Injustice for All, Again

Not for the first time, the Hague Inquisition (ICTY) has done something stupid. The quasi-court, claiming nonexistent authority from the UN Security Council to prosecute war crimes during the Yugoslav wars of the 1990s, last Friday released two Croatian generals, convicted last year of war crimes. Notorious for redefining the standards of evidence, logic and even language to justify convictions, the Inquisition has done so once again – only this time, to reverse convictions.

The decision came down by a majority vote, 3-2, with the American-Israeli, Jamaican and Turkish judges agreeing that their colleagues’ original judgment as to what constituted "evidence of unlawful attacks" was wrong. More importantly, presiding judge Theodor Meron wrote that the "evidence was not sufficient to establish the charge of a so-called ‘joint criminal enterprise’ aimed at ethnic cleansing". The Italian and Maltese judges disagreed, but were overruled. Ante Gotovina and Mladen Markac flew back to Croatia for a heroes’ welcome.

Tribunal, Deconstructed

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. Basically, simply being in a position of authority was enough to convict someone on grounds that they "should have known" what their subordinates were doing. 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."

So it was a little incongruous to see it invoked in a trial of Croatian generals – and even more so to see the ICTY demolish the whole construct in order to get them released. Meron’s claim of insufficient evidence is simply absurd, because the whole point of JCE is to make evidence unnecessary. Moreover, the evidence of intent to expel and destroy the Serbs does exist: tapes of President Tudjman’s meetings with subordinates clearly show it. No such evidence exists in any of the cases where Serbs were convicted of alleged atrocities, including the Srebrenica "genocide."

Logic would dictate that the Tribunal has just ruled itself absurd and incompetent. That now the indictments against Radovan Karadzic and Ratko Mladic should be thrown out as well. That a Serb general convicted of deliberately shelling civilians without any judicial finessing about 200-meter near-misses, should be set free.

But logic – much like justice, indeed – has little to do with the Tribunal’s operations, or its mission. When it comes to the Balkans Wars of the 1990s, for the Empire and its agents – the ICTY being one of them – it isn’t about what was done, but who did it to whom.

"Junkyard Dogs"

The generals’ release was very important to Zagreb. Official Croatian narrative is that in 1991, their young democracy was invaded by the Communist Serbs and their Yugoslav Army, who "occupied a third" of Croatia’s territory. Only in the heroic "police action" of August 1995 was Croatia finally "liberated" – August 5 has ever since been the "Homeland Thanksgiving Day" – and could embark on the path back to Europe.

The 200,000-plus Serbs who were displaced? Must have been those invaders, going back to wherever they came from. None other than the U.S. Ambassador himself said this couldn’t have possibly been "ethnic cleansing." How dare the ICTY even suggest it could have been otherwise?

As usual, the narrative doesn’t hold up under the burden of facts. Having decided that ending the Bosnian War on its own terms would best serve its interests in post-Cold War Europe, the U.S. leadership launched a new "diplomatic" initiative (the "Contact Group"), while preparing for war. To that effect, it forced the battling Muslims and Croats into an alliance, sent a premier military contractor to train the Croatians, and eventually offered intelligence and even air support to the Croatian military.

Richard Holbrooke, the Assistant Secretary of State involved in these efforts, even recalled his colleague Robert Frasure referring to Croatia as America’s "junkyard dogs," about whose methods one oughtn’t be "squeamish."

A Victorious Crime

But the Serbs were not invaders. They had lived in those territories for centuries. When the newly elected government in Zagreb began passing discriminatory laws, they took up arms to avoid the fate of their kin, murdered en masse by the Nazi-allied Croatian state during WW2. Following the 1991 conflict, these Serb-inhabited areas were under UN protection, as laid out in the ceasefire arranged by U.S. diplomat Cyrus Vance. Arming and training of the Croatians was entirely against a UN-imposed arms embargo. To the rising Empire, none of this mattered.

So in August 1995, men under Gotovina and Markac, on orders from Franjo Tudjman – and with the blessing of William Jefferson Clinton’s government – expelled over 200,000 people, killing about 2,000, mostly civilians. They called it "Operation Storm."

The 2001 census in Croatia showed 380,000 fewer Serbs than in 1991.


It is often forgotten that the ICTY was merely another product of Empire’s Balkans agenda. Ostensibly charged with prosecuting all war crimes in the territory of what was Yugoslavia, its mandate somehow extended only to the locals, and not the US, NATO, UN or any other external actors. And in practice, its purpose was to back up the claim that the conflicts of the 1990s were the sole fault of the Serbs and Serbs alone.

No charges were pressed against president Tudjman of Croatia, or Bosnian Muslim leader Alija Izetbegovic, while they were alive. Naser Oric, the Bosnian Muslim commander of Srebrenica, was acquitted after a farce of a trial. So was Ramush Haradinaj, one of the terrorist KLA commanders and later Empire’s favorite politician in "independent" Kosovo.

The original conviction of Gotovina and Markac came as a shock to the Croatian public, and a surprise to the Serbs. And that was precisely the point: the ICTY needed to create an appearance of fairness, so the quisling regime in Belgrade could hand over the last remaining official required to complete the "Greater Serbia Conspiracy" set. The verdict also cleared Croatia’s entry into the EU, approved in December 2011. Lost in the perception-managed noise about the conviction of Gotovina and Markac was an important detail: the third general on trial, Ivan Cermak, had been acquitted.

Remember, the whole point of the JCE is that it’s practically impossible to get acquitted, once charged: the defendant is guilty by the virtue of existing. Cermak obviously existed at the time of "Storm." His acquittal was a signal that "Gotovina and Markac might eventually be sentenced to time served, or even outright acquitted, following the appeals process." And so they were.

Neither the Inquisition, nor the Croatians, nor their Imperial overlords bothered with considering the Serb reaction. After all, in their minds, Serbia is so thoroughly conquered, so beneath contempt, that it doesn’t even merit an empty gesture of pretend fairness any more.

They aren’t the first to have thought so – or the first to be terribly wrong.

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.