Monday 19 November 2012 by Miša Zgonec-Rožej, Associate Fellow, International Law
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) has overturned the convictions of two Croatian generals, Ante Gotovina and Mladen Markač, acquitting them of all crimes against the Serb civilian population in the region of Krajina in Croatia.
The judgement, passed on 16 November, was received in Croatia with euphoria, seen as a victory for the nation and proof that the fight for liberation of Croatian territory was not unlawful. Conversely, in Serbia, the judgment is regarded as shocking, adding legitimacy to crimes against Serbs in the Krajina region. In statements made by the Serbian leadership, the judgment could undermine the ICTY’s credibility and impair the stabilization process in the region. The judgment, they say, has damaged Serbia’s relationship with the ICTY, whose status has now been downgraded to mere ‘technical’ cooperation. As a result, the ICTY postponed a conference on its legacy scheduled for 22 November in Belgrade.
In 1995, the Croatian Army carried out ‘Operation Storm’, a military operation to recapture the territory in Croatia’s Krajina region from the self-proclaimed Republic of Serbian Krajina that had existed since 1991. Gotovina, the commander of the Split Military District of the Croatian Army, was the overall operational commander of Operation Storm, while Markač was the Assistant Minister of the Interior and Operation Commander of the Special Police in Croatia.
In 2011, Gotovina and Markač were convicted of war crimes and crimes against humanity against the Serb civilian population and sentenced to 24 years and 18 years respectively. The Trial Chamber of the ICTY decided that they were part of a joint criminal enterprise led by late Croatian President Franjo Tuđman: their common purpose was to permanently remove the Serb civilian population from the Krajina region by force or threat of force.
The Trial Chamber’s finding on the existence of the joint criminal enterprise was primarily based on the conclusion that unlawful artillery attacks targeted civilians and civilian objects in the four towns in the Krajina region and that these unlawful attacks caused the deportation of a large number of civilians from the region. The Trial Chamber’s finding of an unlawful attack was, in turn, based on the premise that any shell or artillery which fell more than 200 metres from an identified military target was not aimed at that target and was, therefore, evidence of an unlawful artillery attack.
But, the Appeals Chamber held that there was no evidence to support the 200-metre standard. Having reversed the Trial Chamber’s finding that artillery attacks on the four towns were unlawful, the Appeals Chamber has considered unsustainable the Trial Chamber’s finding on the existence of a joint criminal enterprise with the common purpose of permanently and forcibly removing the Serb population from the Krajina.
Since all of the convictions by the Trial Chamber depended on its finding of joint criminal enterprise, the Appeals Chamber considered alternative modes of liability including aiding and abetting and superior responsibility. But the Chamber held that Gotovina and Markač were not guilty of deportation under any alternative mode of liability, because the departure of civilians from the towns and villages subject to the lawful artillery attacks for which the two generals were responsible could not be characterised as deportation. And Gotovina and Markac’s failure to investigate and prevent the crimes did not mean that they were liable for the crimes themselves. Two judges appended dissenting opinions.
The acquittals do not discharge Croatia from its obligation to investigate and prosecute all war crimes, including crimes committed by Croatian armed forces. Although some progress has been made in recent years, the Croatian authorities are reportedly still failing to investigate allegations against some high profile military and political officials. The European Union, to which Croatia is expected to accede in July 2013, has called on Croatia to intensify the efforts to combat impunity for war crimes. Other republics of the former Yugoslavia face similar challenges in removing obstacles to domestic criminal investigation and prosecution of international crimes committed during the Yugoslav conflict.
The ICTY is a United Nations (UN) court established by the UN Security Council to deal with genocide, crimes against humanity and war crimes that took place during the conflicts following the break-up of the former Yugoslavia. To date the ICTY has indicted 161 persons, of whom 64 have been sentenced, 13 acquitted and 13 transferred to a national jurisdiction. Currently there are ongoing proceedings against 35 accused, including two former military and political leaders of the Republika Srpska, Ratko Mladić and Radovan Karadžić.
No Croatian, apart from Croatians in Bosnia and Herzegovina, has so far been convicted by the ICTY. Three other generals in the Croatian army have been indicted by the ICTY for war crimes and crimes against humanity against Serb civilians. Janko Bobetko, the most senior commander in the Croatian Army, passed away before his transfer to The Hague. Two others, Mirko Norac and Rahim Ademi, have been transferred to Croatia to face trial in a domestic court. Norac was sentenced to 7 years’ imprisonment while Ademi was acquitted. Two Croatian Serb leaders of the Republic of Serbian Krajina, Milan Babić and Milan Martić, were convicted for their roles in the forcible removal of Croats and other members of the non-Serb population from the Krajina region.
The judgment is final and cannot be appealed.
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