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Viewing cable 06ZAGREB366, ICJ CASES WEAVE DANGEROUS WEB

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Reference ID Created Released Classification Origin
06ZAGREB366 2006-03-17 15:27 2011-08-25 00:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Zagreb
VZCZCXRO2643
PP RUEHAG RUEHDA RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN RUEHLZ
RUEHROV RUEHSR RUEHVK RUEHYG
DE RUEHVB #0366/01 0761527
ZNR UUUUU ZZH
P 171527Z MAR 06 ZDK
FM AMEMBASSY ZAGREB
TO RUEHC/SECSTATE WASHDC PRIORITY 5883
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
UNCLAS SECTION 01 OF 02 ZAGREB 000366 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
DEPT FOR EUR/SCE ENGLISH, BELL; S/WCI HODGKINSON; INR MORIN 
DEPT PLEASE PASS TO NSC BRAUN 
THE HAGUE FOR C. JOHNSON 
 
E.O. 12958: N/A 
TAGS: KAWC PREL PGOV BK SR HR
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