International Criminal Tribunal for the Former Yugoslavia

Croatia Vs Serbia ICJ Genocide Trial Begins

March 3, 2014 by inavukic 48 Comments

Genocide in Croatia
Photo: Marko Mrkonjic/Pixsell

Finally – it begins! One of the most important international court cases addressing the 1990’s war of aggression against Croatia will today 3rd March 2014 begin with hearing of evidence at the trial in the International Court of Justice (ICJ) at The Hague. The trial is said to end on 1st April 2014 and there is a total ban on publishing any details from the hearing until the trial ends, which include specific evidence and testimonies.

Croatia had filed a suit in 1999 against the then Federal Republic of Yugoslavia (the remnants of former communist Yugoslavia, Serbia and Montenegro, which disintegrated into two separate independent states in 2006/ into Serbia and Montenegro ) for genocide at the highest UN court – the International Court of Justice (ICJ) in The Hague. As Serbia and Montenegro went their separate ways in 2006, Croatia’s lawsuit at the ICJ stayed as against Serbia, and not Montenegro. In 2010 Serbia filed a counterclaim against Croatia.

Croatia aims to prove that units commanded by Serbia committed genocide in the war between 1991 and 1995.
Croatian Application to the court states, among other matters: “The Genocide Convention prohibits the destruction, in whole or in part, of a national, ethnic, racial or religious group, including the elimination or displacement of members of that group from a particular territory. Between 1991 and 1995, the Federal Republic of Yugoslavia ( read Serbia) repeatedly violated the Genocide Convention. By directly controlling the activity of its armed forces, intelligence agents, and various paramilitary detachments, on the territory of the Republic of Croatia, in the Knin region’, eastern and western Slavonia, and Dalmatia, the Federal Republic of Yugoslavia (read Serbia) is liable for the “ethnic cleansing” of Croatian citizens from these areas – a form of genocide which resulted in large numbers of Croatian citizens being displaced, killed, tortured, or illegally detained, as well as extensive property destruction – and is required to provide reparation for the resulting damages. In addition, by directing, encouraging, and urging Croatian citizens of Serb ethnicity in the Knin region to evacuate the area in 1995, as the Republic of Croatia reasserted its legitimate governmental authority (and in the face of clear reassurance emanating from the highest level of the Croatian Government, including the President of the Republic of Croatia, Dr. Franjo Tudjman, that the local Serbs had nothing to fear and should stay), the Federal Republic of Yugoslavia (read Serbia) engaged in conduct amounting to a second round of “ethnic cleansing”, in violation of the Genocide Convention…

In July 1991, there were already 30,000 registered displaced persons in Croatia. The long list of displaced persons started with the persecution of the Croats from Lika in the spring of 1991, and intensified in the summer with the persecution of the Croats from the territory of Banovina, Kordun, eastern Slavonia, western Slavonia, west Syrmium, Baranja, Dalmatian hinterland, Drnis, and Knin. The peak of the refugee crisis occurred in November 1991, when 600,000 displaced persons were registered in Croatia, including 15,000 survivors of a massacre in Vukovar. The atrocities inflicted by the Serbs on Vukovar’s people were brutal, and the resulting humanitarian crisis among displaced persons was unprecedented. In fact, the city of Vukovar, including countless historic buildings, and cultural and sacral artefacts, was completely destroyed
by the so-called JNA (Yugoslav People’s Army).

By 1999, in the period of time following 1995, Croatia has discovered and registered at least 120 mass graves, mostly in the eastern Slavonia, Banovina, Dalmatia, and Knin regions. To date, the exhumation process has registered 2,989 bodies in both mass and individual graves. For example, in Ovchara,
near Vukovar, a mass grave was discovered, from which some 200 bodies were exhumed. These were the bodies of wounded persons and patients who had been taken from the Vukovar hospital. At the mass grave at the New Grave yard of Vukovar, 938 bodies were found, and in Bakin, 56 bodies, mostly of elderly victims, were discovered in a mass grave. In Skabrnja, near Zadar, another mass grave was recently discovered to contain 27 bodies. Also, in Vila Gavrilovik, near Petrinja, a mass grave was found that contained 17 bodies…

As a result of the aggression waged by the Federal Republic of Yugoslavia (read Serbia), its agents, officials, and surrogates, Croatia and its citizens suffered the following damages :
In Croatia, there were 20,000 dead and 55,000 wounded, with over 3,000 people still unaccounted for.
Out of the total number of victims, 303 children died, 35 children were taken prisoner and disappeared, and 1,276 children were wounded.1,700 people were killed in Vukovar alone (1,100 of them were civilians), more than 4,000 people were wounded, between 3,000 and 5,000 taken prisoner, and 1,000 people are still unaccounted for.

In 1992, the humanitarian crisis in Croatia was at its peak, with approximately 800,000 displaced persons and refugees, which constituted more than 15 per cent of the total population of Croatia. Several thousand Croat civilians were taken prisoner and forcibly transferred to Serbia and other areas of the Federal Republic of Yugoslavia. Of the 7,000 people later released, 60 per cent had spent time in prisons or detention facilities in Serbia.

According to estimates by the National Commission for the Registration and Assessment of War Damages, 590 towns and villages suffered damage, 35 were razed to the ground, with another 34 suffering significant damage. 1,821 cultural monuments were destroyed or damaged, including about 651 in the area of Dubrovnik-Neretva County and about 356 in the area of Osijek-Baranja County.

Three national parks, five natural parks, 19 special reservations, 10 parks, and 19 park cultural monuments were damaged. 323 historical sites and settlements were destroyed or damaged. 171,000 housing units (constituting approximately 10 per cent of the housing capacity of Croatia) were destroyed, often by arson.
Approximately 450 Croatian Catholic churches were destroyed or severely damaged, with lesser damage to over 250 others. In addition, approximately 151 rectories, 31 monasteries, and 57 cemeteries were destroyed or severely damaged. 210 libraries were destroyed or damaged (from school libraries to such famous libraries as those in Dubrovnik).

22 journalists were killed, many of whom were trying to reveal the truth about the aggression against Croatia.

Estimates indicate that upwards of 3 million various explosive devices were planted within Croatia, mostly anti-personnel and anti-tank devices. These mines are, for the most part, uncharted, and block about 300,000 hectares of arable land. About 25 per cent of Croatia’s total economic capacity, including such large facilities as the Adriatic Pipeline, was damaged or destroyed during 199 1 – 1992. Approximately 10 per cent of Croatia’s tourist facilities were damaged or destroyed by the FRY-backed forces and agents…”

In this genocide ICJ case Croatia wants to be clearly identified as the victim of the war and that would surely stop the equating of the victim and aggressor that had been a prolific and evilly twisted political push, clearly originating from Serbia and its supporters.
The suit calls on Serbia to have all Serbian war criminals put on trial, all cultural assets seized during the war to be given back to Croatia, and calls for the payment of reparations to Croatia. Additionally, Croatia wants an explanation of what happened to the more than 1,400 Croatians who have been missing since the war.

The genocide counterclaim against Croatia, Serbia filed in 2010, will see claims of Serbs killed during that war in Croatia, it’s 2010 claim that 200,000 Serbs were expelled from Croatia in 1995 after the Croatian military Operation Storm, which liberated Croatian sovereign territory from Serb occupation, is surely not to hold any water at the ICJ given that the ICTY had in November 2012 in its acquittal of Croatian Generals Ante Gotovina and Mladen Markac found that there had been no forced deportations of Serbs from Croatia.

Serbia, however, seems to introduce into this case WWII killings of Serbs in Croatia!

Well, well, well! If such is permitted then I do hope that Croatia will have the opportunity to insert another claim to its Application – that of murdered Croats under the tyranny and dictatorship of the Serb-led Kingdom of Yugoslavia prior to WWII!

Lately, there has been much thrashing about in the media by legal professionals that neither Croatia nor Serbia have a chance of winning this case. Most refer to the case when in 2007 ICJ judges acquitted Serbia (in the case of Bosnia and Herzegovina Vs Serbia) of direct responsibility for the 1995 Srebrenica genocide, finding it guilty only of failing to prevent and punish the perpetrators of this crime. However, in the same breath, ICJ ruled that genocide took place in mid-1995 at Srebrenica when almost 8,000 Muslim men and boys were slaughtered by Bosnian Serb troops after they overran a UN-protected enclave.
These legal professionals who thrash about saying that the case of genocide at the ICJ has no prospects are fools for rushing out so, to my view. From many articles I have read in the past couple of weeks none of these legal professionals have mentioned that Bosnia’s lawyers were unable to access transcripts from meetings of Serbia’s Supreme Defence Council, SDC, which they believed were crucial to proving the case.
Although minutes from these meetings are widely believed to contain vital information about Belgrade’s involvement in the wars in Bosnia and Croatia, their most relevant parts had been granted confidential status by the judges of the International Criminal Tribunal for the former Yugoslavia, ICTY and it would be a miserable day for justice if these documents do not appear as evidence in 2014 at ICJ!

So far there have at the ICTY been both charges and convictions of Croatian Serb Krajina individuals for crimes against humanity, ethnic cleansing …, e.g. Milan Babic, Milan Martic, Mile Mrksic, Veselin Sljivancanin, Pavle Strugar and cases still on ICTY Trial: Goran Hadzic and Vojislav Seselj. Links to Serbia, Yugoslav People’s Army and Serbia’s government including president Slobodan Milosevic have been established. This, I believe is most significant for Croatia’s claim against Serbia, let alone the mountains of evidence that’s surely to land in the ICJ courtroom during the coming month – aspects of genocide are many and the totality of the various horrors that included mass killings surely equate to genocide in moral and legal sense.

The 1999 lawsuit of Croatia against Serbia for genocide was a major contribution to seeking justice for the victims of Serb aggression under the then minister of justice dr Zvonimir Separovic, a legal scholar and politician. His dedication to justice for victims of war and other mass crimes is a permanent co-traveler in his life – he is a pioneer of victimology and today, despite his advanced age, still heads with great vigour and determination the Croatian Victimology Society, whose goals include justice for victims of communist crimes.

I join the multitudes of Croats and victims of war crimes in wishing the Croatian legal team in the ICJ the victory Croatia truly deserves. Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

Filed Under: Uncategorized Tagged With: Croatia, Dr. Zvonimir Separovic, ethnic cleansing, Goran Hadzic, ICJ, ICTY, International Court of Justice, International Criminal Tribunal for the Former Yugoslavia, Milan Babic, Milan Martic, Mile Mrksic, Pavle Strugar, Serb aggression, Serbia, Veselin Sljivancanin, Vojislav Seselj, war crimes

ICTY Prosecutor’s Naked Opportunism Masquerading As Concern For ICTY’s Legacy?

July 26, 2013 by inavukic 9 Comments

Serge Brammertz Photo: Reuters

Brammertz No Longer Has Jurisdiction Over Gotovina Case

Reblogged from miseticlaw.blogspot.com

By Luka Misetic

Radio Free Europe today published an “exclusive” interview with ICTY Prosecutor Serge Brammertz, in which Brammertz comments that his office is “dissatisfied” with the acquittals entered in the Gotovina and Perisic cases and is “examining all legal means to contest these decisions.” This is consistent with a press release issued by Brammertz on 24 June 2013 in which he announced, “[r]egarding the Gotovina et al. case, my Office is considering whether the specialized threshold required for review of Appeals Judgment is met. If so, we will initiate proceedings within the prescribed one-year time frame.” Having received repeated requests from the media to respond to Mr. Brammertz’s comments, I wish to note as follows:

First, I know of no evidence that exists (or that even could theoretically exist) which would satisfy the specialized threshold required for review of the Appeals Chamber Judgment. Furthermore, I believe that if Mr. Brammertz believed he had such evidence in his possession, he would have filed a Motion for Review of the Appeals Chamber’s Judgment by 30 June 2013.

My first point leads into my second point: on 1 July 2013, the ICTY lost jurisdiction over the Gotovina case, because jurisdiction as of that date was assumed by the new International Residual Mechanism (“MICT”). According to the Statute of the MICT, “[t]he Mechanism shall have competence to conduct, and complete, all review proceedings for which the application for review of the judgment is filed on or after the commencement date of the respective branch of the Mechanism [i.e., 1 July 2013].” (See page 18 at Article 3(2) in the Annex to the MICT Statute titled, “Transitional Arrangements.”).

Thus, if a Motion for Review of the Appeals Chamber Judgment in Gotovina is filed, it must be filed before the MICT (not the ICTY) by 16 November 2013. Furthermore, it must be noted that Mr. Brammertz is not a Prosecutor before the MICT. The MICT Prosecutor is Mr. Hasan Jallow (also the Prosecutor at the International Criminal Tribunal for Rwanda), and any decision to file a Motion for Review in the Gotovina case therefore must be made by Mr. Jallow, not Mr. Brammertz. Mr. Brammertz can, of course, ask Mr. Jallow to file such a Motion for Review, but the final decision as to whether a Motion for Review will be filed with the MICT rests exclusively with Mr. Jallow. Mr. Brammertz’s recent public comments might inadvertently mislead the public into believing that Mr. Brammertz has the authority to file a Motion for Review of the Gotovina Appeals Judgment.

Accordingly, if Mr. Brammertz believed he had a basis to file a Motion for Review in the Gotovina case, it is my view that he would have filed such a Motion by 30 June 2013, when he still had jurisdiction to file such a Motion at the ICTY. By allowing the 30 June 2013 deadline to pass, and allowing jurisdiction over the Gotovina case to transfer from the ICTY to the MICT, I can only conclude that Mr. Brammertz did not believe he had a basis to file such a Motion, i.e, he does not have evidence in his possession sufficient to seek Review of the Gotovina Judgment. This does not mean that Mr. Brammertz may not later conclude that new evidence has been discovered that would justify a Motion for Review, but if he does discover such new evidence he will have to ask Mr. Jallow to file a Motion for Review at the MICT.

Finally, I cannot but take note of Mr. Brammertz’s additional comments in the Radio Free Europe interview in which he discusses the public criticism of the Tribunal’s recent judgments. Mr. Brammertz states that, “we in the Tribunal have to allow for such criticism, which was my message at the last two events we held at the ICTY. If criticism exists, then we have to deal with it; we have to accept constructive criticism and we should not hide from internal discussions about the work of the Tribunal.” Having lost several high profile cases recently, Mr. Brammertz is now a strong advocate for public debate about the ICTY’s judgements, and a proponent of the notion that the Tribunal’s judges should take into account public criticism in arriving at their judgements.

Mr. Brammertz’s newfound position should be juxtaposed with his position in 2011 in response to comments made by Croatian officials criticizing the Gotovina Trial Chamber’s conviction of Generals Gotovina and Markac as well as Croatia’s criticism of the Trial Chamber’s finding that Operation Storm amounted to a Joint Criminal Enterprise. Mr. Brammertz reported Croatia to the Security Council for its criticism of the Gotovina Trial Chamber Judgment, telling the Security Council that it is “unfortunate that in the aftermath of the judgment, the highest state officials failed to comment objectively on the outcome of the case.”

In light of the Appeals Chamber’s subsequent decision to overturn the Gotovina Trial Chamber’s Judgement, it is clear that Croatia’s criticism of that Trial Judgment was not only “objective,” but fully justified. Perhaps in his next interview Mr. Brammertz can explain his conversion from his 2011 role as “The Silencer” of public criticism of ICTY judgments to convict, to his 2013 role as the defender of the right to freedom of speech to criticize acquittals.

One would hope that Mr. Brammertz’s conversion is not based on naked opportunism masquerading as concern about the legacy of the ICTY.

Luka Misetic Photo: Darko Tomas/Cropix

About Luka Misetic: Lawyer, based in the United States of America. Luka Misetic represents clients in state, federal and international litigation, including commercial, civil, white-collar criminal and international criminal cases. In business litigation, Mr. Misetic represents corporations and partnerships, as well as their directors, officers and partners in breach of contract and fiduciary duty claims, regulatory matters, trade secrets claims, fraud and negligence suits, and a variety of other claims. Mr. Misetic represented Croatian General Ante Gotovina before the International Criminal Tribunal for the former Yugoslavia in The Hague, The Netherlands

Filed Under: Uncategorized Tagged With: Ante Gotovina, Croatia, Hasan Jallow, ICTY, International Criminal Tribunal for the Former Yugoslavia, Luka Misetic, Mladen Markac, Serge Brammertz

Professional Suicide Of A Hague Judge

June 28, 2013 by inavukic 7 Comments

ICTY Judge Frederik Harhoff

Written by Vesna Skare-Ozbolt, published by Croatian portal Dnevno.hr 26 June 2013

(Translated into English by Ina Vukic)

Danish newspaper Berlingske June 13 published judge Frederik Harhoff’s letter, in which he expresses his suspicions that the Hague court president Theodor Meron is under the U.S.A. and Israel governments’ influence, and that he had pressured the judges to deliver judgment of acquittal in Gotovina-Markac, Perisic and Stanisic – Simatovic cases. Judge Harhoff sent his letter to his colleagues and friends at 56 addresses and it is still not known who had leaked it to the media, reportedly without his knowledge.

Harhoff gives no evidence to support his statements but says: “Have any American or Israeli officials ever exerted pressure on the president of the tribunal, we will probably never know, or, it appears that judge Orie was also under pressure from the president of the tribunal”, etc. Dov Jacobs, professor of international law and international criminal law at the renowned Leiden university, Netherlands, says: “The letter uses typical language of conspiracy theories for which it is also typical to subtly shift the burden of proof onto others or onto those who do not believe in conspiracy. It’s a win-win situation for the ‘conspirationists’, because evidence about the existence of conspiracy can be utilised in many ways.”

After the Gotovina-Markac case judgment, and especially after the acquittal verdict in the Perisic and Stanisic – Simatovic cases an interesting debate developed in international legal circles and opinions were divided with regards to the judgments. However, not one of the critics of these recent judgments attempted to defame judge Meron or his court politics in the media by using “a third side”. How come, then, that judge Harhoff decided to abandon the frame of a cautious and reasonable lawyer – which, judging from his biography, he undoubtedly is – and undertake this undoubtedly planned move? Why did he not firstly direct his complaint to the tribunal’s president, and after that, if the latter was unresponsive, to the founder of the Tribunal, i.e. to the UN Security Council. He did not even attempt to take this course – for, if he had he would have surely revealed it now – exactly because the goal was for the letter to come to the media. It’s not known whether anyone or who stands behind judge Harhoff for him to embark so courageously upon – what is clear by now – a professional suicide. Attorney Luka Misetic , who June 19 published on his blog an article titled “Joint criminal enterprise against judge Theodor Meron” and made interesting revelations, will possibly try to find the answer to this.

It became apparent quite quickly that one judge alone, more than politics itself, can demolish the tribunal’s credibility with his political moves with which he only put wind into the backs of all those who attempt to relativise the former and the future Hague judgments.

Hence, the family of late BiH Army general Rasim Delic has June 18 (of this year) lodged an application with the Hague tribunal to have the judgment against him reviewed (Delic was convicted in 2005 to 3 years prison on command responsibility) and their reasoning or explanation is that judge Harhoff’s letter infers his inclination to convict anyone who engaged in a high position in the war and that, therefore, his judicial integrity is doubtful. That is, judge Harhoff was a member of the tribunal in Delic case and his opinion was the decisive one that rendered the convicting judgment. In their application to the Hague court the attorneys representing late Delic’s family claim that had the defence known at the time about such exclusive opinions held by judge Harhoff they would have sought his disqualification from hearing the case.

Judge Harhoff is a member of the tribunal in dr. Vojislav Seselj case and the judgment is expected in October of this year. Kevin Jon Heller, a professor at faculty of law in Melbourne, says that it’s to be expected that the lawyers representing Seselj will seek disqualification of the judge on the basis of the fact that it’s possible to conclude from judge Harhoff’s letter without a doubt that he is “inclined to convict”.

Savo Strbac, director of Veritas association, has June 13 (of this year) lodged an application with the Hague tribunal for a review of the judgment of acquittal in Gotovina – Markac case, calling upon new evidence (110 exhumed bodies to end of May 2013). It is interesting that in his application for the review Savo Strbac writes: “ … exhumations of the remains of Serbs killed in the aggression of the Croatian armed forces in August 1995 have been carried out”. Time will show whether it’s true that, besides coincidence of time, there is no direct connection between his application and judge Harhoff’s letter, as Savo Strbac claims.

It’s interesting that Harhoff places the acquittals of Gotovina and Markac in the same context as the acquittal of the heads of Serb military and intelligence and attributes all three tribunal judgments to the directive politics of great powers. Also, while he can privately think whatever he wants, it is unacceptable from the professional aspect that in his letter he claims how Gotovina and Markac were acquitted of guilt “for war crimes committed by the Croatian army which deported Serb population from the area of the so-called Republic of Serb Krajina (RSK) in 1995”. Judge Harhoff should know that the acquitting judgment found that it was not a matter of “deportation” (due to alleged excessive shelling) but a matter of planned evacuation in advance and in accordance with orders and through the organisation by the authorities of the so-called RSK at the time. Croatian Homeland War memorial-document centre possesses numerous documents even from Serbian sources about that, as well as about the evacuation drills carried out much before Operation Storm. I will further add – as I had personally participated in this – that the Croatian government had managed to purchase on the “black market” the authorities’ of the so-called RSK population evacuation plans, paying for them with not a small amount of money. During the liberating Operation Storm the Croatian army had done everything possible so that the evacuation routes remain free in order to ensure that any civilian casualties be brought down to the minimum. The judges of the Hague tribunal know all this very well.

This attempt at defaming judge Meron could have an impact (and) on the Herceg-Bosna Six generals case. That is, it’s not necessary to emphasise that judge Meron’s withdrawal from his position prior to an appeal decision being made in the case of the Six from Herceg-Bosna would suit, except Serbia and one EU member state. And, judging from the recent unfounded and concerning statements made by Bakir Izetbegovic about an alleged aggression against BiH by Croatia, such an outcome of this shameful story would also suit the Bosniaks.

Following all these events, I’m of the opinion that judge Harhoff cannot continue working at the Hague tribunal and professor Jacobs shares my opinion and says: “It seems that judge Harhoff does not hold much respect for presumption of innocence and that he has formed opinion in advance as to who should be pronounced guilty and who innocent. Besides that, Harhoff has in his letter explicitly apostrophised two of his colleagues (judge Meron and judge Gunaya) and so I really do not see how his continued work at the tribunal is possible.

“Despite the shortages the Hague tribunal has shown in its work to date it nevertheless represents a large civilised lunge forward. It’s become evident that, after Nuremberg, such adjudication is still possible. Although it hasn’t completely responded to its historical task the Hague tribunal has, nevertheless, brought some sort of satisfaction for the victims and their families and created a conscience that crimes are not permitted even in war.

“The International criminal justice is still in its juvenile stage. Prevention of crimes, which in itself is a goal of international war crimes tribunals, cannot occur immediately”, said judge Theodor Meron in his interview in BBC’s HardTalk program in March of this year where he, even though in advanced years of his life, lucidly and concentrated responded to the standard, direct and provocative questions put to him by the interviewer. Also, he added, ” reconciliation is not the job of the court, even though it can and it should contribute to it with its decisions, that which people seek above everything else is the criminal responsibility of the individual. Reconciliation is, after all, the job of politics.”

Vesna Skare-Ozbolt

About the writer: Vesna Škare-Ožbolt was a legal advisor of the late President Franjo Tuđman for ten years and the former Minister of Justice of the Republic of Croatia. She is also President of Democratic Centre, the party in coalition with HDZ (Croatian Democratic Union).