Croatia, Serbia and the crime of genocide

Serbia and Croatia should move to drop their respective claims for genocide and instead work together to solve their remaining problems, for the sake of both good neighbourly relations and the wider region.

By Petar Jordanoski

The lawsuit that Croatia has submitted claiming that Serbia committed genocide during the early nineties, and Serbia’s recent countersuit on the same issue, is not a good instrument for clarifying relations between the two. In the case that neither is withdrawn, the final verdicts of the International Court of Justice (ICJ) in The Hague will cause waves of discontent in both countries; with neither able to prove that the other has organized or supported genocide.

Both Zagreb and Belgrade officials are aware that they can not win their respective cases. Unfortunately, public opinion will put pressure on each government not to withdraw from the proceedings and to demonstrate that their people were the victims. In this case, both Serbia and Croatia have to date decided to ride the wave of populism and nationalism, rather than to solve mutual problems based on the principle of good neighbourly relations.

First, we must understand what constitutes genocide. According to the UN Convention on the Prevention and Punishment of the Crime of Genocide from 1948, genocide is any of the following actions – killing members of a national, ethnical, racial or religious group, or serious injury to physical or mental integrity of members of the group, or deliberate exposure of members of the group to conditions of life which should lead to total or partial destruction of the group, or measures aimed at preventing the birth of the group members or forced displacement of children from one group to another.

One precondition for proving the crime of genocide is demonstrating clearly the intention to destroy the group. Without determining the intent, we can not speak of genocide; regardless of the volume of crime, its intensity or degree of severity. The convention was passed to outlaw atrocities like the Holocaust. The first draft of the Convention included political killings, but the USSR along with several other nations would not accept that actions against groups identified as holding similar political opinions or social status would constitute genocide, so these stipulations were subsequently removed in a political and diplomatic compromise.

The word genocide was first used in 1943 to describe the crime “that had no name”; the systematic and organized destruction of the Jewish population during World War II. In 1994, genocide was again committed in Rwanda, where the Rwandan government organized the killing of more than 800,000 Tutsis in just one-hundred days. Women, children and elders were systematically killed, with most murders carried out manually with sabers due to a lack of bullets. National radio was constantly broadcasting a message from the prime minister calling on the people to enforce a process of killing Tutsis, and to solve that ‘problem’ once and for all. The state mobilized part of the intellectual elite and the politicians who repeatedly spread the seeds of evil.

Whilst it is an undisputable fact that terrible acts were committed in the former Yugoslavia – including murders, rapes assimilatory acts, ethnic cleaning etc – in order to prove the crime of genocide, there must be a plan to eliminate a national, religious, linguistic or racial group. In the case of Croatia, though the atrocities can be termed war crimes and crimes against humanity, they do not constitute genocide.

An additional argument for why Serbia and Croatia should withdraw from the process is the ICJ’s decision with respect to the appeal by Bosnia and Herzegovina against Serbia, which stipulated that there was no strong evidence that Serbia committed or supported genocide.

The complaint of Serbia is also somewhat inappropriate due to the fact that much of it focuses upon World War II, despite this not being within the jurisdiction of the ICJ (the Court only deals with cases after the adoption of the Convention for prevention of the crime of genocide from 1948).

Indeed, the judgements and decisions of the International Criminal Tribunal for former Yugoslavia (ICTY) indicate a new trend in international law; namely, a shift from the concept of collective responsibility to individual responsibility.

Both Serbia and Croatia must be aware that their mutual accusations that genocide was committed by the other will only serve to worsen their relations and make the process of EU integration more complicated. In addition, potential appeals will cause chain reactions and fuel claims that genocide occurred elsewhere in the Balkans, primarily in Kosovo. The only realistic option for Serbia and Croatia, therefore, is to withdraw their respective claims. Anything else would be a huge step backwards for the region.

Petar Jordanoski is a PhD candidate in international law at University La Sapienza in Rome, Italy.