The International Court of Justice Rules No Genocide for Serbia and Croatia: Who Gets the Biggest Gain?
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By TEA IVANOVIC
BOLOGNA — The International Court of Justice (ICJ), the principal judicial organ of the United Nations, ruled on Tuesday that neither Serbia nor Croatia committed acts of genocide during the Yugoslav War of 1991-1995. While many political commentators and legal experts expected this ruling, Serbia benefits more from this decision than Croatia.
Due to gross oversimplifications, Serbia has often been portrayed as the aggressor in the Yugoslav wars, while both Croatia and Bosnia were the victims. Indeed, Serbian generals have been prosecuted for genocide crimes in Bosnia, but no one has been sentenced for crimes of genocide on the territory of Croatia. In addition, for the first time, the military action Operation Storm was classified by Judge Peter Tomka as an aggression against the Serbian population in Krajina, albeit not as genocide. Nevertheless, the lone fact that Operation Storm was classified as a joint criminal enterprise aimed at the expulsion of the Serb population living in the Krajina region is a turnover in its own right for the Serbian state.
The Croatian government under Franjo Tudjman issued a claim in 1999 that Serbia committed genocide in the town of Vukovar and elsewhere in 1991. Croatia asserts that, between the end of August and 18 November 1991, Vukovar was besieged and subjected to sustained and indiscriminate bombardment. It alleges that between 1,100 and 1,700 people — 70% of whom were civilians — were killed during that period. In addition, Croatia claimed that the Yugoslav National Army (JNA) and Serb forces killed large numbers of ethnic Croats between 1991 and 1995 in the regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika, and Dalmatia. The ICJ concluded that Croatia’s contentions do not support the evidence that genocidal content was the reason for aggression. The ICJ rejected Croatia’s claim on the ground that there was no evidence that the Serbian intention was to physically destroy a group, but to punish the enemy in a military sense. Croatia failed to show that the perpetrators intended to destroy part or the whole of the group, and it has not established that the only reasonable deduction is the intentional destroying of the Croat population in whole or in part.
In its counter-claim filed in 2010, Serbia alleged that Croatia violated its obligations under the Genocide Convention by taking action, and failing to punish the action taken, against the Serb population in the Krajina region of Croatia during Operation Storm and its aftermath in 1995. The ICJ ruled that Croatia, while deliberately and militarily forcing a substantial part of Serbs to leave the Krajina region, and while well aware that Operation Storm would provoke mass exodus, is not guilty of genocide. “What is generally called ethnic cleansing does not constitute genocide,” Tomka said at the court’s Hague headquarters. “Acts of ethnic cleansing may be part of a genocidal plan, but only if there is an intention to physically destroy the target group.” Genocide is generally defined as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.”
Genocide is the most serious of international crimes, but it is also the hardest to prove. The ICJ, which rules in disputes between states, has recognized only one genocide case since opening its doors in 1946. In 2007 the court ruled that genocide had taken place in 1995, at Srebrenica in Bosnia, when almost 8,000 Muslim men and boys were murdered and their bodies dumped in mass graves by Bosnian Serb troops that overran a U.N.-protected area. It is important to note that state responsibility and individual criminal responsibility are governed by different legal regimes and pursue different aims. The former concerns the consequences of the breach by a state of the obligations imposed upon it by international law, whereas the latter is concerned with the responsibility of an individual as established under the rules of international and domestic criminal law, and the resulting sanctions to be imposed upon that person.
The ICJ ruling closes a chapter for both countries, which is especially important for the newest European Union (EU) member, and a EU candidate country with a past of regional tensions. Serbian Foreign Minister Ivica Dacic said the ruling “will be one of perhaps the most important events for our bilateral relations with Croatia.” Serbia has made two important gains from this ruling: it was proven not to be an aggressor during the war in Croatia, and it established that Operation Storm was indeed an act of aggression against the Serbian people. While both countries avoided the possibility of having to pay large war reparations had they been convicted of genocide, Serbia can utilize this judgment as an advantage for its shaky foreign policy, both in the region and elsewhere.
