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The trial of Generals Ante Gotovina and Mladen Markac : a farce from beginning to end.

By Mishka Góra - posted Wednesday, 28 September 2011

As the International Criminal Tribunal for the former Yugoslavia (ICTY) wraps up almost two decades of war crimes trials, it seems political correctness and moral equivalence has triumphed over any passion for true justice. The April 15 conviction of two Croatian generals of crimes against humanity, for their part in an operation that saved tens of thousands of Bosniaks (Bosnian Muslims) from being massacred, has been followed by months of relative silence. This uncomfortable lull has belied the incredulous outrage of the Croatian people, because unlike previous convictions of men who were personally responsible for horrendous crimes such as mass murder, torture, and deportation to concentration camps, Generals Gotovina and Markac were convicted on the basis of a conspiracy theory that flew in the face of any rational appraisal of the evidence.

Currently on appeal, the trial of Generals Ante Gotovina and Mladen Markac for their role in Operation Storm (Croatia's recovery of Serb-occupied territory in 1995) was a farce from beginning to end. Concerned for the "reputation and integrity of the ICTY and international criminal justice", the International Bar Association questioned the appointment of Elizabeth Gwaunza as an ad litem judge, but to no avail. Apparently, the ICTY felt that her links to Robert Mugabe and her receipt of the gift of a farm, seized by the Zimbabwe regime from its white owners, would have no influence on her capacity to adjudicate a case dealing with crimes such as looting and ethnic cleansing. To add insult to injury, the presiding judge, Alphons Orie, began his career at the ICTY as defence counsel for Duško Tadic, a Bosnian Serb convicted of personally murdering at least seven people, deporting civilians to various camps, and torturing Bosnian Muslims at the Omarska concentration camp. In a radio interview in 2008, he called Tadic a "small" criminal who nowadays wouldn't even be tried at the Hague, unlike Generals Gotovina and Markac it seems, who (even going by the ICTY judgement) haven't personally committed any of the war crimes for which they have been found guilty.

Indeed, according to the ICTY judgement, it was not necessary to prove that Gotovina or Markac had personally committed any of the crimes with which they were charged, such as murder and deportation, as they were liable as part of a "joint criminal enterprise", a euphemism for what most people would call a conspiracy. Obviously, conspiracies do occur from time to time, but they weren't charged with conspiracy. Furthermore, when the supposed ringleader is the dead President of Croatia who can't defend himself, and an overwhelming amount of the evidence against the accused is pure speculation about his motives, we have a moral duty to be sceptical. We should be all the more so when we trawl through more than one thousand pages of verbiage masquerading as a judgement to find that the only relevant conclusion that the judges drew about a key meeting at which the alleged conspiracy was supposed to have crystallised, is that General Gotovina took a risk that his troops might not behave themselves. To quote the judges, General Gotovina was "aware" that war crimes were "possible consequences". He reconciled himself to "the possibility that these crimes could be committed" and "took the risk that these crimes would be committed".


Moreover, if the Croatian generals had beencharged with conspiracy, that would be one thing, but they haven't. They were charged with crimes against humanity (such as murder) "pursuant to the mode of liability of JCE". In other words, they were charged with specific crimes which they were alleged to have planned and instigated. However, the judgement not only failed to demonstrate the existence of a joint criminal enterprise. It also failed to recognise that an end result (absence of Serbs) did not prove the method of achieving that result (deportation) and that, likewise, the desire for an end result did not prove instigation of the means to achieve that result. Defying logic, the judgement pronounced that ethnic cleansing took place, that the permanent removal of Serb civilians from the Krajina was effected by force, despite evidence from Serbs and Croats alike that Serb civilians began leaving the Krajina before the onset of Operation Storm and that the remainder were ordered to evacuate by the Serb leadership on the first day of the Croatian military operation.

The judges furthermore seemed to be omniscient, concluding that this conspiracy existed even though testimony by eight witnesses (who actually knew and worked closely with the president) contradicted the ICTY theory, indicating that none of the accused planned to expel Serbs from Croatia, whether alone or in concert. The judges brushed aside a public announcement made by President Tudjman promising that civil rights would be maintained during and after Operation Storm and that elections for self-government would be held in the presence of international observers, making the hubristic declaration that the announcement "was not a true reflection of [his] will and intention". Never mind that Tudjman's political party was in an alliance with the Serb People's Party at the time; never mind that Tudjman was dead and unable to explain his words and actions or defend himself.

Even the US Ambassador to Croatia, Peter Galbraith, testified that he "did not believe that Tudjman was going to expel the Serbs" but thought the Serbs would leave regardless and that it would be a "side effect" of the military offensive. To counter this, the ICTY cited evidence that Tudjman and Gotovina discussed "how to provide the Serb civilians in Knin and elsewhere a way out during the military attack". Rather than giving them credit for their prescience, the judges decided this was not reconcilable with protecting civil rights. Apart from the obvious fact that it is reconcilable – the guarantee of civil rights does not obviate the desire of civilians to get out of the way of a military operation and avoid being victims of collateral damage – the ICTY glossed over crucial evidence that much of the Serb population might not have wanted to stay. Apparently, a report by the UN Secretary-General acknowledging that it was "difficult to determine the extent to which the mass exodus of the Krajina Serb population was brought about by fear of Croatian forces, as opposed to the desire not to live under Croatian authority", was deemed immaterial.

Instead, the ICTY created a catch-22 that denied the legitimacy of Croatia's defensive war and vilified a country that had taken in half a million enemy refugees and harboured them in its best tourist resorts out of pure human decency. If the Croatian leadership hadn't considered evacuation routes, they'd have been guilty of failing to protect civilians; yet when they did consider evacuation routes, they were found guilty of ethnic cleansing. It was an attitude characteristic of UN involvement in the former Yugoslavia. Rather than risk being accused of facilitating ethnic cleansing by transporting Bosnian civilians to safety, the UN left them to fend for themselves, to walk hundreds of miles, across frontlines and minefields and forbidding mountains, to the safety of Croatia's refugee camps on the Adriatic coast.

The court also chose not to acknowledge that Operation Storm was encouraged by the international community, regardless of the possible repercussions with regard to the displacement of civilians. Galbraith testified that he recommended "that we not take any action that would discourage Croatia from continuing with that campaign" and that many in the Clinton administration "welcomed Croatia's actions". He further noted "I think that Operation Storm and the subsequent campaign in Bosnia was critical to arriving at the Dayton peace agreements" and that the war in Bosnia would not have ended when it did "if it were not for the Croatian army's military action." As for the details of the operation, the court held that Gotovina's attack on Knin was "unlawful", despite Galbraith's evidence that, according to his embassy staff, one of whom was an artillery officer, the shelling of Knin was "relatively brief" and "not very destructive". He also observed that it "took place in the context of an operation aimed at capturing the town" and "you have to make a distinction between, for example, what the United States might do, given the technical [capability] it has, and whether it can avoid major, you know, casualties, as opposed to a country that would be much less capable technologically." Crucially, the UN Military Observers' ninety-five reports for this period were found to be missing from the EU archives when Gotovina's defence team requested them.

Ultimately, it is difficult to escape the conclusion that the ICTY convicted Ante Gotovina and Mladen Markac on the grounds of a conspiracy theory. According to the ICTY, the President of Croatia, along with much of his leadership team, conducted Operation Storm with the express purpose of expelling Serb civilians from the Krajina. Despite no concrete proof of a plan and no proof of expulsion, the ICTY advanced a theory that disparaged the entire Croatian nation. It also demonstrated a complete lack of perspective, ironic for a court obsessed with the proportionality of the military operation and supposedly focussed on the victims of war crimes. To quote Galbraith's testimony, "the whole UNPROFOR peacekeeping mission was in danger of collapse…. NATO wasn't going to save Bihac". If Gotovina had not led Operation Storm and liberated Bihac, "the lucky ones would have been expelled, but it's likely that tens of thousands would have been murdered by Mladic". It would have been "strategically disastrous" and "the chances of achieving [peace] would have been very small".


Gotovina and Markac not only liberated Croatia, but also saved the Bosnian Muslims of Bihac from the same fate as their compatriots in Srebrenica, paving the way for peace in the Balkans. That any judge could deem this a crime against humanity is contemptible.

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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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