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Today, the eighth of October, marks twenty-one years of Croatian independence, twenty-one years since Croatia severed its last remaining ties with Yugoslavia.  It is Croatia’s twenty-first birthday, so to speak, its coming of age.  And this Friday, the twelfth of October, is General Ante Gotovina’s birthday, his seventh in the United Nations penitentiary.

The two commemorations are not unrelated.  For, without the military leadership of General Gotovina, Croatia’s independence may well have remained incomplete.  If the experience of neighbouring Bosnia is any indication of what Croatia’s fate might have been, then one can only conclude that it too could have been divided into two like Germany during the Cold War, its occupied territories bestowed upon the aggressors and given an unjust legitimacy by the international community.  Indeed, had it not been for General Gotovina, the uneasy peace that came to Bosnia with the Dayton Accords may never have been achieved, for in the absence of Operations Storm and Mistral the Serbs would have retained not only one-third of Croatia but significantly more territory in Bosnia, possibly enough for them to unite their conquests into their bloodthirsty dream of a Greater Serbia.

The jubilation that ought to characterise today’s celebrations, however, continues to be marred by a persistent sense of betrayal.  While Croatia may have secured its borders thanks to General Gotovina, the reality of its independence is cast into doubt by the fact that Generals Gotovina and Markac are in a United Nations gaol, subject to foreign jurisdiction for legitimate military activities conducted on Croatian soil.  What does it say about Croatian independence that an international court is allowed to pass judgement on Croatia’s internal affairs?  Has Croatia really come of age or is it still being treated as a child?

It isn’t just Croatia’s independence, however, that has been betrayed in the Gotovina et al. case.  The case makes a mockery of international justice itself.  The ICTY website features a quote from Hans Holthius, ICTY Registrar from 2001 to 2008: “Persons accused by the Tribunal are provided fair trials meeting the highest standards of international justice.  Absolute respect for the rights of the accused is an essential ingredient of justice and lies at the heart of the Tribunal’s work.”  If only this were true!

Now, I am not an idealist.  I recognise that any legal system will necessarily be inadequate and that true justice will not be achieved.  No human intercession can deliver real justice for victims of the Holocaust or of Serb concentration camps or even for the ordinary man or woman whose life has been irrevocably ruined by some vicious everyday crime.  But this does not mean we should abandon our efforts or accept anything less than the best our legal systems can deliver.  And, at the very least, we should decry all obvious miscarriages of justice.  But what do we do when a verdict does not merely fail to deliver justice but actually perverts justice to the point of creating further injustice?  What do we do when an international court dedicated to bringing war criminals to justice condemns two men who in actual fact prevented war crimes and saved lives?

And how are we supposed to respond when, instead of implementing justice, a United Nations institution creates and exacerbates injustice?  To quote the former ICTY Prosecutor, Carla Del Ponte: “Peace without justice can not be sustainable.  It is a terrible mistake to believe that people will simply forget.  Even after a hundred years, sometimes even after several hundreds of years, unpunished crimes continue to represent huge stumbling blocks in establishing peaceful, normal relations between some States.”  So why does the ICTY allow the annihilation of Vukovar by the Yugoslav National Army to go unpunished?  Why has it instead incarcerated the generals who led the resistance to the Serb war of aggression?  Why has it instead fabricated the grounds upon which to unjustly convict these men, such as the ‘joint criminal enterprise’ (the utter lack of evidence for which suggests it is a figment of the ICTY’s imagination) and a bizarre two-hundred-metre rule for shelling (devised post-trial by the judges) that has military experts shaking their heads in consternation and disbelief?

I do not have a comprehensive answer to these questions, but I do know that men and women of conscience have a duty to speak out, that silence means consent, and that we should not consent to such injustice.  This includes the judges of the Appeals Chamber who have the heavy burden of dissecting the legal blunders of the original Gotovina et al. verdict.  As James Q. Whitman, author of The Origins of Reasonable Doubt, has observed, “we have lost the old conviction that judging and punishing are morally fearsome acts”.  We need to remember that court decisions are “about the fate of a fellow human being”.  Whether this was forgotten in the original verdict I do not know, but I dare to hope that the judges of the Appeals Chamber will engage courageously in their morally fearsome profession and pursue true justice (insofar as it is possible) rather than merely pay lip service to the notion of justice.

Ultimately, though, the damage has been done.  It can be halted, but it cannot be reversed.  Croatian sovereignty has been violated, international justice has been egregiously betrayed, and no one can replace the fifteen years combined that Generals Gotovina and Markac have lost in United Nations captivity.  So, as we celebrate Croatia’s independence, we would do well to remember the cost: the blood that was shed by so many Croatian soldiers and civilians during the war, the subservience to noxious UN and EU stipulations, the loss of liberty for Croatia’s two foremost generals, and the betrayal of the very freedom and justice they fought for.