Serbia tells ICJ judges that crimes in Croatian war of independence were not genocidal.
By IWPR and RFE staff in Zagreb, Belgrade, Sarajevo and The Hague (TU No 553, 30-May-08)
At a preliminary hearing in Croatia’s genocide lawsuit against Serbia at the International Court of Justice, ICJ, Belgrade’s representatives said this week that both sides in the Croatian war committed “misdeeds”, but these did not amount to genocide.
While they acknowledged “the true suffering of Croats” during the conflict – which erupted following Croatia’s declaration of independence in 1991 – Belgrade’s defence team told judges at the world’s highest court that both Serbs and Croats were victims of the conflict.
“Misdeeds on one side spurred misdeeds on the other side,” head of Serbia’s legal team, Tibor Varady told the 17-member bench. “This is a case in which there was no genocide.”
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 more than 10,000 lives, was directly controlled from Belgrade. About one third of the victims were civilians – including women, children and the elderly.
Croatia is the second country from the Balkans to bring a genocide case against Serbia to the ICJ.
Bosnia filed its own genocide lawsuit against the country 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 International Criminal Court for the Former Yugoslavia, ICTY, and the ICJ found that the massacre amounted to genocide.
This week, the Belgrade team began by contesting the jurisdiction of the ICJ to hear Croatia’s case. They argued that at the time the lawsuit was filed nine years ago Serbia was not a member of the United Nations and therefore not a signatory to the Genocide Convention.
The case cannot go ahead unless judges find that the court has jurisdiction – a decision which could take several months.
Observers note that Serbia used the same argument when it challenged ICJ jurisdiction in the Bosnian case without success.
However, ex-foreign minister of Serbia and Montenegro Goran Svilanovic says no conclusions should be drawn from previous lawsuits heard at the ICJ, because each case is unique.
“The Bosnian case is finished. Now we have a completely different situation and everything starts from the beginning. So it is possible for the ICJ to rule it has no jurisdiction to hear this case, despite the decision it made in Bosnia’s case,” said Svilanovic.
Biljana Kovacevic Vuco, the president of the Belgrade-based Committee of Human Rights Lawyers, also points out that the two genocide lawsuits should not be compared.
“At the time when Bosnia presented its case at the ICJ, the ICTY had already established that genocide was committed in its territory. When it comes to Croatia, genocide was not confirmed in any of the verdicts related to war crimes in this country,” she said.
Zagreb has high hopes that the ICJ will rule that it has jurisdiction to hear this case.
“I am 90 per cent sure that the ICJ will rule in our favour,” said Zeljko Horvatic, a professor of international criminal law at the Faculty of Law in Zagreb.
“Of course, we have a long legal battle ahead of us and its outcome will depend on the ICJ’s readiness to apply the Genocide Convention in this case.”
If the case goes ahead, Zagreb will have a good chance of winning, claims Sakib Softic, head of the legal team that represented Bosnia before this court.
“Croatia is in a better position than Bosnia, because it can access documents that were not available to us, particularly unredacted versions of minutes from Serbia’s Supreme [Defence] Council meetings,” he said.
Just a few days before the preliminary hearings at this court, Croatia asked ICJ judges to demand these documents – believed to contain evidence of Belgrade’s direct involvement in the Balkan wars in the Nineties – both from the ICTY and from Serbia.
However, their request was turned down for the time being, as the court must first rule whether it has jurisdiction to hear this case.
A similar request from Bosnian team during the presentation of their case two years ago was turned down. At the time, ICJ judges said that they had already received enough evidence from the Bosnian side.
Many in Bosnia believe that if the judges had access to the SDC minutes in their case this could have altered the outcome.
Croatia’s legal representative Ivan Simonovic told IWPR he is optimistic that judges will demand the documents if the case goes ahead.
"I would say that if ICJ rules in our favour on jurisdiction, there is a serious possibility that they will order both Serbia and the Hague tribunal to hand over SDC documents,” he said.