As we will see, the Milošević trial, its aftermath, and the Vukovar judgments in Mrkšić were viewed as further evidence of an anti-Croat bias at the ICTY.Narratives of the Milošević Trial in Croatia
University of Groningen*
Evaluative studies of international trials have generated widely divergent conclusions as to the impact of trial processes on post-conflict societies. Although these divergent conclusions reflect significant disagreements over how to measure impact, some measures are possible. Swimelar’s chapter illustrates the Milošević trial’s disparate effects upon a wide range of constituencies in Bosnia—disappointment, reinforcement of narratives about the war, and a perception that more remains to be done to promote transitional justice. A similar finding is evident in Croatia, where the trial was deployed, and coopted, by national elites to reinforce narratives about the justice of Croatia’s Homeland War. The Milošević trial was initially welcomed as an opportunity to gain international affirmation of dominant domestic narratives of the 1991–1995 war. However, despite the revelation of important evidence, which pointed to Belgrade’s wartime leadership of Croatian Serb rebels in the Republika Srpska Krajina, in Croatia the Milošević trial ultimately left a widespread sense of disappointment with both that trial’s process and other, related trials concerning crimes committed during the 1991–1995 war.
There is a growing body of transitional justice literature that advances competing causal claims on the extent to which international war crimes trials resonate with post-conflict audiences.1 As Swimelar’s chapter concisely illustrates, scholars have advanced numerous claims about the purported impact of international trials, which rely upon a wide range of indicators such as public opinion, media reporting, inter-ethnic relations, reconciliation, or democratization.2 Not surprisingly, given the multiple means through which impact can be measured, widely divergent and at times contradictory findings have emerged from these studies.3 In spite of the inherent difficulties in mapping causal links between trial processes and societal impacts, there are two broad and competing arguments in transitional justice literature that we should have in mind when evaluating the domestic effects of international justice. The first sees trials as a prerequisite to post-conflict or post-authoritarian peace;* the second cautions that an exclusive focus on legal process may leave international justice vulnerable to being “hijacked” by local elites who use trials to reinforce nationalist narratives.4 This chapter provides empirical support for the latter argument, showing how Croatian political and media elites filtered the Milošević trial, along with other trials related to crimes in Croatia, through dominant narratives of the recent past that constructed Zagreb’s role in the wars of the Yugoslav dissolution as exclusively defensive and liberatory.
It is within the context of these transitional justice debates that this chapter focuses on evolving Croat perceptions of and reactions to Milošević’s trial and death. Despite being “hijacked,” the Milošević trial created an important record of the war in Croatia that will complement subsequent trials and ultimately post-ICTY transitional justice mechanisms in Croatia such as the regional truth commission initiative RECOM.† Most particularly, the Milošević trial has shaped public debates on the recent past.‡ Croatia proves instructive as a core case study—and a useful counterpart to Swimelar’s chapter—because, as in Bosnia, public reaction to Milošević’s trial in the aftermath of his death has been marked by deep disappointment.5 Indeed, the initial optimism articulated by political elites and the local media that the Milošević trial would reinforce dominant Croatian narratives of the Homeland War§ rapidly diminished as the prolonged trial process found itself overshadowed by tensions between the ICTY and Croatia over the transfer of Croat war crimes suspects. Later, disappointment with the Mrkšić et al. trial and appeals judgments,6 which in the absence of a Milošević judgment constituted an important opportunity for the ICTY to hold individuals accountable for the 1991 Ovčara farm massacre near Vukovar, further undermined this optimistic view.7 Much as in Bosnia, despite an overall sense of disappointment with the Milošević trial, the creation of copious amounts of evidence that illuminates Belgrade’s role in fomenting violent conflict in Croatia and Bosnia is perhaps the trial’s most valuable legacy for the region.8* Nevertheless, the informational resource generated by the ICTY has also been subject to selective reading on the part of local elites who have attempted to use courtroom developments to reinforce their own preferred narratives of the past.
In spite of the political salience of war crimes prosecutions in Croatia, there remains a lacuna of scholarship on the Milošević trial’s reception among Croats. This gap in scholarship reflects the fact that most literature on the ICTY and Croatia examines the legacy of the Tribunal through the lens of prosecutions against Croatian nationals.9 In addition, efforts to examine the impact and legacy of the Milošević trial have largely focused on the trial’s resonance in Serbia.10 The relative absence of evaluative studies of the trial’s impact in Croatia is surprising given the fact that it was in Croatia that Milošević first planned and executed a JCE to commit crimes against humanity during the autumn of 1991.† Furthermore, of the 66 counts Milošević faced at trial, 32 related to the Croatia indictment.11
Croatia’s October 2000 parliamentary Declaration on the Homeland War described the 1991–95 war as having been “… a legal, legitimate, defensive, liberatory” armed conflict in which Croatia “defended its territory from Greater Serbian aggression within its internationally recognized borders.”12 The Declaration’s characterization of the war in Croatia as both defensive and legitimate established Zagreb’s official narrative of the conflict as state policy, and its principal claim was that the war in Croatia was not a civil conflict between Croatian Serbs and Croats but rather was an aggressive war of conquest waged by Milošević’s government in Belgrade. Although this official narrative allows for the acceptance of isolated crimes perpetrated by Croats during the war, overall the narrative emphasizes that Croatia’s war effort was a just response to an act of aggression.‡ Prior to the Declaration, the Croatian parliament adopted a resolution in 1999 declaring that “given the unquestionable legitimacy of these counter-terrorist actions [Operations Flash and Storm] on our own state territory, the Croatian Sabor considers possible individual criminal acts carried out in their respect to be exclusively [under the jurisdiction of] the Croatian courts.”13 Zagreb’s jus ad bellum justification of the Homeland War,* espoused by the wartime governing Hrvatska demokratska zajednica (Croatian Democratic Union or HDZ) at the outbreak of armed conflict, has remained dominant throughout the 1990s and first decade of the 2000s;† however, recently it became a source of tension between the HDZ-led government under former prime minister Jadranka Kosor and Croatian President Ivo Josipović.‡
Zagreb has viewed the Tribunal, since its establishment, as both a potential challenger to nationalist wartime narratives and a forum in which the Tuđman regime’s preferred narratives could be reaffirmed. In total, the ICTY issued 23 indictments for crimes committed in Croatia between 1991 and 1995.§ Of these, 17 accused individuals of crimes allegedly committed by Serb forces, while six indictments accused individuals of crimes allegedly committed by Croat forces.14 Despite this clear numerical preponderance—over two-thirds of indictments brought against Serbs—Croatian elites have consistently perceived the ICTY as having an anti-Croat prosecutorial bias.15 This perception in turn reflects a belief that the Tribunal indictments against Croats, taken together, constitute an attempt to criminalize Croatia’s war for independence and challenge the jus ad bellum narrative of the Homeland War. Croatian war crimes suspects and their supporters believed that, as victors of the Homeland War, Croats should be entitled to the implicit immunities of victor’s justice. As we will see, the Milošević trial, its aftermath, and the Vukovar judgments in Mrkšić were viewed as further evidence of an anti-Croat bias at the ICTY.
Finally, before turning to the Milošević trial and its legacy in Croatia, we should note that the memorialization of the war in Croatia has centered on two key events: the 1991 siege of Vukovar and Operation Oluja (Storm) in 1995. For Croats, the Eastern Slavonian city of Vukovar came to symbolize Croatian victimhood, whereas Operation Storm symbolized Croatia’s military triumph. At Vukovar, the Ovčara massacre played a central role: Not only had the city been decimated by the JNA, but prisoners of war from the Hrvatska vojska (Croatian Army or HV) and patients at the Vukovar hospital were transferred to the Ovčara farm by the JNA and Serb paramilitaries for execution.16 Indeed, long before Ovčara’s inclusion in the Milošević indictment, the ICTY had issued indictments against three mid-level JNA officers, Mile Mrkšić, Miroslav Radić, and Veselin Šljivančanin, who were alleged to have participated in the Ovčara massacre.17 The subsequent trial of the Vukovar Three, as the three defendants became known, and controversial judgments a decade later would generate a strong negative reaction within Croatia to the ICTY.18
It was in the context of these highly charged debates over Croatia’s role in the war that the ICTY certified the Croatia indictment against Milošević in October 2001. Although the Croatia indictment was not issued until after Milošević’s transfer, the presence of the former Serbian and Yugoslav president in ICTY custody was already highly symbolic in a country whose own recently deceased head of state, Tuđman, had been the subject of Prosecution investigations prior to his death in December 1999.*
In the Croatia indictment Milošević was indicted for participation in a JCE that sought to achieve:
… the forcible removal of the majority of the Croat and other non-Serb population from the approximately one-third of the territory of the Republic of Croatia that he planned to become part of a new Serb-dominated state… 19†
The Croatia indictment named 16 individuals as co-participants in the JCE; some of these were under indictment separately for related crimes, but some senior JNA commanders, including Veljko Kadijević and Blagoje Adžić, were never indicted.‡ Nevertheless, the Croatia indictment was initially welcomed by Croatian political elites and the local media.20
In her opening statement at the trial, Chief Prosecutor Del Ponte pointed to Belgrade and the JNA leadership’s attempt to establish the Republika Srpska Krajina (or RSK) and Belgrade’s role in provoking violent conflict between Croatian police forces and the JNA in 1991.§ From the opening statement and the Croatia Indictment, it is evident Del Ponte chose not to indict other key participants in the JCE so as to focus prosecutorial efforts on Milošević; for example, Kadijević and Borisav Jović appear frequently in Del Ponte’s statement.21 In retrospect, Milošević’s death and the failure to indict members of the 1991 JNA senior leadership left an accountability gap for some of the most serious and symbolically important crimes committed at the outbreak of the war in Croatia.*
With the JNA leadership unindicted, the Milošević trial took on increased importance for Zagreb in terms of reinforcing its jus ad bellum narrative of the Homeland War and strengthening Croatia’s genocide case against Serbia before the ICJ.† Indeed, in the preliminary statement in its ICJ application, Croatia foreshadowed language later used in Del Ponte’s opening statement:
By directly controlling the activity of its armed forces, intelligence agents, and various paramilitary detachments, on the territory of the Republic of Croatia, in the Knin region, eastern and western Slavonia, and Dalmatia, the Federal Republic of Yugoslavia is liable for the “ethnic cleansing” of Croatian citizens from these areas …22
Initially the trial seemed to start positively if measured in terms of its reception among media and political elites in Croatia. One particular witness’ testimony was widely reported: In December 2002, Milan Babić, a former leading figure in the RSK, took the witness stand against Milošević and provided testimony that illuminated Belgrade’s involvement in provoking violent conflict in Croatia; Babić would later be described by Emir Suljagić as “perhaps the single most important witness in the trial.”23 In Croatia, Babić’s testimony confirmed what the Croatian public already generally believed: Belgrade supported Croatian Serb rebel leaders both materially and financially at the outbreak of war in 1991.24 In the Croatian daily Jutarnji list, journalist Davor Butković reflected upon the importance of Babić’s testimony for Croatia: “The Hague Tribunal has really become a strong and credible attorney for the Republic of Croatia.”25 The Croatian pro-government daily Vjesnik directly channeled Babić’s courtroom testimony:
Mr. Milošević, in 1991, you waged a horrific war. You dragged the Serbian people into that war. You did not protect the Serbian people. You brought shame upon the Serbian people. You brought misfortune on the Croatian people, the Muslim people, and ultimately the Serbian people.26
Through testimony such as Babić’s, the Milošević trial provided a significant amount of documentary evidence reconstructing Milošević’s control over the Krajina Serb leadership; however, in the absence of a judgment and in the context of controversial post-Milošević judgments for crimes contained within the Croatia indictment, the resonance of that testimony—beyond media reports about it at the time—remains limited.*
Although the absence of a judgment in the Milošević case limited the domestic resonance of evidence produced during the trial, ICTY processes related to crimes in Croatia were always understood in terms of whether they served to consolidate dominant narratives about the recent past that emphasized Belgrade’s involvement in the war in Croatia and Croat victim-hood. Moreover, just as Milošević had been, for some, a proxy JNA trial, now the evidence from Milošević was considered in light of other, pressing cases that affected Croatian narratives. In this sense, even a terminated trial had its uses.
As we have already seen, the Milošević trial produced an enormous body of evidence that directly implicated Belgrade in planning and carrying out the war in Croatia; however, within a year and a half of Milošević’s death, disagreements within the Prosecution spilled out into the Croatian press, where they were deployed in domestic political disputes. In a letter to Jutarnji list, former prosecutor Geoffrey Nice alleged the Prosecution—Del Ponte—had played a role in concealing documents from the ICJ that could have demonstrated Belgrade’s wartime control over the VRS and the SVK.27 Given that both Bosnia and Croatia had filed suit against Serbia for Belgrade’s violation of the Genocide Convention, documentary evidence of Belgrade’s direct role in waging war within their respective states would have been critical not only for proving individual criminal responsibility but for establishing state responsibility as well. Thus, Nice’s allegation that the Tribunal assisted Belgrade to “conceal evidence of Yugoslavia’s [Belgrade’s] involvement in the wars in Bosnia and Croatia from the ICJ and from its own citizens”28 proved domestically explosive within Croatia and triggered an immediate response from Prime Minister Ivo Sanader and President Stjepan Mesić, who sought to raise the issue at the United Nations.† In response to Nice’s claims, Mate Granić, Tuđman’s former foreign minister, evoked Milošević’s death, noting “the Croatian government should not remain silent about the fact the [ICTY] has not fulfilled its mandate…most of all Milošević was not convicted which was a failure of the Prosecution in particular.…”29
Further complicating the ICTY’s relationship with Croatia, the September 2007 judgments against the Vukovar Three—which, although symbolically important, addressed only the Ovčara massacre and not the siege and destruction of Vukovar itself—provoked a strong reaction from both victims groups and political elites in Croatia. When the Trial Chamber sentenced Mrkšić to 20 years and Šljivančanin to just five years30—and acquitted Radić—the verdict was described by Franciscan monk Zlatko Spejar as “scandalous” and having “overturned justice[.]”31 Moreover, the Trial Chamber’s judgment was also seen as harming Croatia’s ICJ case against Serbia. As a source close to the Croatian ICJ legal team stated:
Another thing is that the judges concluded the crime was committed by territorial defence members (local Croatian Serbs) and not the Yugoslav army, which is similar to a finding in a judgment in Bosnia’s own genocide case against Serbia, which established that genocide was committed by Bosnian Serb forces, and not the forces from Serbia, in July 1995, when more than 8,000 Muslim men and boys were killed.32
Public reaction to Šljivančanin’s final appeals judgment in December 2010, which fixed his sentence at 10 years,* generated perhaps even greater public shock than the initial verdict.† Croatian state television extensively covered domestic reactions to Šljivančanin’s shortened sentence. These reactions ranged from expressions of anger and disappointment to conspiratorial hints that the judgment was political. Croatia’s state broadcaster HRT quoted Branko Borković, the last Croat commanding officer at Vukovar in 1991, stating that the “directly political judgment of The Hague court constitutes part of [international] pressure being applied on the Republic of Croatia[.]”33 From the perspective of many in the Croatian elite, there had been no verdict in the one case that covered the mastermind of aggression against their state, and only partial, minimal punishment in the one case that focused on their victimhood.
In addition to Milošević’s death complicating efforts to secure accountability for Vukovar, the Milošević trial’s legacy is also colored by ongoing debates centered around the memory of the Homeland War. Milošević’s transfer to the ICTY coincided with an indictment that would prove the most contentious of all for Zagreb. Ante Gotovina, a lieutenant general in the HV and one of the architects of Operation Storm and Operation Mistral in Bosnia, was indicted in June 2001.34 However, Gotovina went into hiding and was only transferred to the ICTY following his December 2005 arrest in Spain. The Gotovina trial has been the most closely followed and widely reported ICTY trial process in Croatia.35 Indeed, not only was Gotovina’s initial appearance before the Trial Chamber in 2005 broadcast in full on Croatian TV,36 but so were the closing arguments in 2010.
In Croatia, the Gotovina trial was widely perceived as passing judgment on the Homeland War itself.37 As we have seen, because political elites often employ jus ad bellum defenses to allegations of jus in bello offenses, indictments—although they technically focus on discrete criminal acts—are viewed as challenging Zagreb’s just war narrative. Proponents of that narrative have portrayed the ICTY as lacking the moral authority to pronounce judgment in any case related to Zagreb’s conduct during the war. Gotovina’s chief defense attorney, Luka Mišetić, captured this sentiment in a comment to the Croatian media:
Who is [ICTY Chief Prosecutor Serge Brammertz] to lecture Croats about what they need to know about what happened to them during the war? I am sure that two and a half years ago he couldn’t find Knin on a map, and I am not sure that he could do that today.38
On 15 April 2011, three national television channels broadcast the reading of the Gotovina Trial Chamber’s much-anticipated verdict.* The verdict, which saw Gotovina and Mladen Markač, former Assistant Minister of Interior and commander of the Specijalna policija (Special Police), convicted of war crimes and crimes against humanity,39 provoked a bitter response from Croatian political elites and the media.40 Croatian Prime Minister Jadranka Kosor even decried the verdict as unacceptable.41
The Gotovina Trial Chamber’s judgment finding that a JCE had been perpetrated with the purpose of permanently removing the Serb population from the Krajina region was perceived in Zagreb as a direct challenge to the official narrative of the Homeland War that was established in the parliamentary Declaration on the Homeland War (2000), and had been affirmed by the Constitutional Court in 2002.42 Even though Judge Orie made explicit the judgment did not make a pronouncement on “the lawfulness of resorting to or conducting war as such,”43 political entrepreneurs in Croatia chose to construct the judgment as having criminalized the state itself. The leader of the Split branch of the nationalist Croatian Party of Rights, Hrvoje Tomasović, declared that “from this judgment it is clear that all of Croatia was founded upon a joint criminal enterprise. Based on this our state is not at all legitimate. Milošević would not have given Gotovina 24 years.”44
Tomasović’s statement also captured a popular sentiment in the aftermath of the Gotovina trial judgment, which perceived the ICTY as pursuing an anti-Croat bias in its indictments, judgments, and sentencing. In the absence of a judgment on the Croatia indictment from the Milošević trial, and given widespread disappointment with the outcome of the Vukovar Three case, such views gained increased popular currency in Croatia in the years following Milošević’s death.
However, in November 2012, this sentiment disappated in response to the Appeals Chamber’s acquittal of Gotovina and Markač. The Appeals Chamber judgment reversed the trial chamber’s earlier finding that the two generals had taken part in a JCE.45 Gotovina and Markač’s return to Croatia was marked by widespread celebrations, speeches delivered by the generals on Zagreb’s main square, and receptions with senior state officials, all of which reinforced a perception that the Appeals Chamber judgment affirmed Croatia’s jus ad bellum narrative of the Homeland War.46
The Milošević trial will likely remain a landmark event in shaping the legacy of the ICTY in both Croatia and Bosnia. Unfortunately, despite the meticulous documentation of Belgrade’s role in the war in Croatia and spectacular courtroom testimony by Babić, a combination of three factors means that legacy, in Croatia, will be largely negative: Milošević’s death, an outcome in the Vukovar Three trial that was widely viewed as unsatisfactory, and the contentious Gotovina judgment left many in Croatia with a sense of deep disappointment in international criminal justice.
In Croatia, an elite preoccupation with maintaining an official narrative of the recent past has resulted in ICTY trial processes, in particular the Milošević trial, being filtered through political and media elites who sought to use international criminal justice to reinforce two fundamental tenets of this official narrative—Serbian aggression and Croat victimhood. It was within this context that the Croatia indictment was initially welcomed in Zagreb. However, subsequent developments generated a growing sense of hostility toward a perceived anti-Croat bias at the ICTY.
Perhaps one additional legacy of the tumultuous relationship between Croatia and the ICTY is a lingering sense of hostility between veterans’ organizations and transitional justice practitioners. In particular, this is a result of a general perception among veterans’ groups that transitional justice efforts are aimed at criminalizing their members’ involvement in armed conflict.47 As a result veterans’ organizations remain cautious of engagement with transitional justice initiatives, including the RECOM initiative for a regional truth commission.48
Nevertheless, despite trial processes being “hijacked” in the short term to reinforce preferred narratives about the past, in the long term the historic record established by the ICTY during the Milošević trial will provide an important glimpse into the collapse of the SFRY and the outbreak of violent conflict in Croatia. As such, post-ICTY transitional justice initiatives in the former Yugoslavia, such as RECOM, will benefit from what have been seen within the region as highly problematic trial processes.