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Justice does not always mean convictions

The acquittal at the International Criminal Tribunal for the former Yugoslavia (ICTY) last week of two Croatian generals responsible for Operation Storm in 1995 has occasioned a lot of annoyance among Serbs.  Belgrade has downgraded cooperation with the Tribunal.  I got some pretty ugly tweets, because somehow I am responsible for what ICTY decides.  Anti-Semitic tirades accused me of being a Nazi.

So I decided to read the judgement, which I imagine few of my expletive-wielding antagonists had done.  I am not a lawyer, but the appeals panel that made the split decision to reverse a lower chamber’s conviction did not, in my layman’s view, exonerate the generals.  What it did was to find the trial chamber’s decisions faulty and indict the prosecution’s case as weak and ill-founded.  This distinction is important.  Courts do not exonerate.  They find guilty, or not guilty.  Not guilty does not mean innocent.  It means everything from innocent to insufficient evidence to poorly argued to logically inconsistent to incorrectly processed.  This gives the accused the benefit of doubt, which some of them are able to exploit to get off the hook (in this case only after Gotovina had spent seven years in prison).  That is inherent in a modern court system, which seeks to avoid false convictions.

The main rational objection to the Tribunal in Serbia is that it is biased against Serbs.  I find this assertion hard to credit.  Certainly ICTY has indicted more Serbs (94 of 161) than Croats, Bosniaks and Albanians, who were the main ethnic groups involved in the Balkans wars of the 1990s.  There are many possible reasons for that:  Serbs were certainly involved in more wars (they fought against each of the other three ethnic groups), they may have engaged in more criminal activities, and even if they did not there may be more evidence available against them, including more witnesses willing to testify.  Belgrade did not help by refusing to cooperate with ICTY for years.  The number of indictments and convictions is not a reliable indicator of bias.

It is really very difficult, given the varied make-up of the Tribunal’s judges and staff, to imagine how any systematic bias could be at work.  And this particular decision was a close call:  3 to 2.  It is far more likely that the Tribunal’s critics simply don’t accept that certain acts are criminal according to the laws of war.  Whenever someone objects to a conviction on grounds that the acts involved were provoked by another ethnic group, or were not as bad as what another ethnic group did, the critic simply does not understand what application of law to war means. The Tribunal judges individuals (and their joint action), not ethnic groups.

Personally, I don’t have much doubt that the way in which the generals conducted their offensive against Serb-held areas in Croatia was indiscriminate, inconsistent with their obligation to protect civilians and unlawful.  My opinion is that they intended to displace the civilian population by force.  I’d have preferred that they be held criminally responsible for it.

But I don’t envy the judges who sit at ICTY on trials and appeals, or the prosecutors that try them.  The facts of these cases are horrendous.  The evidence is often less than fulsome.  Procedures and standards (the main issue in this case) are not always as well-defined.  There will never be justice for most of the victims, who are heard only faintly through the often muted voices of survivors.  Bad guys certainly get off.  But to my knowledge ICTY has a good record of avoiding false convictions.  That is very much to its credit.

I understand Serbs are offended that the Croatian generals whom Belgrade holds responsible for ethnic cleansing got off.  The unseemly celebrations in Zagreb irritated an old wound.  But it would be unwise to promise that everyone who committed crimes would be convicted.  Nor is it reasonable to expect that ICTY will go easy on Serbs to compensate for the Croatian acquittals.  Justice is an individual, not an ethnic, issue.

If someone has evidence that ICTY is systematically biased against Serbs, I’ll be glad to have a look at it.  If not, it is time to put the ethnic feelings to one side and accept the fact that some of those who committed heinous crimes will be convicted and others not.  Justice does not always mean convictions.