Nezavisne novine The delivery of Gotovina to The Hague is widely perceived as the sole condition for Croatia’s entry into the EU, but the truth is that there are others, including reform of the judiciary.

Anto Nobilo* That is true. Joining Europe demands acceptance of the European model of functioning of justice. Why do we in Croatia want to join the EU? It is because we want to have a state fashioned according to its standards. It is not simply a matter of entry as such, but of the creation of a better state. The reform of the judicial system that this entails is bound to take time. We in Croatia are faced with the problem of a large number of unsolved court cases, for example. Sometimes the parties have to wait for five, ten or more years. This creates among other things an atmosphere that discourages our citizens and foreign investors alike.

Whatever one may think of the nature of the Gotovina indictment, the fact is that many Serbs have left Croatia. Was this a case of ethnic cleansing?

The fact is that many Serbs fled, but also that their homes were then destroyed in order to prevent their return. Ethnic cleansing has thus occurred, and it is necessary to establish who is responsible for it, which individuals. I myself believe that the charge against the Croatian government is justified, in the sense that it was the duty of the Croatian courts to establish who committed crimes during Oluja, which units and under which commanders.

The Croatian government says that 4,000 people were questioned after Oluja.

That is a story for small children. Tuđman used to brandish a so-called white book that registered every petty thief who had passed through the area in question. That is not of the essence. The fact is that not a single key person - i.e. an organiser - has been identified, nor any war crime against civilians or prisoners of war.

According to the latest report by Amnesty International, Croatian justice is still influenced by ethnic criteria.

That is true, alas. We are still burdened by past practice, when many verdicts were delivered in the absence of those charged. I am involved in one such case myself, the case of General Trifunović, who was sentenced in Varaždin [Croatia] to fifteen years in prison for war crimes, and simultaneously in Belgrade to eleven years effectively for refusing to commit war crimes. I have taken on this case at the request of General Trifunović’s daughter. My analysis shows that it was a dishonourable trial, poorly conducted, and the sentence lacks a proper legal basis. Ratomir Čačić, who headed the Varaždin crisis staff [territorial defence] at the time, tells me that General Trifunović is an honest and honourable man who committed no war crime. He is ready to appear as a witness for the defence. General Trifunović was in a position to throw 350 tons of steel at the city; had he wished to commit a war crime, Varaždin would no longer exist today. But he saved the city and his soldiers. If the same criteria were applied to the Croatian military, few of their officers would now be at liberty. The Croatian courts are unfortunately still guided by ethnic criteria. One needs only to look at the nationality of the prisoners sentenced in accordance with international criminal law. We are talking about some 600 Serbs and only 4 Croats. This intolerable ethnic imbalance appears in the Amnesty International report.

Given this, how do you view the demands of national courts, including those of Croatia, to be allowed to take over certain trials from The Hague?

I believe that these states, including Croatia, ought to regain full sovereignty in the domain of justice. But the very fact that it was necessary to establish a court in The Hague shows the poor quality of the national courts in the region. We must create conditions that would permit them to take responsibility for ensuring a fair trial for all those suspected of committing war crimes, including their own ‘heroes’. The Croatian government argues that four big courts, those in Zagreb, Split, Rijeka and Osijek, are now fully capable of conducting such trials. This is true in principle. But I fear that national criteria would be applied again, i.e. politics would have the final word. As a result, such trials could take one of two extreme forms. They could treat Croats leniently while at the same time being harsh with Serbs. But they could also veer in the opposite direction, i.e. try to anticipate the wishes of The Hague at the expense of the accused. If politics gets involved in one way or the other, that would not be good. I fear this could happen, since being allowed to try these people in Croatia is presented as a supreme political aim. We should nevertheless make a start.

How about the Vukovar Three? Both Zagreb and Belgrade want to take charge of their trial. Who do you think should have it?

This is a problem involving legal principles. Croatia believes, as most countries do, that the trial should take place in the place where the crime was committed. And since it took place in Vukovar, then Croatia should have priority. Serbian law, on the other hand, forbids the extradition of Serbian citizens for trial in other countries, with the sole exception of the court in The Hague. If they deliver the accused to The Hague and The Hague delivers them to Croatia, this puts the Serbian government in a difficult position. It would also encourage its non-cooperation with The Hague. The Hague tribunal should decide what the best option is. I fear, however, that public feeling in Croatia is such that the three have already been found guilty. On the other hand, if they are tried in Serbia they could be set free, given that the Serbian public there treats them as national heroes. [The Hague prosecutor’s office in fact decided shortly after this interview to withdraw its proposal to transfer the trial of the Vukovar Three to a national court.]

The indictment of General Gotovina is perceived in Croatia as an attack on its right to self-defence. What do you think?

I think this is an over-reaction. I have read the indictment and, although it is poorly constructed in technical terms, I think it is essentially correct. The prosecution’s starting point is that individuals headed by President Tuđman agreed to, and engaged in, a ‘criminal enterprise’ aimed at ethnic cleansing of the Serbs. It is my belief that the main aim of Oluja was to liberate parts of Croatia and re-establish Croatian authority in them, and that ethnic cleansing was of secondary importance. The prosecution, in my view, has defined the group involved too broadly, leading to the impression that all of the Croatian army, the whole of the Croatian government, all the local authorities, etc. united for a criminal purpose. That is not so. The majority of those who took part in the operation neither committed nor had any intention of committing a crime. On the other hand, someone did do so and organised for it. There is no doubt about that. It seems that The Hague found it easier to generalise than to establish the actual chain of responsibility. The prosecutors did something similar in the case of Blaškić, when they said that everybody - from Tuđman to Blaškić to the last HVO soldier - was involved in ethnic cleansing. We showed, however, that most soldiers behaved correctly, but that there existed a separate line of command, going from politicians to special units, which led to the actual crime. So I believe that this time too the prosecution has generalised too much. The defence should be able to prove that. I think, more generally, that Croatia has focussed too much on Carla del Ponte. This is because her views have a decisive influence on Croatia’s entry into the EU. The Croatian government, I think, would be well advised to distinguish between her role as prosecutor and her role as judge on whether Croatia is cooperating with the Hague tribunal. Thus in the Blaškić case, for example, we were able to win against her: even though Blaškić was accused of a most terrible crime, that could not be proved.

You have probably heard of the demand that Bosnia-Herzegovina should charge Croatia too with committing aggression against it. Do you think that would be right?

There is no doubt that the war in Bosnia-Herzegovina was an inter-state war and that Croatia took part in it. But whether Sarajevo should take Croatia to court is primarily a political question. It is up to the B-H leaders to decide what is best for their country. There is no doubt, on the other hand, that Croatia sent its troops into Bosnia and, what is more important, organised and governed the puppet state of ‘Herzeg Bosna’ as an instrument of its policy.

Lora, Pakračka poljana, Medački džep, Sisak... these place names are associated with crimes which the Croatian courts do not take seriously. Do you see a light at the end of this particular tunnel?

In the case of Pakračka poljana, the proceedings were recently suspended because one of the defendants had toothache. This tells you how serious that court is. In the case of Lora, the original [not guilty] verdict was nullified by the Supreme Court, but no date has been fixed for a new trial. The problem is that justice is part of Croatian society, which is not yet ready to face up to the negative aspects of its recent past. Croatian society, Croatian public opinion and the Croatian political elite must sooner or later condemn the dark sides of Tuđman’s rule, thus creating the necessary climate for justice to function. Without this the judicial system is feeble. It has failed to produce a leader from its own ranks capable of organising a battle for the independence of the courts, of the kind that is inscribed in the Croatian constitution. As a result it has been left to the politicians, acting under EU pressure, to secure its rightful place in society. It is only then that we shall see the light at the end of the tunnel.

Your law office is engaged in many cases under consideration by the court in Strasbourg.

Yes, in around sixty. Most of them involve terrorist acts. The Strasbourg court is just about to deliver its first judgement on the obligation of the Croatian state to pay for damage suffered by its citizens as a result of terrorist attack. I have suggested to Mr Pupovac [leader of a Serb party in Croatia] that he and his parliamentary group should seek to amend the law, so that the state once again becomes responsible for damage done by the army. It seems that Mr Pupovac has failed to persuade prime minister Sanader to support such a bill. If Strasbourg rules in our favour, however, the government will most likely seek out-of-court settlements in order to avoid further uncomfortable verdicts.

*Anto Nobilo is a leading Croatian lawyer. He represents twenty ethnic Serbs with compensation claims against the Croatian government, and was also the defence counsel for General Tihomir Blaškić at The Hague. This translation is an edited version of a longer interview published in Nezavisne Novine (Banja Luka), 5 June 2005.