While the Serbian public entertains itself with the fasting of Toma Nikolic (who has already received Communion), Croatia is still in the midst of a nationalist delirium. The Croatian government is preparing legal studies and diplomatic offensives; the state will be defended before the Hague Tribunal. Although the Hague verdict still remains unread, in the eve of the Easter holidays Croatian bishops have already proclaimed it a spawn of Satan, thus following their Orthodox colleagues who acted similarly on other occasions. When war crimes are in question, ecumenism is already a done deal, just as, during Yugoslav wars, various former members of the French Foreign Legion and other scum traded in oil and robbed household appliances. Good for them, cum sancto spiritu, etc. Same as the previous one, this article is not meant for them, but for the people of good will who are ready to dedicate a portion of their time to those already boring legal issues, on which now life (allegedly) depends, and which are being politically abused by many. Along with similar reflections in an excellent article by Bogdan Ivanisevic, let us deal with the following questions:
Does the Croatian legal and diplomatic offensive have a chance before the Appeals Chamber of the Hague Tribunal in the negation of the thesis on joint criminal enterprise?
No. No, no matter how much political and monetary capital the Croatian state invests. Firstly, although the Tribunal, same as any other court, operates within a certain political environment, it is still impervious to the lobbying of the sort Croatia is planning to spend a lot of money on. Nor will the Tribunal waver because (according to some public surveys) 95% of Croatian citizens believe that the verdict in the case of Gotovina and Markac was unjust.
Secondly, as to the legal definition of joint criminal enterprise as such (something I discussed at greater length in a previous article), the Tribunal will not dither in face of studies by the Croatian Academy of Legal Sciences or other similar opinions of foreign experts. That train has long ago departed. Many people have already been convicted in Hague for that same criminal offense, including Milan Martic – for the joint criminal enterprise of ethnic cleansing of Croats in Krajina until 1995. Nikola Sainovic and other members of the Serbian political and military leadership were also convicted for the joint criminal enterprise of ethnic cleansing of Albanians in Kosovo. Others are on trial for that criminal offense, for example Radovan Karadzic, or the leadership of Bosnian Croats (the case of Prlic and others). If joint criminal enterprise is overruled as a generally unacceptable legal construction in the case of Gotovina, then it will have to be overruled in every other case, including, I repeat, the case of Milan Martic. It falls within the realm of fiction (not science fiction, at that), that the Tribunal would release all suspects, as well as those who have already been convicted, just because it was told to do so by the esteemed Croatian Academy of Legal Sciences.
What Gotovina and Markac can challenge are the facts, namely the findings of the Trial Chamber that the joint criminal enterprise of ethnic cleansing of Serbs in Krajina took place, but not its legal elements, as well as the findings that Gotovina and Markac participated in this enterprise and significantly contributed to it. As I have explained in a previous text, such factual findings will be reexamined by the Appeals Chamber only if they are so erroneous that they must be considered unreasonable – a standard that is very hard, albeit, not impossible, to reach.
Did the Tribunal, with the findings that an international armed conflicted took place in Croatia, recognize the statehood or legitimacy of the so-called Republic of Serbian Krajina?
No. For a better explanation of this answer we need some context. Until World War Two, international law regulated only wars, i.e. conflicts between states. Conflicts within sovereign states, i.e. civil wars, how ever bloody there were, were not its concern. Following WWII, with the adoption of the Geneva Conventions (in 1949) and their additional protocols, international law started regulating internal conflicts as well, but still with significant differences in applicable law and punishable crimes between international and internal conflicts. One of the main achievements of the legal practice of the Hague Tribunal was precisely in decreasing those differences, because, if we put the law aside, there are no moral differences between murders and rapes in an international and those committed in an internal conflict.
In the Gotovina verdict, Tribunal had to legally qualify the nature of the conflict in Croatia, because its jurisdiction over certain criminal acts (paragraph 1672 and further) depended on it. In the previous verdict dealing with the conflict in Croatia, in the case of Milan Martic, the Tribunal avoided answering this complex question. The findings of the court in that case were that the crimes Martic was accused of were, in their nature, punishable both in international and internal conflicts, thus, it was not necessary to clearly determine whether the conflict in Croatia was international or not.
For several reasons, this maneuver was not applicable in Gotovina’s case. The Trial Chamber already ruled that the conflict in Croatia was of an international character, because the so-called Republic of Serbian Krajina was under overall control of Serbia, i.e. the Federal Republic of Yugoslavia (paragraph 1693). This does not mean that the Tribunal recognized the statehood of Krajina, on the contrary – it determined that an international armed conflict between Croatia and Serbia took place on the territory of Croatia.
Did the Tribunal determine the existence of aggression of Serbia against Croatia?
No. This was recently claimed by president Josipovic, although, as a professor of law, he must know better – this was actually an unsuccessful attempt to spin the verdict and find any point in it that suits the Croatian state. As I have just explained, the Tribunal only determined that the conflict in Croatia was of an international, not internal character. International law strictly separates the issue of the right to engage in war, i.e. responsibility for causing a war (jus ad bellum) from justice in war, i.e. the conduct in war (jus in bello). The existence of aggression falls within the first group of issues, the qualification of the nature of the armed conflict – into the second. In other words, the Tribunal did say that the war in Croatia was not a civil one, but an international conflict between Croatia and Serbia, but it did not say who was guilty for this conflict.
The Tribunal did not say this because its Statute forbids it from doing so. The Statute places the politically highly controversial question of aggression outside the jurisdiction of the Tribunal. War crimes and crimes again humanity, for which the Tribunal does have jurisdiction, may also be committed by the side defending itself from the aggressor – for example, Croatia. During WWII, allies also committed war crimes, and not only in the cases of bad individuals, but also in the cases of state policy – for example, the destruction of Dresden or the nuclear bombs dropped on Hiroshima and Nagasaki, not to mention the Red Army – and there never was a war more just than the one against Hitler. After the Nuremberg Trials, no one else was convicted of aggression, and the Permanent International Criminal Court (which should not be confused with the Tribunal) was granted jurisdiction over this international crime just recently.
Incidentally, Serbia did commit aggression against Croatia, the same as it did commit aggression against Bosnia, and the same as both Serbia and Croatia committed aggression against Bosnia, but the Tribunal did not say that, because it does not have the jurisdiction to examine this issue. The UN Security Council already punished Serbia, and to some extent Croatia as well, by years of sanctions for violating the UN Charter and for armed intervention in other states.
What is the importance of the Gotovina verdict regarding the lawsuit Croatia filed against Serbia for genocide before the International Court of Justice (ICJ)?
None. Professors Rade Stojanovic and Dusan Ignjatovic are simply wrong if they believe that this verdict will, in any way, help Serbia in this case. ICJ, also located in Hague, is the highest UN judicial body, which, unlike the Tribunal for former Yugoslavia, tries states, not individuals. Also, unlike the Tribunal, the jurisdiction of the ICJ is voluntary, i.e. sovereign states cannot be forced to solve any disputes before that court without their own assent.
Croatia, like Bosnia before it, sued Serbia on the basis of Article 9 of the Convention on Genocide, whereby States which ratified the Convention accept the jurisdiction of the ICJ. On the same basis Serbia, in turn, filed a lawsuit against Croatia. However, the jurisdiction of the ICJ on this basis is limited only to genocide, defined as the perpetration of criminal acts such as murder with the intent of physical or biological extinction of a national, ethnic, religious or racial group as such. The existence of genocide depends only on the genocidal intent, and not on the number of people who were killed; millions have perished in non-genocidal crimes, for example, Stalin’s or Mao’s mass murders of political or class enemies. The definition of genocide is very rigid, because it was adopted immediately after WWII. At that time, genocide was the only international crime that states were able to commit during peace times (see more in Hague Puzzle, page 101 and further). ICJ does not have jurisdiction to determine the responsibility of a state for any other international crimes, including aggression, war crimes and crimes against humanity. The Serbia-Croatia case before the ICJ thus includes only genocide, not responsibility for the war as such, war reparations or anything else.
As to the crimes committed on the territory of former Yugoslavia, the Hague Tribunal recognized only the massacre in Srebrenica in July of 1995 as genocide, which was subsequently confirmed by ICJ. No crime committed in Croatia on any side was legally proclaimed as genocide. More specifically, ethnic cleansing is not considered genocide, but “only” a crime against humanity, because it is characterized by the intent to expel a certain ethnic group, not physically destroy it. Thus, the ethnic cleansing of Krajina Serbs during the operation Storm cannot be characterized as genocide. The same goes for the ethnic cleansing of Krajina Croats before the operation Storm.
Since none of the parties in the Croatian conflict committed genocide, the conclusion of the proceedings before ICJ is beyond question: the Court will dismiss both the Croatian and the Serbian lawsuit, and even the best lawyers in the world (incidentally hired by both Serbia and Croatia, who are still paying them dearly) cannot help either of them. The Gotovina verdict does not influence this to any degree, because it concludes that war crimes and crimes against humanity were committed, however, not genocide as well.
Some people in Serbia believe that ICJ can determine the responsibility of Croatia for genocide in Jasenovac (regardless of the number of people who were murdered there), because genocide and other international crimes have no statute of limitations. However, this is completely wrong, for two reasons. Firstly, although there is no statute of limitations on genocide, the Convention on Genocide was adopted in 1948, thus, after WWII, and cannot be applied retroactively (Nazis in Nuremberg were not convicted of genocide, but of crimes against humanity). Secondly, although the regime of Franjo Tudjman flirted with the Ustasha movement, the current state of Croatia is not the successor of Ante Pavelic’s NDH (Independent State of Croatia), which, from the point of view of international law, never even existed. Thus, Croatia cannot be held responsible for crimes committed in NDH. On the contrary, Croatia, just as Serbia, is one of the successors of former SFRY.
Nationalism, stupidity and money
If this is true (and it is), why do Serbia and Croatia waste so much money on lawyers, and why don’t they simply withdraw these pointless and unpromising lawsuits? Because politicians who are heads of both states are afraid of nationalist attacks and political damage such a decision can cause. In other words, Kosor, Josipovic and Tadic are paying their fear of loosing votes with taxpayers’ money – and this is not their first, nor will it be their last time. Although Josipovic and Tadic touched the subject of withdrawing the lawsuits on several occasions, Kosor would not yield – and she will certainly not do so now, after the Gotovina verdict. Thus, lawyers will be running the meter until the unavoidable courtroom epilogue.
When we are at the subject of money, Croatia has so far paid some 32 million Euros for the defense of Gotovina & Co, and it will pay even more, and all for nothing. The so-called “state reason” aside, Croatia did not have to do this at all, because the Tribunal pays for the legal defense of defendants who cannot afford their own, and does so at affordable prices. This right is to some extent used by defendants who represent themselves, such as the virtuous Radovan Karadzic. How many hungry people could be fed with this 32 million Euros is a question that Croatian taxpayers should ask their government. In Serbia, this sum is considerably smaller – 19 million dinars (around 190.000 Euros) during last year. Besides, this sum was not used directly for the expenses of legal defense, but instead for the travel expenses of the defendants’ families and their allowance in Hague detention facilities. (The difference is, indeed, big, in the price of the victorious Croatian and the defeated Serbian generals).
However, is this sum of 190.000 Euros too little? Can the “state reason” justify the privileges of war crimes defendants and their families which no other citizen has? If you or I were to be arrested in Australia or Canada for petty theft, do you think that Croatia or Serbia would pay our families travel expenses? (However, let us remember the million dollar Milance). By the way, the Republic of Serbia is paying this petty cash on the basis of a highly dubious decision of the late Council of Ministers of the late Serbia and Montenegro, despite the fact that the Constitutional Court of Serbia suspended, in 2004, the implementation of the discriminatory and unconstitutional law on aid to Hague indictees on the level of the Republic of Serbia. Serbia, in other words, is cheating to avoid the decision of its own Constitutional Court. And those are the questions that some normal taxpayers would be asking in a normal country.
Translated by Bojana Obradovic
Peščanik.net, 07.05.2011.