Balkans: Green light for legal war
By Anes Alic for ISN
Three former Yugoslavian republics - Croatia, Serbia and Bosnia and Herzegovina - are about to open a new chapter of diplomatic conflict, threatening to renew ethnic animosity after the International Court of Justice (ICJ) gave the green light to proceed with Croatia's war crimes and genocide case against Serbia.
On 18 November, ICJ judges ruled that the Court did indeed have the necessary jurisdiction to hear a case Croatia seeks to bring against Serbia for mass murder. The next day, Serbian officials filed a counter lawsuit for war crimes committed by Croatians against Croatian Serbs.
At the same time, Bosnia and Herzegovina, whose similar lawsuit against Serbia failed last year, is closely watching to see if any new evidence will surface, allowing them to request a review of their case or even a new trial.
These developments demolished for good any hope for some kind of out-of-court settlement between Croatia and Serbia, bringing relations to their lowest level since the end of the wars in the 1990s.
Tricky conventions
Croatia filed a genocide lawsuit against Serbia at the ICJ in 1999, claiming that a campaign of ethnic cleansing during the four-year war in Croatia yielded "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."
According to Zagreb, the campaign, which claimed up to 20,000 lives, was directly controlled from Belgrade. About one-third of the victims were civilians including women, children and the elderly. Croatia has demanded compensation from Belgrade, but no amount has been specified.
Croatia is seeking punishment against former Serbian officials it considers responsible for the violence as well as monetary reparations and the return of Croatian cultural treasures.
On the other side, Serbia's representatives argue that the ICJ has no jurisdiction in the case, since at the time the suit was filed, Serbia was not a UN member and therefore not a signatory to the Genocide Convention, the document on which this tribunal's jurisdiction is based.
The Serbian legal team points out that in 2004 the same court dismissed a case filed by Serbia accusing eight NATO members of genocide during the alliance's 1999 bombings of the Kosovo conflict. At that time, the ICJ ruled that Serbia was not a member of the UN when the complaint was filed in April 1999. The Federal Republic of Yugoslavia, then comprised of Serbia and Montenegro, was recognized as a UN member in 2000.
However, in the latest decision from last week, judges rejected the objections, saying that Serbia assumed the responsibilities of the former Yugoslavia, including its responsibility to adhere to the convention outlawing genocide.
Serbian legal representative Tibor Varady criticized the ruling, saying it would only serve to prolong tensions between the countries.
"I think it would be much better to insist consistently on individual criminal responsibility, such as prosecuting the ones who actually ordered or committed the crimes. With these cases, no one will win," Varady told ISN Security Watch.
The trial is not expected to start for at least two years. The ICJ has given Serbia one year to prepare its defense.
The war legacy
Croatia's independence declaration from Yugoslavia in 1991 led to an armed rebellion of Croatian Serbs, who made up 12 percent of the population in Croatia at the time. Soon after, they formed their own independent region, Krajina, which comprised some 30 percent of Croatia's territory, with close links to Serbia.
Several Krajina leaders were tried and a found guilty of war crimes against Croats in the 1991-1995 war. The wartime Krajina leader, Goran Hadzic, was accused of war crimes against Croats in the city of external pageVukovar, and he remains at large to this day, believed to be hiding out in the Serbian capital, Belgrade.
With political support from western powers, the breakaway Bosnian Serb state was defeated in August 1995 in a Croatian military offensive known as "external pageOperation Storm," which pushed thousands of ethnic Serbs out of Croatia and forced them to seek refuge in Serbia and in Bosnian Serb-controlled parts of Bosnia and Herzegovina.
Serbian officials estimate that the Croatian military operation caused some 250,000 ethnic Serbs to flee their homes, while about 130,000 of them reportedly have returned. Serbian officials indicated that the countersuit will also touch on crimes committed by Croatia's pro-Nazi World War II regime, when Serbs and other ethnic groups were imprisoned in concentration camps.
According to International Criminal Tribunal for the former Yugoslavia (ICTY) indictments regarding Operation Storm, some 350 mainly elderly or ill people unable to flee were killed by Croatian forces during the operation. However, various other organizations from Serbia put the death toll significantly higher, between 650 and 1,200 murdered.
"Croatia did not appropriately respond to the hand of reconciliation which Serbia repeatedly offered, with a desire to leave the past behind and turn to our common future in Europe. A lawsuit will now be filed against Croatia in order for the truth finally to be found out," Serbian Foreign Minister Vuk Jeremic told local media.
However, Serbia's decision to bring the issue of ethnic cleansing and war crimes committed by Croats against Serbs has reportedly caused a wave of panic in Zagreb, where some legal experts believe that the 1995 actions in Krajina did in fact smack of genocide.
Currently, the ICTY is in the process of trying Croat General Ante Gotovina, Mladen Markac and Ivan Cermak, all charged with "joint criminal enterprise" and planning of a military offensive aimed at ethnically cleansing the entire Serbian population from the Krajina region.
In the cases regarding Operation Storm, the ICTY has also charged former Croatian president Franjo Tudjman with active involvement in the "joint criminal enterprise," as well as several top military and police officials and politicians.
The outcome of the Croatia-Serbia lawsuits will be closely monitored by Bosnia and Herzegovina, which filed its own genocide lawsuit against the Serbia in 1993.
However, in February 2007, ICJ judges acquitted Serbia of direct responsibility for the Srebrenica genocide, and found it guilty only of failing to prevent and punish the perpetrators of this crime.
Some 8,000 Bosniak men and boys were killed when Srebrenica fell to Bosnian Serb forces in July 1995. Both the ICTY and the ICJ found that the massacre amounted to genocide.
Sakib Softic, head of the legal team that represented Bosnia before the ICJ, said that in the last two years much evidence surfaced proving Serbia's involvement in the Srebrenica massacre.
"Croatia, with a better international image, is in a better position than Bosnia, because it can access documents that were not available to us, including reports from the CIA and other western intelligence services," Softic told ISN Security Watch.
Reconciliation in jeopardy
All in all, legal experts and NGOs from both countries agree that neither side will win the case, and that the lawsuits have been lodged for internal political reasons.
For its part, Croatia will have no difficulty proving that Serbia was involved in the conflict for a specific period of time, since the Novi Sad Corps of the Yugoslav People's Army (JNA) as well as paramilitary forces were deployed to Croatian territory. However, to prove genocide is going to be a problem.
Experts agree that Operation Storm had more elements closer to genocide than the charges Croatia filed against Serbia, even though the operation is likely to be labeled "ethnic cleansing."
Some three years ago, pro-EU Serbian President Boris Tadic (born in Sarajevo) apologized to Bosniaks (Bosnian Muslims) for the atrocities committed by Serbs. Last year he also offered an apology to Croatia, but insisted that Croatia likewise officially apologize to Serbs. Croatia refused.
While politicians hope that the trials could clarify some things from the past in order to move on, human rights activists fear they will only deepen ethnic animosity and further jeopardize reconciliation.
"Serbia needs to confront its past and [realize] that acceptance of the charges will help normalize relations in the region. Denying the crimes committed under Slobodan Milosevic's rule, the Serbian government is gaining political points by denouncing victims from a country which is viewed as a traditional enemy," president of the Serbian Helsinki Committee for Human Rights, Sonja Biserko, told ISN Security Watch.
Biserko blames Serbia for the worsening of the countries' relations, since Serbian political and intellectual elite refuse to accept and judge crimes Serbs committed in Croatia, Bosnia and Kosovo.