dr. sc. Mato Arlovic

The ICTY Trial Chamber 2013 conviction of the “Croatian Six from Herceg Bosna” (currently awaiting Appeal Chamber decision) has motivated dr. Mato Arlovic (a Judge at the Constitutional Court of the Republic of Croatia) to awaken his research in constitutional law within the expertise written for the purposes of defence before he had become a Constitutional judge. Hence, arrived the book “Croatian Community of Herceg Bosna and the (re)organisation of Bosnia and Herzegovina”. It is an important book because it negates the famous joint criminal enterprise supposedly led by the Croatian state and army heads – writes Marinko Jurasic of Vecernji List, as foreword to his interview with Arlovic.

Your book significantly defends dr, Franjo Tudjman’s and HDZ’s politics towards Bosnia and Herzegovina (BiH).

– I must correct you. I am not defending Tudjman’s and HDZ’s politics, I am defending the truth. I speak of facts, of proof, of arguments and decisions that confirm that all the Acts passed and all the actions that followed go in favour of independence and sovereignty of BiH. I am bothered when the truth is negated … The aim of my book is not that anyone indicted of war crimes be acquitted or his guilt lessened. No, the aim of my book is in that noone is punished for something he did not do, to prevent a new injustice. Not only because it would constitute an injustice towards one nation of people but that injustice would also become the cause of new divisions and conflicts in this region. I advocate for those who are found to have committed crimes to be convicted for that is the first step towards reconciliation and a satisfaction for those who suffer.

Did the Republic of Croatia have a right to defend itself?

– I think that the rejection of Croatia’s application to present its arguments as a Friend of the court that it did not participate in joint criminal enterprise had deeply violated the principle of fairness as well as of approach to the court, and the highest of Croatian bodies are the ones who must express their standing on that. It’s not only that Croatia did not participate in it, but had it not done what it had there would be no independent and sovereign state of BiH today. In that situation it would be a grave injustice and untruth to condemn Croatia as an aggressor and a divider of BiH.

While a joint criminal enterprise did not exist in Croatia, the same Croatian leadership was creating a greater Croatia in BiH!?

– In the indictment against the generals, the state and army leadership is accused of joining together for the purpose of ethnically cleansing the Serbs from Croatia, while in the indictment against the Herceg-Bosna Six they are connected to a criminal enterprise for dividing BiH and the creating of Croatian Banovina, that actually encompasses a much larger area than the Croatian Community of Herceg Bosna. At the end of that indictment it actually says that it also concerns “all other known and unknown persons”, which opens the possibility that all Croats in BiH and in Croatia had joined intoa criminal enterprise, which of course cannot be the truth. All the more because such a form of crime is not regulated by any Act but had appeared in the Hague Prosecution’s practice. If the Trial Chamber judgment were to become final it would open up some serious questions. It would follow that Croatia was an aggressor against BiH, led its war through ethnic cleansing and that it is responsible for the destructions in BiH. And that question of justice. How can a country that had itself been attacked from outside and from its rebel Serbs inside, in the situation when it’s helping its neighbouring country and in defending itself, be pronounced an aggressor against that neighbouring country from whose territory the aggression against itself was launched!? One wouldn’t know what’s harder – the question of political responsibility or the legal responsibility. The Croats in Croatia and in BiH would once again carry the stigma of being guilty for the 90’s war, as it was after WWII.

But, president Tudjman led talks about dividing BiH?

– I don’t negate that, but I was appalled by the rushed and unfounded assumptions Rebicic came out with in his book “Geneza jedne zablude” (The genesis of a delusion). He writes that in Karadjordjevo, Milosevic offered Tudjman a division of BiH, and in an other place it’s written written that in a telephone call he warned Alija Izetbegovic that together with dr. Tudjman in Karadjordjevo Milosevic proposed division of BiH at the expense of the Bosniaks. Then, that Tudjman and HDZ leadership considered all non-Croats as citizens of a second order, which is one of the worst accusations that, in essence, equates with nazisocialism. I was politically active then and not negating the extreme right-wing elements, I can say that it is a complete untruth that the whole of the State politics was like that. Ribicic’s expertise is founded upon the testimonies of public dignitaries from Croatia who came out with their pereptions without evidence that any decision by any State body was made, and everything comes out from saying that there were talks of dividing BiH. And that is “fait accompli”, BiH will be divided and Greater Croatia put together.

The key proof of that is the conversation in Franjo Tudjman’s presidential office, HDZ leadership in Croatia and in BiH on 27^th December 1991.

– It’s true that there was talk there about solving the crisis in BiH and a possible division of BiH. It’s true that some participants seriously objected to that because the Croats in BiH would lose the possibility of being equal and constitutional nation, that is, they would become a minority in BiH. But even those talks, as all other talks, wee led during the times of war and, therefore, I’m amazed at those who without any reservation state that the politics of dividing BiH were led. Of course, the actors in those talks held their fingers crossed in their pockets and were not sincere in the measure by which their assertions could be taken as truthful. In Tudjman’s case the decisions confirmed that.

There was political bluffing, insinuation, exaggeration…?

– In military terminology that’s one of the forms of a special war. If that talk was crucial, how come it occurred a month and a half after the Croatian Community Herceg Bosna was founded. Ribicic writes that the talk was led at the time when Slovenia and Croatia had already been recognised internationally, which is not true. Only some countries, that were not themselves internationally recognised, Lithuania, Latvia and Estonia, had recognised Croatia and that in itself had a morally-political and not an international significance. The decision regarding a change of borders can only be made by the Croatian parliament, and nobody refers to its Acts. That is, even in the Constitutional decision regarding sovereignty and independence of the Republic of Croatia and in the 25^th June 1991 Declaration, as well as in the Decision regarding the severing of all ties with the Former Yugoslavia on 8^th October 1991, it is clear and unambiguous that the right to independence is recognised for all other republics of the former Yugoslavia. And what’s occurring after the talk about the division of BiH. At the invitation by the Carrington Commission on former Yugoslavia the Croatian parliament passes an agreement that all states of formerly joined states and the USSR, if they implement the right procedure, should be internationally recognised. Then, dr. Tudjman as HDZ RH president, together with HDZ BiH and the Croatian Community of Herceg Bosna leadership, calls upon Croats in BiH to come out at the 29^th February 1992 referendum together with the Bosniaks and to vote for an inependent and sovereign BiH. That referendum would not succeeded with the Croats because the Serbs boycotted it, and there were not enough Bosniaks to make up the needed majority.

And they’re being accused of intending to create a Greater Croatia all that time?

– That’s right. It’s important to see that at that time there were three political concepts for BiH. Bosniaks wanted unitary BiH. Serbs wanted a confederative BiH if a link with Yugoslavia remained, and if not, then theseparation of Serbian Republic and belonging to Yugoslavia. Croats were for a sovereign and independent BiH of three equal and constitutional nations while BiH exists, and voted at the referendum for that which they had written down and in the decision to form the Croatian Community of Herceg Bosna. And after it was decided on an international level to recognise BiH, the first country that did that on 7^th April 1992 was Croatia. All that time Croatia supplied BiH with medical, humanitarian and military assistance. Individual uits were made up of Bosniak members of the Croatian Army (HV), who were organised, equipped and trained in Croatia for the battles in BiH against the Serb aggressor that had by that time already occupied 70% of BiH territory. The most complex training of Bosniak officers, and MIG pilots, was carried out in Croatia. Here, some 700,000 displaced persons were cared for, medical help given to more than 3,500 wounded at Firule (Split) … Does a country that wants to divide the other country and take over its territory do that!?

All the while a third of Croatia was occupied.

– Those who had come out with the postulation about Croatian division of BIH are unaware that with that they had perhaps supported the most cunning postulation of Greater Serbia politics, demonstrated via a special war, because acceptance of a division of BiH would open up a process of dividing Croatia. Radovan Karadzic was the first to use that postulation at1990 elections in order toconvince Alija Izetbegovic that he would try and trick him by such means. It was crazy to expect that via the Croatian Community Of Herceg Bosna the intention was to annexe that part to Croatia for the purposes of creating a Greater Croatia, and that the same criteria would not be used in Croatia where the self-proclaimed “Republic of Serbian Krajina” commenced the process of joining the territory to Yugoslavia and Serbian Republic within BiH. One can think about dr. Tudjman as one likes but he knew how to think in military and geopolitical terms for Croatia’s interests and, simply, everyone should forget about such postulations. That postulation is a total miss, even if the talk of possible division of BiH did damage the public perception. But later, Alija Izetbegovic himself offered a division of BiH to Tudjman because he wanted his own state.

You claim that the Croatian Community of Herceg Bosna was a necessary form or self-organisation?

– According to the Constitution of the Socialist Republic of BiH the right to defence was a duty of every citizen, and municipal councils had an important role. Citizens living in them had a duty to self-organise themselves in defending freedom, territory and the sovereignty of their republic if the central authorities cannot function. When Serb attacks started Prime Minister Jure Pelivan said at the Assembly of BiH that the government was not controlling the situation, and Izetbegovic said “that is not our war”. And then, in 24 municipalities, arising from the right of necessary self-organisation the Croatian Community of Herceg Bosna was organised as a community of municipalities. The Croatian Community of Herceg Bosna did not arise within a procedure that’s characteristic of an act that would have a constitutionally legal force but rather it was much closer to statutory decisions made by units of local self-government. The decision was signed by presidents of the municipal councils who were elected to those positions at democratic elections. A referendum was not carried out. The decision calls upon the Constitution of BiH. In it, it’s written that it is of a temporary nature while the situation lasts in BiH and that the Croatian Community of Herceg Bosna is being formed- what is very important – on the territory of BiH. “The area” belongs to the units of local self-government, and “the territory” to the state. If, according to the classic theory, a state is made up of territory, population and legitimate authority, the Croatian Community of Herceg Bosna had no territory and admitted that it was formed within BiH territory, respected the constitutionally-legal system of BiH, and had no population of its own. One of the accusations against the Croatian Community of Herceg Bosna was that by using Kunas it negated the monetary sovereignty of BiH. But at that time in BiH everyone was using German Marks. One of the important proofs that the Croatian Community of Herceg Bosna was not of a state-forming shape is in the decision made by the ministry and upon which it existed and exists today as an association of citizens who promote cultural contents.

After that it grew into a republic?

– That was the result of international agreements, that is, the initiative about three entities which do not bring into question the international subjectivity of BiH. Croats were among the first to sign that international act just as they were to sign all other acts proposed by the international community, while others refused to sign. Serbs did not adhere to the Washington Agreement, which in some of its elements for the Constitution of the Federation of BIH offered a reorganisation into a composite state. NATO military action followed, which broughtthem to the Dayton Agreement. For Serbs, at all times, the variation of separating the Serbian Republic and annexing it to Serbia was valid, and some represent that stance to this day. The international community also held talks about dividing BiH in their search for models for its internal organisation. My opinion is that it is a big delusion that one can guarantee constitutionality and equality of all three peoples and at the same time carry out an internal reorganisation based on ethnic principle. That is not possible! The civil principle of internal organisation of BiH must be contitutionally and legally institutionalised.

Everyone is accusing the Washington and the Dayton agreements?

– I do not agree. In legal nature they are international contracts for peace. They stopped the war. The Serbs relinquished a part of the occupied territory, but a part of their war conquest was recognised. It is not just to accuse one nation because it defended itself, and not the other two. Annex IV of the Dayton agreement contains the Constitution of BiH and it can only and exclusively be changed by the elected members of BiH parliament. Therefore, the problem is not in the international community but in the (im)possibility of agreements between the political leaders of the three peoples in BiH. They represent maximalist attitudes because every appeasement and compromise is treated as a betrayal within their entities. In such a situation it is easier to expect the international community to make moves and take over the responsibility. Hence, I call them political entrepreneurs. Organised in this way BiH cannot be compatible with the EU. BiH needs thorough changes and that is why I put out 12 points of possible considerations for a new organisation of BiH, and at that I start from the need to make a combination of the national and civil across the entire BiH territory. The Constitution must guarantee the constitutionality through its institutionalisation of the protection of the individual, of members of minorities who are now excluded from the nation, and through parity of representation of the three equal and constitutional peoples in all bodies of representation all the way to the national level. The Constitutional court is there to guarantee fundamental rights and freedom of all, and if it cannot do that because it is not independent, and given that BiH is a member of the European Council, then there is the European court for Human Rights that guarantees fundamental freedoms and rights, and when BiH become a member of the EU there is also the court in Luxembourg.

Translated from the Croatian language by Ina Vukic