ICJ CASES WEAVE DANGEROUS WEB

UNCLAS SECTION 01 OF 02 ZAGREB 000366

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THE HAGUE FOR C. JOHNSON

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SUBJECT: ICJ CASES WEAVE DANGEROUS WEB


ZAGREB 00000366 001.2 OF 002



1. (SBU) SUMMARY AND COMMENT: In light of recent local media
reports on Bosnia and Herzegovina's case against Serbia and
Montenegro before the International Court of Justice (ICJ)
and speculation regarding a possible future BiH case against
Croatia, PolOff met March 15 with Professor Ivan Simonovic,
deputy dean of the Zagreb law faculty and Croatia's agent
before the ICJ. Simonovic sees little likelihood of a BiH
case against Croatia, but as former deputy foreign minister
he expressed grave concern about the impact on regional
stability of any verdict in the BiH v. SaM case. He called
on the international community to encourage Sarajevo and
Belgrade to reach a settlement rather than proceeding with
the case and forcing an ICJ verdict. Croatia's strategy
regarding its ICJ case against SaM depends upon how the BiH
v. SaM case is resolved. Post would welcome perspectives
from Embassies Sarajevo and Belgrade. END SUMMARY AND
COMMENT.

BiH v. CROATIA?: HIGHLY UNLIKELY
--------------


2. (SBU) Simonovic thinks it is highly unlikely that the BiH
government would choose to bring a case against Croatia
before the ICJ. He cited a joint statement he made several
years ago with BiH's former ICJ agent Muhamed Sacerbey
declaring that the two states would legally cooperate in ICJ
cases as victims of the same aggressor. While this statement
is not legally binding on current governments, Simonovic said
it would carry some weight before the court. He did not give
the impression that Croatia was preparing to defend against a
BiH case or was even concerned.

BiH v. SaM: A LOSE-LOSE SITUATION
--------------


3. (SBU) Simonovic instead expressed grave concern over BiH's
case against SaM. He said a negotiated settlement would by
far be the best solution for the region. As former assistant
minister of foreign affairs under the Racan government, he
had pushed for a trilateral settlement with BiH and SaM but
was unsuccessful due to politicization of the cases,
particularly in Sarajevo, he said. He speculated that
Milosevic's death has probably only increased pressure on the
BiH government to go through with the case since now there
will never be an ICTY verdict against him. He is convinced
BiH would never agree to a settlement without outside
pressure because leaders are not aware of or are unwilling to
accept the very large possibility they will lose the case.
He thinks the current BiH agent before the ICJ does not know
what he is doing (please protect) and has not informed BiH
leaders of the risks in the case.


4. (SBU) Absent an out-of-court settlement, Simonovic sees
only negative outcomes. If the court rules against SaM, it
will be first time in history a state has been found guilty
of genocide. A settlement would allow SaM to admit guilt
without admitting genocide and it could squarely blame the
Milosevic regime, while an ICJ verdict of genocide would be
against the state -- a condemnation that he said will last
for 20 generations. He fears this would feed radical
elements in Serbia and perpetuate the myth of Serb
victimhood.


5. (SBU) Equally likely in Simonovic's eyes is that BiH will
essentially lose the case against SaM with an ICJ decision
that it is outside of its jurisdiction as it did in SaM's
case against NATO member states. While the ICJ previously
ruled that it does have jurisdiction in the BiH v. SaM case,
the question is open again after the NATO verdict, in which
the court found it did not have jurisdiction because SaM
(Federal Republic of Yugoslavia (FRY) at the time) was not
considered a member of the U.N. at the time of the events.
Thanks to a complex and quirky sequence of events at the
U.N., this "fact" was not clear at the time the court ruled
that it had jurisdiction in BiH's case. The court is now
reconsidering the jurisdiction question in the course of main
case, according to Simonovic, and if it follows the same
logic it did in the NATO case, there is a very real chance
the case will be thrown out. Simonovic believes a "no
jurisdiction" decision will radicalize Bosnian Muslims
frustrated in their search for justice and embolden Serbian
nationalists, who will interpret it as an acquittal.


6. (SBU) According to Simonovic, hearings in the BiH v. SaM
case will end May 9 and a verdict will follow in a matter of
weeks/months. He believes the case will be decided by one or
two votes (the SaM v. NATO member states case was decided by
one vote with a strong dissenting opinion). He stressed that

ZAGREB 00000366 002.2 OF 002


the ICJ will have to resolve the contradictions in
jurisdiction between the NATO and BiH cases in this ruling.

CROATIA v. SaM: WAIT AND SEE
--------------


7. (SBU) While Croatia remains open to a settlement (with
more interest in political satisfaction that in monetary
reparations) and will drop its case if the ICJ finds it does
not have jurisdiction in the BiH case, it may be politically
difficult for Croatia not to proceed if BiH wins its case,
Simonovic said. However, there is a possibility that the
ICJ, in its BiH ruling, will accept jurisdiction only
beginning April 27, 1992, the date FRY was established. This
would mean the worst atrocities committed on Croatian
territory (i.e. Vukovar) would not be considered, greatly
weakening Croatia's case.


8. (SBU) While BiH filed its case in 1993, Simonovic said,
Croatia did not file until 1999, and only then after being
convinced by an American attorney that accusations of SaM
responsibility for genocide against Serbs on Croatian
territory would paralyze cases against Croatians at the
International Criminal Tribunal for the former Yugoslavia
(ICTY). While the logic is nonsensical, that element also
presented legal dangers and Simonovic removed it from the
case as soon as he was appointed Croatia's agent. He said
keeping that accusation in the case would have allowed SaM,
in a likely countersuit, to show that Croatia was admitting
genocide had taken place against Serbs on Croatian territory.
The only factor in dispute would be who had committed that
genocide.
FRANK