The President of Croatia, Stipe Mesic, has been the only state official supporting full cooperation with the Hague in this matter, but he lacks executive authority to ensure that it takes place.

Other senior Croatian officials, including Prime Minister Ivica Racan and Deputy Prime Minister Goran Granic, have recently claimed that the indictment against Bobetko is invalid because it contravenes the Croatian constitution. They argue that the Bobetko case amounts to an indictment of an entire military operation carried out in fulfillment of the Croatian military’s constitutional obligation to protect the country’s territorial integrity.

The transfer of indictees is firmly mandated by international law, as part of Croatia’s overall obligation to cooperate with the tribunal. United Nations (U.N.) Security Council Resolution 827, which created the tribunal, obliges all U.N. member states to “cooperate fully” with the tribunal and “take any measures necessary under their domestic law” to comply with its demands. The U.N. Charter's Article 25, in turn, obliges member states to implement Security Council decisions. A government cannot invoke its understanding of the indictment, or domestic legislation, to prevent the tribunal from trying the accused.

The Croatian government’s challenge to the Bobetko indictment has no basis. A constitutional mandate provides no protection against prosecution for violations of the laws of war. Moreover, as the indictment makes clear, it addresses specific crimes committed during the offensive in the Medak pocket, and not the entire military offensive as such. According to the indictment, at least 100 Serbs, including twenty-nine local Serb civilians and five captured soldiers, were unlawfully killed. Many were women and elderly people. It alleges that after Croatian forces took effective control of the area, fire and explosions destroyed hundreds of homes and barns. The Croatian forces are also alleged to have plundered or destroyed property belonging to Serb civilians. The indictment charges Bobetko with responsibility for these crimes, not the military operation as such. Based on well-established international standards, the indictment focuses on particular criminal conduct during the hostilities and General Bobetko’s role in approving or knowingly failing to prevent or punish that conduct.

Human Rights Watch has appreciated the Croatian government’s previous record of cooperation with the Hague tribunal. In a July 2001 letter to Prime Minister Racan, Human Rights Watch welcomed the government’s announced decision to cooperate with the ICTY in the arrest and surrender to the tribunal of Croatian army officers Rahim Ademi and Ante Gotovina. We expressed awareness of Croatia’s past cooperation with the tribunal regarding the provision of documents, access to witnesses and sites of crimes, exhumations, and the surrender of Bosnian Croat indictees present in Croatia, but we stressed that the ultimate test would be the surrender of the country’s own nationals if they were indicted.

Today we conclude that Croatia is failing that test. Although General Ademi surrendered himself to the tribunal on July 25, 2001, General Gotovina went into hiding and has remained out of the reach of the Hague tribunal ever since. Recent media reports suggest that he is residing in Croatia and occasionally shows up in public. The government’s response to the Bobetko indictment, together with its year-long failure to bring General Gotovina to justice, reveals a disturbing disregard for its international commitments.

We are seriously concerned that the Croatian authorities appear to be adopting a stance that echoes the position taken until recently by prominent ICTY opponents in the Federal Republic of Yugoslavia. Those opponents also invoked domestic legislation as an argument against certain forms of cooperation with the Hague. They also argued that cooperation with the Hague tribunal does not necessarily include the surrender of indictees. And they claimed that the tribunal prosecutor was criminalizing the government’s efforts to protect the country’s territorial integrity. The European Union has staunchly countered these arguments against international justice in Belgrade and should do so in Zagreb as well.

As the E.U. has long recognized, individual accountability for the crimes committed throughout the territory of the former Yugoslavia, including Croatia, is a critical element of efforts to foster lasting peace in the region. We are seriously concerned that Croatia’s failure to cooperate with the ICTY could not only undermine those efforts in Croatia, but could also be used by other governments in the region to excuse disregard for their obligations to the ICTY. To prevent such developments, the European Union should insist that the Croatian government fulfill its obligations or face diplomatic and financial repercussions.

Thank you for your attention to these concerns.