Phillippe Sands, member of Croatian legal team

At the beginning of the third week of the public hearings before the International Court of Justice in the genocide claims Croatia and Serbia have filed against each other, the Croatian legal team responded to the arguments presented by Serbia last week about Operation Storm. The Croatian team contested the claims that genocide against the Krajina Serbs was committed during and after Operation Storm in accordance with the ‘genocide plan’ that had allegedly been put together at the Brioni meeting and implemented through indiscriminate shelling, mass murder, destruction of the Serb property and the efforts to prevent the refugees from returning.

As Croatian representative Vesna Crnic Grotic said, last week the Serbian side presented a ‘revisionist version of the history’, based not on reality but on unproven allegations about the crimes and the finding in the trial judgment against generals Gotovina and Markac at the Tribunal in The Hague. The trial judgment was reversed on appeal. Operation Storm was a ‘legitimate military operation’ whose objective was to liberate the occupied Krajina territory, not to commit crimes against Serbs, Crnic Grotic stressed. She also dismissed the claim made by the Serbian team that ‘a peaceful reintegration of Krajina was not an option’ for Croatia. Milan Martic, the president of the self-proclaimed Krajina state, was against the peace agreement, Crnic Grotic noted.

The Croatian team contested the claim that a plan to commit genocide against Serbs was drafted on 31 July 1995 at the Brioni meeting. In particular, the Croatian legal representatives strenuously objected to any comparisons with the holocaust and the Nazi Germany. Last week William Schabas, the Serbian team’s legal representative, drew a parallel between the Brioni meeting and the Nazi gathering in Wannsee in 1942, where the plan of the ‘final solution’ for the Jewish question was agreed. Schabas compared the arguments presented by the Croatian team in a bid to relativize what Tudjman and other participants had said at the Brioni meeting with the aspirations of the ‘so-called historians’ who have tried to do the same in their interpretations of the Wannsee meeting. The Croatian team found this comparison to be ‘disappointing’. Professor Phillippe Sands expressed his hope that his colleague Schabas would withdraw his words.

The Serbian team repeatedly invoked Tudjman’s words from the Brioni meeting, such as his statement that his troops should ‘inflict such blows that the Serbs will, to all practical purposes disappear’. As British barrister Keir Starmer recalled, the Trial Chamber that convicted Gotovina and Markac did not interpret this statement as a call to commit crimes against civilians. Tudjman continued the sentence saying that the ‘Serb forces’ had to capitulate. According to the Trial Chamber, this was an indicator that the ‘practical disappearance’ might refer to the Krajina army, not the civilians. Based on the other excerpts from the Brioni meeting, for instance when the Croatian president said it was important for the ‘civilians to go first’ and that the ‘civilians should be given a way out’, the Trial Chamber concluded that a criminal plan had been forged then. But, as Starmer recalled, the Appeals Chamber decided that those words may have been a reflection of the desire to provide ‘temporary shelter’ for the civilians and thus reduce the casualties.

The Croatian team reminded the judges that the appellate judgment in the case against the Croatian generals quashed the finding about the indiscriminate and unlawful shelling of Knin and other towns in Krajina. The Trial Chamber did not findthat the murders, looting, destruction of the Serb property and the efforts to prevent the refugees from returning were the goals of the joint criminal enterprise. According to the trial judgment, they were ‘just’ a natural and foreseeable result of a process that required the deportation, i.e. the permanent elimination of Serbs from Krajina.

In his arguments refuting the Serbian claim that civilians were killed en masse during and after Operation Storm, lawyer from India Anjolie Singh said there was no evidence of any attacks by the Croatian army and police on the refugee columns, as alleged by the Serbian team. Vesna Crnic Grotic stressed that the two lists with the victims' names provided by Serbia were not reliable. The first list contains the names of 1,719 victims killed in Operation Storm; it was produced by Veritas, a non-governmental organization. The Croatian team has found a number of mistakes in the list, including double entries and names of persons who died of natural causes or by accident. The other list was produced by the Croatian Helsinki Committee. Crnic Grotic reminded the ICJ judges that the CHC list had not been admitted at the trial of the Croatian generals as unquestionable.

The Croatian team concluded their counter-arguments with Professor Philippe Sands's presentation. As he argued, Serbia filed its suit for ‘tactical reasons’ to draw attention away from the accusations it was facing, not to protect the victims and prevent future genocide. Sands gavenine reasons why the Croatian arguments, unlike those presented by Serbia, support the genocide allegations. The crimes were committed systematically in a much wider area over a longer period of time. The claims presented by the Croatian side about genocide against Croats in the occupied territories were confirmed in the judgments in The Hague, unlike the Serbian accusations about Operation Storm. The Croatian claims are supported by ‘voluminous evidence’, and the Serbian by ‘a single transcript’, Sands said. ‘There is no evidence of the intent to destroy the Serb ethnic group in Krajina in 1995’, Sands concluded.

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