Under the leadership of republican leader Franjo Tudjman, Croatia declared independence from Federal Yugoslavia on 25th of June, 1991. Thereon forces of Federal Yugoslavia acted immediately and started ethnic cleansing in order to take control of as much land as possible. In 1991, Serbians gained control of nearly one third of Croatia’s lands.
Events show some similarities between Bosnia at that point. But, Croatia which had been a victim until 1995, executed “Operation Storm” in order to regain control of the lands which were controlled by Croatian Serbs and because of this operation, including all Croatian Serb Military, 200.000 people fled the territory. Croatian Serbs who remained, were killed and tortured by Croatian Police and Military forces. Former Croatian Military General Ante Gotovina is being tried by ICTY (International Criminal Tribunal for the former Yugoslavia).
When it is looked into description of Genocide crime in the Convention on the Prevention and Punishment of the Crime of Genocide, the Genocide crime was described so simply that it can be committed by only one person. This description is criticized by several legal practitioners. Especially, the lack of the term “planned and systematic actions” in the definition of the crime, caused the crime to differ from Raphael Lemkin’s (founding father of genocide concept) description. This fact which can be considered as insufficient tried to be complemented by court decisions and courts especially put special emphasize on dolus specialis. Verdict on Jelisic case can be shown as the most prominent example. Goran Jelisic has not been found guilty for committing Genocide crime on grounds of lack of dolus specialis (special intent), even many witnesses indicated that he was killing Muslims systematically. Court said Jelisic couldn’t have been aware of what he was doing; he was just killing Muslims randomly.
ICJ (International Court of Justice) gave a verdict in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide - Bosnia Herzegovina v. Serbia and Montenegro (will be referred as “The Bosnia Case” from now on) which can be accepted as a reform on International Law and the Court stated in its ruling that states could be prosecuted for committing genocide. But Court set the standard of proof very high and casted the burden of proof upon the Plaintiff.
Croatia filed an application against the FRY (Federal Republic of Yugoslavia) claiming that FRY committed a Genocide (Serbia is a successor of FRY). Serbia wanted the Court to uphold objections of Croatia and stated that Serbia can not be a party to the case because it was not a member of UN until November 1, 2000 and events mentioned on the application belong to timeframe which took place before the FRY came into being (April 27, 1992).
In the Bosnia Case, people who committed genocide were in touch with Serbia but Bosnia has lost the case. Is there any chance for Croatia to win this case? More importantly Serbia stated that it will file an actio contrario (counter claim) against Croatia based on the events occurred in the Operation Storm.
The Jelisic Case, has shown how hard it is to prove genocide committed by real people. The Bosnia Case has shown that to prove genocide committed by states is nearly impossible.
ICJ in its judgment regarding to preliminary objections stated that the Court can try Serbia. That judgment gave Croatia hope for winning the case. But it has not to be forgotten that the Court only accepted Serbia’s party status and judicial qualification. ICJ gave the same verdict on the Bosnia Case; yet, it overruled nearly all of the Bosnia’s arguments.
When the reasons behind Croatia’s filing an application are examined: Croatia relied on; International public opinion just like Bosnia and it thought ICJ would be less tolerant to the Serbia since its previous decision on the Bosnia Case had been harshly criticized a lot by international public.
Judgment on the Bosnia Case caused Bosnia loss of only their indemnity rights but losing the case can cause Croatia to be found guilty for a genocide crime. So Croatia should carefully determine their evidences which will be submitted to ICJ, in order to avert the back fire of the situation against them in case of an actio contrario. Otherwise, Croatia can be declared as the first state which is found guilty of Genocide crime because of its application about genocide.
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