Post by engers on Oct 10, 2007 9:49:11 GMT -5
The recent verdicts in The Hague at the International Criminal Tribunal for the Former Yugoslavia (ICTY) against three Serbian military officers indicted for the massacre at Ovèara after the fall of Vukovar has created an outcry in Croatia due to what the Croats see as unacceptably light sentences (including one complete acquittal).
Once again, in contrast to its goal of helping to bring reconciliation and a sense of justice to the region, the ICTY has inadvertently done the opposite. Nationalist feeling in Croatia has increased, Serbian returnees' houses have been burned in protest, and the wounds of the war have been re-opened.
In a perverse way, twelve years after its conclusion, the war is actually being kept alive by ICTY, whether in the search for the remaining fugitives (and related conditionality by the EU and the United States), the visits to the region by Carla del Ponte, the trials, and the now even the verdicts.
One of the positive features of the Vukovar trial is that the three hundred page trial judgment is a dispassionate and informative account of the increase in tensions leading up to the outbreak of violence in Croatia. It also describes in painful detail the events surrounding the Ovèara massacre and the names of the key individuals involved in it.
It is unfortunate that few people in the region will actually read the full report - reacting instead simply to the sentences imposed. It is too bad because there are a lot of details in it, which both enhance our understanding of what took place and also force us to reflect on what could have been done.
As an outsider, the first point that came home to me was the ineffectiveness of the International Community. Cyrus Vance was on the scene, as well as senior officials from the European Commission Monitoring Mission and the International Red Cross. They were prevented from getting to the Vukovar Hospital at the critical moments by Serbian Army officers, thus sealing the fate of those left inside.
This is a story repeated time and again and of course, not only in the former Yugoslavia. The same thing happened in Srebrenica, as Dutch soldiers watched the Bosniak men being separated from the women and children and then being driven away in buses. It is happening right now in Darfur. It was true during the genocide in Rwanda. The rationale is always the same: "we must rely on the good will of the warring parties." The result is always the same as well.
I also wonder whether the burden of proving command responsibility is getting more difficult, based on this case as well as the ruling by the separate International Court of Justice on Bosnia's genocide suit against Serbia. What is particularly striking in both cases is that the involvement of paramilitaries, territorial defense forces, and self-declared local "governments" has been effective in raising "reasonable doubt" about the "command responsibility" of those indicted.
It is also noteworthy that the judges rejected the whole concept of a joint criminal enterprise, which has been a critical element used by the Prosecution in many upcoming cases (including the indictment for Operation Storm). One of the unknowns in the whole ICTY process was what impact the concept of "Joint Criminal Enterprise" would have on verdicts on individuals identified by the Prosecution as being part of one.
I thought that it might lower the bar for guilty verdicts. At least in this case, that did not happen. This is good news for defense attorneys and a problem for the Prosecution. I can think now of several cases (involving Kosovo Albanians, Serbs, and Croats) which at least on the surface are not very strong against specific indictees. It is likely we will see more acquittals in the future.
What this verdict does is to increase the importance of the trials now underway in Belgrade of the actual perpetrators of the Ovèara massacre. A higher court threw out the original guilty verdicts and a retrial ordered. This new trial (and any subsequent higher court action) is a serious test of the Serbian justice system with potential repercussions not only for Serbian/Croatian relations, but also on Serbia's image. It is not an exaggeration to say that the World is watching.
In the Vukovar Hospital case the Prosecution worked hard to pare the indictment down to what they believed was a slam-dunk. They deliberately left out the prolonged shelling and destruction of Vukovar itself (in which more civilians were killed by far), as well as other war crimes committed subsequent to the fall of Vukovar at the Velepromet Complex.
They reasoned that strong guilty verdicts on Ovèara were a certainty and that it was better to stick to a clear-cut case than risk adding other charges. Now they are left with very little to show for it. There will be no accounting at all for the shelling and total destruction of Vukovar or the resulting civilian casualties.
While we will have to wait for his trial to take place to learn what evidence the Prosecution has developed against him, it was also interesting that the judges in this case commented extensively about the involvement of Seselj and those of his followers before and after the fall of Vukovar. While they mention rumors, accusations, and even note specific actions, they also make it clear that that found no "smoking guns" with regard to him. They certainly gave little comfort to those charged with prosecuting him.
The report elaborates in great detail the horrendous treatment of the prisoners at Ovèara and at other locations after the fall of Vukovar. It expresses well the fierce hatred towards the Croat defenders by the Serbian Territorial Defense forces and the subsequent actions they took as a result.
It points out that the critical event was the acceptance by Mile Mrkšiæ of the "decision" of the self-proclaimed "government of Serbian Autonomous District" that the prisoners would remain in their hands and not be transferred to Sremska Mitrovica as originally planned. But it needs to be also said that spread throughout the report are instances of some Serbian Army officers trying to do the right thing towards their prisoners; of individual Croats being rescued thanks to the interventions of Serbian friends or acquaintances; and the uneasiness of the Serbian army officers as they observed the actions of the paramilitary units and territorial defense forces and at times tried to restrain them. With stronger leadership from the very top of the local command of the JNA (Mile Mrkšiæ), this massacre and a lot of the abuse of prisoners would not have occurred.
Finally, in the grand scheme of things, the ICTY ruling is a minor event. The important thing about Vukovar is that it was a victory for the Croatians and an equally large defeat for Serbia. First of all, like the United States and our "Alamo," the stand of a small number of Croatian defenders for months against the might of the Serbian Army was of incalculable psychological value. Secondly, the time that the siege took was invaluable, as it bought time for Croatia to develop an effective fighting force.
Thirdly, the brutal destruction of Vukovar and the massacre at Ovèara ended all Western support for keeping Yugoslavia together and set Milosevic and Serbia onto a collision course with the West that ended finally in the NATO Bombing of 1999. The important verdict on Ovèara and on Vukovar was thus rendered long ago.
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[ftp][ftp]http://www.b92.net/eng/insight/opinions.php?yyyy=2007&mm=10&nav_id=44407[/ftp][/ftp]
Once again, in contrast to its goal of helping to bring reconciliation and a sense of justice to the region, the ICTY has inadvertently done the opposite. Nationalist feeling in Croatia has increased, Serbian returnees' houses have been burned in protest, and the wounds of the war have been re-opened.
In a perverse way, twelve years after its conclusion, the war is actually being kept alive by ICTY, whether in the search for the remaining fugitives (and related conditionality by the EU and the United States), the visits to the region by Carla del Ponte, the trials, and the now even the verdicts.
One of the positive features of the Vukovar trial is that the three hundred page trial judgment is a dispassionate and informative account of the increase in tensions leading up to the outbreak of violence in Croatia. It also describes in painful detail the events surrounding the Ovèara massacre and the names of the key individuals involved in it.
It is unfortunate that few people in the region will actually read the full report - reacting instead simply to the sentences imposed. It is too bad because there are a lot of details in it, which both enhance our understanding of what took place and also force us to reflect on what could have been done.
As an outsider, the first point that came home to me was the ineffectiveness of the International Community. Cyrus Vance was on the scene, as well as senior officials from the European Commission Monitoring Mission and the International Red Cross. They were prevented from getting to the Vukovar Hospital at the critical moments by Serbian Army officers, thus sealing the fate of those left inside.
This is a story repeated time and again and of course, not only in the former Yugoslavia. The same thing happened in Srebrenica, as Dutch soldiers watched the Bosniak men being separated from the women and children and then being driven away in buses. It is happening right now in Darfur. It was true during the genocide in Rwanda. The rationale is always the same: "we must rely on the good will of the warring parties." The result is always the same as well.
I also wonder whether the burden of proving command responsibility is getting more difficult, based on this case as well as the ruling by the separate International Court of Justice on Bosnia's genocide suit against Serbia. What is particularly striking in both cases is that the involvement of paramilitaries, territorial defense forces, and self-declared local "governments" has been effective in raising "reasonable doubt" about the "command responsibility" of those indicted.
It is also noteworthy that the judges rejected the whole concept of a joint criminal enterprise, which has been a critical element used by the Prosecution in many upcoming cases (including the indictment for Operation Storm). One of the unknowns in the whole ICTY process was what impact the concept of "Joint Criminal Enterprise" would have on verdicts on individuals identified by the Prosecution as being part of one.
I thought that it might lower the bar for guilty verdicts. At least in this case, that did not happen. This is good news for defense attorneys and a problem for the Prosecution. I can think now of several cases (involving Kosovo Albanians, Serbs, and Croats) which at least on the surface are not very strong against specific indictees. It is likely we will see more acquittals in the future.
What this verdict does is to increase the importance of the trials now underway in Belgrade of the actual perpetrators of the Ovèara massacre. A higher court threw out the original guilty verdicts and a retrial ordered. This new trial (and any subsequent higher court action) is a serious test of the Serbian justice system with potential repercussions not only for Serbian/Croatian relations, but also on Serbia's image. It is not an exaggeration to say that the World is watching.
In the Vukovar Hospital case the Prosecution worked hard to pare the indictment down to what they believed was a slam-dunk. They deliberately left out the prolonged shelling and destruction of Vukovar itself (in which more civilians were killed by far), as well as other war crimes committed subsequent to the fall of Vukovar at the Velepromet Complex.
They reasoned that strong guilty verdicts on Ovèara were a certainty and that it was better to stick to a clear-cut case than risk adding other charges. Now they are left with very little to show for it. There will be no accounting at all for the shelling and total destruction of Vukovar or the resulting civilian casualties.
While we will have to wait for his trial to take place to learn what evidence the Prosecution has developed against him, it was also interesting that the judges in this case commented extensively about the involvement of Seselj and those of his followers before and after the fall of Vukovar. While they mention rumors, accusations, and even note specific actions, they also make it clear that that found no "smoking guns" with regard to him. They certainly gave little comfort to those charged with prosecuting him.
The report elaborates in great detail the horrendous treatment of the prisoners at Ovèara and at other locations after the fall of Vukovar. It expresses well the fierce hatred towards the Croat defenders by the Serbian Territorial Defense forces and the subsequent actions they took as a result.
It points out that the critical event was the acceptance by Mile Mrkšiæ of the "decision" of the self-proclaimed "government of Serbian Autonomous District" that the prisoners would remain in their hands and not be transferred to Sremska Mitrovica as originally planned. But it needs to be also said that spread throughout the report are instances of some Serbian Army officers trying to do the right thing towards their prisoners; of individual Croats being rescued thanks to the interventions of Serbian friends or acquaintances; and the uneasiness of the Serbian army officers as they observed the actions of the paramilitary units and territorial defense forces and at times tried to restrain them. With stronger leadership from the very top of the local command of the JNA (Mile Mrkšiæ), this massacre and a lot of the abuse of prisoners would not have occurred.
Finally, in the grand scheme of things, the ICTY ruling is a minor event. The important thing about Vukovar is that it was a victory for the Croatians and an equally large defeat for Serbia. First of all, like the United States and our "Alamo," the stand of a small number of Croatian defenders for months against the might of the Serbian Army was of incalculable psychological value. Secondly, the time that the siege took was invaluable, as it bought time for Croatia to develop an effective fighting force.
Thirdly, the brutal destruction of Vukovar and the massacre at Ovèara ended all Western support for keeping Yugoslavia together and set Milosevic and Serbia onto a collision course with the West that ended finally in the NATO Bombing of 1999. The important verdict on Ovèara and on Vukovar was thus rendered long ago.
-----------------------------------------------------------------------------------
[ftp][ftp]http://www.b92.net/eng/insight/opinions.php?yyyy=2007&mm=10&nav_id=44407[/ftp][/ftp]