The Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) has issued a total of 12 indictments against 18 political, military and police officials from Yugoslavia, Serbia and Croatia for crimes in the Republic of Croatia between 1991 and 1995.

In a total of five indictments, the Vukovar Three, Mile Mrkšić, Veselin Šljivančanin and Miroslav Radić, all Yugoslav People’s Army (JNA) military officers, were indicted for the Ovčara massacre. JNA General Pavle Strugar and Admiral Miodrag Jokić were charged with the shelling of the Old Town of Dubrovnik. Three presidents of the self-proclaimed Republic of Serbian Krajina in the occupied territory of Croatia, Milan Babić, Milan Martić and Goran Hadžić, were indicted for persecution and other grave crimes against Croats and other non-Serbs in Eastern Slavonia and the Knin Krajina.

All crimes in the five indictments: Ovčara and Dubrovnik, Škabrnja, Nadin, Lovas, Saborsko and other crime scenes in the occupied parts of Croatia, were also included in the indictment against then Serbian president, Slobodan Milošević. Those crimes committed by the police and volunteer units from Serbia were also alleged in indictments against the Serbian secret police chiefs, Jovica Stanišić and Franko Simatović, and against Serbian Radical Party leader, Vojislav Šešelj. Finally, the ICTY indicted General Momčilo Perišić for providing financial, personnel and logistical support to the Serbian Army of Krajina, alleging he had thus substantially contributed to the crimes committed by the Serbian troops, including the shelling of Zagreb in May 1995.

Croatian Army (HV) generals Mirko Norac and Rahim Ademi were indicted by the ICTY for the crimes against local Serbs in Gospić and in the Medak pocket; their cases were eventually referred to the Croatian courts. Generals Ante Gotovina, Ivan Čermak and Mladen Markač were brought to The Hague to face trial at the ICTY for the crimes committed during and after Operation Storm in the summer of 1995.

Of all the ICTY judgements rendered in cases of crimes in Croatia, the Operation Storm judgement is undoubtedly the most controversial. Generals Gotovina and Markač were unanimously convicted at trial and sentenced to 24 and 18 years in prison respectively, only to be acquitted on appeal by a three-two majority of Judges Meron, Güney and Robinson against Judges Pocar and Agius. In the two judgements - relying on the same facts and the same law - the Trial and Appeals Chambers judges came to diametrically opposite conclusions on key issues contested at the trial by both Prosecution and Defense.

The first controversial issue where the judges in the Trial Chamber and Appeals Chambers reached the opposite conclusions based on the same evidence relates to the the actual goal the political leadership in Croatia wanted to achieve when in August 1995 it planned and ordered the military and police operation codenamed Storm. This was the central issue for both parties in court and the main bone of contention between them.

The Prosecution never questioned the right of the Republic of Croatia to launch a military operation to reintegrate the Krajina territory and thus restore its internationally recognized borders: what they alleged was that the operation had another goal which was neither legitimate nor lawful: the permanent removal of the Serb population from those areas of Croatia which were first declared to be the Serbian Autonomous Region (SAO) of Krajina in 1991, and then became the Republic of Serbian Krajina. According to the indictment, the unlawful goal was achieved as part of a joint criminal enterprise which included, among other political, military and police officials the three accused generals - Gotovina, Čermak and Markač and was directed by the then Croatian president, Franjo Tuđman.

On the other hand, Defense insisted on Croatia's unalienable right to bring its territory back under its control after a four-year occupation which saw the local Croats terrorized and persecuted. According to the Defense, the Serb population left voluntarily, and the entire exodus was scripted and orchestrated by the authorities in the Republic of Serbian Krajina, and was not the result of a criminal enterprise whose goal was to permanently remove Serbs from Croatia.

Neither party contested the fact that a certain number of people were murdered, some during Operation Storm, but most of them in its aftermath. All other allegations surrounding the murders, however, were at issue: the scope of the crimes, the status of victims and perpetrators, the motives for the killings and the attitude of both the accused and the Croatian judiciary towards the crimes and their perpetrators.

The Prosecution claimed that hundreds of Serbs, mostly civilians, were killed during and after Operation Storm, as were some soldiers who were hors de combat, i.e. who no longer took part in the fighting. Most of the victims were elderly men and women, some disabled, who could not or did not want to leave their homes. According to the Prosecution, these people were killed by Croatian soldiers and police officers, as campaign of persecution involving wide-spread and systematic attacks on civilians. Last but not least, the Prosecution alleged that the Accused, who were the superior officers to the perpetrators of the crimes, failed to take reasonable and necessary measures to prevent the crimes or punish the perpetrators. The Croatian military and civilian judiciary failed to investigate the crimes in order to identify and prosecute the perpetrators.

The Defense challenged all those allegations, starting with the number and status of victims. Claiming that the average age of soldiers serving in the Serbian Army of Krajina was quite high, the Defense argued that many of the men in their sixties or seventies who were killed may well have been soldiers, not civilians. They also asserted that the murders might have been perpetrated by civilians wearing military uniforms. In most cases, the Defense claimed that the murders were tied to looting: the motive was clearly financial gain, not a desire to expel Serbs. Finally, the Defense contended that the Prosecution had failed to prove that the Accused Generals knew about the crimes committed by their subordinates yet failed to do anything to prevent crimes or punish the perpetrators. According to the Defense, it was patently untrue that the Croatian judiciary had turned a blind eye to the crimes against Serbs.

Most of the evidence presented by the parties focused on the murders in the Krajina village of Grubori, where on 25 August 1995, five elderly Serbs were killed.

The Prosecution argued that the Serbs were murdered by the Croatian special police and that there were subsequent attempts to cover up the crime, ordered from the very top, with the collusion of the two of the three generals, in this case Markač and Čermak. The Prosecution led evidence that the initial reports about the Grubori incident had been doctored; a description of the alleged firefight with the 'Chetnik' stragglers in which five elderly Serbs were killed was added to the report at a later date.

In principle, the Defense did not deny that these crimes happened, but asserted that their clients were victims of the report doctoring and that they were not the ones who altered the documents.

Again, neither the Prosecution nor the Defense contested that in the aftermath of the military and police operation Storm, a wave of destruction, looting and burning of Serb property swept the Krajina. While this fact was not controversial, everything else was: the scale of the destruction; the motive behind it; the status of the perpetrators and the attitude of the Croatian civilian and military institutions towards the incidents.

According to the Prosecution, by November 1995 a total of 17,200 out of 22,313 Serb houses were completely or partially destroyed, burned and looted in the post-Storm wave of systematic destruction. The Defense asserted this to be 'a flood of harmful events' that inevitably follows in the wake of all major military operations.

Defense claimed the crimes were committed by 'individuals' who 'acted independently'. Their motive for arson was revenge, and as for looting, they were motivated by profit. While the Prosecution did not contest that this may well have been the motive of the direct perpetrators, it argued that the participants in the joint criminal enterprise did have an additional motive: to make the remaining Serbs leave their homes in the Krajina and to prevent the return of those who had already left. This is why they let loose their troops and tolerated their criminal conduct, so long as it served the purpose of the joint criminal enterprise.

These allegations were challenged by the Defense, noting that the highest ranking political and military officials in Croatia, Tuđman, Šušak, Červenko and others, issued a number of instructions in the aftermath of Operation Storm strictly prohibiting any 'undisciplined behavior' and ordered that 'law and order' be imposed in the Krajina to prevent any further arson and looting.

The Prosecution responded that those instructions were 'general' and 'lacked bite'. They were issued to whitewash the true intentions of the Croatian authorities, to create an impression that they wanted to prevent arson and looting. The real purpose of the instructions and orders was to evade responsibility for the failure to prevent crimes and punish the perpetrators. Those who issued them knew full well the documents would not put a stop to the crimes.

The destruction of the abandoned Serb houses was not the only tool the participants in the joint criminal enterprise had at their disposal. According to the Prosecution, they tried to prevent the return of the Serb refugees by passing administrative and bureaucratic measures designed to cement the gains of Operation Storm: a territory without Serbs.

The Defense maintained that Croatia was not to blame for the Serbs' exodus: they were evacuated in accordance with the plans and orders of the Krajina leadership. Moreover, they argued that international law did not oblige Croatia to facilitate their speedy and unconditional return.

The Prosecution identified two mechanisms used to prevent the return of Serb refugees. The first consisted of administrative measures prohibiting all persons without valid Croatian identity papers from crossing into Croatia. The vast majority of Krajina Serbs did not have the Croatian documents. Furthermore, in the immediate aftermath of Storm, the government passed a decree stipulating that all Serbs who failed to return within 30 days would have their property seized and placed at the disposal of the state.

The second mechanism to prevent Serbs from returning was a Croatian ban on even those persons who had identity papers from entering Croatia and colonizing Krajina, i.e. settling Croats into abandoned Serb houses.

The Defense meanwhile argued that the Croatian state could not allow the Serb refugees to return en masse until relations between Croatia and the Federal Republic of Yugoslavia (FRY), and later Serbia, were normalized. They invoked international law provisions stipulating that the authorities were not obliged to allow the return of those Serbs who left Croatia voluntarily to join Croatia's enemies: the FRY, Serbia or Republika Srpska.

Although Tuđman himself spoke about 'the colonization of Krajina', the Defense maintained that a state cannot 'colonize' its own sovereign territory, saying that the drive to settle Croats into abandoned Serb houses served to protect the property of Serb refugees from arson and looting and to ease the financial burden of caring for about 380,000 refugees and internally displaced persons who were housed in the hotels along the Adriatic coast.

The Trial Chamber, comprised of Judges Alphons Orie, Uldis Kinis and Elisabeth Gwaunza, rendered its judgement on 15 April 2011. In a unanimous decision, the Accused Ante Gotovina and Mladen Markač were found guilty of participation in a joint criminal enterprise which included persecution on political, religious and racial grounds, murders, inhumane acts, looting, wanton destruction and cruel treatment, qualified as crimes against humanity and violations of the laws and customs of war. Ante Gotovina was sentenced to 24 and Mladen Markač to 18 years in prison. The third accused, Ivan Čermak, was acquitted of all charges.

Before the judges began their deliberations, the court was in session for 303 days. A total of 145 witnesses were heard and about 4,800 exhibits were admitted into evidence. The judges took more than eight months to reach the verdict, and the judgement was almost 1,400 pages long.

On 16 November 2012, a majority of the Appeals Chamber comprised of Judge Theodor Meron (from the US), Judge Mehmet Güney (Turkey) and Patrick Robinson (Jamaica) reversed the Trial Chamber’s conclusions on unlawful shelling and on the existence of a joint criminal enterprise run by the Croatian leadership. Gotovina and Markač were thus acquitted. Judges Carmel Agius (from Malta) and Fausto Pocar (Italy) were in the minority. By the Tribunal’s standards, the Appellate proceedings were completed in record time. The judgement had only 54 pages, which is why it is known in the legal circles as the ‘magazine judgement’. The decision will be remembered for the unusually strong language of its dissent, unprecedented in the 20 years of the Tribunal's jurisprudence. All in all, in the opinion of the dissenting judges, the majority’s conclusions ‘contradict any sense of justice’.

Although the Appeals Chamber quashed the generals' convictions and reversed the findings of the Trial Chamber on two critical issues, it did not reverse the first-instance findings on the persecution of the Serbs in Krajina. The murders, inhumane acts, destruction and looting of private property suffered by Serb civilians in Krajina, as well as the Croatian effort to prevent the Serb refugees from returning are all adjudicated facts that remain untouched.

While ICTY Appellate decisions are final, the Storm Trial and Appeal judgements found their way to the International Court of Justice (ICJ), which adjudicates disputes between states. There, they were presented as evidence in the genocide suits by Croatia and Serbia against each other. More specifically, Serbia relied on the first-instance judgement in which Gotovina and Markač were convicted as evidence on which to argue that crimes committed during Operation Storm had reached the scale of genocide, while Croatia challenged those claims, invoking the second-instance judgement in which the Defendants were acquitted.

In its judgement issued in February 2015, the ICJ found that both the Serb and Croat forces had committed serious crimes between 1991 and 1995; some of those crimes containing the substantive elements of genocide. The intent, however, was not to ‘destroy’ an ethnic group but to ‘forcibly remove’ its members from specific parts of the territory.

As for the ICTY judgements on Operation Storm, the ICJ, in reaching its conclusion that killings during those shelling attacks did not constitute genocide gave weight to the findings of the Appeals Chamber that the shelling of the four Krajina towns had not been unlawful and that there had been no joint criminal enterprise. The ICJ Judges considered that the factual findings in the Trial Chamber Judgement about murders, cruel treatment, wanton destruction and looting of private and public property were “highly persuasive”, since they were not “upset on appeal”.

It is interesting to note here the ICJ’s conclusion that the Serb exodus was a foreseen, probable and desirable consequence of the planned military action:
"[...]The Court notes that it is not disputed that a substantial part of the Serb population of the Krajina fled that region as a direct consequence of the military actions carried out by Croatian forces during Operation “Storm”, in particular the shelling of the four towns [...] It further notes that the transcript of the Brioni meeting [...] makes it clear that the highest Croatian political and military authorities were well aware that Operation “Storm” would provoke a mass exodus of the Serb population; they even to some extent predicated their military planning on such an exodus, which they considered not only probable, but desirable. (ICJ judgement, paragraph 479)

In the twenty years since Operation Storm, the Croatian authorities have issued three indictments against seven Croatian soldiers and police officers for war crimes against the Krajina Serbs. One trial has resulted in a conviction, five accused were acquitted because of lack of evidence, while one trial is still ongoing.

Furthermore, a total of 6,390 criminal reports have been submitted to the various public prosecution offices concerning the crimes committed during and after Operation Storm. According to statistical data, as many as 2,380 have been convicted for petty crimes. While the total number of criminal reports includes 439 against army personnel, the names and crimes of those convicted have not been made public.