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<nettime> Partners in (war) crime
Ivo Skoric on Fri, 13 Jun 2003 10:34:01 +0200 (CEST)

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<nettime> Partners in (war) crime

Today US State Department is sending a delegation to Croatia to 
persuade Croatian government into signing the infamous Article 98.

Tiny Croatia has been the most stubborn of the post-communist 
"New Europe" countries in its refusal to do the bidding of the 
American Empire.

Bush government wants as many countries as possible to sign on 
the article 98, agreeing not to surrender/extradite American 
servicemen (citizen or selective non-citizen) to the International 
Criminal Court. Effectively, the US is demanding that their troops 
are treated as if they are above the law.

That posture provoked disgust among other Western democracies. 
So, the US administrations ventured on looking for smaller 
countries, economically weak, politically unstable, that could be 
cajoled and/or coerced into signing that article. So far they got 35.

In case of Croatia, the US ambassador to Croatia issued a 
blackmail that the US will not approve $19 million in military aid on 
July 1st, if Croatian does not sign Article 98.

On the other hand, Croatia's main economic partners are in the 
Western Europe (Germany), and there Croatia may loose support if 
its government sign that article. This is a no-win situation for 
Croatia: if it signs, it loses its European friends, if it doesn't sign it 
loses its American friends. 

Therefore, pure moral judgement took Croatian government so far 
on not signing the article that creates a double standard in the 
world of international law.

The circumstances around Article 98 in Croatia are more 
complicated with the case of Ante Gotovina, a Croatian general 
wanted by the ICTY in The Hague, for his command responsibility 
in Croatian military Operation Storm in 1995, during which a certain 
number of war crimes ocurred.

Western European democracies are adamant in demanding co-
operation with the ICTY from Croatia. On the other hand, Croatian 
government is politically weak and susceptible to populist 
opposition, which is all enlisted against surrendering general 
Gotovina to The Hague. So, this is yet another no-win situation for 
the current Croatian government: if they surrender Gotovina, they 
lose political ground at home, if they do not surrender Gotovina, 
they lose their allies in Europe.

Racan chose to procrastinate (a trait in which he is particularly 
good). But what is the US position on Gotovina case? Word 
hypocrisy comes to mind: their position is curiously the same with 
Western Europe's on that issue - they demand that Gotovina is 
surrendered to The Hague.

Croatia already decided to try Gotovina, a war crimes suspect,  
domestically - this is the same what the Article 98 would provide 
for the US war crimes suspects: that they are tried by the US 
courts. Yet, the US, which blackmails Croatia by $19 million into 
signing an agreement that would prevent surrendering of the US 
war crimes suspects to international courts, at the same time 
demands from Croatia to surrender Croatian own war crimes 
suspect to the international court.

My only conclusion is that Bush has a God complex.

Croatia can chose between four options:
1) do not sign article 98, do not surrender Gotovina to the ICTY
pros: gaining favor in W. Europe, political stability at home
cons: loosing US support, being more dependent on EU
2) sign article 98, do not surrender Gotovina to the ICTY
pros: becoming the US 'teacher's pet'
cons: earning cold shoulder in EU, strengthening HDZ opposition
3) do not sign article 98, surrender Gotovina to the ICTY
pros: earning respect in W. Europe
cons: angering the US, provoking almost certain unrests in the 
4) sign article 98, surrender Gotovina to the ICTY
pros: satisfying both US and EU demands
cons: being viewed as a foreign agent, losing political ground 
domestically in favor of dubitable and ever changing international 

My feeling is that Europe would understand if Croatia signs Article 
98, and that the US would understand if Croatia does not surrender 
Gotovina. So, the US support would primarily be assured by the 
article 98 signature, while Europes by the surrender of Gotovina. 
However, there are no guarantees that Europe would not hold 
Croatia's article 98 signature against it, or that the US would forever 
drop the demand for Gotovina to be surrendered to The Hague: this 
is just the fate of small countries - to always be bullied by the 
bigger ones.

In the following thoughtful and provocative op-ed, Miles Raguz, 
former diplomat (first for Bosnians, then for Croats) introduces 
another interesting argument: that Croatia's 1995 Operation Storm 
was de facto a US military operation in which Croatian military 
forces were the proxy for US ground forces, serving the US 
interests in the Balkans, primarily in changing the balance of power 
in Bosnia.

A quote from 1995 Washington Post op-ed is provided:
>>To recall a Washington Post editorial three days before Zagreb 
commenced its operation: "All along the United States and 
its allies have been looking for a force - other than themselves - 
that could check Serbian and Bosnian Serb adventurism and 
produce a military balance on which realistic settlement could be 
built.  Maybe such a force is now emerging: Croatia."<<

In that light, general Ante Gotovina, was not only a commander of 
Croatian military operation, but also a lead operational foreign 
agent, an employee of US interests, a "contractor" protected by 
the language of Article 98 from being surrendered to international 
courts. That would mean that legally, if Croatia signs Article 98, it 
could not surrender Ante Gotovina to the ICTY, without breaking 
the article 98 agreement with the U.S.

In other words, if Croatia signs article 98, the US would be breaking 
their own rules if they would continue to demand that Croatia 
surrenders their own operative to the Hague. It is clear that this 
would lead to the solution #2, which I believe, Miles thinks it would 
be the best for Croatian interests. I would just advise caution: it 
may be perilous becoming too close with so widely unpopular US 
administration, which may change in a year.


------- Forwarded Message Follows -------

Zagreb weekly "Globus"
June 13, 2003

Can Dispute on Article 98 Lead to Gains for Both Croatia and U.S.

By: V.M. Raguz

It should come as no surprise that Washington is sending an impressive
delegation to Zagreb on Thursday, June 12th to argue its case on Article 98,
and to hear out Croatia's position. The tiny little Croatia has begun to
confuse the United States of late.

Last year Zagreb raised a lot of noise about on the indictment of Gen. Janko
Bobetko, until then an unprecedented step for the cooperative Racan government.
It appears to have been an omen of things to come. Later, it was the only "New
Europe" state to challenge the legitimacy of the Iraq intervention.  Initially
it agreed to provide assistance by granting overflight rights. However, on the
eve of the invasion, president Stipe Mesic delivered a primetime address to the
nation with emotion and wordage straight from Jacque Chirac's book of drama.
Now, Croatia has decided to play a rare David to US Goliath on the issue of
Article 98 exclusions.

Washington wants Zagreb to sign on to the list of 35 states that have committed
themselves not to extradite US citizens and select groups of non-citizens
serving abroad to the ICC and similar courts that claim universal jurisdiction.
The US fears many legally groundless and politically motivated lawsuits in the
future. This is an understandable contingency given America's expanding role as
world policeman, and substantial, if short history of such courts being prone
to judicial and political activism packaged for CNN sound-bite reporting,
rather than jurisprudence and justice. But Croatia says no, despite the threat
of US aid sanctions effective July 1.

While its flip-flop on Iraq was unnecessary and shortsighted, Croatia's
position on Article 98 is justified. Moreover, its high ground just may compel
Washington to rethink its universal jurisdiction policy that is full of legal
and moral inconsistencies, and thereby eliminate a key criticism, next to the
Kyto Protocol issue, that the rest of the world has against the US.

Washington is inconsistent in several ways.

Firstly, the US is exercising its sovereign right to protect its citizens from
frivolous and colored lawsuits at universal jurisdiction courts, yet it denies
that same right to some other states, one being Croatia. As was Gen. Janko
Bobetko earlier, a number of Croatian citizens are still subject to groundless
and policy motivated lawsuits at the International Criminal Tribunal for the
former Yugoslavia at The Hague, the precursor to the ICC.  The policy being
"all sides are equally guilty."

The US has insisted that they and Croatia should cooperate with the Prosecution
at the Tribunal, no questions asked, despite strong legal and factual
objections in some cases. At times, suggestions come that the innocents should
go to The Hague and prove their cases, a curious position when in the West it
is illegal to try innocent persons. Furthermore, the Prosecution is just one
partial side at the Tribunal, and it should not have the conclusive word and
unqualified support, as it seems to have on the policy level.

Secondly, Washington does not recognize the ICC primarily because of the 
trendy concept in international criminal law - the command responsibility - used 
in its widest form at the Tribunal. Under this principle any and every senior 
leader is liable for just about anything. Such lawsuits filed in Belgium and 
elsewhere against Colin Powell for the first intervention in Iraq, Gen. Tommy 
Franks for the recent intervention, and Henry Kissinger for his alleged role in 
Chile are not taken seriously in Washington. Yet, Croatia is asked to abide by 
the same principle in the Gotovina indictment, and others yet to come.     

Thirdly, the US has sidestepped its obligation to provide exculpatory evidence
in many cases at the Tribunal even though all states are mandated by the
Security Council to do so. Washington possesses ample evidence that would
nullify a number of indictments. For instance, if the US were to yield evidence
about the objectives of the Storm, and how it was carried out, the case of Gen.
Gotovina would be thrown out. Similarly, the Tribunal's decisions in Blaskic,
Kordic and similar cases, as they concern Croatia's role in BiH in 1992-93,
would be revised.

Croatia's role in BiH was substantial indeed, but stabilizing rather than 
aggressive. Zagreb's policy in BiH should not be judged by the actions of some 
local sheriffs that were all too often motivated by personal gain. Washington 
knew this at the time, and could provide evidence in this direction.

Fourthly, Washington is inconsistent on who exactly it protects thru Article 
98 agreements. In some agreements, it protects all US citizens and residents, 
as well as employees of US interest operations that it calls "contractors."  
In other instances, such as in the May agreement with BiH, the protection is 
extended only to the US citizens and military personnel. Third-country citizens 
working for American non-military institutions are left out.

Finally, the US has just about forgotten about its tradition of protecting 
front line allies and nameless foreign agents in the same way it protects its 
citizens. At a time when Washington will need numerous foreign proxies to help 
fight its war on terrorism, and will rely on many friendly governments such as 
Poland to support US-led solutions in Iraq and elsewhere, this gray policy 
area must be colored over quickly.

In 1995, Croatia was such an ally. To recall a Washington Post editorial three
days before Zagreb commenced its operation: "All along the United States and
its allies have been looking for a force - other than themselves - that could
check Serbian and Bosnian Serb adventurism and produce a military balance on
which realistic settlement could be built.  Maybe such a force is now
emerging: Croatia."

If Croatia were such a proxy in 1995, as it certainly was, than Gen. Gotovina
was a lead operational agent on the ground. The troops under his command were
used to break the siege of the UN safe area of Bihac, a key interest of the US
at the time, and later as ground advance component that supplemented the US-led
NATO bombings of Serb troops in western Bosnia. This joint action altered the
territorial control in Bosnia between the Serbs and the Muslim-Croat coalition
close to territorial split envisioned in the US peace plan on the table at that
time, and later concluded in Dayton. Interestingly, in this context, Gen.
Gotovina would be entitled to US protection as "contractor" in the language of
some Article 98 agreements.

The current dispute should not overlook that crucial partnership, but rather 
serve as an occasion for reflection in regard to the inconsistent policy that 
is hurting the US interests worldwide, and alienating Croatia.

Zagreb's position is that due its EU aspirations, it should follow the policy 
directives of Brussels, which is strongly opposed to giving preferences to 
Americans on universal jurisdiction issues. This may be a key reason, but not 
the overwhelming one. The fact of the matter is that Croatia is losing 
confidence in the possibilities in a partnership with the US.

While it did the "dirty work" for the US in 1995 in BiH, and the Racan
government proved to be extremely cooperative in respect of key US interests in
the Southeast Europe, its management of BiH, it has received almost nothing in
return. Not even a timely NATO membership, which Croatia deserves, and where
the US has a sole vote. Instead, just headaches: from ever new US demands at
the OSCE, to being left out in the cold at the Tribunal.  The public outrage
by Goran Granic directed at some diplomats in Zagreb recently, that mentioned
the US Embassy, can be instructive.   

How to get out of this impasse?  As of now Washington has proposed a win-lose
solution: it gains a safety net for its citizens, but Croatia continues to
receive nothing. Zagreb has tabled a solution that in the West would be labeled
typically Balkan; lose-lose: it appears we cannot gain, so neither should
you.  But somewhere there must be that win-win solution as well. Its elements
are obvious: the US should gain on the ICC, and Croatia should gain at the
Tribunal.  But given the developments between the two, the question remains
whether either of the two sides will have the strength to even address it on

The above is the extended version of the oped that ran in Globus in Croatian.

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