Croatian General “Fostered Climate of Impunity”

Friday, 3 September, 2010

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Rachel Irwin

Senior Reporter

In closing arguments this week, prosecutors argued that Croatian army general Ante Gotovina issued “hollow” orders to prevent the burning and looting of Serb villages during 1995’s Operation Storm.

“It was clear that General Gotovina expected the orders to prevent looting and burning to fail, and when they did, he didn’t want to [know] anything about it,” prosecuting lawyer Katrina Gustafson told judges during the closing remarks , which spanned nearly four days.

She went on to argue that these were “repeated incantations of the same hollow order that had already failed twice”.

Gotovina is accused – alongside generals Ivan Cermak and Mladen Markac – of ordering the shelling of civilian areas, murdering Serb civilians and destroying their property during and after Operation Storm. About 200,000 Serb civilians are estimated to have left their homes around the time of the August 4, 1995 offensive, which was launched to retake the Serb-controlled Krajina region of Croatia.

Gotovina, Cermak and Markac face nine counts of war crimes and crimes against humanity, including persecutions, deportation, wanton destruction and murder.

The prosecution has requested a 27-year prison sentence for Gotovina, a 23-year term for Markac and 17 years for Cermak. The defence has requested acquittals for all three of the defendants.

In court this week, prosecutors alleged that Gotovina knew that his orders to prevent the looting and burning of Serb villages were “totally ineffective”.

“Were he genuinely concerned about stopping crimes, [Gotovina] would have taken immediate steps to find out why his orders were not followed,” Gustafson said.

Such steps would have included bringing subordinates under control to “prevent further crimes” and making sure the orders were implemented, she added.

Instead, she said, “General Gotovina… fostered a climate of impunity that encouraged and condoned subordinates’ crimes by deliberately failing to take measures to stop them.”

While the defence has claimed that Gotovina’s orders were in fact meant to prevent crime, Gustafson contended that the “evidence as a whole shows that the orders were aimed at masking the acceptance of these crimes, not preventing them”.

The prosecution contends that the plan to shell Serb villages and expel the civilian population was hatched at a July 31, 1995 meeting attended by Gotovina, Markac and other senior Croatian officials, including the then president Franjo Tudjman.

According to the prosecution’s final brief, Tudjman ordered his subordinates to direct an artillery attack on Krajina “aimed at ensuring the panicked flight of civilians”.

When this was completed, “President Tudjman and other officials implemented measures… to ensure that Serbs would not return in sufficient number to again represent a demographic threat,” prosecuting lawyer Alan Tieger told judges during his presentation.

Tieger noted that “there is no dispute that the Croatian people suffered from terrible crimes committed by Serbian forces [during the war], but there is likewise no conflict between that victimisation and the plan to expel Serbs. They coexist logically and factually, in an all too common cycle of victimisation.”

The prosecutor said that Cermak, who was tasked with handling the Knin area, “deflected inquiry and denied the crimes, and attempted to limit and control access and reporting by internationals and the media”.

The prosecution further alleged that Markac, as assistant interior minister and the commander of a special police force, “created a climate of impunity by failing to prevent or punish crimes” and even covered them up.

When Gotovina’s lawyers took the floor, they delivered a blistering attack on the prosecution’s arguments.

“In our opening statement…we said the prosecution would offer nothing but convoluted conspiracy theory,” said one of Gotovina’s lawyers, Luka Misetic. “After two years of trial, we can safely say, [we] are right.”

Misetic pointed to the prosecution’s final brief, which states that Tudjman, as well as the three co-accused, “took steps to force the Krajina Serbs out of Croatia in a way that would mask their real intention and later allow Croatian authorities to plausibly deny responsibility for the exodus of the Serb population”.

Misetic said the prosecution was advancing an argument that amounted to “invisible ethnic cleansing.

“[The prosecution] knows that if you judges rely on your eyes, you will see that the Croats didn’t ethnically cleanse the Serbs,” Misetic said.

He also denied the prosecution's claim that Serb residents left Krajina because of a Croatian bombardment, stating that there was not a “single” media report at the time that anyone “left Croatia because they felt terrorised by shelling.”

In its final brief, the Gotovina defence claims that “there was no unlawful shelling, no terror campaign, and no mass expulsion of civilians”. Instead, it says, people left because of an evacuation order issued on the afternoon of August 4 by Serb officials, who feared that their military forces and civilian population would be encircled by the Croatian army.

“The prosecution has never been able to find the key to open the door to a conviction, because there is no such key,” Misetic said this week. “It won’t stop the prosecution from trying, no matter how absurd their argument may be.”

He maintained that Gotovina took all “necessary and reasonable measures to prevent and punish crimes” and noted that the prosecution acknowledged that Gotovina’s order to “protect larger towns” was implemented.

“Herein lies another fundamental contradiction,” Misetic said. “[The prosecution]…is saying that the order to protect larger towns… was implemented, but [that Gotovina] failed to mention rural areas, thereby signalling he wanted them burned down.”

Misetic called this argument “nonsense” and said that when Gotovina issued orders to “limit all negative occurrence”, he meant exactly that. Furthermore, Misetic said that “every single time a problem was reported to General Gotovina, he took action”.

“Has the prosecution explained to you how subordinates would know which orders are supposed to be followed and which ignored?” Misetic asked the judges. “How were subordinates able to figure out the intent to protect larger towns but not to prevent crimes anywhere else?”

In terms of the steps that Gotovina should have taken to prevent and punish crimes – such as ordering subordinate commanders to investigate crimes and impose disciplinary measures – Misetic said that the prosecution had never mentioned these prior to their closing statements and final trial brief.

“The prosecution for some reason never put these simple and obvious steps to any witness in two-and-a-half years of trial,” said Misetic. “What you heard yesterday… [were the] opinions of prosecution trial counsel. They are arguments made up out of whole cloth.”

He also dismissed the prosecution’s contention that Gotovina was only “pretending” to address crimes committed by his subordinates.

“This argument is truly ridiculous,” Misetic said. “Moreover, [the prosecution] failed to put this argument to any witness in the case.”

When it was their turn to speak, Cermak’s lawyers contended that contrary to the prosecution’s allegations, Cermak “not only condemned crimes publicly, but he condemned crimes privately”.

Markac’s lawyers concluded that the prosecution “recites general facts, alleges specific conclusions and provides no evidence”.

“[The prosecution] is inviting this chamber to commit factual and legal errors,” Markac’s lawyer Tomislav Kuzmanovic said. “[We] trust chamber will not do that.”

Since the trial of the three Croatian generals began in March 2008, a total of 81 witnesses have testified for the prosecution, while 57 appeared on behalf of the defence.

Rachel Irwin is an IWPR reporter in The Hague.