By Vesna Skare-Ozbolt
First published in Politikaplus.com
Translated into English by Ina Vukic
When a respectable British Weekly such as The Economist in its article from 11 March regarding the ICJ genocide trial between Croatia and Federal Republic of Yugoslavia (FRY) pronounces (promotes) that case as “utterly idiotic” in advance, that, in the least, must cause a decent reader to raise his or her eyebrows.
That is, this trial opens up several controversial questions upon which the international and the domestic professional circles are bound to debate; from the standards of proof of genocide, questions associated with the continuity and succession in the dissolution of a state, questions of state responsibility as well as the retroactive application of the Convention on Genocide. Court practice – even the one associate with genocide – has developed significantly during the past several years and this court could perhaps offer new interpretations, at least for some of these questions.
The Croatian legal team submitted its presentation properly and it’s worth emphasising the submissions made by James Crawford, Professor of International Law at Cambridge University, Philippe Sands, Professor of Law at London University and Davorin Lapas, Professor of International Law at the Law Faculty of University of Zagreb.
It’s difficult to give a serious assessment of Serbia’s legal team’s strategy because the extraction of evidence contained in the ICTY Trial Chamber judgments when it’s favourable for Serbia, bargaining with ICTY Appeal Chamber judgments when they are in favour of Croatia, appealing to the judges to study the ICTY Trial and Appeal judgments in an individual case and then to decide which one of these they like best, etc., does not constitute a serious strategy.
The biggest surprise from the trial is the British professional and professor of International Law, William Schabas. Although it was known in advance that Serbia had weak arguments one expected that he would, nevertheless, pluck something strong out of that material. The fact that even he was not successful at that speaks volumes of the quality of Serbia’s counter-claim in the proceedings. Regardless, Professor Schabas has appeared as a master in evading matters that did not benefit Serbia and, hence, when he rejects the key point Serbia relies on – that FRY did not exist as a state before 27 April 1992 and that in accordance with the Convention on Prevention of Genocide it is not responsible for events that occurred before that date – he omits to mention the fact that the very wording of the Convention does not seek nor exclude retroactive application or UN Convention regarding the application of statute of limitations for war crimes and crimes against humanity from 1968, where, it says in Article 1 that “statute of limitations will not be applied for crimes … regardless of the date of their perpetration … and for the crime of genocide under the definition in the 1948 Convention”. Also, even though this is a matter of a trial against a state it is worth reminding ourselves of the judgment in the Eichmann case where it says: “… that the crime with which he is charged has always carried the stamp of an international crime” and this adds to the weight favouring the retrospective application of the Convention. Or, as the renowned Serbian lawyer, the late Srdja Popovic, said in relation to the genocide lawsuit Bosnia and Herzegovina Vs. Serbia: “ … no one can call upon the dissolution and anarchy, because it is exactly in such situations when genocides occur …” (interview in BH Dani, 2006)
The charming Professor Schabas suggests to the court “not to enter into some new areas” but to keep firmly to the restrictive standard for proof of genocide contained in article 373 in the Bosnia and Herzegovina vs. Serbia 2007 judgment and not the lower one from the Karadzic case. While on the one hand he is right, because the Kardazic judgment has not passed the Appeal stage, I think that this trial is the moment when the court must and should “enter into some new areas”, that is, open the debate around the question as to whether the standard from article 373 is the best standard for the finding of responsibility of some state for genocide? If it is, that would mean that future proof of genocide will become an impossible mission.
Schabas claims that there was no genocide anywhere in the former Yugoslavia (except in Srebrenica which he characterised as a mini-genocide) because “ … there was no uniform pattern nor plan nor defined state politics on implementing genocide …” and, as an example of the existence of such a plan he gave Adolf Hitler’s stay at the Landsberg prison in 1924 where he began writing Mein Kampf. On the other hand, he does not mention the existence of the mid-19th century onwards plans for the formation of Greater Serbia to Croatia’s detriment (Nacertanije by Ilija Garasanin, as the first Greater Serbia political Memorandum SANU, etc.). (SANU – Serbian Academy of Science and Arts)
The fact that the Serbian academics Dobrica Cosic and Antonije Isakovic had as early as 1989 offered Istria and Dalmatia to the Italian neo-fascists (Alleanza nazionale Gianfranca Finija) serves as one more example of the Serbia’s leadership’s plans directed at the “annulment” of the Croatian state, not as a whole but within the frame of the rattling Virovitica-Karlovac-Ogulin border against which the HDZ of the day had protested publicly on 29 September 1989, labeling the “academic matters” of these two Serbian academics as “Greater Serbian customisation of Croatia”.
Also, the data from dr Andrija Hebrang’s book “Crimes in the Serb-Montenegrin aggression against the Republic of Croatia” which shows that more civilians than solders were killed on battlefields on the Croatian side contributes to genocidal intentions. The killing of 400 children, all of whom were not “collateral victims” of say bombing but were intentionally murdered, often in the most cruel of manners in front of or together with the whole of their families, needs to be emphasised.
Serbia’s legal team, in fact, did not attempt to deny the crimes perpetrated on Croatia’s territory in the 1991-1995 period, but it kept exhausting itself in the attempts to accomplish a win-win situation, according to which Milosevic was guilty for 1991 and Tudjman for 1995, that is, maintaining an eternal balance of responsibility for the war. The introduction of events from NDH (WWII Independent State of Croatia) into the whole story, as supposedly the exclusive reason for the rebellion of the Krajina Serbs in 1991 against the independent Croatia and the attempts to prove the so-called genocidal character of the Operation Storm had the placing of a connection Jasenovac 1941 – Storm 1995 as their aim in order to continue ad nauseam perpetuation of the concocted genocidal stigma of Croatia.
This court will mainly rely on ICTY judgments – confirmation of this can be found in the separate deliberation by the presiding judge Peter Tomka from 2008 when decisions were being made regarding the court’s jurisdiction in the case of Croatia’s genocide lawsuit against Serbia: “…it remains to be seen how Croatia will succeed in proving that the crime of genocide has been committed and that FRY is responsible for it …” although ICTY “…has not passed its judgment against the persons who carry the greatest responsibility for genocide in Croatia” – and one could conclude that a judgment of genocide has no chance.
Regretfully the court does not have a fact-finding mission capacity and it’s difficult to expect that the judges will “comb” through all the documents (from the Croatian as well as from the Serbian sources), which are archived in the Croatian Homeland War Memorial-Documentary Centre and which were collected by dr. Ante Nazor and his team through to this year, or that they will read every book written by Serbian academics or war leaders of the day that could significantly contribute to a judgment about the intent to commit genocide within a limited time span and within specific areas, especially in Eastern Slavonia.
One also should not exclude the option to dismiss both claims. If it comes to that, this court case will nevertheless represent a victory for Croatia – or, a useful defeat – as the renowned professor Mirijan Damaska said (interview, Nacional, 2007) because it will, once again, remind the international public that the ICTY has not convicted a single Croat, that Croatia is not responsible for the War and that its defence was legitimate. On the other hand, Serbia has come out from the ICTY with 13 final convictions so far, and with a conviction from this court for failing to prevent genocide in Srebrenica.
One thing is for certain: this court has a very difficult task before it and it’s distasteful to enter into prognoses because, as Luka Misetic, a member of Croatia’s legal team said: “all options are on the table”.
About the author: Vesna Skare-Ozbolt is a Lawyer with post-graduate studies in Criminal law. She served as legal advisor to the late President Franjo Tudjman for ten years. She led the process of Peaceful reintegration of Eastern Slavonia in the late 1990’s. She was Minister of Justice of the Republic of Croatia (2003-2006) and author and initiator of many legislative proposals in Croatia. She served as elected member of Croatian Parliament over three mandates from year 2000. She is also President of Democratic Centre party. Honorary citizen of Vukovar, Ilok and Brela. 1998 Woman of the Year. Decorated with the Order of Croatian Interlace, Order of Croatian Trefoil and Order of Katarina Zrinski and Vukovar Medal. Source: http://www.vesna.com.hr