Legally, Serbia Wasn't Involved in the War?!
by Visnja Staresina
Vecernji List, Zagreb, Croatia, March 28 1998
A new indictment, new delight, new scandal or new information about the possible
political consequences of the work of the Hague tribunal on the former Yugoslavia
are almost the only occasions on which the work of the Tribunal draws the attention
of the Croatian public. Unfortunately, even on those occasions, the discussion
usually stays at the level of pure political speculation: was that yet another
case of unjust and unjustified pressure on Croatia and Croats or without doubt an example of international
justice. The announcements that according to the judgments of the Tribunal
Croatia could become the first and only aggressor in the last war, namely the
aggressor on Bosnia-Hercegovina, and even pay war reparations to Bosnia-Hercegovina,
have caused at least a bit of alarm, although perhaps too late. Are these speculations
based on truth or simply blown out of proportion in order to draw attention to
the problems which are normally ignored?
International Conflict Wasn't Proved in the Tadic Case
It is the fact that in its judgments in individual cases the Hague Tribunal also
pronounces verdicts regarding the existence or lack of international conflicts if
the crimes in particular indictement are qualified as grave violations of the Geneva
convention. According to some lawyers who as the external advisors participated in
the writing of the Tribunal procedural rules, that could have been solved more
simply for the Tribunal by making a pronouncement that the wars in the
former Yugoslavia, since 1991, have partly been international conflicts, which would
have released the Tribunal from the obligation to prove the existence of
an international conflict in every case, even if it applies to only a few villages.
However the judges accepted different standards. Thus, so far, we have one judgment
about the lack of evidence for the existence of an international conflict.
In the case of Bosnian Serb Dusan Tadic, the council decided that in the Prijedor
region, between June 1992 and June 1993 there had been no international conflict,
although some military units from Serbia had been present, because the prosecutor failed
to prove that Serbia had had full and effective control of these units. Based on that
judgment, the parts of Tadic's indectment qualified as grave violations of the Geneva Convention
were rejected.
Uncertain for Srebrenica
In those cases currently processed by the court the prosecutor will try to prove the
existence of an international conflict in Vukovar and east Slavonia in the fall
of 1992 (Dokmanovic case), and in the Lasva valley (Blaskic case). For example, in the
trial of Milan Kovacevic, president of the executive council and member of
the Crisis headquarters of the Prijedor municipality at the time of ethnic cleansing
of Croats and Muslims and the establishment and operation of concentration camps
Omarska, Keraterm and Trnopolje, the prosecutor will not even try to prove the existence
of an international conflict. The indictment of Karadzic and Mladic for the massacre
in Srebrenica also does not contain qualifications of an international conflict, but
only an armed conflict, in spite of the fact that it is known that the attack
was executed by the armored units from Serbia. If the two ever become available to
the court the indictment may change, but both outcomes are very uncertain at the moment.
On the other hand, the prosecutor probably will try to prove the existence of an
international conflict in the trial against Dario Kordic. Not only that; if the
court accepts prosecutor's proposal for the modification of the indictment, it will cover
a much wider territory than the Lasva valley, probably the whole Croatian Community of
Herceg-Bosna. It can be heard unofficially that the prosecutor will attempt to
prove the links between Kordic and the Croatian state and political leaders.
Only HVO was an Occupying Force
None of the indictments raised against Bosnian Serbs so far, nor the only indictment for
Serb crimes in Croatia which has so far been made public (Ovcara), points out
a similar link with the Serbian political and state authorities. Only the HVO has
so far been qualified as partly an occupying force (the Lasva valley), unlike
for example the Bosnian Serb Army. The prosecutor is still trying to prove
his assertions, the Court hasn't decided on this matter, the prosecutor can modify
the existing and release new indictments, but according to the present situation, Croatia
is close to becoming, according to the international judgments, the first and
perhaps the only aggressor in this territory.
Regarding Vukovar, two respected lawyers (both wish to remain anonymous) who
have collaborated with the Hague Tribunal only appear to have different views. The first
one says that he doesn't believe that the court will decide that there was an international
conflict in Vukovar in 1991 because Croatia was at the time not recognized as an
independent state and the international community hadn't yet announced that it considered the
Socialist Federal Republic of Yugoslavia to be dissolved. The other one states that
the decision about the existence of an international conflict is probable because
of the existence of two armies, but that the court will not decide which army
was an occupying force, because of legal (SFRY was an internationally recognized state
at the time and Croatia had proclaimed independence) and political issues -
judgments of the International Tribunal shouldn't encourage other separatist movements.
Both lawyers are fairly certain that the court will decide for the existence of
an international conflict in the cases against Croats from Bosnia-Hercegovina, if not in Blaskic case, than in the trial against Kordic, where the indictment
covers a wider territory.
Book as a Proof and "Smart" Serbia
Namely, Croatia and Bosnia-Hercegovina were at the time internationally recognized
states, Croatia even emphasized its links with Bosnian Croats through identical
names of political parties, state and military insignia, some generals actually
wrote books about their successes in the neighboring state, and some state officials
from that time are today ready to confirm prosecutor's claims at the trial. Serbia has also protected
herself better from the legal point of view with the formal decision about
the withdrawal of the members of the Yugoslav Peoples Army from Bosnia-Hercegovina
after the international recognition of Bosnian independence and so far there
haven't been any witnesses from the Serbian state leadership who would be willing
to tell the court that Milosevic conducted the wars in Croatia and Bosnia-Hercegovina.
True, our legal advisors emphasize that Croatia could defend from similar accusations
by invoking agreements with the Bosnian government about military co-operation and evidence of
military assistance provided to the Bosnian Army, but it is questionable whether
the court will be willing to accept such evidence for the territory in which the
said crimes were committed.
Because of lack of caution and unnecessary mistakes Croatia has objectively been
brought in the position to become according to the judgments of the International
Tribunal the only foreign participant in the war in Bosnia-Hercegovina and
indirectly the only aggressor. Both of the mentioned lawyers believe that the
matter of war reparations is unlikely to surface in the future. Namely, war
reparations could only be imposed by an international court and only in theory.
Bosnia-Hercegovina would first have to raise the issue in the court, which is unlikely
because of political relations with Croatia; then the court decides whether there
is a basis to accept the accusation, which is unlikely, then makes a more systematic
investigation of the validity of the Hague International Tribunal judgment.
Even it it confirms the decision about the international conflict, the reparation
problem can only be resolved with the agreement of both states. For example
in the dispute between the USA and Nicaragua in which the International
Court of Justice concluded in the verdict that the American influence on the Nicaraguan
Contras internationalized the conflict, Nicaragua refrained from further
prosecution after the initial moral victory knowing that the USA would never
accept to pay war reparations.
Nevertheless, a verdict of the International Tribunal for war crimes in the
former Yugoslavia about an international conflict would certainly have political
repercussions and influence the policy of the International Community with
respect to Croatia. Besides, the official history of the last eight years in
this region will largely be written in the Hague, and not in Croatia, Bosnia-Hercegovina
or Serbia. Thus, it would do no harm if we also realized the importance of
the Tribunal and began to approach it as a court and not a political discussion
club. We are already very late, but better late then never.
Translated on 4/17/98
