THEMATIC DEBATE

The sixty-seventh session of the United Nations General Assembly

“Role of International Criminal Justice in Reconciliation”

Panel: JUSTICE FOR VICTIMS

1. It is an undeniable fact that the breakup of the former Yugoslavia occurred in the 90s of the last century. It was a multiethnic state and the break up has happened in the worst possible way – with a bloody war that, no matter how it is called by the confronted parties, had all the characteristics of a civil war.

2.  In this war all conflicting parties have had their victims:

2.1.   In the area of today's Croatia in the period from 1991 to 1995, according to data from the lawsuit and countersuit of Croatia and Serbia for genocide before the International Court of Justice (ICJ), there was a total of 20,241 victims, of which 59 percent on the Croatian side, 35 percent on the Serbian side and on the side of the Yugoslav National Army (JNA) 6 percent.

The participation of civilian casualties on the Serbian and the Croatian side is between 37 and 38 percent.

2.2. Out of total number of victims on the Serbian side in the military operation “Storm” was recorded 1,834 victims, including 64 percent of civilians, of whom about half were older than 60 years.

2.3.  In the area of Bosnia and Herzegovina  (BiH), in the period from 1992 to 1995, according to the list of the Centre for Research and Documentation from Sarajevo, there was a total of 97,207 victims, of which 66 percent are Muslims, 25 Serbs, 8 Croats and 0.6 percent others.

The participation of civilian casualties is 41 percent, of which 83 percent were Bosniaks, 10 percent Serbs, 5 percent Croats and 1 percent others.

2.4. In the area of Kosovo and Metohija in the period from 1998 to 2000, according to the list of the Humanitarian Law Center (HLC) from Belgrade, there was a total of 13.421 victims, of which 78 percent are Albanians, 17 percent Serbs and 5 percent others.

The participation of civilian casualties on the Serbian side, according to the data of victims’ families, is 62 percent.

2.5. The above presented data indicate that during the 1990s war in the former Yugoslavia (excluding victims of NATO aggression on Yugoslavia outside KiM) total number of causalities was at least 130,850 persons, of which at least 26 percent were Serbs.

2.6. There were at least 8,047 of civilian victims on the Serbian side (24 percent of total Serbian causalities), but their actual number, according to the Serbian associations of families of victims is much higher.

It should be noted that between civilian and military casualties there is no firmly defined border. On the Serbian side often, mainly because of certain privileges, civilian casualties were reported as military.

3. One of the very present characteristics of the war in the former Yugoslavia was large forced migration of people:

3.1. Comparing data from the census in Croatia from 1991 and 2011, the number of Serbs from 12.2 dropped to 4.36 percent, the number of Croats increased from 78.1 to 90.4 percent, while the number of Yugoslavs has fallen from 2.2 percent to just 0,008 percent. Expressed in figures this means that 395,030 Serbs and 105,710 Yugoslavs are no longer in the Republic of Croatia but also considering that among Yugoslavs there were at least 60 percent Serbs. Only in the operation “Storm”, in a few days, over 220,000 Serbs were expelled from Krajina.

3.2. Comparing data from the census 1991 in Bosnia and Herzegovina with estimates of UNHCR from 1997, the number of Serbs in the territory of the Republic of Srpska (RS) from 54 percent increased to 97 percent, while the number of Bosniaks 29 percent and Croats 9 percent dropped to 2 and 1 percent.

In the BIH Federation (FBiH) number of Bosniaks from 52 percent increased to 73 percent, the number of Croats remained at a level of 22 percent, while the number of Serbs from 18 percent dropped to 2 percent.

3.3. Comparing data from the census at Kosovo and Metohija in 1981 and 2011 (excluding the north of Kosovo) number of Albanians from 77 percent increased to 93 percent, while the number of Serbs dropped from 15 percent to 1,5percent.

3.4. There were forced migrations of the population on all confronted sides, but as shown by the data from the census, contrary to Serbs, Albanians returned to Kosovo and Croats to Croatia, while real information for BIH will be known after the census, the first after the war, which should be done in October this year

4. In twenty years of the ICTY, there were 161 persons charged of which: 110 Serbs; 34 Croats, 9 Bosniaks, 7 Albanians and 1 Macedonian.

4.1. So far, including the final verdict and judgment, a total of 82 defendants were sentenced to a total sentence of 1215 years in prison, of which: 62 Serbs sentenced to a total of 974,5 years in prison, plus five life sentences; 12 Croats in a total of 166 years in prison; 5 Bosniaks to total 43,5 then 2 Albanians for 19 years in prison and 1Macedonian to 12 years in prison.

4.2. Among the accused is 68 percent of Serbs, while there is 76 percent of Serbs among convicted. Also on the Serbs applies 80 percent of all imposed sentences and all five life sentences.

4.3. There are currently 12 defendants in the trial phase before the Trial Chamber or waiting first-instance verdict of which 6 are Croats and 6 Serbs, so it is almost certain that presented statistics will be even worse for the Serbs.

4.4. Among the accused and convicted Serbs was the entire political, military and police establishment of the RSK, BiH, SRJ, Serbia and the JNA from the war period and all were accused and most convicted for the joint criminal action, whose purpose was to create a pure Serbian ethnic territories in Croatia, Bosnia and Herzegovina and Kosovo and Metohija.

4.5. On the area of BiH out of 12 convicted Croats just one is convicted of crimes against Serbs and out of 5 convicted Bosniaks just three were convicted of crimes against Serbs, whereas on the area in Republic of Croatia and KiM nobody was convicted of crimes against Serbs.

4.6. The highest ranking accused and convicted of Bosniaks, Croats and Albanians were to the level of Chief of Army staffs and commanders. And when they were accused of ethnic cleansing of the Serbs, the Trial Chamber was not able to determine the existence of a plan for ethnic cleansing, so they pronounced symbolic penalties, which were more like a punishment for poachers than for war crimes. Boards of Appeal have been more sympathetic to them, and they reduced or even annul such symbolic sentences.

5. “Storm” is the only case in which Serbs from Croatia were victims and which was tried before ICTY. The Trial Chamber unanimously found that two of the three indicted generals were involved in joint criminal actions, whose common purpose was to permanently remove Serbian civilians from the Krajina by force or threat of force, and sentenced them to 24 i.e. 18 years in prison.

5.1. Such a conclusion the Trial Chamber issued assessing the evidence, such as transcripts of the meeting of Croatian leadership in Brioni, illegal and indiscriminate shelling of residential areas, a number of individual crimes against the Serbian population, open hate speech then President of the Republic of Croatia and the introduction of discriminatory measures in order to prevent the return of Serbian population in Croatia.

5.2. For unlawful and indiscriminate shelling of residential areas, the Trial Chamber accepted as the standard that unlawful were all shells landed more than 200 meters from a legal military target (“200 meter rule”).

5.3. The case was considered by the Appeals Chamber only on the assessment of a “rule 200 m” where they concluded that according to this rigid standard there was not enough evidence in the case and, according to that logic there are “no evidences of unlawful shelling, neither joint criminal actions“, so annulled the entire judgment of the Trial Chamber and released the accused generals on all counts of charges.

5.4. Even though the Appeals Chamber did not deny crimes in the judgment of the Trial Chamber, they still did not find it necessary to condemn the accused generals even on the basis of alternative forms of accountability.

5.5. So, despite the unanimous judgment of the Trial Chamber that the highest members of the Croatian leadership, including the president of the state, made a joint criminal undertaking aimed at ethnically cleansing of Serbs from Croatia, there was a split decision of the Appeals Chamber, adopted with three votes against two, that “according to presented evidences that none reasonable tribunal could not establish that such undertaking existed.”

5.6. Reversing “the rule of 200 m”, the Appeals Chamber fully accepted the request of military-academic (American-British-Canadian) lobby, while in the course of the appeal procedure was vigorously opposed the rule, explaining it as a limiting factor for the use of artillery in populated places in the current and future wars.

5.7. In this way, the ICTY, under the influence of powerful lobbies who come from strong states, actually defended legal killing of civilians, completely ignoring justice for victims.

6. The Establishment of the Tribunal was not welcomed by Serbs, since they considered that the establishment of the same was with a task to, through a formal judicial process, verify already formed opinion about Serbs by the international community, and for the same reason it was boycotted until in 2001.

7. Unlike the great majority of Serbs, I accepted cooperation with the ICTY Prosecution, explaining it to myself, and to others, that a valid assessment of the Tribunal's work we will be able to give only once we see what kind of attitude they will take towards our victims and presented evidences.

8. In November 1994 in Knin, on behalf of “Veritas” for the first time I welcomed a delegation of ICTY Prosecution and since then and until the first instance verdict related to the “Operation Storm” I cooperated with dozens of Tribunal´s officers and officials including investigators, prosecutors and judges.

9. After all decisions  of ICTY during its twenty-year of existence, with a lot of bitterness I have to admit that my compatriots were right when they claimed, even at the time of its establishment, that this Tribunal shall share selective justice only, not considering the legal but political logic.

And selective justice is the same as injustice.

10. It is a fact that the Armed Forces of the Republic of Croatia in the operation “Storm” in August 1995, acted with full support of MPRI, and within a few days managed to expell from Krajina nearly a quarter million of Serbs, devastating their property, and killing more than 1800 of mostly old and helpless people who have remained in their homes, even though they were under the protection of UN peacekeepers, and also it is a fact that the ICTY did not condemn anyone for this crime.

Today, 18 years since the crime was committed, when the operation of ICTY is almost to it´s end, we can conclude, with a regret, that the Tribunal, in this particular case, did not meet any of the objectives for which it was founded: did not bring justice to the victims, did not contribute to reconciliation, but also seriously undermined the same and with its judgments do not prevent the commission of crimes in future, but rewards and encourages the same.

11. I wish no one will ever go through the tragedy of bloody civil war, as it happened to us in the former Yugoslavia. If, however, something like that happens somewhere, do not let a Tribunal such as the ICTY happen again.

New York, 10 April, 2013

Savo Štrbac