The International Court in The Hague adopted a final decision yesterday. The ruling stated by the presiding judge Peter Tomka will be, with no doubt, the subject of a detailed reading and legal controversy, and once again a memory of the suffering, exiles and death in the bloody and brutal wars in the former Yugoslavia.
The ruling of the judges in the mutual claims on genocide of Croatia and Serbia was expected. In fact, known at least since February 26, 2007, when the same court ruled, deciding on the monstrous massacre in Srebrenica, that Serbia and Montenegro did not commit genocide in Bosnia and Herzegovina, that they were not involved in the conspiracy nor were immediate participants of the war, but that they had violated international duty to prevent the genocide and punish the perpetrators. The Court added that agenocide against Bosniaks, Bosnian Muslims was committed in Srebrenica without a doubt, and that it was committed mainly by members of the Army of Republika Srpska under the command of Ratko Mladić.
Therefore, the legal framework of the ruling for the Croatian lawsuit against Serbia from 1999 and the Serbian countersuit filed against the Croatia ten years later was evident. The Court will prosecute those who are guilty of war crimes and aggression against another state, and not for genocide.
Accordingly, Croatia could therefore file a complaint against Milošević’s Yugoslavia and the JNA for the attack on their territory and aggression, almost with certain successful. However, they did not do it. Right here, another side of bloody Yugoslav wars was concealed. And precisely this side explains yesterday’s Hague ruling.
At the beginning of 1996, the then Croatian minister of defence and intimate of the president Dr. Franjo Tuđman, was in his visit to Washington. He met with the Minister William Perry, Richard Holbrooke and Wesley Clark in the Pentagon. The US statement was quite unambiguous and binding for the first time. They demanded that Croatia fully cooperate with the International Criminal Tribunal for war crimes committed in the former Yugoslavia. The Croatian general Tihomir Blaškić, military leader of the Bosnian Croats in central Bosnia, immediately responded to the court after that. Four years later he was indicted. The ruling, in fact extensive text, presented by the Presiding Judge Claude Jorda, was shocking. First, because of the penalty. Blaškić was sentenced to 45 years in prison, and then because of the content. The fact is, this sentence gave a new definition of Croatian-Bosnian conflict between 1993 and 1995, as an international conflict and aggression of Croatian republic on one of the Member States of the United Nations, Bosnia and Herzegovina. The Court understood that, I quote: the Republic of Croatia was not satisfied only with the role of an observer and it did not only protect its borders, but it intervened in the conflict between Bosnian Muslims and Croats. The verdict puts that international armed conflict into a wider political context of the discussions allegedly led by Dr. Tuđman and Slobodan Milošević on the division of Bosnia and Herzegovina.
The influential Croatian weekly “Globus” published, at the end of July 1999, an article about the documents in the possession of the Hague Tribunal. It quoted the speech of President Dr Tuđman, where he explains the possible division of the neighbouring state between Croatia and Serbia. In “the remaining part around Sarajevo, where mostly Muslims and Catholic Croats would remain, they would form a small state that would remind of the historic state of Bosnia and form a buffer zone between such demarcation between Croatia and Serbia. In this way, the Croatian national interests would be nearly optimally met.”
If the aggressor in the Yugoslav wars had been almost completely decided up to that decision, as Milošević and the idea of Greater Serbia, the things were different after this decision.
This is the first part of the answer on why Croatia could not sue Serbia for aggression, because it would undoubtedly open the question of an agreement between Milošević and Tuđman.
After the death of Croatian President Dr Tuđman and after the inauguration of the new President Stipe Mesić, the then Hague chief prosecutor Carla del Ponte found out that an entire military archives of the Bosnian Croats hidden in military bases in Zagreb and Split had been discovered.
Tuđman changed his mind on the need for cooperation with the Hague Tribunal after the Blaškić verdict, with the help of the principle that “the Croats who liberated the country from the evil cannot be called for responsibility.” At the same time, he questioned the conviction of those responsible for the destruction of Vukovar and the siege and bombardment of Dubrovnik.
President Mesić consequently started the subject of war damages that Serbia had to pay. The Serbian Prime Minister Zoran Đinđić replied to him shortly before his death, in January 2003. I quote based on my notes. I would not start these questions in such way, said Đinđić, because everyone would have more benefits without the excessive reopening of the topics of the past. Serbia also has a lot of arguments, also due at least 200,000 of exiled and expelled.
Serbia started preparations for the countersuit. The next president, Boris Tadić, emphasized that it should not be rushed with the countersuit and that it would be better if Croatia would not sue Serbia. First of all, it would be politically expedient to resolve all outstanding issues caused by the wars individually, in court proceedings that would not increase international tensions.
In the beginning of 2009, the then Serbian Prime Minister Mirko Cvetković announced the proposal to Croatia to drop charges of genocide. Dr Ivo Sanader, who was coming for an official visit to Belgrade, gave brief reply: “I think we have more important topics than this.”
The then legal expert and opposition representative, and the current Croatian president, Dr. Ivo Josipović, was substantially more specific. We have to check how the facts stated in the lawsuit are implemented, and, above everything, punishing of the most responsible war criminals, cooperation and finding out the fate of missing persons and internees, restoring of the cultural heritage and other matters consequence of Serbian aggression. Only after a rational evaluation of whether the objectives set out in the suit are achieved, opening of the question of possible withdrawal of lawsuit can be possible.
On January 1, 2010, the Croatian president was a guest of his Austrian counterpart Heinz Fischer at the New Year concert. Serbia brought a countersuit, and Mesić said in Vienna that it would be very difficult for them to prove that “genocide was committed against Serbs, because no Croatian soldier crossed the Serbian border, nor killed anyone within the territory of Serbia nor burned a Serbian house or bombed any Serbian city”. He also added was primarily in the Milošević’s interest that the Croatian Serbs go to Serbia.
Mesić opened another question with this. Historian Dr Dušan Bilandžić writes in his Memoirs 1945 – 2005, that on June 5, 1995, after the military operation Flash, he reported to Tuđman that Serbia would not defend Knin and that most Serbian population would move out either to Bosnia or Serbia. The president’s answer was short, “Let them go.”
It is here that the question of the so-called Brioni transcripts, also mentioned in yesterday’s ruling of an international court in The Hague, begins. It refers to a meeting held by Dr. Tuđman with Croatian army commanders, on July 31, 1995, just before the start of big military operation “Storm”. Tuđman started the operation, because he was convinced that he could defeat the army of the Krajina Serbs, because he had a series of intelligence information that motivation of armed forces of the Krajina is bad, and that Belgrade would not give them any help, and the least military. Part of the president’s Brioni talks with the generals, in which the court was interested, was Tuđman’s sentence that the attacks on Serbs were so huge that they would make them practically disappear. This was followed by a horrible expulsion of Serbs from Krajina and their migration to Serbia. The Court said in yesterday’s verdict that the transcripts indicate that the Croatian leadership knew that the operation “Storm” would cause a mass exodus of Serbs from Krajina. They might have even expected something like that, Judge Tomka added. However, the Court ruled that the evidence was not sufficient for the decision on genocide or the intention of physical destruction of Serbian Krajina Serbs.
The decision of the Hague Tribunal was expected. Both Croatian lawsuit and Serbian countersuit were rejected.
However, the whole corpus of outstanding issues from the war remains. Not a single one from the lengthy agenda of 26 points, from the question of displaced and missing persons up to the border issue, was resolved. And so many destroyed human destinies remain. So many unfulfilled desires and intentions. So many undiscovered graves.
We should believe Vesna Pusić, the Croatian Minister of Foreign Affairs, when she says that this decision must mean some kind of help in closing of one historical period and sign of better, more constructive and safer time.