THE HAGUE TRIBUNAL DOES NOT MEET THE OBLIGATIONS FOR WHICH IT WAS ESTABLISHED
Prof. Dr. Hrvoje Kačić
Pursuant to the UN Charter, the UN Security Council passed Resolution 827 of 25 May 1993, establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), located in the Hague, the Netherlands (hereinafter the Hague Tribunal). The structure of this Tribunal with all its bodies is regulated by a special Statute. The basic objective of the Tribunal was to implement effective means for the protection of humanitarian law, implementation of justice and establishment of truth.
It should be clarified at the very beginning that the composition of the Hague Tribunal, together with some procedural regulations is established (together with the court) by the Office of the Prosecutor (OTP) which is explicitly said to be independent from the Hague Tribunal in its activities, and that the OTP is not obliged to receive or request instructions either from the governments of individual states or from any other body.
Accordingly, in the evaluation of the work of this ad hoc established Tribunal, one should assess the independence of the OTP in relation to the Hague Tribunal. However, since, nominally, the very OTP is within the framework of the Hague Tribunal, such distinctions will be listed only when necessary. Such an approach is justifiable because the Hague Tribunal, like any other court – by presenting the reasons and clarifications and bringing verdicts – has the possibility of influencing the work and actions of the OTP. If the case is the reverse, when tacitly, i.e. by silence, the mistakes and oversights of the OTP are tolerated, such consequences inevitably burden the respect and the evaluation of the court itself.
It could rightly be expected that in performing its obligations, the Hague Tribunal would have the basic duty of determining the truth, and based on real evidence and implementing the law, achieve the realization of justice, especially in the case of the conduct of the armed forces, where the basic human rights, including the civilian right to life, were not only threatened but also violated. With regard to the circumstances and conditions which are the reason for the establishment of the Hague Tribunal, grave mistakes have been made because it ignored basic facts testifying to the suffering of the population, tragic destruction of towns, loss of human lives.
In a great number of causes in the work of the Hague Tribunal so far, in the indictments, but also in the verdicts, one should specially consider the position of the commander, but also of individual officers who were in charge of commanding, and the qualification of commanding responsibility.
The institute of commanding responsibility relates to the state of war and contains elements of vertical or absolute responsibility, and the subjectivity or guilt is denoted and defined by omission in the prevention, or failure in the prevention of the subordinates from committing criminal acts. Such guilt or criminal responsibility also relates to the cases of not undertaking or failure to undertake necessary actions to start criminal procedures against those who had committed war crimes where the commander was in charge of his subordinates.
With respect to the institute of commanding responsibility or vertical responsibility, the principles of objectivity and appropriateness demand primary application to physical persons who are on top commanding positions, because they are the main factors of undertaking attacks in war operations and aggressive operations, and they are also protagonists of causing bloodshed, thus being responsible for the committed criminal actions and war crimes. Such a requirement is not only the consequence of the due respect for the profession and lexical meaning of the nomenclature of this institute of criminal law, but it is required by the principle of equity and honesty, on condition the verdicts for such acts can be passed only on the basis of proven facts and valid evidence, and not by construed presumptions and individual conclusions.
With frequent and repeated application of the institute of criminal law, the so-called commanding responsibility, it is incomprehensible that the commander-in-chief of the so-called Yugoslav People’s Army
has not yet been processed, i. e. has not been involved in the indictment of the Hague tribunal. Beside avoiding his prosecution, not a single general from the co-called Yugoslav Army headquarters, which had complete supreme competence over the army, the navy and the air force of the Yugoslav army – has not been indicted by the Hague Tribunal.
It is really hard to understand that this indisputable omission of the Tribunal primarily relates to the criminal acts of General Blagoje Adžić, who was Chief of Staff of the Yugoslav People’s Army in Belgrade from the onset of the aggression on Croatia to mid-May 1992.
General Adžić displayed his war-mongering and aggressive inspiration to 150 subordinate colonels and majors in the speech held 5 July 1991 at the Military Academy in Belgrade, under the title “We have lost the battle but not the war”, and the speech was published in the media.
This was immediately following the failed military operation against Slovenia after the Slovenian Parliament passed the Declaration of Independence of Slovenia, i.e. on the same day when an identical declaration was passed by the Croatian Parliament. According to the severity of expression, the offensive directives and hatred, Adžić’s speech is a sad episode in the whole twentieth century in Europe. I will just quote several statements and commands:
The multi-party system has brought the peoples into clashes...
A foreign intervention of Germany, Austria, Hungary and Czechoslovakia is impending...
“Traitors should be killed outright, without mercy or premeditation...
We have to use fear to make the enemy capitulate, and henceforth use all your forces and open fire at anyone opposing our actions…Finally, comrade officers, I demand complete use of all your knowledge and skills in the battles to realize the ideals of the October Revolution and in the struggle for Yugoslavia.”[1]
General Adžić was directly involved in the aggression and destruction of both Vukovar and Dubrovnik. His activity is unquestionable in the interventions of MIGs from the Bihać airport on the Zagreb city centre on 7 October 1991.
We should also consider the case of the EU helicopter which was destroyed by two jet MIG airplanes at the beginning of January 1992, when four Italian and one French observers - members of the EU mission were killed. Emir Šišić, the pilot of MIG21 was prosecuted in Rome (convicted to 15 years). It is beyond doubt that he is responsible for performing the shelling and for killing the five EU representatives – observers, but why was the guilt of those criminals who ordered the operation disregarded? The command for the operation was given from Belgrade, from the very top of the military command of the then Yugoslav People’s Army. Following the violent reaction of the world public, the then National Defence secretary in the Yugoslav Government general Veljko Kadijević publicly declared that he would start investigation to establish the liability for shelling the EU helicopter. This declaration initiated the deposition of Minister Kadijević who formally handed in his written resignation on 7 January 1992, and the main protagonist of this deposition was just Blagoje Adžić who remains to be the main and the most responsible person in the commanding structure of the Yugoslav People’s Army.
In the criminal proceedings in the court in Rome the indictment was extended to the ex-general Blagoje Adžić. So, Adžić is being prosecuted in the Court in Italy, although this criminal act was committed on the territory of Croatia near Novi Marof.
This is just another example why many people cannot understand how such a criminal who was the Commander-in-chief of the armed forces of what was then Yugoslavia is not included in the indictment for the greatest crimes committed on the territory of Croatia in the autumn of 1991. Such crimes also fall within the jurisdiction of the Hague Tribunal, and the only explanation for the absence of imputation is a deliberate omission with the intention of the Tribunal to pass a verdict saying that the then Yugoslavia, i.e. Serbia, has committed an aggression on Croatia.
In the criminal proceedings before the Hague Tribunal, in his defence admiral Jokić says that in the operations on the Dubrovnik territory were commanded by general Adžić
RAM PROJECT
An example of the Hague Tribunal’s omission to present evidence on Serbia’s aggression upon Croatia is the way of treating what is known as the RAM project as implemented in the hearing of evidence for Slobodan Milošević. The author of the leading article in the “Vreme” weekly says that the plan was not a fiction but rather the intention to redefine Serbia’s western borders.
It is shocking to realize that in the hearing of evidence for Slobodan Milošević, the “RAM” project, published in the Belgrade magazine “Vreme” in September 1991, is treated as if it had nothing to do with Croatian territory, but rather as the preparation for Serbia’s aggression of Bosnia-Herzegovina, although the attached photocopy represents clear evidence The telephone conversation between Milošević and Karadžić shows that the talks are about shelling the Croatian territory.
Namely, in the recorded telephone conversation, Milošević informs Karadžić that all the weapons necessary will be provided by Uzelac who was the commander of the Banja Luka military district at the time.
Karadžić explicitly demands shelling, but Milošević answers, ”it is not opportune for the aviation today because the European Community is in session….”! This talk was held in mid-September 1991, i.e. at the time of war operations in Croatia, because Serbia’s aggression of Bosnia-Herzegovina started only in the spring of 1992. Two witnesses, however, Vladislav Jovanović who was the foreign minister of Serbia in 1991, and Smilja Avramov, the counsellor of the same ministry, gave false evidence before the Hague Tribunal that the RAM project was the preparation of the attack on Bosnia-Herzegovina. Such false evidence was also given to the Tribunal by a Croatian witness.
The introductory part of the journalist’s comment about the document contains the following remark:
“Reliable sources of “Vreme” reveal that the RAM is no fiction at all. Specifically, RAM is a project to draw the western borders of Serbia, making a framework for a new Yugoslavia where all Serbs with their territories would live in the same state. The sources claim that Karadžić is consulting the generals. Direct commands for the use of the air force in Croatia and the border regions of Bosnia and Herzegovina are given by General Simić from Belgrade. There are constant close contacts of the leaders of Krajina, both Bosnian and Knin krajinas, with the top-ranking military officers, who meet all their wishes. The JNA (Yugoslav People’s Army) has completely taken the Serbian side, and the officers are told what is to be conquered.”
I feel it my duty to report that I have personally handed out the photocopy of the Belgrade weekly “Vreme” at the plenary session of the Conference on Yugoslavia in the Hague, 26 September 1991. I got the copy from a friend who met me at the airport in the Netherlands. Seeing the importance of this evidence, I personally translated it into English on the same night, to present it at the conference the next day. In my presentation at the conference, I stressed that the RAM project was clear evidence of the participation of the Army and Serbia in the aggression on the territory of Croatia. At that conference there were numerous representatives of the then federal government and of Serbia, among them Vladislav Jovanović and Smilja Avramov, but not one of them opposed my presentation that the RAM project referred to the organization of armed attacks on Croatia.
This is why it is really worrying that such outrages and false witnessing in the hearing of evidence before the Hague Tribunal are tolerated without objections, but the falsehoods and lies are later accepted with acclamation, as a project directed against Bosnia-Herzegovina, and not against Croatia. This is an example of intentionally exculpating Serbia and blocking the Hague tribunal whose duty is to establish the truth and respect justice.
Relating to the evidence on the RAM project, it would be necessary to mention the experience of Đelo Jusić who testified as a witness in the hearing of evidence about the persons indicted for the destruction of Dubrovnik. I had personally given Đelo a photocopy of the issue of the “Vreme” weekly, with a recommendation to use it during his evidence. During his preliminary examination in the Hague, with Mrs Del Ponte present, when Jusić presented the photocopy of the “Vreme”, she reacts and says, “This is not important. We have it”, rises from the table, goes to the shelf, takes and shows my book “Serving My Country” where the respective wording was published.
This is another striking example showing that the long-term main prosecutor did not want the evidence to be used before the Tribunal by witnesses who would testify that at that time, i.e. in mid-September 1991, the air force was used to attack Croatia and shell Croatian territory. During the hearing, Jusić was not asked any questions about the RAM project, although this was the prosecutors’ duty. This shows that the prosecutors of the Hague tribunal wanted to avoid evidence which would prove Serbia’s aggression on Croatia.
AGGRESSION
In the process of the break-up of the former Yugoslavia and all the time during the war operations of the Yugoslav Army, Serbia and Montenegro of the territory of Croatia, it was often pointed out, both in the public and in the documents of the Croatian Parliament and the Government, and by the representatives of Croatian authorities, that the operations were the aggression of the Yugoslav Army and the Serbian and Montenegrin forces on Croatia. This was the basic approach and it was completely in conformity with the provisions of the UN Convention 3314, defining aggression. This Convention was adopted by the UN General Assembly on 14 December 1974. Article 3 of the Convention defines seven examples of the acts of aggression, and all those examples were done in practice during the autumn 1991. Article 5 of this Convention explicitly says that “no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”
The numerous resolutions passed by the UN Security Council used very powerful rhetoric directed at Serbia and Montenegro, upon which sanctions were imposed from May 1992. However, the qualification of using their armed forces in the attack on Croatia was never qualified as aggression. The same was done by the Hague Tribunal. The only explanation for this behaviour is in the attitude to avoid defining which country was the aggressor and which country was the victim, with the purpose to equalize the guilt for all suffering, loss of lives, and destruction.
Badinter’s arbitration commission, established by the European Community (and whose composition was agreed on by the then federal Government and all the six republics) states that Croatia and Slovenia acquired their sovereignty on 7 September 1991, and from that date Croatia and Slovenia are independent and sovereign states.
At the joint meeting of all its houses, held 8 October 1991, the Croatian Parliament passed conclusions where Articles 1 and 2 state the following:
1. The Republic of Croatia has been subject to aggression by the Republic of Serbia and the so-called JNA: the Republic of Croatia is forced to defend itself from the aggression with all available means.
2. The so-called JNA is declared aggressor and occupying forces and is obliged without delay to leave the territory of the Republic of Croatia which it has taken.
This ruling of the Croatian Parliament was published in the Official Gazette (“Narodne Novine”) No. 53 of 8 October 1991 and was available to all bodies of all republics in the neighbourhood of the Republic of Croatia. Since there was no protest from the Republic of Serbia, in conformity with the international law provisions, it is justifiable to qualify this as what is legally defined as aggression.
An inarguable example of Serbia’s aggression on Croatia is the conclusion brought by the Government of Serbia at its meeting held 4 October 1991. The official notification of the decision was sent by fax to the Croatian Government. A photocopy of attached at the end.
Paragraph 2 reads:
“Your decision to use this city of priceless historical and cultural value to deploy your paramilitary formations, black legions and numerous foreign mercenaries, and from that area to start armed attacks on inhabited places in Herzegovina and Boka Kotorska, is an extremely uncivilized, inhuman and ignoble act.”
We should also draw attention to the proceedings against Admiral Miodrag Jokić, commander of the Southern naval district, in the Hague tribunal. Omissions and lack of objective treatment in issuing the indictment against this admiral are impossible to explain or justify.
During the conference in the Yugoslav Navy building at Tivat, and before boarding the Yugoslav Navy cruiser to visit Dubrovnik which was already under the siege of the army and the navy commanded by admiral Jokić, on 29 October 1991, I stopped the admiral’s presentation, in the presence of five ambassadors accredited in Belgrade and numerous military attaches, because the admiral was saying terrible lies, like that the army barracks on Prevlaka (Cape Oštro) were being attacked from the Croatian territory and that was the reason why the units under his command had to start “liberating” Dubrovnik.
I asked Admiral Jokić to state to the diplomatic dignitaries and admit the terrible lie which was recorded in the official letter and signed by Dragutin Zelenović, the then Prime Minister of Serbia on behalf of the Government of the Republic of Serbia in an official communication (5 October 1991) to the Government of Croatia, stating:
“At its session of 4 October 1991, the Government of the Republic of Serbia was informed about the danger posed to the population and the city of Dubrovnik, which is a part of history of Serbian and Croatian nation, and the magnificent monument of the world cultural heritage.” [2]
This document represents clear evidence that the aggression on the Croatian territory was undertaken with the approval of and on behalf of the Government of the Republic of Serbia. There is no proof that this material was used in the criminal proceedings against Slobodan Milošević (!), and the indictment against the President of the Government of Serbia has never been implemented.
Admiral Jokić appeared before the court voluntarily, and in the “bargaining” negotiations the indictment was narrowed, since he pleaded guilty and expressed his sincere regret for the shelling and destruction of Dubrovnik.
The justification of the Hague tribunal’s ruling lists the “sincere regret” and pleading guilty, and repeatedly stated that there had been two victims and three wounded on 6 December 1991. However, following the JNA attacks, on that day there were 19 victims and over 60 wounded. At the time when Miodrag Jokić was commander of the military district including Dubrovnik, there were over 250 victims.
In the proceedings against admiral Jokić at the Hague tribunal, witness for the defence Marjan Pogačnik, retired admiral, testifies that “Miodrag Jokić always supported the full equality of all nations and ethnic groups. That was his basic approach, and he had never expressed any nationalistic views” (Annex 3)
The Court accepted the truth of this testimony, although the November 1991 issue of the Titograd daily “Pobjeda” published a big photograph of admiral Jokić (and this is separately printed in the monthly issue of the then leading daily in Montenegro, under the slogan “WAR FOR PEACE”), stating literally the following:
“It is not far from assuming that the ustashe, who do not care about any values except their own skin, will destroy the old Dubrovnik themselves, to attribute this atrocity to the JNA units”.
This document was also not used in the proceedings against admiral Jokić, and many accepted conclusions were contrary to the real evidence.
Mr Petar Poljanić, Mayor of Dubrovnik at the time, standing as witness in the procedure against Slobodan Milošević, said, on 18 December 2002, that he was quite certain that Krsto Đurović had been killed by representatives of the Yugoslav Army. It is impossible to justify why the Hague tribunal bodies neglected asking witness Poljanić additional questions, although it is quite possible to conclude that Milošević had also been involved in it.
I had personally been informed by Nikola Samardžić, the Montenegrin Foreign Minister at the time, who was also a native of Boka kotorska like the late Đurović, that members of JNA had liquidated the Boka commander Đurović, but he warned me not to mention it in public because some people who had witnessed the event had also been assassinated.
Still, at the Hague meeting, 28 October 1991, in the building where the Conference on Yugoslavia was held, I had a dialogue with Bulatović and Samardžić, which Samardžić started saying “We are ashamed at what is happening in Konavli”, because they allegedly had no influence over Jokić, and could not talk wih him, to which I had a remark about commander Đurović’s assassination. Nobody officially published the circumstances in which captain Krsto Đurović had been assassinated. As the commander of the Boka navy sector, he was assigned the task to fully control the Trebinje –Boka kotorska road via Grab and Mrcine (Dubravka). As the commander of all units in the area south-east of Dubrovnik, he launched the operation on 1 October 1991. Already on 5 October his units too the area where the road goes through Konavle and informed the command in Belgrade about it, but then he received the order to advance as far as Plat, which supplies the barracks on Prevlaka with electricity and water.
However, Đurović, the commander of the sector, refused to do this because he opposed the attack on Dubrovnik, and this was the reason for his assassination.
The top army leaders refused to carry out investigation, and the leaders of what was then Yugoslavia and Montenegro also wanted to conceal the circumstances of this crime. The reasons for such conduct of Serbia and Montenegro are quite clear, but I cannot see any reason why the relevant bodies of the Hague tribunal can justify and explain this silence.
At the meeting at the Yugoslav Navy building at Tivat, 29 October 1991, where distinguished diplomats from Italy, the Netherlands, Great Britain and Greece were present, I interrupted admiral Jokić’s monologue, because he was telling lies about the beginning of the operation on Dubrovnik, because he had taken command only on 7 October 1991, I clearly pointed out that the former commander Đurović “was killed under extraordinary circumstances”.
ABSURDITY OF THE IMPUTATION FOR THE CRIMINAL ENTERPRIZE
It is not fair to discuss the tragedy known to the world as Srebrenica without assessing the conditions, circumstances, commitments and responsibilities imposed on many factors and leading members of the UN Security Council, especially in those crucial moments. Operation “Storm” cannot be and will never be fairly evaluated, if the causes and the situation in this area are ignored, especially in the first half of 1995, and the consequence of which is the tragedy of the civilian population in Srebrenica and Žepa.
In order to protect the endangered population, in 1992, the UN Security Council decided to establish UNPA areas in Croatia and Bosnia-Herzegovina. Remembering the experience with the escalation of violence, starting in Kosovo in 1980ies, this decision was implemented by establishing what is known as “Protected areas”.
Based on previous experience, representatives of the international community estimated that due to increasing danger, specific areas or towns, and not only the “protected areas” deserve a greater degree of safety. For this purpose, the UN Security Council made special decisions to establish what is known as “Safety Zones”. Thus the UN Security Council’s Resolution 819, passed 16 April 1993, proclaimed Srebrenica a safety zone. Considering the decision useful and necessary, especially for the protection of the civilian population, several weeks later, UN Security Council Resolution 824, (passed 6 May 1993) extended the UN Safety zones to Bihać, Sarajevo, Žepa, Goražde and Tuzla. UN military forces were obliged to provide protection in those safety zones. As known, the UN military forces’ mandate when coming to Croatia, and, later, to Bosnia-Herzegovina, the UN prerequisite was for all warring parties to agree on ceasefire and peace-keeping, i.e. maintenance of the already agreed peace.[3]
Relating to the system of protection and the degree of obligations taken by the UN forces, their units had the obligation of peace implementing and peace enforcement. This protection was not brought for declaratory motives but rather to protect the endangered population, and this was the established obligation of the UN forces on the ground to use all available means for protect the established safety zones.
French general Morillon publicly announces to the endangered population that they will never be abandoned by the UN. In spite of this, even after the proclamation of the “safety zones”, there were violent attacks on Sarajevo and Tuzla, and especially Bihać, where the population was exposed to terrible suffering, left without food and medicines, and many saw their last days in prison camps.
Y. Akashi, as special envoy of the UN Secretary General, unsuccessfully tried to stop the escalation of Serbian paramilitary forces on the population of the Bihać and Cazin area.
At the end of May 1995, on the territory of Bosnia-Herzegovina, Serbian military forces started capturing numerous UNPROFOR members, keeping them as hostage, with much cruelty. In such circumstances negotiations started between the representatives of the UN and of Serbian military forces. On 4 June 1995, in the Zvornik hotel “Vidikovac” is a meeting of Bertrand Janvier, the then commander-in-chief of the UN forces in ex-Yugoslavia and Ratko Mladić, the commander of the Bosnian Serbian army forces.[4]
One of the essential conditions of the coordinated agreement was the obligation of the Serb forces to release all UNPROFOR hostages, on condition UNPROFOR forces stop using aircraft in military operations on the territory controlled by Serbian forces. This agreement was approved by the UN Secretary General’s special envoy. In such circumstances, what followed was the aggressive attack of Serbian forces on Srebrenica, and in a very short time Srebrenica and Žepa were conquered, because the UNPROFOR forces in the two proclaimed “safety areas” were unable to defend the local population without the protection of the UN air forces.
The population in the “safety zones” were right to expect that everybody, especially the children, old people and women would indeed be protected by the UN forces. However, the brutal force continued, while the representatives of the international community revealed their incompetence and powerlessness. Karadžić and Mladić, with their Belgrade protagonists and protectors, launched offensive operations in early July 1995. Srebrenica experienced apocalypse faced by the entire world from 8 to 15 July, with genocidal massacres where over 8600 people, mainly men, were killed, while women and children were expelled, thus causing the crime of extermination. Several days later, Serbian conquerors repeated similar outrages and crimes in Žepa, whose population had been guaranteed safety by the UN Security Council.
The UN forces demonstrate their indecisiveness and confusion, at the same a worrying degree of lack of organization. These qualifications were given by respectable sources of the international community. The Serbian forces see this as additional incentive to continue realizing their criminal plans, which can be checked from subsequently published phonograms and telephone conversations between Mladić and Karadžić. They arrange details how to continue the offensive to conquer Goražde and Bihać. In the meantime, in the USA and the UK, and especially in France and the Netherlands, extensive and incontestable evidence has been collected, on the basis of which even the high circles in the governments of those countries admitted that UNPROFOR people had made a lot of mistakes. However, there were no proceedings for such negligence.
We should also consider standpoints taken in the document of the specialized UN institution, Report of the UN Economic and Social Council of 22 August 1995, where item 93 reads as follows:
“The fall of Srebrenica and Žepa brought tragedy, loss of life and serious human rights violations to those areas. At the same time, it seriously undermined the credibility of the security Council, the Secretary General and the whole United Nations system.” (Annex 5).
Pursuant to Art. 51 of the UN Charter, Croatia had the right to launch the military-police operation “Storm”. Complying with its constitutional obligations, supported by all people in the protection of the sovereignty and territorial integrity of the country to finally liberate the occupied parts of Banovina, Lika and northern Dalmatia, Croatia undertook the commitment to prevent further tragedies of the population in Cazinska krajina and Bihać.
Namely, it should be noted that in such circumstances Croatia and Bosnia-Herzegovina made the so-called Split agreement on 22 July 1995, whereby the neighbouring country agrees that Croatian armed forces can also act on the territory of Bosnia-Herzegovina to stop the violence caused by Serbian paramilitary units.
Croatia was did save Bihać, and Cazin, and Goražde. The commitments undertaken by the units of UNPROFOR were actually done by Croatia, thus preventing consequences even more tragic than those that occurred.
The action of the Croatian army put an end to the suffering of the tormented population of the so-called safety areas of Bihać and Goražde, which improved the disturbed reputation of the UN and the position of many UN official of the time.
The UN Brahimi report attributes the Srebrenica tragedy to wrong assessment and incompetence to correctly assess the risks to which the population was exposed. But nobody in the environment from which the UN representatives came and where the institutes of commanding criminal responsibility were established, pleads for the same criteria of the legal institute of vertical responsibility to be applied for the mistakes thus made.
This opens up the question why the active participants of operation “Storm” whose merits in saving the innocent population are indisputably enormous, are subjected to incriminations on the commanding or vertical responsibility. Each war is a sad reality, and on this occasion we should remember the message of the great Croatian Renaissance dramatist Marin Držić that war is “the bane of human nature”.
Accordingly, all those who have provoked war and incited violence deserve to be faced both the criteria and the criminal responsibility, while those who have defended themselves and are personally not involved in any criminal action, but rather, putting their own lives at stake, have contributed to saving a great number of civilians and bringing about peace, do not deserve to be incriminated on the grounds of individual responsibility without their personal guilt. Finally, taking into account not only juridical criteria, but also humanistic, moral and ethical criteria, then we should also take into account all facts and circumstances in which certain participants have taken part to meet the requirements of impartiality. Any activity to the contrary is just a manifestation of unobjective and biased behaviour, which is an intolerable omission for responsible officials.
How can one apply the institute of commanding or vertical responsibility to those who saved the population of Goražde and Bihać? Their efforts prevented many people whose rights, not only civil and human rights, but also the right to life, were threatened from experiencing the fate of the population of Srebrenica and Žepa. At the same time, there is a much greater number of those whose failure to comply with the obligations they had undertaken made obvious mistakes in the tragedy of the population of Srebrenica and Žepa and have never been called to account for it.
Finally, too long have the promoters of violence, of armed power against civilian population with the use of professional army and arms, i.e. both airplanes and tanks, and in some cases also war ships been accepted as peace-makers in the Hague, Geneva, London, Paris, Dayton and Ramboillet. The criminal liability fro war crimes should primarily be applied to the directors and accomplices and commanders-in-chief of the war violence, for numerous breaches of the war law and especially to those who committed war crimes.
When the first six hundred bodies were buried on the Srebrenica cemetery early in April 2003, Kofi Annan, the UN Secretary General publicly admitted that the tragedy of Srebrenica is a stain on the face of UN. It is really justifiable to ask the question who should be praised that there were not many more such stains on the UN face because of the impending tragedy in Goražde, Bihać and the complete Cazinska krajina?
At that time foreign diplomats estimated that by protecting Bihać, Croatia saved tens of thousands of people from massacre. Why is Tadeusz Mazowietski not called as a witness at the International Criminal for the territory of the former Yugoslavia, or why are at least three of four of his eighteen reports not handed to the court as evidence? This evidence would definitely contribute to not accepting the qualification of the “Storm” as a “criminal enterprise”. Finally all the representatives of Croatia should realize it their duty to show, and to prove to the world, and especially to all the members of the European Union that it was just the Croatian military-police operation “Storm” that, regarding the population of Bihać and the complete Cazinska krajina, fulfilled the obligations which were previously undertaken by the UN Security Council.
It is Croatia’s duty to constructively cooperate with the Hague tribunal, but this does not mean that one can tolerate omissions to present facts and evidence in our favour in order to establish the truth.
The representatives of Croatia in the international community institutions are obliged to oppose any attempt to qualify the “Stom” as a criminal enterprise, because this is a clear example of blanket criminalization, which can be applied to many individuals by using the institute of commanding responsibility for their participation in the operation “Storm”. Tolerating this by silence (qui tacet consentire videtur) makes it possible for individual subjects to take the position that without using specific procedures Croatia inadequately cooperates with the Hague tribunal. This could be used for additional imposition of unequal status of Croatia in the negotiating procedure.
Namely, it is our duty to state that in such circumstances Croatia and Bosnia-Herzegovina signed the so-called Split accord, 22 July 1995, by which the neighbouring state agrees that the Croatian armed forces can act on the territory of Bosnia-Herzegovina to stop the violence committed by Serbian paramilitary units. In those dramatic conditions and circumstances, Tadeusz Mazowiecki, the special representative (Rapporteur) of the European Community and the UN for human rights on the territory of the former Yugoslavia, who had spent two years and eleven months on the territory of Bosnia-Herzegovina, but also in Croatia, Macedonia and Serbia, handed in his resignation on 27 July 1995, explaining he was doing this because of inefficiency of UNPROFOR and the hypocrisy of the international community.
Here are just short quotes from Mr Mazowiecki’s letter addressed to the Chairman of the Commission on Human Rights:
“Events in recent weeks in Bosnia and Herzegovina, and above al the fact that the United Nations has allowed Srebrenica and Zepa to fall, along with the horrendous tragedy which has beset the population of those “safe havens” guaranteed by international agreements, oblige me to state that I do not see any possibility of continuing the mandate of Special Rapporteur….The creating of “safe havens” was from the very beginning a central recommendation in my reports. The recent decisions of the London conference which accepted the fall of Srebrenica and resigned itself to the fall of Zepa are unacceptable to me. Those decisions did not create the conditions necessary for the defence of all “safe havens”.
These events constitute a turning point in the development of the situation in Bosnia. At one and the same time, we are dealing with the struggle of a State, a member of the United Nations, for its survival and multi-ethnic character, and with the endeavour to protect principles of international order. One cannot speak about the protection of human rights with credibility when one is confronted with the lack of consistency and courage displayed by the international community and its leaders. The reality of the human rights situation is illustrated by the tragedy of the people of Srebrenica and Zepa.
Human rights violations continue blatantly. There are constant blockades of the delivery of the humanitarian aid. …. And the “blue helmets” and representatives of humanitarian organizations are dying. Crimes have been committed with swiftness and brutality and by contrast the response of the international community has been slow and ineffectual…..But the present critical moment forces us to realize the true character of those crimes and the responsibility of Europe and the international community for their own helplessness in addressing them.”
It is not justified or right to agree that Dayton brought about the end of war operations in Bosnia-Herzegovina. It is regrettable that Croatian representatives speak to the world saying that Dayton, or rather the “Dayton accord” provided peace to Bosnia-Herzegovina, without mentioning the above-mentioned contribution of the “Storm”. The successful military-police operation “Storm” (within 82 hours) stopped the bloodshed and tragic clash also on the territory of the neighbouring state, Bosnia-Herzegovina. The myth on the invincible Serbia has finally been finished. We should inform the world public that even Dobrica Ćosić, member of the Serbian Academy of Sciences and Arts, contaminated his public and poisoned the Serbian young people with his public speeches where her inspired them to aggressive warfare saying that “Serbia loses in peace what it has won in war” (World War One, the Treaty of Versailles, World War Two, the Treaty of Potsdam).
Joop Scheffer (the ambassador of the Netherlands in Zagreb in 1994-1998 and after that the representative of the Netherlands with the UN in New York) puts on record explicitly:
”In order to understand the situation after the fall of Srebrenica one should keep in mind the fact that Bosnian Serbs can no longer be persuaded not to take other protected zones….. The same destiny awaited Bihać”. [5]
It is obvious that many important documents were not presented in the hearing of evidence against the persons indicted in the Hague court.
Thus, for example, at the plenary meeting of the Conference on Yugoslavia, held in the Hague 18 October 1991, chaired by Lord Carrington, a draft “Agreement on Ceasefire without Delay” was proposed. The conditions of this draft agreement were to be sent by the presidents Tuđman and Milošević to all armed forces. The draft contained three paragraphs (see Annex 6) The meeting was attended by the presidents of all republics and the president of the federal government. There were no objections to the draft except by Dr Tuđman who proposed that the text of paragraph one reading “unconditional ceasefire without delay” should be amended to read with additional provision “that all units should refrain from advancing from their present positions”.
Lord Carrington puts this proposal for debate, but the proposal was not supported by anyone, not even by President Izetbegović of Bosnia-Herzegovina, so Lord Carrington rejects the proposal explaining that it is not seconded or supported by any other party, This evidence is also in the files of the Hague Conference. If the proposal had been accepted there would have been no shelling and conquest of Vukovar,
Škabrnja and many other territories of the Republic of Croatia. It is a fact that numerous “ceasefire” agreements have remained without the expected positive results, but it is also a fact that the ceasefire agreement proposed by Cyrus Vance at the meeting in Sarajevo 2 January 1992 incorporated and accepted this condition, i.e. commitment to refrain from advancement, and it is true that this agreement was followed by a stop in the conquest and destruction on the territory of Croatia.
However, how can one make accusations on the “joint criminal enterprise” and the forcible division of the territory of neighbouring countries when the use of such facts and thus establishing the truth are blocked.
Due to the numerous omissions in many cases we point and prove that THE HAGUE TRIBUNAL OMITS ESTABLISHMENT OF THE TRUTH. THIS MEANS THAT IT DOES NOT ACHIEVE THE FUNDAMENTAL GOALS FOR WHICH THE TRIBUNAL WAS ESTABLISHED.
Such treatment indicates that there is no wish to establish that Serbia decided to undertake military operations (from land, air and sea) against Croatia on indisputably Croatian territory, by which really and juridically the court avoids to determine that aggression on Croatia has been made.
At the same time, by concealing the facts, evidence and proofs, fabricating the objectives of definite operations and events, falsifying the final reason of definite statements by which definite conclusions are construed, there is a wish to impose the view that the aggression on Bosnia-Herzegovina was not done by Serbia, i.e. Yugoslavia, but also by Croatia.
Namely, the procedure so far indicates that main objective left for the main directors is the incrimination or avoiding to bring culprits to court under the slogan of “reconciliation of the parties in this area” to equalize the guilt or the responsibility of Serbia, or Yugoslavia with that of Croatia.
The problem of “artillery logs” and the follow up of this issue is really worrying. There are numerous declarations and witnesses whether the shelling of Knin lasted one or two hours longer and resulted in the loss of one citizen, and this is without doubt an innocent victim. At the same time there is no word of Vukovar, Vinkovci, Osijek, Sisak, Gospić and Dubrovnik (in particular the village of Osojnik), resulting in thousands of victims. The Hague tribunal was silent, and the institutions at home follow the policy of “forgiveness” which was brought at the time when one expected the Hague tribunal to be objective. This farce has been going on too long, and the consequences can be worrying and painful.
[1] In order to inform the world public about the behaviour of the Yugoslav Army’s Commander-in-chief, I personally handed the total transcript of Adžić’s speech, translated into English, containing over two pages of text, to numerous foreign diplomats, from 10 July 1991. I quoted some of his statements in my public appearances, e.g. at the Plenary session of the Conference on Yugoslavia in the Hague (25 September 1991), the conference of PMs of NATO states in Brussels (12 February 1992), the plenary session of the Council of Europe in Strasbourg (4 May 1992).
[2] I first received this information about this utterly immoral decision of the Government of Serbia from the then foreign minister in the government of Montenegro at the end of October 1991. The evidence of N.S. before the Hague tribunal in the proceedings against S. Milošević, although utterly unfavourable for the role of Serbia and Montenegro about the aggression on Croatia was not used or published in public, although the extensive minutes of the Hague tribunal are available on the Internet.
[3] During the preparation for the arrival of the “blue helmets” to Croatia and the neighbouring Bosnia-Herzegovina, I was directly involved in numerous activities on adopting the Vance plan. In this, of special importance were the achievements of the so-called Conference on the former Yugoslavia, chaired by Peter Carrington, and the Arbitration Commission chaired by Robert Badinter, as well as the preparation of UN representatives and their contribution in passing the resolutions of the UN Security Council.
[4] Data published in US Newsday, NRC Handelsblad Rotterdam, Algemeine Zeitung, Frankfurt, Courier International, Paris No. 292 6/12.061996, “Globus“ Zagreb, 7.06.1996, and some of them state that 370 hostages were taken. In his book “To end the War” Richard Holbrooke says that over 350 representatives of the UN forces were detained.
[5] The book by Joop Scheffers: Ambassadeur in Zagreb 1994-1998 was originally published by the SDU-Uitgevers publishers, Den Haag, in 1999 in Dutch, and the Croatian translation was published by „CERES“ – Zagreb, in 2000. However, the data that appeared in this book published in the Hague, written by a renowned diplomat of the Netherlands, who continued his career at the UN in New York, do not seem to have been used by the notables engaged within the Hague Tribunal.
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