Injustice for All

Something unusual took place at the Hague Inquisition (ICTY) last week. The quasi-court, claiming nonexistent authority from the UN Security Council to prosecute war crimes during the Yugoslav wars of the 1990s, convicted two Croatian generals of war crimes. This was strange for two reasons. First, because so far the Inquisition has indicted only a few non-Serbs, and only a few of those were sentenced to anything beyond symbolic terms. Second, because while non-Serb defendants were tried for individual atrocities, only Serb defendants were prosecuted under the doctrine of “joint criminal enterprise,” specifically developed for them. Until now.

The prosecutors claimed, and the judges agreed, that Ante Gotovina and Mladen Markac were both part of the "joint criminal enterprise" to forcibly displace the Serb population from Croatia in the summer of 1995. According to the Inquisition, the JCE was headed by none other than Croatian president Franjo Tudjman, who died in 1999. The third general on trial, Ivan Cermak, was acquitted of all charges.

Shock and Anger

Croatian officials, as well as a sizeable part of the public, greeted the verdict with shock and anger. There have been riots throughout the country. Soccer teams have played wearing General Gotovina’s picture on their jerseys. One man even cut himself up with broken glass in protest.

Croatians are fiercely protective of the narrative of what they call the "Homeland War"; in this official history, the peace-loving Croatian state was brutally attacked by the aggressive, expansionist Serbia and the Yugoslav Army, who proceeded to slaughter Croats and "occupy a third of Croatian territory" for years, until the heroic "defenders" forced them out and secured the country’s independence. It is an article of faith in Croatia, challenged only by a few (and at great peril) that, since all their actions were supposedly in righteous self-defense, nothing any Croatian soldier has done could have possibly been illegal or immoral.

This does not apply only to generals and wartime politicians; when a common soldier, Tihomir Purda, was arrested on a Serbian warrant in February this year, crowds of protesters turned out to demand his release.

There are obvious problems with this narrative. First, neither the crumbling Yugoslav government nor that of Serbia ever contested Croatia’s declaration of independence per se. They were, however, concerned with Tudjman’s disenfranchisement of the country’s half a million Serbs, who had good reasons to feel uncomfortable in an independent Croatia. The territory that ended up under Serb control consisted largely of areas inhabited by Serbs, not "invaded" from Serbia — a distinction most Western journalists never bothered to make. Finally, the notion that atrocities are by definition impossible in a just war is nonsensical, being the extreme expression of the belief that the end justifies the means.

Junkyard Dogs

Unable to make that argument before the ICTY, Croatia’s lawyers defending the generals argued that the August 1995 operation that saw the murder and expulsion of Serbs and the widespread destruction of their property was a legitimate military action supported by the U.S. government.

It is true that Washington was behind "Operation Storm", having trained and equipped the Croatian military through the "private contractor" MPRI. There are numerous testimonies about this, including one in Richard Holbrooke’s memoir of his colleague Robert Frasure referring to the Croats as America’s "junkyard dogs," about whose methods one ought not get "squeamish."

At the time, Washington’s Ambassador to Zagreb, Peter Galbraith, even denied that the exodus of Serbs could be qualified as "ethnic cleansing," since ethnic cleansing was something only the Serbs would do! He repeated that qualification following the verdict, arguing that the Serbs left of their own volition.

Yet the Inquisition has repeatedly asserted that it had no authority over anyone but the nationals of the former Yugoslavia — other participants in the conflict, such as U.S. and NATO troops, could never face indictment. It is unclear whether Croatia’s defense attorneys thought that by bringing up U.S. support they would have the indictment withdrawn or get their American sponsors indicted; either way, the Empire did what it usually does, and threw its "junkyard dogs" under the proverbial bus once they’d served their purpose.

The Tudjman Tapes

The crucial evidence the Inquisition used were the transcripts of taped meetings of President Tudjman, which leave little doubt as to his plans to eliminate Croatia’s Serb population, and even meddle in Bosnia. While Croatia’s current president, Ivo Josipovic, walked the tightrope between acknowledging the tapes’ authenticity and continuing to assert that Croatia’s war effort (and the persecution of Serbs it entailed) was nonetheless legitimate, the Croatian public has gone on a witch hunt for whoever leaked the tapes to the ICTY. Yet for all we know, it might have been the Empire that did it.

Questions of Legitimacy

The doctrine of "joint criminal enterprise" was developed for the Inquisition by a Croat-American law professor, as a sort of catch-all concept that enabled the prosecution of people not for what they did, but for who they were at the time. In a nutshell, simply being in a position of authority was enough to convict someone on grounds that they "should have known" what their subordinates were doing. Best yet, according to the ICTY, one could belong to the JCE without even knowing it! This has enabled the Inquisition to accuse the entire Serb political and military leadership — in today’s Croatia, Bosnia, and Serbia — of being parts of a grand conspiracy to establish a "Greater Serbia"; it was a charge the Inquisition itself didn’t take seriously, but it made good headlines.

In this light, it is understandable that a verdict based on this doctrine would make the Croatians nervous. After all, its principal function over the years has been to de-legitimize the Serb war efforts. Now that the shoe is on the other foot, the Inquisition’s ministrations seem far less pleasant.

The Oric Scenario

However, there is little indication that the Inquisition is seriously interested in questioning the legitimacy of Tudjman’s war effort. As noted earlier, the Empire was a key participant in the conflict. Croatia joined NATO a few years ago, and seems on track to join the EU soon enough. And while mass refugee returns have been a major policy objective of Washington and Brussels in Bosnia, no such effort was made to ensure the return of the displaced Serbs. In fact, regardless of which party is in charge, Croatia continues to deny the property and civil rights to the returnees, and discourages any serious return by randomly accusing Serb men of war crimes.

Further suggesting the political calculation behind the convictions is the fact that the third defendant, Gen. Cermak, was acquitted on all counts. The very point of the JCE doctrine is that it is practically impossible to get acquitted, once charged: the defendant is guilty by the virtue of existing. Unless Cermak somehow managed to prove he did not exist at the time, his acquittal is as puzzling as Gotovina and Markac’s convictions.

It would not be out of the realm of possibility to posit that Gotovina and Markac might eventually be sentenced to time served, or even outright acquitted, following the appeals process. That’s precisely what happened to the Bosnian Muslim warlord Naser Oric. The reason the generals were indicted and convicted in the first place could well be to bolster the feeble fiction of impartiality and legitimacy of the ICTY, and the JCE doctrine itself.  Either way, it is extremely unlikely that either the Inquisition or its sponsors in Europe and the U.S. have suddenly developed empathy for Serb suffering.


None of this is helping the Croatians cope. For years, their governments had told them that their side was virtuous and pure, their cause just and unimpeachable. Now just one verdict before the Hague Inquisition seems to have thrown that perception into disarray. There has already been much anger aimed at the government, which is mired in corruption scandals and trying to cope with mounting debt and unemployment. The verdict has actually enabled the government to avoid dealing with its dubious record since the independence, and hide behind appeals to patriotism and a growing victimhood complex.

As for the Serbs, ICTY’s gesture of feigned even-handedness is too little, too late. Railroading someone else for once isn’t going to change the realization that the Inquisition’s basic mission is to rewrite recent Balkans history for Empire’s benefit. The Gotovina verdict merely shows that in that mission, they are now willing to trample over yesterday’s proxies. Of actual justice for the Balkans, there is nary a trace.

Author: Nebojsa Malic

Nebojsa Malic left his home in Bosnia after the Dayton Accords and currently resides in the United States. During the Bosnian War he had exposure to diplomatic and media affairs in Sarajevo. As a historian who specializes in international relations and the Balkans, Malic has written numerous essays on the Kosovo War, Bosnia, and Serbian politics. His exclusive column for debuted in November 2000.