The International Criminal Tribunal for the former Yugoslavia (ICTY) doubtless hoped that its final judgment, on November 29, in the case of Prosecutor v Jadranko Prlić et al – otherwise known as the “Croat Six” – would round off its work nicely.
The tribunal had recently sentenced Ratko Mladić, the Serb general who ordered the genocide in Srebrenica (and much else in Croatia, for which he was never tried), to life imprisonment. Now it could fulfil its unspoken but widely recognised mandate to equalise guilt in the wars of Yugoslav succession by upholding the lengthy sentences against six Croats for war crimes against Muslims in Bosnia and Herzegovina – which it duly did.
The production went off course, however, when Croat general Slobodan Praljak, himself in earlier life a film producer, stood up and declared: “Slobodan Praljak is no war criminal. I reject your judgment with contempt.” Saying which, he brought out a concealed phial of arsenic, downed it and later died in hospital.
Suicide is a grave offence against God. But this was an act whose significance needs to be grasped.
Praljak probably had only about 18 months of his sentence to serve. His act was a gesture not of despair but of protest. He was convinced of his innocence. One can never know, of course, whether he or the other five had committed other offences. But on no fair, objective analysis should they have been found guilty on this indictment.
The case against the Croat Six was made within the context of the accusation of a Joint Criminal Enterprise (JCE) undertaken by Croatia’s then leadership, including president Franjo Tudjman, aimed at the ethnic cleansing of Bosnian Muslims.
The JCE’s “ultimate purpose” – a notion introduced only at a late stage of the ICTY proceedings, and for specific use against Croatia – was supposedly the creation of a separate Croat entity, within the boundaries of the (1939) Croatian Banovina, which would then be annexed to Croatia. The objective was said to be the creation of a Greater Croatia (the equivalent of the Greater Serbia for which Serbia fought); it was thus an international conflict, and Croatia was judged the aggressor.
As a result of this judgment, the only state which has been found guilty by the ICTY of aggression against another is Croatia, even though there is unanimity of opinion that the conflict was started and driven by Serbia.
It should be noted that dividing up Bosnia and Herzegovina was not a crime according to the ICTY’s own statute. (That is why the prosecutor sought to link it to ethnic cleansing, which was within the tribunal’s remit.) This is hardly surprising: the Western powers were, on almost a monthly basis, trying to persuade the “warring parties” of the former Yugoslavia to swap or concede territory.
Thus Mate Granić, Tudjman’s foreign minister, recalls how David Owen, then international joint chief negotiator on the former Yugoslavia, pressured him to hand Baranja and Eastern Slavonia to the Serbian president Slobodan Milošević. Similarly, Bosnian president Alija Izetbegović apparently twice offered Tudjman Western Herzegovina if the Bosniaks (ie Muslims) could have territorial compensation in central Bosnia, but Tudjman refused.
What Tudjman actually wanted in Bosnia has been subject to much debate. Paddy Ashdown (doubtless in good faith) came away from a discussion with Tudjman at a VE Day dinner in 1995 convinced that the Croatian president had obligingly mapped out for him on a table napkin the boundary of a planned Greater Croatia, absorbing much of Bosnia. Tudjman was too garrulous for his own good. I witnessed this myself. He would say the most bizarre things, which could ultimately be reconstructed into some pattern, though one was never sure it was the correct one. It is, however, improbable that Tudjman would have been so imprudent as to spell out a sinister plan in this fashion. Whatever his map signified (there are conflicting theories) it did not anyway reflect the situation in Bosnia 18 months earlier (nor the Banovina, which is a historical red herring).
The contribution to this story of the Croatian ex-president Stipe Mesić, who first testified as a protected witness to the ICTY and then flooded the tribunal with thousands of un-redacted documents in the hope of compromising his enemy, Tudjman, is, I believe, considerably less honourable. From Mesić comes the allegation that at a meeting in Karađorđevo, Serbia, on March 25, 1991, Tudjman and Milošević agreed to divide up Bosnia. Mesić was not present. No notes were taken of the meeting.
It took Mesić several years to come up with his story. And Milošević, Izetbegović and Tudjman were all to be found together discussing precisely the question of dividing Bosnia into ethnically dominated cantons at a meeting in Split on May 12. Karađorđevo was just another pointless meeting.
Tudjman’s problem was that he was a pessimist. He remained in awe of Belgrade, so he kept on negotiating when there was nothing to negotiate about. He also thought that Bosnia-Herzegovina was doomed for the same reason that Yugoslavia as a multi-ethnic state was doomed, and this would itself imply some sort of division on ethnic grounds – as has happened. His Marxist historicist outlook, which he retained after he lost his Marxism-Leninism, caused him to see inevitabilities where there were only tendencies. That said, there is no evidence that he ordered, or favoured, any ethnic cleansing, on which the indictment
was based.
At the most crucial moments, Tudjman and Croatia defended the Bosnian state. First, in the early months of the war in Bosnia in 1992, when the Croats effectively stopped the Yugoslav army alone. And then in 1995, when the Croatian army and the Bosnian Croat forces, with limited assistance from the Bosniaks and a lot more from the US, created the conditions for peace, including the relief of Sarajevo. In the interval, Croatia also accommodated and cared for more than half a million Muslim refugees.
The reality, which the judges and lawyers of the ICTY were unwilling to grasp, was that in the period in question – 1992-1994 – Bosnia-Herzegovina was the scene of a desperate, bloody struggle for survival between two groups – Muslims and Croats – who were, themselves, both victims. Massive ethnic cleansing of Muslims by the Serbs drove them into central Bosnia, where the (Muslim) Army of Bosnia and Herzegovina proceeded to attack the Croat military and civilians. The Croats fought back. In the process horrible crimes were committed, notably by the Croats at Ahmići. But whereas these were prosecuted, that was not the case for the revolting atrocities – involving mass decapitations, the desecration of Catholic churches and the torture of priests and nuns – by the Bosnian-backed Mujahideen forces in northern Herzegovina.
Such are the realities. But the law devised by the ICTY was ill-suited to recognise them. The Joint Criminal Enterprise concept – particularly in the extended form in which it was devised in the case of the Croat Six – would not be acceptable in the judiciary of any developed state. No British court would recognise it. Nor would the British judicial system, with its emphasis on presumption of innocence, clear rules of evidence and transparency, ever have permitted what occurred in the tribunal courtroom.
The handling of the case against the Croat Six now threatens serious consequences in Bosnia and Herzegovina. Under the terms of the Dayton Agreement in 1995, which ended the war in Bosnia, the country was turned into two units – the Republika Srpska (RS), which is Serb-dominated and remains largely ethnically cleansed of non-Serbs, and the Federation of Bosnia and Herzegovina, which is a unit dominated by Muslims/Bosniaks, but within which the Croats are a constituent nation. This should guarantee the latter equal rights.
But it does not. For example, the nominally Croat representative in the presidency is, in fact, largely chosen by Muslim electors. The Croats’ own politicians are powerless. The political representatives of the Muslim majority are, meanwhile, increasingly domineering and uncompromising, echoing the Muslim nationalism of President Erdoğan and Turkey, which stands behind them.
The RS, for its part, looks for protection to Russia. The Croats living in an economically failing and politically dysfunctional federation cannot, however, look to anyone. Zagreb is reluctant to help, given the suspicion with which Croatian involvement in Bosnia is viewed. The Croats of Bosnia and Herzegovina can look, of course, now as for centuries past, to the Catholic Church, but the present pontificate is not noticeably sympathetic to “ethnic” Catholics.
Already there were signs that the prosecutor’s office in Sarajevo was preparing a flood of indictments against Croats involved in the war in the 1990s. The judgment in The Hague sharply increased that prospect.
States have tipping points. The ICTY judgment and yet more indictments may create one. The history of Yugoslavia shows what happens when a numerically significant national minority wants to see the end of the state in which it lives. The collapse of states is rarely peaceful, and never in the Balkans. The only Western power with the ability to stop that happening in Bosnia and Herzegovina is the United States. Washington now needs to undo the harm that The Hague has done, and quickly.
Robin Harris is a former member of Margaret Thatcher’s Downing Street Policy Unit. He is the author of Stepinac: His Life and Times (Gracewing) and Dubrovnik: a History (Saqi Books). He lives in Zagreb
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