Since the election of Ivo Josipovic as President of Croatia in January this year, feelers have been sent by both Serbian and Croatian politicians on the possible mutual withdrawal of claims in the Croatian Genocide case pending before the ICJ, and they have intensified. The Belgrade daily Politika has reported (article in Serbian) that Ivo Josipovic and his Serbian counterpart Boris Tadic are meeting today in Mostar in Bosnia and Herzegovina, and that their main topic of discussion is precisely some form of settlement of the case out of court.
The ICJ litigation is a significant burden on any further development of the relations between Serbia and Croatia, and a joint decision to withdraw the case would be laudable – and not just from the standpoint of good neighborly relations. From its initiation, the case itself has served no other purpose but to buttress the nationalistic narrative of both parties regarding the events of the war in Croatia in the 1990s.
The Court’s jurisdiction rests solely on Article IX of the Genocide Convention, and it can examine no other violation of international law except genocide. In the general public of both Croatia and Serbia, however, the case has for years been presented as about being about the war as a whole, and about reparations for any damages caused by the conflict. Thus, much as with the Bosnian Genocide case, Croatian elites have used the case to further their narrative of a just, defensive war against the Serbian aggression, while Serbian elites emphasized Croatian wrongs against Serbs, from World War II up to the massive expulsion of Croatian Serbs in the 1995 Operation Storm. Whatever their merits objectively, both cases have been politically distorted (see here for more background).
Legally speaking, however, the Croatian case is about genocide and genocide alone – and there was no genocide in Croatia in the 1990s, whether against Serbs or against Croats. None of the atrocities committed there by either party have been qualified by the ICTY as genocide, nor has the ICTY ever come close to doing so, but has generally regarded them ‘merely’ as war crimes or crimes against humanity. And as a soon as a particular crime is not qualified as genocide, the ICJ loses subject-matter jurisdiction to examine state responsibility for this act.
In other words, everybody knows what the ICJ’s judgment would be if it were to decide the case the merits – that there has been no genocide on either side, and that any other internationally wrongful acts are outside its jurisdiction. Rationally speaking, therefore, neither Croatia nor Serbia have anything to gain from continuing the litigation. There is a precisely zero chance of any other result, no matter how able their counsel and advocates. Both Croatia and Serbia are, however, still to a large extent steeped in nationalism, and it is the perception of the case by the general public which remains at odds with the objective reality. The distinction between genocide and other international crimes is lost on most regular citizens, many of whom believe that only the word ‘genocide’ can fully encapsulate the wrongs done against them, whether perceived or real.
I am cautiously optimistic that the Croatian and the Serbian presidents will be able to reach some sort of accommodation – though they each also have to persuade their own elites, and be prepared to take the risk that the withdrawal of the case might politically harm them domestically. This is I think particularly the case with Croatia. We shall see what happens soon enough, but an agreement will not be easy to reach, no matter how irrational that might seem from the outside.