and "not very destructive". He also observed that it "took place in the context of an operation aimed at capturing the town" and "you have to make a distinction between, for example, what the United States might do, given the technical [capability] it has, and whether it can avoid major, you know, casualties, as opposed to a country that would be much less capable technologically." Crucially, the UN Military Observers' ninety-five reports for this period were found to be missing from the EU archives when Gotovina's defence team requested them.
Ultimately, it is difficult to escape the conclusion that the ICTY convicted Ante Gotovina and Mladen Markac on the grounds of a conspiracy theory. According to the ICTY, the President of Croatia, along with much of his leadership team, conducted Operation Storm with the express purpose of expelling Serb civilians from the Krajina. Despite no concrete proof of a plan and no proof of expulsion, the ICTY advanced a theory that disparaged the entire Croatian nation. It also demonstrated a complete lack of perspective, ironic for a court obsessed with the proportionality of the military operation and supposedly focussed on the victims of war crimes. To quote Galbraith's testimony, "the whole UNPROFOR peacekeeping mission was in danger of collapse…. NATO wasn't going to save Bihac". If Gotovina had not led Operation Storm and liberated Bihac, "the lucky ones would have been expelled, but it's likely that tens of thousands would have been murdered by Mladic". It would have been "strategically disastrous" and "the chances of achieving [peace] would have been very small".
Gotovina and Markac not only liberated Croatia , but also saved the Bosnian Muslims of Bihac from the same fate as their compatriots in Srebrenica, paving the way for peace in the Balkans. That any judge could deem this a crime against humanity is contemptible.
Mishka Góra is a Tasmanian-based writer who worked as a humanitarian aid worker under the auspices of the United Nations on both sides of the frontlines during the 1990s conflict. She has no ethnic affiliation to any of the peoples of the former Yugoslavia .
© The National Forum and contributors 1999-2011. All rights reserved.
http://www.onlineopinion.com.au/view.asp?article=12671
I appeal to all of You in all your capacities to spread this article and send to others; friends, Members of Parliaments and Institutions throughout the world. Spread the truth about Croatians, Bosniaks and other non-Serbian nations, who suffers Serbian aggression and now are suffering from injustice by ICTY. DO NOT IGNORE THIS LETTER.
Michael PACK
Marvellous article here. On the author: 'Mishka Góra is a Tasmanian-based writer who worked as a humanitarian aid worker under the auspices of the United Nations on both sides of the frontlines during the 1990s conflict. She has no ethnic affiliation to any of the peoples of the former Yugoslavia .'
The trial of Generals Ante Gotovina and Mladen Markac: a farce from beginning to end.
By Mishka Góra
Posted Wednesday, 28 September 2011
As the International Criminal Tribunal for the former Yugoslavia (ICTY) wraps up almost two decades of war crimes trials, it seems political correctness and moral equivalence has triumphed over any passion for true justice. The April 15 conviction of two Croatian generals of crimes against humanity, for their part in an operation that saved tens of thousands of Bosniaks (Bosnian Muslims) from being massacred, has been followed by months of relative silence. This uncomfortable lull has belied the incredulous outrage of the Croatian people, because unlike previous convictions of men who were personally responsible for horrendous crimes such as mass murder, torture, and deportation to concentration camps, Generals Gotovina and Markac were convicted on the basis of a conspiracy theory that flew in the face of any rational appraisal of the evidence.
Currently on appeal, the trial of Generals Ante Gotovina and Mladen Markac for their role in Operation Storm (Croatia's recovery of Serb-occupied territory in 1995) was a farce from beginning to end. Concerned for the "reputation and integrity of the ICTY and international criminal justice", the International Bar Association questioned the appointment of Elizabeth Gwaunza as an ad litem judge, but to no avail. Apparently, the ICTY felt that her links to Robert Mugabe and her receipt of the gift of a farm, seized by the Zimbabwe regime from its white owners, would have no influence on her capacity to adjudicate a case dealing with crimes such as looting and ethnic cleansing. To add insult to injury, the presiding judge, Alphons Orie, began his career at the ICTY as defence counsel for Duško Tadic, a Bosnian Serb convicted of personally murdering at least seven people, deporting civilians to various camps, and torturing Bosnian Muslims at the Omarska concentration camp. In a radio interview in 2008, he called Tadic a "small" criminal who nowadays wouldn't even be tried at the Hague , unlike Generals Gotovina and Markac it seems, who (even going by the ICTY judgement) haven't personally committed any of the war crimes for which they have been found guilty.
Indeed, according to the ICTY judgement, it was not necessary to prove that Gotovina or Markac had personally committed any of the crimes with which they were charged, such as murder and deportation, as they were liable as part of a "joint criminal enterprise", a euphemism for what most people would call a conspiracy. Obviously, conspiracies do occur from time to time, but they weren't charged with conspiracy. Furthermore, when the supposed ringleader is the dead President of Croatia who can't defend himself, and an overwhelming amount of the evidence against the accused is pure speculation about his motives, we have a moral duty to be sceptical. We should be all the more so when we trawl through more than one thousand pages of verbiage masquerading as a judgement to find that the only relevant conclusion that the judges drew about a key meeting at which the alleged conspiracy was supposed to have crystallised, is that General Gotovina took a risk that his troops might not behave themselves. To quote the judges, General Gotovina was "aware" that war crimes were "possible consequences". He reconciled himself to "the possibility that these crimes could be committed" and "took the risk that these crimes would be committed".
Moreover, if the Croatian generals had beencharged with conspiracy, that would be one thing, but they haven't. They were charged with crimes against humanity (such as murder) "pursuant to the mode of liability of JCE". In other words, they were charged with specific crimes which they were alleged to have planned and instigated. However, the judgement not only failed to demonstrate the existence of a joint criminal enterprise. It also failed to recognise that an end result (absence of Serbs) did not prove the method of achieving that result (deportation) and that, likewise, the desire for an end result did not prove instigation of the means to achieve that result. Defying logic, the judgement pronounced that ethnic cleansing took place, that the permanent removal of Serb civilians from the Krajina was effected by force, despite evidence from Serbs and Croats alike that Serb civilians began leaving the Krajina before the onset of Operation Storm and that the remainder were ordered to evacuate by the Serb leadership on the first day of the Croatian military operation.
The judges furthermore seemed to be omniscient, concluding that this conspiracy existed even though testimony by eight witnesses (who actually knew and worked closely with the president) contradicted the ICTY theory, indicating that none of the accused planned to expel Serbs from Croatia , whether alone or in concert. The judges brushed aside a public announcement made by President Tudjman promising that civil rights would be maintained during and after Operation Storm and that elections for self-government would be held in the presence of international observers, making the hubristic declaration that the announcement "was not a true reflection of [his] will and intention". Never mind that Tudjman's political party was in an alliance with the Serb People's Party at the time; never mind that Tudjman was dead and unable to explain his words and actions or defend himself.
Even the US Ambassador to Croatia , Peter Galbraith, testified that he "did not believe that Tudjman was going to expel the Serbs" but thought the Serbs would leave regardless and that it would be a "side effect" of the military offensive. To counter this, the ICTY cited evidence that Tudjman and Gotovina discussed "how to provide the Serb civilians in Knin and elsewhere a way out during the military attack". Rather than giving them credit for their prescience, the judges decided this was not reconcilable with protecting civil rights. Apart from the obvious fact that it is reconcilable – the guarantee of civil rights does not obviate the desire of civilians to get out of the way of a military operation and avoid being victims of collateral damage – the ICTY glossed over crucial evidence that much of the Serb population might not have wanted to stay. Apparently, a report by the UN Secretary-General acknowledging that it was "difficult to determine the extent to which the mass exodus of the Krajina Serb population was brought about by fear of Croatian forces, as opposed to the desire not to live under Croatian authority", was deemed immaterial.
Instead, the ICTY created a catch-22 that denied the legitimacy of Croatia 's defensive war and vilified a country that had taken in half a million enemy refugees and harboured them in its best tourist resorts out of pure human decency. If the Croatian leadership hadn't considered evacuation routes, they'd have been guilty of failing to protect civilians; yet when they did consider evacuation routes, they were found guilty of ethnic cleansing. It was an attitude characteristic of UN involvement in the former Yugoslavia . Rather than risk being accused of facilitating ethnic cleansing by transporting Bosnian civilians to safety, the UN left them to fend for themselves, to walk hundreds of miles, across frontlines and minefields and forbidding mountains, to the safety of Croatia 's refugee camps on the Adriatic coast.
The court also chose not to acknowledge that Operation Storm was encouraged by the international community, regardless of the possible repercussions with regard to the displacement of civilians. Galbraith testified that he recommended "that we not take any action that would discourage Croatia from continuing with that campaign" and that many in the Clinton administration "welcomed Croatia 's actions". He further noted "I think that Operation Storm and the subsequent campaign in Bosnia was critical to arriving at the Dayton peace agreements" and that the war in Bosnia would not have ended when it did "if it were not for the Croatian army's military action." As for the details of the operation, the court held that Gotovina's attack on Knin was "unlawful", despite Galbraith's evidence that, according to his embassy staff, one of whom was an artillery officer, the shelling of Knin was "relatively brief" and "not very destructive". He also observed that it "took place in the context of an operation aimed at capturing the town" and "you have to make a distinction between, for example, what the United States might do, given the technical [capability] it has, and whether it can avoid major, you know, casualties, as opposed to a country that would be much less capable technologically." Crucially, the UN Military Observers' ninety-five reports for this period were found to be missing from the EU archives when Gotovina's defence team requested them.
Ultimately, it is difficult to escape the conclusion that the ICTY convicted Ante Gotovina and Mladen Markac on the grounds of a conspiracy theory. According to the ICTY, the President of Croatia, along with much of his leadership team, conducted Operation Storm with the express purpose of expelling Serb civilians from the Krajina. Despite no concrete proof of a plan and no proof of expulsion, the ICTY advanced a theory that disparaged the entire Croatian nation. It also demonstrated a complete lack of perspective, ironic for a court obsessed with the proportionality of the military operation and supposedly focussed on the victims of war crimes. To quote Galbraith's testimony, "the whole UNPROFOR peacekeeping mission was in danger of collapse…. NATO wasn't going to save Bihac". If Gotovina had not led Operation Storm and liberated Bihac, "the lucky ones would have been expelled, but it's likely that tens of thousands would have been murdered by Mladic". It would have been "strategically disastrous" and "the chances of achieving [peace] would have been very small".
Gotovina and Markac not only liberated Croatia , but also saved the Bosnian Muslims of Bihac from the same fate as their compatriots in Srebrenica, paving the way for peace in the Balkans. That any judge could deem this a crime against humanity is contemptible.
Mishka Góra is a Tasmanian-based writer who worked as a humanitarian aid worker under the auspices of the United Nations on both sides of the frontlines during the 1990s conflict. She has no ethnic affiliation to any of the peoples of the former Yugoslavia .
© The National Forum and contributors 1999-2011. All rights reserved.
http://www.onlineopinion.com.au/view.asp?article=12671
DEFENSE REPLIES TO PRESECUTOR’S REPLY
DEFENSE REPLIES TO PRESECUTOR’S REPLY
The defense claims that in its response to Gotovina’s appellate brief the prosecution didn’t offer any arguments that might convince the Appeals chamber not to invalidate the judgment sentencing the Croatian general to 24 years in prison
General Ante Gotovina’s defense believes their Appeal should be adopted. They claim the prosecution didn’t offer any arguments in its reply which could contest the claims in Defense Appeals Brief. General Gotovina was sentenced to 24 years in prison in April this year, as a participant in the joint criminal enterprise (JCE) aimed at expelling Serbs from Krajina during and after Operation „Storm“ in 1995. Defense urges the Appeals Chamber to invalidate the findings in the judgment and „acquit“ former commander of Split Military District „of all charges“.
Defense contends that the prosecution’s argument on the existence of a joint criminal enterprise „rests on the bootstrapping of four individually unproven arguments, each used to prove the existence of the other“. These are the Brioni meeting, indiscriminate shelling, crimes of Croatian Army and Police and measures implemented by the Croatian government to prevent the Serb refugees from returning to Krajina after Operation „Storm“.
In its reply, Gotovina’s defense states that the prosecution „never cites“ the transcript of Brioni meeting from 31 July 1995 in support of its claims. According to the prosecution, participants of that meeting „explicitly refer[ed] to forcing the flight of the Serb civilian population out of the Krajina through the unlawful attack”. The defense contends that the prosecution „concedes“ there was no “formal decision” taken at Brioni to expel Serbs, and no “single statement” at the Brioni meeting would indicate that there was intent to target Serb civilians with artillery.
The defense also contests the prosecution’s argument that the judgment properly concluded that Gotovina’s aim was „to treat entire towns as targets“. According to judgment, this was done through the order issued on 2 August 1995 in which Gotovina demands that ‘Knin, Benkovac, Obrovac and Gracac be put under artillery fire’. Defense states that the Tribunal’s Conference and Languages Services Section (CLSS ) erred when they translated word „udari“ as „fire“, instead of translating it as “strikes”. That mistake in the translation drastically changed the situation, because the word „udari“ indicates that artillery attacks were aimed at military targets.According to the defense, it is clear from the later orders issued by Gotovina and Commander of the HV artillery during Operation Storm Marko Rajcic. The defense claims that those orders clearly mark military targets which should be attacked in the above-mentioned towns. Finally, the defense believes there is “no finding or evidence of direct targeting of civilians and no basis to infer an indiscriminate attack“. As a result „the entire Judgment collapses“, the defense claims.
The Chamber, the defense notes, specifically found that the common objective of JCE „did not amount to, or involve, the commission of the natural and foreseeable crimes“. The prosecution at the same time claims that crimes were planned. If these crimes were intended they would have formed part of the common JCE objective. The Chamber „found they did not“, defense claims.
The prosecution claims that Serb refugees were prevented from returning to Krajina. “Prosecution does not dispute that if the Krajina Serbs were not deported from the four towns, then the demographic policy post-Storm was not unlawful”, defense claims.
Gotovina „was not a member of, and did not significantly contribute to, a JCE“, the defense states. That is, according to them, clearly confirmed in the parts of their Appeals Brief, allegedly unchallenged by the prosecution. The Appeals brief states:numerous times Gotovina exclusively „ordered to target military objectives“; “the Chamber made no finding of any civilian deaths or injuries from shelling“; „every subsequent investigation by impartial observers and human rights organizations failed to uncover any evidence of unlawful shelling“. Finally, the defense also stated that general Gotovina took „all steps“ before and after Operation Storm „to prevent/punish crime“ against civilians and their property.
http://www.sense-agency.com/icty/defense-replies-to-presecutor%E2%80%99s-reply.29.html?news_id=13246&cat_id=1
The defense claims that in its response to Gotovina’s appellate brief the prosecution didn’t offer any arguments that might convince the Appeals chamber not to invalidate the judgment sentencing the Croatian general to 24 years in prison
General Ante Gotovina’s defense believes their Appeal should be adopted. They claim the prosecution didn’t offer any arguments in its reply which could contest the claims in Defense Appeals Brief. General Gotovina was sentenced to 24 years in prison in April this year, as a participant in the joint criminal enterprise (JCE) aimed at expelling Serbs from Krajina during and after Operation „Storm“ in 1995. Defense urges the Appeals Chamber to invalidate the findings in the judgment and „acquit“ former commander of Split Military District „of all charges“.
Defense contends that the prosecution’s argument on the existence of a joint criminal enterprise „rests on the bootstrapping of four individually unproven arguments, each used to prove the existence of the other“. These are the Brioni meeting, indiscriminate shelling, crimes of Croatian Army and Police and measures implemented by the Croatian government to prevent the Serb refugees from returning to Krajina after Operation „Storm“.
In its reply, Gotovina’s defense states that the prosecution „never cites“ the transcript of Brioni meeting from 31 July 1995 in support of its claims. According to the prosecution, participants of that meeting „explicitly refer[ed] to forcing the flight of the Serb civilian population out of the Krajina through the unlawful attack”. The defense contends that the prosecution „concedes“ there was no “formal decision” taken at Brioni to expel Serbs, and no “single statement” at the Brioni meeting would indicate that there was intent to target Serb civilians with artillery.
The defense also contests the prosecution’s argument that the judgment properly concluded that Gotovina’s aim was „to treat entire towns as targets“. According to judgment, this was done through the order issued on 2 August 1995 in which Gotovina demands that ‘Knin, Benkovac, Obrovac and Gracac be put under artillery fire’. Defense states that the Tribunal’s Conference and Languages Services Section (CLSS ) erred when they translated word „udari“ as „fire“, instead of translating it as “strikes”. That mistake in the translation drastically changed the situation, because the word „udari“ indicates that artillery attacks were aimed at military targets.According to the defense, it is clear from the later orders issued by Gotovina and Commander of the HV artillery during Operation Storm Marko Rajcic. The defense claims that those orders clearly mark military targets which should be attacked in the above-mentioned towns. Finally, the defense believes there is “no finding or evidence of direct targeting of civilians and no basis to infer an indiscriminate attack“. As a result „the entire Judgment collapses“, the defense claims.
The Chamber, the defense notes, specifically found that the common objective of JCE „did not amount to, or involve, the commission of the natural and foreseeable crimes“. The prosecution at the same time claims that crimes were planned. If these crimes were intended they would have formed part of the common JCE objective. The Chamber „found they did not“, defense claims.
The prosecution claims that Serb refugees were prevented from returning to Krajina. “Prosecution does not dispute that if the Krajina Serbs were not deported from the four towns, then the demographic policy post-Storm was not unlawful”, defense claims.
Gotovina „was not a member of, and did not significantly contribute to, a JCE“, the defense states. That is, according to them, clearly confirmed in the parts of their Appeals Brief, allegedly unchallenged by the prosecution. The Appeals brief states:numerous times Gotovina exclusively „ordered to target military objectives“; “the Chamber made no finding of any civilian deaths or injuries from shelling“; „every subsequent investigation by impartial observers and human rights organizations failed to uncover any evidence of unlawful shelling“. Finally, the defense also stated that general Gotovina took „all steps“ before and after Operation Storm „to prevent/punish crime“ against civilians and their property.
http://www.sense-agency.com/icty/defense-replies-to-presecutor%E2%80%99s-reply.29.html?news_id=13246&cat_id=1
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 www.croatia.org/crown
Saturday, 7 May 2011
Croatia and the ICTY: Politics or Justice? – A British Perspective - Robin Harris, PhD
CROATIA AND THE ICTY: POLITICS OR JUSTICE? – A BRITISH PERSPECTIVE
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.
Robin Harris: CROATIA AND THE ICTY: POLITICS OR JUSTICE? – A BRITISH PERSPECTIVE
CROATIAN GENERALS ARE NOT GUILTY
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.
Robin Harris: CROATIA AND THE ICTY: POLITICS OR JUSTICE? – A BRITISH PERSPECTIVE
CROATIAN GENERALS ARE NOT GUILTY
Saturday, 30 April 2011
ICTY – How the Prosecutor Tampered with the Truth
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.
ICTY – HOW THE PROSECUTOR TAMPERED WITH THE TRUTH
Visnja Staresina
CROATIAN GENERALS ARE NOT GUILTY
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.
ICTY – HOW THE PROSECUTOR TAMPERED WITH THE TRUTH
Visnja Staresina
CROATIAN GENERALS ARE NOT GUILTY
Historical and Political Aspects of the Activity of The Hague Tribunal
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.
Josip Jurcevic: HISTORICAL AND POLITICAL ASPECTS OF THE ACTIVITY OF THE HAGUE TRIBUNAL
CROATIAN GENERALS ARE NOT GUILTY
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.
Josip Jurcevic: HISTORICAL AND POLITICAL ASPECTS OF THE ACTIVITY OF THE HAGUE TRIBUNAL
CROATIAN GENERALS ARE NOT GUILTY
Friday, 29 April 2011
Paradoxes and absurdities of the Hague indictment
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.
Nedjeljko Mihanovic: PARADOXES AND ABSURDITIES OF THE HAGUE INDICTMENT
CROATIAN GENERALS ARE NOT GUILTY
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.
Nedjeljko Mihanovic: PARADOXES AND ABSURDITIES OF THE HAGUE INDICTMENT
CROATIAN GENERALS ARE NOT GUILTY
»Joint Criminal Enterprise« – What is that?
»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«.
CROATIAN GENERALS ARE NOT GUILTY
Milan Vukovic: »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«.
CROATIAN GENERALS ARE NOT GUILTY
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
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
Monday, 21 March 2011
Publication of book Otto Piene by Ante Glibota
Delight Edition announces the world premier presentation of a major, comprehensive monograph dedicated to one of the most important contemporary artists, Otto Piene, by the art and architecture historian and curator Ante Glibota at the Rathaus der Landeshauptstadt Düsseldorf (Düsseldorf City Hall), Marktplatz 2, 40213 Düsseldorf (Tel. 0211 89-9), in the presence of the Lord Mayor of the City of Düsseldorf, Mr. Dirk Elbers, on March 29, 2011 at 15:00 h. The artist and the author will both be present.
THE BOOK
The publication of the monograph follows twenty-three years of intensive research on the work and creative adventures of Otto Piene, one of the worldʼs leading avant-garde multimedia artists, who together with Heinz Mack founded Group ZERO in Düsseldorf in 1957.
For twenty-five years he directed the prestigious Center for Advanced Visual Studies (CAVS) at the Massachusetts Institute of Technology (MIT) in Cambridge, MA, USA.
Writing, editing and producing this volume has been an enormous challenge because of the complexity of Otto Pieneʼs work and career, and because of the global importance and radiance of his unique artistic approach, ideas and vision that have shaped the international art world over the past fifty years. He has, as few others of his contemporaries have, played a vital and critical role in the development and dissemination of an architecture of the essential themes engendered by new forms of visual arts, multi-media arts and experimental art. His enlightening ideas were promulgated on both sides of the Atlantic, making Otto Piene an indispensable member of the creative and artistic avant-garde of our time.
The work that preceded the bookʼs publication has left a powerful imprint on the two main protagonists and their shared sense of ʻadventureʼ, even as they remained vigilant as to the facts and to the importance of the motives that guided them. In addition to the texts of Ante Glibota and Otto Piene, the volume contains thirty-seven essays specifically written for this publication by internationally renowned art historians, art theorists and artists, which makes this volume a unique entity in the realm of art books.
1 The book is bound in a hard cover with a pellicular dust jacket.
2 It contains 756 pages, approximately 3000 illustrations. The text is bilingual in English and German.
3 It is printed on the finest Fedrigoni Kunstdruck matt paper of 150 gr weight.
4 The size of the book is 30x30cm; it has a thickness of 6 cm and weighs 5.7 kg.5 It is published by Delight Edition Ltd., Paris, and was printed by Grafiche Tintoretto in Treviso, Italy.
6 The price of the book is € 200 plus shipping.
THE ARTIST OTTO PIENE
A multi-faceted artist with numerous creative interests, Otto Piene is not only an essential creator of our times, and one of its most inventive, but he is, without a doubt, one of the most sensitive and attentive observers of the changes occurring between mankind and nature. He carries within himself a structured thought process that in its broad dimension and its philosophical, as well as aesthetical depth enables us to penetrate deep inside the mysteries of art, poetry and life itself.
Otto Piene was born in Bad Laasphe, Westphalia, on April 18th, 1928 and grew up in Lübbecke. He comes from a family of several generations of Protestant ministers. His grandfather had a wide range of interests, including philosophy and ancient mathematics, and authored numerous books.
After returning from military and POW service, Otto Piene in 1948 enrolled in the private Munich art school Blocherer Schule and later in the Hochschule der Bildenden Künste in Munich in 1949. In 1950 he continued his studies at the Academy of Fine Arts in Düsseldorf (Staatliche Kunstakademie) and Cologne University (Albertus Magnus Universität), where he completed his state examination in philosophy with distinction in 1957. In 1955 he established his first studio at Gladbacherstrasse 69 and founded, together with Heinz Mack, the Group ZERO. In 1964 he moved to the United States and in 1968 became the first international Fellow at the Center for Advanced Visual Studies (CAVS) of the Massachusetts Institute of Technology (MIT) in Cambridge, MA, at the invitation of György Kepes. He succeeded Kepes as Professor and Director of CAVS in 1974 and became MIT Professor Emeritus and CAVS Director Emeritus in 1994.
He has presented more then 130 solo exhibitions and participated in hundreds of group exhibitions. He has staged well over 100 Light Ballet performances and some 100 Sky Events. His work is included in more than 140 of the worldʼs finest museums, including the Museum of Modern Art (MOMA) and the Metropolitan Museum in New York City.
Otto Piene and his wife Elizabeth Goldring Piene, live and work at their farm in Groton, Massachusetts. They also have studios in Boston, at MIT, Berlin and Düsseldorf.
THE AUTHOR ANTE GLIBOTA
The art and architectural historian, author and curator, was born in Slivno, Croatia.
He studied at the University of Zagreb and Sorbonne University in Paris and has lived in Paris since 1973, where he has maintained close bonds with artistic and intellectual circles all over the world. In1978 he started to work for the Paris Art Center, active in the fields of experimental film, theatre, modern dance and the fine arts. In 1979 he was appointed artistic director and later, in 1982, director general of the Paris Art Center, a position he held until 1994. He was the commissioner and editor for the event “Olympiad of Arts” that took place in Seoul (South Korea) on the occasion of the 1988 Olympic Games and led to the creation of the largest open air sculpture park in the world. More recently, he was appointed curator and editor of “Art and Sport”, an exhibition organized by Adidas and the IOC for the Olympic Games 2008 in Beijing. As author and publisher of over 200 books and catalogues, and curator of more than 400 exhibitions devoted to contemporary art, architecture and literature, Ante Glibota is a Titular Member of the European Academy of Sciences, Arts and Humanities and an Honorary Member of the American Institute of Architects. In 2004, the China International Culture Exchange Center (CICEC) in Beijing appointed him to a five-year term
as Foreign Counselor for International Cultural Exchanges. Since 2010 he serves as VicePresident and Curator-in-Chief of the Museum of Art and Urbanity in Shanghai. Ante Glibota lives in Paris, France and Shanghai, China
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