Operation Storm - ICTY Trials

ICTY Trials

The ICTY issued indictments against three senior Croatian commanders, Colonel General Ivan Čermak, Colonel General Mladen Markač and Brigadier (later General) Ante Gotovina. In April 2011 the court rendered a partial guilty verdict: Ante Gotovina was sentenced to 24 and Mladen Markač to 18 years in prison. Ivan Čermak was acquitted of all charges. In November 2012, Generals Ante Gotovina and Mladen Markač were found not guilty by the Appeals Panel of the ICTY.

In the original indictment, the three were said to have had personal and command responsibility for war crimes carried out against rebel Serb forces and civilians, and it described the creation of a joint criminal enterprise whose purpose was to permanently remove the Serbian population through commission of crimes (plunder, inhumane treatment, murder, wanton destruction, looting and others) and prevent their return. It was later disclosed by the ICTY prosecutor, Louise Arbour, that had he not died when he did, Croatia's President Tuđman would probably also have been indicted.

Čermak and Markač were handed over to the ICTY, but Gotovina fled. He was widely believed to be at liberty in Croatia or the Croat-inhabited parts of Bosnia, where many view him as a hero, and his continued freedom was attributed to covert help from — or at least a "blind eye" turned by — the Croatian authorities. The US Government offered a $5 million reward for the capture of Ante Gotovina and he became one of the ICTY's most wanted men. The issue was a major stumbling block for Croatia's international relations. Its application to join the European Union was rebuffed in March 2005 due to the Croatian government's perceived complicity in Gotovina's continued evasion of the ICTY.

On 8 December 2005, Gotovina was captured by Spanish police in a hotel on Tenerife in the Canary Islands. He was transferred to Madrid for court proceedings before extradition to the ICTY at The Hague. The ICTY later joined the proceedings against the three generals into a single case. The trial started in March 2008, and concluded in September 2010.

The transcript of the July 31st 1995 meeting, whose authenticity was verified by the Croatian Chief State Prosecutor's Office, formed the basis of the Prosecutor's allegation of a joint criminal enterprise found in the indictment against generals Ante Gotovina, Ivan Cermak and Mladen Markac. The prosecution of the ICTY alleged that the content of the meeting was evidence of existence of a joint criminal enterprise to forcibly remove the Serb population from Croatia and prevent their return, but the Trial Chamber dismissed those particular allegations, saying Tuđman's statements mostly referred to the Serb military forces rather than civilians. More generally, the prosecution asserted that the transcripts demonstrated a shared intent to forcibly remove Serbs from the area and the Trial Chamber largely concurred, saying the intent of the meeting's participants was "to show Serbs out but at the same time give them the impression that they could stay". The Appeals Chamber instead stated that there was no proof in the transcript for the claim that unlawful attacks were to be committed on the four towns in the RSK.

It is important that these civilians start moving and then the army will follow them, and when the columns start moving, they will have a psychological effect on each other. That means we provide them with an exit, while on the other hand we feign to guarantee civilian human rights and the like...

— Croatian President Franjo Tudjman

In June 2008, during the prosecution of Ante Gotovina at the Hague, Canadian general Andrew Leslie claimed between 10,000 and 25,000 civilians were victims of the shelling of Knin on 4 and 5 August 1995. Mladen Markac’s defense counsel cited this as an example of gross exaggerations of Serb casualties by the UN personnel in the field. Canadian general Forand didn’t want to comment on Leslie’s claim, saying only that something like that was never registered in the situation reports drafted by the Sector South command.

The first verdict had directly identified President Franjo Tuđman as part of a joint criminal enterprise dedicated to expelling Serb residents of the country's Krajina region. In it, however, the ICTY did not rule that Operation Storm as a whole was a "joint criminal enterprises" or that Croatia was established on an illegitimate basis. Rather the judges ruled that some aspects of the military offensive violated international law.

Both verdicts divided the public opinion. Jeffrey T. Kuhner criticized ICTY's first-degree decision since it didn't take into consideration the fact that Operation Storm nullified Greater Serbia, calling it "a politicized vehicle" that decided that "no party – or nation – was more responsible than the other", which was "what Serbia has been demanding for years".

According to the first-degree verdict, the population was already on the move due to the shelling of the towns before the Krajina authorities ordered evacuations. Later in August at least a further 20,000 people were the subject of deportation by way of forcible displacement due to crimes and inhumane acts. The Trial Chamber stated that "members of the Croatian military forces and the Special Police committed deportation as a crime against humanity of more than 20,000 Krajina Serbs" (par. 1710). However, the Appeals Chamber decided that civilian departures related to artillery attacks "only constituted deportation where these artillery attacks were found to have been unlawful" (par. 87), and in turn "reversed the Trial Chamber’s findings related to unlawful artillery attacks" (par. 91).

The Appeals Panel decision was a 3-2 majority decision that stated that the prosecution had failed to prove the existence of a joint criminal enterprise.