The following is a guest-post by Rhodri C. Williams, a human rights consultant and commentator who recently began working on rule of law issues in Libya with the International Legal Assistance Consortium. Rhodri also writes at his fantastic TerraNullius blog. In this post, Rhodri examines the uneasy relationship between international criminal law and post-conflict reconciliation.

In April 2011, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted two Croatian Generals, Ante Gotovina and Mladen Markač to lengthy jail terms for their role in planning and carrying out ‘Operation Storm’, a 1995 offensive that resulted in the flight of up to 250,000 Croatian Serbs from their homes in the Krajina region of Croatia. At the time, the conviction hardly came as a shock given that the Storm campaign was widely seen as one of the most large-scale episodes of ethnic cleansing among the many that the 1990s wars in the former Yugoslavia had to offer.

But last Friday, in what has been described as “one of the most comprehensive reversals of the tribunal’s 19-year history”, the Appeals Chamber eviscerated the Trial Chamber’s findings and ordered the immediate release of both defendants. The summary read out in court reflected the Appeals Chamber’s acceptance of both the defense’s key arguments: first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand in regard to the defendants.

As I’ve described at TerraNullius, at the time of the Trial Chamber decision, the finding of the existence of a JCE by the Trial Chamber tied the defendants to a range of discriminatory actions and policies that accompanied the offensive. Perhaps most notably in relation to the current situation of Krajina Serbs, thousands of whom remain displaced, such acts included both the destruction of private property and the ex lege cancellation of Croatian Serb refugees’ rights to ‘socially owned’ apartments they had often occupied for generations.

As set out in the summary of the decision, the rejection of a JCE removed this link, leaving insufficient evidence to tie the defendants to the policy of expelling Serbs found by the Trial Chamber:

…the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the Trial Chamber’s findings on the JCE’s core common purpose of forcibly removing Serb civilians from the Krajina rested primarily on the existence of unlawful artillery attacks against civilians and civilian objects in the Four Towns. While the Trial Chamber also considered evidence concerning the planning and aftermath of the artillery attacks to support its finding that a JCE existed, it explicitly considered this evidence in light of its conclusion that the attacks on the Four Towns were unlawful. Furthermore, the Trial Chamber did not find that either of the Appellants was directly implicated in Croatia’s adoption of discriminatory policies.

This shock reversal has already begun to generate intense legal and political debate. The Prime Minister of Serbia, where most of the Krajina refugees found shelter, was quick to claim that that the ICTY does not function as a court but rather fulfills “pre-determined political tasks.” However, supporters of Generals Gotovina and Markač began to read the acquittal as a blanket vindication of Croatia’s conduct and aims during its 1991-95 war. As reported in the Guardian, for instance, Gotovina’s defence lawyer, Greg Kehoe, said the appeal verdict demonstrated that Operation Storm had been entirely legitimate under international law, “as a proper and just attempt to bring back that land into Croatia.”

By Friday evening, Gotovina and Markač had already returned from the Hague in the official Croatian government airplane and were met by the Prime Minister and a cheering crowd of 100,000 in the main square of the capital, Zagreb. Both Generals were quick to draw a line under the past, with Gotovina stating that the war “belongs in history” and Markač “happy that in the future every Croat in the world can say ‘we have our homeland and we freed it in a clean way.’” Croatian President Ivo Josipovic went further, arguing that the ruling was evidence that the “Croatian army wasn’t involved in any criminal activities.”

When the dust settles, the legal issues may turn out to be deceptively straightforward. It is certainly credible that the Trial Chamber went too far with its JCE finding and that the Appeals Chamber was right to tighten the focus to what criminal acts could be directly and unambiguously attributed to the defendants. On the other hand, this decision is demonstrative of the legal certainty-defying manner in which international law expands. After all, the same Appeals Chamber that last week swatted away an expansive JCE theory previously presided over an unprecedented – and not uncontroversial – expansion of the genocide definition in the 2004 Krstic judgment (involving the Srebrenica massacre in Bosnia; see the case-sheet here and a synthesis of the criticism here).

Meanwhile, the political issues arising from the decision will be considerable and less easily dispatched. Most notably, the judgment itself, as well as the official Croatian reaction to it is likely to further complicate the tenuous and protracted process of rebuilding the fabric of trust torn by the succession of conflicts that led to the dissolution of the former Yugoslavia. Already, AP reports that Belgrade plans to downgrade cooperation with the ICTY and has canceled a conference planned for this week on the Tribunal’s legacy.

Cooperation with the Tribunal has been one of many concessions Serbia has had to make in pursuit of an elusive process of European integration. These concessions have often been both morally and legally necessary, but they have cost tremendous political capital and brought limited political gains. According to some observers, moderate forces in Serbia lost last Spring’s elections to relative hardliners based on the perception that their attempts to appease Europe had brought few rewards and their consequent relapses into nationalism had become transparent populism. In 2010, Belgrade issued a belated and conditional, but previously unthinkable apology over Srebrenica, but its EU negotiations remain snarled in Kosovo talks. Now Croatia will swan into the EU with an apparent pass on Krajina. It is not always hard to understand the reaction (again from AP):

“As far as I understand this ruling, it is perfectly normal and legal to kill Serbs since nobody is being held responsible for it,” said Stana Pajic, who fled the offensive in 1995. “I’m terribly shaken by this unjust verdict.”

The claim that the Gotovina judgment refutes all allegations of Croatian malfeasance is contradicted by significant evidence that the highest wartime political and military leadership in the country intended to rid itself of its Serbs. For instance, in a 2005 book on the battle of the Medak pocket (a Croatian offensive that presaged Operation Storm and also ended up under ICTY scrutiny), Canadian journalist Carol Off cites leaked transcripts of Croatian cabinet meetings held at the time to establish this intention (page 164):

The prime minister, Nikica Valentic … adds that he knows the character of the Serbs in the Krajina. “We will never be able to resolve our differences with the Serbs in Croatia diplomatically. When the time is right, we will have to resolve them in another way.” [Then-president Franjo] Tudjman responds “Yes, I know.”

Chillingly, the transcript goes on to describe Tudjman noting that measures to cut off arms from Serbia would induce the remaining Serbs to leave, “and that will solve that”, but that more time would be needed to “prepare the ground politically and militarily”. In the wake of the ensuing Operation Storm, the Gotovina Trial Chamber of the ICTY catalogued the results of these efforts, identifying

“a joint criminal enterprise whose objective was permanent removal of the Serb population from the Krajina region by force or threat of force, which amounted to and involved deportation, forcible transfer, and persecution through the imposition of restrictive and discriminatory measures, unlawful attacks against civilians and civilian objects, deportation, and forcible transfer.”

As my former Bosnia colleague Marcus Cox pointed out in a thoughtful comment to my earlier post on the Gotovina judgment, the Appeals Chamber decision should be read restrictively. The concern of the Appeals Chamber was that the directly impugned acts of the defendants were not illegal and could not be tied to the JCE as a result, but not, crucially, that the JCE did not exist.

“Importantly, the Appeal Court does not overturn the Trial Chamber’s findings that crimes were committed during Operation Storm, including persecution, murder, inhumane acts, plunder, destruction and cruel treatment (not to mention all the measures taken to prevent Serbs returning, which don’t fall under international humanitarian law). This is not a vindication of the conduct of Operation Storm, although it is going to be read that way by a lot of people.”

At a broad level, the Gotovina case may hold the same lessons on the limitations of international criminal law that the European Court of Human Rights’ recent Cyprus property decisions have demonstrated with regard to human rights law. Litigation inevitably and necessarily disappoints by applying a zero-sum approach to complex historical problems in which all parties have almost always been cast both in the role of victims and victimizers. To treat the Gotovina judgment as an absolution of Croatia’s well-documented sins is patently absurd and will only complicate the way to a long overdue regional reckoning with the past. Ultimately, Croatia can only legitimise its own narrative of victimhood by recognising the validity of those of its victims.