International Court of Justice – Croatia, the War, and the Future

The Sculpturing Of Human Injustice At ICJ Croatia v Serbia Genocide Case

February 8, 2015 by inavukic 29 Comments

Dr Zvonimir Separovic Photo: Screenshot Z1 TV 6 February 2015

Dr Zvonimir Separovic
Photo: Screenshot Z1 TV 5 February 2015

On 3 February 2015 the United Nations International Court of Justice (ICJ) delivered the verdict in the landmark case «Croatia vs. Serbia».

The ICJ decided that neither Croatia nor Serbia committed genocide against each other during the war of Serb aggression against Croatia 1991-1995 as evidence provided to the court by the Croatian (and Serbian) legal team was inadequate to prove intent of genocide, i.e. to destroy the whole or a significant part of a nation/people. Furthermore, the court decided that Serbia could not be made responsible for the acts of genocide established as fact which occurred prior to April 1992, when Federal Republic of Yugoslavia (FRY – Serbia and Montenegro) arose from Socialist Federal Republic of Yugoslavia (SFRY). After the declarations of Slovenia, Croatia, Bosnia and Herzegovina and Macedonia to secede from communist Yugoslavia, Serbia and Montenegro were the only states of former Yugoslav federation that took upon themselves the pursuit as “heirs” of communist Yugoslavia, thus maintaining the Yugoslav People’s Army as one of its instruments of aggression. The other instrument of this aggression and genocidal intent were the Serb nationals who lived in Croatia and Bosnia and Herzegovina and turned into rebels against independence that would see untold brutality and destruction in Croatia and Bosnia and Herzegovina. The ICJ did find that Serbia was the aggressor against Croatia.

With mountains of evidence available to the Croatian legal team to bring before the ICJ as evidence of genocide the fact that the same team failed to bring adequate evidence before the court can only point to abysmal sabotage and fowl political play that seeks to equate the aggressor with the victim.

Croatian legal team obviously provided no serious evidence to substantiate the claim that there was intent to commit genocide on its territory, in particular by Serbia, even though acts of genocide were committed and were widespread. When a legal team whose duty it is to provide evidence that substantiates claims in court fails to choose the proving evidence to present to the court from the mountain of evidence available then you know that sabotage is afoot.

The International Court took into consideration all the evidence related to each point of the definition of genocide and ruled that there was no evidence to support the claim. How just is the ruling? The only “justness” would seem to arise from the fact that such a ruling was sculptured in advance of the trial, which would utilise political manoeuvring in changing the name of the defendant – from FRY to Serbia – thus ensuring Serbia a ground to argue that it, as a state, was not responsible, not a subscriber to the UN Genocide Convention, to any acts of genocide perpetrated between 1991 and April 1992 (and this was the time when both the intent and the ferocity of acts of genocide were committed systematically in Croatia by the Serbia/Montenegro led FRY, which controlled the Yugoslav People’s Army of former Yugoslavia). Also, by ensuring that evidence presented by the Croatian side in court was both lacking and often unacceptable (e.g. unsigned affidavits or statements!).

According to the United Nations International Court of Justice, the acts of genocide established in the court all happened without special intent of genocide!

The more powerful International Criminal Tribunal for the former Yugoslavia (ICTY) had already established a lot of facts of Serb aggression, which included numerous and systematically perpetrated criminal acts of genocide and ethnic cleansing of Croats and other non-Serbs. At present the ICTY is considering the case of Goran Hadzic, former president of the so-called «Republic of Serbian Krajina /Republika Srpska Krajina» («RSK») in Croatia where a great deal of the acts of genocide were committed against Croats and Croatia prior to April 1992. Milan Martic, another former president of the unrecognized Republic of Serbia Krajina, is serving a 35-year sentence according to the Tribunal’s ruling. Milan Babic, the third president of the Republic of Serbian Krajina, admitted guilt and made a plea bargain with the prosecution. He testified against his former associates and the Serbia’s leadership. Babic was found hanged in the prison cell in 2006, an apparent murder. The fact that he killed himself was supported by evidence.

It seems that a great deal of effort was applied by the so called international justice to come up with a new version of events that took place during the former Yugoslavia conflict to let anybody meddle in and change the story. But this effort was evidently propped up by certain Croatians who held high positions soon after the death of Croatian first president Franjo Tudjman in 1999 and these were the Croatians most of whom stood by communist Yugoslavia and did not want an independent Croatia in the first place.

In support of Serbia’s counterclaim, the court heard that there was no Serbia as a separate state at the time (1991-April 1992) as it was part of the Federal Republic of Yugoslavia (FRY), which was later transitioned into Serbia and Montenegro.

The Court never explained why all of a sudden Serbia became a defendant in that case which was originally filed against FRY and Croatia’s legal team failed to adequately argue similarities between the two, i.e. in essence, inseparable legal entities when it comes to the people responsible for crimes committed.

On 5 February 2015, Zagreb1 television program “Veterans Today” interviewed prof. dr. Zvonimir Separovic, who was the justice minister in Croatia at the time the original lawsuit for genocide against FRY was filed with the ICJ in 1999. Dr. Separovic compiled the genocide claim with the aid of David Rivkin, a leading US attorney. Dr Separovic stated that the Claim had then been changed starting with Ivica Racan’s social democrats government (former League of Communists) and subsequently changed even more to suit Serbia – he points the finger at Stjepan Ivanisevic (Racan’s justice minister), Ivan Simonovic (Racan’s deputy foreign minister) Ivan and Ivo Josipovic (former social democrat/League of Communists, attorney and current outgoing president of Croatia). This team, along with their political partners had changed the original Claim filed by Croatia in 1999. They removed FRY as the defendant i.e. removed Montenegro from the equation (even though quite a number of Montenegrin officers and soldiers served in the Yugoslav People’s Army at the time of aggression against Croatia) and inserted Serbia alone.

Not only that, this team of legal professionals had removed the Second pleading from the original Claim, which dr Separovic says had in it that Serbia ordered the withdrawal of some 100,000 Serb nationals from Croatia, after the acts of genocide against Croats had been committed and the removal of this point from Croatia’s original Claim was, according to dr Separovic, done with view to enabling Serbia to mount a counterclaim in which it (wrongfully) said some 200,000 of Serbs were forcibly deported from Croatia in 1995.
A book/memoir written by Radivoj Cvjeticanin (“Zagreb Indoors”), a former Serbia’s ambassador to Croatia, from page 231 reportedly talks about meetings with Ivan Simonovic and Ivo Josipovic which point to the Croatian players seeking advice and instructions from Serbia as to how to approach and what to say at the international court of justice – how to best relativise the Claim to aid Serbia!

There’s only ten days left of Ivo Josipovic’s presidency in Croatia and he is contemplating his future career, including returning to his previous position as law professor at University Of Zagreb. This would seem a most opportune time to commence lustration in Croatia and prevent any such person as is Josipovic taking up an important seat in the country’s education system, or any other system for that matter. The disloyalty to Croatia evidenced in the above is scandalous and unacceptable. One must ask: how can a law professional (Ivo Josipovic) who has evidently been heavily involved in sculpturing the human injustice that came out of the ICJ judgment (through adverse changes to original lawsuit Claim and through biased and inadequate selection of evidential material to be presented to the court as evidence) be permitted to represent Croatia in any official capacity at all? Surely, this cannot be permitted.

And so what of the ICJ decision in the case of genocide Croatia v Serbia? There’s no appeal to it. The only things left are for Croatia to continue prosecuting individual war crimes suspects, to remove the impunity for war crimes or suspected war crimes given to thousands of Serbs, to pursue rigorously the destiny of the many war victims still recorded as missing and for researchers and historians and lawyers, who have no need to use political compromises, to keep addressing the facts and justice for the victims. Ina Vukic, Prof. (Zgb), B.A., M.A.Ps. (Syd)

Filed Under: Uncategorized Tagged With: Communist Yugoslavia, Croatia, genocide, ICJ, ICTY, International Court of Justice, International Criminal Tribunal for Former Yugoslavia, Ivan Simonovic, Ivo Josipovic, lustration, Radivoj Cvjeticanin, Serb aggression, Serbia, Stjepan Ivanisevic, Zvonimir Separovic

Croatia v Serbia: ICJ Establishes Criminal Acts Of Genocide But Finds No Genocide Proven!

February 4, 2015 by inavukic 45 Comments

ICJ Room

UN’s International Court of Justice (ICJ) chief judge Peter Tomka read the court’s judgment February 3, 2015 in the case for genocide, Croatia v Serbia and Serbia’s counterclaim, which dismissed (15 to 2) Croatia’s claim that Serb forces committed genocide during Croatia’s war of independence and dismissed (unanimously) Serbia’s counterclaim which claimed that Croatian forces during 1995 Operation Storm (which liberated Serb occupied Croatian territory) had committed genocide.

Criminal acts of genocide established but these do not constitute genocide by the court’s interpretation
Judge Tomka said Serbs and the Yugoslav People’s Army under Belgrade’s direction committed mass killings, sexual violence/rape, forcible displacement/ethnic cleansing of Croats (found by the court to constitute criminal acts of genocide) in the Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia during the early 1990’s, but that Croatia had not proved genocide, which “pre-supposes the intent to destroy a group, at least in part“. Similar conclusions were made for the killings of Serbs that occurred during the fleeing of Serbs from Croatia after Operation Storm, although the latter were at a much smaller scale than those systematically committed by Serbs against Croats across Croatia over a prolonged period of time.
So, according to ICJ there was genocide but it was not genocide because no such intent was proven in accordance with ICJ standards of proof that would include “destruction of a whole people or significant part of a whole people”.

Croatia’s first president Franjo Tudjman vindicated
In relation to Serbia’s claim of genocide against Serbs during the 1995 Operation Storm Croatia’s first president Franjo Tudjman and his leading team have been vindicated in this judgment. In the ICJ Judgment article 504 it says: “….President Tudjman’s reference — on which Serbia places so much emphasis — to the aim of the Croatian forces being ‘to inflict such blows that the Serbs will to all practical purposes disappear’ must be read in context, and specifically in light of what immediately follows: ‘that is to say, the areas we do not take at once must capitulate within a few days’. Taken as a whole, that sentence is clearly more indicative of the designation of a military objective, rather than of the intention to secure the physical destruction of a human group”.

Attempts to create ethnically pure Greater Serbia involved forced deportation of Croats and other non-Serbs
The ICJ found without doubt is that the concept of creating Greater Serbia existed and within this frame multitudes of crimes were committed against Croats (and other non-Serbs) in Croatia – primarily war crimes, crimes against humanity. ICJ found that these acts do not represent the act genocide (as defined by the Genocide Convention) but Serbia did engage in aggression against Croatia and occupation of Croatian territory and the instruments for these were the Yugoslav People’s Army and Chetnik and other Serb formations, that everything was directed from Belgrade – people were killed and forcefully deported from their homes. Also, and very importantly, the ICJ has finally put a stamp on the 1995 Operation Storm as a legitimate military operation that liberated the Croatian occupied territory.

Excerpts from ICJ Judgment dated 3 February 2015
It’s worthwhile here to quote some articles from the ICJ Judgment dated 3 Fenruary 2015:
In Article 401 of the ICJ Judgment 3 February 2013 “The Court is fully convinced that, in various localities in Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the JNA and Serb forces perpetrated against members of the protected group acts falling within subparagraphs (a) and (b) of Article II of the Convention, and that the actus reus of genocide has been established”.
403. Croatia contends that the crimes committed by the JNA (Yugoslav People’s Army) and Serb forces represent a pattern of conduct from which the only reasonable conclusion to be drawn is an intent on the part of the Serbian authorities to destroy in part the Croat group. It maintains that the Croats living in the regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia targeted by those crimes constituted a substantial part of the protected group, and that the intent to destroy the protected group “in part”, which characterizes genocide as defined in Article II of the Convention, is thus established.
426. According to the ICTY, the leadership of Serbia and that of the Serbs in Croatia, inter alia, shared the objective of creating an ethnically homogeneous Serb State. That was the context in which acts were committed that constitute the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention. However, the conclusion of the ICTY indicates that those acts were not committed with intent to destroy the Croats, but rather with that of forcing them to leave the regions concerned so that an ethnically homogeneous Serb State could be created.
428. The Court therefore concludes that Croatia’s contentions regarding the overall context do not support its assertion that genocidal intent is the only reasonable inference to be drawn.
In simple words, even though Serbs carried out ethnic cleansing and mass killings (found by the same court to have been criminal acts of genocide) of Croats and other non-Serbs in Croatia this does not constitute genocide largely because Serbs did not in the act of ethnic cleansing go about killing everyone they locked into concentration camps or deported forcibly from their home!
As to Serbia’s claim that Croats committed genocide against Serbs during the 1995 Operation Storm in its Judgment, article 472. “The Court concludes from the foregoing that it is unable to find that there was any indiscriminate shelling of the Krajina towns deliberately intended to cause civilian casualties. It would only bein exceptional circumstances that it would depart from the findings reached by the ICTY on an issue of this kind. Serbia has indeed drawn the Court’s attention to the controversy aroused by the Appeals Chamber’s Judgment. However, no evidence, whether prior or subsequent to that Judgment, has been put before the Court which would incontrovertibly show that the Croatian authorities deliberately intended to shell the civilian areas of towns inhabited by Serbs. In particular, no such intent is apparent from the Brioni Transcript. Nor can such intent be regarded as incontrovertibly established on the basis of the statements by persons having testified before the ICTY Trial Chamber in the Gotovina case, and cited as witnesses by Serbia in the present case.”
475. The Court concludes for the foregoing reasons that it has not been shown that “killing[s] [of] members of the [protected/Serbs] group”, within the meaning of Article II of the Convention, were committed as a result of the artillery attacks on towns in that region during Operation “Storm” in August 1995.
485. The Court’s conclusion is that killings (of Serbs) were in fact committed during the flight of the refugee columns (after Operation Storm ended), even if it is unable to determine their number, and even though there is significant doubt as to whether they were carried out systematically. These killings, which fall within the scope of subparagraph (a) of Article II of the Genocide Convention, constitute the actus reus of genocide.
515…Accordingly, the Court finds that it has not been proved that genocide was committed during and after Operation “Storm” against the Serb population of Croatia.
523…The Court encourages the Parties to continue their co-operation with a view to offering appropriate reparation to the victims of such violations, thus consolidating peace and stability in the region.

One cannot but draw a conclusion that this UN court (ICJ) has in this judgment failed humanity and the truth for all it did is provide a licence for mass killings to occur worldwide without the responsibility for genocide – if the “masses” killed fall a bit short of some numerical criteria the court sticks to and is obviously unwilling to consider re-visiting the definitions of genocide as they might fit better the modern world. This judgment only serves the utterly unfair political agendas that promote sharing of guilt and the equating of victim with the aggressor. This court decided to give its final ruling against genocide on the “forcibly deported” Croats not killed and ignore the Croat masses killed across Croatia in an obvious genocidal campaign that lasted for years, as well as masses tortured and raped in its definition of genocide. An ugly face of modern “justice” that is deeply unsettling. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

Filed Under: Uncategorized Tagged With: Ante Gotovina, Croatia, Croatia v Serbia genocide case, Franjo Tudjman, genocide, Greater Serbia, ICJ, International Court of Justice, Serbia

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

April 14, 2014 by inavukic 34 Comments

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

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