Zarko Markovic [Researcher, Belgrade Centre for Human Rights]: "When Croatia filed its genocide suit against the Federal Republic of Yugoslavia in 1999, the political implications of that move might have seemed much easier to predict than its legal consequences. With both wartime leaders, Milosevic and Tudjman, still holding their leading positions, political relations between the two countries were strained and almost impossible to worsen or improve. On the other hand, legal implications of the suit were less certain. Almost eleven years later, Serbia filed her countersuit despite the fact that both suits have no chance of success, which became clear after the ICJ rendered its judgment in the Bosnian genocide case and since the ICTY, of all the atrocities that took place in the Balkans in the 1990s, has qualified only the Srebrenica massacre in 1995 as genocide. This time, the political implications look uncertain, since relations, which were improving since Tudjman died at the end of 1999 and Milosevic lost the 2000 presidential elections in Serbia (and was surrendered to the ICTY), worsened after Croatia recognized Kosovo.
If Croatia could not predict the outcome of the proceedings before the ICJ in 1999, why did Serbia file its countersuit eleven years later, when the outcome is easily predictable? There are two kinds of reasons which may be behind this decision — political and legal. Serbian authorities probably feel that one part of the public is expecting some kind of reaction, especially since the majority of the population (voters are always in the mind of any politician) thinks that expelling Serbs from Croatia should be punished and also believes that the ICTY has been trying only, or mostly, Serbs. Another political message Serbian authorities are trying to send is that they are ready for and not afraid of the proceedings. Legal reasons may be very practical — the Serbian legal team wants to secure a more comfortable position (if possible in a case like this) in the courtroom, and this might be possible to achieve if one is not in a defensive position all the time.
Nevertheless, there are still some hopes that the dispute could be settled outside the courtroom. Last week, Serbian president Boris Tadic said: "We want to believe that it is possible that Croatian and Serbian institutions will sit at the table in the future and try to establish, through a persistent and laborious process, a possible out of court solution that would satisfy the principle of justice and fairness, but also take care of victims." There is no doubt that the Serbian side is willing to negotiate in order to settle this out of the ICJ. On the other side, there are signs that Croatian authorities may reconsider whether to continue its case as the new Croatian president, professor Ivo Josipovic, said the suit was filed under different circumstances, when Serbia was not trying persecutors of war crimes and was not showing a willingness to face the past. He also said: "I shall negotiate with Belgrade about missing persons, war crimes trials and the return of cultural treasures. If they accept these conditions there is no reason to proceed with the genocide case." Josipovic, professor of international criminal law at the Zagreb University School of Law, was a member of the team that prepared the submission against Serbia and is certainly aware of its chances of success. Of course, possible withdrawal will depend on the decision of the Prime Minister, Jadranka Kosor, who is also president of the HDZ (the political party founded by former president Tudjman).
It appears that both sides feel they do not need this, especially when they are trying to make progress on their way towards the EU (which underlines the importance of regional stability and good relations between the two countries), but they do not know how to get out of this situation without losing electoral support, as both governments have tiny majorities in their parliaments and so must also depend on small parties."
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