Hina asked Josipovic for a comment on the ruling by the UN's top court that Serbia was not guilty of genocide during the 1992-1995 war in Bosnia and Herzegovina. He said that a good sign for Croatia was the fact that the ICJ had accepted jurisdiction in that case.
"It's a good sign, but a conservative approach to the concept of genocide and the responsibility of a state will require great effort in proving that numerous horrible crimes that were no doubt committed can qualify as acts of genocide and that the former Federal Republic of Yugoslavia (Serbia and Montenegro) had a decisive influence on their commission," said Josipovic, who represents Croatia before the ICJ.
Croatia filed a genocide lawsuit against Serbia and Montenegro in July 1999. The ICJ has not yet decided whether it has jurisdiction in the case, which differs in many elements from Bosnia and Herzegovina's lawsuit.
Josipovic believes that today's judgement is such that no one will be particularly pleased with it and that it will cause legal and political controversies.
"The court continued a tradition of the classic, slightly conservative understanding of genocide, as a result of which it recognised that genocide was committed only in Srebrenica, and it was particularly conservative in its approach to determining the influence of another state, in this case Serbia, on the commission of the crime," Josipovic said, adding that the ICJ found that there was no evidence to conclude that any official body of Serbia had been involved in the planning or conduct of genocide.
In his opinion, that is a step back from the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, which accepted the so-called doctrine of agency.
Local forces, if controlled by another state through financing, logistics, planning, personnel or otherwise, are in fact agents of that state and participate in crime on its behalf, Josipovic said.
The ICJ did not accept this approach, but nevertheless it ruled that Serbia had violated the Convention on the Prevention and Punishment of the Crime of Genocide by failing to prevent genocide, although it could have prevented it considering its influence on the local forces. Serbia also failed to fulfil the obligation of bringing the perpetrators to justice, particularly Bosnian Serb military commander Ratko Mladic, and acted contrary to the provisional measures ordered by the court in 1993.
"Serbia's responsibility is therefore great," Josipovic concluded, noting that he found questionable the view of the ICJ that this kind of responsibility did not require financial satisfaction.