Croatia On A Collision Course With The Tribunal

After the talks he held at the beginning of last week in Zagreb with Tribunal Chief Prosecutor Louise Arbour, Croatian Minister of Justice, Zvonimir Separovic stated: "It is within our rights to dispute the Hague Tribunal's jurisdiction. Mrs. Arbour thinks differently, and I think that we can expect vigorous reaction from her..."

The Minister was right: the reaction followed, and was indeed vigorous. The day after talks with Separovic and Foreign Minister Mate Granic, Arbour announced in Zagreb she would take action hitherto "reserved" for the FRY and would ask the President of the Tribunal to report Croatia's non-cooperation to the UN Security Council.

Most problems between The Hague and Zagreb derive specifically from Croatia's decision to dispute the primacy of the Tribunal. On Tuesday, July 20, in Zagreb, Arbour gave a detailed inventory of those problems that she said were causing "grave concern about the level of cooperation my office has been receiving from the Croatian authorities."

In talks with Separovic and Granic, Arbour cited a long list of OTP requests for assistance that went unanswered. "I put it to them," Arbour stated, "that for some considerable time now Croatia in fact has not been discharging its obligation to cooperate with the Tribunal in a satisfactory manner, and explained to them that I consider that I now have no option but to request the President of the ICTY to report the situation to the Security Council."

Arbour also revealed that on June 22 1999 her Office presented to Croatia a consolidated 'Request for Assistance', listing several outstanding unanswered inquiries, some going back to 1996, and renewed many times. On that occasion, Croatia was requested to respond within three weeks.

A month later, during her visit to Zagreb, Arbour said she was informed "that it may be a few months before I am provided with some answers. Other answers, I was told, would not be provided because they relate to Operation Storm (the Croatian Army's recapture of the Krajina in 1995), or involve matters of national security, or would be offensive to the dignity of the Croatian people, or would require turning over all of Croatia's military archives."

Arbour cited several examples at a press conference in Zagreb.

The first goes back to November 1996, when Zagreb was requested to hand over to the Prosecution a copy of the inventory of documents captured by the Croatian forces from the Serb authorities (RSK) in Krajina during Operation Storm and Operation Thunder. Further, in May 1998, the Prosecution requested the details of casualties admitted to Knin Hospital during August 4-6, 1995, also related to Operation Storm.

Then, on June 2 1998, Arbour requested copies of reports, photographs or other documentation held by the Croatian authorities in relation to 51 dead bodies in the Medak Pocket area handed over to the RSK authorities in September 1993.

More significantly, the prosecution has taken an interest in General Momcilo Perisic, the former Chief of Staff of the Yugoslav Army (JNA) - and the commander of the JNA units that shelled Zadar and Mostar in 1991 and 1992

Arbour said that "on 25 November 1997, I requested all police files, investigative magistrate reports, trial transcripts, etc. of proceedings held in absentia against General Perisic and 18 other JNA officers in Zadar. This request was never responded to, although it was renewed 16 times by representatives of my office."

Interestingly, a day or two after this statement by Arbour, Perisic offered himself as a "democratic alternative" to the regime of Yugoslav President Slobodan Milosevic.

"For Croatia to complain about the Tribunal instead of complying with its international obligations is reminiscent of the conduct of the Federal Republic of Yugoslavia, and," Arbour said, "is no more than a convenient way to evade those obligations."

Arbour also reminded Croatia that "the International Tribunal is a subsidiary organ of the Security Council of the UN", and that "compliance with the ICTY does not involve any diminishing of national sovereignty".

Despite these "reminders", the representatives of the Croatian government, in the talks with Arbour, restated the official Croatian position that her Office does not have jurisdiction to investigate crimes related to Operation Storm on the basis that the at tack did not amount to an armed conflict. The four day long Operation Storm, regarded by Croatians as an outstanding military achievement, ended the Serbs' four-year hold on a swathe of central and southern Croatia.

"In legal terms," Arbour noted on the issue, "this argument is identical to the one presented by the FRY over Kosovo earlier this year." In Arbour's view, there is "no legal merit in either argument", and, in any event, "the issue is one for the Judges of t he Tribunal."

With respect to Operation Storm, Arbour wanted to make clear that "the legality, the legitimacy of the Operation itself is not the issue." But, she added, "even in a just war, or in a fully justified military operation, the laws of war must be respected" an d "brutal abuse of civilians is not permissible in any military context."

What she is required to investigate, she concluded, is "whether crimes were committed during the Operation Storm, not whether the Operation itself was a criminal act."

Continuing down the list of "disagreements", Arbour tackled the question of the delays in transferring the accused to The Hague. She was told by the Minister that the Government's position now is that they "will not consider the transfer of two particular accused - Vinko 'Stela' Martinovic and Mladen 'Tuta' Naletilic - to the Tribunal until they have served sentences applied by Croatian courts in full.

As Arbour understands the situation, this would mean that 'Stela' would not be transferred to The Hague until he has completed serving an eight-year sentence in Croatia.

Arbour was categorical that this was, "again contrary to the principle of primacy of the ICTY over national courts," and she therefore urged the Minister to review this "surprising decision, which also seems inconsistent with a recent pronouncement by the Supreme Court of Croatia."

Ending her inventory of "misunderstandings" with Zagreb, Arbour concluded: "For all these reasons, I therefore informed the Ministers yesterday that upon my return to The Hague, I would prepare a request to the President of the Tribunal, asking her to report Croatia's non-cooperation to the Security Council.

"I also told the Ministers that I would be prepared to withdraw from that initiative if they urgently respond to all my outstanding requests. I did consider it fair to give the Government notice of my intention."

If a satisfactory response by the Croatian government is not forthcoming, the request, Tribunal Update has learnt, will be submitted to the President of the Tribunal this week.