State vs. State

Serbia and Croatia’s Competing Genocide Claims

Serbia and Croatia have opened their competing genocide cases against each other at The Hague—and lawyers in Russia and Ukraine will surely be taking note.

Ron Haviv/VII/Corbis

The Russia-Ukraine conflict will likely end not with a bang but a lawsuit.

If so, the venue will be the International Court of Justice (ICJ) at The Hague. The ICJ—not to be confused with other courts and tribunals dealing with war crimes, such as the International Criminal Court (ICC) —is the foremost judicial arm of the United Nations. The ICJ adjudicates on disputes between states and its rulings are binding.

Government lawyers in both Kiev and Moscow are doubtless watching the court’s latest high-profile case: the suit and counter-suit by Croatia and Serbia. Both countries accuse each other of genocide during the Yugoslav wars of the early 1990s. Croatia opened its case on March 3 by showing a video of the Serb attack on the city of Vukovar. After Vukovar fell in the winter of 1991, Serb forces killed 260 prisoners and buried them in a mass grave. Serbia began its case on Monday, focusing on Operation Storm in August 1995, when Croatian troops recaptured territory occupied by the Serbs. More than 200,000 Serbs fled their homes and a still disputed number of civilians were killed.

This is the second time that Serbia has faced accusations of genocide at the ICJ. The court cleared Serbia in 2007 of committing genocide after the fall of Srebrenica in eastern Bosnia. Some 8,000 Muslim men and boys were killed by the Bosnian Serb army. However, the court ruled that Serbia was in breach of the genocide convention by failing to prevent the massacre. (General Ratko Mladic, the Bosnian Serb military commander, and Radovan Karadzic, the political leader, are both on trial for genocide at the International Criminal Tribunal for the Former Yugoslavia (ICTY), also in The Hague.)

Beyond the yah-boo of suit and countersuit, both cases could prove embarrassing for the United States. Before Operation Storm, the Croatian army received substantial assistance from the United States, much of it channelled through private military contractors. Most analysts believe that the rapid collapse of the Serb army was due to the vastly improved training and reorganization of the Croatian military—which makes the United States complicit in the largest single refugee movement in Europe since 1945.

The hearings are set to end on April 1 and the ruling is expected by the end of 2014 or in early 2015. It seems unlikely that either country will gain the recognition it seeks as a victim of genocide. General Ante Gotovina, the commander of Operation Storm, was cleared on appeal by the ICTY in 2012, thus confirming Operation Storm as a legitimate military operation. The massacre at Vukovar and the mass killings at other sites during the Croatian war, while horrific, are unlikely to meet the standard for genocide: the deliberate extermination of a sizeable, distinct group, as happened at Srebrenica. Yet Croatia and Serbia are seeking not so much punishment for their opponents as a kind of national vindication. Twenty years on from the Yugoslav wars, the wounds and memories are still raw.

In any case, while the court’s rulings are legally binding, the ICJ has no power to enforce them, especially when national or local authorities ignore the court’s decisions.There is no ICJ police force or prison. A plaintiff who does not receive resolution must take the case to the UN Security Council. The ICJ ruled in 2004 that the separation barrier between Israel and the occupied West Bank was illegal, but it is still standing. That same year the ICJ ruled that the United States was in violation of its obligations under the Vienna Convention, which guarantees diplomats access to their nationals arrested in foreign countries. The ICJ said 51 Mexican nationals had had their rights violated, including Edgar Tamayo Amias, and their case should be reviewed.

The Texas authorities ignored the request. Arias, who was convicted of the 1994 murder of a Houston police officer, was executed in January 2014. Both the Bush and Obama administrations requested that such executions be stayed and reviewed, because of the potential consequences for Americans arrested in other countries.

The ICJ has also taken on the spooks. On March 3 the court issued a significant ruling that will be welcomed by small states with large and powerful neighbours. The court ordered Australia to stop spying on East Timor. One of the world’s newest countries, East Timor achieved independence from Indonesia in 2002. East Timor’s legal wrangles with Australia continue over the boundaries of a $36.2 billion maritime natural gas deposit in the Timor Sea. The case is being heard at the Permanent Court of Arbitration, also located in The Hague.

Three months before the ICJ ruling, on December 3, 2103, agents of the ASIO, the Australian secret service, raided the offices of Bernard Collaery, the Australian lawyer acting for East Timor. A dozen agents seized legal documents, electronic files, correspondence between East Timor and its lawyers, and a statement by a former ASIO agent which alleged that the ASIO bugged East Timor’s offices during negotiations over the gas deposit. The agentalso had his passport seized.

In a setback to Canberra, the ICJ ruled that Australia must not “interfere in any way in communications” between East Timor and its lawyers. Australia must keep all the seized documents and data sealed until further decisions by the court and must ensure that the seized material cannot be used in any way to the disadvantage of East Timor until the maritime arbitration case is concluded, which is not likely to be for another year. However, the judges did not order the material to be returned to the country’s lawyers.

As Tom Allard notes in the Sydney Morning Herald, the ruling, which comes in the wake of the Snowden revelations about the reach of Western intelligence agencies, is the first time that the ICJ has imposed restrictions on the ‘Five Eyes’: the intelligence services of the United States, Great Britain, Canada, Australia and New Zealand. The ICJ may be little known, but it is becoming an increasingly important international forum.

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The Geneva Option, Adam LeBor’s thriller set in the United Nations, is published by HarperCollins.