Croatia vs. Serbia ICJ Genocide Case – A Door To Future Success Or Failure Of Genocide Claims?

Vukovar cemetery - Photo politikaplus.com

Vukovar cemetery – Photo politikaplus.com

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”.

Vesna Skare-Ozbolt Photo: Politikaplus.com

Vesna Skare-Ozbolt
Photo: Politikaplus.com

 

 

 

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

Comments

  1. Reblogged this on Karma's little spanker.

  2. therealamericro says:

    The Economist is a known gatekeeper for MI6 and Foreign Office interests.

    Being that both publicly and especially behind the scenes, did everything possible to aid and abett Serbia’s genocidal aggression against Croatia, it is no surprise that the plethora of facts they put forth have been declared “idiotic.”

    The Anglo-American paid media presstitutes, as well as those treasonous paid agents in Croatia’s puppet government (look no further than Josipovic’s cabinet and the known MI6 front organization – Royal Institute of International Affairs member, Dejan Jovic – and of course the paid USAID agitprop agent [now revising history and current events at US / UK intelligence funded Balkan Insight] who was originally recruited to be spokesperson for Croatia’s womanly President, Drago Pilsel) have been hard at work trying to spin the entire fact-and-chronological-order-of-events based case as “senseless” and “counterproductive.”

    The reason – it destroys over two decades of well financed agitprop and greater Serbian, and UK, interests in the region.

    If the narrative is discredited at the ICJ, and all sides are not equally guilty, which was a Milosevic condition (http://www.vecernji.hr/hrvatska/iza-konglomerata-losih-politika-krije-se-agresija-na-hrvatsku-932580) for “peace,” then Serbia has to have a catharsis and the long-game strategy of Serbian premacy in the region through UK/US agents in media, sham NGOs and government officals on embassy payrolls spewing agitprop, passing self-destructive legislation under the guise of “reforms” that do nothing but punish domestic businesses, thwart legitimate investment and allow for neoliberal capitalist megacorps to rob citizens and natural resources at whim with no free media to keep them in check, and continually destabilizing Croatia is threatened, as is Serbia’s fast track to the EU to be the focus of UK/US investment in the region, so it can reassert itself politically via economic power.

    Unfortunately, despite all of the overwhelming evidence in Croatia’s favor and the Serbian legal team making absolute bufoons out of themselves, a ruling against Serbia means that multiple Western governments entire policy before, during and after the war would have to be questioned and come under scrutiny.

    Hence, I see no ruling in Croatia’s favor.

    • One frets indeed, therealamericro – political undercurrents, economic liberalism paws etc may have crawled under the court benches … we shall see … I do still have trust and hope that Croatia will be a winner here … seeing all this and beyond one almost feels as if a miracles is needed for justice to surface, and yet we are only dealing with brutal facts of Serbia’s genocidal intents and actions in Croatia…

  3. Wilkinson says:

    So glad you published this, Ina. The Economist is getting up people’s noses with pathetic articles and politically colored filth I am not surprised its journalist latched onto the “utterly idiotic” idiocy. When its article is read one needs no further comment as to the Economists leanings – I wonder who was/is their adviser in these matters, perhaps their proSerb Serb adviser to Croatian president, Dejan Jovic? While the Economist article is very shallow and mean-spirited, so not many will take it seriously, this post on your blog makes excellent points.

  4. It must be a hard job sitting in this court.. But it needs to be done.. So many in our world allow such crimes to go.. .. They do not publish it on the news… because they want it forgotten.. But the families and those caught up within this holocaust will not forget.. And they want justice… .. Thank you for this post..
    Sue

  5. Thank you for you visiting !
    Happy Easter Holidays! :)
    Sincerely and respectfully,
    Aliosa.

  6. true, The Economist magazine, is the age-old mouthpiece of the old British imperialist establishment, and they did everything in their (satanic) power to aid the Serbian cause…whether it’s the Karadjorjevic of the 19th century, King Alexanader’s and Peter’s “JUGOSLAVIA”! Maybe after all is said and done, maybe (if there is some GOD), maybe Croatia will be the victor against serbia in the genocide trial! But with girly-man Josipovic, and Milanovic, and open chetniks as Vesna Pusic, Milorad Pupovac, Cacic, Jovanovic et.al. maybe that serbia can reverse the tables and actually charge Croatia with genocide!? The serbians have friends in very high places, and if it was not for Dr.Tudjman , the above mentioned “politicians” would be hanging at the end of a rope or maybe like the croat soldier Josip Jovic…….in pieces! You see…..we could prevented the attacks on Croatia and Bosnia if “King” Tomislav and Roman Catholic clergy DID NOT allow the “vlah serbs” into Croatian lands over 1000 years ago!!!

    • Support for Serbia’s monarchy from Britain does go back to King Aleksander who married Queen Victoria great granddaughter, Tempus Fugit and much of that support is not visible, it’s in the wheeling and dealing behind curtains and under tables I would think.The brutal killing of Croat policeman in 1991 by Serb rebel forces was indeed a sign of genocidal destruction that was to come. I am not an “eye for an eye” follower and no one should be but everyone should be for punishment of crimes, that’s for sure. Serbia has put in a counter-claim of genocide at the ICJ only its claim when it relates to 1990′s is not strong for Croatia had no policy as such for its defence as Serbia had for its attack.

  7. Gruß, Wolfgang

  8. Michael Silovic says:

    As someone who scans many news and magazine articles in search of the truth on various issues the Economist is certainly not one I would take serious. As with many publications we should all know by now who controls the main stream media through out the world be it in paper , television or the music industry. When there is doubt cast on Croatia or if Croatia is attacked unjustly or with fabrication we can certainly trace the reason why back to either the journalist or the editor/owner of the media or the foreign goverment making the statements. Everyone knows that Serbia is guilty of genocide. Everyone knows that the Hague is polluted with politics of the day. However I have faith that the truth will prevail and Croatia will be found to be the victim. Regardless of the out come Croatia will stand with its head up high and go about our business as a people. Then we must create a new goverment that is not a puppet to anyone and that is willing to protect and put Croatia First. One of the reasons we have failed in many areas is because we failed to put our own country and people first and this must end as quickly as possible. Once this is done we must carefully look at who we want to do business with. There are many countries who are willing to exploit Croatia and its people for many reasons including the British, Israelis, Serbia and the United States to name a few. Our trust factor will and should be decided on who comes to our defense publicly if Serbia is not found guilty. We should have molded our country after the Swiss model rather then the EU.

    • Croatia First is the ticket, Michael, I agree – let’s just hope that the next government elected will be the one that will enforce stronger processes that will consider the Croatian citizen before any other. And yes, what ever the ICJ outcome Croatia is set to exit the victim mindset and start stronger on the winner path for it has absolutely nothing as a nation not to take a proud future on.

  9. The court has a responsibility for justice. The victims of the war demand it from their graves and from their tortured lives. There is enough documented evidence to convict Serbia…from the writings of Cosic (and prior) and SANU to how the the war was executed – Serbia planned and executed a policy of genocide. But evidence has a habit of giving way to politics especially when there is no constituent accountability…in other words who will really cares if they don’t convict based on this solid evidence; what is any repercussions – certainly no one will take to streets or vote out the ruling party etc.?

    • Evidence can be twisted through politics, that’s for sure, Sunman…but let’s hope that ICJ is above that! We can now pray for ICJ justice

  10. Darryl Darko Oreč We should not be side lined in “accepting” a negotiation. Yes, we are talking about law and not justice.. As one QC has quoted “here we deal with law, justice is served in the other world”.. But never the less.. The base is that the JNA and Chetniks entered into a war of genocide against Slovenia, Croatia, Bosnia-Hercegovina and then Kosovo, notably, all the other states were unarmed and had no army. There are also miles of transcripts where Serbia under various leaders openly called for a “greater serbia”, an ethnically pure greater Serbia at that. Genocidal tendencies, and a reliance of ethnic cleansing as a tool in establishing a greater Serbia can be seen and well documented. The Carnegie Endowment report of 1914 is a good start to illustrate great Serbian ethnic cleansing and genocide as a tool to expand serbia’s boarders.. Today Serbia as in the past has always used the “justification” for their genocide as revenge.. Today we see the “justifiable revenge” as Jasenovac, an old flawed Tito’s Yugoslav propaganda, but then the greater Serbian aggression used the “500 year under the Turks” as a revenge against the Albanians, where the “greater Serbs” committed unprovoked genocide against the Albanians in order to wider serbia’s boarders to twice the previous size. (Balkan wars). The “problem” is that genocide and ethnic cleansing was not limited to Milosevic and others policies, rather the Serbian church was involved also.. Patriarch Paul (Pavle) took upon himself to lobby the world in “understanding” Serbia’s position that the “Serbs can no longer live with other people”. Others from the Serbian church such as Amfilohije and many others openly supported Żeljko Raznatovic (Arkan)and others in ethnic cleansing / genocide against non Serbs. The question that must be asked… Is the world prepared to be unbiased and take to trial the people that stood behind ethnic cleansing / genocide even if they were high ranking members of the Serbian Orthodox Church or not.. If not then there will be no case irrespective of how many people were ethnically cleansed and whom were victims of genocide. Tito’s Yugoslavia and greater Serbian agenda had no problems pointing the finger at Alojzije Stepinac and the whole Catholic Church including Rome charging them with genocide even though there was no case, the question is and must be asked is Croatia, rather the government of the day willing to push for all perpetrators of genocide, including the Serbian Orthodox Church heads to answer for their crimes. The proof is there, but again the question that must be asked is if there is a willingness to prosecute the perpetrators or not..!!

    • Well said, Darryl Darko Orec – the foot needs to be put down, fist banged against the table: enough is enough! If this lot won’t, let’s hope the next will otherwise justice for victims will never be served and new victims will come sooner or later from properly unresolved and unaddressed genocide crimes.

  11. therealamericro says:

    The ICJ is just as politicized as the ICTY.

    Perisic, Stanisic and Simatovic – the architects and overseers of all Serbian aggression and ethnic cleansing and genocide operations – were all acquitted to protect Serbia and in the case of US influence, to protect Perisic and Simatovic because they were CIA assets.

    Not out of love for democracy, but to hug the US, feed the US misinfo, and then cash in on their “assistance” by getting the charges dropped.

    The three were guilty as sin but walked.

    An ICJ ruling in Croatia’s calls into question years of policies (and ongoing policies towards Croatia and neighboring states) of every UNSC member and especially that of major Western powers.

    That is why I believe, unfortunately, that there will be no justice.

    • I fret too, therealamericro, and if no justice emerges it will be the “last straw” to get Croatians going finally towards a “Croatia First” policy and practice – nothing to lose, everything to gain in this mad world

  12. Thank you my friend for visiting, it is always a joy to see your name in my email box. Your writing is so important, your wisdom a world wide need. Ann

  13. Reblogged this on idealisticrebel.

  14. I hope you had a wonderful holiday. Blessings to you my friend. Hugs, Barbara

  15. therealamericro says:

    Fantastic video documenting the systematic demolition of every single Serbian “argument” put forth.

  16. Hvala vam sto pišete o ovome.Vi ste jedina koju sam vidjela na blogu da piše o tome sto su Hrvati proživjeli, svi ostali slušaju samo jednu stranu priče o tome kako su Hrvati krivi za sve.Lijepo je čuti i našu stranu.Hvala.

    • Translation of comment by dani: Thank you for writing about this. You are the only one I have come across to write in a blog about what Croats have gone through, all others listen only to one side of the story about that hoe Croats are to blame for everything. It is nice to hear our side. Thank You.

      REPLY: Thank you, dani. Truth is important and not everyone will tell it, many like to complicate it with political arrows. The only thing Croatia is to be blamed for is for wanting freedom from communism and for wanting democracy – I share that blame gladly for it is sweet even though much blood has been spilled for it.
      Hvala Vam, dani :)

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