Saturday, 30 April 2011

Historical and Political Aspects of the Activity of The Hague Tribunal


Josip Jurcevic, PhD

In all armed conflicts in the territory of former Yugoslavia Serbia was involved in the role of aggressor while all others defended themselves on their territories. In addition Serbia was the only one systematically preparing itself for an armed solution of »the Yugoslav crisis«, and the only one controlling an armed force, so that all other inner Yugoslav actors where predetermined to play the role of victims.

The only factor, »complicating and obfuscating« an objective understanding and a determined, civilized proceeding with respect to a simple and clear situation in the region of former Yugoslavia, can be found in exterior circumstances and actors. These range from the circumstances of Communism breaking down in Europe, followed by activation of a new European interest dynamics, to the traditional strategic importance of Southeastern Europe from the standpoint of different international circles of interest and powerful governments.

All of the above can, among the rest, be appreciated as well in the establishment and subsequent proceedings of the Hague tribunal, which are far below the level of international legal standards adopted a long time ago, as well as below the worst experiences in international relations so far.

The Hague tribunal was formally granted an exceptionally limited jurisdiction. It was created as an ad hoc court for the region of former Yugoslavia with the right to try individuals exclusively, with neither power over organizations, nor a right to try for aggression itself. In this manner the Tribunal theoretically and practically does not distinguish, equivocating instead, between aggressor and victim, in opposition to basic humane values, as well as moral and legal principles thousands of years old. Furthermore, the Tribunal never announced a trial against any individual outside the region of former Yugoslavia, although there are numerous and various grounds for that, the responsibility for the horrible war crimes committed in the internationally »protected zone« of Srebrenica being the most prominent.

The Prosecution of the Hague tribunal (which is one of the parties in trial proceedings) presents itself as The Court by media techniques and, which is especially worrisome, appears in international affairs as a political institution. In this way the Hague prosecutors have de facto become a political arbiter whose opinion is critical at the UN for imposing sanctions on individual countries.

By political and media pressure on governments and media, the Hague tribunal pro- motes the principle that all suspects are proven criminals, who have to prove their innocence before the Tribunal, a presumption in complete contravention with the common legal standard that guilt has to be proven in court and no one can be considered guilty without a binding court verdict.

The Hague tribunal grossly exceeded its allocated jurisdiction by introducing in practice indictments and trial of individuals for the so-called joint criminal enterprise (JCE), so that in proceedings against individuals it in effect puts on trial »criminal organizations«, meaning states. In addition the term itself is so broadly defined it introduced complete legal insecurity, a situation in which any individual, neglecting customary standards of guilt determination, can be indicted and convicted as a member of a criminal organization. The defendants are put in a position in which they cannot even appreciate of what they are accused, rendering them incapable of exercising their equal right to rebut the points of the indictment. The responsibility, or guilt, of an individual is immersed into a vague collective guilt, which is also in opposition to common legal principles.

Following the proceedings before the Hague tribunal, one is especially struck by the problem of establishing points of fact, either simple or complex. This does not refer to establishing the legal relevance of a fact for the court proceedings, but to the unsound methodology by which the Hague tribunal acquires facts in the first place.

Concerning the Republic of Croatia, the systematic repeating of Hague theses by the Tribunal already achieved psychological and social effects involving first disbelief and apathy, and eventually desperation. If the Hague truths were incorporated into textbooks, a complete breakdown of identity and social disintegration of the Croatian society would result, followed by its thorough remodeling in the service of interests already deeply embedded as financiers and owners.

Opposition to the Hague theses was left to self-appointed individuals, until recently, when general S. Praljak, himself one of the 6 Croats indicted for a JCE in Bosnia, began to resist them systematically, backed by the enormous resource of an archive containing more than 60,000 documents.

It should be pointed out that this database, containing documents of all the parties in conflict, as well as the international community, objectively renders absurd the Hague indictment against six Croats from Bosnia and Herzegovina (B&H) in which they and Croatia are accused of a JCE against B&H. Namely, a large number of documents attests without any doubt that no Croat institution (President, Government, Parliament) did at any time pass an act or a hint thereof in line with destroying B&H and/or annexing any part of it. Furthermore, documents of both states, B&H and Croatia, demonstrate that the institutions of the Croatian state, during the period of conflict between Croatian and Muslim units in B&H, continuously participated in and contributed to the arming of the Army of B&H, as well as established and trained its units on the territory of Croatia. In Croatian hospitals several thousands of wounded soldiers of the B&H Army were treated, many of which wrote grateful letters to Croatian authorities after becoming well, and humanitarian aid also reached the Muslim population over Croatian territory without obstruction.

In the same period of time a large number of Muslim refugees were cared for without any discrimination, and Croatian authorities established and financed a system of schools for Bosnians, featuring a Bosnian teaching program, on Croatian territory. Likewise, numerous national sports representations of B&H where trained in Croatia and supported financially by the Croatian state, etc. Nevertheless, these aggregate facts and thousands of original documents supporting them never were made a centerpiece of public attention even in Croatia, while the Hague indictment for the alleged JCE against B&H remains a most severe threat to the Republic of Croatia.

A similar situation pertains with three generals of the Croatian army (HV) being accused, together with Croatian institutions, for an alleged JCE against Serbs in Croatia, during and after the liberation action »Storm.« Even though the media and several books published a number of original documents from the Croatian occupied territories, clearly demonstrating that the Serbian occupation forces planned and prepared the exodus of Serbian civilians from Croatia for several years, carrying it out before »Storm« – the supporters of the Hague theses both in The Hague and in Croatia insist on these points of the indictment.

Concerning the public perception and interpretation of »Storm« and other Croatian liberation operations, basic facts in their historical, political, and legal context are being ostentatiously neglected. First of all, beginning with the second half of 1991, Croatia acquired international legal status in a stepwise fashion, being eventually diplomatically recognized by key governments in January 1992, and becoming member of the UN in May of the same year. Based on its international status the Republic of Croatia had, according to all international laws and customs, full legality and legitimacy in establishing its jurisdiction over the occupied parts of its internationally recognized territory, the matter being its internal affair.

On all these grounds Croatia was fully within its rights to undertake liberation operations, »Storm« in particular, which, beside reintegrating a large portion of occupied Croatian territory, prevented a repetition of the Srebrenica humanitarian catastrophe in the Bihac region, and made it possible for the war in B&H to end, and the Dayton peace accords to be signed.



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