Eclipsing Bureaucratic Ethnic Cleansing: Croatia’s Accession into the European Union

Sarah Coghill Robert D. Clark Honors College Thesis

Preface:

“It is in the demand of the oppressed for justice that we become most cognizant of our dignity as human beings. The power of the human spirit reveals itself not in a state of ease and comfort, but rather in times of tribulations and darkness. In struggling against the cruelty of the tormentor and the cynical indifference of the spectator, we fight for values which transcend creed, culture, and time, and thereby affirm the essential oneness of the human race.” ~ Payam Akhavan

Akhavan’s quote highlights the contemporary notion that humans beings throughout the world must fight for values that surpass entrenched understandings of creed, culture, and time if an inclusive, international system of peace is to be established the world over. Though far-fetched in many regions of the world where ethnically driven conflict has stirred ideas of nationalism and fascism, the power of the human spirit has and will continue to prove it possible. The European Union’s expansion process properly requires simultaneous progress in the areas of human rights, democratic government, and control of corruption, rather than a balancing of one against another. A case study of the former Yugoslav Republic of Croatia reveals a transformed country that is committed to the transition process toward a veritable democracy, accepted by all European institutions. As demonstrated in Akhavan’s quote, targeting violators of human rights and bringing them to justice is essential to both the achievement of democracy and peace. Accusation, however, comes more easily than making peace and, therefore, the role of the EU in the continuation of human and minority rights progress in Croatia is absolutely essential as it stands as a respected international institution with the hegemonic power to “softly” force compliance. The outdated peace treaties existing between the solely affected countries of the former Yugoslavia are not enough in a modern world dictated by international customary law. The Croatian example affords important insights regarding the difficulties of ethno-political peace negotiations and particularly the complicated endgame of translating rough agreement into actual practice. As more such agreements are implemented in various global trouble spots, often in the aftermath of tragic killing and tragically delayed international response, impediments to peace implementation could indeed become one of the primary challenges of the new century.

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Table of Contents:

Title Page………………………………………………………………………………………………………….1

Preface…………………………………………………………………………………………………...………..2

Table of Contents……………………………………………………………………………………………....….3

Abstract………………………………………………………………………………………………………...…4

Eclipsing Bureaucratic Ethnic Cleansing: Croatia’s Accession into the European Union

I. Introduction: Fundamental Freedoms & Human and Minority Rights………………………..………..5

II. The “Shatterbelt” of Europe: Yugoslavia’s Historical Background Pre-1990s……...... …………..8

III. The Road to Disintegration…………………………………………………………………………..15 Development of the Serbo-Croatian War Bureaucratic Ethnic Cleansing War Rapes as a Weapon of Bureaucratic Ethnic Cleansing

IV. International Pressures for Change in Tuđman’s Post-War Croatia (Up to 2000)…………………..22

V. The Croatian Path to Human Rights (Since 2000)………….……………………………………...... 25 International Criminal Tribunal for the Former Yugoslavia Definitions of EU Membership: The Copenhagen Criteria Polarization of Croatian Politics: Compliance with the ICTY The Dayton Peace Accords The Domestic Campaign for Justice A New Spirit of Cooperation

VI. Lessons from Croatian Success……………………………………………………………...... 40 An Improved Record of Compliance Inducing Compliance: The Role of International Institutions

VII. Croatia’s Future Accession into the EU……………………….……………………………………46 Lessons Learned from the Croatian Case Study Conclusion: Eclipsing Bureaucratic Ethnic Cleansing

Works Consulted and Cited……………………………………………………………………………...... 55

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Abstract:

Given its atrocity-ridden history and rough political path, the modern Croatia should be viewed through a rather extraordinary lens in terms of the development of and compliance with both peace treaties in recognition of the ceasefire between the participating parties of the ethnic wars of the 1990s and international customary law on Human Rights. Croatia has overwhelmingly improved its record of compliance within both the international and domestic sectors of governance as examples abound within the blossoming potential EU member-state. As well as satisfying aspects of various international organizations to further enter the world market and participate in the global political scene, Croatia has rectified many of its human and minority rights abuses that plagued the ethnically exploited nation for years. The peace agreements drafted under the auspices of the International Conference on the former Yugoslavia (ICTY) have included some of the most extensive and far-reaching provisions on human rights to be found in any peace treaty ever. These have included the direct application of over twenty international human rights instruments in the domestic legal order, the establishment of ombudspersons, constitutional courts, human rights courts, and international human rights monitoring missions. Indeed, Croatia has come a long way, particularly in the realm of human and minority rights, since the ethnic conflicts of the 1990s tore the former Yugoslavia apart and threatened the lives of Croatians, both ethnic and national. Croatia, however, was unable to succeed on its own and it was only through the influence of outside international institutions, such as the Council of Europe, that the now culturally flourishing country has been able to work toward remedying its past human and minority rights transgressions and contribute to the international community in a positive manner. I argue that if Croatia is to continue to make positive progress in the realm of human and minority rights within its heavily disputed borders (both ethnically and nationally defined), especially those violations which occurred during the “Homeland War,” accession to the European Union is both richly deserved as Croatia’s compliance with international customary law has demonstrated, and also mandatory as the international influence within the international customary law that is embedded within the pillars of the EU, its many treaties, and acquis communitaire will function to further encourage Croatia’s human and minority rights progress.

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I. Introduction: Fundamental Freedoms and Human and Minority Rights:

Perhaps the greatest political achievement of human civilization is the practical entrenchment of fundamental rights and freedoms. Conflicts such as those witnessed in the former Yugoslavia have outraged the international community because of the shocking violations of human rights which included the abominable practice of ethnic cleansing through various methods including war rapes and “bureaucratic ethnic cleansing” in which the ostracization of minority populations was enshrined in national constitutions as the authoritative governments sought to create a homogenous nation on the basis of ethnicity. Throughout history, it has been seen, at times, that granting territorial sovereignty to a majority leaves those who are not of that majority at an extreme disadvantage whether politically, socially, or economically. A witnessed in the Serbian population of

Croatia, the Croat population of Serbia, and the Muslim population of Bosnia, minorities suffered in silence or left, becoming refugees of their own homeland. The dissolution of Yugoslavia in 1991 produced a number of interrelated, protracted conflicts. The uncompromising positions of nationalist leaders resulted in the tragic event of the wars in Serbia, Croatia, and Bosnia-Herzegovina, and the emergence of several new “single- nationality nations.” Recognized by many within the academic field and as practiced and implemented within the former Yugoslavia’s nationalist policies of the 1990s, social categorization theory teaches that humans make their social world sensible by constructing cognitive categories that represent groups.1 The contents of these categories inform judgments that people make every day to cope with the complexities of social life. Within the

Croatian case study, the individuals, therefore, identified perceived difference within their culture through contact, interaction, and negotiation. Cultural differences provided a basis for group polarization and led to the development and maintenance of ethnic boundaries. As seen in the former Yugoslav nation, these categories became ethnically based as religious and nationalist fervor was disseminated throughout the country following the death of Marshal Josip Broz Tito and the opportunity for radical nationalism presented itself as it was implemented by the first democratically elected leader of the Nationalist Party, Franco Tuđjman, who praised

1 Schroth/Bostan 626 5

the fascist Ustase of World War II and supported their notion of an ethnically pure Croatia.2 The crucial point

within the Croatian context is that contact, interaction, and negotiation were continual in everyday Yugoslav

society whereas ethnic boundaries were maintained despite changes in the patterns of cultural differences.3

One of the more disruptive elements of Yugoslav society to the long-term stability of the country was, therefore, the traditional, deeply embedded centrifugal forces generated by the country’s multiethnic composition originating during World War II as ethnic hatred was fueled by the desire of the fascist Ustase to create an ethnically pure Croat state. Despite the thirty-five year effort by Marshal Tito, the “grand old man” of

Balkan politics, to promote unity behind a single Yugoslav identity, the ancestral enmities between the various component nationalities of Yugoslavia, particularly the Serbs and Croats, were simmering as of Tito’s death and further fueled by the up and coming nationalist political parties. These were, and at times still are, deeply felt, highly emotional, even irrational animosities- the Catholic Slovenes and Croatians with their heritage of the

Austro-Hungarian Empire; the Orthodox Serbs, Montenegrins, and Macedonians; and the Muslim Bosnians with their heritage of rule by the Ottoman Turks. The differences are as fundamental as alphabets and cultures- the Cyrillic used in the Eastern republics and the Latin used in the Western republics.4 There were disparities in

lifestyles and incomes as well as each region still competed for the lion’s share of development projects and

foreign exchange allocations, ministerial appointments, and foreign ambassadorships as these posts were

selected as much on the basis of ethnic origin as individual accomplishment. Considering that the local

governments were staffed by local people, it is easy to see how Tito’s federalist system simply reinforced the

importance of local ties and loyalties.

There is no question that Tito was integral in keeping Yugoslavia together and keeping various

nationalist sentiments in check and under control. However, as history has proven, the longer Tito remained

firmly in control of every aspect of Yugoslav life and politics, the longer officials were reluctant to make the

2 Duffy/Lindstrom 69 3 Kunovich/Hodson 646 4 Andelman 839 6

hard decisions that had to be implemented immediately to avoid chaos and violence. Following Tito’s death,

these officials ultimately succumbed to the nationalist pressure and, therefore, played up ethnic differences in an effort to build new political parties and movements. Although Yugoslavia had established a “mechanism” for succession- a complex system of two “collective presidencies,” one for the League of Communists (the Party), the other for the state- it was a cumbersome, patchwork arrangement that would not (and did not) withstand the

pressure of a crisis. Both presidencies contained at least one member from each of the republics and

autonomous regions. Under the concept, each year the leadership of these two groups revolved, placing a new individual in the nominal leadership position; however, the collective group with constantly revolving individuals and responsibilities lacked the power and prestige to make and follow through on fundamental economic and diplomatic changes and priorities. A serious danger that Yugoslavia would simply be ground down by the weight of an amorphous mass of leadership at the top among whom the bureaucracy had to necessarily divide its loyalties, energies, and direction, and to none of whom the people of Yugoslavia owed their allegiance or affection. Indeed, over a decade after the concept of “collective presidency” was broached, the people of Yugoslavia still professed bewilderment or apathy toward its composition and functioning.

Map of the Former Yugoslavia 7

Overall, Tito never had much interest or expertise in economic affairs and tended to delegate

responsibility, with the result that broader decision-making experience developed in these areas rather than in

foreign affairs or relations between the republics, where all ultimate decisions were made by Tito personally.

Following the death of Tito, Yugoslavs attempted to cling together as they had already demonstrated during

Tito’s illness, aware of the overriding necessity for unity or defeat. However, after a few years, the crack began

to open of its own accord and it was then that the façade of unity was challenged by internal disputes between

Serbs and Croats over development projects and economic priorities. It is this turbulent history that has both

tainted and hindered Croatia’s progress socially, economically, and politically as the former Yugoslav nation

strives to reconcile its past transgressions. However, I argue that although the nation will forever have to live

with the blood-stained history initiated by nationalist leaders and policies, Croatia has made great strides to

overcome the authoritative policies of “bureaucratic ethnic cleansing” and, therefore, its accession into the

European Union is both richly deserved and imperative if the reformed country is to continue to demonstrate

compliance with international customary law on human rights. I will argue this in the following six sections

which discuss Croatia’s historical background; the road to disintegration; international pressures for change

following Tuđjman’s implementation of bureaucratic ethnic cleansing; Croatia’s path to human and minority

rights following the election of a democratic government; lessons that can be learned from Croatia’s success;

and, finally, Croatia’s future accession into the European Union. My goal is to use the Croatian case study to

demonstrate the influence international institutions such as the EU have over countries to induce compliance and affect positive change.

II. The “Shatterbelt of Europe:” Yugoslavia’s Historical Background Pre-1990:

Superficial observers tend to fall back on essentialist phrases like “ancient ethnic conflicts” to

explain what otherwise seems inexplicable- the killing of neighbors and friends- as the Yugoslav wars

resulted in the forced un-mixing of peoples whose continuing coexistence was counter to the political

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ideologies that won the free elections of the 1990s.5 These observers ascribe the eruption of violence in

1991-1992 to three long term causes within the realm of ancient ethnic conflicts including: persistent ethnic and religious animosities; the stirring up of memories from the “bloodlettings” of World War II; and the post-World War II failure of political modernization and of the communist nationalities policy.6

That the Yugoslav wars were nothing more than the product of ancient tribal hatreds and bloodlusts; that the people of Yugoslavia have always hated each other and wanted nothing more than to see their neighbors wiped off the face of the earth, is a very common notion. While this may be an easy conclusion to draw, this is not at all true and the reality is much more complicated. For one, it is difficult to say that all of the hatreds seen in the Yugoslav Wars in the 1990s were ancient. There had never even been any concept of a Macedonian nation for no more than 150 years prior to the outbreak of the wars. The tensions in first the Kingdom of Serbs, Croats, and Slovenes and later in Yugoslavia was not the result of varying ethnicities hating the neighbors they had to share a country with, but rather conflicting and competing nationalisms that got in the way of each other because of structural problems in the way the unified state was constructed. Yugoslavia was simply too small for the nationalisms of its constituent ethnicities. The first sustained violence between Croats and Serbs did not occur until World

War II and while the violence was indeed horrific, it hardly qualifies as ancient. Even then, the violence witnessed did not occur because genocide was a "natural" product of Serbo-Croatian relations, but rather because of the desire of the fascist Ustase to create an ethnically pure Croat state, which in turn called for the elimination of Serbian and Muslim minorities in Croatia. While this does nothing to excuse the horrors committed by the Ustase, it does point to the fact that what occurred was in fact a historical anomaly as opposed to ancient historical hatreds. Furthermore, neighborhoods in Yugoslavia were becoming increasingly mixed, intermarriage was on the rise, and people increasingly identified

5 Hayden 783 6 Ibid 9 themselves as "Yugoslav" as opposed to Croat, Serb, or Slovene. What occurred then was a result of manipulative leaders like Anté Pavlič, Slobodan Milošević, and Franjo Tuđjman who exploited and manipulated people's nationalist leanings to gain power and prominence. While it is true that the people must go along with these leaders for their agendas to be successful, it is also true that without such personalities, the potential for violence in the Balkans would have been significantly diminished.

More interesting perhaps, is the role the nefarious Belgrade and Zagreb media played in fueling ethnic conflicts between Serbs and Croats and the capitals’ illiberal manipulation of the media that characterized Croatia when the war broke out, therefore, stirring the feelings that triggered violence in the name of self-defense. Serbs would fight for and defend a “pure” Serbia while Croats would fight for and defend a “pure” Croatia. Croatians attributed the cause of the break up to the calculated attempt to forge a greater Serbia and that Slobodan Milošević’s packaging of myth, fantasy, half-truths, and brazen lies into a nationalistic media blitz poisoned the political atmosphere, left Serbs with little ability to understand their situation, and encouraged the development of radical Serbian groups in Bosnia and

Krajina. In this view, the xenophobia, therefore, cultivated by the Serbian media and the Milošević government destroyed Yugoslavia.7 In an area appropriately referred to as the “shatterbelt of Europe,”8 however, Croatia’s historically shocking disregard for human rights witnessed during the war in the form of torture, war rapes, and “bureaucratic ethnic cleansing” resulted from an increased contact, integration, and negotiation of and between ethnically different social groups which threatened to destabilize the nationalist pillars upon which the government was built, therefore, in the minds of the ethnically divided leadership, action had to be taken to quell the intermixing of the ethnicities whether religiously or socially defined by language, symbols, cuisine, culture, or customs.

7 Stokes 145 8 Harris 308 10

Ethnic Map of the Former Yugoslavia

The animosity between these ethnicities, however, was witnessed many decades before the outbreak of the war in the early 1990s as the fascist Ustase had preached notions of Serbian and Muslim inferiority in order to plant the “ideal, pure Croat nation” in the minds of Croat civilians during World War II. The Kingdom of

Serbs, Croats, and Slovenes was formed on territories of the defunct Austro-Hungarian Empire in 1918 (the named changed to Yugoslavia in 1928) as a multinational state in which no single group comprised a majority and was premised on multiculturalism. In the late 1930s, the expansion of Nazi Germany gave new momentum to efforts aimed at establishing ethnic federal subdivisions and (out of fear of an invasion by the World War II

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Axis Powers) Regent Prince Paul pledged cooperation with the Axis.9 Occupation by Nazi Germany in 1941, however, was resisted by various partisan bands that fought themselves as well as the invaders. The resisting group headed by Marshall Josip Broz Tito took full control upon the German expulsion in 1945. Although communist in name, Tito’s government successfully steered its own path between the Warsaw Pact nations and

the West for the next four and a half decades. Although it was composed of republics in which all but one had a clear majority of the group for which it was named, all of the republics had well-defined minority populations.

The political geography of the country, therefore, reflected territorial concentrations. The Socialist Federal

Republic of Yugoslavia (1945-1991/92) was a federation of six republics (Bosnia-Herzegovina, Croatia,

Macedonia, Montenegro, Serbia, and Slovenia) and two “autonomous provinces” within the Republic of Serbia

(Vojvodina and Kosovo). With the exception of Bosnia-Herzegovina, each republic or autonomous province was the area of the greatest territorial concentration of one of the major national groups that comprised

Yugoslavia. However, following Tito’s death, it was unclear whether the new leadership would be able to successfully continue to steer along the federalist path. Politically, the new government based its position on

the Leninist-Vanguard Party (the idea that the country would collapse without strong central leadership). As in

past decades, Serbia advocated a strong central government while Croatia and Slovenia advocated federalism, if

not outright autonomy. Into this volatile situation stepped individuals who would become household names

across the world.

In the free elections that were held in 1990 after Tito’s death in 1980, Slobodan Milošević’s rise to

power in Serbia from 1986-1989, and the collapse of the League of Communists after the Slovene and Croatian

delegates left amid claims that Milošević was usurping power, the winning message in each republic was one of

classic nationalism: Serbia for Serbs, Croatia for Croats, Slovenia for Slovenes, and Macedonia for

Macedonians. In Croatia, Franjo Tuđjman won the 1990 elections as he had fought for the Partisans against the

Nazis during World War II and shot through the military ranks after the war. Convinced that Croatia should

9 Ibid 12

secede from Yugoslavia, Tuđjman and his ultra-nationalist Croatian Democratic Union (HDZ) Party swept to

power, restoring Croatia’s flags and symbols (including the fascist Ustase symbols) which caused more than a

little discomfort among Yugoslavia’s Serbs, especially those living within the Croatian republic. Post-Tito

Yugoslavia began to unravel along ethnic lines, therefore, each republic, except for Bosnia-Herzegovina,

became a true nation-state based on the sovereignty of the majority national group.10 The separate national

political movements were justified on the grounds of “self-determination” and referred not to the population or

citizens of republics, but to the nations (narodi) of Yugoslavia, as ethnically defined. As nationalist politicians

came to power in the various Yugoslav republics after the elections of 1990, they rewrote their respective

republican constitutions to justify the state on the sovereignty of the ethnically defined nation in which others

might be citizens, but could not expect an equal right to participate in the control of the state. Contrary to many

academic views, the free elections of 1990 in Yugoslavia did not replace state socialism with democracy.

Instead, the transition was from regimes dedicated to advancing the interests of that part of the population- defined constitutionally as “the working class and all working people”- to regimes dedicated to advancing the interests of that part of the population defined as the ethno-national majority. In this sense, the transition was

from state socialism to state chauvinism and socialism’s “class enemy” was replaced by the “national enemy”

identified by the particular local chauvinism as the government displayed biased devotion to the ethnic majority.

Once in power, the victorious nationalists in each republic, including Franjo Tuđjman of Croatia, began

to enact systems of constitutional nationalism, meaning constitutional and legal systems devised to ensure the dominance of the majority ethno-national group. Tuđjman legitimated his “genocide against the Serbs” by saying during various Croatian radio and media announcements that it “[was] revenge for what the Serbs had done to [Croats]” and that “Serbs [were] a national problem that must be eliminated.”11 Tuđjman’s personal

and political goals for the nation of Croatia, therefore, included the permanent removal of the Serb population

10 Ibid 11 Institute for War & Peace Reporting 13

from the Krajina region of Croatia by means of force, fear, persecution, forced displacement, transfer,

deportation, and the destruction of Serb property. He was further quoted as saying “Croatia must resolve the

[Serb] problem by war…by ethnically cleansing the Serbs from Croatia,”12 and, therefore, pursued this plan by

creating a “climate of fear” among Serbs in the region through propaganda, misinformation, psychological

warfare, and by promoting, instigating, facilitating, encouraging, and condoning the perpetuation of violent acts

against Serbs.

Therefore, the transition from state socialism to state chauvinism within the former Yugoslavia,

including the Republic of Croatia in 1990, was seen in the formulation of zealous and aggressive state identity

and purpose contained in much of the leader’s political rhetoric. The politics of nationalism in Yugoslavia in the

1990s, therefore, turned territories populated by concentrations of the various national groups into states in

which only the members of the majority nation were sovereign. The spatial patterning of the war and its terrible

ferocity were due to the fact that in some regions the various Yugoslav peoples were not only coexisting, but

also becoming increasingly intermingled. Along with the nationalists’ newfound power surfaced systems of

constitutional nationalism. For example, the Constitution of Croatia (1990) gives in its preamble a capsule of

history of the efforts of the Croat “nation” (narod) to establish “full state sovereignty.” After mentioning the

“inalienable…right of the Croat nation to self-determination and state sovereignty,” the Republic of Croatia was

“established as the national state of the Croat nation and the state of the members of other nations and minorities that live within it.”13 In all of these passages, “Croat nation” (Hrvatski narod) has an ethnic

connotation and excludes those not ethnically Croat. This exclusionary definition of the bearer of sovereignty

was also reinforced by the emblems of the state which at the time included: a flag and coat-of-arms bearing

designs associated only with Croats and the specification that the official language and script of Croatia were

the “Croatian language and Latin script.” These emblems, therefore, excluded the Serbian dialects and the

12 Ibid 13 Constitution of the Republic of Croatia 1990, Preamble 14

Cyrillic alphabet customarily used to write them.14 Therefore, the transition from state socialism to the

aggressive patriotism and biased devotion characteristic of state chauvinism was seen in the formulations of

state identity and purpose contained in the various republican constitutions of the former Yugoslavia. In a political situation premised on the incompatibility of its components, these mixed territories were both jarring

and threatening since they served as living disproof of the nationalist ideologies. For this reason, the mixed

regions could not be permitted to survive as such, and their populations, which were mixed voluntarily, had to

be separated militarily.15

III. The Road to Disintegration:

Development of the Serbo-Croatian War

It was this nationalistic sentiment, which had been widespread among the various ethnicities for many

years, which would bring an end to the Yugoslav federation. Albanian demands in 1981 for Kosovo to be

removed from Serbia and transformed to a constituent republic within Yugoslavia led to violent riots and

similar attitudes surfaced among other nations with the Serbian SANU Memorandum (which argued for a

fundamental reorganization of the state) in 1986.16 Croatia and Slovenia responded negatively to this in 1989 after Serbia’s leader, Slobodan Milošević, organized coups in Vojvodina, Kosovo, and Montenegro to install authorities who would be loyal to his cause of reorganization, ultimately resulting in Serbs gaining power.

Under the influence of Milošević’s propaganda, the importance of who won the first Croatian multi-party

elections in fifty years was diminished since he had successfully installed trusted allies in the surrounding

republics and elite state offices. However, the electoral win of Franjo Tuđjman further inflamed the ethnic

tensions between Croatian Serbs and Croats as fascist symbols of the Ustase were resurrected and resulted in

the Croatian Serbs leaving the Croatian Parliament to create the Association of the Municipalities of Northern

Dalmatia and Lika (which later became the Republika Srpska Krajina) out of fear of a reincarnation of a pro-

14 Hayden 789 15 Hayden 788 16 Ibid 15

Nazi Independent State of Croatia. The Republika’s President, Milan Babič, however, later declared that his

actions had been strongly influenced and misled by Serbian propaganda that praised a Serbian incorporation of

Croatian territory, including the region of Krajina, into a “Greater Serbia.”17 This was the breaking point in the

series of events which led to sporadic fighting between the two republics (Serbia and Croatia), culminated in the

full-scale Croatian War of Independence or “Homeland War” between 1991 and 1995, and concluded with the

controversial events of August 1995 regarding the conduct of the Croatian Army and the exodus of ethnic

Serbs.

In preparing for war, Milošević wanted Slovenia, Croatia, and Bosnia-Herzegovina disarmed to

reinforce the heightened status of Serbs. This is why, in Spring 1990, the army was ordered to seize the arms of

the territorial defense forces in those three republics and remove them to secure sites.18 Their objective was to

disarm the local authorities in those republics at the same time as Serbian paramilitary groups in Croatia and

later Bosnia-Herzegovina were receiving arms from the Yugoslav People’s Army (JNA) warehouses and

training from JNA instructors. Frightened by this completely illegal move and feeling increasingly threatened

by both rhetoric in Belgrade and the various other unconstitutional and illegal moves being taken by Belgrade

or with Belgrade’s approval, Slovenia and Croatia turned to foreign sources to replace the arms that had been confiscated and to build up armed forces capable of defending their respective republics from the expected showdown with Serbian forces. In October 1990, Slovenia and Croatia had presented a joint proposal for

transforming the Socialist Federal Republics of Yugoslavia (SFRY) into a confederation, a proposal that leaders

for both republics viewed as the last chance to preserve Yugoslavia in any form within its given boundaries.

On 25 June 1991, Slovenia and Croatia declared their “disassociation” from the SFRY.19 Serb-Croat clashes at Pakrac and Plitvice in February 1991 and in Borovo Selo in May 1991 left no doubt about the mounting gravity of the situation, but the war in Croatia began in earnest only with the occupation of Baranja on

17 Ibid 18 Ramet 569 19 Ramet 567 16

3 July 1991 by JNA troops together with Serb volunteers and paramilitary forces after a Serb rebellion in response to the newly elected Croatian government led by Franjo Tuđjman, severing ties between Dalmatia and the remainder of Croatia.20 After Croatia declared its independence in June 1991 along with Slovenia, and

certainly after Germany won the battle to gain international recognition for Croatian independence in December

1991, there was never any question for most people that the Serbs in Croatia had to accept their new status as a

barely tolerated minority.21 In response to this declaration, the Serbs announced their secession from Croatia, a

move that was in part triggered by a provision in the new Croatian Constitution that referred to Serbs as a

“national minority,” and began devastating the cities of Vukovar, Dubrovnik, and Osijek with JNA-sponsored bombardments and shelling resulting in a flood of refugees from the war zones and hundreds of thousands of

victims of ethnic cleansing of both Croatian and Serbian descent.

Bureaucratic Ethnic Cleansing

These victims of ethnic cleansing, however, were victims long before the violence erupted. In popular

speech and in the rhetoric of many international documents, the world is composed of nations- religious, ethnic, and political. At the levels of laws and politics, however, it is composed of states. The citizens of a state almost always possess rights that non-citizens do not share, and this was certainly true in the republics of the former

Yugoslavia.22 The Law on Croatian Citizenship (1991) permitted the authorities to reject a citizenship

application even though the applicant had met all of the criteria if “they were of the opinion that there were

reasons in the interest of the Republic of Croatia for refusing the request for the acquisition…of citizenship.”23

The same article provides that these authorities need not state their reasons for rejecting an application.

Therefore, Serbs complained, the opportunity for discrimination certainly existed. Again, the Law on Croatian

Citizenship (1991) is interesting as Article 8 stipulated the following: A foreign citizen who files a petition for

20 Ibid 21 Woodward 757 22 Hayden 792 23 Hayden 793 17

acquiring Croatian citizenship may acquire Croatian citizenship by naturalization if he meets the following

criteria: (1) Age requirement 18; (2) omitted; (3) that before the filing of the petition, he had a registered place

of residence for a period of not less than five years uninterrupted on the territory of the Republic of Croatia; (4)

he is proficient in the Croatian language and Latin script; (5) that a conclusion can be drawn from his conduct

that adheres to the laws and customs prevailing in the Republic of Croatia and he accepts Croatian culture.24 At first glance Sections 3 and 4 of this article did not seem to be overly controversial, but both open wide opportunities for discriminatory application.

The residency requirement depends on the interpretation of the term “uninterrupted” and the language qualification is more interesting as dialects had become more intermixed and Serbs preferred to use the Cyrillic alphabet while Croats almost never used it. Section 5, however, is the most revealing. What exactly does it mean to “accept Croatian culture,” and how does one conduct oneself to show such acceptance? Since the primary distinguishing feature of Croatian culture is Roman Catholicism, must one convert to that faith? If not, what does accepting Croatian culture entail? The essentialism involved verges on racism when it entails viewing reified culture as somehow surviving transplantation into another country where the chosen people are a minority. The complete separation of language and culture seem inevitably odd as this provision provided a tool for extending citizenship only to ethnic Croats while denying it to others similarly situated.25 Taken

together, the naturalization provisions of the Law on Croatian Citizenship (1991) had the potential to lead to

situations in which, for example, a Muslim from Bosnia, long resident in Croatia and a native speaker of the

Croatian dialect of what used to be called Serbo-Croatian, was denied citizenship, while an ethnic Croat from

the United States, who has never been to Croatia and who does not know the language, was granted Croatian

citizenship. These citizenship laws provided legal means to exclude individuals from citizenship on ethnic

grounds- in essence, “bureaucratic ethnic cleansing.”

24 Law on Croatian Citizenship 1991 Article 8 25 Hayden 794 18

For example, upon the conclusion of a diplomatic mission to Croatia conducted in the beginning of the war, the Danish government concluded that “Croatia [had been] an example of an intolerant culture, with

Muslims…in the same boat as the Serbs who were systematically harassed.”26 Similar reports following the

conclusion of the war state that the Muslim community in Croatia continued to suffer discrimination (at times

registering as “Bosniaks” rather than “Muslims” to avoid poor treatment). However, both Croatian Muslims

and Bosnian refugees continued to report widespread discrimination in applications for citizenship as Muslims

and Bosniaks of mixed descent were continually attacked by skinheads, nationalists, and racists while the

government sat idly by and “Croatian police failed to take into account relevant information submitted by the

victim, by his/her lawyer, and failed to conduct an adequate investigation into the crimes.”27

War Rapes as a Weapon of Bureaucratic Ethnic Cleansing

An aspect of bureaucratic ethnic cleansing within the former Yugoslav nation of Croatia can also be seen in the use of war rapes as a weapon of torture, therefore, resulting in mass, repeated, and grave violations of human rights. War rapes in the former Yugoslavia would not have been such an effective weapon of torture and terror if it were not for concepts of honor, shame, and sexuality that were attached to women’s bodies during peacetime. The implementation of “war rape” by the Croatian Army and Serb forces throughout the conflict would not have worked as well as a policy of terror had it not been for the cultural salience within the honor/shame complex generalized in the southeastern European cultural area.28 In the former Yugoslavia, these

traditional values regarding sexual behavior, which condoned rape through honor/shame constraints, took

precedence over economic transformations, state policy commitments under communism, and male migration.

Rape demonstrates men’s inability to protect their women, therefore, throughout the war, violation of female

honor was a weapon used by the men of one ethnic group against those of another. During the war, individual

bodies became metaphoric representatives of the social body, and the killing or maiming of that body

26 Croatian Country Reports 1993 27 European Court of Human Rights Report 1997 28 Olujic 32 19

symbolically killed or maimed the individual’s family and ethnic group.29 Therefore, war rapes in the former

Yugoslavia reinforced the cultural notions of “cleanliness” and “dirtiness” associated with sexuality and ethnic

affiliation. Through forced pregnancy resulting from rape, aggressors were able to “purify the blood” of the

attacked group by creating “ethnically cleansed” babies belonging to the group of invading fathers.30 In the former Yugoslavia, because meanings of rape were shared by the three ethnic groups (Croats, Muslims, and

Serbs), sexual violence was especially salient as a weapon of torture as rape-induced pregnancies present the ultimate crisis of ethnic identity. Female victims of rape refer to rape-produced babies (both born and unborn) as Chetniks (Serbian extremists from World War II- an aspect of the ancient ethnic conflicts discussed earlier).

Raping women and forcing them to bear “Chetnik” babies was the logical extension of the unconscious fears that underlie the honor complex. What the soldiers were doing was making the worst fears of their victims come true.31

In the former Yugoslavia, male and female torture victims were held separately. Individuals of both

sexes were physically and sexually tortured (including rape and sexual mutilation). As highlighted in an interview with a Serbian journalist, the names and locations of the rape camps reflected preexisting attitudes toward sexuality and courtship, but in a cruel new context. Rape camps were former coffeehouses and restaurants whose names symbolized both the traditional and the modern. The names meant “brothels,” not detention camps, in which women willingly satisfied men’s desires. The names of these camps, therefore, blamed women for their own victimization.32 Throughout the Croatian nation of the 1990s, war rapes became one of the forms of “bureaucratic ethnic cleansing” as the purpose of politically systematic rape was to

“cleanse” women of their ethnic identity and to humiliate their male kin, as it was bureaucratically encouraged

by military leaders. War rape in Croatia was associated with specific battles and massacres, included individual

29 Ibid 30 Olujic 37 31 Olujic 39 32 Interview with anonymous Serbian journalist 20

and isolated acts of violence, as well as gang rape and raping with objects. Although men also became victims

of sexual violence, war rape were disproportionately directed against women. According to the Women Group

Tresnjevka, over 50,000 women were raped and more than 35,000 women and children were held in rape camps such as Jadranka Cigelj and Nusreta Sivac, who were held in Omarska, the Bosnian-Serb concentration camp where many Bosnian Muslims and Croats were held captive, tortured, raped, and killed.33

Throughout the former Yugoslavia, it could be seen that war transformed the political uses of rape.

Although the first rapes of women in this conflict occurred in 1991 in Croatia, the Croatian government kept silent. Lack of official disclosure about war rapes of Croatian women enabled Croatian men to publicly retain their honor and their face since public admission would have required an admission of male weaknesses.34 The

Yugoslav wars of the 1990s, transformed the individual body into the social body as seen in genocidal rapes, ethnic cleansing, and purifying of the bloodlines. Further, medical, religious, and government institutions reinforced the wartime process by manipulating the individual body into the body politic, therefore, controlling and defining “human/life” and the political uses of rape in order to entice Western military intervention. As seen throughout the conflict, rape both created and punished ethnic “Otherness.”35

As mentioned earlier, ideas of “ethnic purity” pervaded the Yugoslav republics before and during

the wars as notions of ethnic cleansing surfaced in the form of minority exclusion and expulsion, torture,

and war rapes. The Bosnian Serbs created the Republika Srpska with the idea of creating an ethnically pure Serbian enclave in northern and eastern Bosnia. The Croats attempted to do the same with the founding of the Croatian Community of Herceg-Bosna (Herceg/Herzegovina refers to the Croatian

portion of Bosnia) as well as within Croatia. As the war with the Serbs continued throughout the mid-

1990s, both the Bosnian Croats and Muslims began to fight together against the Serb forces. The

fighting between the Serbs and Bosnian Muslims was perhaps the heaviest and most reported in the

33 Ibid 34 Olujic 43 35 Nagengast 121 21 entire war. The Serbs were interested in creating an ethnically pure Republika Srpska for the Serbs, but large Muslim and Croatian minorities, especially in the cities, made it difficult for the Serbs to carve out homogenous ethnic entities. As a result, the army of the Republika Srpska began a policy of "ethnic cleansing" against Muslims and Croatians in what they considered to be Serb lands. This included sending the “inferior ethnicities” to Europe's first concentration camps since World War II (previously discussed) which were characterized by massive counts of rape and sexual assault against Muslim and

Croatian women and girls as well as mass executions of men and boys of military age. There was also heavy looting, torture, and widespread forced relocation. The brutality and scale of the fighting witnessed in the republics of the former Yugoslavia shocked many in the west. Though it should be added for the sake of fairness, that while most acts of ethnic cleansing were overwhelmingly committed by Serb forces, Croat and Muslim forces committed similar acts as well. In addition, this was not the first time that ethnic cleansing was practiced in the Balkans, with both the Croat Ustase and the Serb

Cetniks committing acts of ethnic cleansing during World War II. The nationalist governments of each republic, however, were not effective in dealing with the war in Yugoslavia as ethnic animosities of

World War II remained fresh enough for the nationalist leaders to stir the national fervor, therefore, the burden lay on the international community to come together in the interest of human and minority rights to initiate a domestic reaction to save the innocent lives of Croatian, Bosnian, and Serbian civilians.

IV. International Pressures for Change in Tuđman’s Post-War Croatia (Up to 2000):

It was the ethnic “otherness” that fueled the Yugoslav wars and resulted in their description as Europe’s deadliest conflicts since World War II as they gained international attention for the war crimes they involved.

War crimes such as war rapes that were committed on all sides of the conflict in the beginning of the war in

1991 were not documented or discussed to avoid unwanted international attention and pressure. However, over time, dissent among torture victims as well as concerned citizens was too much for the international media and

22

peace-making bodies to ignore. The pressure for change and greater protection of innocent civilians, therefore,

came from international organizations and political bodies rather than originating in Croatia itself. In 1992, the

Vance Peace plan (approved by the United Nations Security Council) was signed by Croat, Bosnian, and Serb

parties, but refused by Bosnian-Serbs, created four UNPA zones for Serbs, ended the large scale fighting in

Croatia, and strengthened UN sanctions against the Bosnian-Serb entity. However, by 1995, Croatia launched

Operation Flash and Operation Storm, reclaiming all UNPA zones except for Eastern Slavonia, resulting in the

exodus of 250,000 Serbs from the zones. Shortly after, the violence in Croatia ended and the Dayton Peace

Accords (attended by Milošević, Tuđjman, and Bosnian President Alija Izetbegovič, and led by U.S. Secretary

of State Christopher Warren and EU Representatives Carl Bildt and Igor Ivanov) were signed in Paris. Often

described as Europe’s deadliest conflicts since World War II, the Yugoslav Wars were a series of violent

conflicts fought in the former Socialist Federal Republic of Yugoslavia between 1991 and 2001. These wars

have become infamous for the war crimes they involved, including mass ethnic cleansing, as they were the first

conflicts to be judged genocidal in character and many key individual participants were subsequently charged with war crimes. The primary reason for war in the former Yugoslavia as well as within the Republic of

Croatia, therefore, was displacement. People did not want to move, they were forced by the ethno-national

majority. The disintegration of the League of Communists of Yugoslavia (LCY) partnered with the waning

psychological attachment to the Socialism of Tito, forced men to realize they had nothing to gain and

everything to lose from a peaceful transition to a market-based economy and multi-party democracy. Slobodan

Milošević’s successful harnessing of the nationalist rhetoric emanating from Belgrade made Serbs “the key

secessionists” in the crisis and identifying the inflammatory rhetoric of Franjo Tuđjman and his Croatian

Democratic Union (HDZ) in the electoral campaign of 1990 as the Croatian counterpart to Milošević’s

initiatives, the subsequent transformation of Croatia’s police force into an army under the Defense Minister

23

Martin Špegelj, a former JNA officer, and the flood of arms imported with émigré funding and assistance all contributed to making the crisis more explosive.36

Though rather distant in the beginning, the international community played a role in mediating the ethnic conflict as it progressed and violence escalated. Between 1992 and 1995 six peace blueprints were put on the table: the Carrington-Cutiliero plan of March 1992, the Vance-Owen plan of April 1993, the Stoltenberg-

Owen plan of 1993, the European Union action plan of Fall 1993, the Contact Group plan of July 1994, and the

US-led plan of Summer-Fall 1995. All of these peace plans have had their share of criticism for allegedly rewarding “aggression” and for allegedly condoning ethnic cleansing.”37 Overall, internationally constructed or mediated negotiations included such things as: all parties should cease fighting; non-recognition of advantages gained by force; all parties should actively engage in negotiations; a demonstrated respect for the highest standards of individual rights and fundamental freedoms in a democratic society; implementation of constitutional guarantees of human rights and fundamental freedoms; total condemnation of attempts to change ethnic composition of populations; compliance by all parties with international humanitarian law; and respect for the independence, sovereignty, and territorial integrity of all states in the region.38 Over the past decade, these peace treaties have functioned within the realm of international influence and international customary law to affect the peace process in Croatia with respect to human and minority rights.

Though Croatian history will forever be tainted by the violent abuses of human and minority rights through the implementation of bureaucratic ethnic cleansing, modern-day Croatia has made great strides toward respecting and upholding international customary law on human and minority rights. The peace agreements drafted under the auspices of the International Conference in the Former Yugoslavia have included some of the most extensive and far-reaching provisions on human rights to be found in any peace agreement ever. These have included direct application of over twenty international human rights instruments in the domestic legal

36 Stokes 147 37 Human Rights in Peace Negotiations 251 38 Ibid 252 24

order, the establishment of ombudspersons, constitutional courts, human rights courts, and international human rights monitoring missions.39 This conference in itself points to Croatia’s willingness to comply with

international customary law with respect to human and minority rights. The country’s willingness, however, as

an individual country separate from the other republics of the former Yugoslavia, is best demonstrated by the

Republic of Croatia’s compliance with the International Criminal Tribunal for the former Yugoslavia (ICTY) as

well as the Dayton Peace Agreement.

V. The Croatian Path to Human Rights (Since 2000):

International Criminal Tribunal for the Former Yugoslavia

While the violence in Yugoslavia ended, there were questions as to how firm the peace would be. The

process of going from brutal ethnic conflict to being a fully functioning state would not be an easy task, to be

sure. The several internationally negotiated peace treaties had indeed been successful in keeping the peace and

ending violence, but many other factors would prove critical in determining the long-term peace and stability of

Croatia and the former Yugoslavia as a whole. One factor that had to be dealt with was the issue of prosecuting

war criminals. With the creation of the ICTY in 1993, an inextricable link was formed between peace and legal

accountability. Court judgments that put an end to impunity contribute to democracy and the rule of law within

the various republics of the former Yugoslavia; however, the addition of international justice to the ICTY’s

protocols would be a useful tool for peacekeeping and peace building. The goal of the ICTY is to use available

legal punishments to create broader political impact on security, reconciliation, and peace. Although more than

a decade has passed since it was established and greater progress was originally predicted, it arguably takes

many years and generations to discern changes that would symbolize genuine peace or a shift in prominent

political culture. The ICTY’s influence in Croatia is indirect and operates through its close relationships with

other international actors. Its influence, therefore, comes from its ability to help set the international

community’s agenda toward Croatian affairs, to provide information and legal expertise related to war crimes,

39 Human Rights in Peace Negotiations 249 25

and, most importantly, to enlist other more powerful international actors to its cause.40 Rather than being

irrelevant in Croatia’s quest for EU membership, the court plays a critical role in the network of governments,

regional organizations, and NGOs committed to peace building in the region and its benefit comes from its

ability to persuade, pressure, and gain leverage over more powerful organizations and governments. Although

the ICTY has little economic power or direct coercive capacity, it nevertheless plays an important role in

keeping the international community focused on Croatian legal justice issues and its presence encourages other

international actors to broaden their narrow agendas and embrace the court’s mission.

Because of its role in Europe’s networked order, there is much evidence for the court’s indirect

influence on outcomes within Croatia and surrounding regions. Regardless of the country or sector,

Europeanization- or the emergence and development at the European level of distinct structures of governance-

has led to distinct and identifiable changes in both member and nonmember states. External factors, such as the

ICTY, are successful when domestic liberal reformers have interests that coincide with those of the international community as well as when the strategies used by the EU are clear and directly linked to rewards or punishment.41 In Croatia, this network of distinct and identifiable change include most notably the EU and its

strategy of membership conditionality; however, its efforts were reinforced and supplemented by the United

States government as well as other intergovernmental and nongovernmental organizations within the international arena. The year 1993 provides an apt starting point for understanding these overlapping, networked relationships, as that was when both the ICTY was established and the EU developed explicit political and economic criteria for future EU members. The Copenhagen Criteria included political, economic, and legal conditions that were required for future EU members and a comprehensive accession strategy to ensure that while EU membership would be withheld, benefits and rewards were appropriately doled out to ensure positive change.

40 McMahon/Forsythe 426 41 McMahon/Forsythe 427 26

Definitions of EU Membership: The Copenhagen Criteria

In 1993, at the Copenhagen European Council, the Union took a decisive step towards the fifth enlargement, agreeing that the “associated countries in Central and Eastern Europe that so desire shall become members of the European Union.”42 Enlargement, therefore, was no longer a question of “if” but “when.”

Concerning the timing, the European Union has stated that accession will take place as soon as an associated country is able to assume the obligations of membership by satisfying the economic and political conditions required. The largest part of the negotiation process is the implementation of the acquis communitaire which is organized into thirty-one “chapters,” or categories, and includes the enormous body of European Union law accumulated since the 1950s.43 As set forth in 1993, the first level of accession, known as the “Copenhagen

Criteria” requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and the respect for and protection of minorities; the existence of a functioning market economy; as well as the capacity to cope with competitive pressures and market forces within the Union.

Membership also presupposes the candidate country’s ability to take on the obligations of membership including adherence to the aims of political, economic, and monetary union.44

Overall, membership in the European Union requires many aspects of compliance; however, the most important aspect for Croatia is that it greatly improves its protection of human and minority rights. In requiring this, the EU assumes an acceding member comply with the European Convention on Human Rights (ECHR), as the EU has integrated the ECHR’s regulations within its own.45 The members of national minorities (as witnessed in Croatia), must, therefore, be able to maintain their distinctive culture and practices, including their language (as far as not contrary to the human rights of other people, nor to democratic procedures and rule of law), without suffering any discrimination in order to comply with the requirements of the ECHR and,

42 Schroth/Bostan 627 43 Ibid 44 Schroth/Bostan 631 45 Schroth/Bostan 627 27

therefore, proceed with the accession process into the EU. All of these aspects of the Union and many more

highlight the positive affect that accession and the granting of full-membership status would have on the

Republic of Croatia as it would function to ensure Croatia’s continued path to compliance with international

customary law on Human rights.

More than any of the other Balkan countries, tangible success has been witnessed in Croatia. In 1997,

after months of negotiations between Croatia and the United States, during which the US government indicated

that it would block crucial IMF and World Bank loans to Croatia, ten Bosnian Croats surrendered themselves to

the ICTY. With considerable success leveraging behavior in Central European countries, the EU rewarded

some of the Balkan progress, such as that witnessed in Croatia, and established a similar accession process with the Balkan countries by 1999. The Stabilization and Association Process (SAP) guidelines- while more generous with market access and financial assistance than similar agreements had been with countries in Central

Europe- included tougher political criteria. Specifically, Balkan states not only had to make visible progress in

fulfilling the Copenhagen criteria, but they were required to cooperate with the ICTY. In successive reports

beginning in 2002, the EU made the ICTY’s mission a priority and emphasized the region’s need to respect its

international obligations in this area, lest it become an obstacle to integration.46 By 2003, Croatia had progressed so much that it signed the Stabilization and Association Agreement (SAA) with the EU and applied for membership, though EU officials insisted that despite Croatia’s ability to fulfill economic criteria, it needed

to continue to improve its record on war crimes. By April 2004, the EU Commission’s Opinion on Croatia’s

application for membership was positive, noticeably stressing the ICTY Prosecutor’s declaration that Croatia

was “now cooperating fully with the ICTY.” Though still mindful of important international justice concerns,

the EU rewarded Croatia by agreeing to open accession negotiations. The EU’s strategy of membership

conditionality to pressure Croatia to abide by its commitments to the ICTY was similar to the strategies used by

other international actors seeking peace and political change in the region and forced other international actors

46 McMahon/Forsythe 429 28

to broaden their agendas. In 2004, for example, NATO reached out to Balkan countries, hoping they could

meet the requirements for its Partnership in Peace (PIP) Program. However, in addition to previously defined

political and economic criterion, NATO added that the Balkan countries needed to abide by ICTY demands.

Similarly, the Council of Europe has closely monitored the cooperation of the former Yugoslav states with the

ICTY, issuing regular reports that address the countries’ responses to the ICTY and has retained its commitment to the ICTY’s mission as Croatia has become more enmeshed in European laws and practices.47

By 2005, the EU’s Enlargement Commissioner, Olli Rehn, openly stated the Commission’s support for the ICTY, saying that the region “has finally made significant progress in cooperating with the Hague

Tribunal…accession negotiations proper cannot even be considered until the country has achieved full cooperation with the ICTY.”48 As the European Commissioner for Enlargement explained, “I am very pleased that Croatia has responded positively to the need to fully cooperate with the Tribunal…it goes without saying

that Croatia must maintain this degree of cooperation with the Tribunal leading to the resolution of one

remaining issue, namely, the location, arrest, and transfer of General Ante Gotovina to The Hague.”49 Though

Croatia’s conservative Prime Minister, Ivica Račan in 2001 had sworn not to hand over any indicted war criminals, after this explicit signal and warning from the EU, he authorized the country’s chief public prosecutor to lead a more aggressive investigation of General Gotovina, and within two months, the Croatian general was arrested in the Canary Islands.50 Almost immediately, the EU opened membership talks with Croatia, therefore, reassuring the country that the EU does follow through on its promises.

The ICTY has had only a little over a decade to achieve multiple and ambitious goals. There have been notable achievements as well as setbacks, however, in this network pushing for change in Croatia, other international actors, namely the EU, the US, and NATO have worked alongside the ICTY to support its mission

47 McMahon/Forsythe 431 48 Ibid 49 McMahon/Forsythe 432 50 Ibid 29

and its efforts to carry out legal justice. Because these other, more powerful stakeholders in the international

arena adopted the ICTY’s mission and made their relationships with Croatia conditional upon Zagreb’s

cooperation with the ICTY, the court has indirectly shaped domestic discourse and outcomes. It might be

argued that the EU and the US could have done more in this regard, but the fact remains that these two actors in particular did bring about attention to ICTY dictates.

“The punishment of war crimes in the former Yugoslavia is indeed ‘a critical juncture for the New

World Order’ which calls for historic vision, political courage, and moral leadership.”51 In its diplomatic and

political interchanges with other states of the EU, Croatia has shown recognition of an international obligation

to investigate and prosecute human rights violations as seen in war crimes. Croatia’s compliance, therefore,

with the ICTY represents an institutionalization of the demand for justice which, perhaps inadvertently, has

become an integral part of the peace process and accession process to the EU. The Tribunal has proven to have

an important role in the process of interethnic reconciliation in the former Yugoslavia by absolving groups of

collective guilt, therefore, countering the campaign of ethnic hatred and violence which was the root of the war.

“Truth is the cornerstone of the rule of law, and it will point toward individuals, not peoples, as perpetrators of

war crimes. And it is only the truth that can cleanse the ethnic and religious hatreds and begin the healing

process [in Croatia]” noted one United States Representative of the Tribunal. 52 Through compliance with the

Tribunal, the prosecution of Croatian war criminals, especially those in positions of leadership, has helped to

eliminate national extremists (who have a vested interest in exacerbating interethnic tensions) and has,

therefore, helped strengthen the position of constructive political forces committed to democratic pluralism

within Croatia. Therefore, Croatia has proven that the Tribunal is necessary not only for justice to be done, but

also to “prevent the emergence of a culture of impunity…which leaves victims and their children with a feeling

51 Akhavan 261 52 Akhavan 264 30 that if any justice is to be done they have to seek it themselves, thus sowing the wind which will possibly yield another whirlwind of war.”53

Polarization of Croatian Politics: Compliance with the ICTY

Croatia made considerable gains following the end of armed violence. The death of Tuđjman in 1999 was a clear turning point for Croatia, as civil and political rights had been limited under his rule, corruption was rampant, and the economy was a mess. However, no issue has polarized the post-authoritarian Croatian political scene as much as the issue of cooperation with the International Criminal Tribunal for the Former

Yugoslavia (ICTY). Although the pro-Western regime that came into power in January 2000 promised to reverse anti-ICTY policies of its nationalist and authoritarian predecessor, it soon became clear that such cooperation was easier promised than delivered. Domestic political battles over whether and how much to cooperate with the United Nations tribunal based in The Hague were intense, often dominating the media and at times sparking street demonstrations. The viability of Croatia’s governing coalition and the fledgling party system was tested frequently on the tribunal issue. Within the ruling coalition, unity gave way to internecine conflict over the terms of government policy toward the tribunal. Historically, United Nations ad hoc criminal tribunals have been highly dependent on domestic political dynamics to fulfill their mandates to prosecute violations of international humanitarian law. International justice (the ultimate goal of past tribunals), therefore, cannot be achieved without domestic cooperation because the tribunals lacked the enforcement powers to compel state compliance with court orders. The issue of cooperation- and the challenges it poses to stability and democratization in the former Yugoslavia and to the ICTY’s struggle for institutional survival- has been and will continue to be volatile as long as the tribunal exists. The historically strong domestic resistance to cooperation in the Balkans underlies the challenge confronting both the ad hoc criminal tribunal and the permanent International Criminal Court: how to institutionalize a system of international tribunals in which

53 Akhavan 281 31 neither the winners nor the losers of the Yugoslav wars are immune from standing trial for atrocities committed during battle.54

Within the Post-Tudjman Croatia, nationalist groups raised the political costs of cooperation with the

ICTY by effectively designing a rhetorical strategy which equated the tribunal’s indictments against Croatia’s war heroes with attacks on the dignity and legitimacy of the so-called Homeland War (domovinski rat) fought on Croatia’s territory against breakaway Serbs between 1991 and 1995. By extension, the nationalists argued that the indictments attacked the legitimacy of the country’s recently won independence and claimed that the tribunal’s indictments of Croatians had the effect of equating guilt of Croatians and Serbs which, to most

Croats, was reprehensible since Serbs were the perceived aggressors in the Homeland War. The raison d’être of the ad hoc international criminal tribunal is to obtain justice by persecuting individuals, not nations. The nationalists’ ability to frame the domestic debate around ICTY indictments and the cooperation issue more generally was fueled by the government’s fear of being seen as a willing accomplice of the tribunal. This historically rooted fear appears to have been magnified recently in the context of falling living standards, rising unemployment, and the coalition government’s declining popularity.55 The Croatian government, therefore, is currently caught between competing pressures of nationalists who oppose cooperation and members of the international community that have made Croatia’s entry into Western organizations (such as the European

Union) conditional upon increased cooperation with the ICTY.

Croatia’s role in the Balkan wars of the 1990s has largely been overshadowed both in Western headlines and in Western academic inquiries by the attention paid to the atrocities and ethnic cleansing campaigns committed by Serb forces first in Croatia, then in Bosnia, and finally in Kosovo. Not surprisingly, there was significantly less international scrutiny of Croatia’s cooperation with the ICTY, until Croatia’s obtainment of potential membership status within the European Union. Given the severity of the Bosnian Muslims’ suffering

54 Peskin/Boduszynski 1117 55 Peskin/Boduszynski 1118 32

and the extent of Serbian war crimes, Croatia does not stand out as a victim or as a victimizer, however, the

Croatian case is unique in the Balkan context and worthy of scrutiny precisely because it was both a victim and

a victimizer as well as a victor in its war of independence. At the beginning of the war, Serb forces inflicted

great suffering at Vukovar, Dubrovnik, and other frontline towns.56 At the end of the war, Croatian forces

involved in military actions to reclaim lost territory are accused of carrying out war crimes against Serbs,

including the murder of elderly citizens and the bureaucratically forced ethnic cleansing of Serbs. As both

victim and victor, Croatia has long had an ambivalent attitude toward the Tribunal. The government supported

the creation of the Tribunal and has pressured the court to prosecute Serbs for crimes against Croats, but has

also lobbied for immunity when the Tribunal has turned its attention to Croatian war crimes against Serbs.

In establishing the ICTY, the Security Council granted the Tribunal sweeping legal authority to pursue

the war crimes prosecutions that they deemed necessary to bring the key perpetrators to justice for the mass

atrocities that occurred during this time in the former Yugoslavia. The legal supremacy of the tribunals has

been the source of long-running political and philosophical conflicts with the state, as much of the conflict has

centered on state efforts to block indictments and members of their own national or ethnic groups.57 It was even difficult to bring very prominent cases to trial in the beginning because government obstruction and the dangers of the on-going war in Bosnia posed many political and logistical obstacles for investigators and forensic teams that exhumed mass graves. The importance of state cooperation, therefore, cannot be overstated. From gaining access to crime scenes and national archives, to conducting forensic investigations, to establishing liaison offices, to interviewing witnesses and making arrests, state cooperation is crucial to the survival of the Tribunal.

The ICTY, nevertheless, has made significant progress and has slowly filled some of its docket with higher-level accused, including Slobodan Milošević and former Bosnian Serb President Biljana Plavšić. In the process, the ICTY has increasingly gained international prominence even as it is widely reviled in much of

56 Ibid 57 Peskin/Boduszynski 1120 33

Croatia, Serbia, and Republika Srpska. Croatia, however, has taken the important step of cooperating with the international tribunal in The Hague and has arrested a number of generals associated with the massacres and bureaucratic ethnic cleansing of Serbs and Muslims. The crucial role, however, of the US and Western political and economic pressure in the success of many cases underlies the ICTY’s continuing dependence on international actors and the way state cooperation is often reduced to a financial transaction. The cooperation of

NATO peacekeeping troops in arresting war crimes suspects in Bosnia-Herzegovina has been a major reason why the ICTY’s three courtrooms are now in constant use. The Dayton Peace Accords, which further obligated

Serbia, Croatia, and Bosnia-Herzegovina to cooperate with the tribunal, gave the NATO forces authority to arrest war crimes suspects indicted by the ICTY. However, whereas Bosnia’s sovereignty was greatly constrained by the presence of NATO troops and the role of the High Representative who acts as the de facto ruler of that divided country, Croatia and Serbia remained sovereign states with no international peacekeeping force on their soil. In the current international political environment, therefore, eliciting cooperation with ICTY protocols from the Croatian and Serbian governments involves exerting political and economic pressure instead of relying solely on an international police force.

The Dayton Peace Accords

As previously discussed, throughout the wars there were several attempts to negotiate some sort of peace agreement between all sides of the conflict. While there was some success in negotiating agreements between the Croats and Serbs and the Croats and Muslims, negotiating peace between the Serbs and Muslims was considerably more difficult. Therefore, for Western politics, ending the war became vital to secure peace in

Europe. There had long been the perception that the West was not doing enough to end the fighting and early assessments of the effectiveness of the ICTY were less than satisfactory, so eventually it became politically beneficial to Western leaders to hammer out some sort of agreement. The end result of these efforts was the

Dayton Peace Accords which were signed in December 1995 and included the ICTY as an “essential aspect” of

34 peace implementation. The Dayton Agreement aimed to reverse the consequences of ethno-nationalism and create a single, multiethnic country. To all who were citizens of the Croatian republic in March 1991, the agreement gave those individuals the right to return to their prewar homes or be compensated. The agreement also obliged the signatories to cooperate with the International Criminal Tribunal for the Former Yugoslavia by arresting indicted war criminals and extraditing them to The Hague.58 A growing number of the former states of Yugoslavia, Croatia included, seem willing to pursue sustained, if modest, international human rights initiatives. For example, the United States continues to press Bosnia, Croatia, and Serbia on issues such as press freedom and political participation as well as specific human rights undertakings in the Dayton Accords in a step to further advance fundamental freedoms within those countries.59 Overall, Croatia’s incorporation of human rights into the regulative norms of international society through both the ICTY and the Dayton Accords represents moral progress on the part of the citizens and the government as well as a sign of readiness to assume the status of full-membership in the European Union.

While the Dayton Accords undoubtedly ended the fighting and preserved the ceasefire within the country, many have agreed that the state and the peace were only upheld by foreign intervention and support.

The threatened cutoff of economic aid and the use of cooperation as a litmus test for integration into European institutions, therefore, prove to be important weapons in the cooperation struggle. The Dayton Accords and the

ICTY itself cannot actually force a state to cooperate, but it can increase the likelihood of cooperation through cultivating key international allies and using the international media, speeches, and reports to the United

Nations to shame an uncooperative state.60 Its assistance to tribunal investigators and prosecutors notwithstanding, the Croatian government has appeared increasingly hesitant to comply with its international legal obligations when it has come to the biggest test of cooperation- the arrest of indicted war crimes suspects and their transfer to The Hague. This is partly due to powerful anti-cooperation groups in Croatia. The decisive

58 Woodward 760 59 Donnelly 19 60 Ibid 35 electoral victory that swept democratic leaders into power in 2000 did not remove the nationalist right-wing parties from the political landscape. Nor did it undercut the right wing’s ability to mobilize around defending the sanctity of Croatia’s war of succession by protesting against the ICTY’s indictments of several Croatian generals who have become national heroes for their role in the Homeland War.61 While the right wing no longer enjoys a majority in parliament, the domestic battles over cooperation have helped to revive its political strength and relevance.

The Domestic Campaign for Justice

Following Tuđjman’s death, the new democratic Croatian government had the task of confronting the moral and political question of whether and how to face the crimes of the authoritarian regime recently removed from power. For some elements of society, prosecutions were seen both as a moral imperative and as a precondition for building a democratic political culture. Prosecuting human rights abuses, it was argued, would bolster a country’s nascent democracy by strengthening the rule of law and deterring future human rights abuses that would undermine the fragile democratization process and provoke the former authoritarian leaders to overthrow the new government. For the new government, the campaign for justice, led by relatives of victims and human rights organizations, had to be balanced against the potential of a right-wing backlash and the need for stability. Although the authoritarian leaders were no longer in power, they still held varying degrees of influence over the military and the political process and, therefore, often posed significant threats to the new democratic government. In Croatia’s case, cooperation with the ICTY tribunal can either implicate the government positively (in the eyes of the victims, the cooperation would signal a time for change) as a partner or negatively as a collaborator (in the eyes of nationalists, the collaboration would defeat the decades-long notion of a pure Croatia) in the project of international justice.

The Croatian case differs in several key respects from domestic transitional justice cases as witnessed in countries such as South Africa and Argentina, which abandoned apartheid policies and overcame military

61 Peskin/Boduszynski 1121 36

dictatorships, respectively. First, the transition from authoritarian rule in Croatia differed markedly from most

Third Wave countries. Croatia underwent two phases of regime transition: the first in 1990, when the electorate voted the authoritarian and nationalist HDZ (Hrvatska Demokratska Zajednica, Croatian Democratic Union) into power, and the second in 2000, when the electorate voted out the HDZ and voted in a pro-democratic pro-

Western coalition. However, while the authoritarian forces in Croatia were displaced from power, they still pose a threat to the government. This threat is not so much in rebellion from the barracks- as was the case in

Argentina- but in the ability of nationalists to spark internal turmoil that might bring down the government.62

Secondly, Croatia, unlike some other Third Wave cases, did not exhibit a strong civil society-based campaign for prosecutions. The impetus for prosecutions would come externally in the form of ICTY indictments and in international pressure on Croatia to conduct domestic war crimes trials. Indeed, beside the lone voices of several small human rights organizations and a few bold politicians, such as President Stjepan

Mesić, there is no vocal domestic constituency in Croatia actively mobilizing in support of the ICTY or domestic war crimes prosecutions. The lack of a formidable domestic drive for war crimes prosecutions can be explained in part by the fact that the victims of Croatian war crimes are not Croats living within the borders of the state, but are rather Serbs who were forced out of the country at the end of the war in August 1995.63 In the

Croatian case, many aggrieved Serbs live outside the country and are essentially powerless to have their calls for justice heard in Zagreb.

Another factor that explains the absence of a strong domestic campaign for justice lies in the nature of

Croatia’s Homeland War (1991-1995), which pitted the young Croatian state against breakaway Croatian Serbs in their self-declared state, the Republika Srpska Krajina, and their temporary allies, the Serb-dominated

Yugoslav National Army (JNA). The Homeland War culminated in two major military campaigns in 1995-

Operations Flash and Storm- that won back territories lost to Serb forces in 1991. The Croatian government

62 Peskin/Boduszynski 1123 63 Ibid 37 came to see its “war of succession and independence” as a clean series of battles waged against an external enemy (the Serbs) and a crucial step in the consolidation of an independent Croatian state. In the words of

Franjo Tuđjman, the victory over the Serbs and the regaining of territory lost at the start of the war represented the culmination of the Croats’ “thousand year old dream.”64 As current trends have demonstrated, Croatian nationalists have been able to use the memory of the Homeland War and the struggle for independence the war represents as crucial sources of legitimacy. Therein lays the ability of the nationalists to exploit the symbols of this war in order to challenge both the legitimacy of the ICTY indictments against Croatian officials and the tribunal itself.

A New Spirit of Cooperation

The dawn of the new millennium ushered in a new political reality in Croatian politics. The political landscape changed dramatically within only a few weeks following Tudjman’s death in December 1999. On

January 3rd, 2000 the HDZ was dealt a resounding defeat in parliamentary elections, though it was still able to win 46 out of 151 seats in the parliament. A new center-left coalition of six parties led by reformed Communist

Ivica Račan and his Communist successor SDP (Social Democratic Party) took over and promised to reverse the anti-democratic and anti-Western policies of its predecessor. A month later, pro-democratic forces prevailed in the Presidential election with the victory of Stjepan Mesić, also a former high-ranking Communist and an early defector from the HDZ’s ranks. The new Prime Minister and President campaigned on a platform of leading

Croatia out of the economic malaise and international isolation of the Tuđjman era by forging closer ties with the West and hastening the country’s entry into Europe’s economic and political institutions.

The new government’s rapprochement with the West entailed changing state policy in a number of areas, including speeding the return of Serbian refugees expelled from Croatia during the war and increasing cooperation with the ICTY. The government permitted the ICTY to establish a liaison office in Zagreb, transferred Bosnian Croat war crimes suspect Mladen Naletilić to The Hague, and approved a declaration that

64 Ibid 38 recognized the ICTY’s jurisdiction over Operations Flash and Storm.65 Perhaps more important than any one move was the forthcoming spirit among government leaders toward the ICTY, yet, even with a mandate for change, the new government moved cautiously on the ICTY issue, initially balking, for instance, at handing over Naletilić, even though Tuđjman had already made the decision to do so in 1999. In the wake of the reformists’ electoral victory, public opinion seemed to back the government’s pro-cooperation stance. Despite widespread anger in Croatia following the conviction and 45 year sentence handed down to Bosnian Croat general Tihomir Blaškić (at the time it was the heaviest sentence handed down by ICTY judges), polls indicated that a majority of Croatians favored continued cooperation.

The ICTY indictments of the Croatian generals raise the uncomfortable question that the Homeland War was not the cleanly fought, honorable battle portrayed by former government leaders. In Croatia, accusing the tribunal of casting collective guilt has paid handsome dividends to nationalist forces both during and after the

Tuđjman regime. Each new ICTY indictment provides another opportunity for the nationalists to reassert themselves as the defenders of Croatia’s national sovereignty by portraying the tribunal as a foreign aggressor that, as Croatian Army General Janko Bobetko said, “seeks to erase our history, condemn our freedom, and remove from our memories the proud days of a struggle for a free Croatia.”66 The depth of national resistance to war crimes prosecutions throughout the former Yugoslavia underlines the importance of creating an international institution such as the ICTY that has the fortitude to hand down controversial indictments. The

UN Security Council established the Tribunal as an independent institution with a mandate to uncover atrocities and indict those responsible, regardless of whether they were on the losing or winning side of a war. Both the

Tribunal and government, however, are arguably bound together for better or worse in each other’s political realities. In this sense, the Tribunal is both a cause of political turmoil in Croatia and also the target of political pressure by Croatian officials. Although the Tribunal’s lack of enforcement powers renders it weak and

65 Peskin/Boduszynski 1125 66 Peskin/Boduszynski 1135 39 dependent on states, it nevertheless has become a prominent actor in Croatia, Serbia, and elsewhere in the former Yugoslavia and thus cannot be ignored. The tribunal has affected the reformist government’s fragile hold on power and the future of democratization in Croatia. At certain moments of heightened crisis, there may be merit in the tribunal displaying some sensitivity to Croatia’s internal political dynamics, to enable the tribunal to remain in the best possible position to obtain future cooperation as well as to bolster the fragile democratic regime.

VI. Lessons From Croatian Success:

Since 1945, state-sponsored violence toward ethnic and political groups has caused more deaths, injuries, and general human suffering than “all other forms of deadly conflict, including international wars and colonial and civil wars.”67 Other costs are incalculable including: the extinction of languages, cultures and ways of life; destruction of ethnographic and historical treasures; and loss or damage to residences, industry, and commerce. Due to this phenomenon and in the eyes of the European Union, no stable European order is possible without solving the problems of minorities and excessive nationalism. From the Treaty of Westphalia in 1648 to the 1919 Versailles Peace Conference to the Post-Cold War adoption of the 1990 Charter of Paris for a New Europe (Paris Charter), European initiatives have led the international system in constructing minority protection schemes. The imperative of establishing legal frameworks to promote the peaceful coexistence of distinct communities- differentiated traditionally by religious and ethno-cultural traits- within the same polity has become particularly acute in Europe, given the inextricable mix of ethno-cultural communities dotting the continent’s political landscape.68

History, therefore, has proven that increasing and establishing minority standards within European regional organizations is of the utmost priority. The Council of Europe (COE) adopted the Vienna Declaration in 1993, calling for the adoption of legal instruments for protecting national minorities, the 1992 European

67 Nagengast 126 68 Thio 116 40

Charter for Regional and Minority Languages, and the 1995 Framework Convention for the Protection of

National Minorities (FCNM) all of which embodied the first legally binding multilateral minorities’

instruments. Together with OSCE authored minority standards, COE instruments embody a set of substantive

standards governing the treatment of minorities, as aspects of common European values.69 If granted membership status, Croatia would become a part of this standard and shared European values, therefore, ensuring the continuing progress the country has already made toward encompassing the democratic notion of fundamental freedoms and human and minority rights.

The European Union also seems interested in the protection of human and minority rights as a mechanism with which to avoid the “dangers of ethnic homogenization” that resulted in Croatia in the 1990s and threaten to return if accession is not achieved which could be viewed as a violation of human rights on

“European” soil. An example of the dangers of ethnic homogenization can be seen in the case of anthropologist, Tony Bringa, who says her “villagers [in a Croatian town] were still identifying themselves and each other as Catholic, Orthodox, and Muslim in the religious sense rather than Croat, Serb, and Muslim in the national sense [rather than in the ethnic sense] in the beginning of 1993.”70 They displayed a lively awareness

of their similarities as well as their differences. However, by April of 1993, nationalists from outside the village

were increasingly successful in insisting that separate, national identities were incompatible and mutually

threatening. By May of 1993, some Croatian villagers reacted to the exploitation of the pre-existing, but until

then relatively benign, awareness of difference and joined outsiders as “[the village’s entire] Muslim majority

[was] killed or expelled and their homes were destroyed.”71 In Bringa’s village, externally aggressive forces

crushed the community and nationalism simplified the village’s multiple established identities. This example

provides a sobering and cautionary tale of the dangers of ethnic homogenization and highlights the “ambiguous

and multifaceted nature of identity and of the disastrous consequences of insisting (or ‘imagining’) that ethno-

69 Thio 118 70 Stokes 157 71 Stokes 156 41

national identities must be homogenous.”72 Therefore, the European Union has recognized that it is in its best

interest to emphasize the protection of human and minority rights so as to avoid the dangers of ethnic homogenization that were witnessed in Croatia in the 1990s since, like the former Yugoslavia, the EU is comprised of diverse, multi-ethnic groups.

An Improved Record of Compliance

The geographic convergence of the Roman Catholic, Eastern Orthodox, and Muslim faiths, the policies

of Tito, the League of Communists of Yugoslavia (LCY) and the activities of the various churches during the

Second World War, the dissolution of Yugoslavia, and the most recent civil conflict all contributed to the

nationalization of religion in the various republics of the former Yugoslavia. Croatia, then, is a society in which religious lines have converged with ethnicity. In combination, the historic role of the churches, the policies of the Communist regime, and overt conflict between ethnic groups with different religious traditions provided an ideal setting for religion- viewed as a divine consoler and healer- to be utilized as the ultimate and necessary

weapon for destruction and killing.73 Given its atrocity-ridden history and rough political path, the modern

Croatia should be viewed through a rather extraordinary lens in terms of the development of and compliance

with peace treaties in recognition of the ceasefire between the participating parties of the ethnic wars of the

1990s as well as international customary law on Human Rights. In the opinion of influential international

institutions, including the Council of Europe (COE), Croatia has overwhelmingly improved its record of

compliance within both the international and domestic sectors of governance as examples abound within the

blossoming potential EU member-state.74 Three so-called Local Democracy Agencies (LDAs) under the

Council of Europe’s auspices are functioning in Croatia today. These LDAs assist refugees and displaced

persons, help reconstruct public services, and provide training for locally-elected representatives and

administrators. Throughout the past decade, the measures Croatian officials had implemented included:

72 Stokes 157 73 Schroth/Bostan 632 74 Jordan 675 42

facilitating the return of thousands of Serb refugees; moving toward democratic governance with the

introduction of fair and open elections and the rule of law; adopting a constitution that supports democratic

institutions and protects basic civil liberties and minority rights; adopting new, more liberal laws on minority

languages and education and on limiting police surveillance over civilians; and Croatian nongovernmental

organizations have gained the freedom to register voters, educate the public, and supervise elections.75

In addition to acknowledging Croatia’s improved record of compliance, the Council of Europe has

commended it for cooperating with the International Criminal Tribunal for the former Yugoslavia (ICTY). For example, in March 2000, Croatian authorities allowed Bosnian-Croat war crimes suspect Mladen Naletilić to be

transferred to the ICTY for indictment. One month later, the government allowed ICTY representatives to

investigate the site of an alleged massacre of Serbian civilians in Gospić, Croatia in 1991. In addition to its

membership in the Council of Europe, Croatia was awarded membership to the OSCE, NATO’s Partnership for

Peace (2000), and the World Trade Organization (2000). In April 2000, the United Nations’ Commission on

Human Rights voted to drop Croatia from the mandate of its special rapporteur as long as progress continued.

Croatia later earned accolades for ratifying the Rome Statute of the International Criminal Court (ICC) in May

2001. It was the first country in Eastern Europe to ratify the treaty (the Council and the EU both strongly back

the ICC).76

As well as satisfying aspects of various international organizations to further enter the world market and

participate in the global political scene, Croatia has rectified many of its human and minority rights abuses that

plagued the ethnically exploited nation for years. The peace agreements drafted under the auspices of the

International Conference on the former Yugoslavia have included some of the most extensive and far-reaching

provisions on human rights to be found in any peace treaty ever. These have included the direct application of

over twenty international human rights instruments in the domestic legal order, the establishment of

75 Ibid 76 Ibid 43

ombudspersons, constitutional courts, and human rights courts, as well as international human rights monitoring

missions.77 Indeed, Croatia has come a long way, particularly in the realm of human and minority rights, since

the ethnic conflicts of the 1990s tore the former Yugoslavia apart and threatened the lives of Croatians, both ethnic and national. Croatia, however, was unable to succeed on its own and it was only through the influence of outside international institutions, such as the Council of Europe, that the now culturally flourishing country has been able to work toward remedying its past human and minority rights transgressions and contribute to the international community in a positive manner. If Croatia is to continue to make positive progress in the realm of human and minority rights within its heavily disputed borders (both ethnically and nationally defined), especially those violations which occurred during the “Homeland War,” accession to the European Union is both richly deserved as Croatia’s compliance with international customary law has demonstrated, and also mandatory as the international influence within the international customary law that is embedded within the pillars of the EU, its many treaties, and acquis communitaire will function to further encourage Croatia’s human and minority rights progress.

Inducing Compliance: The Role of International Institutions

A major development in the international human rights community in the last decade has been the push to make human rights an integral part of conflict prevention, peacemaking, and peacekeeping. The enforcement and management mechanisms available to the international community in defense of human rights have proven to be most effective when combined. The twinning of cooperative and coercive instruments in a “management enforcement ladder,” therefore, makes the European Union exceedingly effective in combating detected human rights violations which, in turn, reduces non-compliance to a temporal phenomenon.78 The EU’s combination

of enforcement and management strategies compared to other international regimes is that, in the EU, these

functions are operated by independent supranational institutions and empowered societal interests. The

77 Human Rights in Peace Negotiations 249 78 Tallberg 610 44

supranational organizational aspect serves the EU compliance system well, making it more effective in inducing

compliance than interstate systems, where enforcement and management functions are executed by the

signatories themselves and, therefore, may be deemed discriminatory. For cooperation to generate collective

benefits within the EU, enforcement is required to deter states (or in the EU’s case, member-states) from

shirking. Monitoring and sanctions, both utilized within the EU, constitute the two central elements of this

strategy. Monitoring increases transparency and exposes possible defectors whereas sanctions raise the costs of

shirking and make non-compliance a less attractive option.79 Together, monitoring and sanctions carry the

capacity of deterring defections and compelling compliance within the member-states. “In the EU, monitoring,

sanctions, capacity building, rule interpretation, and social pressure coexist as means for making states comply…these instruments are mutually reinforcing, demonstrating the merits of combining coercive and problem-solving strategies.”80 It is this aspect of the EU from which Croatia would most benefit following the

nation’s human rights abuses during the war.

Along with monitoring and sanctions in order to coerce compliance, EU institutions seek to compensate

for capacity deficiencies and provide positive inducements through a range of management measures for

acceding member-states which would make Croatia’s accession that much more comfortable. Four strategies

used to induce compliance are particularly prominent. First, the EU has sought to improve member-states’

ability to comply through a set of economic funds that ease and encourage adjustment to EU policy. Second,

the Commission negotiates transitional arrangements with states acceding to the EU to allow them additional

time to adjust to new behavioral requirements- a positive aspect for Croatia as it has continued to progress since

its accession application was presented on 21 February 2003.81 Third, the Commission seeks to close

knowledge gaps within, and promote trust between, national authorities charged with applying and enforcing

internal market rules. Fourth, the Commission issues interpretative guidelines in policy issues where rule

79 Tallberg 612 80 Tallberg 614 81 Scroth/Bostan 632 45

uncertainty has given rise to unnecessary non-compliance. Within these four “compliance strategies,” the

effectiveness of the EU’s compliance system is closely linked to provision of access, not only to states, but also to an international commission and private litigants. Individuals seeking redress in national courts for state

violations of European Commission law are central in making the EU’s decentralized compliance system work,

and contribute to the further development of European law when cases are referred to the European Court of

Justice (ECJ) for interpretation.

VII. Croatia’s Future Accession into the EU:

Croatia’s progress, as witnessed in compliance with the Tribunal, can only be effective if major donors,

such as the European Union, bilaterally or preferably through multilateral institutions, create conditions

whereby the benefits of cooperation outweigh the costs of defiance. In other words, it is essential to make the

cost of non-cooperation with the Tribunal so high that over time the burden of harboring indicted persons will

become unbearable. Applying membership conditionality to Croatia, therefore, is crucial as it promises to

produce policy change much more effectively than stand-alone socialization-based efforts and it can do so even

in the face of strong domestic opposition. Indeed, willingness to compromise depends less on the initial

position of policymakers, than on how much they want the reward. Therefore, as domestic opposition to the

Tribunal increases (as Human Rights Officer Predrag Živkovic predicts), it will become increasingly necessary

for international institutions to use membership conditionality to change Croatia’s behavior.82 An example

includes both Latvia and Estonia, two recently acceded members to the EU, who conceded on their language

laws in the late 1990s after the EU linked this to admission. In this case, conditionality motivated the actors

while socialization-based efforts guided them.83

EU citizenship is about expanding and enriching the notion of equality by extending its scope through

civil, political, and social rights. But citizenship is not only a legal status, defined by a set of rights and

82 Kelley 434 83 Kelley 453 46

responsibilities. It is also an identity, an expression of one’s membership in a political community. Viewing

citizenship as a shared identity within the EU would integrate the previously excluded Croatian minority groups

and provide a source of national unity. All member-states and their citizens within the EU do not share the

same language or the same ethnic and cultural origins. On the contrary, they are aware that they are a part of a

multicultural society. It has been argued that citizen’s public identities should take precedence over personal

identities in the sense that people will agree to continue to confine the pursuit of their personal conception of the

good within the bounds prescribed by the principles of justice.84 An overlapping consensus shared throughout a

federation such as the EU, emphasizes that international institutions should generate a shared citizenship

identity that will supersede rival identities based on, in the first place, national identities. A moral commitment,

therefore, to the EU federation by Croatia would positively consist of developing a sense of solidarity and

tolerance among its citizens to encourage the emergence of a new pan-national, shared citizenship identity, a

“sense of community.”

The European Union’s expansion process properly requires simultaneous progress in the areas of human

rights, democratic government, and control of corruption, rather than a balancing of one against another. A case

study of the former Yugoslav Republic of Croatia reveals a transformed country that is committed to the

transition process toward a veritable democracy, accepted by all European institutions.85 As demonstrated, targeting violators of human rights and bringing them to justice is essential. Accusation, however, comes more easily than making peace and, therefore, the role of the EU in the continuation of human and minority rights progress in Croatia is absolutely essential as it stands as a respected international institution with the hegemonic power to “softly” force compliance. The outdated peace treaties existing between the solely affected countries of the former Yugoslavia are not enough in a modern world dictated by international customary law. The

Croatian example affords important insights regarding the difficulties of ethno-political peace negotiations and

84 Lehning 249 85 Schroth/Bostan 710 47

particularly the complicated endgame of translating rough agreement into actual practice. As more such

agreements are implemented in various global trouble spots, often in the aftermath of tragic killing and

tragically delayed international response, impediments to peace implementation could indeed become one of the primary challenges of the new century.86

Croatia has worked tirelessly to both create and implement international customary law with regard for

human and minority rights, sending the message to the international community that the country is prepared to

assume responsibility for its tragic past and accede into the European Union as its final stage in forever

eclipsing bureaucratic ethnic cleansing. Croatia has both demonstrated and learned that “it is in the demand of

the oppressed for justice that we become most cognizant of our dignity as human beings. The power of the

human spirit reveals itself not in a state of ease and comfort, but rather in times of tribulations and darkness. In

struggling against the cruelty of the tormentor and the cynical indifference of the spectator, we fight for values

which transcend creed, culture, and time, and thereby affirm the essential oneness of the human race.”87 With this knowledge as it is embodied in international customary law on Human Rights, Croatia is prepared to enter the European Union.

Lessons Learned from the Croatian Case Study

Targeting violators of human rights and bringing them to justice, therefore, is an essential aspect of the

EU’s acquis communitaire and, therefore, of interest to Croatia. Accusation, however, comes more easily than making peace. The quest for justice for yesterday’s victims of atrocities should not be pursued in such a manner that makes today’s living the dead of tomorrow. That, for the human rights community, is one of the lessons learned from the former Yugoslavia and Croatia in particular. Thousands of people were ethnically cleansed who should be alive- because international moralists were in quest of the “perfect peace,” when really the victims needed the continual (rather than sporadic) recognition of atrocities and immediate assistance from

86 Pearson 276 87 Akhavan 285 48

(mostly Western) political bodies and organizations. Unfortunately, a perfect peace can rarely be attained in the aftermath of bloody conflict. The pursuit of criminals is one thing. Making peace is another.88 Great-power hegemony (or cooperation), such as that demonstrated in the existence of the European Union, is crucial for enabling the dramatic transition from a state of war to peace. Such a transition takes place especially in a region inhabited by newly liberalizing states, because liberal democracies are the most likely to achieve peace. In the stage of democratic transition, however, as is the case in Croatia, they still need the help of a stabilizing hegemon (or concert) which can be found in the institution of the EU as the former Yugoslav country works toward accession and full-membership status.89

Peace- the ultimate goal in Croatia following over a decade of ethnic strife- is a situation in which

expectations of stability are shared by the parties and that no resort to armed conflict is possible in the

foreseeable future in any likely scenario of government change among any of the parties or any conceivable

change in the international setting. There is no planning for the use of force against each other, and no

preparation of appropriate capabilities for war-fighting among them. Instead, institutionalized non-violent

procedures to resolve conflict are in place.90 A hegemon, such as the EU, has the power and prominence to

facilitate the regional developments which provide a solid basis for peace by: encouraging democratization in

regional states such as Croatia; promoting economic development and integration by providing financial

assistance in order to bolster the local economies and as a result also increase domestic and regional stability;

provide a security umbrella that will moderate the security dilemma and mutual suspicions by deploying military forces of the hegemon in the region, thus weakening the need of states for independent military forces.

Overall, such hegemonic presence as that offered in EU membership provides regional states like Croatia with a

window of opportunity to make progress in the domestic liberalization and regional reconciliation process, and

88 Human rights in Peace Negotiations 258 89 Miller 201 90 Miller 203 49

helps in constructing effective regional institutions which also enhance their economic interdependence, further reinforcing regional peace.91

In Europe, ideas of democracy as the highest form of political representation is confirmed by all the

major regional organizations including the Treaty on the European Union which provides in Article 6(1) that

“the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental

freedoms, and the rule of law.”92 Human rights represent a progressive expression of the important idea that

international legitimacy and full membership in international society must rest in part on standards of just,

humane, or civilized behavior. Despite the continuing split between national and international law embodied in

dominant conceptions of state sovereignty, the international society of states, including the EU, has come to

accept that global common humanity makes the way in which any state treats its citizens a legitimate concern of

other states, foreign nationals, and international society. Together with the treaties ratified by the members of

these states, foreign nationals, and international society, international customary law has generally become

accepted as a binding source of law governing the international community and internationally recognized human rights have become very much like a new international “standard of civilization.”93 A “moral standard”

has developed which underlies international order and suggests that there is some social cement which helps,

however tenuously, to affix a general sense that there is an international community, within which the EU is one

of the hegemons and through which Croatia strives to participate in the international political and economic

arena. Three sources suggest that there is an emerging obligation under international customary law to

investigate grave human rights violations and take action against those responsible: (1) the treaty provisions and

judicial decisions taken together; (2) state practice, including adherence to UN resolutions and state

representatives before international bodies; and (3) the law of state responsibility of injury to aliens, as updated

91 Miller 209 92 Wheatley 234 93 Donnelly 1 50

in light of human rights law.94 These sources suggest that serious progress is possible in key locations where

ethnic nastiness is immediately next to a powerful state or actor such as the EU that cares about the neighboring region and has huge leverage over the conflict.

The obligation to investigate grave human rights violations and take action against those responsible is

explicit or implicit in almost every major modern human rights-related instrument- the instrument within the

EU has become compliance with the ECHR. Through this repetition, the concepts of a right to a remedy and of

a state’s obligation to ensure rights are emerging as part of customary law in cases of fundamental, non-

derogable rights like the prohibitions on torture, disappearances, and summary executions.95 Within the formal

framework of the infringement procedure, enforcement and management processes serve to turn up the

pressure, making compliance an increasingly attractive option for member states of the EU. The escalation of

pressure and the shared interest to avoid costly and resource-consuming litigation provides for an environment

highly hospitable to bargaining between the European Commission and member states. The main form of dispute settlement used by the Commission is negotiation, and litigation is simply a part, sometimes inevitable but nevertheless generally a minor part, of this process.96 The implementation of and coordination between the

High Commissioner for National Minorities (HCNM) and the EU stands as an example of the increase in

international cooperation for and incorporation of human rights within international customary law. Given the

practical limitations to the HCNM, various strategies have been adopted to persuade state compliance with

OSCE state principles and to implement HCNM proposals.

Many new central and eastern European states where ethnic tension is acute- such as Croatia- desire to

be perceived as new democracies for the purpose of facilitating admission into European organizations and to

attract conditional financial assistance. The HCNM also appeals to the self-interest of these countries seeking

integration with a regional organization by stressing that respecting national minorities’ rights reflects that

94 Roht-Arriaza 489 95 Roht-Arriaza 491 96 Tallberg 617 51

country’s willingness and ability to meet its international commitments. The HCNM has cooperated with the

EU whose accession criteria requires respecting the same values that OSCE espouses such as promoting human

rights, democracy, and protecting national minorities. Therefore, as the principle mechanism for monitoring

how states fare in relation to these goals, the HCNM seeks to induce compliance with these standards by

reference to the prize of EU membership. Indeed, the HCNM in 1997 stated that it has become customary for

EU organs to seek the HCNM’s advice regarding EU membership applications.97 By implying that

implementing HCNM recommendations would fulfill EU standards in the realm of minority rights, international

customary law carries the threat that non-compliance will hinder the accession process with another regional

organization. Compliance, therefore, with these recommendations casts a country’s minorities’ policy in a

positive light before the international community.

Conclusion: Eclipsing Bureaucratic Ethnic Cleansing

Since the end of World War II, and especially after the de-legitimization of Communism, history has changed forever, and in the right way. For the first time, countries have seen that when conflicts arise- as they do and they will- there is a way to resolve them by reason and negotiation, not by killing. For the first time, countries have seen that there is a way to shelter their people without disappearing into someone else’s empire.

For the first time, countries have invented a way to secure themselves, not by union, but by an alliance of free nations. Croatia, one of the budding democracies of southeastern Europe, is witness to the triumph of these principles. As a nation, it has survived a terrible, deadly twentieth century. It has seen its people conquered and killed, its territories overrun, and its human rights exterminated by dictators and despots. But the drive for liberty prevails and it is proof. The people of Europe currently identify with thirty-two different European nations and speak sixty-seven languages not counting dialects.98 They have created a European currency (the Euro), flag, newspaper (the European); European television stations (the English SKY and the French-German Arté) and

97 Thio 138 98 Talberg 618 52 universities; a European Champions League for soccer, film, festival, parliament, court, and law; and a

“Eurovision” song festival.99 With no imminent invaders, no New World, no colonies, no occupiers against whom it can take shape, the “mirror of man” has been turned back on itself. It can and it must now define itself and Croatia is seeking to contribute to this definition.

Yugoslavia was born out of a disintegration and died in a disintegration, with the years both immediately before and after her life marked by the brutality of violent conflict. However, the European Union could and should bear the Yugoslav experience in mind when devising its own schemes to maintain the “federal” balance between the Union and its member states for Yugoslavia has shared many of the features and problems of the

European Union. In spite of its relatively small size, Yugoslavia boasted a remarkable diversity that necessitated a significant effort in the maintenance of the federal balance, as is evident from its salient features: six republics and two autonomous provinces with at least as many nations and nationalities; three official languages (Serbo-

Croatian, Slovenian, and Macedonian) and numerous minority languages; three religions (Catholic, Orthodox, and Muslim); two alphabets (Latin and Cyrillic); and, at least in appearance, one common idea on the organization of the federal polity. The United States had created “from many, one”; the European Union aspires to “unity in diversity”; and Yugoslavia cherished its “brotherhood in unity.”100 There is yet another feature that likens the Yugoslav experience to that of the Union: the constant revisions of the fundamental constitutional arrangements. The Union is similarly built by a succession of constitutional refurbishments in an ongoing process of fostering an ever greater integration as is already evidenced by its symbolic foundations in the

Schuman Declaration and offset in the regular amendments to its basic treaties.

The European Union and notably the European Community- which has often been praised as being foremost a community of law and even creation of law- is firmly grounded in the rule of law and the modern understanding of the separation of powers. In contrast, the Yugoslav order was premised on a socialist concept of

99 Borneman/Fowler 488 100 Accetto 193 53 the unity of powers, vested and concentrated in the federal assembly as the representative of popular sovereignty, which precluded both the executive and notably the judiciary from fully performing their functions as free- standing branches of government. The European Union is an example of the classical aggregative, “coming together” federal bargain where the previously independent polities voluntarily “pooled their sovereignty” to form a federal polity. Yugoslavia, on the other hand, was the devolutionary, “holding together” federal bargain where a previously unitary state devolves some of the power to its constituent units in order to “hold them together.”101 Overall, every federal arrangement is ultimately a mixed plane of the “coming together” and the

“holding together” dimensions. The comparison between Yugoslavia and the European Union is apt because their experiences show that they were faced with a similar task of finding an acceptable balance between the idea of integration and the drive for autonomy of their members, and that both tried to achieve this task by means of a phased constitutional reform. Though Yugoslavia should be viewed as a cautionary tale for the European Union, the modern Yugoslavia (seen in Croatia’s foreign policy priority) is fulfilling the EU’s vision of a Europe free and whole and, therefore, would contribute greatly to the Union’s “unity in diversity.”

101 Accetto 195 54

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