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For those of us who fervently hope that justice will prevail in the wake of Monday’s ICTY Appeals hearing of the cases of Generals Ante Gotovina and Mladen Markač, it would do us well to remember that twenty-one years of history suggest it will not.

As I have discussed previously in my Online Opinion article and interview with Večernji List’s Jadranka Jureško-Kero (English translation), the original trial judgement was farcical, and since then the Appeals Chamber has rejected an amicus curiae submission of twelve American, British, and Canadian experts with the most impressive of credentials.  (Ironically, their submission directly addressed the key topic of discussion in this case, the allegedly illegal artillery attacks on Knin, and in an unprecedented request on April 24 the Chamber suggested that all parties address this matter at the hearing.)  This leaves the pessimist doubtful of the chances that the original verdict may be overturned, but gives hope to the optimist that after such a blatant miscarriage justice a new set of judges will surely see sense and exercise real jurisprudence.

We do not, however, live in a just world.  In a just world, the valiant defenders of the beautiful city of Vukovar would not have been abandoned by the West to be slaughtered by one of the world’s largest armies.  We would not have stood by while concentration camps were set up in the middle of Europe after decades of us promising ‘never again’.  In a just world, the UN would have sent troops to break the sieges of Sarajevo and Bihać, instead of ‘peacekeepers’ to monitor the use of civilians for target practice by Serb forces.  The UN would have called in air strikes on those who dared to shell the UNESCO World Heritage Site of Dubrovnik, and they would not have watched as the menfolk of Srebrenica were rounded up and slaughtered under their very noses.  And, in a just world, when Croatia launched a military campaign to recover one-third of its territory from foreign occupation, the West would have assisted in every way it could, instead of condemning the operation before it began.

To be fair, the international community responded to some of these horrors of inhumanity by creating the ICTY in 1993 at the height of the war, and to this day the ICTY claims to bring “war criminals to justice” and “justice to victims”.  In the fairy-tale world of the ICTY, “those suspected of bearing the greatest responsibility for atrocities” are supposed to be “called to account”, and guilt is supposed to be “individualised, protecting entire communities from being labelled as ‘collectively responsible’”.  In complete contradiction of this, however, in a verdict that implicated an entire nation and convicted two of its generals for the alleged crimes of its unidentified soldiers, the duplicity of the ICTY’s raison d’être has become nauseatingly conspicuous.  Whether the Appeals Chamber can overcome such a precedent will only be seen in the months to come.

Monday’s hearing by the Appeals Chamber did not, however, signal any substantive change in the conduct of the case.  For an Australian, who takes it for granted that twelve ordinary men and women are quite capable of comprehending the most fundamental aspects of law and justice, the cases of Gotovina and Markač continue to bamboozle the observer.  It does not take a great intellect or an education in law to understand that criminality requires intent, and the strong focus on the so-called ‘200 metre rule’  – that any shells falling further than 200 metres from a military target are deemed to have been aimed at civilians – only served to emphasise that a guilty verdict was only possible via a flawed interpretation of the most elementary concepts in law.  Indeed, an Emory Law School round table of operational law experts last November specifically discussed the Gotovina judgement and the “longer-term detrimental effects that the faulty application of the law will likely cause”.  It noted that the ‘200 metre rule’ was adopted “without explanation” and that the trial chamber then “inferred the intent to unlawfully attack civilians… without further explanation or analysis”.  This was echoed on Monday by Gotovina’s lawyers, Luka Misetic and Gregory Kehoe, who claimed that the ‘200 metre rule’ was used “arbitrarily” to fill “huge gaps” in the prosecution case, a case that had failed in its burden of proof.

This departure from the most elementary principles of law and justice was not isolated, of course.  My article of last September highlighted just a few of the most glaring aberrations in the judgement, such as the judges using what they thought a dead man (who could not answer their accusations) to mean, even though it was directly contradicted by what he said publicly when he was alive, to convict someone else of a crime that never took place. Such irrationalities not only suggest that the generals should not have been indicted in the first instance, but also point to an incapacity to exercise conscience in an intelligible fashion.  It points to a failure of moral reasoning.  The judges claim to have applied the standard of “beyond a reasonable doubt” in this trial, they claim to have presumed the accused to be innocent, but what person of sound moral reasoning decides that their speculation as to what another man (not the accused) may have meant in a private conversation outweighs the indisputable evidence that he publicly said the exact opposite?  Reasonable doubt is said to have its origins in ensuring that those who convict a criminal can satisfy their consciences that they have not condemned an innocent man. It seems at least three judges at the ICTY have neglected this fundamental principle, and it remains to be seen whether the judges of the Appeals Chamber will remedy the situation.

By the end of Monday’s appeal hearing, focus had turned to the other key bone of contention, the idea that there was a joint criminal enterprise to ethnically-cleanse Serbs from the Krajina during Operation Storm.  Even though this was directly contradicted by the evacuation order issued by the Serb leadership, let us for one moment assume the three original judges were unable to comprehend or admit that Croatia is not responsible for the decisions made by the Serb leadership. The court actually mentioned in its original judgement that even the UN Secretary-General found it “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”. It furthermore heard from Mile Mrkšić, the Commander in Chief of the Serb military in the Krajina, that despite orders to remain many civilians had already started to leave the Krajina in July, before Operation Storm had even begun.  Indeed, “Novaković [Mrkšić ‘s assistant] confirmed that, prior to Operation Storm, the RSK faced a serious problem of people leaving the RSK territory”.

Any basic understanding of the conflict would suggest that a Serb population that had supported the separatist unrecognised rebel Republic of the Serb Krajina (RSK) would not have wished to stay and live under Croatian authority, but even if they left out of fear, this does not add up to ethnic cleansing. I am afraid of spiders, even ones that aren’t poisonous and too small to bite me, but spiders are not responsible for my fear, and they are not responsible when I flee them. My fear of them does not turn a spider sitting in its web into an aggressive predator bent on killing me. My fear is irrational, and even if the spider did want to kill me desire is not a crime. We are human beings, not robots, and we have a wide range of emotions, some rational some irrational, but we are expected to control our impulses, and that is why we punish criminal acts, not thoughts, and do not seek to make windows into men’s souls.

However, the ICTY has departed from this fundamental principle, making criminals of soldiers for creating “an environment where there is no choice but to leave”.  They have made a crime of legitimate warfare, for even the most technologically-advanced and well-controlled military action is a fearsome spectacle.  To make it even more difficult for the military, they have added that “[d]isplacement of persons carried out pursuant to an agreement among political or military leaders, or under the auspices of the ICRC or another neutral organization, does not necessarily make it voluntary”. This means that even the most humane evacuation can be labelled a war crime.

Obviously, it all depends on intent, or at least that is what any sensible person would conclude.  After all, if you kill without intent, it isn’t murder – it’s manslaughter or an accident. Even if you should have realised there was a risk, negligence may be added as a crime, but you are not charged with murder.  So, at the end of the day, the crux of the issue isn’t what happened but whether the accused intended it to happen. Generals Gotovina and Markač have been convicted of murder, and it is this conviction that is under appeal, but in order to be guilty of murder there must be an element of intent, whether it is called “premeditation” or “malice aforethought” or “depraved heart”. Some may ask whether perhaps the generals ought have been charged with failing to exercise their “command responsibility”, but they were not – they were charged with and found guilty of murder. The ICTY never established intent or any causal link between Operation Storm and individual murders because none existed.  Indeed, they admitted as much when they stated “the common objective did not amount to, or involve, the commission of the crimes”.

Let me reiterate that. Generals Gotovina and Markač were convicted of murder even though they did not commission the crime.  It was thought sufficient that they were aware that murder was a “possible consequence” of their military operation.  They were not charged with failing to exercise sufficient control of their troops; they were charged with murder. The way the ICTY was able to do this was by making the notion of a “joint criminal enterprise” a “mode of liability”, so that someone can be convicted of something they didn’t actually do. It means that the act of conspiring to murder is no longer the crime; instead, murder is the crime and the person who actually pulls the trigger is merely a tool. This is appalling from so many different angles. The diminishment of responsibility of the actual murderer is just the beginning. Instigation or commission of the criminal act is no longer required.  Nor is knowledge of an actual crime, merely awareness of the possibility. Ultimately, the use of JCE as a form of liability means that anyone in charge of soldiers, from the commanders-in chief of the armed forces right down through the ranks, can be charged with the crimes committed by a “loose cannon” or “bad apple”.  Entire military operations can be labelled as war crimes by civilian judges who have outrageously unrealistic expectations as to the conduct of war. Even the most rigorous adherence to the principles of jus ad bellum and jus in bello can fall under the umbrella of a war crime committed via the mode of liability of “joint criminal enterprise”.

Some may think this is a quibble about terminology, but the entire system of justice employed by the International Criminal Court is unacceptably flawed in the reckoning of those committed to due process, and the Gotovina et al. verdict has vindicated the refusal of countries like the United States and Israel to become members.  Indeed, verdicts such as this one set precedents that can have far-reaching repercussions.  In September, Serb NGOs commenced legal proceedings against a US private military company for being an accomplice to genocide. Without the ICTY’s ruling that Operation Storm was the means of genocide, this would not be possible.  In any event, it should be noted that there is no evidence to suggest that soldiers of the Croatian Army, (some of them trained by this US company), were even responsible for many of the murder cases cited. UN military observers testified that looting was outside of the parameters of the military operation, and that even Serb victims had pointed out that the perpetrators didn’t seem to be “real soldiers”.  Additionally, Judge Ķinis issued a dissenting opinion, disputing that three alleged perpetrators in seven cases of murder were military personnel at all, and he also disagreed with the judgement’s findings regarding alleged destruction in Gračac.

Even assuming there were some excesses of war committed by General Gotovina’s subordinates, this does not add up to genocide and it certainly does not support any theory that Operation Storm was the realisation of a conspiracy to ethnically cleanse Serbs from the Krajina.  None of it makes sense, especially in the context of testimony by a UN commander that General Gotovina expected discipline and good behaviour of his soldiers.  When he heard reports of looting, Gotovina was said to have been “very angry with the behaviour of some of the Croatian soldiers and accused the commanders of not having enough control over their men, which was shameful”.  A general who finds looting shameful and demands that his commanders exert better control over their men is not the sort of man to countenance, let alone conspire to commit, “murder” and “inhumane acts”.  As General Gotovina reminded us in his closing statement on Monday evening, he cannot be held responsible for what others did or failed to do when he was in another country.  If only the court would judge him by his actions, rather than speculating as to the existence of a conspiracy and rendering it into a form of liability, the Appeals Chamber would find him innocent of the charges brought against him.

It could be many months before the outcome of Monday’s appeal is known, and in the meantime those of us committed to the principles of justice can only hope and pray that this new set of judges will have the clarity of perception (and freedom from interference) to recognise that not once in the 1377 pages of the original Gotovina et al. Judgement did the ICTY show that Gotovina or any of his partners in the so-called joint criminal enterprise either committed or personally instigated the crimes for which they have been convicted.  Furthermore, the crimes cited, such as murder, were not  shown to be genocide or crimes against humanity.  The Croatian Army did not have a policy of rounding up people en masse and either deporting or executing them.  Unlike various Serb forces in Bosnia, the Croatian Army never herded people into concentration camps or forced them into trucks and buses to leave an area.  We have a duty to make the distinction between isolated acts in the aftermath of a conflict and systematic persecution as a weapon of war.  The entire case continues to depend on a notion of conspiracy that inculpates the Croatian government and people.  Rather than individualising crimes, as the ICTY claims to do, last year it gave a verdict of collective guilt.  As Hannah Arendt once so succinctly observed, “confessions of collective guilt are the best possible safeguard against the discovery of culprits, and the very magnitude of the crime the best excuse for doing nothing.”

At the end of the day, I can only conclude that the Gotovina and Markač verdicts recklessly ignored the burden of proof, the most questionable of evidence plucked from a three-year-long trial to support a conspiracy theory for which there is little basis except in the suspicious imaginations of those who made up their minds that Gotovina and Markač were guilty before they even came to trial.  On the other hand, what has been consistently proven is that Generals Gotovina and Markač, during a war of Serbian aggression against the republics of Croatia and Bosnia-Hercegovina, liberated Croatian and Bosnian territory, saving tens of thousands of people from starvation and potential slaughter and paving the way for peace in the Balkans.  The UN may have some of the finest soldiers in the world at its disposal, but the UN mandate is an indiscriminate bridle of impotence, and the original ICTY verdict reflects this.  General Ante Gotovina did more for international peace and justice in a few days than the ICTY has done in almost two decades.  The verdict under appeal is an ominous legacy of twenty-one years of political spin, a cowardly compliance with the doctrine of moral equivalence that proclaims the war in the former Yugoslavia was an internecine feud between equally-culpable barbarians.  It is a triumph of moral cowardice that betrays the vulnerable and punishes the stout-hearted.  It is an affront to the very notion of justice.  And the question we all want answered remains unanswered: will the verdict be upheld or will justice prevail?