When I arrived in Zagreb on a sunny afternoon in the spring of 2008, there were two different conversations about Oluja¹ going on in the city. The cultural scene was preoccupied with the staging of Shakespeare’s play The Tempest, one of the highlights of the season at the Croatian National Theatre. For those interested in contemporary politics and history, however, much more consuming were the ongoing trials of several high-ranking Croatian generals charged with war crimes and crimes against humanity. Three generals were prosecuted at the ICTY in The Hague, accused of expulsions and other abuses of Serb civilians during Operation Storm, the final chapter of the so-called Homeland War fought in Croatia between 1991 and 1995. At the same time, two generals were on trial in Zagreb for war crimes committed during Operation Medak Pocket in 1993, in the first case that was transferred from the ICTY to the Croatian judiciary.

The question of mass atrocity has been a recurrent subject of public controversy and contestation in Croatia since the 1980s. Over the past three decades, what is meant by “war crimes” in the public domain has changed several times, as both the underlying historical legacies of abuse and variety of projects and purposes pursued through their politicization have been shifting and evolving. In the late 1980s and early 1990s, public discussions of war crimes referred to the legacy of atrocities inherited from the Second World War. At that time, the public was preoccupied with the record of the wartime Independent State of Croatia (NDH) and the regime of the fascist Ustaša movement, as well as the issue of reprisals by the victorious Partisans and abuses perpetrated by the communist regime in the post-war period. During the 1990s, the focus of the public conversation shifted to the Homeland War, and “war crimes” increasingly referred to atrocities committed by the JNA and local Serb forces in the course of the conflict. Finally, in the new century the meaning of “war crimes” has shifted once again, this time in response to allegations of ethnic cleansing and abuse of Serb civilians by Croatia’s armed and police forces during the Homeland War.

I examine these three phases of the war crimes debate in Croatia as an opportunity to illuminate the shifting relationship between law and nationalism that each of them entails. My starting point is the framework developed in Chapter 2: contrasting the idea of deliberative transitional justice – which conceives of the judicial process as a vehicle for public debate over questions of national identity and state legitimacy – with the notion of transition without justice – which often involves contestation over the “facts” of mass atrocities and encourages further nationalist mobilization and radicalization. The Croatian case is useful as an illustration of these two concepts but it also suggests how the law could be harnessed in yet another way: as an instrument for pursuing wartime policies and agendas by judicial means, when the courts themselves create a legacy of abuse that becomes a focal point for subsequent claims for justice and redress. My discussion seeks to recover the significance of the evolving war crimes debate since the 1980s as an arena of struggle over Croatian nationalism, highlighting in particular how law has interacted with politics and public discourse and raised important questions about identity and legitimacy in the public domain.

Atrocity and Identity: The Spectre of the Second World War

The founding of the Socialist Federal Republic of Yugoslavia (SFRY) is a classic example of a transition without justice.² The legacy of egregious human rights violations inflicted during the Second World War was never addressed with a credible judicial process or fact-finding inquiry by the Yugoslav state; for several decades, the public discussion around these issues tended to reproduce the officially sanctioned historical account of the war. Tito’s rule added further layers of abuse after the end of the war, in a period of reprisals and purges. When the taboo on discussing these issues more freely in the public domain started to crumble, the debate over mass atrocity quickly spiraled out of control. Suppressed histories of injustice and private memories of abuse were taken up in public discourse, fueling bitter contestation over facts and figures. The ensuing “calculus of death” involved recounting the victims on different sides of the war; in the public conversation, genuine grievances and concerns became intertwined with exaggeration and denial, blurring the distinction between facts and fabrications. In this environment, the question of mass atrocity emerged as a cause célèbre for nationalists in the republics, and the legitimacy of the Yugoslav state was increasingly attacked from ethnic and national positions.

In the official history of the SFRY, the complex fault lines and conflicts during the Second World War became simplified and recast in class terms. The emphasis on antifascist resistance and victory in such historical narratives allowed the communist regime to erase the legacy of Partisan abuses and dismiss the nationalists on all sides as class enemies. Tito’s position highlighted their affinities and implicitly balanced their guilt: “If Croats had Ustashas, Serbs had Chetniks. What’s the difference between them?”³ The experience of wartime suffering in Yugoslavia had been so traumatic that it appeared to provide legitimacy to the officially promoted narrative of Yugoslav “brotherhood and unity.” When the elements of this construct started to unravel in the early 1980s, the first target of public scrutiny was the communist regime itself.

The politicization of mass atrocity in the SFRY initially appeared as a critique of state repression, challenging the legitimacy of the totalitarian system, rather than the federal framework of the state. After Tito’s death in 1980, various journalistic and artistic accounts started to uncover some of the large-scale abuses implicating his regime. Although these accounts were subversive, they were mostly addressed to the Yugoslav public as a whole, rather than national audiences at the level of the republics. The fratricidal massacre at Goli Otok became one of the first taboo subjects taken up in the public domain. The camp at Goli Otok was set up by Tito after his split with Stalin in 1948, in an attempt to deal with those within the communist ranks who had sided with Moscow. In the early 1980s, a series of articles were published by a popular weekly magazine, the Belgrade NIN, revealing the scale of abuses perpetrated at the camp: “While the existence of this camp had never been denied, the nature of the cruelties practiced there, and the sheer numbers of people sent there on the basis of little or no evidence, came as a shock to the Yugoslav public” (Hayden Reference Hayden and Watson1994: 169). The theme of state repression after the breakup with Stalin was also taken up in artistic narratives, most notably in Emir Kusturica’s acclaimed film When Father Was Away on Business, which won the Palm d’Or at Cannes in 1985.

The evolution of the legitimacy dilemma in the late 1980s and early 1990s, however, reflected a growing nationalization of the question of mass atrocity in the former Yugoslavia. The nationalist turn in the public discussion was partly precipitated by resurgent interest in war crimes committed during the Second World War, especially massacres attributed to the Croatian Ustaša and Serbian Četnik forces and Tito’s Partisans.⁴ The war crimes debate was increasingly retreating from the federal level to the individual republics and their bounded audiences, where the theme of state repression became supplanted by distinctly national accounts of past abuse and injustice. These dynamics of nationalization were particularly important in Croatia and Serbia. In both republics, that period was marked by the rise of discourses of national reconciliation – aimed at reconciling Partisans with Ustašas in Croatia and Partisans with Četniks in Serbia – and the growing traction of historical narratives that were reinterpreting legacies of past abuse in polarizing ethno-national terms. By the late 1980s and early 1990s, the war crimes debate had become so explosive that observers described the situation in Yugoslavia as a “verbal civil war” and a “Second World War II” (Hayden Reference Hayden and Watson1994: 181; Djokić Reference Djokić2002: 131).

In Croatia, the war crimes debate was increasingly dominated by the figure of Franjo Tuđman. A former Partisan and general of the JNA, Tuđman had left the military in the 1960s and worked as a full-time historian in Zagreb. His writings on military strategy in the Second World War became influential and accepted by the communist regime. But his openly nationalistic views and growing preoccupation with the victims of the Jasenovac camp, run by the wartime Ustaša regime, provoked the authorities and led to his expulsion from the Communist Party and a couple of detours to prison. In the official history of the SFRY, Jasenovac served as a symbol of antifascist struggle and martyrdom, commemorating the suffering of 700,000 victims, most of them Serbs. Tuđman’s accounting, however, rejected the official estimate as a gross exaggeration. His position entailed a substantial revision of the history of Jasenovac, reducing the overall number of victims to just tens of thousands, and even suggesting that similar numbers of Serbs and Croats had found their death in the camp. Robin Okey (Reference Okey, Levene and Roberts1999: 272–273) attributes Tuđman’s motivations to long-standing suspicions, early signs of an imminent nationalist turn in Yugoslavia’s historiography and politics:

Any attempt to challenge the “Jasenovac myth” along those lines in Croatia was bound to stir anti-Serb sentiments in the public domain and water down the criminal record of the NDH. Shortly after Tuđman led the Croatian Democratic Union (HDZ) to victory in the first multiparty elections in Croatia and became president, the war crimes debate was fueled once again. The new government in Zagreb initiated a number of exhumations and church ceremonies aimed at exposing massacres committed by Partisan forces. In particular, public attention was focused on the reprisals against Ustašas and other noncommunists that had been handed over by the British forces at Bleiburg. Hayden (Reference Hayden and Watson1994: 8) notes that the “recounting” of the Jasenovac victims and commemoration of Croatia’s victims of communism were geared to relativize the criminal legacy of the Ustaša regime and weaken the largest opposition party, the League of Communists of Croatia. But the ensuing public discussion of Jasenovac and Bleiburg also activated two central themes in Croatian nationalism in the late 1980s and early 1990s: mobilization along ethno-national lines and demands for democratic politics. The question of mass atrocity blurred the lines between the two issues and offered a platform for pursuing independent statehood.

A main source of concern for Tuđman was the issue of Croatia’s deeply rooted national divisions. He envisioned a consolidation of the Croatian nation by way of reconciling the victors and losers from the Second World War. Dejan Djokić (Reference Djokić2002: 136) provides an intriguing account of the reconciliation debate in Croatia after HDZ’s electoral success, emphasizing how the legitimation of Tuđman’s power increasingly relied on a nationalist discourse that sought to downplay and collapse long-standing ideological differences in the name of national unity:Tudjman’s argument was that a vast majority of Croats, regardless of whether they fought for the Partisans or for NDH, were neither indoctrinated Communists nor Fascist, but that they really fought for Croatia and Croatdom. Therefore, the continued division of “Partisan” and “Ustaša” Croats was meaningless, because they were, above all, members of one, Croatian, nation, and subjects of one, Croatian, leader. As the war was finished a long time ago, there was no longer any reason why the two sides should not reconcile.”

The reconciliation initiative underscores the significance of Tuđman’s efforts to minimize the atrocities of the NDH and “balance” them with Partisan crimes. The idea of reconciliation was unlikely to take root in Croatian society as long as the nation’s internal fractures and divisions rested on polarizing histories of wartime massacres. Seen in this light, the attempt to revise the official history of the Second World War in Yugoslavia reflected a struggle to reframe and redefine Croatian nationalism.

The pursuit of national unity by bridging the long-standing divide between Partisans and Fascists, however, created an obvious problem for Croatia’s minorities. In particular, the reconciliation rhetoric was bound to undermine the position of the large Serb minority, which accounted for 14 percent of the population of the republic. Despite regional differences, the loyalties of most Croatian Serbs were overwhelmingly Partisan and Yugoslav at a time when both of these identities and the political projects associated with them were coming under attack. The success of Tuđman’s reconciliation initiative as an instrument of nation-building appeared to depend on alienating and excluding the Serbs. As Djokić (Reference Djokić2002: 137) put it, “The minimization of the number of non-Croats (mainly Serbs) who perished in Jasenovac, by Tudjman and his authorities, paved the way for the Croat leader becoming a symbol of reconciliation between Ustašas and Croat Partisans.” Here the question of mass atrocity illuminates an emerging tension at the heart of Croatian nationalism and the precarious position of the Serb minority in the new dispensation.

In sum, for several decades the legacy of brutality from the Second World War and its aftermath could be either neglected or submerged in the official historical narratives of the SFRY, but after Tito’s death they came back with a vengeance. Whereas in the early 1980s the question of mass atrocity was raised primarily as a critique of state repression and the communist regime, by the end of the decade the war crimes debate was retreating to the republican level, and the legitimacy dilemma of the Yugoslav state was reframed in ethno-national terms. Yugoslavia’s post-war transition without justice ensured that once the question of mass atrocity entered the public domain, it sparked heated contestation over facts and figures: a sort of discursive zero-sum game in which one set of memories and histories of injustice were validated at the expense of another, which were denied or relativized. In the Croatian context, the war crimes debate increasingly emerged as an arena of struggle over nationalism. Reframing and redefining Croatian nationalism involved pursuing initiatives for national unity and reconciliation, but the revisionist histories and representations of the past on which these nation-building projects relied had little space for the wartime memories and experiences of Croatia’s Serbs. Indeed, by the late 1980s and early 1990s, a reinvented Croatian nationalism appeared to become increasingly dependent on suppressing such minority narratives and identities, creating tensions that were further entrenched during the Homeland War.

Law and War in the 1990s

The Homeland War of 1991–1995 raised the question of mass atrocity with a new urgency in Croatia. The formal inception of the war was marked by the offensive of the JNA in the summer of 1991, shortly after Croatia’s declaration of independence and the establishment of Serb control over the separatist region of Krajina (the so-called Republika Srpska Krajina). The war was fought by JNA and Serb forces on the one side, and Croatian police and military units on the other, but it also interacted in complex ways with the ongoing conflict in Bosnia and Herzegovina and often exhibited similar patterns of violence, including shelling of urban areas and ethnic cleansing.⁵ The town of Vukovar is often invoked to illustrate the brutality of the conflict and the deep scars left in its aftermath. Vukovar was the scene of relentless shelling by JNA forces in 1991, and its fall was accompanied by a major massacre at Ovčara. The town was reintegrated in Croatia after the end of the war, but local Serbs and Croats have remained deeply divided in their memories of the wartime years.

Starting during the conflict and extending into the post-conflict period, the judicial response and the public discussion of war crimes were preoccupied almost exclusively with the responsibility of JNA and Serb forces. From the formal end of the Homeland War in 1995 until the death of Tuđman in 1999, law and public discourse continued to be dominated by nationalist narratives in which questions of sovereignty and mass atrocity were closely intertwined, as Croatia’s struggle against aggression provided the framework for interpreting the war crimes issue. Indeed, the memory of wartime suffering emerged as one of the foundations of Croatian national identity and independent statehood, symbolized by the struggle for Vukovar:In the new constellation, the battle for Vukovar plays the role of the foundation myth of the Croatian state, and the town of Vukovar, more than any other place in Croatia, became the embodiment of a pure Croatian identity. As a symbol of the sacrifice of the Croatian people and of the birth of the modern Croatian state, Vukovar became an imagined place, disengaged from time and space and created at a great distance from its organic surroundings (Kardov Reference Kardov, Ramet and Matić2007: 81–82).

Although the hostilities ended in 1995, for the rest of the decade the public conversation about war crimes and the legal response of the state remained marked by important continuities, calling into question the nature of Croatia’s “transition” in that period. On the one hand, representations and interpretations of the Homeland War were shaped by the state and aligned with its nation-building policies and priorities, suppressing dissident histories and minority accounts that may have revealed the complex legacies of abuse inherited from the conflict. On the other hand, Croatian law became increasingly harnessed to validate the official history and national mythology promoted by the state, and often appeared to advance wartime goals by judicial means.

The one-sided public conversation about war crimes in Tuđman’s Croatia could be understood as reflecting a broader retreat of the public sphere, precipitated by the war itself but also by the “patriotic” rhetoric and state control of the media that persisted in its aftermath. A number of scholars have highlighted the interplay of nationalism and state repression in that context. Marius Søberg (Reference Søberg, Ramet and Matić2007: 37) notes that in the 1990s, the ruling HDZ prioritized the issues of statehood and independence, often at the expense of other transitional goals such as democratization; in that environment, dissidents and opponents of the regime could be labelled “traitors” in the public domain and marginalized with accusations of siding with the enemy. Other scholars direct attention to the variety of methods employed by the HDZ to maintain control of the press and broadcasting, including the role of media ownership and editorial structures, adoption of restrictive legislation, and overt censorship. Stjepan Malović and Gary Selnow (Reference Malović and Selnow2001: 4–10), for example, emphasize the heavy involvement of the ruling party in the daily Večernji List and the HRTV network – the two major sources of news for the Croatian public at that time. Zrinjka Peruško (Reference Peruško, Ramet and Matić2007: 233) relates the significance of incorporating the media in the nation- and state-building projects of the state and silencing of critical independent voices:

The Croatian public was rarely confronted with minority accounts and memories of the Homeland War. Only a small number of independent media such as the weekly Feral Tribune, and civil society groups such as the Helsinki Committee for Human Rights appeared to be interested in reporting the abuses of Croatia’s police and armed forces against Serb civilians. Žarko Puhovski, one of the dissident intellectuals who raised such issues in the public domain during the 1990s, describes the efforts of a handful of individuals to mobilize public opinion and put pressure on the government as “attempts to smuggle certain values from the margins to the mainstream.”⁶ Such efforts were often frustrated and met with accusations of betrayal. On a few occasions, the weight of the evidence revealed to the public and shocking nature of the crimes involved managed to elicit a response. A rare example is the reporting of Feral Tribune on cases of torture and murder of Serb civilians in Pakračka Poljana. A series of articles about these crimes were published in the early and mid-1990s, but had little effect apart from provoking pressures to close down the publication. The authorities took some measures to address the allegations only in 1997, when Feral Tribune published the confessions of a member of the implicated special police unit, which shocked the Croatian public.⁷

Croatian law interacted with public discourse by reinforcing the dominant narratives and representations of the Homeland War, but its role went well beyond simply neglecting the crimes that had been committed on the Croatian side of the conflict. Already at the start of the hostilities, the courts initiated a process of large-scale prosecution of members of the JNA and local Serb forces for war crimes. The majority of these proceedings were conducted in areas heavily affected by the conflict and with little concern for due process. In particular, they often involved summary prosecution of large groups of suspects on the basis of questionable evidence and in the absence of the accused (in absentia); many cases were based on insufficiently established facts and failed to apply the facts to the law; overcharging of low-level offenders for minor crimes was common, and from the mid-1990s this practice also involved charging with genocide.⁸

The work of the Croatian judiciary after the end of the war continued to exhibit ethnic bias in the administration of justice and reinforce narratives of collective guilt and victimhood. Were Croatian courts pursuing wartime goals by other means in the aftermath of the conflict? That impression was taking root among the Serb minority targeted by the problematic war crimes proceedings. Milorad Pupovac, one of the current political leaders of Croatian Serbs, relates their perceptions of the trials this way:

Such interpretations raise a number of unsettling questions about the role of Croatian law in the post-war period. Rather than facilitating the transition from war to peace and enabling political transformation, here the judiciary emerges as an arena that encourages persistent conflict and advances a variety of political and personal interests in keeping alive the idea, if not the enterprise, of war. Although war crimes trials are usually seen as a step toward reconstructing the rule of law in the aftermath of mass violence and abuse, the Croatian case suggests how such judicial processes can also be harnessed in ways that further reinforce the breakdown of the rule of law. The campaign for prosecuting large numbers of Serbs in absentia on charges of war crimes and genocide recasts the domestic legal system as an instrument for continuation of the conflict by other means, raising the spectre of vengeance and ethnic cleansing in the post-war order. Whether the proceedings involved settling scores and promoting interests at the local level, or connected to grievances and narratives from the Homeland War, they were bound to be seen as singling out the Serbs and meting out an arbitrary collective punishment. Jovan Mirić, one of the few Serb intellectuals in Croatia who has written about the war crimes trials, puts the issue starkly: “Proceedings before Croatian courts and convictions of Serbs [for war crimes] often resemble revenge, rather than justly and legally determined punishment” (2002: 182). On this account, then, in the post-war order Croatian law became deployed not in the pursuit of justice but vengeance.

The other argument, which interprets the war crimes proceedings against Croatian Serbs as an attempt to pursue ethnic cleansing by other means, draws attention to the implications of the trials for the process of refugee return and reintegration. Croatia established a framework for normalizing interethnic relations after the war on the basis of the Erdut Agreement for peaceful reintegration of formerly–Serb-controlled areas and the adoption of legislation granting a general amnesty for offenses committed between 1990 and 1996, with the exception of war crimes.¹⁰ One of the tenets of the post-war order involved the return and reintegration of Serb refugees, an issue of particular importance given the scale of the Serb exodus in the final stage of the war. By the time these commitments were made, it was already clear that the large number of proceedings and convictions for war crimes in absentia and the arbitrary manner in which many of them were conducted served to obstruct the return of Serb refugees. However, in 1995–1996 a number of war crimes and genocide prosecutions were initiated against the entire Serb population of certain villages, suggesting an attempt to prevent them from returning to their homes.¹¹ The prosecution offensive peaked in 1996 with 400 indictments and more than 100 convictions, and to many Croatian Serbs it appeared as a continuation of the war by other means.¹² These developments are at the heart of enduring suspicions that Croatia’s war crimes trials were used as an instrument of ethnic cleansing.

Transitional Justice after Tuđman

Croatia entered the twenty-first century with two legacies of abuse inherited from the previous decade: one from the war itself; and the other from the judicial response to war crimes. Since Tuđman’s death in 1999 and the arrival shortly thereafter of a moderate government committed to a European future for the country, the war crimes debate has come to the fore once again, and the law’s interactions with politics and public discourse have evolved in a new direction. At the heart of these changes has been the challenge to confront the “dark side” of the Homeland War, in particular the responsibility of Croatia’s police and armed forces for ethnic cleansing and war crimes against Serb civilians. Transitional justice in the post-Tuđman era has shifted the focus of public deliberation about war crimes, raising broader questions about national identity and state legitimacy in the aftermath of mass atrocity and casting a shadow over key political and military figures celebrated as founders and state-builders of independent Croatia.

Despite the fact that several transitional justice processes have been initiated in the past decade and some progress has been made, the process of judicial reckoning with the legacy of the Homeland War has been agonizing, and its overall direction remains uncertain. Important developments in the field of transitional justice include an effort to address the problematic proceedings from the 1990s and stem the tide of war crimes trials of Serbs in absentia; initiation of a small number of war crimes proceedings against members of the Croatian police and armed forces; and the state’s reluctant but increasingly forthcoming cooperation with the ICTY in The Hague. I approach these developments through the lens of deliberative transitional justice, which conceives of trials as a vehicle for public deliberation that may help expose and manage the “dark side” of nationalism in the aftermath of mass violence and atrocity. The Croatian case affords an opportunity to examine in greater detail the role of judicial processes in encouraging a public conversation that interrogates prevalent nationalist narratives and representations of the past. It also raises intriguing questions about such processes as a form of reckoning that involves public contestation over issues of national identity and state legitimacy, illuminating both their promise and limits.

The opening up of Croatian politics in the wake of Tuđman’s rule has reflected a series of political shifts and the emergence of membership in the EU as a key foreign-policy priority in the new dispensation. The victory of the Social Democratic Party and the moderate Stipe Mesić in the 2000 parliamentary and presidential elections signaled the end of an era in which centrist and leftist political forces had been marginalized. The government of Ivica Račan, while remaining careful not to agitate nationalist circles and sensibilities, offered a new direction for the state, reflecting its more democratic and pro-European orientation. This overall orientation has remained in place since HDZ’s return to power in 2003, under the governments of Ivo Sanader and Jadranka Kosor. Sanader, in particular, has played an intriguing role in Croatia’s post-Tuđman transition. Once in power, his leadership was marked by much more moderate political rhetoric than expected, whereas his impeccable nationalist credentials allowed him to gradually sideline radicals in the ranks of the HDZ. Observers have noted Sanader’s tendency to play the nationalist card at the grassroots even as he was promoting a pro-European agenda for the state (Søberg Reference Søberg, Ramet and Matić2007: 51–52). Nevertheless, his firm commitment to Croatia’s European future meant that much of the rhetoric and policies of his government were aligned with that overall objective.

In the new dispensation, domestic political pressures on the judiciary started to subside, whereas international scrutiny and supervision increased dramatically, most notably by the EU in the context of the accession process, but also by other international actors such as the OSCE and ICTY. In the domain of war crimes prosecutions, these developments seemed to encourage a process of disaggregation of the Croatian judiciary: although the upper tiers were becoming more responsive to international requirements and standards, many lower courts continued to dispense “local justice” reminiscent of the 1990s. The State Prosecutor’s Office, Supreme Court, and Ministry of Justice have made an effort to mitigate some of the outstanding problems in the war crimes proceedings against Serbs, and four special war crimes chambers have been established in the county courts of Osijek, Rijeka, Split, and Zagreb endowed with extraterritorial jurisdiction. In 2008, for example, the State Prosecutor’s Office issued instructions intended to address the issue of ethnic bias in the administration of justice and initiated a process of reviewing the problematic war crimes caseload, in particular in absentia proceedings and cases lacking proper evidence.¹³ A few war crimes cases that raise concerns about impartiality and intimidation of witnesses have been transferred to the four special war crimes chambers. The Supreme Courthas reversed a number of decisions of lower courts and returned cases for retrial, and more requests have been filed for reviewing in absentia proceedings.¹⁴

The task of addressing the problems with the war crimes caseload has proved to be daunting for the judiciary, but the political will required for its completion has also been difficult to muster. By 2008, Croatia was seeking more than 1,000 war crimes suspects, many of them convicted in absentia, and had issued more than 600 international arrest warrants. According to official statistics, as of May 2011, the total number of individuals prosecuted for war crimes was 3,422, of which 2,990 were prosecuted in absentia. Moreover, so far less than 3 percent of all war crimes proceedings have involved cases against members of Croatia’s police and armed forces. The majority of war crimes trials have continued to be conducted by lower courts, where ethnic bias in the administration of justice persists. The problem of bias has been evident in prosecuting Serbs for a wide spectrum of crimes but charging Croats only with serious offenses such as murder, and in significant discrepancies in the sentencing practices of the courts. Participation of the accused in the Homeland War as a member of the Croatian army or police has been routinely invoked as a mitigating circumstance; this practice was upheld by the Supreme Court in the high-profile case of Mirko Norac and Rahim Ademi, where the court highlighted Norac’s contribution to the legitimate goal of defending his country against aggression. Some courts have even been tempted to dispense historical justice, as illustrated by the judgment in the Karan case. The county court in Gospić held the defendant responsible not only for the offenses listed in the indictment but also for 500 years of Serbian crimes against Croatia, and criticized the Croatian government for assisting Serb returnees.¹⁵

The vast majority of these war crimes cases and the efforts of the authorities to address the problem of ethnic bias in the administration of justice have attracted little attention in the public domain. Much more controversial has been the prosecution of a handful of high-ranking members of the Croatian army and police by the ICTY and domestic courts. These trials have touched a nerve with the Croatian public and political class on a number of occasions in the past decade, prompting yet another shift in the war crimes debate by focusing attention on the responsibility of Croatian forces for atrocities and ethnic cleansing during the Homeland War. The explosive potential of the proceedings can be glimpsed from the fact that over the years these judicial processes have implicated some of the country’s most revered military and political figures, including Janko Bobetko, Ante Gotovina, Mirko Norac, and even the deceased Tuđman himself, effectively depicting national heroes and founding fathers of independent Croatia as war criminals. These trials often strike at the heart of the accepted narratives of Croatian nationalism, invoking highly subversive representations of the country’s recent past. In the ensuing public debates and contestations, questions about national identity and state legitimacy have loomed large, sometimes completely supplanting questions about the specific charges in the indictments. Indeed, in the public discussions sparked by the trials, prosecuting the country’s defenders has often been recast as an attack on the legitimacy of the Homeland War and the Croatian state itself (Peskin and Boduszynski Reference Peskin and Boduszynski2003: 1117–1118).

The position of the Croatian judiciary in the 1990s was that war crimes could not be committed in a defensive war and defenders could not be war criminals, effectively granting immunity from prosecution to members of the Croatian army and police for such offenses (Josipović Reference Josipović and Josipović2005: 232). The arrival of the Račan government marked a shift in that position, suggesting that the courts were now free to prosecute all war crimes. The opportunity was seized in 2001 by the county court in Rijeka, which indicted Mirko Norac, a respected general and veteran of the Homeland War, and several other officers on charges of war crimes against Serb civilians committed in the town of Gospić in 1991. Norac’s name was already mired in controversy: one of the witnesses in the investigation had been murdered after making statements in the media, and Norac and other senior generals had issued an open letter accusing the government of falsifying the record of the Homeland War and undermining its legitimacy by putting Croatia’s defenders on trial. In response, President Mesić had swiftly moved to retire the generals, sending a clear message that there could be no negotiation with the army: “It was not easy to send the generals into retirement when everybody was afraid of a coup. But nothing happened.”¹⁶

When the arrest warrant for Norac was issued, however, the scale of the ensuing public contestation took the government by surprise. Associations of war veterans and other nationalist circles were spearheading the campaign to stop the proceedings, setting up road blocks and holding demonstrations across the country, with some 100,000 people turning up for their biggest rally in Split. The leadership of the HDZ, now in opposition, played a prominent role in the protests, including future Prime Minister Ivo Sanader. For these groupings, the trial of Norac represented an assault on the history and memory of the Homeland War that undermined the foundations of the Croatian state. Their solidarity with the accused general and determination to protect the sanctity of the war was expressed in slogans such as, “We Are all Mirko Norac” and “Hands off Our Holy War.” There were other groups in civil society, however, which insisted that the government should uphold the independence of the judiciary and ensure the case could proceed. At a counterdemonstration in Zagreb, a crowd of 10,000 rallied behind the slogan, “Our Voice for the Rule of Law.”¹⁷ The Račan government ended up reinforcing the message from Zagreb, framing the issue as a contest over democracy and the rule of law:

Even more than Norac, the senior figure of Janko Bobetko, former chief of staff of the Croatian armed forces, was a symbol of the Homeland War. In the fall of 2002, the ICTY indicted Bobetko on charges of crimes against humanity and war crimes committed during Operation Medak Pocket in 1993, including the killing of Serb civilians. Faced with the prospect of another political crisis, the government this time appeared to be aligned with the nationalist opposition, invoking the constitutional and legal order of the Croatian state in an attempt to challenge the request for Bobetko’s arrest and extradition to The Hague. At the heart of the government’s reasoning in appealing the ICTY request for Bobetko was an idea of the Croatian state as a guardian of the nation’s history, which had to protect the legitimacy of the Homeland War:[B]ased on the fact that the events referred to in the indictment are part of the defensive Homeland War which is an important part of Croatian history, the Republic of Croatia is interested in the accurate portrayal of the historical facts, particularly owing to the general social and political connotations that may lead to an erroneous portrayal of historical events.¹⁸

Three different lines of argument framed the public discussion sparked by the indictment. The position of the government struggled to balance its desire to protect “Croatian history” and avoid international isolation at a time when the ICTY had the support of the EU and other powers. In the statements of the opposition and other nationalist circles, the indictment of Bobetko was reinterpreted in simple terms as an indictment of the Croatian state itself.¹⁹ On the opposite side of the debate was President Mesić, who attacked the rising tide of xenophobic nationalism and paranoia that became apparent during the crisis: “Extreme political circles, which have become vociferous and aggressive lately, are persistently reiterating the theory that the world, which allegedly does not want the Croatian state, wishes to destroy its foundations with the Bobetko indictment.”²⁰

The ailing Bobetko died in Croatia shortly after the ICTY had declared him unfit to stand trial. But the next controversy precipitated by the trials was transformed into a test for Croatia’s European commitments, at a time when accession to the EU had emerged as a consensus project for the main political parties. In early 2004, the ICTY indicted three Croatian generals – Ante Gotovina, one of the most revered heroes of the Homeland War, Ivan Čermak, and Mladen Markač – on charges of crimes against humanity committed in Operation Storm and its aftermath. The indictment implicated senior military commanders and Tuđman himself in a joint criminal enterprise at the highest level, aimed at the “forcible and permanent removal of the Serb population from the Krajina region, including by plunder, damage or outright destruction of the property of the Serb population, so as to discourage or prevent members of that population from returning to their homes and resuming habitation.”²¹ The indictment recast the final chapter of the Homeland War, which had secured Croatia’s victory, as a campaign for ethnic cleansing orchestrated from the very top of the political and military establishment. The stakes were raised in May 2005, when the EU announced that it was postponing membership talks with Croatia because of its failure to apprehend Gotovina.

The ensuing controversy highlighted important changes in Croatia’s handling of the war crimes issue. Čermak and Markač surrendered voluntarily to The Hague, and the fugitive Gotovina was arrested in the Canary Islands by the end of the year, after the government had provided key information leading to the arrest and cleared the path for resuming accession negotiations with Brussels. The HDZ, now back in power, adopted a cautious approach that effectively prioritized the country’s European project, even as it mobilized the resources of the state behind the defense of the generals. Sanader’s public statements, which came as a surprise to many, suggested his own evolution in a more moderate and reformist direction and the changes he had managed to bring about in the HDZ, steering the party away from extreme nationalism and marginalizing radical elements in its ranks. Only three years earlier, Sanader had been at the forefront of the demonstrations sparked by the trial of Norac. By the time of the controversy over Gotovina, however, his tone and position had shifted dramatically: “It is in Croatia’s interest,” he argued, “to establish the full truth in the case of General Gotovina, as well as in the cases of Generals Mladen Markač, Ivan Čermak, Rahim Ademi, and the six Bosnian Croats indicted by the Tribunal.”²² The media was unleashed in another heated discussion and the associations of war veterans managed to mobilize some 50,000 people in the largest protest in Split, but in places such as Zagreb only small crowds were turning up to express their solidarity with the accused. Indeed, such elements increasingly appeared as an extremist fringe that attacked the entire mainstream of Croatian politics as “traitors”: the president, parliament, government, and Sanader himself.²³

Were all these developments signaling a shift to deliberative transitional justice in Croatia?²⁴ On this interpretation of transitional justice, the significance of the judicial process is located in its ability to raise questions in the public domain rather than provide definitive answers, in particular questions that open up for public discussion the narratives and projects of nationalism and the representations of the national past that are invoked to substantiate them. The productive potential of the public deliberation sparked by the trials is located in the multiplicity of interpretations that come to the fore in conversation with the events unfolding in the courtroom. These diverse perspectives are validated in the act of their public articulation, rather than by being accepted or incorporated in “shared narratives”; in this sense, the contribution of the trials is in encouraging more contestation than closure in public discourse. As the public conversation shifts from debates over whether or not atrocities have been committed to debates over their significance and interpretation, it creates opportunities to interrogate the limits of “transition” and “transformation” by exposing salient continuities that are often submerged in such narratives of progressive change, and to open up for public reassessment and renegotiation broader questions about national identity and state legitimacy in the aftermath of mass atrocity.

Some of the elements of a deliberative understanding of transitional justice can be detected in Croatia’s reckoning with the legacy of the Homeland War over the past decade. The most significant contribution of the judicial processes initiated in that period may be the shift in the focus of the war crimes debate, from an exclusive preoccupation with atrocities perpetrated by members of the JNA and Serb paramilitaries to the emergence of a new focal point for the discussion, which directs attention to the actions of Croatia’s police and armed forces. The ensuing public conversation sparked by the trials has been increasingly dominated not by the question of whether or not Croatian forces committed crimes against Serb civilians, but rather by questions about their significance and the implications of the judicial processes invoked to address them. Can war crimes be committed in a defensive war? Can a war of national liberation also be a campaign for ethnic cleansing? Is protecting Croatian history and memory more important than promoting democracy and the rule of law? Are the courts depicting national heroes as war criminals, casting a shadow over the Homeland War and calling into question the legitimacy of the Croatian state forged in the war?

Such questions have been repeatedly raised in the public discussions provoked by the trials, and the “answers” offered by the courts have often been met with the same public uproar that accompanied the proceedings. However, despite the fact that these judicial processes may have stimulated public discussion of the legacy of mass atrocity and competing assessments of the significance of the trials themselves, the limitations of the war crimes debate in Croatia are palpable. What is missing in the public conversation is the discursive engagement of those most directly affected by the crimes listed in the indictments: Croatian Serbs. These minority voices and presences have been largely absent in the public controversies and contestations sparked by the trials, and their memories and interpretations of the war are yet to enter public discourse, despite the shifted focus of the war crimes debate and the seemingly incessant preoccupation of the Croatian media and public with these questions.

There are many reasons why members of the Serb minority in Croatia may choose to stay out of the war crimes discussions. Their political representation and participation in post-Tuđman Croatia have improved significantly,²⁵ and politicians such as the former and current presidents, Stipe Mesić and Ivo Josipović, have made sustained efforts to promote interethnic peace and minority integration. Such gains may be seen as more valuable than the opportunity to seek recognition for wartime grievances and experiences of injustice by articulating them publicly, and potentially risk reversing the gains and improvements achieved so far. But there is also the issue of fear and intimidation, especially at the local level, where courts and police forces may continue to inspire suspicion among Serb communities. These problems are particularly apparent in the process of refugee return and reintegration, which has been slow and agonizing, plagued by allegations of hostility and violence toward returning Serbs and reluctance of the local authorities to intervene on their behalf. As one observer put it, “This vulnerable social and political position makes it very hard for victim groups to stake a strong claim for transitional justice” (Subotić Reference Subotić2009: 110).

Moreover, despite the creation of special war crimes chambers and the efforts to address the ethnic bias in the administration of justice, the vast majority of war crimes cases in Croatia are still tried by local courts and involve members of JNA and Serb forces, and the practice of prosecuting Serbs in absentia continues.²⁶ An intriguing question for further research is the role of “local justice” as a deterrent for refugee return in Croatia, but what is clear is the role of these judicial processes in encouraging suspicion and distrust of state institutions among Croatian Serbs. Even domestic trials of high-ranking Croat defendants have often been criticized for failing to ensure adequate protection for witnesses and promote confidence in the impartiality of the legal system. For example, the war crimes proceedings against Branimir Glavaš, a strongman from Osijek and long-term member of the Croatian parliament, have been accompanied by sustained intimidation of witnesses, including death threats and disclosure of the identity of protected witnesses on television. The failure of the authorities to investigate and halt the intimidation of witnesses in that case prompted Amnesty International to express concerns that the judiciary was sending “a message to potential witnesses in war crimes cases that they risk not being protected, if they agree to come forward.”²⁷

Whereas Croatian Serbs have been reluctant to intervene in the war crimes debate, the Croatian media for their part have rendered Serb victims and survivors invisible in the public domain. A glimpse of the explosive potential of confronting the Croatian public with unsettling accounts of atrocities against Serb civilians was provided in 2001, when a documentary about the aftermath of Operation Storm, entitled Storm over Krajina, was shown on national television. Jelena Subotić (Reference Subotić2009: 110–111) notes that the reaction to the documentary served to discourage similar programs for years to come, as the fallout involved “a series of attacks against the filmmakers, including death threats and public condemnations by all major political parties and political figures such as then prime minister Račan, as well as a debate in the parliament.”

Another controversy erupted in the summer of 2005 over the Supplement to Textbooks of Current Croatian History, prepared by a group of historians from the University of Zagreb. The supplement was commissioned by the government for schools in Podunavlje, a region reintegrated in Croatia in 1998, after a five-year moratorium on teaching current history in that region had expired. The handbook was submitted to a review process and the content of some of the negative reviews was leaked in the media. The authors’ discussion of the aftermath of Operation Storm and the inclusion of a photo showing the Serb exodus from Krajina triggered accusations of falsifying history and equating responsibility for the war in a debate that continued to reverberate in the public domain for several months.²⁸ Such images are, of course, readily available on the Internet, but there was something very subversive in showing them on national television or including them in a history textbook. Even more subversive may be the presence of Serb victims and voices in the public domain at a time when the law is invoked to address their grievances and experiences of injustice. The public discussion sparked by the trials, however, has been marked by their absence. Pupovac draws attention to the implications of this absence:

At the current juncture, crossing the public-private divide may be a step too far for the majority of Serbs in Croatia, and confronting Serb memories and accounts of the war may still be intolerable for the Croatian media and public. However, without these minority presences and perspectives entering public discourse and becoming registered in the discussions, the war crimes debate in Croatia will remain impoverished and the potential of transitional justice processes to interrogate the nationalist projects and narratives inherited from the 1990s will continue to be stifled. When trials provide opportunities to raise the larger questions of national identity and state legitimacy in Croatia, the ensuing debates often appear as a process of contestation and negotiation between Croatian nationalists and moderates, hard-liners and reformers, isolationists and internationalists, or between Croatia and the EU. Croatian Serbs, however, who should be front and center as interlocutors in these discussions, and whose discursive engagements are crucial for any meaningful renegotiation of questions of identity and legitimacy in the post-war order, are largely absent from the public domain.

These limitations of transitional justice in Croatia became apparent in the spring of 2011 in the public reactions to the ICTY judgment in the case of the former generals Gotovona, Čermak, and Markač, charged with crimes against Serb civilians during Operation Storm.³⁰ Throughout the trial, the media relied heavily on the defense team to inform the Croatian public about the proceedings, failing to report those facts established by the court that didn’t fit in their narrative, to discuss the plight of the victims, or to relate accounts of survivors. When the court found two of the accused, Gotovina and Markač, guilty of crimes against humanity and war crimes committed in the context of a “joint criminal enterprise” implicating the very top of Croatia’s political and military establishment, the disappointment was palpable in central Zagreb, where thousands had gathered to watch the reading of the judgement on a giant screen. The public uproar provoked by the verdict involved street protests and strong condemnations from the political class, media, and public.³¹ But again, the public discussion sparked by the trial was notable not so much for those who engaged in it and expressed their views and interpretations, but for those who didn’t.

Conclusion

This chapter has examined the war crimes debate in Croatia over the past three decades as a mirror reflecting the shifting relationship between law and nationalism. The consequences of Yugoslavia’s transition without justice in the aftermath of the Second World War became apparent in the 1980s and early 1990s, when the question of mass atrocity exploded in public discourse and provided a platform for nationalist mobilization, attacking the legitimacy of the Yugoslav state and unleashing a verbal civil war that foreshadowed the real war that was about to engulf the region. The war crimes debate emerged as an arena of struggle over Croatian nationalism, as the pursuit of national unity and reconciliation involved revising official histories and contesting legacies of abuse. Uniting and reconciling the Croatian nation in this way, however, could only be achieved at the expense of Croatian Serbs, making a reframed Croatian nationalism dependent on suppressing minority identities and memories.

The initiation of war crimes prosecutions during the Homeland War and their continuation and expansion in the post-war period signaled a shift in the relationship between law and nationalism. Rather than serving the interests of justice, however, the Croatian judiciary appeared to be serving the interests of the regime in advancing nation- and state-building. Prosecuting a large number of ethnic Serbs for war crimes in absentia and, at the same time, granting de facto immunity from prosecution for such offenses to members of the Croatian army and police suggests how Croatian law helped obscure the complex legacies of the war and allocated collective guilt and victimhood. These judicial processes have raised serious concerns about the “transitional” role of the law among Serb communities in Croatia, creating perceptions that the trials were used to pursue not justice but vengeance and promote wartime policies by other means. The pursuit of “local justice” in Croatia during the 1990s suggests how the breakdown of the rule of law, associated with the advent of nationalism and war, may be further reinforced by the work of the judiciary itself, blurring the boundaries between the war and postwar order.

The key challenge for transitional justice in Croatia since the turn of the century has been the need to confront two legacies of abuse: one involving atrocities against Serb civilians and ethnic cleansing during the Homeland War; the other concerning the conduct of war crimes trials in its aftermath. Croatian law, like the political class and public, has struggled to confront these legacies in a meaningful way and come to terms with the past. Nevertheless, Croatia’s experience with judicial processes in the past decade is useful in illuminating the potential of deliberative transitional justice to interrogate the “dark side” of nationalism, as well as revealing some of its limitations.

The domestic and international trials of high-ranking officers of the Croatian army and police have encouraged important changes in the war crimes debate, shifting the meaning of “war crimes” in the public domain and the subject of public deliberation from an exclusive preoccupation with war crimes committed by the JNA and local Serbs to a focus on the members of the Croatian police and armed forces. Moreover, the discussions sparked by the trials have involved contesting not so much the crimes themselves but their significance and interpretations, and have provided a platform for debating Croatia’s commitments to democracy, the rule of law, and Europe. At the same time, the range of interpretations articulated in public discourse have tended to reflect Croatia’s long-standing political and ideological divisions but not its cultural diversity, and far too often the discussion has unfolded in conversation with Europe rather than with Croatian Serbs. Without engaging these key interlocutors and their memories and interpretations of the war, the judicial processes and ensuing public debates may be conducted in vain, missing valuable opportunities to renegotiate important questions of identity and legitimacy and bring the past into a productive dialogue with the present.