Published in Nacional number 584, 2007-01-23

Autor: Berislav Jelinić

THE PROSECUTION IS TO BLAME FOR THE ICTY INJUSTICES

Granic analyses the Hague Tribunal

Here Nacional publishes the entire analytical paper by former Deputy Premier Goran Granic in which he criticizes the working of the Hague Tribunal

Goran GranicGoran Granic Dr. Goran Granic, former Deputy Prime Minister in the Government of Ivica Racan, who at the time also served as the president of the Advisory Board for Cooperation with the International Criminal Tribunal in The Hague, recently wrote a paper entitled "The International Tribunal in The Hague – Law, Justice or Politics". He promoted the work at an expert symposium organised on 8 December 2006 by the Croatian Cultural Council at Zagreb's Westin Hotel. The symposium discussed the topic: The Hague Tribunal – Joint Criminal Enterprise - What Is It? Taking part were Constitutional Court Justice Milan Vukovic, historian and Gospic-Senj Bishop Mile Bogovic, Croatian Arts & Sciences Academy (HAZU) members Josip Pecaric and Stanko Popovic, HAZU contributing expert associate Nedjeljko Mihanovic, attorneys Lujo Medvidovic, Zoran Mimica and Ana Luetic, Vjesnik journalist Marko Barisic and Goran Granic.

Granic's work provoked the most attention, but to this day remains unknown to the wider public, as the gathering did not receive media coverage. Granic wrote his work as an expert and the assertions it puts forward are bereft of the customary rhetoric of daily politics. Granic puts forth an argumented criticism of the work of the Hague Prosecution, explains why he feels that the work of this institution was politically predefined and under the influence of some international players, but also points out the positive consequences of the work of the ICTY in the area of the former Yugoslavia.

In a discussion with Nacional, Granic pointed out that he had given much thought to the assertions he puts forward in the paper and that he had written it in November, after Vukovic had asked him to take part in the symposium organised by the Croatian Cultural Council. "I wrote the paper because the Hague Prosecution had completed its work and it can now be subjected to an analysis. Now we can legitimately analyze the character of the indictments and the method of its work and correlate this to the chronological and political context of the founding of the Hague Tribunal. An analysis of the Tribunal itself should wait, as the proceedings are still ongoing. But it can already be said that a very dangerous premise has been built into the core of the work of the Hague Tribunal that contends that a civil war was waged on the territory of the former Yugoslavia. Not a single serious indictment has been raised against high-ranking JNA officials, and those that have been were raised only after atrocities had been committed that shocked the international public. Perhaps 10% of the war crimes committed in Vukovar have been processed, and only low-ranking JNA officers have been indicted for them. There really is no need to remind anyone of the scale of the Vukovar tragedy. On the other hand, for the Medak Pocket operation, which lasted four days and had much fewer casualties, legal action has been brought against leading officials of the Croatian Army, under the premise of a criminal enterprise. Several dozen crimes of that magnitude occurred in Croatia during the Homeland War. Most were committed by Serbs and no one of higher rank has been processed for them. These are the facts, and when I speak of them I do not lessen or negate the need to process these crimes. What we have here is a selective application of justice, which in the end results in an injustice and a lack of confidence in the Tribunal," says Goran Granic.


Granic in his paper expounds his own attitude towards war crimes, and of the problems arising from the political conflicts surrounding crimes that have burdened modern Croatian history. He draws a clear distinction between international prosecution and the Hague Tribunal, which has a limited time span, questionable competence and is deficient in professionals who would be involved only in the trial proceedings. Granic asserts that the character of the Tribunal was predominantly defined by the investigations led by the Hague Prosecution. "From them it is evident that the Hague Prosecution, lacking an imperative to condemn war and aggression, resorted to an alternative way of structuring its system. That is why a concept was devised, at the level of countries involved in carrying out the investigations, of criminal groups, but without a clear definition of the historical context of the events they encompassed. If historians draw conclusions at that level, a premise will make its way into history textbooks that three national groups in the Balkans slaughtered each other for no reason," says Granic.

Granic claims that Croatian politicians could have done more to warn of this flawed strategy in the work of the Prosecution, but that Croatia alone as a country could certainly not have achieved much in this regard. "We could have effectuated some manoeuvring, but it was hard to achieve a turnabout in the entire system of work of that institution. Croatia did not have, still does not have, nor will it have the necessary amount of political clout. The issue needs to be discussed at entirely different levels and that is why I did not burden the paper with the customary political rhetoric," says Granic.

Granic warned that the portrayal of historical events in this region in the 1990s as seen through the prism of the indictments is not objective. It is often contradictory and leads to the conclusion that the indictments were drafted as if the events had occurred on parallel worlds, and not on the same space and during the same time, in circumstances for which it is known who politically initiated them. That is why Granic hopes that his work will serve as a platform for the launching of a serious international expert debate on the character of the work of the Hague Prosecution. He feels that the adoption of conformist historical conclusions based on the work of an institution whose work has not been objectively analysed could be thereby avoided. Below, Nacional brings the complete text of the Goran Granic paper.

Goran Granic, PhD

THE INTERNATIONAL TRIBUNAL IN THE HAGUE -– LAW, JUSTICE OR POLITICS

Introduction


There is a continuing debate in the Croatian public concerning the International War Crimes Tribunal in The Hague and its work. Justice or politics, neccesary or not, are the key points of contention in adopting an opinion of the Tribunal and its work. This is certainly the most significant political issue since its inception.

In this essay I shall lay out my contemplations concerning the Tribunal, as an advocate of the international prosecution of war crimes, as a representative in Croatian parliament from 1992 to 1995 and the top official in Croatian Government charged with cooperation with the Tribunal from 2000 to 2003.

A distance of three years from active relations with the Tribunal has helped to reinforce my opinion on an important issue of international law and an equally important issue for Croatia's past and future.

Applying my experience in producing expert analyses, I have elaborated on the issue of the founding of the Tribunal, its mission, organisation and methods of work, the method of work of the Prosecution and of political influence on the Tribunal. I believe this work can provide a starting point for expert research on the topic of the work of the Tribunal, which is both needed and likely to occur in the future. In my closing remarks I propose certain initiatives.

Fundamental principles

In the evaluation of the Hague Tribunal and the results of its work I will cite the fundamental principles on which I based and built my relationship towards the Tribunal. Although additional important principles could be cited I have singled out the following:

  1. The defence of Croatia from aggression is the legitimate right and obligation of the institutions of state, the bearers of national and military authority, and of the citizens of the Republic of Croatia.
  2. War crime is a socially unacceptable criminal act and cannot be justified by any political, national, religious, economic or other "great" ideas and goals.
  3. The consistent observance of the national constitution and legislation and of international law, without selective relations and political calculation, is important to the citizens of the Republic of Croatia.
  4. International prosecution of war crimes is necessary because those responsible for the war on the territory of the former Yugoslavia would not otherwise be brought to trial.
  5. The international tribunal is only one aspect of punishing the perpetrators of all war crimes, which should gradually disappear with the strengthening of the capabilities of national bodies.
  6. The work of the Tribunal should be de-politicised in Croatia through a responsible attitude of all persons, and it should not be made use of in day-to-day politics, as it is among the key issues towards which national responsibility must be demonstrated.


Ante GotovinaAnte GotovinaThe issue of the work of the Tribunal in The Hague and the processing of war crimes in Croatia is linked to the divisions surrounding war crimes committed during and after World War II. A half-century of crimes and injustice have produced a division and lack of critical attitudes in relation to war crime and its social unacceptability. The crimes of the NDH were covered up and justified by the idea of creating a national homeland and the crimes of partisans and communists during and following World War II by antifascism. The communist victors, through trials of those responsible for war crimes, trials against political opponents and those having different views, through political and aggressive promotional work and through the exaggeration of numbers, created a social valorisation of NDH crimes and the collective responsibility of the Croatian people. They invested an equal effort and the same methods to erase their own crimes. This approach on the other hand led to a complete negation and an uncritical relationship towards the crimes of the NDH in certain circles. Instead of a historically confirmed truth that ought to have been reflected in initiated and conducted court proceedings, myths and entirely distorted views of war crimes committed during and after World War II.

This issue is significant because Croatia entered a defensive war without a structured social attitude towards war crime and its unacceptability. The Homeland War did not contribute to establishing a unitary attitude, but rather maintained the same unacceptability's of the previous period and added new divisions.

From the position of the victim, for the right to life and dignity, every ideology that leads to the suffering of civilian and prisoners of war is equally responsible. Both the NDH and Communist rule produced equally unacceptable war crimes and bear an equal responsibility towards the victims or the crimes. Crime, namely, is crime, regardless of whose name or in the name of what it is committed and should be treated as such.

The social attitude towards war crimes in the Homeland War, regardless of the fact that we are the victims of aggression and of all forms of war crimes against civilians, wounded and prisoners of war, must unequivocally condemn every crime whether committed against Croatians and other non-Serbian inhabitants or against the aggressors and their accomplices. The Croatian judiciary should persevere in the principle that every victim receives satisfaction in the condemnation of the perpetrator, regardless of how long that might take and of the continuing pressure, both international and domestic, to close this chapter as soon as possible.

The establishment of the Tribunal and its mission


The Tribunal was created by a political decision of the UN Security Council, based on Chapter VII of the United Nations Charter that defines activity in the case of a threat to peace or an act of aggression, and was as such imposed on the countries of the former Yugoslavia. The mission and character of the work of the Tribunal was defined by the political will of the Security Council. One of the tasks put before the Tribunal, by UN Security Council resolution 827, was to "establish and maintain peace in the territory of the former Yugoslavia." The establishment of the Tribunal was preceded by a period of efforts on the part of the international community to preserve Yugoslavia at any price, even at the price of a limited JNA war to impose peace and to preserve the frame of Yugoslavia's statehood. The failure of this project, the war with all of its aspects and consequences, the crimes that were committed and the political interest of influential countries, defined the character of the Tribunal's mission. For the work of the Tribunal, and even more for the consequences of its work or lack of work from the perspective of Croatia, it is important to point out:

  • That the Tribunal was founded with the task that its work should contribute to establishing peace in the territory of the former Yugoslavia
  • That the Tribunal was not given jurisdiction to rule on the crime of aggression, i.e. the crime of leading an aggressive war


The absence of aggression on the list of war crimes for which the Tribunal has jurisdiction is the key shortcoming in the Tribunal's mission as this led to the lack of an appraisal of war as the greatest crime, from which all other crimes on the territory of Yugoslavia ensued. Only rulings that would establish responsibility for leading of an aggressive war could put all the events of the war and the crimes committed in the proper context. The confirmation of this contention is in the fact that the JNA leadership and those responsible for aggression, which had a free hand to impose peace in a war of limited duration, have not been indicted. It s this fact precisely that has prevented the Tribunal form achieving its central mission, because it did not allow it to put all crimes in the proper context. We can imagine how the Nuremberg war trials might have looked had it not been possible to prosecute for the waging of an aggressive war and if people who had committed war crimes from all sides were brought to trial simultaneously.

The other aspect of the Tribunal's mission, to contribute to the establishment of peace, has been transformed into a symmetry of guilt. What has arisen from this task is a basic strategy that consisted of selecting top political and military officials from all three sides (Serbs, Croats and Bosniac) as potential targets of indictments and that an effort be made to link them with committed crimes. The absence of justice in punishing all those responsible for committed crimes, including responsibility for aggression, has brought the Tribunal's credibility into question. When this is added to the impossibility of prosecuting for aggression it leads to equating the victim and the aggressor and to an unacceptable attempt to reinterpreting historical veracity. At this point I would also comment on the contention that the Tribunal is engaged in "law", and that history ought to be written by "historians" whereby a justification is occasionally sought for the "non-intervention" of states in the proceeding before the court. In my opinion, this contention is partially correct, because much of the history of this region is already being written in The Hague. Already foreign historians are citing rulings of the Hague Tribunal in their analyses, and this can also been seen in domestic historians.

The absence of a clear mission to establish responsibility for the aggression and war turned the aggression into a civil war. In some prosecution documents it can be read that Croatia attacked the "Republic of Srpska Krajina". After an intervention from the Croatian side it was changed in wording but not in substance.

General BobetkoGeneral BobetkoThe prosecution, with this kind of mission and framework for the processing of war crimes, created an innovation by raising indictments against each side for joint criminal enterprises, which established an equilibrium between the sides in conflict at the level of the character of the indictments. In the practical application of this concept, namely, everyone is responsible. The leadership of a country is responsible for every crime that occurred on the territory under its control. The theory of a criminal enterprise was set on its head – it is established that certain crimes were committed, from which the assertion is derived that there was also a criminal plan, instead of the other way around. I believe that this, at least in the case of the so-called Croatian crimes, leads to the assertion of collective guilt rather than individualising it.

Besides that, it is important to point out that the role and responsibility of representatives of the international community has not been clarified by shedding light on their role in all of the events on the territory of the former Yugoslavia. For example, the Croatian leadership is accused of a criminal plan to implement the Vance-Owen agreement, but the creators of this agreement are nowhere mentioned.

The organisation of the Tribunal

Two omissions were made in setting up the international prosecution of war crimes committed on the territory of the former Yugoslavia. One concerns the fact that a new judicial institution was founded to try very serious crimes, which was to fulfil the task put before it in a predefined period. Every temporary institution has its shortcomings and range, and the quality of work and the credibility of the judicial process is questionable.

The other key shortcoming is that the Prosecution and Tribunal are housed under the same roof. Pragmatism in setting up the working concept of judiciary institutions is inadmissible and created confusion and doubt in the impartiality of the Tribunal. The prosecution's predominance in the media in relation to the Tribunal created the effect in the public that the indicted were guilty before being brought to trial, the moment the prosecution raised an indictment.

Experience has shown us that the "institutional" interest dominated the beginning of the Tribunal's work, perceived as their own interest by both the Tribunal and the Prosecution. They are allies in the fight against war crimes, and everyone else – indictees, the defence and the states from the region are their opponents. An evolution of this interest developed later on leading to the creation of two institutional interests – that of the Tribunal itself, and that of the Prosecution. The Tribunal nowadays demonstrates a significantly greater degree of independence and credibility than it did at the start, a positive process for the quality and impartiality of the judicial proceedings.

The work of the Prosecution

The Prosecution organised its work on the ethnic principle: one group investigated Serbian crimes against Croatians, the other of Croatian crimes against Serbians; while in Bosnia & Herzegovina all three combinations were possible. This concept can be linked to the fundamental task of the Tribunal to punish those most responsible in each of the nations, but it is entirely in contradiction with the real events of the war and the war crimes. If the fact is taken into consideration that there was a lack of good communication between the investigating teams, and that they sometimes behaved as if competitors, it is not unusual that in two judicial proceedings the Prosecution presented indictments based on completely contradictory postulates.

An ethnic approach in the organisation of the work of the Tribunal led to the Prosecution itself putting forth, in its indictments pertaining to a single event, entirely different views of the situation at the time of the crimes and different material evidence. The best example is that of the indictment for the crimes in Ahmići: an indictment and evidence of Croatian crimes, and an indictment and Bosniac responsibility for war crimes.

This kind of division by ethnic crimes created other unacceptable effects, which influenced the impartiality of the work of the Hague Tribunal. The selection of indictees and the content of the indictments corresponded to the expectations that existed in one nation towards the crimes of another nation. The content of the indictment against General Bobetko was, for example, taken from the indictment raised in 1994 in the so-called Republic of Srpska Krajina.

General SljivancaninGeneral SljivancaninA lack of judicial action against war as a single event has put the dynamics of the proceedings out of sync with the chronological sequence of the events of the war, as so the raising of indictments for events in 1995, and the lack of processing of crimes committed in 1991, creates that impression that justice is not the Tribunal's priority, but rather some other interest. Take Vukovar for example. Indictments have been raised only for the crimes committed at Ovcara and they are limited to relatively low ranking members of the JNA. Indictments have never been raised against the JNA leadership, which is entirely inconsistent with the Prosecution's logic as applied in the cases of the Medak Pocket and Operation Storm. In the case of Medak Pocket and Operation Storm, namely, the Prosecution adopted a top-down approach, indicting, therefore, the highest ranking officials on the Croatian side that had, in fact, nothing to do with the events in question, while in the case of Ovcara only the commanders actually on hand were indicted. According to this, the crime committed at Ovcara was not planned at the level of the JNA Command but rather at lower levels, while the crimes committed during operations Oluja and Medacki dzep were planned by the leadership of the Croatian army and government. This is a "historic" truth that could persist even after the Tribunal is closed. Our generation, which lived through these events, knows that this is not the case, but for future generations the indictments and rulings of the Hague Tribunal will be relevant.

Political influence on the work of the Tribunal


The underlying political influence came already with the definition of the Tribunal's tasks and mission. It could be asserted that this was the plan of responsible figures in the international community, whose political interest is manifested through the decision of the UN Security Council to impose peace and a political solution in Croatia at a time when 1/3 of its territory was occupied. This conclusion arises from the way in which the Prosecution is criminalizing Operation Storm, which upset the plans of the international community to, through stopgap political solutions, acknowledge the results of the war in Croatia. The treatment of the Medak Pocket operation can be perceived in the same way, as it, on a smaller scale, but with equal effect, changed the situation as regards the control of territory. In comparing the approach of the Prosecution and of the Tribunal itself towards these two liberation operations and the approach to, for example, Vukovar, for which a very low-level indictment has been raised only for the crimes committed at Ovcara, it is evident that there is a different approach to the "destroyers" of Yugoslavia – the Croatian army – than that towards the "guardians" of Yugoslavia – the JNA. The former are accused of criminal enterprises and accountability is sought at the highest levels, while the latter are indicted following the principle of individual guilt and accountability goes no higher than the lower ranks. Confirmation of this contention can be found in the documents of the UN Security Council and the Hague Tribunal. This contention is not based on a conspiracy theory, but rather on an analysis of the events in and around Croatia over the past 15 years, and on establishing correlations between these events. It arises as a result of this:

  • That responsible figures in the international community wished to preserve Yugoslavia at any price and agreed to a limited military intervention by the JNA, and in return aggression and responsibility for war is not cited in the list of war crimes, and indictments are not raised against those responsible in the JNA,
  • That the war is treated as a civil war with equally responsible sides,
  • That the results of the war in Croatia in 1991, which ended with the occupation of 1/3 of Croatia's territory, should be adopted as the political solution.


Those in Croatia who thwarted the implementation of this concept must be punished. The long arm of the influence of some countries in drafting indictments is achieved through the Prosecution's investigating teams, which incorporate representatives of the intelligence services of influential countries.

Political pressure was exerted in the case of General Bobetko when Croatia was pressured to abandon legal means in the protection of national security, when the right that military officials are obliged to make decisions to protect people and property from constant terrorist attack was challenged.

Political influence was also exerted in making the opening of EU membership accession talks conditional to the arrest of General Gotovina.

The change in attitude towards war crimes committed by Bosniacs after 11 September 2001, when the perception of them shifted from that of a victim to that of those responsible for war crimes, can also be considered political influence.

The differing character of political influence had its effect on the status of the indicted, but also on the status of the Republic of Croatia. That the work of the Hague Tribunal led to the processing of those responsible for war crimes by the judicial systems in Croatia, Bosnia & Herzegovina and Serbia can be cited as a positive effect.

Closing remarks

International prosecution of war crimes has contributed to the start of a shift, in Croatia and Bosnia & Herzegovina as the victims, and in Serbia, as the aggressor and legal successor of the JNA, in the attitude towards war crime and the structuring of a social perception of war crime as unacceptable regardless of on which side it is committed. This is one of the most positive effects of the founding of the Tribunal and is important to Croatia in regards to its history and the divisions created by the unequal treatment of war crimes and the consequences suffered as a result of this by citizens of various political orientations.

The political decisions made by the UN Security Council when setting up the Hague Tribunal prevented a legal qualification of the war waged in Croatia and Bosnia & Herzegovina and caused the work of the Prosecution to be directed to qualifying the conflict as a civil war and to creating a balance of responsibility, thus preventing the rendering of justice, as one of the key goals in the processing of war crimes.

Entrusting the very demanding task of bringing legal action against perpetrators of war crimes to a temporary judicial institution, and moreover one under a single administration, has further prevented the rendering of justice.
The established method of work of the Prosecution (investigating teams assigned to ethnic groups) and the incorporation of intelligence services and their personnel in the investigations and in the drafting of indictments, have facilitated the realisation of the political goals of the Prosecution, but have increased a lack of confidence in the Tribunal.

A conclusive evaluation of the work of the Tribunal in regard to Croatia should be put off until the trials of Croatian generals. The dominant position of the Prosecution in the previous period and the political chores executed in raising indictments need not necessarily encounter the support of the Tribunal.


The answer to the question in what measure the Hague Tribunal is law, justice or politics is not unequivocal, because it is a bit of each. If the Tribunal's mission was defined by political considerations, then the conclusion is valid that politics played a significant role in its work and it can rightly be concluded that the Tribunal shall not render justice.

An expert research project dealing with the work of the Hague Tribunal should be undertaken as soon as possible with the aim of addressing the contentions put forward in this work from the legal and historical aspects, and of addressing the other issues related to the Hague Tribunal that have been on the table throughout this period, with the aim of a well-grounded positioning of the Tribunal and the consequences of its work.

An initiative to establish an independent group of international legal experts that would research and present findings regarding the role and responsibility of the UN Security Council in limiting and directing the work of the Prosecution would also be beneficial.

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