The arbitrariness of the ICTY may now be shown quickly that much more easily just by comparing its respective records on the Croatian Army (HV), and the army of Bosnian-Herzegovian Croats (the HVO). Given that at the time, Croatia, and the Croats of Bosnia and Herzegovina were led by one and the same political party (the HDZ) and that Croats of BiH were reliant on assistance from Croatia and sincerely appreciative of Zagreb there is no real reason to expect qualitative differences in their respective armies, as regards their politics, radicalism or propensity for atrocity. Neither should then one expect that HV and HVO members would be found guilty of war crimes at a just court of law at wildly different rates, given that these two forces took part in fighting with roughly comparable gore levels.* Is this the case with the ICTY?
The disposition of the ICTY toward other participants in the wars in the Balkans in the 1990s is glaringly obvious and may be laid out as a few simple rules. The non-natives, the Americans and the NATO Europeans do not get indicted at all. Bosnian Muslims and Albanians are indicted sparingly, and only to be cleared of guilt, or to receive slaps on the wrist. The designated native black hats, the Serbs, are prosecuted with vigor and receive heavy punishment.
ICTY's relationship with the Croats has been less clear-cut. They have been indicted far more sparingly than the Serbs, but also far more frequently than anyone else. Their cases have seen verdicts and sentences all over the place and included instances of dramatic reversals (Blaškić, Kupreškić, Gotovina). In fact in the recent judgment the appeals body split 3-2 to acquit Gotovina and Markač, so at least seemingly it was close to making an opposite decision.
That said, the last month's acquittal of Gotovina and Markač are less of a surprise than had been their earlier sentencing to long-term imprisonment. The latter outcome was unusual, because it went against the rule of thumb for Croats at the ICTY, which could be observed beneath the seeming ambiguity. The two senior Croatian army officers were the wrong kind of Croats to be condemned as criminals of war by the Empire-sponsored court. They were from Croatia when it takes a Bosnian-Herzegovian Croat to really wet the inquisition's appetites.
In the course of its existence the ICTY has indicted 33 Croats for war crimes. Of these, however, only 6 have been from Croatia. The other 27 were Croats from Bosnia and Herzegovina. Of the 6 from Croatia all were high-ranking officers of the Croatian Army, or of the forces of the interior. One (Bobetko) died before the ICTY could get its hands on him, the cases of two others (Norac, Ademi) were handed over to Croatia, one (Čermak) was found not guilty outright, and now Gotovina and Markač have now been found not guilty on appeal. In sum the ICTY has not condemned a single member of the Croatian Army to imprisonment of any length (the only such convictions having been produced in Croatia itself).
Meanwhile the 27 Bosnian-Herzegovian Croats whom the ICTY at one point pursued, between them collected convictions adding up to a combined length of imprisonment of 166 years and that is at present, with several of the trials still to be concluded.* While the ICTY has shown a lot of irresolution as regards its stance on Croatia, it has shown no comparable lack of investment in condemning the members of the Bosnian Croat army. In fact going after HV personnel had always been something of an afterthought for the ICTY, with the first indictment against them not issued until 2001 — or several years after the end of the war in 1995. The Croats of Bosnia and Herzegovina in comparison begun to be preyed upon by the charges of the inquisition a month before the actual close of the war (November 1995).
This should strike anyone as rather curious right there. To begin with the HVO was the smaller force of the two, and won fewer victories than the Croatian Army. In fact the only instances where HVO captured large areas of enemy-held territory took place when it was acting alongside the more powerful HV. It had fewer members to begin with, and these belonged to a force which had fewer opportunities to brutalize enemy civilians. So how come the HVO leads the HV in years of sentencing by the ICTY 166-0?
The only relevant difference is that HV did not take part in the Muslim-Croat War of 1993-94. Whereas Croatian Army only ever fought Serbian forces, the HVO fought against the forces of the sainted Bosnian Muslim government in Sarajevo as well. That this is HVO's original sin is glaringly obvious when one considers virtually all charges against Bosnian-Herzegovian Croats refer to incidents from the Muslim-Croat War in Bosnia and Herzegovina, rather than its no less bloody conflict with the Bosnian Serbs.
What is the ultimate cause of the disparity in treatment of the HV and the HVO is that the war goals of the international, Empire-led intervention were aligned perfectly well with those of the HV, but clashed considerably with those of the Croats of Bosnia and Herzegovina. Having been interested in propping up the army of the Bosnian Muslim government (ARBiH) to match the Bosnian Serbs it did not exactly suit Washington and other meddling forces the Bosnian-Herzegovina Croats refused to subordinate to Sarajevo's Islamists in a centrally-run state eventually leading to open war between them.
HVO's real crime was that by offering resistance to encroachment by Sarajevo it was diverting ARBiH forces from fighting the Serbs into military offensives against the Bosnian Croats. Instead of adding to the Sarajevo's effort against the Bosnian Serbs — which was the only thing it truly mattered to Washington & co — the HVO was detracting from it. Never mind who was actually pressing against whom — by not promptly folding the Croats were holding up the internationalists' anti-Serbian crusade in Bosnia.
It was in this period of the Muslim-Croat War the negative press coming out from Bosnia begun to encompass the Croats in addition to the Serbs. Also tangible was the internationals' favoritism on the ground. International aid convoys brought relief to Bosnian Muslim areas held encircled by the Bosnian Serb Army, but not to the Bosnian Croat enclaves blockaded by Bosnian Muslim forces they passed through on the way. European Community observers anyway downplayed instances of civilian suffering on the Croat side and the British UNPROFOR contingent in Central Bosnia barely bothered to conceal its sympathies and was repeatedly acused of attempting to influence the course of the fighting by passing on intelligence on the Croats to the Bosnian Muslim side.***
Having neither the war material of the Bosnian Serbs, nor the numbers of fighters of the Bosnian Muslims, the HVO was in a difficult situation. In fact the operational history of the Muslim-Croat War is largely a story of successive ARBiH offensives (four in total) each wrestling further territory away from the HVO. It was in just one area where this conflict was fought that it was the Croats instead who held the upper-hand. Incidentally it was precisely in this area in and around Mostar, that almost all the coverage of the Muslim-Croat conflict centered on. Forgotten were Bosnian Croat enclaves in Central Bosnia, overrun by the forces of the Sarajevo government. The story of the conflict for the partisan international press was Croats blowing up a stony bridge in Mostar.
The fact that 33 out of 161 (20%) indictees at the ICTY are Croatian creates an appearance of some small amount of balance, as seemingly the court's displeasure falls on more than one belligerent side. This appearance is only superficial, however. If one categorizes ICTY indictees not by their ethnicity, but as partisans of one or the other opposing side in several distinct conflicts in former Yugoslavia of the 1990s it is quickly obvious the ICTY has clearly designated a white hat and a black hat in every single one of these contests.
The ICTY has floundered on Croatia for a short while, but has now definitely stamped it with being one of the white hats just as had been largely the attitude of Washington during the wars. The Bosnian Croats, are a white hat in as much as they fought the Serbs, but in their war with the Muslims they are a black hat comparable to the Serbs. This in turn wins them the Serb treatment at the Hague and its lopsided 'justice'.
The Croats of Bosnia and Herzegovina have seen charges and sentences at the ICTY relating to the Muslim-Croat War being applied exclusively to themselves, without them affecting their more powerful adversary. They are also the only ones besides the Serbs who have had their entire wartime political leadership indicted and shipped off to the Hague, so as to charge not just their conduct in the war as being criminal, but even the very ends to which they were fighting. With war crimes at the ICTY it is clearly not how you waged war, for HV and HVO surely fought the same, but rather who you fought, someone on the good, or the bad side of the forces pushing for the application of Western military force in the former Yugoslavia.
* In the course of the war HVO suffered about 5,500 dead, HV suffered about 8,500, while being three or four times the size of the HVO.
** 166 years is the sum of prison terms of the 12 condemned (Blaškić 9, Kordić 25, Bralo 20, Šantić 18, Martinović 18, Naletilić 20, Josipović 12, Rajić 12, Furundžija 10, Mucić 9, Aleksovski 7, Čerkez 6). The procedure for six (Praljak, Prlić, Pušić, Stojić, Petković, Ćorić) is still ongoing.
*** Charles R. Shrader, The Muslim-Croat Civil War in Central Bosnia: A Military History, 1992-1994 (College Station: Texas A&M University Press, 2003) p.54-55