“Legal Truth ≠ Historical Truth”
The case Prosecutor v. Gotovina et al. stands as one of the most consequential and contested proceedings before the International Criminal Tribunal for the former Yugoslavia (ICTY). Arising from Croatia’s 1995 military offensive Operation Oluja, the case sat at the intersection of law, war, and memory.
The Tribunal was asked to determine whether senior Croatian generals most notably Ante Gotovina, were criminally responsible for crimes committed during and after the operation, and whether these acts formed part of a coordinated plan to forcibly remove the Serbian civilian population from Krajina. In 2012, the Appeals Chamber overturned the initial convictions, ruling that the Prosecution had failed to meet the strict standard of proof required for criminal liability[1].
Legally, the case ended with acquittal. Historically, the debate did not. The judgment became a focal point for a deeper question that reaches beyond the courtroom: how can a legal truth that closes a case coexist with a historical truth shaped by displacement, loss, and contested memory? It is precisely in this tension that the meaning of Prosecutor v. Gotovina et al. continues to resonate perfectly encapsulating the premise that legal truth is not necessarily historical truth[2].
In Serbian public discourse and literature, the Appeals Chamber judgment in Prosecutor v. Gotovina et al. occupies a central place as an example of what is perceived as the failure of international criminal justice to address the suffering of Serbs during Operation “Oluja” (Storm). Although the Appeals Chamber did not deny that crimes against Serbian civilians were committed during and after the operation, the fact that it overturned the findings on the unlawfulness of the shelling and the existence of a joint criminal enterprise has been widely interpreted in Serbian sources as a de facto denial of ethnic cleansing.
A key element of this position is the persistent distinction between historical truth and legal truth. Serbian authors and publications emphasize that, from the victims’ perspective, the historical reality of the mass displacement of Serbs from Krajina, the destruction of property, and post-operation violence remains indisputable. However, the Appeals Chamber judgment is interpreted as an example of a form of justice that sets standards of proof so high that, in practice, it makes it impossible to establish criminal responsibility for structural and collective crimes. Analytically, this interpretation presents the ICTY as an institution that produces a limited legal truth, one that does not correspond to the lived experience of victims[3].
A second important dimension of the Serbian perspective concerns the perceived selectivity of the Tribunal. In literature and the media, the acquittal of Croatian generals is often contrasted with the severe sentences imposed on Serbian political and military figures. This contrast is used to support the narrative that the ICTY was more willing to prosecute Serbian crimes than to address the responsibility of high-level state actors in Croatia. In this sense, the Gotovina et al. case becomes symbolic evidence for the claim that international justice does not function as a neutral instrument, but rather as a mechanism that reflects international political balances[4].
Finally, Serbian literature positions Operation “Oluja” not as a legitimate military victory, but as a collective trauma and a foundational moment of political and demographic loss for the Serbs of Krajina. From this perspective, the Appeals Chamber judgment is not seen merely as a legal act, but as part of a broader process of international legitimation of a victorious Croatian narrative, within which the Serbian experience remains marginalized. This explains why, in Serbia, the ICTY judgment has not contributed to reconciliation, but has instead deepened mistrust toward international justice and strengthened narratives of collective victimhood[5].
In the context of transitional justice, this Serbian position is particularly significant. It demonstrates that even when an international court acts in accordance with strict standards of criminal law, the absence of symbolic and moral recognition of a community’s suffering can undermine the social legitimacy of its decisions. The Gotovina et al. case thus illustrates the structural gap between individual criminal responsibility and the societal need for justice, memory, and recognition a gap that remains one of the central challenges of transitional justice in the Balkans.
The Croatian side approaches this issue from a different perspective, emphasizing the legitimacy of a defensive war and the clearly defined limits of individual criminal responsibility. In Croatian public, legal, and historiographical discourse, the Appeals Chamber judgment in the case Prosecutor v. Gotovina et al. is regarded as a fundamental correction of an erroneous legal interpretation and as an affirmation of the legitimate character of Operation “Oluja” as an act of territorial liberation and restoration of state sovereignty. Unlike the Serbian interpretation, Croatian literature views this judgment not as a denial of individual crimes, but as a rejection of the criminalization of a military operation as a whole and of the Croatian state itself[6].
A central element of this position is the distinction between individual criminal responsibility and the legal character of a military operation. Croatian authors emphasize that the ICTY Appeals Chamber did not find that crimes had not occurred, but rather that the Prosecution failed to prove, beyond a reasonable doubt, the existence of a joint criminal enterprise or the systematic unlawfulness of the shelling. From this perspective, the judgment reinforces the fundamental principle of international criminal law that guilt cannot be based on collective responsibility or on the political consequences of war, but only on clear evidence of criminal intent and concrete individual actions[7].
In Croatian scholarship, the case of Ante Gotovina and his co-defendants is interpreted as proof that international justice, despite political pressures, is obliged to adhere to high procedural standards. The Appeals Chamber judgment is seen as a defense of legality and the principle of legal certainty, avoiding the creation of a precedent whereby legitimate acts of state self-defense could be reinterpreted as criminal enterprises due to their humanitarian consequences.
Another important dimension of the Croatian position concerns the interpretation of the exodus of Serbs from Krajina. While Serbian discourse presents this as a planned expulsion, Croatian sources emphasize that the mass departure was largely the result of decisions taken by the political and military leadership of the Serb Krajina, as well as the broader context of an armed conflict. Within this narrative, individual crimes committed after the operation are not denied, but are presented as violations of the law that cannot be attributed to Croatian state policy or to Operation “Oluja” itself[8].
On a symbolic and political level, Operation “Oluja” occupies a foundational place in Croatian state identity as the moment marking the end of the war and the restoration of the constitutional order. For this reason, Croatian literature views the Appeals Chamber judgment not only as a legal act, but also as an international recognition of the narrative of the Croatian defensive war. Any attempt to portray “Oluja” as a criminal enterprise is interpreted as a relativization of the initial aggression and of the suffering endured by Croats during the years 1991–1995.
In the context of transitional justice, the Croatian position highlights the danger of conflating moral and political expectations with the criminal process. According to this view, criminal courts are not instruments for constructing comprehensive narratives of collective suffering[9], but limited mechanisms for determining individual guilt. The Gotovina et al. case is thus used to argue that reconciliation cannot be imposed through the criminalization of one side,[10] but requires mutual recognition of suffering, political dialogue, and other mechanisms outside the strict domain of criminal justice.
In this sense, the Croatian narrative sees the ICTY judgment as a confirmation of legality rather than an obstacle to reconciliation, while ongoing tensions are interpreted as a consequence of unmet expectations for symbolic justice, rather than as a failure of the international legal system itself.
The Serbo-Croatian debate over Operation “Oluja” and the judgment in Prosecutor v. Gotovina et al. clearly illustrates the tension between two different registers of truth: legal truth and historical truth. Both sides refer to the same judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY), yet reach opposing conclusions because they read it through different logics criminal-procedural on the one hand, historical-moral on the other.
From a legal perspective, the Gotovina et al. judgment establishes only one point: the Prosecution failed to prove, beyond reasonable doubt, that the Croatian military and political leadership had a criminal intent to forcibly expel Serbian civilians. This legal truth is defined by very high standards of proof, an exclusive focus on individual criminal responsibility, and a rejection of collective or symbolic responsibility. For Croatia, this means that Operation Oluja was not proven criminal in legal terms and that individual crimes cannot automatically be transformed into state responsibility or evidence of a criminal plan[11].
From a historical perspective, the central issue is not what was proven in court, but what actually occurred on the ground and what consequences followed[12]: mass displacement of Serbs from Krajina, killings of civilians, and destruction of property, including after the cessation of hostilities. This historical truth is not measured by the threshold of “beyond reasonable doubt,[13]” but by collective experience, memory, and long-term demographic and social consequences. For the Serbian side, the acquittal of senior officials does not negate the historical reality of suffering; rather, it creates a gap in which crimes are perceived as having occurred without symbolic or political accountability.
The core conflict arises precisely where these two truths diverge. The Croatian position argues that without proven criminal liability, there is no legal basis to label the operation as criminal. The Serbian response maintains that when historical outcomes amount to de facto ethnic cleansing and civilian killings, the absence of convictions represents a denial of justice. As a result, the same event produces two narratives: a closed legal narrative and an open, painful historical one.
There is, however, one normative point on which there should be no relativization: the killing of civilians is never justified, neither legally nor morally. The disagreement does not concern this principle, but the question of whether the absence of criminal liability equals the absence of crime. For Croatia, the answer is no; for Serbia, yes; at least on the moral and historical level.
In conclusion, the symbol “≠” captures the essence of the dispute. Legal truth is narrow, procedural, and selective; historical truth is comprehensive, moral, and lived. The Gotovina et al. case demonstrates that international criminal justice may conclude a judicial process, but it cannot necessarily close the historical debate. Without additional mechanisms of recognition, remembrance, and moral responsibility, the gap between these two truths persists and continues to shape tensions in the Balkans.
[1] See: International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Ante Gotovina et al., Case No. IT-06-90, Case Information Sheet, available at: https://www.icty.org/en/case/gotovina (accessed 18 January 2026).
[2] For more see: Barrie Sander, ‘History on Trial: Historical Narrative Pluralism Within and Beyond International Criminal Courts’ (2018) 67 The International and Comparative Law Quarterly 547-576 https://www.jstor.org/stable/26800964 (accessed 19 January 2026).
[3] For more see: Barrie Sander, ‘History on Trial: Historical Narrative Pluralism Within and Beyond International Criminal Courts’ (2018) 67 International and Comparative Law Quarterly 547-576, https://doi.org/10.1017/S0020589318000027 (accessed 19 January 2026).
[4] For more see: Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United Nations Law 1-35 https://www.mpil.de/files/pdf1/mpunyb_koskenniemi_6.pdf (accessed 19 January 2026).
[5] See: Stover, E. and Weinstein, H. M. (eds.), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge: Cambridge University Press, 2004), pp. 213-235. See and: Jelena Subotić, Hijacked Justice: Dealing with the Past in the Balkans (Cornell University Press 2009), 130-165.
[6] See: Sabrina P. Ramet, Balkan Babel: The Disintegration of Yugoslavia from the Death of Tito to the Fall of Milošević, 4th edn (Westview Press 2002), 221-235.
[7] Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part (Oxford University Press 2013), 105-118.
[8] For more see: Dubravka Derenčinović, ‘The Limits of Criminalisation of Military Operations after the Gotovina Appeals Judgment’ (2013) 11 Journal of International Criminal Justice 673-691 https://academic.oup.com/jicj/article/11/3/673/819993 (accessed 19 January 2026).
[9] See: Ruti G. Teitel, Transitional Justice (Oxford University Press 2000) 28-35.
[10] See: Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press 2007), 173-195.
[11] See: James Crawford, State Responsibility: The General Part (Cambridge University Press 2013) 64-82.
[12] For more see: Human Rights Watch, Croatia: Impunity for Abuses Committed during Operation Storm (Human Rights Watch 1996) 1-25 https://www.hrw.org/report/1996/08/01/impunity-abuses-committed-during-operation-storm-and-denial-right-refugees-return (accessed 19 January 2026).
[13] For more see: Barrie Sander, ‘History on Trial: Historical Narrative Pluralism Within and Beyond International Criminal Courts’ (2013) 62 International and Comparative Law Quarterly 399-420 https://www.jstor.org/stable/26800964 (accessed 19 January 2026).
