BalkansCase law

The archives of the Croatian-Serbian war: still “sensitive”

Vehicles of the observation mission (credit: Dutch Ministry of Foreign Affairs)
Vehicles of the European observation mission (credit: Dutch Ministry of Foreign Affairs)

(BRUSSELS2) The Court of Justice delivered a judgment on Thursday (November 28) which will be of interest to all those who follow the missions of the PeSDC and are interested in the history of the Balkans. This affair concerns, in fact, a part of European history which still remains to be clarified, that of the Croatian counter-offensive in the Knin area, in August 1995. We remember that the deployment of European observers (ECMM) in the region – the first mission, before the letter, of European defense – had often been criticized. But the work accomplished, sometimes at the risk of the lives of observers (several were killed in a crash of their helicopter), will still remain little known. And it will remain so for a few more years, reading the Court's judgment. This has, in fact, just confirmed that access to documents from European security and defense missions must remain exceptional, especially when it takes place in a sensitive area, such as the Balkans, for example.

Documents from the European Community Monitoring Mission

The complainant – a Frenchman of Yugoslav origin, Ivan Jurasinovic – had, in fact, requested access to 205 reports as well as documents referenced “ECMM RC Knin Log reports”, established as part of a surveillance mission of the European Community in Croatia (hereinafter “ECMM”) accomplished during the conflicts in the former Yugoslavia. The Council refused, granting only partial access to eight reports. Reason given: either he did not hold any document thus referenced (known as “ECMM RC Knin Log reports”), or in the name “ public safety " or " international relations », two exceptions provided for by Regulation No. 1049/2001 (which governs access to documents).

Transmission to the ICTY

However, all of the ECMM archives had been transferred to the ICTY in the 1990s to " allow the ICTY prosecutor to prosecute persons allegedly responsible for serious violations of international humanitarian law ”, but under the seal of judicial secrecy and within the framework of “international cooperation” supports the Council. Some of these documents (48) were also communicated to the defense of former Croatian general Gotovina during his trial before the International Criminal Tribunal for the former Yugoslavia (ICTY).

A pivotal moment

These archival documents relate in a fairly precise manner the monitoring and analysis of the movements and actions of troops and police forces, bombings, ceasefire violations, shootings, etc., as well as observers' discussions with liaison officers and information provided by other sources. At a crucial moment! The Knin region in August 1995 was the subject of Operation “Storm”, led by Croatian forces, to reconquer Krajina from the Serbs, which had become an autonomous Serbian Republic. At the end of a lightning offensive, the separatist stronghold was recaptured. Several tens of thousands of Croatian Serbs were chased away and took the path of exile (read an article by Libération of the time). This action is part of a broader general framework of a concerted offensive by the Croats and Bosniaks against the Serbs, aided by NATO forces. It will lead the Serbs to the negotiating table. The Dayton Accords were signed on November 12.

Reports still very sensitive

These reports retain a high level of sensitivity, despite the passage of a period of fourteen years since the occurrence of the facts related therein ” emphasizes the Council in front of the judges. The documents requested are of a nature to create new difficulties, in the event of disclosure, in the Union's relations with the various parties to the conflicts which took place in the former Yugoslavia and with other countries concerned. Finally, the safety and physical integrity of observers, witnesses and other sources of information, whose identity and assessments would be revealed by the disclosure of the reports”. The climate was particularly tense on the political, military and human rights level[s]” at the time. And the interviews held with local actors and witnesses were “ under cover of confidentiality ».

The European higher interest

The judges, at first instance on October 3, 2012, recalled that the higher European interest predominates over particular interests and confirmed the legitimacy of the refusal. “ EU policies in the Western Balkans region aim to contribute to peace, stability and lasting regional reconciliation ". The "disclosure of information or assessments contained in the reports could, at the date of the contested decision, undermine the pursuit of these objectives by revealing elements likely to give rise to or increase resentment or tensions between different communities. of the former Yugoslavia. The Court of Justice endorses this argument without going into details. Seized in cassation, the judges of the 1st chamber chaired by the Italian Tizzano thus ruled mainly on questions of law.

An unverified sensibility

The Court thus considered that “ to assess the legality of the grounds for refusing access to a document, the Court (was not) obliged to systematically order the production of the entire document to which access is requested ". This emerges " the margin of appreciation enjoyed by the Tribunal in the assessment of evidence. (He) may decide whether, in a specific case, it is necessary for this document to be produced before him, in order to examine the merits of the reasons on the basis of which an institution refused access to the said document”.

Let us point out that these documents had not been classified “Defense”. Which does not influence the negative solution of the judgment. For the Court, “ the absence of prior classification of a document » does not prohibit “ an institution to refuse access », the two actions based on different foundations of the 2001 regulation on access to documents (one on article 9 governing the regime of “sensitive” documents, the other on exceptions to the principle of communication of documents ).

Comment: we have known the judges of the Court to be more daring... Certainly we are in a cassation judgment, examining questions of procedure and law. But we can nevertheless question the fairness of such a judgment, or even its legitimacy. The necessary guarantee of anonymity of observers who signed the reports or of certain witnesses is in order; it seems more of an “excuse” since it is always possible to hide identities. One may wonder whether judicial control is well ensured. How can judges rule on the sensitivity of documents whose content they have not been able to read? There is more than a problem of principle or ethics here. At the time of Croatia's entry into the European Union, it would also have been interesting for the Court to change its rather restrictive case law. Of course, we must always go back to the date of the contested decision. This is the meaning of law. But the judges were not prohibited from indicating what were the criteria for the “sensitivity” of such documents based on current developments and, therefore, indicators of a re-examination of the file.

To download :

  • stop C-576 / 12 P of November 28, 2013 (Court)
  • judgment T-465 / 09 of October 3, 2012 (Court of First Instance)

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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