Compte rendu 2006/30 - Audience publique tenue le mardi 18 avril 2006, à 10 h 15, au Palais de la Paix, sous la présidence de Mme Higgins, président

Document Number
091-20060418-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2006/30
Date of the Document
Bilingual Document File
Bilingual Content

CR 2006/30

International Court Cour internationale
of Justice de Justice

THHEAGUE LHAAYE

YEAR 2006

Public sitting

held on Tuesday 18 April 2006, at 10.15 a.m., at the Peace Palace,

President Higgins presiding,

in the case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)

________________

VERBATIM RECORD
________________

ANNÉE 2006

Audience publique

tenue le mardi 18 avril 2006, à 10 h 15, au Palais de la Paix,

sous la présidence de Mme Higgins, président,

en l’affaire relative à l’Application de la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro)

____________________

COMPTE RENDU
____________________ - 2 -

Present: Presieitgins
Vice-Presi-Kntasawneh
RanjevJaudges
Shi
Koroma

Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith

Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou
Kre ća

Couvgisrar

⎯⎯⎯⎯⎯⎯ - 3 -

Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma

Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith

Sepúlveda
Bennouna
Sjoteiskov,
MaMhou.,
Kre ća, juges ad hoc

CgoMfferr,

⎯⎯⎯⎯⎯⎯ - 4 -

The Government of Bosnia and Herzegovina is represented by:

Mr. Sakib Softić,

as Agent;

Mr. Phon van den Biesen, Attorney at Law, Amsterdam,

as Deputy Agent;

Mr.Alain Pellet, Professor at the University of ParisX-Nanterre, Member and former Chairman of
the International Law Commission of the United Nations,

Mr. Thomas M. Franck, Professor of Law Emeritus, New York University School of Law,

Ms Brigitte Stern, Professor at the University of Paris I,

Mr. Luigi Condorelli, Professorat the Faculty of Law of the University of Florence,

Ms Magda Karagiannakis, B.Ec, LL.B, LL.M., Barrister at Law, Melbourne, Australia,

Ms Joanna Korner, Q.C., Barrister at Law, London,

Ms Laura Dauban, LL.B (Hons),

as Counsel and Advocates;

Mr. Morten Torkildsen, BSc, MSc, Torkildsen Granskin og Rådgivning, Norway,

as Expert Counsel and Advocate;

H.E. Mr. Fuad Šabeta, Ambassador of Bosnia and Herzegovina to the Kingdom of the Netherlands,

Mr. Wim Muller, LL.M, M.A.,

Mr. Mauro Barelli, LL.M (University of Bristol),

Mr. Ermin Sarajlija, LL.M,

Mr. Amir Bajrić, LL.M,

Ms Amra Mehmedić, LL.M,

Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre, - 5 -

Le Gouvernement de la Bosnie-Herzégovine est représenté par :

M. Sakib Softić,

comament;

M. Phon van den Biesen, avocat, Amsterdam,

comme agent adjoint;

M. Alain Pellet, professeur à l’Université de Pa risX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies,

M. Thomas M. Franck, professeur émérite à lafaculté de droit de l’Université de New York,

Mme Brigitte Stern, professeur à l’Université de Paris I,

M. Luigi Condorelli, professeur à la faculté de droit de l’Université de Florence,

Mme Magda Karagiannakis, B.Ec., LL.B., LL.M.,Barrister at Law, Melbourne (Australie),

Mme Joanna Korner, Q.C.,Barrister at Law, Londres,

Mme Laura Dauban, LL.B. (Hons),

comme conseils et avocats;

M. Morten Torkildsen, BSc., MSc., Torkildsen Granskin og Rådgivning, Norvège,

comme conseil-expert et avocat;

S. Exc. M. Fuad Šabeta, ambassadeur de Bosnie-Herzégovine auprès du Royaume des Pays-Bas,

M. Wim Muller, LL.M., M.A.,

M. Mauro Barelli, LL.M. (Université de Bristol),

M. Ermin Sarajlija, LL.M.,

M. Amir Bajrić, LL.M.,

Mme Amra Mehmedić, LL.M.,

M. Antoine Ollivier, attaché temporaire d’ense ignement et de recherche à l’Université de
Paris X-Nanterre, - 6 -

Ms Isabelle Moulier, Research Student in International Law, University of Paris I,

Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy),

as Counsel.

The Government of Serbia and Montenegro is represented by:

Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor at the Belgrade University School of Law,

as Agent;

Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of
the Netherlands,

Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and Montenegro in the
Kingdom of the Netherlands,

as Co-Agents;

Mr.Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of
the English Bar, Distinguished Fellow of the All Souls College, Oxford,

Mr. Xavier de Roux, Master in law, avocat à la cour, Paris,

Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the

International Criminal Bar,

Mr.Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,

Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,

Belgrade, and President of the International Law Association of Serbia and Montenegro,

Mr. Igor Olujić, Attorney at Law, Belgrade,

as Counsel and Advocates;

Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,

Ms Ivana Mroz, LL.M. (Indianapolis),

Mr. Svetislav Rabrenović, Expert-associate at the Office of the Prosecutor for War Crimes of the
Republic of Serbia, - 7 -

Mme Isabelle Moulier, doctorante en droit international à l’Université de Paris I,

M. Paolo Palchetti, professeur associé à l’Université de Macerata (Italie),

comconseils.

Le Gouvernement de la Serbie-et-Monténégro est représenté par :

M. Radoslav Stojanović, S.J.D., chef du conseil juridique du ministère des affaires étrangères de la
Serbie-et-Monténégro, professeur à la faculté de droit de l’Université de Belgrade,

comament;

M. Saša Obradovi ć, premier conseiller à l’ambassade de Serbie-et-Monténégro au Royaume des
Pays-Bas,

M. Vladimir Cvetković, deuxième secrétaire à l’ambassade de Serbie-et-Monténégro au Royaume
des Pays-Bas,

comme coagents;

M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,

M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, Distinguished Fellow au All Souls College, Oxford,

M. Xavier de Roux, maîtrise de droit, avocat à la cour, Paris,

Mme Nataša Fauveau-Ivanovi ć, avocat à la cour, Paris, et me mbre du conseil du barreau pénal
international,

M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,

M. Vladimir Djeri ć, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie-et-Monténégro,

M. Igor Olujić, avocat, Belgrade,

comme conseils et avocats;

Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,

Mme Ivana Mroz, LL.M. (Indianapolis),

M. Svetislav Rabrenovi ć, expert-associé au bureau du procur eur pour les crimes de guerre de la
République de Serbie, - 8 -

Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and
Montenegro,

Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro,

Mr. Christian J. Tams, LL.M. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,

Ms Dina Dobrkovic, LL.B.,

as Assistants. - 9 -

M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,

M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,

M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,

Mme Dina Dobrkovic, LL.B.,

comme assistants. - 10 -

The PRESIDENT: Please be seated. The sitting is open.

The Court meets today to begin the hearing of the second round of oral argument of the

Parties. Each Party will dispose of eight sessions fo r this purpose and, as in the first round of oral

argument, Bosnia and Herzegovina will speak first. The second round of oral argument of Bosnia

and Herzegovina will be concluded on Monday 24April2006 and Serbia and Montenegro will

begin its second round of oral argument on Tues day 2May2006. And the second round of oral

argument of Serbia and Montene gro and the oral proceedings in the case will end on Tuesday

9 May 2006.

I now give the floor to Mr. Softić, the Agent of Bosnia and Herzegovina, to begin the second

round of oral argument.

SMOF.TI Ć: Thank you, Madam President.

1. Madam President, honourable Members of the Court, after the end of the first and at the

very beginning of the second round I would like to express my honour for having another

opportunity to address this honourable Court and to reiterate the significance of this case for Bosnia

and Herzegovina, for its citizens and peoples, for th e victims of genocide as well as for peace and

security in the whole region. Moreover, I would like to repeat its importance for defining the

content of international humanitarian law as well as the role of the International Court of Justice in

its development and interpretation.

2. Let me address once more, why this case and why now? Simply stated, this case is more

about the future rather than the past. Some have suggested that this case scrapes on old wounds,

but this is about helping to heal what is still an open sore and susceptible again to the disease of

ultra-nationalism. This case is about a fresh star t for Bosnia and Herzegovina and for the region as

a whole. Indeed, Bosnia and Herzegovina’s future is intertwined with that of its neighbours,

including Serbia and Montenegro, and we sincerel y look forward to the fresh start in better

relations and opportunities which we believe will be created by the resolution of this case by this

Court.

3. Serbia and Montenegro committed genocide on the non-Serbs in Bosnia and Herzegovina

and particularly on the Bosniak population of Bosnia and Herzegovina in the areas which, - 11 -

according to the planners of the Greater Serbian project, should have gone to the composition of

the future Serb State or the future union of Se rbian States. Action bears responsibility. We are

here to establish responsibility for breaching provisions of the Genocide Convention. Fulfilment of

justice and implementation of the rule of law can do no harm, but on the contrary it can advance

international peace and security.

4. Some people still suggest that Bosnia and Herzegovina should let bygones be bygones.

Each of you comes from a State that has at some time suffered injustice and victimization. Would

your country, though, set aside the violation of genocide and its responsibility to its citizens who

are victimized? Could we allow our own histor y to be rewritten to justify old crimes and

rationalize the potential for new ones against our citizens and country?

5. The Respondent has verbally offered the se ttlement of this case in the political realm.

However, this offer has never been more than a statement of intention. Not on one occasion have

representatives of the Respondent given any substance to what Serbia and Montenegro would have

to offer. The Respondent has said at various time s that the withdrawal of the counter-claims was a

first step. Madam President, really, appearances are against the Respondent. We all know that the

withdrawal of the counter-claims was closely connected to the Respondent’s newly acquired

position with respect to the jurisdiction of this C ourt. This new position would not have had a

beginning of credibility if the counter-claims would have been entertained at the very same time.

An acknowledgment of what has been done to the non-Serbs of Bosnia ⎯ other than “all sides did

the same” ⎯ would have been one part of the minimum, the other part being some level of

acknowledgment of responsibility. That could have been seen as a sign of true intentions to think

seriously about a friendly settlement.

6. The approach now followed by the Respondent not only creates an image that this would

be about avoidance rather than acceptance of respon sibility. It would be about going back rather

than moving forward. This is the picture which Serbia and Montenegro has left while conducting

this case: it has engaged in rapid succession only exhibiting tactical objectives, has attempted to:

deny any responsibility; deny this Court’s ju risdiction; blame Bosn ia and Herzegovina for

genocide; marginalize the consequences and victims of its actions in pursuit of ethnic cleansing;

recruit some Serb leaders within Bosnia and Herzegovina to try and subvert Bosnia and - 12 -

Herzegovina’s position before this Court. An d most recently, the Respondent turned side and

claimed differently. Bosnia and Herzegovina may appear before this Court but now, it claims, a

criterion is not fulfilled by the Respondent: the Respondent was not a Member of the United

Nations or a State party to the Statute of the Inte rnational Court of Justice. All this is clearly

directed to prevent reaching a decision in this ca se respectively to avoid that responsibility will be

established. In that case the profit for the Respondent would be absolute.

7. We cannot see in these consecutive tactics sincerity toward a fresh start and better future,

nor the acceptance of responsibility. Rather, we se e another attempt to rewrite history. Rewritten

history promoted by the Belgrade authorities has be en used as a tool of war and genocide against

Bosnia and Herzegovina in the past, and we have le gitimate fears that a similar rewriting of history

may be misused for the future. History traditiona lly has belonged to the victor. Bosnia and

Herzegovina is only a survivor, and a weak one, since our State is, on a daily basis, still afflicted by

the consequences of genocide. We ask that the Court not allow the Belgrade régime to presume the

right of the victor, and that this Court provide the objective judgment of history.

8. Madam President, our people, i.e., Bosnia and Herzegovinian people, have lived in these

areas for centuries sharing a common destiny. It is almost impossible to find similar territory

where people and religions were so mixed as in Bosnia and Herzegovina. It used to be impossible

to find a building that did not have members of all of our peoples living next to each other. Not to

mention settlements and towns. Bosnia and Her zegovinian citizens shared the same Bosnian

culture with strong influence of all larger worl d’s cultures and religions whose basic characteristic

was tolerance. All of this could only be undone, Bosnia and Herzegovinian society could only be

broken by genocide. Making the territory of Bo snia and Herzegovina part of a new Yugoslavia,

which turned out to be “one State for all Serbs” necessarily implied the need for separation of

people. Since no one voluntarily leaves his home and ⎯ if that happens ⎯ returns as soon as the

opportunity arises, i.e., as soon as the danger is over, then genocide was the only means to

permanently separate people. Genocide was the required precondition for fulfilling the objectives.

9. Madam President, this case is not directed against the Serb people in whole and especially

not against the Serb people in Bosnia and Herzegovina. Genocide was not committed by

individually operating non-organized Serb people. The genocide was committed by a - 13 -

well-organized entity, i.e., the then Federal Republic of Yugoslavia. We are asking to determine

the responsibility of this State for committing genocide, i.e., for breaching the Genocide

Convention. We are not asking to determine the responsibility of Serb people.

10. The death of Slobodan Milosevic, leader of the Serb people when genocide occurred,

main creator and executor of the genocide campaign, which at first sight is not related to this

procedure, additionally complicates the situation in the whole region. The lack of a judgment in his

case blurs the judgment of history. It only incr eases the role for this Court to act as envisaged

under the Genocide Convention. We do not deny but quite on the contrary we emphasize the role

and importance of the International Criminal Tribunal for the former Yugoslavia as well as the

need for all perpetrators to be punished for the criminal offences committed. Some of the

perpetrators will face criminal sa nctions while the others will evade justice in this or that way

forever. However, this kind of responsibilit y does not exclude but on the contrary creates the

exigency for establishing State re sponsibility. Those convicted by the ICTY were not doing it for

their own sake to realize their own or family ob jectives but in the name of the State and for

realization of State objectives.

11. Madam President, both States, the Applicant and the Respondent, have the same

objective: joining the community of European peoples. The fact that the Respondent has

committed genocide on the population of Bosnia and Herzegovina makes this objective hard to

achieve until the Respondent hands in the main su spects for war crimes and until it faces its own

past. Facing its own past means accepting respon sibility for genocide. European future for the

Respondent must not mean avoiding responsibility for genocide while at the same time enjoying

the advantages produced by committing genocide. Facing the consequences of genocide means

giving up the Greater Serbia ambitions.

12. Judgment on responsibility for genocide will help democratization of the Serbian society.

The impression is that most of the citizens of Serbia and Montenegro have not dealt with its own

past, yet. Political parties and movements that support war criminals and their aims still enjoy

great support. The main indictees for war crim es are not being delivered because that would

allegedly destabilize Serbia. - 14 -

13. The truth is that many prominent intellect uals and human rights activists are longing for

Serbia’s confrontation with its own past. Judgment for genocide would accelerate democratization

of the society and help abandon the ideology of conflicting with neighbours, and speed up the

joining process of Serbia into the community of European States and peoples.

14. Judgment on responsibility for genocide wo uld ease the reconstruction of Bosnia and

Herzegovina and the reintegration of Bosnia and Herzegovinian society. Serbs in Bosnia and

Herzegovina who are still exposed to strong propaga nda, given the fact that political parties and

movements that are co-responsible for genocide ar e still present at the political scene, would come

to realize that in their name and with their assistance genocide was committed over their

neighbours with whom they are far longer and more deeply connected. That would help the

progressive forces among Serb people in Bosnia and Herzegovina who advocate the reintegration

of Bosnia and Herzegovinian society and putting an end to continued injury inflicted by genocide.

15. Moreover, that would show not only to the Respondent but to all other potential

offenders of the Convention on Genocide that genocide does not pay.

16. Madam President, here we are talking about mass violation of human rights in order to

realize a political project. The perpetrators and the victim are here before the highest judicial

instance of the United Nations awaiting justice.

17. Madam President, Bosnia and Herzegovina is notavictor. Wealsorefusetobeonly

victims. We are trying to rebuild and start anew. It is up to the Court to record the judgment of

history, but for the first time in the context of an objective ruling under the current treaty. New

genocides will also be planned and executed, and we can only hope that they will never reach the

scope of the holocaust. Let us not mislead ourselves, though: genocides continue to be committed

as part of a political strategy of one form of ho mogeny or another executed under some red, blue,

green, yellow, black or white banner. Unfortunatel y, this will not be the last genocide, but it will

be the first upon which this Court can pass judgmen t and amplify the rule of law and reject those

arguments that would, if taken to their rational conclusion, justify the destruction in whole or in

part of a group of people only because they belong to a national or to an ethnically defined group,

or because they adhere to a certain religion. - 15 -

18. It is the obligation of all countries to work towards preventing and punishing the crime of

genocide. This case is about the relation between the perpetrators and the victim. But of course it

is also about relation of all countries and the international community as a whole towards genocide.

19. Therefore, not only the victims of the genocide but all signatories to the Convention on

Genocide, the international community as a whol e and the international legal system seek for

establishing responsibility for genocide, correing the consequences and discouraging future

potential perpetrators. Thereby, we are expecting that this Court declare Serbia and Montenegro

responsible for genocide in accordance with our cl aim which we will be submitting to the Court at

the end of our pleadings.

20. Madam President, I am honoured to ask the Court to give the floor to our Deputy Agent,

Phon van den Biesen. Thank you.

The PRESIDENT: Thank you. I give the floor to Mr. Phon van den Biesen.

Mr. van den BIESEN:

A SSESSMENT OF SERBIA AND M ONTENEGRO ’S PLEADINGS

Introductory remarks

1. Madam President, Members of the Court, you have been taken through 60hours of

pleadings and through close to 20 hours of witness and expert statements. And we have just started

with the second round which will amount to another 40 or 50 hours of pleadings. Is that ⎯ on top

of the many thousands of pages of this file⎯ enough to provide for a complete picture of four

years of ethnically motivated armed violence in Bosnia and Herzegovina? Is it enough to provide

for a complete picture of what was done to make this happen? The answer to these questions is

probably: yes and no. “Yes”, because it shou ld be enough to provide a proper basis for the

judgment Bosnia is seeking to obtain from this Co urt. “No”, because in 30 hours of pleadings we

are just not able to do justice, justice to each and every victim of this violence, let alone to each and

every one of the beloved of each and every victim, wh o are trying to cope with the grief, the loss,

the incalculable damage done to them. Damage d one to them precisely because they happened to

be Bosniak, or they happened to be Bosnian Croat. Obviously, we are not able to do justice to - 16 -

those hundreds of thousands of victims in 30hours of pleadings, and the upcoming 24hours will

not be of help for that purpose either.

2. In Bosnia these pleadings have been and, indeed, are broadcast live on television and they

are simultaneously being translated. In Bosnia the question has been raised why it is that we did

not bring the victims in person before this Court in order for them to testify about the cruelties, the

atrocities, the ugliness, the unfairness, the ruth lessness, the meanness, the unscrupulousness, of

which they and their killed beloved were the victims. Maybe, maybe that would have been a good

idea. However, given the enormity of the number s involved, that would have, inevitably, led to a

process of selection. We have chosen not to go into such a process, simply because we do not

think that the grief of one victim would deserve more attention, let alone more weight, than the

grief of the next victim.

3. So, from this perspective, no, 50 hours of pleadings are not sufficient at all to do justice to

each and every one of the victims. But we should not forget that the pleadings are only part of

these proceedings and that all of our pleadings are entirely aimed at one goal only: to obtain a

judgment from the Court which will, indeed, do justice, to the State of Bosnia and Herzegovina and

to all of the ⎯ surviving ⎯ victims, including all of those who are watching these proceedings day

after day after day. A judgment which clearly es tablishes State responsibility, the responsibility of

Serbia and Montenegro for acts of genocide committed against the non-Serbs, the Bosniaks and the

Bosnian Croats, of Bosnia and Herzegovina.

What the Respondent did not provide

4. If, from our perspective and from the pers pective of the uncountable number of individual

victims, the amount of time spent on these pleadings would be “yes” and “no” sufficient, certainly

from the perspective of the Respondent the 30 hours that were available to them in their first round

would have been more than sufficient.

5. Given the fact that Serbia and Montenegro have, within the framework of these

proceedings, consistently taken the position that the Bosnian Serbs were the belligerents not the
1
Respondent , that the Respondent is not responsible for the acts committed by Republika Srpska ⎯

1CR 2006/19, p. 38, para. 246 (Mr. de Roux). - 17 -

this is what Mr.Cvetkovi ć told the Court on 15 March: he said that his “distinguished colleagues

[had] successfully demonstrated that . . . in any case, the actions of the Republika Srpska could not

be attributed to Serbia and Montenegro” 2⎯ and given the fact that Serbia and Montenegro have

taken the position that the Respondent, more specifically, is not responsible for the ethno-blitzkrieg

in Bosnia and Herzegovina, for which the preparations began as early as 1991 and which,

effectively, started on 31March1992 in Bijeljina , that the Respondent is not responsible for the

siege of Sarajevo, which began on 2May1992, that it is not responsible for the ethnic cleansing

and the connected takeover of 70 per cent, 70 per ce nt, of the territory of Bosnia and Herzegovina,

that it did live up to its other obligations under the Genocide Convention to prevent and punish,

given all of that, Madam President, two rounds of written pleadings and 30 hours of oral pleadings

certainly would have been more than enough to demonstrate precisely that position.

6. One would expect Serbia and Montenegro to have submitted minutes of meetings of the

FRY Government, minutes of meetings of the Gove rnment of Serbia, minutes of meetings of the

Government of Montenegro, which then would, from at least 19May1992 onwards, reflect how

appalled the Respondent’s Governments were ⎯ at the time ⎯ by the atrocities committed by their

Bosnian Serb brothers; minutes which would have reflected the numerous efforts that these

Governments undertook to stop the Bosnian Serbs doing so.

7. One would expect Serbia and Montenegro to have submitted copies of the numerous

cables, letters, courier messages, fax messages, that the Respondent would have sent to Pale and to

Banja Luka, from 19May1992 onwards, to tell them, to beg them, to advise them, to stop

committing “their” acts of genocide.

8. One would expect Serbia and Montenegro to have submitted copies of legislative

measures aimed at effectively se aling the border between the Fede ral Republic of Yugoslavia and

Bosnia and Herzegovina in order to prevent the transferral of any goods which would support the

commission of these acts in Bosnia.

CR 2006/20, p. 34, para. 2 (Mr. Cvetković). - 18 -

9. One would expect the FRY border author ities to have submitted copies of reports of

incidents demonstrating how these authorities eff ectively prohibited the transfer of any goods

which would support the commission of these crimes in Bosnia.

10. One would have expected copies of legisl ative regulations adopted in Belgrade declaring

illegal and punishable under law any war-related trade between the Federal Republic of Yugoslavia

and the Bosnian Serbs, be it trade against payment in kind or trade against any form of financial

payment.

11. One would have expected copies of minute s of meetings of the authorities of the Serbian

and Montenegrin Ministries of the Interior in which it would have been decided to stop the Special

Forces of these Ministries from crossing the Bosnian border.

12. One would have expected copies of orders from the authorities of these Ministries to

these Special Forces, instructing them to refrain from being involved in Bosnia and Herzegovina.

13. One would have expected copies of orders from the Chief of the General Staff of the

JNA to all commanders to refrain from even the slightest involvement in providing any sort of

assistance to the Bosnian Serbs, and also orders to refrain from any participation in armed activities

across the Bosnian border.

14. One would have expected copies of the same, originating from the Chief of the General

Staff of the VJ after the relabelling of the JNA in May 1992.

15. And one would have expected the presentation of court files, stretching back to 1992

showing the investigation, the prosecution of Yugoslav military and paramilitary personnel,

accused of committing, if not acts of genocide , war crimes across the border in Bosnia and

Herzegovina and/or accused of complicity in those acts.

16. Madam President, this list is certainly, quality-wise, not an exhaustive summing up of

what ⎯ in the context of a case before this Court ⎯ may have been expected from the Respondent

who has built its defence on the proposition, that it ⎯ apart from so-called humanitarian aid ⎯ did

not have anything to do with crimes committed against the non-Serbs in Bosnia and Herzegovina,

i.e., crimes committed by the Bosnian Serbs, let alone with genocide.

17. Moreover, one would have also expected th at of those minutes, decisions, orders and

other measures, repetitive series would have been available. When the Se curity Council clearly - 19 -

took the position that action from the FRY was required to stop the killing in Bosnia, this ⎯ as one

may expect ⎯ would have led to numerous documents of the sort just listed. It should also have

been the case after May 1992 when the Security Council demanded “that a ll forms of interference

from outside Bosnia-Herzegovina, including by un its of the Yugoslav People’s Army (JNA) as

well as elements of the Croatian Army, cease immediately” 3; and also after 30May1992, when

the Security Council condemned the FRY for failing to take effective measures to implement the

4
resolution and demanded that it would do that now ; shortly after 1993 when the Security Council

demanded that the FRY “immediately cease the supply of military arms, equipment and services to

5
the Bosnian Serb paramilitary units” in Bosnia and Herzegovina . And one may have expected the

same shortly after this Court’s Orders of 8April1993 and of 13September 1993 (Application of

the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia), Provisional Measures, Order of 8April1993 I.C.J. Reports 1993 ,

p. 3; Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 13September1993,

I.C.J. Reports 1993, p. 325).

18. Nothing, Madam President, nothing of this kind has been produced by the Respondent ⎯

nothing.

The Court adjourned from 10.50 to 11.35 a.m.

The PRESIDENT: Please be seated. Mr. van den Biesen, we are sorry about this technical

interruption. Please now continue.

Mr. van den BIESEN: Madam President, I believe my last word was “nothing”. I’m sorry

about that but I will continue there.

19. One would have expected, Madam President, that the Respondent would have submitted

the unredacted versions of the shorthand notes of the meetings of the Supreme Defence Council

and its minutes, since the Agent of the Respondent made it so clear in the correspondence on this

3S/RES/752 (1992).
4
S/RES/757 (1992).
5
S/RES/819 (1993). - 20 -

issue with the Court that they would have nothing to fear from the contents thereof. Well, it is

exactly the SDC meetings ⎯ meetings of the leadership, the military and political leadership in

Belgrade ⎯ which would have provided the forum to discuss the orders which needed to be given

to the armed forces, orders of the sort listed just a minute ago. Also, these reports could have

perfectly backed up the position taken by the Respond ent with respect to the continued payment of

officers in the military of the Bosnian Serbs; it could have clarified this issue; it most likely would

have clarified the way the military dealt with th e paramilitaries; it would have clarified the FRY

position with respect to the best publicly known acts of genocide committed in Bosnia and

Herzegovina: like the breadline massacre, the Markale massacre, Srebrenica and so on. From what

we can read in the SDC minutes, there is no bac kup for the position of the Respondent. So it has

got to be in the redacted parts of it. We will get back to several of these episodes later on during

our pleadings. But, here again, nothing of this kind of material was provided by the Respondent to

this Court.

20. It is not entirely fair to say “nothing”, because the Respondent did submit one document

which could have been explained as the Responde nt’s protesting at the killings in Bosnia and

Herzegovina. Through his letter of 18 January of this year, the Agent of the Respondent sent a set

of new documents to the Court, among them a letter of 12 May 1992. This letter, sent to the FRY

military authorities by the Commander of JNA’s 1s t Military District, mentions many atrocities

committed against the Muslim population in the Drina area. It also mentions the participation of

various paramilitary groups, several of them coming from Belgrade. The letter ends as follows:

“We consider that it is absolutely necessary to intercede, through the authorities
of the Serb Republic of Bosnia, in order to prevent actions of th is kind from being
repeated, and not to permit large-scale inter-nationality conflicts to flare up. It is also
necessary that the MUP forces of the Republic of Serbia should take measures within

their competence to prevent the infiltration of armed groups into the territory of BiH.”

The Respondent has, however, never submitted any evidence that this recommendation ⎯ because

that is what it was ⎯ of General Stojanovi ć ever materialized into effective steps or measures.

Thus, the only thing this letter proves is that, indeed, at the beginning of May 1992:

“the Muslim villages of Lonjin, Mihaljevci and Plana located on the left bank of the
River Drina were set on fire. A part of th e population of these villages was killed and
a part of them were transported by buses in the direction of Tuzla, whereas yet another - 21 -

part of the population took refuge in the surrounding hills and is left without food or
water.” 6

It almost sounds like what happened in Srebrenica, but this is only in May1992. This letter also

establishes the responsibility of Arkan’s and other paramilitary groups from Serbia.

21. Apparently, and maybe understandably so, the Respondent itself did not think much of

this document and did not consider it worth the while of explicitly presenting it during the oral

pleadings.

22. Besides this one document of 12May 1992, which contained only an isolated

recommendation and not a general policy position, let alone clear and firm orders, the Respondent

did not submit any evidence on paper to the Cour t which would provide for any support for their

professed position, that ⎯ in short ⎯ Serbia and Montenegro opposed the Bosnian Serb position,

especially its genocidal actions and had, in any ev ent, nothing to do with the Bosnian Serb policy

and the Bosnian Serb actions.

23. The explanation for this is simple: the Federal Republic of Yugoslavia, now Serbia and

Montenegro, did not oppose what the Bosnian Serbs did and did not ever object to the Bosnian

Serb actions. Also, the Respondent, clearly, neve r instructed its authorities, its military armed

forces, or its other armed forces (be it paramilitary, secret police, police or any other) not to be

involved. The Respondent never effectively stoppe d the provision of men, equipment, arms and

ammunition to the Bosnian Serb military. On the contrary.

Fraud?

24. Obviously, we will elaborate on this duri ng the upcoming pleadings. For now it suffices

to say that the Respondent had a chance to make and to prove its case through its

Counter-Memorial, through its Rejoinder and thr ough its oral pleadings. Although we explicitly

pointed out, on 27 February 2006, that the Respondent’s defence should at the latest become visible

in their first round of the present oral pleadings 7and although the Respondent agreed with that ⎯

since on 16March2006 the Respondent’s Co-Agent, while analysing the role of the Respondent,

6Unpublic documents submitted by Serbia and Montenegro on 18 January 2006 (dated 5 January 2006),
document No. 3.
7
CR 2006/2, p. 21, para. 13. - 22 -

8
confirmed that “the role of the re spondent State is just to respond” ⎯ it has hardly used these

opportunities to do so, apart from repeating its mere denials. This is certainly not enough in

response to the abundance of facts and materials submitted by our side. The Court may draw its

inferences from this approach.

25. While the Respondent hardly submitted any real evidence in support of its position, it

did, while criticizing the quality of the sources we have used, refer back to some of the materials

which it submitted during the written pleadings. The Co-Agent referred to these materials as being

“strong confirmatory evidence” 9. He referred, inter alia , to a witness statement given “to the

investigating judge of the Zvornik court, Mr.Va soEric, in accordance with the rules of the

criminal procedure of the former Yugoslavia” 1.

26. Madam President, this brings me to a se rious matter, a matter which we initially decided

not to go into, since it relates to evidence su bmitted by the Respondent in relation to its

counter-claims and those counter-claims no longer form part of these proceedings, including the

evidence submitted in support of those. However, since the Co-Agent referred to precisely this

Judge Erić we are forced to tackle this unpleasant issue. It is an issue about good faith, it is an

issue about proper pleading, it is about trut hfulness and quality of evidence submitted by the

Respondent. In the case before the ICTY against the Bosnian Commander Naser Ori ć ⎯

11
Mr.deRoux referred to this case in his pleading ⎯ the Prosecutor used many documents

containing witness statements given to and signed by this same judge, Vaso Eri ć. Erić has retired

12
and he appeared as a witness before the ICTY to testify about the veracity of these statements .

During his testimony, Eri ć confessed that he, despite the fact that his signature appeared on those

statements, had not seen the witnesses involved, that he never talked to them, let alone that these

witnesses had given a statement to him in his capac ity as an investigative judge, let alone that this

8CR 2006/21, p. 32, para. 35 (Mr. Obradović).

9CR 2006/12, p. 26, para. 19 (Mr. Obradović).
10
Ibidem, para. 20.
11CR 2006/18, p. 38, para. 94.

12ICTY, Prosecutor v. Naser Ori ć, case No. IT-03-68, transcript pp. 4908-4977. Available at
www.un.org/icty/transe68/050210IT.htm. - 23 -

would have been done in accordance with the rules of criminal procedure of the former Yugoslavia.

We have included the relevant materials in the judges’ folder.

27. So what happened? Judge Eri ć explained what happened. He had, on various occasions,

received a stack of statements which were delivered to him by a clerk named Pavle Jelisav čić13.

This clerk came from Belgrade on behalf of a government-sponsored committee for gathering

information on war crimes 14; this committee is officially known as the Committee for the

Collection of Data on Crimes Committed agains t Humanity and International Law, and the

Respondent has confirmed in the Counter-Memorial that the witness statements submitted to the

15
Court were deposited with this Committee . Judge Eri ć stated that he, when confronted with the

pile of statements, phoned the Bosnian Serb Ministry of Justice, who assured him, the judge, the

President of the court in Zvornik, that there, in deed, existed some arrang ement with Belgrade and

that he, Erić, could trust this Pavle and that he could go ahead and sign that pile of statements in

16
confirmation that these were given to him in his capacity of investigative judge .

28. Fraud would be the proper word for this: misrepresentation and fraud.

29. Many of the witness statements which the Respondent submitted as annexes to its

Counter-Memorial and to its Rejoinder were given to precisely this investigative judge of the

Zvornik court. We have not made an in-depth study of all of these statements, since they are

connected to the counter-claims and since they are withdrawn. As we said before, we no longer

consider these to be part of the proceedings 17.

30. However, given the fact that the Co-Agent of the Respondent explicitly referred to one of

these statements, even labelling them as “strong confirmatory evidence”, we deemed it useful to

have a quick look at this issue and to inform the Court about our findings. After all, it is a

document that the Respondent is submitting.

13Ibid., p. 4938.
14
Ibid., p. 4935.
15
See letter dated 28 December 1994 from the Chargé d’affaires a.i. of the Permanent Mission of Yugoslavia to
the United Nations addressed to the Secretary-General, United Nations doc. A/50/56 and S/1994/1450, 29 December
1994. See also Counter-Memorial of 23 July 1997, p. 352, footnote.
16
ICTY, Prosecutor v. Orić, transcript, p. 4937.
17CR 2006/2, p. 27, paras. 32-33. - 24 -

31. We were able to identify at least two witness statements signed by Vaso Eri ć which

appeared in the ICTY case against Naser Ori ć and which, much earlier, were submitted by the

18
Respondent to this Court . Also, we noted that many of the “Eri ć statements” were co-signed by

another Zvornik court clerk, Gorica Trajkovi ć, of whom Eri ć ⎯ in his capacity as witness ⎯

testified that she “was a clerk who arrived with Pavle Jelisavcic... She came with him from

Belgrade.” 19 It means she came from the Respondent’s judicial institutions. Eri ć confirmed that

another clerk whose signature appeared, Ružica Jai ć, was not employed by the Zvornik court

either20. In the annexes to the Rejoinder, her name appears at least once as a court clerk in a

21
statement supposedly given at the District Court in Belgrade . And finally, PavleJelisav čić

himself also appears as a court clerk on a number of statements, supposedly taken at the District

22
Court in Belgrade .

32. We are not able to assess the validity of all of the witness statements, which were signed

by these individuals and which were submitted to this Court. The need for doing so is in itself not

very pressing, since these statements are not part of the file. However, all of this raises serious ⎯

and I mean serious ⎯ doubts about the quality and veracity of all of the materials submitted to this

Court by the Respondent.

33. In any event, we leave it to the Court as to how to appreciate the fact that the Respondent

submits this sort of fraudulent material under the heading “strong confirmatory evidence” to the

Court. For our purposes it is enough to establish that these types of materials are, if anything,

“strong confirmatory evidence” of the fact that th e Respondent apparently is not able to properly,

let alone effectively, disprove the accurateness of our positions.

18Annex RC 313 to the Rejoinder of 22 February 1999, Vol. 6, p. RC 2863. See ICTY, Prosecutor v. Orić,
transcript p. 4944. Annex RC 243 of the Rejoinder of 22 February 1999, Vol. 5, p. RC 2207. See ICTProsecutor v.
Orić, transcript pp. 4938, 4944, 4949.

19ICTY, Prosecutor v. Orić, transcript pp. 4948-4949.
20
Ibid.
21
See Annex RC54 to the Rejoinder of 22 February 1999, Vol. 2, p. RC 531.
22See e.g. Annexes RC 33 and RC 44 to the Rejoinder of 22 February 1999, Vol. 2, p. RC 279 and p. RC 293. - 25 -

The evidence submitted by the Respondent

34. This brings me to another topic related to the evidence submitted by the Respondent,

Madam President. I just noted that the Respondent had made no direct reference to one of the set

of “unpublic documents” which it submitted 18 January 2006. This was not an exception, since the

same applies to the six other “unpublic documents” which are part of that set of documents. Even

though some of them may have been presumed to address some of the points that the Respondent

has made during the first round, at no time di d the Respondent refer explicitly to one of these

documents in support of its arguments. Since we are not supposed to argue the case of our learned

opponents, we cannot be expected to guess what the purpose of these documents may have been in

order, then, to undo our own guessing. So, we would appreciate it to be put on record that these

documents no longer form part of the file, since we will not have an opportunity to rebut any

possible use the Respondent will make of these documents in their final round.

35. Madam President, the witnesses ⎯ I will get back to that later today ⎯ the witnesses

called by the Respondent did not help Serbia and Montenegro either. They either showed

themselves to be totally unreliable ⎯ Mr. Lukić and Popović are the examples of that ⎯ or mildly

unreliable ⎯ Mr. Mihajlovi ć, Mr. Mili ćević and Mr. Mi ćunović. In any event, all of these

witnesses were clearly pleading, they were pleading on behalf of Serbia and Montenegro and they

did not offer anything in addition to the various positions already taken by the Respondent.

Use of quotations

36. The Respondent has used surprisingly little evidence in support of its assertions.

Apparently the CIA report Balkan Battlegrounds was deemed useful, since it is used by the

23
Respondent no less than 19 times . The same appears to be true for the Report of the Netherlands

Institute for War Documentation on Srebrenica 24, to which reference was made five times, often

23CR 2006/15, p. 15, para. 133; p. 16, para. 135; p. 17, paras. 138-139; p. 19, para. 147; p. 20, para. 150; p. 20,

para.151; p. 21, paras. 153-156; p. 23, para. 159; p. 24, para. 162; pp. 29-30, paras. 173-176; p. 32, para. 181;
pp.34-35, paras. 185-186 (Prof. Stojanovi ć). CR 2006/16, pp. 10-11, paras. 4-5 (Prof. Brownlie). CR 2006/17, p. 36,
para. 277; p.38, para. 285; p. 44, para. 309 (Prof. Brownlie). CR 2006/21, p. 18, para. 5; pp. 18-19, para. 10; p. 19,
para. 14 (Prof. Brownlie).
24Netherlands Institute for War Documentation,Srebrenica ⎯ a “safe” area. Reconstruction, background,
consequences and analyses of the fall of a safe area (Boom Publishers, Amsterdam 2002). Available at

http://www.srebrenica.nl/en/a_index.htm - 26 -

extensively 2. However, the sections quoted from these reports, apparently selected by the

Respondent in order to convince the Court, at no time reflect the general message of these reports.

On the contrary, this general message usually he lps Bosnia and Herzegovina much more than it

does help Serbia and Montenegro. We will point this out in more detail during this week of

pleadings.

37. It is rather surprising when we talk abou t quoting, Madam President, that counsel of the

Respondent is several times extensively quoting himself, however without providing any reference

to go with it. On Monday 13 March 2006, our learned opponent Brownlie reread a substantial part

of his preliminary objections pleadings, which he had read to the Court ten years ago, on 29 April

1996, almost ten years ago to the day. Also, on many occasions, he reread most of Section 3.2.3 of

26
the Rejoinder which was submitted by the Respon dent seven years ago, on 22February 1999 .

We will get back to that later on.

A contrario reasoning

38. While the Respondent is not using a lot of evidence in support of its pleadings, it

endeavours to undo Bosnia’s position by sheer reasoning, by talk. In doing so, the Respondent has

usually not been very convincing, to say the least. On many occasions they entirely rely on

a contrario reasoning. For example, on the first day of their pleadings, counsel for the Respondent

stated that “the Respondent considers that the ICTY indictments can be used as argumentum

27
a contrario in a case when the Applicant’s a llegations are not contained in them” . According to

the Respondent’s logic, if the ICTY Trial Ch amber has convicted a certain individual for

28killings in Trnopolje, it follows that no mo re than 28 killings could have taken place in

Trnopolje 28. And if the Prosecutor of the ICTY has alleged that Arkan’s men killed 15Bosnian

Muslims and Bosnian Croats in Zvornik, no more than 15 Bosnian Muslims and Bosnian Croats in

25
CR 2006/16, p. 11, para. 7 (Prof. Brownlie). CR 2006/17, pp. 12-13, paras. 173-176; p. 29, para. 252; p. 34,
para. 269; p. 37, para. 283 (Prof. Brownlie).
26
See CR 1996/7, pp.8-21 (Prof. Brownlie) and CR 2006/16, pp.15-21. Also see CR 2006/16, pp.31-33,
paras.84-92 (Prof.Brownlie), and Rejoinder, pp. 577-579, paras. 3.2.3.1-3.2.3.9. Also: paras. 150-153, pp. 50-51 and
Rejoinder, paras. 3.2.3.14-3.2.3.18 (pp. 582-584). CR 2006/17, pp. 17-18, paras. 197-199 (Prof. Brownlie) repeat
Rejoinder, pp. 587-588, para. 3.2.3.29-3.2.3.31. Paras. 205-215, pp. 20-22 repeat Rejoinder, pp. 588-590,
paras. 3.2.3.33-3.2.3.40.
27
CR 2006/12, p. 31, para. 40 (Mr. Obradović).
28Ibid., p. 27, para. 22. - 27 -

29
Zvornik will have been killed . And, if the ICTY did not convict an individual of genocide, it

would be for sure, so says the Respondent, that genocide did not happen 30.

39. Madam President, litigators, in gene ral, are aware of th e shortcomings of a contrario

reasoning: if something is not black, the conclusion “then, it must be white” is only justified if it is

a given that there only is a choice between these two colours. In all other cases the answer “then, it

would be white” may only be correct by coincidence. This also seems to be the case with many of

the conclusions drawn by the Respondent: if they are correct at all, this is purely a matter of

coincidence. Certainly, this approach is not sufficient in a court case, let alone in a court case with

the stakes as high as those in this one.

40. In this perspective rock-bottom was touched with this way of reasoning when the

Respondent informed the Court about its assumed logic connected to the perpetration of genocide.

Mr. Cvetković, who argued that the Respondent was not guilty of genocide, explained ⎯ using the

holocaust and the Rwandan genocide as evidence for that ⎯ that a true genocide always begins

“next door”. And he said since many Muslims were living in Belgrade, untouched, and since many

Muslims lived in the Sandžak region, untouched, he argued, it is just not possible that Serbia and

31
Montenegro could have committed acts constituting genocide against Muslims living abroad .

Quite apart from the fact that, here, he ignored the fate of the Kosovo Muslims in 1998-1999 and

quite apart from the fact that he misrepresented the fate of the Sandžak Muslims, who did not

remain untouched ⎯ as was confirmed by the Humanitarian Law Centre in Belgrade and by

32
Amnesty International: they suffered from attacks, abductions, torture and ethnic cleansing ⎯,

there is no logic to this way of reasoning but it does have the appearance of perverting the issues at

stake. This sort of reasoning, Madam President, at no time can be seen as a serious rebuttal of our,

indeed, very serious allegations.

29
CR 2006/12, pp. 23-24, para. 10 (Mr. Obradović).
30
CR 2006/18, pp. 27-28, p. 90 (Mr. de Roux).
31CR 2006/20, pp. 55-56, paras. 66-71 (Mr. Cvetković).

32See: Bukovica (Humanitarian Law Centre, Belgrade), available at
www.hlc.org.yu/storage/docs/2b36abd4b25a6fd8d77214c2a37c2742.pdf; Amnesty International, “Still seeking justice in
the Sandzak”, EUR 70/005/2003, 1 February 2003, available at
www.web.amnesty.org/library/Index/ENGEUR700052003?open&of=ENG-YUG. - 28 -

41. During the upcoming sessions we will try our best to effectively contradict all that has

been stated by the Respondent in the first round of pleadings. In doing so, we will ⎯ if possible ⎯

try and limit reliance on sources which have not be en relied on already. At the same time,

whenever the Respondent’s position is best contradi cted by referring to sources which were not

mentioned earlier, we will most certainly do so.

SDC shorthand reports and SDC minutes

42. Now I come back, Madam President, to the issue of the Supreme Defence Council

reports. We will at times have to refer to the reports of the Supreme Defence Council. We will

especially refer to the shorthand notes of these meetings. We know that the Respondent in this case

has switched its initial tactic from launching a co unter-offensive into a hide-and-seek approach

aimed at preventing the Court from delivering a judg ment on the substance of the case. We also

know that the Respondent is hiding documents which are most relevant to this case by, first, seeing

to it that the ICTY would not disclose them in th eir entirety to the public and, secondly, by not

providing these documents to this Court. We have provided the Court, through our letter of

28December 2005, with sections of an in-depth media report, which revealed that the

Respondent’s reason for objecting to the ICTY’s making the contents of these documents public

was inspired by the interests of Serbia and Mo ntenegro in the present case. We know that

Mr. Djerić pleaded before the ICTY on behalf of the Respondent and that he must have referred to

this case as the reason ⎯ or at least one of the reasons ⎯ why the Respondent had overriding

objections against making them public. Now that the Respondent has not seen fit to submit the

documents to this Court, we challenge Mr.Djeri ć to either deny or to confirm his role and the

substance of his pleadings before the ICTY. His response, which we may reasonably expect in the

Respondent’s second round, will be public and therefore, eventually, verifiable.

43. Obviously, at this stage we are only able to refer to the unredacted sections of these

minutes. At this point, we really find ourselves in a fight in which one of the Parties, Bosnia and

Herzegovina, has its hands tied behind its back, while the other Party, Serbia and Montenegro, has

complete freedom of movement. - 29 -

44. In other words, Bosnia and Herzegovina is not able to appreciate the unredacted sections

in the wider context of the entire document, let alone in the wider context of the entire sequence the

nature of the SDC meetings. The Respondent does not have this handicap. On the contrary: the

Respondent has been in charge of the redactin g process. The Respondent, obviously, does possess

all of the SDC documents and the Respondent has ex plicitly been arguing before the ICTY that the

SDC minutes were not to be made public, since th at would hurt the Respondent’s case before the

International Court of Justice. Whatever conclusion s need to be inferred from this, it is clear that

Serbia and Montenegro should not be allowed to respond to the positions that we take based on our

reading of the partially unreadable, for partially redacted, SDC materials. That is, Serbia and

Montenegro, should not be allowed to respond to our quoting the redacted SDC reports if it does

not provide at the very same time the Applicant and the Court with copies of entirely unredacted

versions of all of the SDC shorthand records and of all of the minutes of the same. Otherwise,

Serbia and Montenegro would have an overriding advantage over Bosnia and Herzegovina with

respect to documents, which are apparently, and not in the last place in the Respondent’s eyes, of

direct relevance to winning or losing the present case. We explicitly, Madam President, request the

Court to instruct the Respondent accordingly.

Concluding remark

45. Madam President, Members of the Court, these oral pleadings come at the end of rather

prolonged proceedings. They are meant, as these proceedings usually do, to exclusively focus on

the merits of the case. However we are not closing our eyes to the fact that a debate on jurisdiction

has become inevitable and we will, obviously, provide the Court with our views with respect to that

very question. We will take it seriously, we will spend a considerable amount of time on

elaborating Bosnia’s position and on showing the Court that, whatever way one chooses to look at

it, this issue is not to be decisive for the fate of our case. We have planned to be pleading the

jurisdictional questions on Friday and on next Monday. The upcoming sessions we will further

devote to the substance of Bosnia’s case. - 30 -

46. Madam President, this concludes my first pleading in this session. I will now continue to

summarize our factual case to the Court, against the background of the Respondent’s first round of

pleading.

BOSNIA AND H ERZEGOVINA ’S FACTUAL CASE

1. Obviously, Madam President, during our written and oral pleadings we are presenting to

the Court the facts and the law as experienced, analysed, assessed and perceived by Bosnia and

Herzegovina. At the same time the Bosnian legal t eam was instructed to at all times go about this

job in the best possible balanced manner, which is another confirmation of Bosnia’s sincere wish to

indeed get the record straight with respect to the horror that came across Bosnia. This horror lasted

not only during the years 1992 to 1995, but the results of that have been present ever since and they

continue to be felt to this very day. Since the campaign of genocide led to a total disruption of the

very make-up of Bosnia and Herzegovina. this disruption is part of the damage done which damage

continues to be actively experienced each and every day.

2. We have gone to some lengths to try to present the facts in a pure, objective manner and

we have at all times avoided lawy ering with the facts let alone with the law. If we were not

100percent successful at all times in achieving this goal, we do apologize for hurting anyone’s

feelings if we did.

3. Also, we have tried, at all times, to su bmit the context of materials and documents from

which we only planned to use parts, sections or sp ecific quotes. The first reason for this really is

that we feel we owe it to justice to fight a legal battle in the open. The second reason for this

obviously was to provide the Respondent and the C ourt with a truly, a truly readily available

manner to verify the context of the materials we used.

4. We regret that this has not always been a ppreciated but we are even more troubled by the

cynicism shown by the Respondent with respect to video materials which we sent to the Court for

the very mentioned purposes. Mr.Obradovi ć informed the Court on 8March that, among other

things, he found it “easy to conclude that most of these materials are the author’s creations, that

they are often based on prejudices and above all a lot of video materials were made in order to

evoke public emotions”. This is not exactly a ve ry specific way of rebutting the substance of these - 31 -

videos. Moreover, Mr. Obradovi ć has apparently missed our point in submitting the entire videos

to the Court and to the Respondent.

5. Leaving all of this aside and focusing on the heart of the matter, it is relevant to note for

the record that the Respondent has not denied that all of the clippings which we showed here in

open court that all of these represent a true picture of precisely what was shown by us.

6. One exception was made by the Respondent and a very ugly exception indeed. This is

what Mr.Obradović told the Court with respect to the footage showing the beastly killing of six

Bosniak boys by the Scorpions ⎯ Scorpions, one of the paramilitary groups, acting under the

Respondent’s responsibility. He said “it is clear that the Appli cant addressed those scenes to the

Court for emotional reasons”. When I reread this sentence to you today ⎯ “it is clear that the

Applicant addressed those scenes to the Court for emotional reasons” ⎯ I am still, after having

already reread it many times over, troubled to gras p the enormity of this sentence. How does this

fit into Professor Stojanovi ć’s stipulation that “en aucun moment, nous ne voulons nier les

souffrances des victimes que nous ne pouvons et nous ne voulons pas oublier”? Is this not

precisely what the Respondent is doing? Denying which is undeniable and which should not be

denied? This denying is exactly one of the reason s why we are here, why we are here before this

Court asking for a judgment which would effectively put an end to this.

7. Now, as a response to Mr.Obradovi ć’s observation, we do not have pictures, let alone

video footage of all the other 7,000 to 8,000 Srebrenica killings. But we all know that all of the

other mass killings would have produced even mo re horrendous pictures, such as the killings on

13July 1995 at Bratunac at Jadar River and Nova Kasaba at Sandici Meadow. Or the killings on

13 July at Kravica warehouse, where 1,000 Bosniak men were executed; 16 July 1995 in Branjevo

where 1,200 Bosniak men were executed. Or the mass killings at Poto čari, CerskaValley,

Orahovac, Pekovci School, Tisca and the Piliča Cultural Centre.

8. We are not here to create special emotiona l effects, Madam President. We showed these

killings because they connected ⎯ those images connected ⎯ an image of the true nature of what

we had explained thus far only in words, and only on paper. Just to try and show the true reality.

We also showed them to illustrate the ultimate, deliberate, nature of these killings. We showed it

because of the comments made by the killers which, more than anything else, demonstrated that the - 32 -

boys were killed because they were Bosniaks. We showed it because the footage demonstrates that

it, apparently, was not part of the plan to arrest, to detain and possibly to prosecute the boys,

assuming that they committed a crime, for which assumption no evidence whatever is available.

9. Madam President, there are thousands of pictures available of exhumations from mass

graves all over Bosnia; and those who carried out the exhumations ⎯ the specialists ⎯ they make

a difference between so-called primary graves and secondary graves. The secondary ones being

graves where body remains from the primary graves are reburied. Why? They are reburied in

attempts to hide the existence of mass graves. Th ey are reburied in attempts to hide the traces of

genocide. And, in the course of this process, us ually the use of heavy machines led to the remains

of one body crudely being divided into pieces. Thus the remains of one person is often found in

two or three different secondary graves. Many of the available pictures of these remains show

victims with their hands tied behind their backs. Their remains and pictures show the shot traces,

more often than not they are in the back of the skull or in the back of the body. We are not

showing those because you have seen enough to envisage what we mean when, in this case, we talk

about mass killings.

10. Mr. Obradović concluded his unfortunate discourse on this video footage by flatly stating

that the Scorpion criminals “according to the docum entation available to our delegation were not
33
members of the Serbian police or any other body of Serbia and Montenegro” . A denial which is

only supported by the mere statement that the documentation available to the Respondent’s

representatives does not contain conclusive in formation as to the availability of relevant

documentation and it obviously is not to be considered as an effective denial; especially not when,

as in this particular case, the evidence in supp ort of the denied position is overwhelmingly clear

and the Respondent knows this full well, since the Respondent’s own prosecutor’s office has all the

relevant files.

11. The Respondent did not deny that several of the Scorpion military who stand trial in

Belgrade have pleaded guilty. It should be noted again that these soldiers were only prosecuted

after a worldwide uproar emerged after the showing of this video footage. The existence of this

3CR 2006/12, p. 42, para. 80 (Mr. Obradović). - 33 -

footage had been widely known in Belgrade already for many years, but apparently during all those

years the authorities did not see the need to prosecut e; and they also, to this very day, did not see

the need to include the commander of the Scorpions in these proceedings. One may only guess the

reasons why.

12. In any event, the Prosecutor at the ICTY found the evidence important enough to amend

the indictments against these two men, Jovica Stanišić and Franki Simatović, whose cases we have

discussed earlier. They were both high authorities within the Ministry of the Interior in Belgrade.

Although very recently the Trial Chamber ruled that it would not accept the part of the amendment

of this indictment with respect to the attacks on Srebrenica as such for reasons of proper criminal

proceedings; the Trial Chamber did confirm the amendment with respect to the Scorpions killing

34
of the six boys ⎯ which murders we witnessed on video in this Great Hall of Justice . The

indictment states:

“62. The Bosnian Serb forces then distributed the Bosnian Muslim prisoners to
different Serb and Serbian units for the purpose of murdering them. One bus full of

prisoners was taken to the base of the Sc orpions at Treskavica, from which about
15male prisoners were taken from the bus for execution by members of the
Scorpions. Members of the Scorpions took six of the prisoners by truck to a secluded
rural area several kilometres from th eir base. Under the command of Slobodan

Medic ⎯ (Bo ča) ⎯ the Scorpions murdered the prisoners by shooting them.
Slobodan Medic ⎯ also known as (Boča) ⎯ had these murders videotaped.” 35

13. Why am I telling the Court all of this? This issue represents this sense of denial of what

really is at stake in this case; and, even mo re importantly, a sense of denial of what really

happened to the Bosniaks and the Bosnian Croats of Bosnia and Herzegovina. A denial which, as

my colleague Alain Pellet mentioned in our first round, formed, less than a year ago, the centre of a

mass meeting of students ⎯ law students ⎯ gathering in the faculty of law in Belgrade 36. The

students at this meeting shouted “Karadzic, Karadz ic” and the participants “insisted that no crime

at all took place in Srebrenica and that the victims were soldiers of the ‘Muslim army sacrificed by

AlijaIzetbegovic...’”. Actually the position taken in this Court by Mr.deRoux when he

34Hague clears ex-Serbian security officials of Srrenica charges, FoNet News Agency (Belgrade), BBC
Monitoring Newsfile, 14 April 2006. See also “Ex-Geheim polizeichefs von Srebrenica-Anklagepunkt befreit” [Former
chief of Secret Police freed of Srebrenica charges], der Standard (Austria), 14 April 2006, available at
http://derstandard.at/?url=/?id=2415414.
35
ICTY, Prosecutor v. Jovica Stanisić and Franko Simatović, case No. IT-03-69, paras. 59 and 62.
36
CR 2006/11, p. 40, para. 28 (Prof. Pellet). - 34 -

discussed Srebrenica is as a matter of principle not any different from that of those students

37
gathering in Belgrade . Obviously we will get back to discus sing Srebrenica later on this week.

But the approach discussed here is exemplary for th e Respondent’s approach. This approach is in

many ways peculiar, it’s an unusual mix of, on th e one hand blunt and sweeping denials with, on

the other hand, an almost absolute absence of specifically denying specific facts.

14. It is an approach which includes storyt elling, storytelling rather than providing or

rebutting facts. It includes several mantras like “it was a civil war”, or “all sides were bad”, or “all

sides were victims”, or “the Bosnian Serbs did it, not us”; mantras which, as mantras do, aim to get

the message across by sheer repetition, not by arguing.

We will try and address these mantras and we w ill try and show the Court that the true facts

are reflected in our pleadings, and not in the pleadings of the Respondent.

History

15. When we provided the Court with some historic background to the events central to our

case, we did not envisage engaging in a course in history writing. We did, indeed, trace back the

38
Greater Serbia notion to Garasanin and his Nacertanije (Plan) of 1844 . We were not about to

study the precise context of his writing and we were not interested in the fact that the publication,

39
as Professor Stojanović explains , was only read in a small circle (w hich is in itself not surprising

in the second half of the nineteenth century). It was only read apparently in a small circle until a

somewhat wider publication 100 years ago. Our point has been that the Greater Serbia rhetoric was

key to the events in the second half of the 1980s and in the 1990s, which led to the ethnic cleansing

of, in the first instance, 70 per cent of the territory of Bosnia and Herzegovina. An ethnic cleansing

campaign which, as we are arguing in our case, squarely meets the criteria of the Genocide

Convention.

16. Seen from this perspective, our perspective, the extensive narrative presented by

Professor Stojanović covering the first six hours of the Respondent’s pleadings on the merits did

not meet the point that we are making. Besides that, this narrative was scarcely referenced and

37CR 2006/18, p. 27, para. 67 (Mr. de Roux).
38
Application instituting proceedings, 20 March 1993, para. 24.
39
CR 2006/14, p. 12, para. 5 (Prof. Stojanović). - 35 -

clearly hardly supported by verifiable sources. Th e lack of those combined with several important

mistakes have led us to the conclusion that weshould not spend much time in rebutting this.

17. We have never stated that Miloševi ć or the other Serbian leaders have based their

propaganda on a correct version of the history of Serbia and its heroes. We have only listened to

what they said and we have made an analysis similar to the one made by Richard Holbrooke in his

book 4, by Warren Zimmermann in his book 4, by Norman Cigar 42, by Tim Judah 4, by Adam

44 45
LeBor , and Ed Vulliamy , among many others. And precisely this same analysis was made by

46
the ICTY in its very first substantial judgment, in the Tadić case . These writers all agree that the

end of the communist era in the former Yugoslavia not only created the conditions for its

dissolution, but also moved the Serbian leadership in Belgrade to try and save their political,

territorial and economic authority by playing the ethnic/nationalist card in the most extreme way.

18. And so it happened that the Serbian Prince Lazar was revived 600 years after he lost his

great battle against “the Ottomans”, which battle was fought in Kosovo. And so the notion of

“revenge” on “the Turks” was revived. So th e notion of Serbian victimhood was recultivated.

And, thus, the impression was raised that the Serbs were about to, again, become victims of

47
genocide. We did provide this analysis in our wr itten pleadings and, again, in our oral pleadings .

This analysis as such, including the detailed re ferences to the relevant sources, has not been

rebutted by the other side.

19. Rather the contrary has been the case. Several times Mr.de Roux gave as the

Respondent’s position that the Respondent found it understandable that the Serbs in Bosnia and

40
Richard Holbrooke, To end a war (Random House, New York 1998), pp. 22-24.
41
Warren Zimmerman, Origins of a catastrophe (Random House 1996), pp. 10-13, 120.
42Norman Cigar, Genocide in Bosnia: the policy of “ethnic cleansing” (Texas A&M University Press 1995),

pp. 22-37.
43Tim Judah, The Serbs: history, myth & the destruction of Yugoslavia (Yale University Press, New Haven and

London 1997), notably pp. 158-160 and 308-310.
44Adam LeBor, Milosevic: a biography (Bloomsbury 2002), pp. 75-87.

45Ed Vulliamy, Seasons in hell: understanding Bosnia’s war (St. Martin’s Press 1994), pp. 42-55.

46ICTY, Prosecutor v. Duško Tadić, case No. IT-94-1, Trial Chamber Opinion and Judgement, 7 May 1997,
paras. 72, 83, 88, 89, 94.

47CR 2006/2, pp. 29-30, paras. 3-8 (Mr. van den Biesen). - 36 -

Herzegovina felt threatened and he referred to their experience in recent history. For example,

about the hate speech of the likes of Radoslav Brđanin, Mr. de Roux said:

“Ces discours des Serbes de Bosnie étaient prononcés dans une situation de

conflit qui fut d’abord politique avant d’être m ilitaire. Oh certes, ils sont souvent très
excessifs! Mais ils reflètent malheureusem ent la situation qui existait à l’époque en
Bosnie-Herzégovine . . . Et je voudrais simp lement rappeler que Brdjanin n’avait rien

à voir avec la Serbie-et-Monténégro, il était un Serbe de Bosnie, né en Bosnie, dont les
parents d’ailleurs avaient été tués lors de la deuxième guerre mondiale, justement par
les forces croates. Brdjanin est donc bien un pur ressortissant de Bosnie-Herzégovine,
plongé dans la malheureuse histoire de ce pays.” 48

And he continued: ”

“Dès lors, les Serbes, peut-être à tort d’ ailleurs, pouvaient se sentir en danger

s’ils devaient constituer une simple minorité dans la nouvelle république, d’autant que
les épurations ethniques brutales dans les Balkans étaient une longue tradition ayant
culminé durant la deuxième guerre mondiale, laissant aux Serbes de Croatie et de
49
Bosnie un goût amer . . .”

And the Agent spoke in the same way when he said:

“Cette attitude des Serbes (l’attitude qui consistait à s’opposer à la séparation de
la Bosnie-Herzégovine), accompagnée de la peur, les poussait à accepter les armes de
toute provenance... Il faut mentionner le fait qu’en Bosnie-Herzégovine, après la
deuxième guerre mondiale, la plupart des ma isons avaient des armes de trophée de la

deuxième guerre mondiale. Cette tendance a été sans doute motivée par l’expérience
de la deuxième guerre mondiale dans laque lle les Serbes non armés étaient une proie
facile des O[ustacha].” 50

And, even more telling, he says:

“Il était clair que la pression internationa le était très forte et que la Yougoslavie

devrait retirer l’armée nationale yougoslave de Bosnie-Herzégovine51Le risque que ce
retrait représentait pour les Serbes de Bosnie était évident.”

20. It is, Madam President, disturbing to see in these very proceedings, conducted by lawyers

who informed the Court about their personal positions in the relevant period of time and who claim

to have all along opposed Milosevic’s policies, that this propaganda, which led to the extensive use

of genocidal armed force, seems to be repeated, or at least justified. This becomes even more clear

when we hear Mr.de Roux speak about the unde rstandable repugnance of the Bosnian Serbs

against becoming a minority in Bosnia and Herzegovina. To give just two examples:

48
CR 2006/19, pp. 38-39, para. 246 (Mr. de Roux).
49Ibidem, p. 42, para. 255.
50
CR 2006/15, p. 18, paras. 143-144 (Prof. Stojanović).
51
Ibidem, p. 19, para. 148. - 37 -

⎯ On 10 March, the Agent of the Respondent stated:

“Après la reconnaissance de la Bosnie-Herzégovine, le peuple serbe vivant dans
ce pays a été réduit au statut d’une minor ité nationale dans son propre pays dans
lequel il existait et vivait depuis des siècles en tant que l’un des trois peuples
constitutifs. .. Il est difficile d’imaginer la situation dans laquelle un peuple devient

une minorité nationale dans son propre Etat . Et pourtant c’est le destin du peuple
serbe en Bosnie-Herzégovine. Raisonnablement, l’on ne peut nier que dans ce cas-là
ce peuple ait eu le sentiment d’une grande déception et d’un échec historique. Cet

échec aurait pu être accepté, mais son acceptation aurait signifié la disparition du
peuple serbe en Bosnie-Herzégovine... Le changement du statut des Serbes, du
peuple constitutif, en une minorité nationale signifiait pour eux la perte de leur identité
collective.”52

⎯ And Mr.de Roux said on 15 March: “L’on pouvait craindre qu’il en soit de même en

Bosnie-Herzégovine [qu’en Croatie] si les Serbes étaient réduits à être une simple minorité.”

Here, Madam President, the Respondent is, agai n, just repeating the earlier propaganda. Who was

threatening the Serbs? Who was in a position to threaten the Serbs? Well, in any event not the

Bosniaks, who ⎯ as MrK . aradzic had pointed out so explicitly in the Assembly of

15 October 1991 ⎯ would be “annihilated”. Why? Karadzic explains: since they would have no

53
way to defend themselves . Simply, the facts do not support the Respondent’s pure speculation

about the feelings of the Bosnian Serbs, which sp eculation is only presented to the Court as a

matter of justification. In effect, this is what this reasoning leads to. The reasoning goes: the

Bosnian Serbs feared a status of minority and this explains their being provided by Belgrade with

an entire army in order to cleanse 70percent of Bo snia’s territory and turn it into a purified Serb

land, which then could be merged with the rest of Serbia. What sort of reasoning is this?

21. The relevant facts are as follows: first, in Bosnia and Herzegovina all “nations” were

minorities, not one of them formed the absolute majority. As we mentioned before, the 1991

census showed the make up of Bosnia’s population:

⎯ a little over 43 per cent Bosnian Muslims,

⎯ 31 per cent Bosnian Serbs,

⎯ 17 per cent Bosnian Croats, and

54
⎯ almost 8 per cent Others .

5CR 2006/15, p. 12, paras. 120-122 (Prof. Stojanović).

5CR 2006/2, p. 34, para. 18 (Mr. van den Biesen).
54
CR 2006/2, p. 31, par. 9 (Mr. van den Biesen). - 38 -

Besides that, and more importantly so, as Professor Stojanovi ć acknowledged 5, Bosnia and

Herzegovina was a truly ethnically mixed society with the highest percentage of mixed marriages.

In other words, ethnicity was not, given the make up of Bosnia, a divisive issue. The notion of the

Serbs becoming a minority really was somethin g that was introduced into the Bosnian public

debate from outside of Bosnia and Herzegovina.

22. In this context the Respondent stated that the Serbs would have lost its status of

56
constituent nation in Bosnia due to Bosnia’s becoming an independent State . This is just not true.

The successive constitutions of the Republic of Bosnia and Herzegovina since the Second World

War recognized three “constituent nations”: Muslims, Croats and Serbs.

23. The Serbs’ recognition as a “constituent nation” remained intact until March 1994 when

it was superseded by the Constitution of the Federa tion of Bosnia and Herzegovina. During that

time, the Presidency of Bosnia and Herzegovina continued to have two Bo snian Serb members.

After the SDS members Nikola Koljevi ć and Biljana Plavši ć resigned on 7April 1992, the two

Serbs who were next on the list of votes received in the election, Mirko Pejanovi ć and

Nenad Kecmanović, were appointed in their place. Thes e were, of course, members of other

political parties, but the Respondent seems to coun t as “Serbs” only those who were leaders of the

SDS.

24. The Serbs’ status as a “constituent natio n” was not included in the Constitution of the

Federation of Bosnia and Herzegovina that was prepared by United States government attorneys as

part of the Washington Agreements of March 1994, but it was restored in Annex 4 of the Dayton

57
Peace Agreement signed in December 1995 . The Constitution, however, of Republika Srpska

continued to recognize only Serbs as a cons tituent nation, and also the Constitution of the

Federation recognized only Croats and Bo sniaks. In 1998, it was Alija Izetbegovi ć ⎯ who is, by

the Respondent, based on his earlier writing, positioned here as a proponent of an Islamic State but

whose record in public office only provides for the contrary and prove him to be a wholeheartedly

defender of a multi-ethnic, democratic Bosnian State ⎯ who appealed to th e Constitutional Court

5CR 2006/14, p. 39, para. 90 (Prof. Stojanović).

5CR 2006/15, p. 12, para. 122 (Prof. Stojanović).
57
Annex 4 to General Framework Agreement for Peace in Bosnia and Herzegovina (“Dayton Agreement”),
21 November 1995, United Nations docs. A/50/790 and S/1995/999, 30 November 1995, preamble, p. 59. - 39 -

of Bosnia to compel the application of the “thr ee constituent nations” formula in all Constitutions

58
of the country. And in July, the co urt decided in favour of that request , and since then all

Constitutions have been revised to include language reflecting the equal rights of all constituent

nations in Bosnia and Herzegovina.

25. At the time, there was no reason whatsoever for the Serbs to fear the non-Serbs of Bosnia

and Herzegovina and, it should be added, the Respondent has failed to produce any evidence to the

contrary. The justification implied in the Respondent’s pleadings is, therefore, totally misplaced.

26. We should remember that it was Milošević who said:

“As far as the Serbian people are concerned, they want to live in one State,

hence divisions into several States, which will separate Serbian people and force them
to live in different sovereign States is, fr om our point of view, unacceptable. That is,
let me specify, out of the question.” 59

We should remember that it was Karadžić who threatened the Muslims of Bosnia and Herzegovina

with annihilation. History shows ⎯ it is the centre of this case ⎯ that these threats were deadly

serious. And, indeed, they were taken seriously by the non-Serbs. It was exactly against the

background of these threats that Izetbegović, who did not especially want Bosnia and Herzegovina

to become an independent State, stated in the fall of 1991 that Bosnia would not have a choice but

to become independent if Slovenia and Croatia woul d leave the SFRY. In that case, the Bosniaks

would, indeed, become a minority in the new Yugoslavia as envisaged by Miloševi ć and his party

men: in a Yugoslavia consisting of Serbia and Montenegro and Bosnia and Herzegovina,

according to the 1991 census, the total population would have been almost 12.5million people.

60
According to that same census, only 17.3percent of this population would have been Muslim .

Now the real world provided for evidence what that would imply: since Serbia, i.e., Milošević, had

already ⎯ through illegal pro ceedings in the Serbian parliament ⎯ taken away the relative

autonomy of Vojvodina and of Kosovo and Miloševi ć had already clearly threatened the Muslims

in Kosovo. That is what the real world told the Muslims in Bosnia. The Vukovar massacre,

58
Constitutional Court of Bosnia and Herzegovina, case U 05 -98, Partial Decision III of 1 July 2000. Available in
English at www.ccbh.ba/?lang=en&page=decisions/byyear/2000.
59
CR 2006/23, p. 21 (testimony of General Sir Richard Dannatt).
60For BH: Census figures of 1991.For Serbia: the Statistical Yearbook of Serbia, 2005, available at
http://webrzs.statserb.sr.gov.yu/axd/en/god.htm; for Montenegro: Statistical Office of Montenegro at
http://www.monstat.cg.yu/EngMeniGodisnjiPodaci.htm. - 40 -

conducted in a combined operation of the JNA and paramilitaries from Belgrade, also had already

taken place, which again clearly showed that the th reats were to be taken seriously. Moreover, the

arming of the Bosnian Serbs by both the JNA and th e Serbian Ministry of the Interior in Belgrade

did not go unnoticed and formed another reason to take these threats seriously.

27. So, the facts do not provide for any serious reason for the Serbs to feel threatened. And,

again, to suggest this as part of a defence in the current case is totally misplaced.

Civil war

28. One of the mantras of the Respondent cl early comes down to “it was a civil war” and

certainly, Madam President, as years went by, civil war features came to be visible. Apparently, in

the Respondent’s view, this civil war is to serve as an explanation and as a justification of the

armed violence of the period 1992-1995. It clearly is not only meant to serve as justification but

also as a denial of the existence of genocidal intent. The “civil war” label is also meant to ⎯

apparently as a matter of automaticity ⎯ exclude that the Federal Republic of Yugoslavia could

possibly have anything to do with it, let alone that any violations could be attributed to it. Finally,

the “civil war” denomination is used to argue that it is not possible to make a difference between

military and civilians. All of these approaches will not be able to help the Respondent since the

“civil war” label does not take away the substance or the focus of our case.

29. Even if the Respondent were correct in us ing “civil war” as the ov erall label, the label

has no relevance for our case. Indeed, in a civil war situation it is perfectly possible that the parties

become engaged in violating the Genocide Convention, regardless of the civil war label. Indeed, in

a civil war situation it is perfec tly possible that only one of the warring parties violates the

Genocide Convention, again, regardless of the civil war label.

30. Our position is that, regardless of the labe l one chooses, it has been the Serb side, with

the Respondent in a dominant position, which has consistently acted in violation of the Genocide

Convention while implementing its Greater Serbia policy. This policy was not just a political ideal

or an idealistic dream. Would it have been just that, then no true democrat could have had any

objections to the dreaming of that dream, or to a political campaign aimed at winning votes to

support that dream. But we are not talking about a dream in our case. The Greater Serbia policy - 41 -

happened to be a road map leading towards “the New Yugoslavia” given the inevitable and, indeed,

anticipated secession of Slovenia and Croatia. A road map which, from the very beginning

onwards, implied the explicitly foreseen use of armed force. A road map which soon revealed,

beginning in Croatia ⎯ in Vukovar ⎯, that it implied ethnic cleansing of non-Serbs who would

stand in the way of achieving the Greater Serbia goal. A road map which in Bosnia and

Herzegovina translated into the Six Strategic Go als, which mentioned the separation of ethnically

defined “nations” as its number one objective 61.

31. The non-Serb sections of the Bosnian population never had this type of policy or this

type of picture of what the future of Bosnia and Herzegovina would look like. The Government of

Bosnia and Herzegovina has never had a policy calling for the separation of the mixed population,

let alone that it ever implemented such a policy with clearly genocidal means.

32. So, the civil war approach is in any event not relevant to our case. At the same time

using “civil war” in the way the Respondent does is certainly not supported by the facts. For this

would imply a readiness on all sides involved to take up arms against the other side. As far as the

“sides” are concerned, the Respondent prefers to de fine the “sides” in ethnic terms, which is in

itself telling, but ⎯ as we will see later ⎯ just flat wrong.

33. The Respondent points at the emergence of “nationalistic” political parties in Bosnia and

62
Herzegovina and seems to imply that this in itself was leading up to a civil war . What is the basis

for that assertion? Of course, the Respondent does not provide the basis for that, simply because it

is non-existent. In any event, the Respondent here ignores the fact that Bosnia and Herzegovina, at

the time, was a new developing democracy. The firm reign of the Communist Party had only

recently lost its grip and it is not unusual at all in new democracies that new political parties are

created based on religious designations. It is, on the other hand, totally unusual that this would lead

to civil war, let alone that it would be usual that this would lead to genocide.

34. It is noteworthy, however, that Karadži ć had from the very beginning onwards a close

relationship with Slobodan Miloševi ć. As we have pointed out, this partnership included Milan

61CR 2006/4, pp. 18-19, paras. 36-37 (Ms Karagiannakis).
62
CR2006/14, p. 15, para. 14; pp. 39-40, paras. 91-92 (Prof. Stojanovć); CR2006/15, p. 18, para. 143;
pp. 42-43, para. 207 (Prof. Stojanović). - 42 -

Babić, the leader of the Serbian Democratic Part y in Croatia (SDS), the political party which

organized the Serbs in Croatian Krajina.

35. We have referred the Court to a meeting in Belgrade between Miloševi ć, Karadžić and

63
Babić . In the ICTY case against Miloševi ć, this meeting was revealed through the testimony of

Mr. Babić himself. In the judgment of the Trial Chamber in the Milošević case with respect to the

Motion for Acquittal, we are able to read the findings of the judges:

“In July 1991, Mr. Babi ć, Radovan Karadžić, and the Accused [Miloševi ć] had

a conversation during which Radovan Karadži ć stated that he would chase the
Muslims into the river valleys in order to link up all Serb territories in Bosnia and
Herzegovina. The Accused warned Mr. Babić not to ‘stand in Radovan’s way’.” 64

Mr.Brownlie has given the Court his opinion on this part of the judgment and he calls it “a very

prejudicial summary of a long series of excha nges from the transcript of the testimony of

Mr. Babić” 65. And he blames my colleague, Professor Franck, for using this judgment. To prove

to the court that he, Mr. Brownlie, is right, he ha s produced in the judges’ folder a couple of pages

from the Babi ć transcript and he has suggested that th e Court should itself find out why he is

correct ⎯ why he is correct in his opinion that the judges of the Tribunal were “prejudicial”.

Madam President, this is a peculiar way of litig ating and it becomes even more peculiar if one

looks at the documents produced by the Respondent. This is what the witness said:

“Karadzic said the following: that he held Alija Izetbegovic in his pocket, that

he could settle accounts with him at any time , but the time was not ripe for it so that
the Serbs should not be blamed for things, that it would be better to wait for
Izetbegovic to first make the wrong political move and that is when accounts would be
settled, and the Muslims would be expelled or crammed into the river valleys and that

he [Karadzic] would link up all Serb territo ries in Bosnia-Herzegovina, but he said
that he wasn’t sure whether he would take Zenica from them.”

And then the Prosecutor asked Babić what the reaction of Milošević was to this remark. And Babić

then said: “He said that I shouldn’t be stub born and stand in the way of Radovan, stand in

Radovan’s way.” 66 Apparently Miloševi ć did not respond by objecting to Karadži ć’s threat to

expel “the Muslims” or to cram them into the river valleys. Apparently Milošević did not object to

63CR 2006/3, p. 36 (Prof. Franck).

64ICTY, Prosecutor v. Slobodan Milošević, case No. IT-02-54, Trial Chamber Decision on Motion for Judgement
of Acquittal, 16 June 2004, para. 253.
65
CR 2006/17, p. 40, para. 291 (Prof. Brownlie).
66
Page 4 in judges’ folder of 13 March 2006. - 43 -

his planning to link up all Serb territories in Bosnia. All of this did actually happen ⎯ all of what

Karadžić had promised that would happen did actually happen ⎯ and it became known to us as

“ethnic cleansing”. Of course Miloševi ć did not object to this, because this was his own policy, a

policy which during this meeting in July 1991 was central to questions not of principle but only of

implementation.

36. So, the emergence of political parties does not support the “civil war” approach

professed by the Respondent. At the same time the close relationship between the three Serb

parties certainly was crucial, certainly was rele vant for the joint operation aimed at realizing

Greater Serbia.

37. We have demonstrated that Miloševi ć sent his Deputy Minister of the Interior,

67
MihaljKertes, from Belgrade to Bosnia to see to it that arms were distributed to the Serbs . We
68
have demonstrated how the JNA did the same and used the Bosnian Serb party, SDS, to this end .

The Respondent did not deny this, although these facts undermine its “civil war” approach, but the

Respondent did respond. It just shifted to anot her mantra: it shifted to the mantra “all sides did

69
the same” and pointed out that “the Muslim side” had their Patriotic League .

38. Well, the formation of the Patriotic League indeed took place, but only in response to the

arming of the Bosnian Serbs, which began, as we have seen, at the latest in April 1991. The

Patriotic League had ⎯ as did the SDA ⎯ a programme aiming at the preservation of Bosnia and

Herzegovina. It stated, among other things:

“Bosnia and Herzegovina is homeland of the Muslims, Serbs and Croats and all

citizens living therein, and is not severable because of its ethnical mix, and for the
centuries they have been living together and thus the division would be paid by
thousands of lives. Thus we call all Muslim s, all Serbs and all Croats and all citizens
70
of Bosnia and Herzegovina to defend their homeland Bosnia and Herzegovina.”

So, the programme was, indeed, patriotic ⎯ that is what it was ⎯ and it sought to include all of

Bosnia’s “nations”.

67CR 2006/2, p. 32, para. 13 (Mr. van den Biesen).
68
CR 2006/4, pp. 12-14, paras. 10-17 (Ms Karagiannakis).
69
CR 2006/15, pp. 21-23, paras. 153-163 (Prof. Stojanović). CR 2006/19, pp. 45-46, para. 267 (Mr. de Roux).
70Vahid Karavelic, Agresija na Bosnu i Hercegovinu, Sjeveroistocna Bosna 1991-1992 [The Aggression on
Bosnia and Herzegovina, North-East Bosnia 1991-1992] (Institut za istrazi vanje zlocina protiv covjecnosti i
medjunarodnog prava, Sarajevo 2004), pp. 195-196. - 44 -

39. The Patriotic League was not very successfu l military-wise, which showed that it is just

not true that “all sides” were the same here. The Bosniaks did not have the JNA to back them up or

to provide them with arms. The Bosniaks did no t have the MUP in Belgrade in charge of arms

distribution to them. This was confirmed by the ICTY Trial Chamber in the Brđanin trial

judgment:

“However, the Bosnian Muslims’ efforts to procure and distribute weapons

were nowhere near as successful as those of the Bosnian Serbs, both in terms of the
number and the quality of the obtained weapons. This was due in part to the fact that
Bosnian Muslims mainly procured their we apons on an individual basis. Some
obtained their weapons by buying them from Bosnian Serbs returning from the front

line in Croatia. On a number of occasions, Bosnian Muslims purchasing weapons in
this way were identified and later arrested [for it]. Equally, the Bosnian Croat
population’s endeavours to arm themselves fell far short of the arming efforts
conducted by the Bosnian Serbs.” 71

Pistols and old rifles and only occasionally modern weapons formed the armament of the Patriotic

League. It all appeared totally useless against the abundant and up-to-date equipment of the JNA.

40. Another reason for the lack of arms of th e Patriotic League was the fact that non-Serbs

were disarmed ⎯ they were disarmed ⎯ ahead of time in all the municipalities where Serbs

formed a majority. And this has also been confirmed as a fact by the ICTY in various judgments:

“Before the actual outbreak of the conf lict... The Serb population had been
receiving arms and equipment from the JNA throughout 1991, whereas in areas where
Muslims and Croats predominated, local TOunits were downsized and disarmed by
72
the JNA.”

And:

“Then in the second half of 1991 military units were formed [by the JNA] in

Serb-populated villages in Bosnia and Herzegovina and supplied with weapons and
with uniforms... Those TOunits in predominantly Muslim and Croat areas of
Bosnia and Herzegovina were at the same time largely disbanded by the JNA.
General Kadijević in his book describes how ‘naturally we used the territorial defence

(the TO) of Serb regions in Croatia and Bo snia and Herzegovina in tandem with the
JNA’ to paralyse territorial defence wher e it might provide a basis for creating the
armies of secessionist republics.”

“The TO of Bosnia and Herzegovina had in any event been to a degree
neutralised by the action taken by the JNA to disarm it. Traditionally all TO weapons
were stored locally, within each municipality, but in late 1991 and early 1992 the JNA

removed all local stocks of weapons from TO control, at least in Muslim-populated

7ICTY, Prosecutor v. Radoslav Brđanin, case No. IT-99-36, Trial Chamber Judgement of 1September2004,
para. 89.
72
ICTY, Prosecutor v. Zejnil Delali ć, Zdravko Muci ć, Hazim Deli ć and Ezad Landžo ( Čelebići),
case No. IT-96-21, Trial Chamber Judgement of 16 November 1998, para. 109. - 45 -

areas. This left those local TO units vi rtually disarmed whereas units which were
drawn from Serb-populated areas, and only those, were substantially re-equipped.” 73

These facts have been established by the Trial Cham ber of the ICTY. All of this shows, beyond

any reasonable doubt, that the “all sides did the same” mantra does not have a basis in the factual

situation on the ground.

41. We have demonstrated that the Bosnian Se rbs created parallel stru ctures in Bosnia and

Herzegovina: the “Autonomous Regions”, the para llel Serb Municipal Assemblies and the local

“crisis staffs”. The JNA, at all times, participated in those crisis staffs 74. The Respondent has not

denied that.

42. The so-called “other sides” did not create those parallel structures and most certainly the

JNA did not participate in any sort of “crisis staff” of the Bosniaks, which crisis staffs did not even

exist in the first place. So, no even-handedness here. We have demonstrated that the JNA actually

began using armed violence, in cl ose harmony with paramilitaries fr om Belgrade, in Bijeljina and

that this event marked the beginning of the ethnic cleansing campaign in Bosnia. The other side

has only weakly denied this by saying that the numbers we provided for the victims in Bijeljina are

too high, but that killings did happen 75. At one other point, the Respondent noted that it would

examine what happened in a number of regions and municipalities including Bijeljina, but it never

returned to that subject 7.

43. Madam President, this Court recalled in its Judgment on Preliminary Objections of

11July1996 that Bosnia and Herzegovina b ecame an independent State on 6March1992 ( I.C.J.

Reports 1996(II) , p.612, para.23). The Respondent agrees with that 77. So, clearly, in Bijeljina

the JNA, which only took orders from Belgrade, was acting as an aggressor. As we just noted, the

other side only weakly denied this. Also, the other side did not deny that the JNA did refuse to take

78
orders from the newly formed Bosnian Government .

73ICTY, Prosecutor v. Duško Tadi ć, caseNo.IT-94-1, Trial Chamber Opinion and Judgement, 7May1997,
paras. 106, 107.

74Ibidem, pp. 17-18, para. 32.
75
CR 2006/12, p. 43, para. 83 (Mr. Obradović).
76
CR 2006/18, p. 16, para. 56 (Mr. de Roux).
77CR 2006/16, p. 32, para. 86 (Prof. Brownlie).

78CR 2006/4, p. 25, para. 11 (Mr. van den Biesen). - 46 -

44. It is important to note that from the day of Bosnia’s independence, 6March1992,

onwards the Bosnian Government was the Government of an independent State. We know that the

Serb side refused to recognize that at the time. But it is telling, and disturbing, that the Respondent

in these proceedings, until this very day, continues to do so.

45. The Dayton Peace Agreement, to which the Respondent is also a party, established the

new Constitution for Bosnia and Herzegovina. Arti cle1, paragraph1, of this Constitution reads

under the heading “Continuation” as follows:

“The Republic of Bosnia and Herzegovina, the official name of which shall

henceforth be ‘Bosnia and Herzegovina’, shall continue its legal existence under
international law as a state with its internal structure modified as provided herein and
with its present internationally recognized borders.” 79

In other words, here it is acknowledged that, un der international law, Bosnia and Herzegovina,

indeed was an independent State as of the day on which the Republic of Bosnia and Herzegovina

was constituted, i.e., 6 March 1992. Artic le 5 of the General Framework Agreement ⎯ and again,

the Respondent is a party to this provision as well ⎯ reads:

“The Parties welcome and endorse the arrangements that have been made
concerning the Constitution of Bosnia and Herzegovina, as set forth in Annex 4. The
80
Parties shall fully respect and promote fulfilment of the commitments made therein.”

It is exceptional, to say the least, and it is in any event not correct, that the Respondent today

entirely ignores these legal realities to which it has committed itself as a party to the Dayton Peace

Agreement.

46. The Respondent ignores all that and prefers to present its civil-war mantra. It talks about

a three-sided civil war. Professor Stojanovi ć talked about “une guerre civile menée entre les

citoyens de la Bosnie-Herzégovine appartenant aux ethnies différentes afin de prendre les

81
territoires et établir les frontières de leurs entités” . Professor Brownlie stated that a “three-sided

civil war emerged within Bosnia . . . The three sides were the Muslims, the Croats and the Serbs of

82
Bosnia.” Mr.de Roux speaks about “une guerre civile qui éclate dans cette Bosnie, reconnue

79Annex4 to General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement),
21 November 1995, United Nations doc. A/50/790 and S/1995/999, 30 November 1995, p. 60.
80
General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement),
21 November 1995, United Nations doc. A/50/790 and S/1995/999, 30 November 1995, p. 3.
81
CR 2006/15, p. 29, para. 171 (Prof. Stojanović).
82CR 2006/16, p. 32, para. 86 (Prof. Brownlie). - 47 -

certes par la communauté internationale, mais qui contient trois peuples ne souhaitant plus partager

un destin commun” 83. MsFaveau-Ivanovi ć also described the conflict as a civil war 84, while

Professor Varady stated that “[t]he actual conflict we are facing was an ethnic conflict, the dividing

lines between the warring parties were ethnic dividing lines” 8.

47. Further the Respondent specifies the par ties and talks about three wars: “a war of

‘Muslims against Serbs’, a war of ‘Muslims against Croats’ and a war of ‘Muslims against

86
Muslims’” . This, however, is a straightforward denial of the existence of an independent Bosnia

and Herzegovina and also a straightforward denial of the existence of its Government. At the same

time, it shows that the Respondent’s mindset is, also today, preoccupied ⎯ if not obsessed ⎯ by an

approach defined in ethnic terms only.

48. The truth of the matter is that the Bo snian Government and the Bosnian army have

during the entire 1992-1995 period endeavoured to protect the threatened, if not killed, wounded,

raped or chased from their homes and families, population of Bosnia and kept endeavouring to

move the Serb side from illegally obtained control over a large part of Bosnia’s legitimate territory.

This is not exactly in line with Mr. de Roux’ unfounded assertion “une guerre civile qui éclate dans

cette Bosnie, reconnue certes par la communauté in ternationale, mais qui contient trois peuples ne

souhaitant plus partager un destin commun”. The facts show that this not wishing to share a

common fate was only true for the Serb side.

49. Given the fact that the JNA was a well trai ned armed force combined with the fact that

87
the BH army was virtually non-existent, the Serb side who was ⎯ as General Rose confirmed ⎯

the aggressor, succeeded to overtake one municipality after the other in a well-organized and

well-planned manner.

50. We need to remember that Karadži ć defined in his Directive of December 1991 entitled

“Instructions for the organization and activity of organs of the Serbian people in Bosnia and

8CR 2006/19, p. 43, para. 261 (Mr. de Roux).

8CR 2006/20, p. 23, para. 2 (Ms Faveau-Ivanović).
85
CR 2006/12, p. 48, para. 1.13 (Prof. Varady).
86
CR 2006/15, pp. 29-36, paras. 173-188 (Prof. Stojanović).
8CR 2006/26, pp. 29-30 (testimony of Sir Michael Rose). - 48 -

88
Herzegovina in extraordinary circumstances” , that he did define municipalities with substantial

Serb inhabitants in “Variant A” and “Variant B” municipalities, being municipalities with a Serb

majority and municipalities with a Serb minority, respectively. The document mapped out

precisely how these should be taken over by the Bo snian Serbs. We also must remember that this

directive provided for the activa tion of the parallel structures an d the crisis staff, which were

created in anticipation of precisely this moment. We also need to remember that the JNA was

represented in each and every crisis staff. So , the JNA did participate in the planning, it did

participate in the implementation of the planning. They were all in it together, and it has been like

that ever since. None of this has effectively been denied by the Respondent.

51. For the Serb side nothing really changed on 19 May 1992, the day on which, as the

Respondent claims, the withdrawal of the JNA would have been completed. Also, nothing changed

with respect to the participation of paramilita ries from Belgrade, wh ich operated under the

responsibility of either the JNA or the Serbian Ministry of the Interior.

52. We provided the pattern of this overtaking of one municipality after the other, and we did

89
so several times during the written and oral pleadings . The pattern as such has not been contested

by the Respondent. The only response has been “all sides did the same”, which ⎯ if true ⎯ does

in any event not amount to an effective denial, but which also is not true, while the Respondent has

not even tried to prove its assertions. Besides th is mantra “all sides did the same”, the Respondent

in this context also engaged in a numbers game. And we will get back to that later this week.

53. “Overtaking” of one municipality after an other actually is not the proper word for it,

because the aim was not to bring the population unde r a new régime. Not at all, this was not an

average war of territorial conquest. The true aim turned out to include a genocidal intent and

became visible as soon as the combined Serb forces controlled the municipalities.

54. The aim became visible when in Prijedor the non-Serb elite ⎯ Bosnian Croats and

Bosniaks alike ⎯ were arrested and transported to camps where they were beaten continuously, not

seldom beaten to death. They were transported to camps where the women were raped, camps

8CR 2006/2, p. 33, para. 15 (Mr. van den Biesen).
89
Ibidem, pp. 42-44, paras. 45-55. CR2006/6, pp. 10-26 (Ms Dauban). Reply of 23 July 1998, pp.68-76,
paras. 19-39 and Chap. 5. - 49 -

where people through lack of food turned into living skeletons in three or fourmonths time. The

aim became visible when in Prijedor one non-Serb home after the other wa s set to flames, while

Serb houses were carefully protected.

55. The aim became visible in Bijeljina, when Arkan’s paramilitaries from Belgrade took

over the town, arrested the prom inent Bosniak citizens, who su bsequently disappeared, and

proceeded to seize the property of Bosniak civilians. This escalated into arbitrary beatings, killings

and detentions. Up to 2,000 people were detained in the Batkovi ć camp, where many atrocities

90
were committed, and as many as 100 people died . The aim became visible in Zvornik, when

paramilitaries from Serbia, supported by JNA artillery fire from the Serbian side of the River Drina

and supported by JNA ground troops in Bosnia and Herzegovina, took over the town. Civilians

were killed, their blood soaked the street so much that United Nations High Commissioner for

Refugees jeep skidded on the blood on the streets. There were lorries fu ll of corpses of women,

91
children and old people .

56. The aim became clear when paramilitarie s from Serbia forcibly took seven unarmed

Muslim men from Visegrad to the edge of the Drina River, lined them up along the banks and

proceeded to shoot them in cold blood 92. The aim became clear in the Mahala area of Visegrad

town where a group of over 70 Muslim women, ch ildren and elderly men were taken to a house,

stripped of their valuables and barricaded in a room. The house was then set on fire and those that

93
tried to leave the house were fired upon . The aim became clear in Kori ćanske Stijene when a

group of over 200 male prisoners from Trnopolje Camp were taken; they were taken to a cliff and

they were told that they were going to be exchanged ⎯ the dead for the dead and the living for the

living. They were ordered to kneel down where they cried and begged for their lives before the

shooting started. If the corpses did not fall into the abyss they were pushed, and the soldiers threw

grenades into the gorge to make sure there were no survivors 94. The aim became clear in Glogova

90CR 2006/6, pp. 12-14, paras. 7-9 (Ms Dauban).

91CR 2006/6, pp. 15-16, paras. 15-16 (Ms Dauban).
92
CR 2006/6, p. 18, para. 25 (Ms Dauban).
93
CR 2006/6, p. 18, para. 25 (Ms Dauban).
94ICTY, Prosecutor v. Radoslav Br đanin, case No. IT-99-36, Trial Chamber Judgement, 1 September 2004,
paras. 459-460. - 50 -

when a group of unarmed Muslim residents were gr ouped together and shot. Other residents were

ordered to dump their corpses into the river and were then lined up by the river and shot: a total of

95
64 civilians were killed . The aim became clear in Sarajevo wh en at least 16 civilians were killed

by a mortar as they queued for bread in the centre of the city in May 1992.

57. All of this was the aim, all of this wa s not accidental: it was the intent. This was

precisely the intent which the drafters of th e Genocide Convention had in mind when they

concluded Article II of the Convention.

58. To call this, Madam President, “a terr itorial war” as the representatives of the

Respondent continue to do, goes beyond any sort of “newspeak”. Using “territorial war” to

describe a clearly intended, clearly genocidal campaign of killing, causing bodily and mental

wounding, raping, forcibly transferring, ethnic cleansing of an ethnically and religiously defined

group, goes beyond reasonable and dignified pleading and clearly enters the domain of

undertakings aimed at misleading this Court.

59. In this case we are not discussing a territorial war, we are not discussing a civil war, we

are not discussing even-handedness. We are discussing a clearly organized campaign of

destruction, a campaign aimed at the non-Serbs of Bosnia, destruction through the use of

overwhelming armed force; a campaign which meets the criteria of the Genocide Convention.

60. If anyone would still be in doubt about the true aim of the Serb side, about their true

intent, then there is still the issue of the destructio n of, what is generally referred to as, the cultural

heritage of the Bosnian Croats and the Bosniaks. Mr.Riedlmayer has provided the Court with a

compelling and lucid picture of the unimaginable si ze of this clearly well- planned destruction and

of its widespread character 96. Moreover, he has effectively de monstrated that this destruction

occurred entirely unrelated to any kind of warfare. The aim of this destruction was totally clear, it

was explicitly intended to erase the soul and the spirit of the non-Serbs ⎯ i.e., of the Bosnian

Croats and of the Bosniaks ⎯ from the land which by then was indeed cleansed and purified.

9ICTY, Prosecutor v. Miroslav Deronjić, case No. IT-02-61, Trial Chamber Judgement, 30 March 2004,
paras. 93-97.
96
CR 2006/22 (testimony of Mr. Riedlmayer). - 51 -

61. Purified into Serb, pure Serb, territory, which territory, then, was to be kept eternally.

This trying to defend and keep th is territory, indeed, provided for the characteristics of a territorial

war. A war about territory, where all traces of ethnically defined Bosnian Croat and Bosniak

groups were deliberately, entirely and in a cl early organized and pre-planned manner erased

through acts listed in ArticleII of the Genocide Co nvention. A territorial war fought by the Serb

side with the clear intention to make sure that the Bosnian Croats and the Bosniaks would not ever

be able to re-begin living in the places which had been their homes and their places of birth for

centuries.

Financial unity

62. The final point I want to address, Madam President, before I conclude is the financial

unity as was discussed by our colleague Morten Torkildsen in the first round. He has demonstrated

to the Court how the Republika Srpska project was exactly financed. He showed and he explained

how the backbone of the Bosnian Serb military forc es, the officers, remained employed, remained

paid and promoted by the Yugoslav army. Until November 1993, this was apparently done in a

continuation of the situation which existed be fore the so-called withdrawal of the JNA on

19May1992. From November 1993 onwards this was organized through the 30th Personnel

Centre of the Yugoslav army. Likewise Belgrade paid for the officers of the Krajina Serb army

through the 40th Personnel Centre 97. The Respondent only superficially responded to this, but did

not effectively deny it.

63. Mr.Torkildsen also showed and demonstr ated, based on available evidence, how more

than 90percent of the Republika Srpska budget was covered through payments by and so-called

98
credits from the Belgrade monetary authorities and institutions . The Respondent did not deny

this.

64. Further, we have shown and demonstrated to the Court how the so-called National Bank

of Republika Srpska ⎯ and likewise the National Bank of Republika Srpska Krajina ⎯ functioned

in subordination to the National Bank of Yugoslavia (NBY), how it was to submit its yearly

9CR 2006/9, pp. 25-27, paras. 7-13 (Mr. Torkildsen).
98
CR 2006/9, pp. 30-31, para. 20 (Mr. Torkildsen). - 52 -

balance to the National Bank of Yugoslavia in order for the same to integrate it in its own

“consolidated” balance, and how the governors of both the Republika Srpska and Republika Srpska

Krajina banks were under an obligation to attend the meetings of the National Bank of Yugoslavia

authorities. All of this was agreed in a document made up by all three parties, to which document

99
we referred explicitly . The Respondent, again, did not deny. However, Mr. Brownlie suggested
100
that all of this would be perfectly normal .

65. Certainly, all of this cannot be considered perfectly “normal”, especially not given the

particular circumstances of an ethnic cleansing ca mpaign going on in Bosnia and Herzegovina and

given the continued denials of Belgrade being involve d. We will get back to the issue of financial

unity between the three Serb entities (FRY, Republika Srpska, Republika Srpska Krajina) later on

during our pleadings.

Concluding remarks

66. Madam President, Members of the Court, dur ing the rest of this week’s pleading we will

elaborate on the facts while further rebutting pos itions assumed by the Respondent. We will try

and focus your attention on the fa cts that matter and we will not use mantras aimed at blurring the

true picture. We will follow exactly the same approach with respect to the legal questions relevant

to put the facts in their proper perspective. Thank you very much, Madam President.

The PRESIDENT: Thank you very much, Mr. van den Biesen. Just to clarify where we are

after the unexpected events of this morning, is the Court to understand that your pleadings for the

day are concluded, Mr. van den Biesen?

Mr. van den BIESEN: Well, you may see me back in the afternoon, but first Professor Pellet

will take the floor and after him I have another topi c to cover and, if time allows for that, then

Professor Brigitte Stern will be speaking.

99CR 2006/9, pp. 44-48, paras. 48-59 (Mr. Torkildsen).
100
CR 2006/17, pp. 27-28, paras. 245-247 (Prof. Brownlie). - 53 -

The PRESIDENT: I see. Thank you very much indeed. The Court will resume at 3 o’clock

this afternoon.

The Court rose at 1.20 p.m.

___________

Document Long Title

Compte rendu 2006/30 - Audience publique tenue le mardi 18 avril 2006, à 10 h 15, au Palais de la Paix, sous la présidence de Mme Higgins, président

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