The ICTY and reconciliation in Croatia

Journal of International Criminal Justice

Volumn 10, Issue 2, 2012, Pages 397-422

  Clark, Janine Natalya ^a  

^a UNIVERSITY OF SHEFFIELD   (United Kingdom)

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[No Author keywords available]

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EID: 84860249016     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqs017     Document Type: Article

References (100)

1. In his annual report to the Security Council in 1994, for example, the Tribunal's first President, the late Antonio Cassese, declared that, 'The role of the Tribunal cannot be overemphasized. Far from being a vehicle for revenge, it is a tool for promoting reconciliation and restoring true peace.'
2. A. Cassese, ICTY First Annual Report, UN Doc. IT/68, 17 August 1994, available online at http://www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_1994_en.pdf (visited 5 January 2012), at § 16.
3. It is important to point out, however, that there is a nascent body of research on the impact of criminal tribunals, much of which centres upon the ICTY
4. E. Stover and H.M. Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press, 2004).
5. J. Subotic, Hijacked Justice: Dealing with the Past in the Balkans (Cornell University Press, 2009).
6. L.J. Nettelfield, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal's Impact in a Postwar State (Cambridge University Press, 2010).
7. D.F. Orentlicher, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (Open Society Institute, 2010), available online at http://www.ictj.org/static/Publications/Orentlicher_BiH_OSJI-ICTJ_ThatSomeoneGuilty_pb2010.pdf (visited 19 December 2010). Seldom, however, is the focus specifically on the Tribunal's impact on reconciliation.
8. See, for example, J.N. Clark, 'The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina', 7 Journal of International Criminal Justice (JICJ) (2009) 463-387.
9. J.N. Clark, 'Judging the ICTY: Has It Achieved Its Objectives?' 9 Journal of Southeast European and Black Sea Studies (2009) 123-142.
10. J.N. Clark, 'Transitional Justice in BiH: The International Criminal Tribunal for the former Yugoslavia', in L.A. Barria and S.D. Roper (eds), The Development of Institutions of Human Rights: A Comparative Study (Palgrave Macmillan, 2010) 83-97.
11. J.N. Clark, 'The Impact Question: The ICTY and the Restoration and Maintenance of Peace', in G. Sluiter, B. Swart and A. Zahar (eds), The Legacy of the International Criminal Tribunal for the formerYugoslavia (Oxford University Press, 2011) 55-80.
12. This author endorses Staub's argument that: 'Reconciliation is more than coexistence, that is, formerly hostile groups living near each other or simply interacting and working together. Reconciliation requires that members of the two groups come to see the humanity of one another. It means coming to accept each other and to develop mutual trust.'
13. E. Staub, 'Genocide and Mass Killing: Origins, Prevention, Healing and Reconciliation', 21 Political Psychology (2000) 367-382, at 376.
14. In their research on criminal trials and social reconstruction, Stover and Weinstein conclude that '::: our studies suggest that there is no direct link between criminal trials (international, national, and local/traditional) and reconciliation, although it is possible this could change over time.'
15. K.C. Moghalu, 'Prosecute or Pardon? Between Truth Commissions and War Crimes Trials', in C.L. Sriram and S. Pillay (eds), Peace Versus Justice? The Dilemma of Transitional Justice in Africa (University of KwaZulu-Natal Press, 2009) 69-95, at 90.
16. As Peskin underlines, 'tribunals' legacies are not necessarily fixed, but may change over time as the domestic perceptions of the past and the domestic politics of the present change'
17. V. Peskin, International Justice in Rwanda and the Balkans:Virtual Trials and the Struggle for State Cooperation (Cambridge University Press, 2008), at 244.
18. A coalition of more than 250 civil society organizations and victims' associations throughout the former Yugoslavia, the RECOM Initiative was launched on 9 May 2008 to promote the idea of forming a regional TRC. While there are good reasons for questioning the practicality of a regional TRC, the fact that RECOM has now obtained approximately half of the required 1 million signatures is evidence of an increasing recognition among people within the former Yugoslavia that in order to comprehensively deal with a legacy of war crimes, it is necessary to look beyond criminal justice. In a region where the concept of restorative justice traditionally has little resonance, this is a significant development.
19. Although Vukovar is an ethnically diverse town, this article focuses on reconciliation between Serbs and Croats both because they are the two largest groups in Vukovar and because they were the two main parties to the war in 1991 (although other ethnic groups were also involved and affected).
20. Statistics available online at http://www.vukovar.hr/stanovnistvo-grada-vukovara.html (visited 19 September 2011).
21. According to the most recent census, in 2011, Vukovar has a population of 28, 016.
22. For the results of this census, see http://www.dzs.hr/Eng/censuses/census2011/htm/E11_Zup26.html (visited 19 September 2011).
23. M. Mitrovic, 'Nedace se mogu nadvladati razgovorom', in Centre for Peace, Non-Violence and Human Rights-Osijek, Ranjeni Ratom Dodirnuti Nadom (Centre for Peace, Non-Violence and Human Rights, 2011) 30-31, at 30. Corkalo et al.'s research also supports this.
24. V.S. Dabic and K.M. Lukic, Crimes without Punishment:Vukovar, Sarvaš and Paulin Dvor (Women's Association of Vukovar Community, 1997), at 21-23.
25. Judgment, Mrksic, Radic and Šljivancanin (IT-95-13/1), Trial Chamber, 27 December 2007, at § 26
26. C.S. Stewart, Hunting theTiger:The Fast Life andViolent Death of the Balkans' Most Dangerous Man (St. Martin's Press, 2007), at 160.
27. D. Rehak, Through the Roads of Hell: Through Serbian Concentration Camps 1991:::Into 21st Century (Croatian Association of Camp Inmates of Serbian Concentration Camps, 2008).
28. In Mrksic et al., the ICTY Trial Chamber noted that 'The remains of 200 human bodies were exhumed from this mass grave at Ovcara. There were 198 males and two females. The age range of those exhumed was between 16 and 72.' The Chamber added that 'The death of more persons than the 200 mentioned above at Ovcara on 20/21 November 1991 is not precluded by these findings, although, apart from a few specific cases identified later in this Judgment, this is not established by the evidence in this case'.
29. For example, in its second amended indictment against Miloševic pertaining to crimes committed in Croatia, the ICTYclaimed that the defendant - acting alone or as part of a joint criminal enterprise (JCE) - was involved in planning, instigating, ordering, committing, or otherwise aiding and abetting, the persecution of Croats and non-Serb civilian populations in Croatia. These persecutions, according to the indictment, included '[t]he extermination of hundreds of Croat and other non-Serb civilians' in Vukovar and a variety of other Croatian towns and villages. Second Amended Indictment regarding Croatia, Miloševic (IT-02-54-T), 27 July 2004, at § 36.
30. The mayor of Vukovar, for example, insisted that inter-ethnic relations in the town are 'odlicno' ['excellent'], that there are no problems and that Vukovar must be considered as a great success story. The overwhelming majority of interviewees, however, appraised the situation very differently. Author interview, Vukovar, 15 July 2011.
31. R. Shaw and L. Waldorf, 'Introduction: Localizing Transitional Justice', in R. Shaw and L. Waldorf (eds), Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford University Press, 2010) 3-26, at 7.
32. Nineteen interviewees were women and 35 were men, a gender imbalance to which the use of snowball sampling contributed. Thirty interviewees were Croats, 23 were Serbs and one was from outside of the former Yugoslavia.
33. P.C. McMahon and D.P. Forsythe, 'The ICTY's Impact on Serbia: Judicial Romanticism Meets Network Politics', 30 Human Rights Quarterly (HRQ) (2008) 412-435, at 416.
34. According to one commentator, 'Reconciliation is like the old saw about pornography - we know it when we see it. But do we all see the same thing, and what exactly are we striving to achieve?' H.M. Weinstein, 'Editorial Note: The Myth of Closure, the Illusion of Reconciliation - Final Thoughts on Five Years as Editor-in-Chief', 5 International Journal of Transitional Justice (IJTJ) (2011) 1-10, at 3.
35. See, for example, A. Cassese, 'Reflections on International Criminal Justice', 61 The Modern Law Review (1998) 1-10, at 6.
36. M.P. Scharf and P.R. Williams, 'The Functions of Justice and Anti-Justice in the Peace-Building Process', 35 CaseWestern Reserve Journal of International Law (2003) 161-190, at 189.
37. K.C. Moghalu, 'Reconciling Fractured Societies: An African Perspective on the Role of Judicial Prosecutions', in R. Thakur and P. Malcontent (eds), From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (United Nations Press, 2004) 197-223, at 216.
38. R. Kerr, 'Peace through Justice? The International Criminal Tribunal for the Former Yugoslavia', 7 Southeast European and Black Sea Studies (2007) 373-385, at 379.
39. This model was initially developed and applied during the author's fieldwork in BiH.
40. Cited in ICTY, Bridging the Gap Between the ICTY and Communities in Bosnia and Hercegovina: Conference Proceedings, Srebrenica 21 May 2005(Communications Service, ICTYRegistry2005), at2
41. See, for example, Judgment, Erdemovic (IT-96-22-Tbis), Trial Chamber II, 5 March 1998, at § 21; Judgment, Plavšic (IT-00-39&40/1-S), Trial Chamber, 27 February 2003, at § 73
42. S. Parker, 'The International Criminal Tribunal for the former Yugoslavia: The Promise and Reality of Reconciliation in Croatia', 15 Peace and Conflict Studies (2009) 81-101, at 84.
43. M. Klarin, 'The Impact of ICTY Trials on Public Opinion in the FormerYugoslavia', 7 JICJ (2009) 89-96, at 89.
44. According to the Association of Families of Missing and Violently Abducted Persons, for example, there are 83 missing Serbs from Vukovar and the adjacent village of Borovo Selo. Association of Families of Missing and Violently Abducted Persons, Vaš Lik, Naš Put (Association of Families of Missing and Violently Abducted Persons, 1999), at 11-40.
45. The Borovo shoe factory, for example, employed between 20, 000 and 22, 000 people before the war. Today, in a state of serious disrepair, it employs only a fraction of that number.
46. Author interview, Vukovar, 24 July 2011.
47. Author interview, Borovo Selo, 18 July 2011.
48. Speech by Danijel Rehak, Croatian House, Vukovar, 14 August 2011. The author attended this memorial event as a participant observer.
49. R. Rac, 'Reakcije na Hadžicevo uhicenje', Vukovarske Novine, 29 July 2011, at 3.
50. The Croatian army launched Operation Storm in August 1995, with the aim of re-taking territory that had been lost to the Serbs in 1991.While the operation was a military success, significant human rights abuses were committed and some 200, 000 Serbs from Knin and the Krajina area fled their homes in fear. Interestingly, Croat interviewees referred only to the use of grenades during Operation Storm. In fact, however, heavy weaponry was also utilized, including multiple-barrel rocket launchers (MBRLs). During the shelling of Knin on 4 and 5 August 1995, for example, the ICTY notes that the Croatian army 'used 130-millimetre guns at distances of 25 and 27 kilometres and 122-millimetre BM-21 MBRLs at distances of 18-20 kilometres'. Judgment, Gotovina, Markacand Cermak (IT-06-90), Trial Chamber, 15 April 2011, at § 1898.
51. In October 2000, for example, the Croatian Sabor (parliament) adopted a 'Declaration on the HomelandWar', according to which 'The Republic of Croatia led a just and legitimate, defensive and liberating::: war::: in which she defended her territory from the great Serbian aggression within her internationally recognized borders.' L. Aucoin and E. Babbitt, Transitional Justice: Assessment Survey of Conditions in the former Yugoslavia (United Nations Development Programme, 2006), at 154.
52. Judgment, Mrksic, Radic and Šljivancanin (IT-95-13/1-A), Appeals Chamber, 5 May 2009, at § 101.
53. Review Judgment, Šljivancanin (IT-95-13/1-R.1), Appeals Chamber, 8 December 2010, at § 32.
54. Author interview, Ovcara, 24 July 2011.
55. Dr Vesna Bosanac, for example, the wartime director of the Vukovar Hospital, averred that Šljivancanin is not only guilty but is the person most responsible for everything that happened in Vukovar both before and after the fall of the town. M. Paun, 'Bosanac: Pravda ga nije stigla', Vukovarske Novine, 15 July 2011, at 2.
56. Author interview, Osijek, 27 July 2011.
57. The outreach office, for example, which is not in the centre of Zagreb, is situated in a large complex of buildings but it is not sign-posted and the author was unable to find any address on the internet. Without assistance from a contact at Documenta in Zagreb, therefore, it may not have been possible to visit the outreach office.
58. In September 2008, the ICTY's outreach unit - in collaboration with the Humanitarian Law Centre in Serbia and two other NGOs - organized a similar 'Bridging the Gap' event in Belgrade. The purpose of this conference, entitled 'Brcko '92 - Beyond Reasonable Doubt', was to raise public awareness of war crimes committed in Brcko District in north-eastern BiH. Four victims spoke about their experiences and Matias Hellman, the ICTY's representative in Serbia, discussed the Tribunal's work and Judgments relating to Brcko.
59. Institute forWar and Peace Reporting (IWPR), 'Voices of Victims Heard at Belgrade Conference', 12 September 2008, available online at http://iwpr.net/report-news/voices-victims-heard-belgrade-conference (visited 20 February 2012).
60. Biro et al., for example, maintain that ':::a more vigorous education campaign about the tribunal's impartiality and the facts about its organization and goals could contribute to an increase in positive attitudes towards international war crimes trials and, in general, to the development of a positive image of the ICTY'.
61. Author interview, Zagreb, 8 August 2011.
62. This report requested that both the ICTYand the International Criminal Tribunal for Rwanda (ICTR), as part of the tribunals' completion strategies, 'examine the feasibility of establishing information centres in the affected countries to give access to copies of the public records or the most important parts'.
63. United Nations, Secretary General's Report, S/2009/258, 21May 2009, available online at http://www.icty.org/x/file/About/Reports%20and%20Publications/CompletionStrategy/090521_sg_report_residual_mechanism.pdf, at § 259 (1) (ix).
64. ICTY Information Centre, 'Project Proposal' (2010), at 7. Copy on file with the author.
65. The information centres, for example, would organize educational events, a core purpose of which 'would be to promote reconciliation by increasing the public's understanding and addressing misconceptions regarding the work of the Tribunal and the corresponding work, within national jurisdictions, as well as through facilitating open discussion regarding the conflict'
66. Slovenia and Montenegro have not decided whether to have information centres on their territories, Macedonia has decided that it does not need one and Serbia has yet to appoint a member to the Informal Consultative Working Group on the Establishment of Information Centres in the Region of the former Yugoslavia, which held its first meeting on 30 September 2010
67. P. de Grieff, 'A Normative Conception of Transitional Justice', 50 Politorbis (2010) 17-30, at 20.
68. R.A. Wilson, 'Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia', 27 HRQ (2005) 908-942, at 909.
69. Author interview, Borovo Selo, 16 July 2011.
70. According to Stewart, 'Vukovar was probably one of the first full-scale clashes that exposed how much Miloševic, in the absence of a devoted army, would have to rely on his paramilitaries.
71. That JNA soldiers were disillusioned and deserting in large numbers raises questions about the extent to which the JNA was fighting a defensive war to preserveYugoslavia.
72. M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, 1998), at 143.
73. Author interview, Vukovar, 14 July 2011.
74. Such resistance to the truth, however, does not only exist in Vukovar. Subotic, for example, notes that 'Recent public opinion surveys of attitudes towards the past in Croatia confirm that domestic demand for transitional justice efforts, if they involve revaluation of the homeland war, remains consistently low.'
75. 'Reakcije stradalnika', Vukovarske Novine, 12 November 2010, at 3.
76. During her fieldwork in Croatia, for example, the author observed pro-Gotovina graffiti on the walls of the Borovo factory in Vukovar and in the centre of Osijek. In the main square in Osijek, there was a stand with posters calling for the release of Gotovina and his co-defendant, Mladen Markac, as well as a petition that two young men were urging people to sign. In Zadar, in the west of Croatia, Gotovina's name was similarly scrawled on a number of buildings in the old town, and on one building the author photographed street graffiti declaring 'Umri Orie!' ['Die Orie!']. Judge Alphons Orie was the presiding judge in the Gotovina trial.
77. N. Bašic, "'You Can't Run Away": Former Combat Soldiers and the Role of Social Perception in Coping with War Experience in the Balkans', in B. Pouligny, S. Chesterman and A. Schnabel (eds), After Mass Crimes: Rebuilding States and Communities (United Nations University Press, 2007) 142-162, at 145.
78. In the first half of 2011, for example, ex-combatants were involved in organizing numerous protests, 'at which the current authorities and the judicial bodies were requested to abandon criminal prosecution for war crimes against the accused members of Croatian formations, to suspend cooperation with judicial bodies of the Republic of Serbia and to suspend cooperation with the ICTY'
79. M. Stojanovic and K. Kruhonja, MonitoringWar Crimes Trials: Report January/May 2011 (Centre for Peace, Non-Violence and Human Rights-Osijek, 2011), at 7.
80. Peskin and Boduszynski underline that 'The ICTY indictments of the Croatian generals raise the uncomfortable question that the Homeland War was not the clearly fought, honourable battle portrayed by government leaders.'
81. V. Peskin and M. Boduszynski, 'International Justice and Domestic Politics: Post-Tudjman Croatia and the International Criminal Tribunal for the former Yugoslavia', 55 Europe-Asia Studies (2003) 1117-1142, at 1135.
82. The author took part in this event as a participant observer.
83. (Author's own translation from Croatian). Z. Deljanin, 'Bez generala ne bismo imali što slaviti', Zadarski List, 6 August 2011, at 3.
84. (Author's own translation from Croatian). M. Lipovac, 'Kosor: Nikad necemo prihvatiti da nam se predbacuju naše pobjede', NedeljeniVjesnik, 6 and 7 August 2011, at 2.
85. (Author's own translation from Croatian).
86. It is interesting to note, for example, that in 2011, Croatia's then Minister of Justice - Dražen Bošnjakovic - enlisted the services of the US lobby firm Patton Boggs to campaign against the conviction of generals Gotovina and Markac. Bošnjakovic signed a one-year agreement with Patton Boggs, according to which Croatia will pay the Washington-based firm a monthly lump sum of $60, 000 until August 2012. Croatia's new Minister of Justice, Orsat Miljenic, moreover, has recently confirmed that Croatia is seeking the status of amicus curae in the ICTY appeal proceedings against Gotovina and Markac.
87. Slavica Lukic, 'Otkrivamo ugovor koji država skriva: Studiju o Gotovini platit cemo 4, 2 milijuna kuna', Jutarnji List, 24 January 2012, available online at http://www.jutarnji.hr/pisanje-podneska-haagu-stajat-ce-nas-najmanje-4-176-milijuna-kuna/1001944/ (visited 20 January 2012), at 3.
88. Documenta press conference, Zagreb, 4 August 2011. The author attended this press conference.
89. (Author's own translation from Croatian). A. Nazor, 'Preuvelicani broj spaljenih domova', Magazin zaVojnu Povijest (special edition), August 2011, at 4.
90. P. Hazan, Judging War, Judging History: Behind Truth and Reconciliation (Stanford University Press, 2010), at 157.
91. Author interview, Vukovar, 18 July 2011
92. Author interview, Borovo Naselje, 12 July 2011
93. Author interview, Vukovar, 27 July 2011
94. Author interviews, Vukovar, 19 July 2011. According to Ajdukovic and Corkalo's research in Vukovar, 'Evidence of social pressure from both ethnic groups not to cross invisible but strong ethnic boundaries emerged in a number of interviews.'
95. Author interview, Vukovar, 22 July 2011.
96. Author interview, Ovcara, 24 July 2011.
97. T. Govier, 'A Dialectic of Acknowledgement', in J.R. Quinn (ed.), Reconciliation(s): Transitional Justice in Postconflict Societies (McGill-Queen's University Press, 2009) 36-50, at 38.
98. Z. Pajic, 'Restorative Justice: Victim's Needs and Compensation Policy Potentials', 2 Forum for Transitional Justice (FTJ) (2009) 73-74, at 73.
99. N. Petrovic, 'Human Potential for Restorative Justice in the Balkans', 3 FTJ (2009) 95-98, at 96.
100. W. Lambourne, 'Transitional Justice and Peacebuilding after Mass Violence', 3 IJTJ (2009) 28-48, at 47.