The International Criminal Tribunal for the former Yugoslavia (ICTY, the Tribunal) raised worldwide questions about the legitimacy of internationalized criminal justice and the impartiality of the tribunal with its recent acquittals of Croatian Generals Ante Gotovina and Mladen Markac.
The generals were sentenced to 24 and eighteen years, respectively, for committing crimes of murder and inhumane acts against Croatian Serbs during the war in Yugoslavia. Both men were sentenced for crimes that Croatian troops allegedly committed during Operation Storm, a large-scale operation that began on August 4, 1995, and resulted in the defeat of the Republic of the Serbian Krajina, a self-determined Serbian state.
Gotovina was a colonel general in the Croatian Army and commanded Operation Storm. Markac was the Assistant Minister of the Interior and commanded the special police in Croatia in 1995. In Gotovina’s trial, the prosecution alleged that his shelling offensive killed 324 Serb civilians and soldiers, and displaced almost 90,000 Serbs from a contested territory. Gotovina and Markac appealed their convictions, arguing that they did not intend to target civilians. Judges overturned the ruling the following year, with the majority granting acquittal, due to a lack of evidence that the generals intended to target civilians, based on a totality of the circumstances. Gotovina and Markac returned to Croatia to a hero’s welcome, where they were met in Zagreb’s main square by tens of thousands of people singing nationalist songs and waving flags.
The Appeals Chamber rendered the acquittals when, upon review of the trial court’s decision, it found a number of mistakes in the verdicts. ICTY Chief Prosecutor Serge Brammertz pointed out that the acquittals were issued after the appeals judges “assess[ed] the evidence on the record in its totality and [gave] appropriate deference to a trial chamber’s factual findings.” Many critics of the Gotovina and Markac acquittals cite the dissenting opinions of Judges Fausto Pocar and Carmel Agius. These dissents, however, do not have widespread legal traction because of their harsh tone and misapplication of the legal standard applied in support of the conviction of engaging in a joint criminal enterprise.
In December 2012, university students, joined by Minister of Justice Nikola Selakovic, crowded around the Serbian Parliament to protest the recent acquittals of the Croatian Generals, asking for an extraordinary parliament session to adopt a resolution ensuring fair conclusions for the remaining cases before the Tribunal. In a June 2012 debate at the UN Security Council, members maintained an East-West split on opinions about ICTY rulings. While the United States, Germany, and Great Britain wished to respect the verdicts acquitting Gotovina and Markac, Russia asserted that the decisions were unfair, and China reiterated the importance of maintaining impartiality in internationalized judicial proceedings. At the Security Council hearing, Serbian First Deputy Prime Minister Aleksandar Vucic condemned the acquittals, pointing out that no Croatian indictees have been convicted for war crimes committed against the Serbs, nor has any top Croatian or Bosnian official been charged, despite common belief that all parties committed crimes during the conflict beginning on June 25, 1991, throughout the former Yugoslavia.
Croatian Ambassador to the United Nations Ranko Vilovic, however, stated that although Croatians may be frustrated that individuals who committed war crimes are not being held to the same account as the criminal organization of the Croatian authorities, they are not justified in questioning the validity of the verdicts. Many Serbs do not feel the ICTY is serving justice, and this feeling may increase the divisive ethnic divide between the Serbs, Croats, and Bosniaks, and intensify feelings of victimization, vindication, and persecution. Brammertz claimed that those affected by Operation Storm feel that the international community has not recognized their suffering. According to Brammertz, because justice is being served one-sidedly, this process, which should be characterized by transition and healing, will more likely serve as ammunition for future conflicts.
When the ICTY’s mandate ends in the coming year, its legacy will leave the international community with a number of difficult questions: What has been the purpose of the ICTY? Whose justice has it served? Can internationalized criminal tribunals truly contribute to the transitional justice process? How will the lessons learned from this tribunal inform future tribunals or alternative methods of post-conflict criminal justice? In Syria, although protracted conflict is ongoing, civil society groups and the international community are already discussing the merits and methods of a Syrian ad hoc tribunal. A tribunal, whether administered through the Arab League or through the United Nations, like the ICTY, would raise the same questions for Syria and other nations facing future periods of transitional justice, including jurisdiction for international criminal prosecution.