Reflecting on the Gotovina case, a month later
Last month, between the 16th and 17th, I got quite emotional, even though I prefer to do things as logically as possible, which is also how I wish, as a rule, to write my articles on this blog. I described the reversal of Markač and Gotovina’s convictions as a “disgraceful acquittal”, an “outrage” and an “insult to all the Serbs from the fallen Krajina, especially to those from the areas affected by ‘Operation Storm’”. I even went as far as to call it a “mockery of justice”. Perhaps these words were too strong, come to think about it. But perhaps, from a Krajina Serb perspective, it was appropriate at least at that moment in time. But like I say above, I prefer logic over emotion, and since that Friday morning, I’ve had time to consider and re-consider this issue with a clearer head, my feelings aside.
After careful consideration, I acknowledge that the Brijuni transcripts, which even I believed “proved” intent on the part of the Croatian state to ethnically cleanse Serbs, actually do not offer any concrete evidence of any ‘joint criminal enterprise’ (JCE) at the very least on the part of the Croatian military leadership, Gotovina included, with the intent to commit crimes against the Serb population of the then Republika Srpska Krajina (RSK) through ‘Operation Oluja’. Indeed, with regards to the subsequent exodus of Serbs, my relatives among those fleeing to Serbia, I came to the conclusion that just because Gotovina had predicted a greater exodus of Serbs following future military action by his army, as seen in those transcripts, that doesn’t mean he intended for such to happen. I personally thought that his foreknowledge of events made him guilty, but I now see that this line of reasoning is flawed on my part. I now realise that just because you know something is going to happen, don’t mean you want it to; there is a huge difference between predicting and intending, and that’s a big lesson to me.
(In fact, it was with the Brijuni transcripts that I, personally, had doubts about Markač and Gotovina’s convictions; there was a part of me inside that told me that Gotovina’s words in those transcripts did not constitute strong enough evidence against him or his colleague, with which to prove intent on their part to ethnically cleanse Serbs from the then RSK.)
However, what I find pretty strange, being a layman when it comes to artillery fire, is how the 200 metre margin of error (that whatever projectile landed outside that radius constitutes a criminal act, and thus not a legitimate military target) could’ve been designated the basis of any JCE in the first place! Even I accept that the imposition of 200m is rather arbitrary (why 200m; why not 100, or 20 or 10?). This margin of error was applied when examining the artillery fire upon towns like my hometown Gračac, Benkovac, Obrovac and Knin; the Trial Chamber established that the shelling “constituted an indiscriminate attack on these towns and an unlawful attack on civilians and civilian objects” on precisely that margin of error. However, since they rejected this standard, surely it’s worth asking why the Appeals Chamber did not proceed to consider a correct one; was it not allowed to do so, or was there perhaps no point to doing so?
As it turns out, Gotovina and his colleagues cannot be held legally responsible for the burning, looting and usurpation of Serb property in the fallen Krajina, as no evidence exists that proves either of them had the intent to achieve anything of the sort through ‘Operation Oluja’. The responsibility for burning Serb property lies with individual Croatian military personnel, the responsibility for looting Serb property lies with individual Croatian civilians (the extent to which Croatian police aided and abetted this needs to be clarified), while the responsibility for usurping Serb property lies with local councils and in turn the Croatian state.
However, a couple of Serbian legal experts have questioned why Gotovina and Markač were not handed lesser sentences; perhaps that might’ve been more appropriate than a complete vindication (see here in Serbian and here in English). And indeed, the evidence that was used, in its totality, to convict the two generals was re-considered in isolation from each other by the Appeals Chamber. I’m no legal expert, so I certainly don’t know which legal process should apply in such a case as this, nor shall I recommend any!
Nevertheless, what is most important for us Serbs from those areas of Croatia that were part of the short-lived RSK affected by ‘Oluja’, is that the acquittal does not dispute the heinous crimes committed by individual Croatian soldiers in various localities during and after that operation. Those crimes are still acknowledged, but the Appeals Chamber concluded that Gotovina and his colleague Markač were not responsible for any of them. This means that the real perpetrators are still walking free, and the families of those Serb victims still have no justice, still on square one. And I doubt very much that, without the political will of Zagreb, we will see all the perpetrators of crimes against Serbs, towards the end of the war, during it and prior to the outbreak, get prosecuted any time soon.
And I agree that courts — ICTY or any other — should not pander to public opinion outside of court, but solely focus on meting out justice on behalf of the victims of all sorts of crime. However, I do wonder what kind of precedent this verdict sets for future cases, regarding wars between state authority and rebel groups, and how the reasoning of this verdict will influence judges and juries. Like I say above, I don’t claim to be a legal expert in any shape or form, but what about cases in retrospect, for instance during WW2; could Gotovina’s acquittal influence how we view the actions of various warring sides in the past? Also, will this vindication help in any way to undermine the impunity of states and various régimes?
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Of course, even though the ICTY should not be concerned with public opinion when making legal decisions, I can’t help but notice, as I have done so many times before, that at the end of the day, they usually do have an impact on public opinion in the Balkans and among diaspora populations, both in real life and online. And this acquittal is no exception. For Croats, it is not only a vindication of the two generals, it’s a vindication of their entire war effort, and in turn, perhaps exaggerated, a vindication of their nation, assuming that the original conviction condemned the whole nation with those two! While for Serbs, it reaffirms the alleged “anti-Serb” bias of the ICTY, “proving” that Serb victims don’t matter to outsiders, and another reminder of how Serbs should never trust the West! Any Croat or Serb, who dares to challenge these conclusions offered by “patriotic” Croats or Serbs, is deemed “naïve” at best, or branded a “traitor” at worst!
This brings me to the issue of emotional blackmail, a cynical ploy used by nationalists in the former Yugoslavia to silence dissent within their beloved nations. Let me explain how this works: an anti-Hague, anti-Croat Serb nationalist from the fallen Krajina claims how no Serb should be sent either to the ICTY, nor should any Serb be extradited to the “Ustasha” state, i.e. Croatia, to face war crimes charges there, and how Serbs like him fought bravely for our people and for everything Serbian! However, if I, as a Serb from a part of Croatia that was also part of the short-lived RSK (and as you know, I am one), raised my hand and declared that Croatian Serb war crimes suspects should be put on trial, tried fairly, and if proven guilty, should be sent down for their crimes against Croats and other non-Serbs during the war, I would be not only branded a “traitor”, I would not only be accused of speaking against and “spitting” on my people and everything Serbian (!), but also “spitting” on all Serb victims of Croat war crimes as well! Therefore, to avoid this unpleasantness, I just have to keep quiet, and thus silently consent to them doing whatever they think will “save” our people from God knows what! I strongly believe that this emotional blackmail, especially used by advocates and proponents of Serb and Croat nationalism, helps prevent justice from being served to any victim, and leaves people from all sides in the Balkan wars without justice in the long run.
Also, when it comes to the Croatian war, I've noticed more times than I care to remember this absolutistic condemnation by the Croatian media and by Croatian politicians of any equation, whether blatant or subtle, of “aggressors” with “victims”. It’s because their national narrative goes like this: Croats see themselves as ‘defenders’, who were fighting for their independent state against Serbian ‘aggression’ and ‘occupation’ of their territory, but see local Serbs as ‘rebels’ against the Croatian state, and Serbia or the (Socialist) Federal Republic of Yugoslavia as the ‘aggressor’, whose army, then the fourth strongest in the world, trampled upon Croatia’s sovereignty.
First of all, I do NOT deny that the Federal Republic of Yugoslavia was deeply involved in the Croatian war, as that is an irrefutable fact, examples of which include the JNA’s infamous attacks on Vukovar and Dubrovnik, the first one being the most devastating of the two. And neither do I deny that Croats and other non-Serbs were persecuted by the régime of the late convict Milan Babić; his government and the forces under his namesake and fellow convict Martić showed no regard for the rights of ethnic minorities within the then RSK, and as far as I’m concerned, they were rightfully convicted at the Hague.
My problem is with the absolutistic nature of this condemnation of equating “aggressors” with “victims”, which I think can in a paradoxical way lead to precisely the very equation it vociferously condemns! This is what I mean: on the one hand, all Serbs from the fallen Krajina, and even other parts of Croatia, are by default “aggressors”, regardless of whether they were civilians during the war or whether they were themselves victims in any way; while on the other hand, all Croats, regardless of whether they were soldiers or whether they themselves caused any suffering to anyone, are automatically deemed “victims”! Here’s an example of this in a comment dated 16/11/2012, 13:13. Do you see how ironic and yet perverse this is? This absolutism leads to the irrational conclusion whereby Serb civilian victims are equated with Serb war criminals, while Croat war criminals are equated with Croat civilian victims!
As you can see, assuming you understood me well, I don’t wish to equate “aggressors” with “victims/defenders” either. All I wish for is that all those, who’ve suffered some form or some amount of injustice during the ‘90s, to receive at least some justice, be it via convictions, restitution or compensation or even a combination of these. Of course, no number of legal proceedings will ever bring back lost loved ones. But if only those responsible for such deaths faced justice for what they did, then at least we could say that some justice has been served.
Personally, what I resent the most is how we get lost in talk of conflicting territorial claims and worst of all let nationalist passion take over, thus losing sight of inalienable human rights, which were so blatantly trampled upon by participants of both sides against each other. That’s not to say that both were at it at the same level, or that they both had the same intentions. I believe justice should take into account all the relevant details, especially the ones others may miss through mere oblivion or with intent. Justice should never appease any government, any ideology and certainly not anyone’s sense of vengeance, but hold true to the facts and to reason. And I don’t think you need to be a legal expert to understand that!
So do I still consider last month’s acquittal at the Hague a “disgraceful acquittal”, an “outrage” and an “insult to all the Serbs from the fallen Krajina…”, and most importantly a “mockery of justice”? Well, I was upset by this vindication initially — not to the point of tears, hell no! — but somehow disturbed. I kept thinking of how to reason this decision with fellow Serbs and Croats; I was engaged in an internal dialogue trying to figure this all out. To be honest, that’s a bad habit of mine, but I suppose that’s what leads me to write articles like this one, examining and weighing up the finer details! However, I do concede that I lack the qualifications to brand any verdict a “mockery of justice” as an expert could; I am not qualified to use that term in any case and I regret using it in my previous article.
I’ll end this post with what I sincerely believe is right: I don’t want revenge; I just want justice for all victims. I want innocence to be highly regarded, and impunity to be completely condemned. But in a world of state authority and standing armies, I think this will always be compromised in one way or another.
