ICTY: a common enterprise against the Serbs

The international court trying cases from the former Yugoslavia is there to heap blame on just one side.

Tara McCormack

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This week, the International Criminal Tribunal for the Former Yugoslavia (ICTY) found the former prime minister of Kosovo, Ramush Haradinaj, not guilty of all charges against him. Haradinaj had been a commander of the Kosovo Liberation Army (KLA) during the 1999 war in which the majority Albanian area of Kosovo sought to secede from Serbia. The previous week, two Croatian generals, Gotovina and Markac, were acquitted on appeal for charges brought over their role in Operation Storm in 1995. After the verdict of Haradinaj, Serbian president Tomislav Nikolic gave a statement that the ICTY was formed to try the Serbian people. He has a point.

The ICTY was established by the UN Security Council in 1993 during the civil wars that accompanied the break-up of Yugoslavia. The ICTY was specifically set up to try so-called war crimes committed by the warring parties in the former Yugoslavia – for example, breaches of international humanitarian law and the Geneva Conventions. It was the first international criminal tribunal set up since Nuremburg, but it was swiftly followed by several more based on the same model, like the ICT for Rwanda and the Special Panel for Serious Crimes in East Timor. In 2002, a permanent court was established, the International Criminal Court (ICC), to take over the job of the ad-hoc tribunals.

For many critics of the ICTY, it is a tool of Western interests. For supporters, the ICTY heralds a brave new post-Cold War world of international justice, in which those committing war crimes or crimes against humanity can no longer hide behind the barrier of state sovereignty. In fact, both critics and detractors are correct to a point and the contested principle of Joint Criminal Enterprise (JCE) illustrates the way these two aspects of the ICTY meet and are worked out.

Writing history

One of the central but unwritten mandates of the ICTY is the establishment of the official history of the break-up of Yugoslavia. In the early 1990s, the break-up of Yugoslavia and the wars that ensued became central to several aspects of Western intellectual and political life. The wars provided a point of clarity for confused and demoralised Western liberals, intellectuals and journalists who chose to interpret what were civil wars as a rerun of the Holocaust, with the Serbs playing the role of the Nazis. The propaganda war and misrepresentation of the conflict were truly staggering. Thus, the Yugoslav wars became the cause célèbre in the early 1990s and achieved notoriety far beyond the reality of the actual conflict. The UN secretary-general at the time, Boutros Boutros-Ghali, is still reviled for his comments that there were 10 worse wars going on at the same time as Bosnia.

The wars were also internationalised and exploited by the international community. For example, the EC – forerunner of the EU – used the crisis as a way of trying to build a joint foreign-policy identity after the signing of the Maastricht treaty. The EC intervened extensively in the very early days of the conflict, exacerbating and inflaming the situation, explicitly forbidding the Federal State of Yugoslavia from asserting control and actively supporting the secessionist states in the name of democracy and human rights. All the while, the EC cavalierly ignored key questions of statehood, citizenship and self-determination. It was simply assumed that various groups in Yugoslavia couldn’t possibly care about whether the state they had lived in since 1945 was dissolved overnight and new states created – a policy that, of course, no Western state made up of regions, such as Spain or the UK, would tolerate.

The secessionist states reached out for, and received, outside recognition and support, thus avoiding the need for political negotiation and compromise with other republics. Unsurprisingly, these policies failed to end the conflict in a negotiated political settlement. As the conflict raged on, the US became more directly involved, arming the Bosnian Muslims and Croats and allowing Iran to transport Mujahideen into Bosnia to fight the Bosnian Serbs.

When in 1999 the KLA launched a violent guerrilla war in order to achieve secession for Kosovo from Serbia, this script was repeated. Once again, Serbs were portrayed as the new Nazis and the Kosovo Albanians’ key tactic was to gain international support – which they certainly did, with NATO following KLA instructions from the ground. In April that year, at the height of the conflict, Tony Blair delivered his famous ‘Chicago Speech’ in which he spoke of the need to eschew the outdated doctrines of state sovereignty and non-intervention and called for a new type of international community.

So a key role of the ICTY has been that of the ‘court historian’: to write the official history of the break-up of Yugoslavia. The aim is not so much to cover for Western interests as it is to erase the role of external intervention and locate the blame for everything on the Serbs. However, the supporters of the ICTY also have a point: the ICTY has indeed served as a place in which new principles of so-called international justice can be worked out and explored.

The invention of legal principle: joint common enterprise

The official role of international criminal tribunals and the ICC is to establish specific liability for acts committed during war or acts of war, acts which may in fact involve many people. A key legal principle that has been developed and used by the ICTY for the prosecution of individuals involved in the Yugoslav wars is that of joint criminal enterprise (JCE). This is the category that has been used to prosecute Slobodan Milosevic (Milosevic was indicted on a kind of super JCE); General Krstic was found guilty of a JCE in relation to Srebrenica; it is what Radovan Karadzic has been indicted under. A JCE is what, on appeal, the Croatian Generals have been found not guilty of and also what Ramush Haradinaj has been found not guilty of. JCE has been incorporated into the statute of the ICC, it is used in the Rwandan Tribunal, the panel for East Timor, and has been used as well by America for the prosecution of Guantanamo detainees.

Let us look in a little more specific detail at what a JCE is. Almost a decade ago, I wrote an article on spiked in which I looked at the prosecution of General Krstic, who was commander of the Bosnian Serb army corps that took control of Srebrenica. Given the notoriety of the events at Srebrenica, it would be thought that the conviction of General Krstic would be an open-and-shut case. In fact, Krstic was convicted of a JCE. The reason for this was that at the trial it was officially established that Krstic did not know of any murders, had in no way participated and had personally given orders that civilians were not to be harmed. On appeal, the ICTY argued that for conviction of a JCE it was simply unnecessary to show that the defendant had any responsibility for or even knowledge of actual crimes committed.

While Krstic was found guilty of a JCE in relation to Srebrenica, Generals Gotovina and Markac were, on appeal, found not guilty of a JCE in relation to Operation Storm in 1995. Operation Storm was the single biggest act of so-called ethnic cleansing in the war in which the Croatian army, with NATO support, expelled 250,000 Serbs from the Croatian region of Krajina (the Serbian population of Krajina had been there for several hundred years). The open and explicit aim of this military operation was to target and expel all Serbs from the region in order to establish full Croatian control. As NATO had assisted, it would be reasonable to assume that European states and the US also had full knowledge of what was happening.

The late Croatian president, Franjo Tudjman, couldn’t disguise his glee at the success of Operation Storm: ‘Today it is Croatian Knin (the capital of Krajina region) and never again it will go back to what was before, when they (Serbs) spread cancer which has been destroying Croatian national being in the middle of Croatia and didn’t allow Croatian people to be truly alone on its own, that Croatia becomes capable of being independent and sovereign state. They were gone in a few days as if they had never been here… They did not even have time to collect their rotten money and dirty underwear.’

The category of JCE has been criticised by legal academics for a number of problems. For example, it is not present in the statute of the ICTY and has been developed and expanded as the ICTY has progressed, firstly in the Tadic trial. These are valid criticisms, but they do not get to the heart of the problem.

Central to the JCE is that it is a very vague concept that relies almost totally on the judges’ discretion. However, this is actually the key point of the JCE: it is an entirely flexible and open concept that can be applied as the judges see fit. Thus Gotovina has been acquitted (for a detailed critique of this judgement see the dissenting opinion of one of the judges), while Krstic was found guilty.

War crimes and acts of war

As I have said above, the aim of the ICTY and of other ad-hoc criminal tribunals and of the permanent ICC is to establish particular responsibility for acts committed during war and acts of war. However, there are prior questions to be asked, which are expunged from the brave new world of international justice, involving how we understand wars and conflicts. A major problem when we are talking about war is that war is, in general, an inherently political act in which states (or groups within states) pursue political ends or gains. We can all probably more or less agree about a straightforward murder in a domestic context; few people will have a moral disagreement about a case, for example, in which someone murders another for financial gain. The new regime of international justice seeks to treat war and domestic crime in the same way.

However, when it comes to war, there are very rarely straightforward answers. How you view the action of one side is often down to how you understand the politics of the conflict. One state’s act of aggression is another’s act of self-defence. Gotovina is a hero to many Croats as he expelled the intractable Serbian minority who fought against being incorporated into the new Croatian state. For Serbs, he is a war criminal. As a general principle, one might well object to the premise of attributing particular liability for many conflicts in the first place.

Moreover, in the particular case of the Yugoslav wars, a confluence of things meant that these were already seen in a hyper-moralised fashion as uniquely evil non-political acts masterminded by particularly evil leaders like Milosevic. All political content to the conflict has been removed as has the role of Western meddling in exacerbating the conflict. Thus, the JCE has been used in the ICTY to expunge from the official records what the wars were actually about, to erase the role of the international community and to locate the blame firmly on a set of evil men intent on committing terrible crimes against others because of their ethnic group.

An impartial consideration of the category of JCE and the role of the ICTY raises serious questions about the idea of international justice as it is being currently rolled out by the West. Previous articles on spiked have discussed many problematic aspects of the ICC. For example, so far the ICC has issued indictments for African leaders only. It goes without saying that the ICC won’t be calling President Obama to The Hague anytime soon for America’s relentless drone attacks in Pakistan. As the then UK foreign secretary Robin Cook assured Western leaders nervous about the prospect of an ICC, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.

Moreover, the actions of the ICC in indicting sitting heads of states simply serves to exacerbate ongoing conflicts and actively to disempower the citizens within that state while empowering Western states, although in the highly moralised language of international law and human rights. The category of JCE will be one of the key ways in which the ICC pursues its goals.

Tara McCormack is a lecturer in international politics at the University of Leicester. She is author of Critique, Security and Power: The Political Limits to Critical and Emancipatory Approaches to Security, published by Routledge. (Buy this book from Amazon(UK).)

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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