Croatian Transitional Waltz: Legacy of ICTY and Facing the Past in Croatia
Thesis submitted for
MA in Holocaust and Genocide Studies, University of Amsterdam
by
Petar Finci, 11757906
Mentor: Prof. Dr. Nanci Adler Second reader: Dr. Thijs Bouwknegt
Amsterdam, July 2018
Table of Content
Abstract 4
Chapter 1 – Victim, Aggressor, Victor: Croatia's Complex Legacy of Wars 5 - 16
1.1 – Research relevance and methodology 7 – 11
1.2 - Croatian wars 1991 – 1995 11 – 16
Chapter 2 – Prescribing the Historical Narrative 17 – 27
Chapter 3 – Reluctant Transitional Efforts 1995-2013 28 – 40
3.1 – Domestic prosecution of war crimes 28 – 33
3.2 - Return of refugees 33 – 36
3.3 Truth-seeking and memorialisation 36 – 40
Chapter 4 – The ICTY Legacy and the Croatian War Narratives 41 – 51 Chapter 5 – Winding Down of Transitional Efforts 2013 - 2018 52 – 61
5.1 – Domestic war crimes prosecutions 54 – 56
5.2 - Commemoration and celebration 56 – 61
Chapter 6 – Conclusions 62 – 70
Abstract
As it emerged from the wars in 1995, Croatia was in a unique position among its neighbours in the former Yugoslavia. Like Bosnia and Herzegovina, it was a victim of an external aggression by Yugoslav People's Army following its declaration of independence in 1991. Like Serbia, it became an aggressor in Bosnia and Herzegovina in 1993, in support of Bosnian Croat claims on parts of BiH territory. Unlike any other Yugoslav country, it won a decisive military victory nearly without any external assistance and re-established control over its territories occupied by Croatian Serbs in 1995. In addition to its complex war story, Croatia was singular among the post-conflict former Yugoslav states to fulfil its main post-war political goal of joining the European Union in 2013, thus arguably completing the process of political transition into a stable democracy less than 20 years after the end of war.
Like other countries in the region of the former Yugoslavia, Croatia developed a dominant narrative of its recent past, which had an important influence on its transitional justice efforts. This narrative evolved over the years, in an often tense interaction between Croatian authorities, the International Criminal Tribunal for the former Yugoslavia, European Union and local non-governmental organisations. This thesis traces the historical development of the narratives of the recent past in Croatia and how they informed the transitional justice efforts. Particular focus is paid to more recent developments in Croatian transitional justice, from 2013 – 2018, in the wake of the Croatian accession to the European Union, in 2013, as well as the final ICTY judgements relevant to Croatian war past and the ICTY's closure, in 2017.
Chapter 1 – Victim, Aggressor, Victor: Croatia's Complex Legacy of Wars
During the 1990s, the country formerly known as the Socialist Federal Republic of Yugoslavia broke apart in a series of bloody wars1, which resulted in nearly 140.000 dead and millions of displaced
persons. Sometimes labelled “the Wars of Yugoslav Succession”2, the break-up of multi-ethnic
Yugoslavia led to establishment of 7 new “ethnopolitical nation states”3 or entities: Slovenia, Croatia,
Bosnia and Herzegovina (itself divided into two ethnopolitical entities), Serbia, Kosovo, Macedonia and Montenegro). With the exception of the war in Slovenia, and to a certain extent the war in Macedonia, the conflicts were characterized by “policies of exclusion”4 of ethnic groups considered
undesirable in the emerging nation states. Euphemistically known as “ethnic cleansing”, these policies were often implemented by brutal forcible transfer and deportation of undesired groups and included atrocities against civilian population unseen on European soil since World War II. Already in 1992, the significant international political, military, humanitarian and media involvement in the conflicts helped to bring allegations of mass violations of international humanitarian law in Croatia, and, in particular, Bosnia and Herzegovina to the attention of both international general public and policy makers. The combination of public pressure and a growing political consensus regarding the “need for a legal process to address war crimes and gross human rights violations”5 resulted in the establishment, in May
1993, of the first international criminal court since military tribunals in Nuremberg and Tokyo: International Criminal Tribunal for the former Yugoslavia (ICTY or the Tribunal).
With the establishment of the ICTY began what Ruti G. Teitel called the “Phase III of transitional justice”, which incorporated “the complex relationship between the individual and the state as a legal scheme which enables the international community to hold a regime's leadership accountable and condemn a systematic persecutory policy, even outside the relevant state.”6 Following the initial
attempts to deal with a legacy of mass violence using judicial means in Nuremberg and Tokyo in Phase 1 Slovenia 1991; Croatia 1991-1995; Bosnia and Herzegovina 1992 – 1995; Kosovo 1998-1999; Macedonia 2001. For an
authoritative overview of the wars in the former Yugoslavia, see note 2. For basic information, see an ICTY introduction to Yugoslav wars available online at http://www.icty.org/en/about/what-former-yugoslavia/conflicts (last accesed on 18 April 2018).
2 Charles Ingrao and Thomas A. Emmert (Eds.), Confronting the Yugoslav Controversies:A Scholars' Initiative (West Lafayette: Purdue University Press,2009), 93.
3 Martina Fischer and Ljubinka Ziemer-Petrović, Dealing with the Past in the Western Balkans - Initiatives for Peacebuilding and Transitional Justice in Bosnia-Herzegovina, Serbia and Croatia. (Berghof Report issue 18, 2013). 4 Ibid.
5 Ibid, emphasis in the original.
I, and the various attempts to employ different, mostly non judicial means to address violent past in countries of south America in Phase II, the Phase III marked a return to the Nuremberg model of the transitional justice based on international humanitarian law and the notion of accountability.7 With the
establishment of the subsequent ad hoc international courts (Rwanda, Sierra Leone, Lebanon, East Timor), Phase III also brought about a “normalisation of transitional justice”8, or an expectation that
past injustice will be addressed in the period of transition, either by judicial or extra-judicial means (such as in South Africa with the Truth and Reconciliation Commission). Another development in this phase was the coining of the term “transitional justice” itself9, which enabled scholars and practitioners
to observe and contribute to better understanding of a complex post-conflict judicial, extra-judicial and political mixture of measures under this umbrella signifier. For the purposes of this thesis, I will rely on the definition of transitional justice adopted by United Nations in the report of the Secretary General on the Rule of Law and Transitional Justice from 2006, according to which transitional justice “comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.”10
When the ICTY was established in May 1993, the wars in Croatia and Bosnia and Herzegovina were still very much ongoing (albeit with a cease-fire agreement in place in Croatia), and the wars in Kosovo and Macedonia were still years away. Any role that the ICTY would eventually play in the post-conflict recovery and transitional justice in the former Yugoslavia was far from obvious, even though some early ICTY actors had a clear vision of the ICTY becoming a tool “for promoting reconciliation and restoring true peace”.11 But, as the wars in Croatia and Bosnia and Herzegovina drew to their
respective ends in 1995, and as indictments started to be issued by the ICTY's Office of the Prosecutor in increasing numbers and with increasing seniority of the accused, it became clear that the ICTY 7 Ibid.
8 Ibid.
9 International Center for Transitional Justice credits “various American academics” with coining the term in early 1990s. See https://www.ictj.org/about/transitional-justice, (last accessed on 18 April 2018).
10 United Nations, Report of the Secretary General, The rule of law and transitional justice in conflict and post-conflict societies (United Nations, 2004), 4.
11 See the first annual report of the ICTY President to the Securitz Council from 1994:
would have a significant role in the post-conflict societies in the former Yugoslavia. As Jelena Subotić has convincingly argued, “in the absence of broader transitional justice framework in the former Yugoslavia, the ICTY has become the principal instrument of both retributive and restorative justice”.12
In addition, the facts established in the ICTY judgements would come to play an important, if often contested, role in the formation of the historical narratives about the wars in the 1990s in the respective countries. The creation and preservation in public memory of these narratives would, in turn, become one of political imperatives of the political elites, in an attempt to homogenise selected groups around a common understanding of the past. This significantly influenced the will of state actors to pursuit domestic transitional justice measures, which could potentially “dent a heroic picture”13 promoted by
the state. More often than not, this official reluctance to face the past resulted in local non-governmental local human rights community being the major force behind the attempts to come to terms with the legacy of wars. But, as Subotić notes, these communities had long “relied on the ICTY to be its 'force multiplier' in building transitional justice efforts”14, creating a domestic bottom-up
pressure on the authorities, with strong support of the international community and the ICTY.
While the countries evolving from the former Yugoslavia shared much of the transitional justice dynamic described above, the paths taken and the results achieved were very different depending on a range of political and social factors. For reasons set out in the following section, this thesis will explore this complicated dynamic and its results in terms of transitional justice using the example of Croatia. 1.1. Research relevance and methodology
As it emerged from the wars in 1995, Croatia was in a unique position among its neighbours in the former Yugoslavia.15 Like Bosnia and Herzegovina, it was a victim of an external aggression by
Yugoslav People's Army following its declaration of independence in 1991. Like Serbia, it became an aggressor in Bosnia and Herzegovina in 1993, in support of Bosnian Croat claims on parts of BiH territory. Unlike any other Yugoslav country, it won a decisive military victory nearly without any external assistance and re-established control over its territories occupied by Croatian Serbs in 1995. In 12 Jelena Subotić, “Legitimacy, Scope, and Conflicting Claims on the ICTY: In the Aftermath of Gotovina, Haradinaj and
Perišic” (Journal of Human Rights, 2014, 13:2), 170-185.
13 Michel-André Horelt and Judith Renner, "Denting a Heroic Picture A Narrative Analysis of Collective Memory in Post-War Croatia" (Perspectives : review of Central European affairs, 2008, 2), 5-27.
14 Ibid.
addition to its complex war story, Croatia was singular among the post-conflict former Yugoslav states to fulfil its main post-war political goal of joining the European Union in 2013, thus arguably completing the process of political transition into a stable democracy less than 20 years after the end of war.16
As the youngest member of the European Union, Croatia is considered to have completed all of the requirements placed before the candidate states, including its cooperation with the ICTY. As Subotić noted already in 2009: “Since Gotovina’s17 transfer to The Hague was the last requirement Croatia had
to fulfil on its path to EU membership, international actors no longer have much leverage in terms of influencing Croatian debates about past crimes.”18 On the other hand, it is a widely accepted assessment
that any progress Croatia made in its transitional justice processes, from the return of refugees, restitution of property rights to cooperation with the ICTY and local prosecutions of crimes committed by Croats against Serbs, were largely a result of the pressure to confirm to the requirements of the EU accession process.19 The case of Croatia therefore provides an opportunity to examine the influence of
international and domestic transitional justice measures, or the lack thereof, on the process of political transition, which in the Croatian case had progressed much further than Bosnia and Herzegovina, Serbia or Kosovo.
While transitional justice in Croatia received much less academic attention than either in Bosnia and Herzegovina or Serbia, there is a body of scholarly literature on the this topic, much of it concerned with the cooperation with the ICTY, which in early 2000s was a requirement Croatia had to fulfil in the process of joining the EU.20 However, with the acquittal of Gotovina et al by the ICTY in November of
2012, Croatia becoming a full EU member state in July 2013, and the ICTY closing at the end of 2017, 16 Slovenia, which joined the EU in 2004, is not considered for the purposes of this thesis to be a post-conflict country, as
the war of secession from Yugoslavia in 1991 lasted for ten days.
17 General Ante Gotovina was the last Croatian fugitive from the ICTY. He was arrested in 2005, and cleared of all charges in by the ICTY Appeals Chamber in November 2012. See more about Gotovina and the ICTY in Chapter 2 below. 18 Jelena Subotić, “The Paradox of International Justice Compliance.” (International Journal of Transitional Justice, 2009,
3 (3)), 362–83.
19 Banjeglav, Conflicting Memories; Pavlaković, Croatia, the International Criminal Tribunal for the Former Yugoslavia, and General Gotovina as a Political Symbol; Subotic, The Paradox of International Justice Compliance.; Vukušić, Judging Their Hero.
20 Clark, The ICTY and Reconciliation in Croatia; David, International Criminal Tribunals and the Perception of Justice; Jović, Croatia after Tuđman; Lamont, International Criminal Justice and the Politics of Compliance; Ljubojevic, Judging Values of the Homeland War; Peskin and Boduszynski, Post-Tuđman Croatia; Pavlaković, Better the Grave than a Slave; Perkovic, National Heroes Vs. EU Benefits; Ristic, Silencing Justice; Spoerri, Justice Imposed; Subotić, The Paradox of International Justice Compliance; Vukušić, Judging Their Hero;
the processes of transitional justice in Croatia seem to have somewhat slipped off of both the political and the academic radar.
This thesis argues that important questions remain in the wake of the ICTY’s closure and its legacy with regard to Croatia: Did the acquittal of Croatian generals and the accession to EU mark the end of Croatia’s attempts to face its recent past? Is the official, state-sponsored narrative of the Homeland War henceforth established as hegemonic? Will Croatia, and how, address the many unresolved crimes committed by Croatian forces during the Homeland War in the absence of EU conditionality? And, will the enthusiasm for ICTY findings that conform with the official narrative translate into soul-searching in cases that challenge it (in particular with regards to Croatia's role in the war in Bosnia and Herzegovina)?
To answer these questions, this thesis examines the current state of the transitional justice in Croatia in context of its historical record in this field. Drawing on secondary literature, Croatian official documents and the ICTY documents related to relevant cases, Chapter 2 addresses the key element of the Croatian transitional justice process: the establishment of an official, state-sponsored historical narrative about the war in Croatia, which would become promoted as a founding narrative of the young state. This narrative positioned Croatia as an innocent victim of Serbian aggression, which rose heroically to defeat the aggressor and liberate the country, in what became known in Croatia as the “Homeland War”. Initially severely challenged by the ICTY, this narrative would seem to have received its judicial confirmation with the ICTY acquittal of Gotovina et al for alleged crimes committed against Croatian Serbs in 1995 and the subsequent Croatian EU membershi Chapter 2 covers another element of the Croatian war past: Croatia's involvement in the war in Bosnia and Herzegovina. This episode was largely omitted from the official Homeland War narrative, but it made an important contribution to the discussion about the past in Croatia, again mostly in relation to the ICTY trials and judgements that implicated Croatian leadership in criminal attempts to divide the neighbouring country and claim parts of its territory.
Chapter 3 presents a brief overview of the historical development of the transitional justice measures in Croatia, including domestic war crimes trials, return of refugees, restitution of property, truth-seeking and memorialisation. Drawing on official Croatian documents, reports of non-governmental
organisations involved in transitional justice and existing academic literature, this chapter outlines the progress made by Croatia prior to 2013 and its EU membershi
One of the objectives of this thesis is to explore to what extent and in what way Croatia continued with the transitional justice processes in the absence of external pressure. To this end, Chapter 4 looks into how the major opinion-makers, such as the politicians, media and church in Croatia channelled the discussion about the Homeland War since the Gotovina et al acquittal in November 2012 and Croatia's membership in the EU in July 2013. Chapter 4 is based on the archival research and qualitative analysis of 200 of relevant articles published by five major Croatian media outlets, which represent a cross-section of the Croatian political spectrum with respect to issues of dealing with the past. As will be shown below, the basic political positions in Croatia regarding the recent past are remarkably similar across the political spectrum. The major difference between the political right, left and center in Croatia is the motivation for dealing with the problematic elements from the past, such as crimes against civilians committed by the Croatian troops – the nationalist political right would rather avoid the topic altogether, but it understands that the past must be dealt with in some manner because of international pressure; the political center and left, while exposed to the same pressure, sometimes cite the respect for the rule of law as a political value that motivates their attempt to deal with the past; while a small minority of political and non-governmental actors cite the respect for victims and national soul-searching as motivation to deal with the past.
For purposes of this thesis, I researched the web-based archives of the following Croatian media outlets: Večernji list (the most popular daily, leaning to the right of political spectrum), Novi list (daily, leaning left), Tjednik Novosti (weekly magazine of Serbian minority, leaning left), t-Portal.hr (internet based, politically centrist) and Dnevnik.hr (an internet portal associated with Nova TV station, which broadcasts the most watched news program in Croatia, politically centrist). As the research of all available articles published in the said media outlets and relevant to the discussed topics is beyond the scope of this thesis, the research and analysis include articles published around specific dates from November 2012 (Gotovina acquittal) to the time of writing in May-June 2018. The dates considered for research and analysis are as follows: 5 August, which marks the victory in Homeland War; 28 May, which marks the Day of military forces; 8 October, the Independence Day; and 16-18 November, which time period covers the annual commemoration of one of the symbols of Homeland War – the fall of
Vukovar - as well as the day Gotovina et al were acquitted. While not representative, this research provides an illustrative insight into the dominant narratives in Croatia from 2013 onwards.
Chapter 5 is based on research and analysis of reports on transitional justice in Croatia from 2013 until the time of writing. A Croatian NGO in particular devoted to monitoring developments in transitional justice in Croatia is called Documenta – Center for Facing the Past (Documenta – Centar za suočavanje s prošlošću). Documenta issues regular annual and thematic reports which provide a wealth of empirical information regarding war crimes trials, victims' compensation and property restitution issues, as well as wider issues of discrimination, hate speech and the process of facing the past. The analysis of these reports contributes to an understanding of the concrete measures taken by the Croatian state in the field of transitional justice.
In Chapter 6 I will present the conclusions, in which I will offer some reflections on the development of the Croatian narrative about the wars from 1990s, the factors that influenced these narratives, as well as how these narratives in turn influenced the Croatian transitional justice efforts. In addition, I will identify some trends in the dynamic of the Croatian transitional justice and offer a prognosis of future developments in the absence of significant external pressure on Croatia to deal with its recent past. In order to facilitate reading and understanding of the thesis, the following section will provide a brief background overview of the wars fought by Croatia from 1991 to 1995, including some of the key actors mentioned in following chapters.
1.2 – Croatian wars, 1991 – 1995
The first post-communist multi-party elections in Croatia, in April of 1990, brought a resounding win to the Croatian Democratic Union (Hrvatska demokratska zajednica – HDZ), led by a former Yugoslav general Franjo Tuđman.21 The election of an openly nationalist party keen on creating an independent
state for Croatian people did little to calm the already existing tensions between the minority Croatian Serbs and Croatian authorities.22 Supported and encouraged by the regime of Slobodan Milošević in
21 Marcus Tanner, Croatia: A Nation Forged in War (New Haven and London: Yale University Press, 2001), 228.
22 For an authoritative account of the discussion related to causes of the war in Croatia, see Bjelajac and Žunec, The War in Croatia, 1991-1995 in Ingrao and Emmert, supra note 2. For a detailed account of the course of the war in Croatia, see Tanner, Croatia: A Nation Forged in War.
Serbia, with military protection by the Yugoslav People's Army (JNA), Croatian Serbs openly rejected the new Croatian authorities, which culminated in armed rebellion in spring of 1991. Already in summer of that year, Croatian Serbs, backed by the JNA, started taking by force territories that they claimed as theirs. The overwhelming military strength of the JNA ensured that Croatian Serbs took control of nearly one third (26.5%) of the territory of Croatia by the time the cease-fire agreement was signed in January of 1992.23 The war brought wide scale death and devastation to the young state, with
thousands of dead and missing, some 12 percent of housing stock destroyed and nearly 30 percent of its industrial capacity lost.24 In addition, the number of internally displaced persons from the areas
occupied by Croatian Serbs steadily grew, reaching hundreds of thousands in 1992, as the Serb authorities implemented a policy of “ethnic cleansing” in the territories they held.25 The signing of the
internationally brokered cease-fire agreement and deployment of UN peace keeping force along the borders of the newly established Croatian Serb entity (called Serbian Republic of Krajina – Republika Srpska Krajina, or RSK) brought an end to the first phase of war.26 This phase of war formed the basis
for the development of a part of the Croatian Homeland War narrative of Croatia as a victim of an external aggression by Serbia and the JNA, supported by local Serbs. The brutal devastation of Croatian town and villages by the JNA (notably, Vukovar in November 1991) and the policy of forcible deportation of Croat population from the territories occupied by Croatian Serbs made a strong impression on the future understanding of the nature of conflict, which would significantly inform future interest in the transitional justice processes in Croatia. This phase of war also formed a basis for Croatian 1999 application against the Federal Republic of Yugoslavia for alleged violations of the 1948 UN Genocide Convention.27
In 1992, the war spread to the neighbouring Bosnia and Herzegovina. Following the first multi-party elections in 1990, in which the nationalist parties of Bosnian Croats, Muslims and Serbs respectively won the control of the national parliament and government, Bosnia and Herzegovina entered a period of protracted political crisis within the context of Yugoslav dissolution.28 By autumn of 1991, the crisis
escalated irreversibly, with the Muslim and Croat representatives in the Bosnian Parliament voting for 23 Tanner, Croatia: A Nation Forged in War, 277.
24 Ibid, 278. 25 Ibid.
26 Marie-Janine Calic. “Ethnic Cleansing and War Crimes, 1991-1995” In Ingrao and Emmert, supra note 2, 122. 27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015.
sovereignty and independence from Yugoslavia, while the Serb representatives left the joint parliament to constitute a separate, Serb parliament and declared their decision to remain in Yugoslavia.29
Following two ethnic referendums, one Serb and one Croat/ Muslim, Bosnia and Herzegovina declared independence from Yugoslavia in March 1992, followed by the Serb side's declaration of independence from Bosnia and Herzegovina in April 1992.30
As Marie-Janine Calic notes, “during most of 1992, Bosniaks and Croats fought together against the Bosnian Serbs. Their armed forces concluded a formal alliance and established joint command structures.”31 However, the alliance was never much more than formal, as the Croatian political and
military body in Bosnia and Herzegovina, Croatian Defence Council (Hrvatsko vijeće obrane – HVO) pursued a two-pronged tactic of both cooperating with the Bosnian Muslims against the Bosnian Serbs and preparing for division of Bosnia along the ethnic lines. Consequently, in July 1992, HVO proclaimed a Croat Union of Herceg-Bosna, practically a state within a state with its own police, army, currency and education.32 Significantly, the new entity insisted on the right to rule over several districts
in which Bosnian Muslims were a majority.33 The resulting tensions between formal allies intensified
throughout the later part of 1992 and increasingly led to armed incidents, which escalated in spring of 1993 into a full-blown war.
Initially, the fighting was concentrated in the area of Central Bosnia, known as the Lašva Valley, since the Croat and Muslim populations were the most mixed in this area and establishing control here would create favourable position in post-war territorial arrangements. Croatian Defence Council, led in this area by HDZ politician Dario Kordić and General Tihomir Blaškić, embarked on a violent campaign against Bosnian Muslims, which attempted to “eject the non-Croat population”.34 This resulted in one
of the infamous episodes of the war in Bosnia and Herzegovina – the 16 April 1993 massacre of more than a hundred Muslim civilians, including women and children, in the village of Ahmići. However, Bosnian Muslims gradually gained military control of most of the area of Central Bosnia, causing exile of tens of thousands of Croats, and committing a score of crimes against Croat (and Serb) civilians in
29 Ibid, 123. 30 Ibid. 31 Ibid, 127.
32 Tanner, Croatia: A Nation Forged in War, 287. 33 Ibid.
the process.35 The fighting between the former allies reached its unfortunate peak in the capitol of
Herzegovina, Mostar, which was mostly reduced to rubble over the course of 1993, including its famous medieval bridge over the River Neretva.36 Thousands of Bosnian Muslim men were held in
camps organised by the Bosnian Croat authorities, in which crimes against international humanitarian law were committed.37 The increasing international pressure resulted in signing of a series of
agreements between Bosnia and Herzegovina and Croatia in March 1994, which in effect finished the Croat-Muslim conflict in Bosnia and Herzegovina.38 The Croat – Muslim conflict resulted in a number
of indictments before the ICTY against both Bosnian Croat and Bosnian Muslim alleged perpetrators, which will be discussed in more detail in Chapters 2 and 4.
In the meanwhile, back in Croatia, the Croatian troops launched in September 1993 an offensive to recapture the so-called 'Medak pocket' south of Gospic. As Marcus Tanner notes, “The Croats captured a few villages, and then caused an uproar by executing at least eighty villagers who had not fled in time, many of them elderly women.”39 As will be shown in Chapter 2, this military action and its
aftermath caused severe political consequences when military leaders such as Janko Bobetko, Chief of Staff of the Croatian Army, Rahim Ademi, Commander of Operational Area Gospic and Mirko Norac, Commander of 9 Guard Brigade were indicted by the ICTY or domestic courts (or both) for war crimes committed during the action.
The final episodes of the war in Croatia, often regarded together even though they occurred with nearly three months between them, were operations Flash and Storm, from May and August 1995, respectively. These were the operations in which Croatia regained most of the territory previously occupied by Croatian Serbs, which would form the backbone of the heroic narrative of the Homeland War. Both were swift military operations, which resulted in a large-scale exodus of the Serb population from the affected areas.
Operation Flash took place from 01 to 04 May in the area of western Slavonia, in the east of Croatia. Croatian troops attacked the Serb defenders with artillery and airplanes, causing “chaos and panic” and 35 Tanner, Croatia: A Nation Forged in War, 290.
36 Ibid.
37 Ibid, 292. Calic, Ethnic Cleansing and War Crimes, 122. 38 Tanner, Croatia: A Nation Forged in War, 292.
total collapse of defence by the end of 04 May.40 “At least half of western Slavonia's Serb population”
are estimated to have fled the area before the Croat advances.41 In retaliation, the Croatian Serb leader
Milan Martić ordered a long-range rocket attack on civilian targets in Zagreb on 02 and 03 May, for which he was indicted by the ICTY already by the end of July.42 Reports of violations of international
humanitarian law by the Croatian forces during Operation Flash did not lead to indictments before either the ICTY or domestic courts.43
Emboldened by the success of the Operation Flash, and “with no peace initiatives on the table”44, the
Croatian authorities planned a total crush of the Serb insurgency and re-establishment of control over the area of Serb Republic of Krajina. The preparation for the operation was coordinated with the Army of Bosnia and Herzegovina and resulted in parts of Bosnian territory being retaken from Bosnian Serbs, thus opening corridors to approach the RSK from both Bosnia and Croatia.45 The Operation Storm
began on 02 August 1995. “The attack managed to break the Serb defenses everywhere, and in a day or two the HV attained all its main objectives.”46 In what will become one of the key controversies of the
Operation Storm, the Serb leadership ordered the evacuation of Serb civilian population from the affected areas.47 On the other hand, Croatian government publicly guaranteed the right of the Serb
civilians “who were not involved in war crimes” to stay in their homes or to return following the end of hostilities.48 However, as Marcus Tanner notes, the returning Krajina Croats and Croat soldiers in the
following weeks “made mockery” of the public promises made by the government, when thousands of Serb homes were burned down and looted, and hundreds of remaining Serb civilians killed.49 On the
one hand, a military victory of the highest order and on the other hand, a humanitarian catastrophe which resulted in exodus of more than 150.000 Serbs from Croatia, the Operation Storm would become a centerpiece of competing narratives about the Homeland War in the years to come. Its political and military leaders would be celebrated in Croatia as heroes who created the modern Croatian state, the ICTY would indict them for participation in crimes against humanity, while Serbia would file a 2010 40 Mile Bjelajac and Ozren Žunec, "The War in Croatia, 1991-1995”, in Charles Ingrao and Thomas A. Emmert (Eds.),
Confronting the Yugoslav Controversies:A Scholars' Initiative (West Lafayette: Purdue University Press, 2009), 252. 41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid, 253. 45 Ibid, 255. 46 Ibid. 47 Ibid.
48 Tanner, Croatia: A Nation Forged in War, 298. 49 Ibid.
counter-charge against Croatia at the International Court of Justice for violation of UN Genocide Convention.50
Even though the Operation Storm would become the symbol of final victory and the end of war in Croatia, the final development in the war took place in 1998, when the Croatian territory that was still under the Serb control, in eastern Slavonija, was peacefully reintegrated into Croatia in an UN sponsored agreement.51
In a nutshell, the Croatian war story took the country from the victim of aggression, to an aggressor, to a military victor, opening along the way most of the questions that transitional justice was created to confront. The following chapter explores some of the complicated dynamic of creation of the Homeland War narrative in Croatia, in an interaction between the state, the ICTY, the non-governmental organisations and the international community.
50 See supra note 27. Both applications were rejected by the International Court of Justice in its judgement from 2015, and will not be discussed in detail in this thesis, as they had only tangential influence on the development of war narratives in Croatia.
Chapter 2 – Prescribing the Historical Narrative
“The Hague Tribunal! The Six Croats are not war criminals! We reject your judgement with contempt!”52
Message after message flooded the inbox of the Outreach Programme of the International Criminal Tribunal for the former Yugoslavia (ICTY or the Tribunal) in the last days of November 2017. In the first part of December, there were more than a hundred, all of them containing a paraphrase of the last public words spoken by Slobodan Praljak53, seconds after his 20 years sentence was confirmed by the
ICTY's Appeals Chamber. The fact that Praljak drank poison in open session upon hearing his sentence certainly contributed to this comparably massive expression of support54 for six political and military
leaders of Bosnian Croats convicted of crimes against humanity and war crimes committed in Bosnia and Herzegovina. But, the reaction of a part of the Croatian public to the final ICTY judgement was hardly an exception in the context of Croatian transitional justice and the role the ICTY played in its different phases. This was just the final element contributing to a complicated puzzle of the often irreconcilable relationship between the narrative created by the Croatian authorities with respect to the wars in 1990s, the international pressure on Croatia to cooperate with the ICTY, the internal dynamic of transitional justice and the ICTY's findings. Built over more than two decades, this relationship shaped the Croatian political and social reality in more ways than one. This chapter will outline the development of this relationship, some of its major actors, and the way it shaped the establishment of a dominant Croatian narrative on the wars in 1990s.
The long and winding relationship between Croatia and the ICTY began in 1995, when the fledgling ICTY's Office of the Prosecutor issued its first indictments against Croatian Serbs and Yugoslav People's Army (JNA) officers for their alleged involvement in war crimes and crimes against humanity committed in Croatia in 1991 and 1995.55 These initial indictments included allegations of crimes
52 UN ICTY, Outreach Programme email correspondence archive, available through UN Mechanism for Interrnational Criminal Tribunals.
53 UN ICTY, Prosecutor vs. Prlić et al, Public transcript, 29 November 2017, 923: “Judges! Slobodan Praljak is not a war criminal. I reject your judgement with contempt.” Available at http://www.icty.org/x/cases/prlic/trans/en/171129ED.htm. 54 In comparison, a life sentence to Bosnian Serb general Ratko Mladić a week earlier resulted in less than five messages
from his supporters.
55 UN ICTY, Prosecutor vs. Martić, Indictment, 25 July 1995, available at http://www.icty.org/x/cases/Martić/ind/en/mar-ii950725e.pdf; UN ICTY, Prosecutor vs. Mrkšić et al, Indictment, 26 October 1995, available at
committed in isolated incidents (rocket attack on civilian targets in Zagreb in May 1995, and killing of some 200 PoWs near Vukovar in November 1991). Indictments against political leaders of Croatian Serbs, such as Milan Martić, were subsequently amended to include a wider scope of crimes, more representative of the role of the accused and the facts on the ground of the early years of the war in Croatia. Eventually, the OTP charged additional persons for crimes committed against ethnic Croats in Croatia, such as the former President of Serbia, Slobodan Milošević, who was charged with orchestrating the campaign of take-over of parts of Croatian territory and ethnic cleansing of ethnic Croat population from these areas in 1991.56 While there was much discontent in Croatia regarding the
scope of the indictments, the number of the accused and their subsequent sentences, the ICTY indictments against Croatian Serbs and Serbian political and military officials were largely in agreement with the narrative of war that existed in Croatia at the time.
As Vjeran Pavlaković noted, “During the horrific violence that accompanied Yugoslavia’s collapse, Croats, and much of the international community, justifiably saw Croatia as the victim of aggression; thousands of civilians lost their lives, tens of thousands more were displaced, and many of Croatia’s historic cities were mercilessly shelled.”57 Indeed, the Croatian Serb and Serbian leadership with the
help of the JNA and local Serb forces occupied about a third of Croatian territory in the wake of Croatian declaration of independence, in June 1991. More importantly, they orchestrated a campaign of persecution of ethnic Croats in occupied territories from 1991, the goal of which was the “establishment of an ethnically Serb territory through the displacement of the Croat and other non-Serb population”.58
The objective facts of the early years of Croatian war thus provided a basis for creation of a “founding narrative” of the young state, the narrative of the “Homeland War”. A very strong element of this narrative was that Croatia was a victim of aggression and was waging a just and defensive war. At the same time, the “Homeland War” narrative celebrated the victorious Croatian armed forces for their decisive victory over the local Serb troops in 1995. Between a victim, on the one hand, and a victor, on 56 UN ICTY, Prosecutor vs. Slobodan Milošević, Initial Indictment “Croatia”, 27 September 2001, available at
http://www.icty.org/x/cases/slobodan_Milošević/ind/en/ind_cro010927.pdf.
57 Vjeran Pavlaković, “Better the Grave than a Slave: Croatia and the International Criminal Tribunal for the Former Yugoslavia.” In Croatia since Independence: War, Politics, Society, Foreign Relations, edited by Sabrina Ramet, Konrad Clewing, and Reneo Lukic. (Munich: R. Oldenbourg Verlag, 2008), 447–78.
58 UN ICTY, Prosecutor vs. Martić, Trial Judgement, 12 Jun 2007, available at:
the other, there was little room left in this narrative for examination of possible imperfections on the Croatian side, some of which may have amounted to war crimes or crimes against humanity. It was therefore not entirely surprising that the ICTY indictments alleging Croatian wrong-doings during the 1990s were met with little enthusiasm in Croatia.
Barely a few months after the first indictment against the Croatian Serbs, the OTP issued its first indictment against Bosnian Croat regional political and military leaders, for crimes allegedly committed in Central Bosnia during a Bosnian Croat-Muslim conflict in 1993.59 Initially, the
indictments did not allege participation of regular forces of the Republic of Croatia in this conflict. However, the Prosecutor did allege that “a state of international armed conflict and partial occupation” existed on the territory of Bosnia and Herzegovina, since the existence of an international armed conflict was a prerequisite for proving charges of grave breaches of Geneva conventions from 1949.60
This requirement had a huge significance for presentation of evidence and subsequent findings, because the OTP in effect set out to prove that the Republic of Croatia was actively involved in the conflict in the neighboring state, which made the conflict international in character. Consequently, after an accused Tihomir Blaškić voluntarily surrendered to the ICTY, in April of 1996, much of his subsequent trial revolved around the issues related to an attempt to prove that the Republic in Croatia, led by the then President Franjo Tuđman, significantly and directly contributed to a campaign of persecution of Bosnian Muslims by Bosnian Croats.61
As a late Croatian journalist, Jasna Babić, showed in her 2005 book Blaškić Conspiracy, Croatian authorities at the time responded by a massive action of an extensive network of Croatian intelligence services, which selectively provided and withheld documents from both the OTP and the Blaškić's defence.62 Evidently, the interest of the Croatian leadership was to prevent information about its
involvement in the war in Bosnia and Herzegovina from being presented in court. The efforts of the intelligence services notwithstanding, the Trial Chamber reached the following conclusion in its 59 UN ICTY, Prosecutor vs. Kordić et al, Indictment, 10 November 1995, available at
http://www.icty.org/x/cases/Blaškić/ind/en/bla-ii951110e.pdf.
60 See Report of the secretary General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, para. 37, available at http://www.icty.org/x/file/Legal%20Library/Statute/statute_re808_1993_en.pdf. The report contains the future Statute of the International tribunal, as well as comments on, among other things, competence of the Tribunal, including its legal jurisdiction over grave breaches of the Geneva Conventions from 1949.
61 Involvement of Croatia in the conflict is discussed between paragraphs 77 and 123 in the Blaškić Trial Judgement.
http://www.icty.org/x/cases/Blaškić/tjug/en/bla-tj000303e.pdf.
judgement from March 2000:“ In the light of all the foregoing and, in particular, the Croatian territorial ambitions in respect of Bosnia-Herzegovina detailed above, the Trial Chamber finds that Croatia, and more specifically former President Tuđman, was hoping to partition Bosnia and exercised such a degree of control over the Bosnian Croats and especially the HVO63 that it is justified to speak of
overall control.”64 This was a most unwelcome complication for the guardians of the Croatian official
narrative, as it presented Croatian politics from early 1990s as predatory and the Tuđman's regime as similar to, and indeed in compliance with, the regime of Slobodan Milošević when it comes to the violent partition of Bosnia and Herzegovina.65
The Blaškić judegement coincided with a turbulent political period in Croatia. The first Croatian President and the man posthumously named as the most responsible for Croatian aggressive policy in Bosnia, Franjo Tuđman, died barely four months before the judgement, in December of 1999. The party that led Croatia since 1990, the right wing, nationalist Croatian Democratic Union (HDZ), lost the elections and was replaced by a coalition led by the left wing Social Democratic Party (SDP) in January 2000. Another significant political change was an election of Stjepan Mesić as President of Croatia in February 2000. As Peskin and Bodusinsky show, the new leadership initially appeared to have a more “forthcoming spirit” when it comes to cooperation with the ICTY66, as well as perhaps to
admitting policy mistakes and possible criminal activities of the former leadershi
President Mesić, in particular, was vocal in condemning Tuđman's policy in Bosnia and Herzegovina and promising that Croatia will fulfill its obligations in cooperation with the ICTY. One typical example is Mesić's speech on the Statehood Day, 30 May 2000:” The cooperation of the Republic of Croatia with the International criminal court [sic], as well as the clear determination of such a policy will continue. […] The line of separation between politics and crime must be the separation between legal and legitimate defence, on the one hand, and occupation and ethnic cleansing, on the other hand.”
67 During his two presidential mandates, Mesić was the key political force in the processes that
Zambelli described as “discursive strategies of separating Croatia from the figure of the late president 63 Hrvatsko vijeće obrane (Croatian Defence Council), an armed force of Bosnian Croats during the war.
64 UN ICTY, Prosecutor vs. Blaškić, Trial Chamber Judgement, 03 March 2000, 43, available at:
http://www.icty.org/x/cases/Blaškić/tjug/en/bla-tj000303e.pdf. 65 Ibid, para. 105.
66 Victor Peskin and Mieczyslaw Boduszynski. “International Justice and Domestic Politics: Post-Tudjman Croatia and the International Criminal Tribunal for the Former Yugoslavia” (Europe-Asia Studies, Vol. 55, No. 7, 2003), 1125. 67 Available, in Croatian, at http://www.stjepanMesić.hr/hr/arhiva-govori/30052000-zagreb-dan-dr%C5%BEavnosti
Tuđman”.68 This strategy of separating the state from any one individual, even if they are using state
resources with state compliance to pursue their activities, would over time enable the creators of the Homeland War narrative to ascribe any wrongdoings to individuals, while preserving the sanctity of the overall national war effort. Another significant contribution by Stjepan Mesić was to open the Presidential archives of the Tuđman regime to the ICTY investigators (and to Blaškić's defence), which produced a wealth of evidence related to Tuđman's policy in Bosnia and Herzegovina and was used abundantly in subsequent ICTY trials.
A major obstacle to establishing a more balanced narrative about the wars came in October 2000, when the Croatian parliament passed a Declaration on Homeland War, which in Paragraph 2 stated the following:” The Republic of Croatia fought a just and legitimate, a defensive and liberating, and not an aggressive or conquering war towards anyone, during which it defended its territory from greater-Serbian aggression within its internationally recognised borders.”69 As Tamara Banjeglav argued “[t]he
Declaration is significant because it insists on a uniform and unambiguous interpretation of the recent past”.70 In the political circumstances of the early 2000s in Croatia, the Declaration served several
purposes: it renounced the findings of the Blaškić Trial Judgement, without mentioning Bosnia and Herzegovina explicitly; it preemptively rejected the anticipated allegations contained in the indictments, yet to be issued, against Croatian officers for crimes committed during the 1995 “Operation Storm”; and it represented an attempt of the left-wing coalition to take control of the official historical narrative of the “Homeland War”, which the right-wing opposition was utilising to significant political advantages. This attempt to wrestle the national narrative away from the nationalists has had a limited political value at the time, but it marked a major point after which the sanctity of the Croatian war efforts became accepted by all major political players. This set the stage for the first indictments issued by the ICTY related to crimes allegedly committed during the final phase of the Homeland War: the Operation Storm.
While the ICTY's indictments were not the first to accuse Croatian Army officers of crimes committed
68 Nataša Zambelli, "East of Eden: A poststructuralist analysis of Croatia’s identity in the context of EU accession”. PhD diss. (University of Edinburgh, 2011), 149.
69 Declaration available, in Croatian, at https://narodne-novine.nn.hr/clanci/sluzbeni/2000_10_102_1987.html, translated by the author (emphasis added).
70 Tamara Banjeglav, “Conflicting Memories, Competing Narratives and Contested Histories in Croatia’s Post-War Commemorative Practices.” (Politička Misao 2012 , 49 (5)), 11.
during the Homeland War71, they would have the most influence in the subsequent political life of
Croatia. When, in 2001, the ICTY Chief Prosecutor Carla Del Ponte unveiled the indictment against General Ante Gotovina for crimes allegedly committed by troops under his command during and in the aftermath of the Operation Storm, a period began in Croatia which would have a major impact on its transitional processes, the process of facing the past, as well as the process of accession to the European Union. Del Ponte made sure in her public statement following the unsealing of the indictment to note that ”[t]he Tribunal has no jurisdiction over, and therefore the Prosecutor takes no position concerning, whether or not a state has the legal right to use force in particular circumstances to accomplish its objectives.”72 The Prosecutor did allege, however, that Gotovina was responsible for a
host of crimes committed against Croatian Serbs during and after the Operation Storm, including persecution and deportations that resulted in an estimated 150-200.000 Croatian Serbs fleeing Croatia. In addition, while the initial indictment did not include the legal instrument of “joint criminal enterprise” (it would be introduced in the Amended Indictment in 200473), the Prosecutor did allege that
“Ante Gotovina, acting individually and/or in concert with others, including President Franjo Tuđman, planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of the crimes charged below in the course of, and after, the "Oluja" [Storm] offensive.”74
The Indictment was presented by the political right in Croatia as an attempt to criminalise the Homeland War and cast blame on all Croats.75 As Peskin and Boduszynski showed, the ruling coalition
initially promised to arrest the indicted generals76, but made no concrete steps to carry out that promise.
In a surprising development, the Prime Minister Račan even began using rhetoric against the Tribunal
71 For details on the indictments by the local courts and a significant political disturbance they caused see Peskin and Boduszynski, Post-Tuđman Croatia; Pavlaković, Better the Grave.
72 ICTY, Statement by the Prosecutor Concerning the Gotovina and Ademi Cases, 26 July 2001,
http://www.icty.org/en/sid/7968 (Last accessed in December 2017)
73 UN ICTY, Prosecutor vs. Ante Gotovina, Amended Indictment, 24 Feb 2004,
http://www.icty.org/x/cases/gotovina/ind/en/got-ai040224e.htm. A number of authors mistakenly claimed that the "joint criminal enterprise" was included in 2001 indictment. See for example Subotić, Jelena. The Paradox of International Justice Compliance, Ljubojevic, Ana. Judging “Values of the Homeland War, Clark, Janine Natalya The ICTY and Reconciliation in Croatia.
74 UN ICTY, Prosecutor vs. Ante Gotovina, Indictment, 08 June 2001, available at
http://www.icty.org/x/cases/gotovina/ind/en/got-ii010608e.htm. 75 Peskin Boduszynski, Post-Tuđman Croatia, 1129.
76 The second indicted Croatian general was Rahim Ademi, accused of crimes committed in Medak Pocket in 1993.
http://www.icty.org/x/cases/ademi_old/ind/en/ade-ii010608e.htm. Ademi voluntarily surrendered to the ICTY in July 2001. His case was joined with that of Mirko Norac and transferred to Croatian judiciary as part of ICTY's completion strategy in 2005. Ademi was acquitted in 2008. http://www.icty.org/en/cases/transfer-of-cases/status-of-transferred-cases
which was increasingly similar to the one used by nationalist parties.77 In the meanwhile, Gotovina
went into hiding in July 2001. With his escape, the “Homeland War” narrative was expanded to include this perceived new phase of war: the defence of its legitimacy before the international court. In the process, Gotovina, who was already celebrated as a hero for his role as the commander of Operation Storm, acquired also a role of a martyr, ready to suffer untold difficulties of a life in hiding for the Croatian cause.78
At the time of Gotovina's escape, Croatia was in early stages of the long process of joining the European Union having signed the Stabilisation and Association Agreement (SAA) only a few months earlier, in May 2001.79 The accession to European Union was a declared political goal of the ruling
coalition, and it remained the top priority of successive governments, regardless of their political orientation. But, Croatian cooperation with the ICTY soon became a major stumbling block in negotiations with the EU.80 With the state of public opinion increasingly against cooperation with the
ICTY81, on one hand, and the increased pressure from the EU to fully cooperate, successive Croatian
governments engaged in a sort of a dance with its public and the international community, a sort of transitional waltz that Jelena Subotić aptly described as “one step forward, two steps back”.82
Interestingly, a marked change in Croatia's cooperation with the ICTY occurred following a change in government in November 2003, when the Croatian Defence Union (Hrvatska demokratska zajednica -HDZ) regained power. Even though it was strongly opposed to cooperation while in opposition, once in power, the new government adopted a “businesslike approach to ICTY cooperation”.83 The first
example of this approach came in February 2004, when the ICTY indicted Ivan Čermak, a former Knin Garrison Commander and Mladen Markač, former Commander of Special Police, for crimes allegedly committed during the Operation Storm. Even though the indictment, which was joined with that of 77 Peskin and Boduszynski, Post-Tuđman Croatia, 1130.
78 For detailed account on the development of the Gotovina cult in Croatia during the years of his hiding see Pavlaković, General Gotovina as a Political symbol, 2010.
79 European Commission, Croatia : Stabilisation and Association Agreement negotiations with Croatia concluded, 14 May 2001, available online at http://europa.eu/rapid/press-release_IP-01-688_en.htm.
80 The first major incident between the EU and Croatia related to cooperation with the ICTY was caused in late 2002 by failure of the coalition government to serve the ICTY indictment to the former Croatian Army Chief of Staff, Janko Bobetko. The parliaments of Great Britain and The Netherlands consequently refused to ratify the SAA with Croatia, which slowed the accession negotiations. Following the death of Bobetko in April of 2003, the flight of Ante Gotovina became the foremost issue of cooperation between Croatia and the ICTY. See Pavlaković, Better the Grave, 11-12. 81 Pavlaković, Better the Grave, 11.
82 Subotic, The Paradox of International Justice Conditionality, 16. 83 Ibid, 18.
Ante Gotovina in 2006, alleged that the accused generals participated in the joint criminal enterprise with Croatian political and military leadership to permanently remove Serbian population from Croatia, both accused promptly surrendered to the ICTY. However, with Gotovina still in hiding, this was not deemed to be sufficient proof of cooperation and the European Commission briefly suspended the negotiations in early 2005.84 The Croatian government responded by adopting an “Action Plan”, under
which Croatian intelligence agencies, the government, the office of the President and the State Attorney would cooperate on finding information about Gotovina's whereabouts. Satisfied that Croatia was committed to full cooperation, the ICTY Chief Prosecutor, Carla Del Ponte submitted a positive report to the European Commission in October of 2005. On the same day, the External Relations and General Affairs Council of the EU concluded that “that Croatia had met the outstanding condition for the start of accession negotiations”.85 The final obstacle to the Croatian EU accession was thus removed.
The arrest of Ante Gotovina in Tenerife in December 2005 was taken as a further confirmation of Croatian cooperation with the ICTY. But, this did not mean that the “battle of narratives” between Croatia and the ICTY would be abolished. As Subotić shows, Croatian government offered significant help to the defence teams of the three accused generals, in an attempt to formulate a joint defence strategy and refute the allegations of the “joint criminal enterprise”, which implicated Croatian state leadership in crimes.86 In parallel with these legal efforts, the Croatian parliament adopted in June 2006
a Declaration on [Operation] Storm, “strengthening the meaning and content of the Declaration on Homeland War”.87 Unlike the Declaration on Homeland War, which defined the war in general terms as
defensive and liberating, the Declaration on Storm was a direct confrontation with the opposing narrative contained in the ICTY indictments. In its preamble, the Croatian Parliament expressed concern with the fact that “the indictments of the Hague Tribunal qualify the just, internationally and legally legitimate and victorious military and police action 'Storm' as a 'joint criminal enterprise', the goal of which was not only the liberation of the Republic of Croatia from the greater-Serbian occupation and systematic paramilitary terror, but also the implementation of the alleged project of ethnic cleansing ('deportation and forcible removal of the Serb population of Krajina')”.88 The
Parliament also expressed determination to “defend the historical truth about Storm – its participants, 84 See European Commission, Croatia 2005 Progress report, 9 November 2005, 3.
85 Ibid.
86 Subotić, The Paradox of International Justice Complience, 19.
87 Zastupnički dom hrvatskoga državnoga Sabora, Deklaracija o Oluji, 30 Jun 2006, available at https://narodne-novine.nn.hr/clanci/sluzbeni/2006_07_76_1787.html, (in Croatian, translated by the author).
commanders and creators – using all legitimate means: collection and organisation of archival records, encouragement and financing of independent scientific research, diplomatic activity, as well as legal proceedings before the International Court of Justice in The Hague and The Hague Tribunal”.89 The
Declaration goes on to condemn all crimes that occurred during and after the Storm, and then describes in some detail the details of the Operation, its course, context and consequences and expresses gratitude to its organisers (the Croatian President, Franjo Tuđman) and supporters (the US President, Bill Clinton, twice). The Declaration ends with a call to the Parliament, Croatian expert community, Croatian scientific and educational institutions and the media to “turn Storm, over time, into a battle that must not and will not be forgotten: into a decisive, glorious and victorious battle of the Homeland War, which will become part of the Croatian 'usable past' for the future generations.”90 In the same
paragraph, the Parliament expressly noted that the right to research of Storm should, “as a matter of course”, include the right of scientists, journalists, human rights activists and other people to “systematically and freely investigate the dark side of this and all other military operations: breaches of regulations of war and the humanitarian law, commission of crimes, human predicament and suffering”.91 But, even with this explicit permission to engage in research related to crimes committed
during and after Operation Storm, it is difficult to read any ambiguity into the Declaration: its aim was to prescribe the official Croatian narrative regarding the Operation Storm and to help to insure that it will be “remembered in history not only as victorious and decisive, but also as the 'last Croatian battle'”.92
The trial of Ante Gotovina and others began in March 2008, and finished, after 303 trial days, with the hearing of the closing statements by parties on 01 September 2010.93 The Trial Chamber heard 145
witnesses and admitted 4,824 pieces of evidence into the record.94 The analysis of the evidence, the
deliberations and the drafting of the judgement took some 18 months and the Trial Judgement was rendered on 15 April 2011. In accordance with the established practice at the Tribunal, the Presiding Judge, Alphons Orie, read out the summary of judgement. But, even in this shortened form (the full Trial Judgement is 1377 pages long), the findings of the Trial Chamber were as clear to the public gathered in the public gallery of the ICTY's courtroom 1, as they were to many hundreds of Croatian 89 Ibid.
90 Ibid, para 6. 91 Ibid, para. 6. 92 Ibid, para 7.
93 See UN ICTY Case Info Sheet for more info http://www.icty.org/x/cases/gotovina/cis/en/cis_gotovina_al_en.pdf. 94 Ibid.
citizens who gathered to watch the broadcast at the main town square in Zagreb. Two of the accused were found guilty, Ante Gotovina and Mladen Markač, and sentenced to 24 and 18 years respectively, while the third accused, Ivan Čermak, was acquitted. The Trial Chamber found that “certain members of the Croatian political and military leadership shared the common objective of the permanent removal of the Serb civilian population from the Krajina by force or threat of force, which amounted to and involved deportation, forcible transfer, and persecution through the imposition of restrictive and discriminatory measures, unlawful attacks against civilians and civilian objects, deportation, and forcible transfer.”95 The concerns expressed in the preamble of the Declaration on Storm in 2006 were
borne out. The Trial Chamber confirmed the Prosecutor's allegation that the Croatian political and military leadership formed a joint criminal enterprise, found that Franjo Tuđman was “a key member”96
of this enterprise, as well as that the two accused participated in the enterprise and significantly contributed to its common goal. The Judgement caused consternation in Croatia, from the viewers at the Zagreb Ban Jelacic Square97, to the country's leadershi From the right-wing sitting prime minister,
Jadranka Kosor, to the centrist President, Ivo Josipović, to the left-wing opposition leader, Zoran Milanović, the Croatian political elite was united in refuting the notion of the joint criminal enterprise.98
It took another nearly 18 months for the ICTY Appeals Chamber to reach what would become “one of the most controversial decisions ever made at the ICTY”.99 This judgement, reached by majority of 3 to
2, found incorrect the standard used by the Trial Chamber to determine the legality of artillery attacks during “Storm”; reversed the Trial Chamber's finding of the existence of the joint criminal enterprise to remove the Serbs from Croatia; and acquitted both Gotovina and Markač of all charges.100 Crucially for
the Homeland War narrative in Croatia, the judgement “cleared” the Croatian leadership of the time from the allegations that they planned the Operation Storm with a view to forcibly remove the Serb population from Croatia.101 The narrative of the just and legitimate war, on which parliamentary
declarations insisted, apparently emerged victorious. The analysis of the legal controversy caused by 95 UN ICTY, Prosecutor vs. Ante Gotovina, Trial Judgement Summary, 15 Apr 2011, available at
http://www.icty.org/x/cases/gotovina/tjug/en/110415_summary.pdf. 96 Ibid.
97 See report here https://www.zagrebonline.hr/presuda-tuga-i-nezadovoljstvo-na-trgu-bana-jelacica/ (in Croatian). 98 See https://lider.media/arhiva/126194/ (in Croatian).
99 Iva Vukušić, “Judging Their Hero: Perceptions of the International Criminal Tribunal for the Former Yugoslavia in Croatia.” In Prosecuting War Crimes - Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia, edited by James Gow, Rachel Kerr, and Zoran Pajić (London:Routledge, 2014), 151.
100UN ICTY, Prosecutor vs. Gotovina et al, Appeals Chamber Judgement, 16 Nov 2012. Available at
http://www.icty.org/x/cases/gotovina/acjug/en/121116_judgement.pdf. 101Ibid, 33-34.
Gotovina et al Appeals Judgement is beyond the scope of this thesis, but it is worth noting the two judges of the Appeals Chamber, Carmel Agius and Fausto Pocar, rejected the conclusions from the judgement in unprecedentedly strongly worded dissenting opinions. Judge Pocar finished his dissenting opinion with the sentence:”In light of the above, I fundamentally dissent from the entire Appeal Judgement, which contradicts any sense of justice.”102
This was certainly not how the judgement was received in Croatia. On the afternoon of the judgement, Gotovina and Markač were flown to Zagreb in a Croatian government airplane, where they were welcomed by the Prime Minister, Zoran Milanović, as well as tens of thousands Croatian citizens gathered at the Ban Jelačić square in Zagreb.103 In his short address, Gotovina said:”This is our joint
victory. This brings the issue to a close. One should turn to the future, we should all turn to the future.”104 The then President of Croatia, Ivo Josipović, used nearly the same words in an interview on
the same day:”When it comes to big judicial consequences, as well as political consequences, I am convinced that this judegement brings the issue of Homeland War to a close.”105
Several months later, on 1 July 2013, Josipović would welcome the Croatia's full membership in European Union saying that the day marked the opening of a “new chapter in the thick book of our history”.106 Which, presumably, also marked the closing of the old chapters, in particular those with
potential to embarrass the new member of the European family, or potential to disturb the now firmly established and judicially confirmed narrative.
The following chapter will explore in what ways the Homeland War narrative informed the wider transitional justice efforts by Croatian state actors and non-governmental players before 2013, as well as the continuing international pressure on Croatian political elites to comply with international human rights norms.
102Ibid, Dissenting Opinion of Judge Fausto Pocar, 20.
103See report http://www.nezavisne.com/novosti/ex-yu/Gotovina-i-Markač-stigli-u-Hrvatsku-euforican-docek-na-Trgu-bana-Jelacica/167665, (in Croatian, translated by the author).
104Ibid. (emphasis added)
105Interview with Josipović for Jutarnji list, 16 Nov 2012 (in Croatian, translated by the author):
https://www.jutarnji.hr/vijesti/hrvatska/ivo-josipovic-ovom-presudom-na-domovinski-rat-napokon-je-stavljena-tocka/1363533/
Chapter 3 – Reluctant Transitional Efforts 1995 - 2013
Between the end of the war in 1995 and European Union membership in 2013, the official narrative of the Homeland War decisively informed Croatian efforts at transitional justice, or the lack thereof, from domestic war crimes prosecutions to return of refugees, truth-seeking and memorialisation. Perhaps the most illustrative example of the extent to which the Homeland War narrative penetrated not only the understanding of the past, but also its practical implications is the often quoted assertion of the former Croatian Supreme Court President and Croatian Constitutional Court Judge, Milan Vuković, that Croatian soldiers could not have committed war crimes, because Croatia waged a defensive war.107
Given in 2004, this statement provides important clues to the approach of Croatian judicial organs to domestic prosecution of war crimes, as well as to wider political and social processes related to transitional justice and post-conflict recovery. This chapter will provide an overview of the key transitional justice areas in Croatia from 1995 to 2013, as follows: domestic prosecutions of war crimes, return of refugees, truth-seeking and memorialisation. I will look particularly into the activities undertaken by the official state bodies and efforts by non-governmental organisations to promote facing the past, as well as the significant external political pressure on Croatia during the EU accession process to conform to international norms of judicial independence, the rule of law and respect for human rights. Providing a detailed overview of Croatian transitional justice is beyond the scope of this chapter, but this brief overview will serve as a useful historical background against which to asses the more recent Croatian efforts in transitional justice carried out from 2013 onward.
3.1 Domestic prosecution of war crimes
It is important to note in the context of Croatian judicial efforts in post-war period that Croatia, like other post-Yugoslav countries, began with transition from half a century of Communist rule in 1990. This process was slowed down by the onset of conflict in Croatia, but not before the newly established authorities initiated judicial lustration, which would continue through the war years. Between 1990 and 1996, this re-calibration of judicial institutions resulted in nearly 44% of Croatian judges being replaced (559 out of 1263).108 Sovjetka Režić, herself a Split County Court Judge in 1990, described
107Quoted in Pavlaković, Better the grave, 5.
108Nikolina Židek, "Imenovanja i razrješenja sudaca u Republici Hrvatskoj od 1990. do 1996. godine” (Appointments and discharges of judges in Republic of Croatia from 1990 to 1996), in Dubljevic (Ed.), Procesuiranje ratnih zločina, 126.
