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The latest ICTY verdict and why you should care

By Mishka Góra - posted Friday, 31 May 2013


Yesterday, the International Criminal Tribunal for the Former Yugoslavia (ICTY) convicted six Bosnian Croats of war crimes. Some may celebrate, thinking that at last some semblance of justice has been done, but they would be wrong to do so. The only ones who have cause to celebrate are those who believe in collective guilt and the perversion of the course of justice.

Let me begin by saying that during the period in question some of the most heinous war crimes imaginable were committed in Bosnia Hercegovina (mostly by Serb forces). I worked in the camps on the Adriatic coast in 1993 where both Bosniaks and Croats from Bosnia sought refuge from mass slaughter, rape camps, concentration camps, and other horrors. But they were the lucky ones. Many never made it across the border, and their blood cries out for justice.

Their blood cries out for justice, not a facade of justice.

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There are two fundamental reasons justice was not done yesterday, two reasons every decent human being should shudder.

The guilty verdict applies to people other than the six accused. Just a few of the people mentioned are: Franjo Tudjman, the President of the Republic of Croatia; Gojko Susak, the Minister of Defence of the Republic of Croatia; Janko Bobetko, a senior General in the Army of the Republic of Croatia; and Mate Boban, President of the Croatian Community (and Republic) of Herceg-Bosna. Oddly enough, these men are dead and were therefore not represented at the trial. The judgement also ascribes guilt to (amongst others) "members of the Herceg-Bosna/HVO leadership and authorities … including various officials and members of the Herceg-Bosna/HVO government and political structures, at all levels (including in municipal governments and local organisations)". As if that weren't sufficiently vague and encompassing, the ICTY also threw in "various members of the armed forces, police, security and intelligence services of the Republic of Croatia". For those of you unfamiliar with history and geography, this refers to people from a separate country.

This verdict is the assignment of collective guilt, and as I've quoted more than once before and will no doubt quote again: "Where all are guilty, no one is; 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." (Hannah Arendt) If you doubt this, re-read the list of guilty persons above (which is incomplete I might add), and ask yourself how many of the "various" will be incarcerated. Then ask yourself how many of the "various" are no doubt innocent of the cited crimes against humanity including murder and rape.

At the risk of flogging a dead horse, allow me to illustrate. Let's call the six accused Brian and their alleged counterparts in the conspiracy Charlie, and let's pretend the war was a matter of business (so that we can disengage a little). Brian aspires to be a big businessman like Charlie (who's far too busy trying to protect his market share from the underhand dealings of Sam to take much notice of Brian). Brian is desperate for success, desires to become a subsidiary of Charlie's, and is willing to break the law to do so. He gets caught, but instead of charging Brian alone for his illegal activities Charlie is implicated. However, Charlie doesn't get a day in court to defend his good name. He's not even formally charged. The court simply finds Brian guilty of these activities along with Charlie. It's obvious that just because Brian wanted to join Charlie doesn't mean Charlie wanted Brian to join him, and there's certainly no evidence Charlie approved of any illegal activities, but this doesn't matter. It's a case of guilt by association.

The second cause for concern and general outrage is that an international tribunal of the United Nations, one of the highest courts in the world, has determined guilt on the basis of motive rather than actions. The six accused have not been found guilty of participating in a joint criminal enterprise (JCE). They have been found guilty of murder, rape, and other crimes against humanity, crimes for which they are liable because they allegedly participated in a JCE, a grand conspiracy that included just about every Croat in Croatia and Bosnia Hercegovina. They have been ascribed guilt on the basis of a theory that all Croats are guilty. In short, they have been found guilty of being Croat.

But what if they really are guilty, you ask. After all, if the media is to be believed, all sides were guilty in the war, and even if they aren't technically guilty surely they're guilty of something as there's no smoke without fire? This is a load of codswallop, but I'll entertain the question for the sake of the victims. They cry out for justice, for the perpetrators and those who gave the orders to be identified and punished, not for the men who pulled the triggers to be condemned as "various" members of a joint criminal enterprise, not for men to be convicted on the basis of their ethnicity and rank. The victims themselves were tortured and killed because they were the 'wrong' ethnicity. Should six Bosnian Croats be found guilty for the same reason?

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They must be guilty of something, you say. What if the only way the ICTY can convict them is using this JCE mode of liability? What if there is insufficient evidence to convict them individually? Leaving aside that this would make you an arrogant gudgeon, let's consider that possibility.

For the sake of argument, I will assume that there was a JCE of which the accused were members. There are two major issues with this. First, they were not charged or convicted of JCE. They were not convicted of conspiring to murder or of even ordering someone's death. They have been convicted of crimes they did not personally commit. Secondly, the conviction includes a whole host of people who haven't actually been put on trial. The JCE isn't about a group of six men, or even about the six men and a few of their colleagues. It includes just about every man and his dog!

If these six men really are guilty of crimes against humanity, then the ICTY should try them as individuals for crimes they've actually committed. The ICTY should get some evidence and prove their guilt rather than convicting them on the basis of a theory that they were part of some grand conspiracy.

Anything less, and we might as well hand over the judiciary to the police and allow them to throw people in gaol indefinitely without trial… or carry out executions in the street. Anything less is a perversion of the course of justice.

As for the victims, they have been betrayed. There is no satisfaction in the misguided vengeance of convicting innocent men, and even if these men are guilty the means by which they have been convicted are so unjust that no just person can rightly proclaim that justice has been done. Once again, the ICTY has made a farce of justice.

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This article was first published on Eyes of the Mind.



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About the Author

Mishka Gora is a Tasmanian writer specialising in war, conscience, international justice, and the former Yugoslavia. She is author of Fragments of War, an autobiographical novel about the 1990s conflict in Croatia and Bosnia-Hercegovina.

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