Audience publique tenue le mercredi le 1er mars 2006, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président

Document Number
091-20060301-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2006/5
Date of the Document
Bilingual Document File
Bilingual Content

CR 2006/5

International Court Cour internationale

of Justice de Justice

THHEAGUE LHAAYE

YEAR 2006

Public sitting

held on Wednesday 1 March 2006, at 10 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

er
tenue le mercredi le 1 mars 2006, à 10 heures, 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-PresiKntasawneh

Judges Ranjeva
Shi
Koroma
Parra-Aranguren

Owada
Simma
Tomka
Abraham

Keith
Sepúlveda
Bennouna
Skotnikov

Judges ad hoc AhmedMahiou
Milenko Kreća

Registrar Couvreur

⎯⎯⎯⎯⎯⎯ - 3 -

Présents : Mme Higgins,président
AlKh.vsce-prh,ident

RaMjev.
Shi
Koroma
Parra-Aranguren

Owada
Simma
Tomka
Abraham

Keith
Sepúlveda
Bennouna
Sjoteiskov,

MM. Ahmed Mahiou,
KMrilenko ća, juges ad hoc

Cgoefferr,

⎯⎯⎯⎯⎯⎯ - 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, Professor at the Facultyof 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, Tork ildsen Granskin og Rådgivning, Norway,

as Expert Counsel and Advocate;

H.E. Mr. Fuad Šabeta, Ambassadorof 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,

coagment;

M. Phon van den Biesen, avocat, Amsterdam,

comme agent adjoint;

M. Alain Pellet, professeur à l’Université de ParisX-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., Tork ildsen Granskin og Rådgivning, Norvège,

comme conseil-expert et avocat;

S. Exc. M. Fuad Šabeta, ambassadeur de Bosn ie-Herzégovine auprès duRoyaume 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 recher che 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, Masters 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, Directo
r
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. (Minneapolis),

Mr. Svetislav Rabrenović, Expert-associate at the Office of th e 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),

cocomnseils.

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,

coagment;

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 membre 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 Djerić, 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. (Minneapolis),

M. Svetislav Rabrenovi ć, expert-associé au bureau du procureur 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. (Cambridge),

Ms Dina Dobrkovic, LL.B.,

as Assistants. - 9 -

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

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

M. Christian J. Tams, LL.M. (Cambridge),

Mme Dina Dobrkovic, LL.B.,

comme assistants. - 10 -

The PRESIDENT: Please be seated. The session is now open and I call upon

Professor Franck.

Mr. FRANCK: Thank you, Madam President, Members of the Court.

G ENOCIDE AS DEFINED BY THE G ENOCIDE C ONVENTION

It will be amply apparent that we have been following a schema for presenting our argument

to you which consists in part of pleading groups of facts, grouped by where the facts occurred,

when they occurred, what the nature of the facts was, and we have interspersed these pleadings of

fact, which undoubtedly have been troubling and disturbing, with less disturbing discourses on the

applicable law, the law that relat es to these facts. This morning I will, with your permission, talk

for a while about genocide, as defined by the Genocide Convention. May it please the Court. I

would like to offer a few observa tions to begin on the role assigne d to this Court by the Genocide

Convention.

The role assigned to this Court by the Genocide Convention

1. We all know, of course, the events leading to the Convention’s drafting. After the

1
extermination of eight million persons , primarily because of their race, religion or ethnicity, major

German war criminals were indicted on 8October 1945 2. One year later, the United Nations

3
General Assembly unanimously a ffirmed that genocide is “a crime under international law...” .

It simultaneously called for the drafting of the Ge nocide Convention, a universal treaty giving

effect to that determination. Two years late r, in 1948, the drafting of that Convention was

completed and the Convention entered into force on 12 January 1951. In its first Article, it

obligates the parties, first of all, “to prevent and punish” this offence against international law 4.

But it also provided another implementing process, one just as important.

2. That process was set out in Article IX of the Convention, by which the International Court

of Justice is given jurisdiction over State respons ibility for genocide. This was adopted only after

1
Oppenheim’s International Law, Ninth ed., Vol. 1, Pts. 2-4, p. 993, para. 434.
Trial of the Major Criminals before the International Military Tribunal , Nuremberg,
14 November 1945-1 October 1946, Nuremberg, 1947, Vol. I, pp. 43-44.

Resolution on the Crime of Genocide, General Assembly resolution 96 (I) of 11 December 1946.

Convention on the Prevention and Punishment of the Crim e of Genocide, General Assembly resolution 260 (III)
of 9 December 1948. United Nations, 78 Treaty Series (UNTS) 277. - 11 -

the earlier draft was deliberately amended. The reason for this change in the draft is very relevant

to this case and I will take a moment to discuss it. The original draft would have confined the ICJ’s

jurisdiction solely to disputes relating to the inte rpretation or application of the Convention and it

would have barred jurisdiction with respect to any issue which had been referred to and was

pending before, or had been passed upon by an international criminal court. It is important to recall

that, even back then, the creation of such an in ternational criminal jurisdiction was already being

contemplated. After extensive debate in the Sixth Committee of the General Assembly, that

provision was deleted and it was replaced by a new text proposed by the United Kingdom and

Belgium 5. This new text granted the ICJ expande d jurisdiction over any “disputes between the

contracting parties relating to the interpretati on, application or fulfilment of the Convention

including those relating to the responsibility of a State for genocide . . . ” 6 ⎯ those key words were

new. The drafters had decided that State respons ibility for genocide was an essential aspect of any

effort to use law with respect to genocide, even while contemplating vari ous ways to criminalize

genocidal conduct by individual persons.

3. To this end the drafters established a non-crim inal jurisdiction and vested it, of course, in

this Court and made it the legal weapon of choice for States that violate their legal obligation to

other States by engaging in genocide. What States had clearly understood was that it is States, as

well as individuals, who are the actual perpetrators of genocide. In the words of the British

delegate Sir Gerald Fitzmaurice during the deba te on Article IX in the Sixth Committee of the

General Assembly, “the inclusion of the idea of international responsibility of States or

7
Governments was necessary for the establishment of an effective convention on genocide” . The

French representative also observed that, “w hether as perpetrator or as accomplice, the

Government’s responsibility was in all cases implicated” 8.

4. It is notable that the General Assembly, in approving a convention which deliberately

gave the ICJ jurisdiction to ascertain State respons ibility for genocide, did so in full contemplation

5
A/C.6/258.
6
See Yearbook of the United Nations, 1948, p. 955. Emphasis added.
7United Nations, Official Records of the General Assembly , Sixth Committee, Summary Records,
21 September-10 December 1948, p. 444.

8Id., p. 146. - 12 -

of the eventual need for a separate criminal process that would bring to justice individuals

committing genocide. Thus, the Assembly, even while adopting the draft of the Genocide

Convention and opening it for ratification, passed another resolution. That resolution requests the

ILC, the International Law Commission, to study the desirability of having another treaty that

would authorize an “international judicial organ” to bring to trial persons charged with genocide. It

is of some historic interest that this resolution “requests the International Law Commission, in

carrying out this task, to pay attention to the possibility of establishing a Criminal Chamber in the

9
International Court of Justice” .

5. Well, as we know, the slowly maturing fru it of that endeavour is the International

Criminal Court, which has yet to speak in a case before it, and the two ad hoc Criminal Tribunals

for Yugoslavia and Rwanda; that is where responsibility, culpability, for individual acts of

genocide reside. The Yugoslav a nd Rwandan Tribunals ha ve developed a mature jurisprudence,

which I will examine further on Thursday morning. Thus, while the jurisdiction over genocidal

crimes did not devolve on this Court, instead, other temporary and permanent institutions were

created to punish individual perpetrators.

6. What comes through quite clearly in this history is that, from the very inception of the

Genocide Convention, it was always intended that there be two complementary jurisdictions to deal

with two quite clearly distinguishable aspects of the grizzly phenomenon of genocide: the problem

of State responsibility for genocide and the problem of personal culpability. It was understood

then, and that understanding must be honoured toda y, that both aspects of genocide need to be

addressed, but by different institutions. Personal culpability is being addressed by the ICC and the

two Criminal Tribunals, Yugoslavi a and Rwanda. The world expects that State responsibility for

genocide will be addressed by this Court.

7. Yet, despite all this ready-to-hand eviden ce to the contrary, the Respondent has persisted

in arguing, as recently as 1997, that the “Convention does not envisage a state as the perpetrator of

genocide” 10. You had already spoken emphatically on this matter in 1996 11. Well, this case will

9
General Assembly resolution 260 (III) B.
10
Counter-Memorial, p. 303, para. 4.4.1.9.
11Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II). - 13 -

provide an additional opportunity for this Court to rule on that important matter, not only for the

guidance of the Parties here before you, but for th e benefit of future generations that should not

have to fear the immunity of States from responsibility for their genocidal acts.

8. The Convention stipulates that genocide is ⎯ not will be , but is ⎯ prohibited under

12
international law and thus makes clear that this problem already was a principle of customary

international law, even before the Convention came into force 13. What the Convention added to

the pre-existing law, however, is crucial. It created a universal, treaty-based concept of State

responsibility. And, as a consequence, it created a tribunal ⎯ this honourable Court ⎯ before

which that responsibility may be ascertained.

9. It is State responsibility for genocide that this legal proceeding is all about. It is the

determination of State responsibility that Article IX assigns to the ICJ. It is the State responsibility

of the Respondent that we seek to establish during the course of these pleadings.

The Genocide Convention’s purpose

10. Permit me now, Madam President, to turn to the question of the Genocide Convention’s

underlying purpose. In its Advisory Opini on of 1951, this Court sought to underscore the

important point that “the principles underlying the Convention are principles which are recognized

by civilized nations as binding on States, even without any conventional obligation” 14. These

principles are perhaps the most important part of the normative structure that underpins all

international law and that upholds the very concept of State accountability. It cannot be escaped.

11. This Court will undoubtedly wish to make it clear that every State’s responsibilities

under this normative structure are binding, that it takes much more than an opportunistic shrug to

escape these normative bonds which bind nations to the common skein of civilization.

12. In the same Advisory Opinion, the Court further emphasized the Convention’s purpose, a

purpose that is very much at issue in the proceed ings underway here, today. “The Convention was

manifestly adopted for a purely humanitarian and civilizing purpose”, you said:

12
Convention, Art. I.
1See: Adam Roberts and Richard Guelff, eds., Documents on the Laws of War, 1982, p. 157

1Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23. - 14 -

“It is indeed difficult to imagine a convention that might have this dual
character to a greater degree, since its object on the one hand is to safeguard the very
existence of certain human groups and on the other to confirm and endorse the most
15
elementary principles of morality.”

13. These elementary principles of morality are still in contention, alas, and what this Court

does, in these proceedings, will have a determining role in establishing the “elementary principles”

to which the Convention sought to bind States. In this case the Court must surely tell the citizens

of all States that they, the whole population ⎯ and not just rogue leaders and criminals in their

midst ⎯ shares the onerous responsibility of preventing the commission of genocide in their name,

and a fortiori, not themselves to commit genocide. If they fail in that universal obligation, then

they ⎯ their State ⎯ must at least shoulder part of the t ask of rebuilding the shattered lives and

social fabric of the survivors. That, surely, is at the core of the Convention’s “humanitarian and

civilizing purpose”.

What the Genocide Convention prohibits

14. Permit me now to address what the Convention itself prohibits. The purpose of the

Genocide Convention is to prevent or to stop acts co mmitted with intent to destroy in whole or in

16
part, a national, ethnical, racial or religious group, as such .

15. In its Advisory Opinion of 1951, this Court made clear that the intention of the drafters

and ratifiers was to make unlawful acts “involving a denial of the right of existence of entire human

groups, a denial which shocks the conscience of mankind and results in great losses to humanity,

17
and which is contrary to moral law and to the spirit and aims of the United Nations” .

16. In our pleadings we will more than demonstrate that the “right of existence of entire

human groups” was denied in Bosnia.

17. We will show that this did, indeed, r esult “in great losses to humanity”, and we will

demonstrate that this denial is attributable to the Respondent.

15
Id., p. 23.
16
Convention, id,, Art. II.
17I.C.J. Reports 1951, p. 23. - 15 -

18. But, it is you, the judges, as the “conscience of mankind”, who will have to decide

whether these acts do, indeed, “shock the conscience”, and, if so, whether the “moral law and . . .

the spirit and aims of the United Nations” will be enforced.

19. The drafters were quite specific in enum erating the acts that constitute genocide. In

Article II, the Convention defines genocide as:

“(a)Killing members of the group;

(b)Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

(d)Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group”

if “any of the following acts [were] committed with intent to destroy, in whole or in part, a

national, ethnical, racial, or religious group, as such”.

20. The drafters knew that even this very specific enumeration would need to be construed in

the light of as yet unforeseeable circumstances. It was Dr.Bartos, speaking on behalf of

Yugoslavia, who foresaw that, for example, “Genocide could be committed by forcing members of

18
a group to abandon their home.”

21. We are demonstrating that almost every one of the enumerated elements of genocide was

perpetrated against the non-Serb population of Bo snia and Herzegovina and that these acts were

committed with “intent to destroy, in whole or in part” a specific and historic “national, ethnical

and religious group as such”.

22. In compliance with ArticleIX of the Genocide Convention, we are presenting evidence

that, we think, overwhelmingly demonstrates th e “responsibility of a State for genocide”. The

State in question is the Respondent, known to us during these proceedings by various names that

reflect the evolution of its domestic politics, but wh ich remains eternally responsible for these acts.

We will show that the acts perpetrated in Bosnia have left an indelible trail of perpetrators,

instructions, uniforms, and money that leads straight back to Belgrade.

1United Nations, Official Records of the General Assembly, First Part of sixth sessio, 82nd meeting,

23 October 1948, pp. 184-185. - 16 -

23. We are showing that these acts were not merely the wanton cruelties of a random rabble,

but, rather, that were the deliberate policy of the St ate that, at various times, has described itself as

the Socialist Federal Republic of Yugoslavia, the Federal Republic of Yugoslavia and, most

recently, as Serbia and Montenegro. We will insist to this Court, charged as it is with being the

“conscience of mankind”, that this State cannot be allowed to rid itself of the stench of the blood it

has spilled merely by putting on fresh new names.

24. Article IX of the Convention authorizes this action to determine “the responsibility of a

State for genocide or any of the other acts enumerated in Article III”. We will present

overwhelming evidence of the acts of genocide enum erated in the Convention’s Article II, as well

as of those other, ancillary acts enumerated in Article III. Article III includes:

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) Complicity to commit genocide.

25. The Convention’s definition of genocide pr ecisely matches the events in Bosnia and

Herzegovina in the first half of the past decade. Hundreds of thousands of innocent civilians have

been tortured, raped and killed solely on account of belonging to a group, and have had conditions

imposed on them that are calculated to bring about th e physical destruction, in whole or in part, of

the group to which they belong. The Special Rapporteur of the United Nations Commission on

Human Rights, Mr. Tadeusz Mazowiecki, has reporte d that non-Serbs are by far the bulk of those

who have been beaten, robbed, raped, forced to flee, and that this is “undoubtedly related to the

political objectives formulated and pursued by Serbian nationalists . . .” 19. The General Assembly

has registered its horror at the “widespread ra pe and abuse of women and children” and “in

particular its systematic use against the Muslim women and children in Bosnia and Herzegovina by

20
Serbian forces . . .” .

26. But, the Respondent asks, which Serbs? We accept that the jurisdiction afforded this

Court under ArticleIX of the Convention extend s only to issues between States. We shall

19
A/47/666; S/24809, 17 November 1992, Ann., p. 6.
2General Assembly resolution 48/143 of 20 December 1993. - 17 -

demonstrate that the responsibility for these acts of genocide adheres not to some Stateless crowd

that can be traced directly to a State, the responde nt State. To quote again the General Assembly,

21
these “tactics” which were deployed “as a matter of policy” were “the primary responsibility” of

“the commanders of Serb paramilitary forces” which we saw in the film that ended yesterday so

depressingly “and military leaders in the Federal Republic of Yugoslavia (Serbia and

Montenegro) . . .” 22.

With your indulgence, I would like now to turn to the interpretation of the definition of

genocide.

The interpretation of the definition of genocide

27. When this case began, the International Court of Justice was faced with interpreting the

Genocide Convention as a matter of first impression. Now, more than a decade later, the legal text

has had the benefit of extensive analysis by two specialized tribunals established by the Security

Council precisely to serve that purpose in the context of actual genocides committed in the former

Yugoslavia and in Rwanda. The law of genocide, alas, is becoming clearer through usage.

28. The International Criminal Tribunal for the former Yugoslavia, created under

ChapterVII of the United Nations Charter by Security Council resolution808 (1993), is

responsible for the prosecution of persons commit ting genocide in the territory of the former

Yugoslavia since 1991. The Tribunal’s Statute, Ar ticle 4, paragraph 2, defines genocide and its

ancillary crimes by incorporating Articles II and III, which we have just discussed, of the Genocide

Convention, thereby authorizing the judges to apply that Convention in the Tribunal’s proceedings.

They have done so, conspicuously, in accord ance with Articles31 and 32 of the Vienna

Convention on the Law of Treaties, taking into account the objects and purposes of the Genocide

Convention 23 and recognizing that the Convention has codified a norm that is recognized in

24
international law as jus cogens .

21Id.
22
Id., para. 4, emphasis added.
23ICTY, Prosecutor v. Radislav Krstić, case No. IT-98-33-T, Judgment, para. 540 (2 August 2001).

24Id., para. 541. - 18 -

T2he. ad hoc Yugoslav Tribunal has now had a decade in which to engage in these tasks.

It has had several cases in which the crime of ge nocide was among the indictments brought against

a defendant and in these cases the proceedings have culminated in convictions. Its findings are

important evidence both as to law and as to facts. The decisions of the trial chamber in these cases

have clarified the law pertaining to genocide ⎯ particularly, but not exclusively, as it pertains to

“intent” ⎯ and have ascertained facts about what was done, where, when, by whom and to whom.

The Appeals Chamber by its careful scrutiny of th e law applied, and of the facts found, has

strengthened the credibility of this jurisprudence.

30. The ICTY has also carefully taken into account the travaux préparatoires of its mandate,

25
as well as the work of the Preparatory Comm ission for the International Criminal Court . It has

also given full credence to the jurisprudence on genocide generated by the Criminal Tribunal for

Rwanda, its sister institution, which, as we ha ve noted, operates under an essentially identical

mandate 26. The Tribunal has also taken into account the law-related work of other parts of the

United Nations system, such as the report on the law of genocide by the Sub-Commission on the

27
Prevention of Discrimination and Protection of Minorities .

31. We believe that this Court will agree that both the determinations of law and of fact by

the Yugoslav Tribunal cannot but be relevant to these deliberations.

32. It will be apparent to this Court that the facts established to the satisfaction of the

Yugoslav Tribunal have been subjected to a vigorous and prolonged adversary process and have

met the rigorous evidentiary standards benefiting a crim inal trial. In one salient instance, the facts

were established by agreement between a ve ry prominent defendant, Mrs.BiljanaPlavsi ć, a

co-President of the Republika Srpska, between her and the Prosecutor of the Yugoslav Tribunal, an

agreement endorsed by the judges of that Tribuna l, who said, “A written Factual Basis for the

crime described [in that judgment] was filed w ith the Plea Agreement. The factual basis was

agreed by the accused and forms the basis upon which the Trial Chamber . . . passes sentence.” 28

25
PCNICC/2000/INF/3/Add.2, 6 July 2000.
26Id., para. 541.

27Nicodeme Ruhshyankiko, Study on the Question of the Prevention and Punishment of the Crime of Genocide ,
United Nations ECOSOC, Commission on Human Rights, Sub-Commission on Pr evention of Discrimination and
Protection of Minorities, E/CN.4/Sub. 2/416, 4 July 1978.

28ICTY, Prosecutor v. Biljana Plavsik, IT-00-37&40/1-S, 27 February 2003, Sentencing Judgment, para. 9. - 19 -

33. We intended to present these factual dete rminations agreed by co-PresidentPlavsi ć and

the ICTY judges as highly persuasive evidence for this Court, especially in so far as they pertain to

the very matters contested in our present case. They are important not only as to the agreed facts,

but also as to the conclusions of law which the facts were held to support. The Respondent has

invited this Court to disregard all this ev idence as being of “dubious evidential value” 29. We will

ask you, the judges of the World Court to give the appropriate answer, not only because this

baseless contempt for a legitimate legal institution should not be allowed to stand, but, more

importantly, to safeguard the historic record being established by the Yugoslav Tribunal from the

arrogant machinations of the genocide deniers.

34. The facts established by the ICTY that will be cited to assist this Court in order to reach

its own conclusions regarding the commission of ge nocide have various pedigrees. Some are facts

found in cases in which genocide was charged by the ICTY Prosecutor and in which that Tribunal

concluded that genocide had been committed by the indicted individual or individuals. But we will

also be drawing your attention to facts establishe d to the satisfaction of the Yugoslav Tribunal in

cases in which individuals were charged with crimes other than genocide: crimes against humanity

and war crimes. The facts found in those more nume rous cases will be laid before you in order to

establish an even more important point of law, one the criminal tribunals could not establish

because it was not within their mandate: that point is that proven individual acts of murder, torture,

rape and forcible displacement, when seen cumu latively in the context of numerous criminal

prosecution of individuals, begin to emerge as, yes, a pattern. It is that terrible pattern which,

ultimately, transforms many ordinary crimes into over-arching and undeniable genocide. It is the

accumulation of solitary crimes ⎯ the dreadful repetition of evil acts ⎯ that emerges finally,

clearly, as the super crime of genocide. When we piece together these many smaller proven facts,

each gleaned in the rigorous adversary process in which one person at a time is convicted in a

criminal trial, by evidence established beyond a reasonable doubt, of acts which constitute

violations of humanitarian law, or crimes agains t humanity, only then, when the parts are pieced

together, does a larger, more sinister picture begins to emerge, one that makes clear the respondent

29
Rejoinder, 22 February 1999, para. 3.1.4. - 20 -

State’s fateful unleashing of the planned and intend ed destruction of an important part of the

Bosnian people and of their communities.

35. The decisions of the Rwanda Criminal Tribunal ⎯ established in 1994, also under the

30
Security Council’s Chapter VII mandatory authority ⎯ are, admittedly, less relevant to these

proceedings in so far as they constitute findings of fact that arise in a different geographic and

demographic context. Nevertheless, that Tribunal, too, has made important determinations of law

that certainly are relevant to you. It has heard cases in which genocide was among the offences

charged, and thus the Tribunal has had to inte rpret and apply the Genocide Convention. These

interpretations of the law have added to the juri sprudence pertaining to genocide, conspiracy to

commit genocide, incitement and complicity. On Thursday morning, I will endeavour to present

some of the highlights of this jurisprudence, wh ich, despite the caustic disparagement of counsel

for the Respondent, will readily be seen to be relevant to an understandi ng of the import and the

significance of the Genocide Convention to these proceedings.

36. The Respondents are contemptuous of this process by which law is interpreted by judges.

“The enumeration of the prohibited acts is exhaustive”, they say ⎯ and I’m quoting them in their

Counter-Memorial ⎯ and they note, for example, that et hnic cleansing and rape are not mentioned
31
in the Convention . But the Convention does specify “[c]ausing serious bodily or mental harm”

and “imposing measures intended to prevent birth s”. Can a pattern of rapes carried out against

members of one ethnic and religious group by members of another be seen to qualify? Can the

terrorization of large numbers of Bosnian Muslims so as to force them to flee their communities in

areas intended to form part of a Greater Serbia be construed as evidence of an intent to destroy

those communities? The Convention, like every ot her law, could not have anticipated every form

which genocide might take in future.

37. However, the Convention does contemplate how interpretation of its turgid text would

occur: by the bringing of legal action before qualified judges ⎯ that is the civilized way, that is the

way intended by the Convention. The Conventio n contemplates actions precisely like this one,

before, precisely, this Court. And it contemplates criminal proceedings before an international

30
Security Council resolution 955, 8 November 1994.
3Counter-Memorial, p. 299, para. 4.3.1.1. - 21 -

criminal tribunal. Since the Rwanda and Yugoslav Tribunals have been in operation for more than

a decade, it is completely appropriate to examine that jurisprudence to see how the terms of the

Convention have been illuminated in the various circumstances of its application.

38. The Respondents do not like this.

39. Should we dignify with a response the unsubstantiated insult of the Respondent’s

Rejoinder memorandum of 22 February 1999 that, “[t]here are serious reasons for doubt about the

correctness of the legal findings and views” of the Yugoslav Tribunal? Should we respond to the

allegation of “[e]xtreme insufficiency of lega l regulations on the basis of which the Tribunal

functions”? Need we rebut the charge that the Tribunal’s procedure “remains completely

32
unregulated”? The judges of the Tribunal for the former Yugoslavia are accused by the

Respondent of an “unbalanced attitude... towards the three parties to the conflict in Bosnia and

Herzegovina”. And that allegation is supported by the claim that “a large disproportion in the

number of accused Serbs has been charged in comparison with that of accused Muslims” 33. Well,

there were more Germans than French in the dock at Nuremberg. Should we have to address such

scurrilous pleadings? We think it beneath judicial dignity.

40. In fact, since the exchange of written pl eadings in this case, more Bosnian Muslims and

Bosnian Croats have been indicted, but they have been charged with lesser offences than those

levelled at Serb leaders who have been charged w ith genocide. This disparity in the number and

gravity of offences charged is directly attributable to the facts in Bosnia, and provide evidence of

the infinitely greater volume and degree of culpability on the one side as compared to the other.

41. Rather than respond to every desperate attempt to discredit the Yugoslav Tribunal and its

jurisprudence, we will proceed on the basis that the Court before which we now stand is fully

aware of the legitimacy of both the Yugoslav and Rwandan Tribunals and will proceed to examine

the extent to which those judges’ rulings have enriched the jurisprudence pertaining both to

genocide in general and, in particular, to the interp retation, in practice, of the text of the Genocide

Convention. We are confident that this Court will reject the Respondent’s baseless allegations

against the legitimacy of the criminal courts’ judiciaries.

32
Respondent’s Rejoinder, 22 February 1999, p. 480, paras. 3.1.7 and 3.1.8.
3Id., p. 485, para. 3.1.17. - 22 -

42. Nevertheless, it is instructive that the R espondent continues to deny the findings of the

Yugoslav Tribunal and to attack its legitimacy, rather than face up to the consequences of its

findings. This, it seems to me, makes it all the more important that this good Court exercise its

ultimate power and responsibility in such a fashion that denial of what happened cannot any longer

be the refuge of the perpetrators.

Thank you, Madam President, Members of the Court.

May I now ask, Madam President, that you call upon my colleague Magda Karagiannakis.

The PRESIDENT: Thank you, Professor Franck. I now call upon Ms Karagiannakis.

MsKARAGIANNAKIS: Madam President, Members of the Court, today before the break

and after the break, I shall be addressing you on the issue of camps and detention facilities.

C AMPS AND DETENTION FACILITIES

1. In the summer of 1992 the world was shocked to see images beamed into their living

rooms of starved and mistreated people behind barbed wire fences in the middle of Europe. These

pictures were filmed in the most notorious camps in Bosnia and Herzegovina where Muslims were

systematically detained in inhumane conditions, and beaten, tortured, raped, killed, simply because

people of their ethnicity had to be cleansed from the territory claimed by the Serbs.

2. In this part of the pleadings we will not repeat our written pleadings on the issue which are

set out in sections 5 and 7 in our Reply. Rath er we will seek to demonstrate from additional

sources that have come to light since then which demonstrate, with the use of well documented

examples, where the camps fitted into the blueprint of ethnic purification and what happened.

3. Given the notoriety of the camps and th e numerous United Nations reports addressing

them, which we have set out in our Reply, it is no surprise that the Yugoslav Tribunal investigated

them. These investigations resulted in a number of indictments and final judgments regarding local

camp guards and commanders and local politicians and military personnel, particularly in the

Prijedor and Foca municipalities. These indictments and associated judgments were limited in

scope both territorially and temporally. - 23 -

4. A much broader selection of detention facilities, both in number and location, were

included in the charges of the highest level politicians and military personnel of the former

Republic of Yugoslavia (FRY) and the Republic of Srpska (RS). For example, one judge who was

a former detainee in Manjaca camp and representative of an association of former camp inmates

testified, in relation to the Indictment against President Plavsi ć, that in the 37 municipalities listed,

there was a total of 408 detention facilities where Muslims and other non-Serbs were detained by

force and exposed to serious physical and mental abuse 34. The most important of the high-level

accused who are charged with genocide, such as Karadzi ć and Mladi ć, remain fugitives from

justice and others are currently in a defence case of their trials such as Milosević and Krajisnik.

5. Therefore, it is this Court that will be th e first international judicial body which will have

the opportunity to decide upon the “big picture” of the camps system in Bosnia. The ICTY sources

could assist this Court in this task, because a numb er of its chambers have specifically examined

some examples of the Serb-run camps.

A. Camp numbers and locations

6. According to the Allian ce of Detainees of Bosnia and Herzegovina, 520 camps and

detention facilities existed under Serb control, whic h were active in 50 different municipalities in

Bosnia from 1992 until 1995. Estimates of how ma ny people were detained there range from a

provisional minimum estimate by the Alliance of Detainees of 100,000 people and up to

35
200,000 people reported by other sources, including non-governmental organizations .

7. In the following diagram you will be able to see where these camps were and how many

were situated in each municipality. The municipa lities are coloured in blue and the number inside

of the municipality border is the number of camps and detention facilities.

8. The Court has been provided with another map which sets out the names of each of the

municipalities, so that it may better understand the diagram. The picture is obvious.

34
ICTY, Prosecutor v. Plavsić, Sentencing Judgment, case No. IT-00-39 and 40/1, 27 February 2003, para. 45.
3Exhibit No. P404.7a; Testimony of Malesević, Monday 10 March 2003, in ICTY, Prosecutor v. Milosević, case
No. IT-02-54-T. - 24 -

B. Camps: an integral part of the ethnic cleansing blueprint

9. These camps were, in fact, a part of a high-leve l plan of the Serb leadership to rid the land

they claimed as theirs of Muslims and Croats.

10. As we have explained earlier, the Bosnian Serb leadership sought implement the Greater

Serbia aim in Bosnia. They did so by seekin g to create a contiguous block of ethnically pure

territory, pursuant to Strategic Objectives of the Serbian People announced by Radovan Karadzić in

the Assembly of the Serbian People on 12 May 1992.

11. According to David Harland, a United Na tions Civil Affairs and Political Officer based

in Sarajevo from 1993, members of the Bosnian Serb leadership expressed their resolve to achieve

the objective at all costs, and that Radovan Karadzi ć, in particular, in his pre-conflict statements,

forecast the extermination of the Bosnian Muslim population in the event of war.

Radovan Karadzić stated, “[w]e will use this Serbia n-supported war machine to make life

36
impossible for civilians”, to terrorize the civilians in order to reach a particular goal .

12. This aim, and the place of detention facilities in achieving it, was confirmed by

Mrs. Plavsić in the Agreed Facts accompanying her plea of guilty. There it is stated that the:

“Bosnian Serb military, police and civilian forces, collaborating with the JNA,
the MUP of Serbia and paramilitary units committed persecutions upon non-Serb
population through acts including ‘unlawful de tention and killing’ and ‘cruel and

inhumane treatment and inhumane conditions in detention facilities’.”

Mrs. Plavsić acknowledges these acts “were committed in furtherance of the objective of ethnic

separation by force and are supported by th e evidence and are acknowledged... as having

37
occurred” . These general facts are consistent with the findings of relevant United Nations reports

and the findings of the Tribunal.

13. These facts are further fortified by recent findings of the trial chamber hearing the case of

the Momćilo Krajisnik. He was a member of the co llective Presidency of the Republika Srpska

with Mrs. Plavsi ć, and the President of its Assembly. This chamber was dealing with genocide

charges relating to, among other things, approxi mately 400 detention facilities in 37Bosnian

36
Testimony of Harland, Thursday 18 Sept ember 2003, transcript p. 27004 and ICTY, Prosecutor v. Milosevic,
Decision on Motion for Judgment of Acquittal, case No. IT-02- 54-T, 16 June 2004, para. 240.
3ICTY, Prosecutor v. Plavsić, Factual Basis for Plea of Guilt, case No. IT-00-39 and 40, 30 September 2002,
paras. 10 and 19. - 25 -

municipalities. In its Decision on the Defence Motion for Acquittal the trial chamber found that

there was evidence that:

“civilians were systematically detained for periods ranging from a few days to several
months in what were frequently makeshif t detention facilities. Detainees were, as a
rule, kept in crowded, unsanitary conditions, with very little food or water. Many
were killed, or subjected to severe physical or psychological abuse, including beatings,

torture, or rape. Some detainees were forced to perform labour at front lines, or forced
to act as human shields in combat situations . There is evidence that several persons
used in those ways were killed.”

That trial chamber also found that there was evidence that:

“the Bosnian Serb leadership received extensive information from a variety of sources

about the existence of detention facilities fo r Bosnian Muslims and Bosnian Croats in
the indictment municipalities and the treatment meted out in those facilities. For
example, in July 1992 Biljana Plavsi ć stated that she was aware of 3,000 non-Serbs
38
who were being detained in Omarska camp in Prijedor.”

14. These findings are not yet part of a final judgment. However, they are based on

voluminous and extremely detailed evidence which h as been tested by the defence and scrutinized

by the judges, in a trial that began more than two years ago. The same is also true for another

finding of this chamber which has a particular re levance to this case where it was held that there

was evidence that:

“these Serb leaders and their political and military subordi nates intended to
accomplish the task of creating a Serb-dominated territory through any means, and in
particular through killings, unlawful detenti on, physical or psychological abuse, and

deportation of Muslim and Croat civilians, and destruction of their cultural
monuments. The evidence is sufficient to infer an intent at the top level to destroy not
only the part of the Bosnian Muslim group living in the territory slated to become

Republika S39ska, but also the part of the Bosnian Croat group living in that
territory.”

15. Bosnia has demonstrated facts related to camps in its Reply through reference to United

Nations reports, the reports of United Nations Member States, the ICRC and the reports of

journalists who were witnesses to their terrible existence. These sources are overwhelming. They

have not been undermined by the passage of time but have only been bolstered by more specific

factual findings of the ICTY to which we will turn next.

38
ICTY, Prosecutor v. Momćilo Krajisnik, Decision on the Defence Motion for Acquittal under Rule 98 bis, case
No. IT-00-39-T for Friday, 19 August 2005, transcript pp. 17128-17130.
3ICTY, Prosecutor v. Momćilo Krajisnik, Decision on the Defence Motion for Acquittal under Rule 98 bis, case
No. IT-00-39-T for Friday, 19 August 2005, transcript pp. 17130-17131. - 26 -

C. Examples in eastern Bosnia

16. The following examples of detention facilities come from eastern Bosnian municipalities

along or close to the Drina River. In this rega rd it is important to recall the overall strategic

objective of the Serbian people, which was the separation of the ethnicities and the strategic

objective numbered three which required the estab lishment a corridor in the Drina River Valley

thereby eliminating the Drina as a border separating Serbian states. The following examples

demonstrate the eradication of the non-Serb presen ce from these municipalities and the role of the

detention facilities in this process.

(iVlasenica municipality

17. One of the major camps in eastern Bosnia was Susica Camp in Vlasenica municipality.

The appalling things that happened there were addr essed in Section5 of Bosnia’s Reply. Since

then the horrors of that place have been confirmed by its former camp Commander,

Dragan Nikolić. He confessed his guilt and admitted all factual details contained in his indictment

in open court on 4September 2003 and a sentenci ng judgment ensued setting out the pertinent

facts40. The events relating to the camp demonstrate the pattern of arrest, detention and deportation

that was being repeated all over Serb-claimed territory as each municipality was taken over by Serb

forces.

18. On or about 21April 1992 the town of Vlasenica was taken over by Serb forces

consisting of the JNA, paramilitary forces and ar med locals. Many Muslims and other non-Serbs

fled from the Vlasenica area, and from May 1992 an d continuing until September 1992, those who

had remained were either deported or arrested.

19. Susica Camp was established in late May or early June 1992 and operated until about

30 September 1992. During this time as many as 8,000 Muslim civilians and other non-Serbs from

Vlasenica and the surrounding villages were detain ed there. Men, women and children were

detained in Susica camp, some being detained as entire families. They were subjected to inhumane

living conditions. They were deprived of adequa te food, water, medical care, sleeping and toilet

facilities. An atmosphere of terror reigned in the camp.

40
ICTY, Prosecutor v. Dragan Nikolić, Sentencing Judgment, case No. IT-94-2-S, 18 December 2003. - 27 -

20. The guards brutally beat the detainees on a daily basis. Many were beaten to death. Axe

handles, metal knuckles, iron bars, rifle butts and rubb er tubing with lead inside, were used. After

one detainee was subjected to numerous terrible beatings, the camp commander approached him

and said words to the effect of: “I can’t believe how an animal like this can’t die; he must have

two hearts.” He then proceeded to beat him again and stomped on his chest. The camp

commander personally participated in nine vicious murders of non-Serb detainees. In one example,

the camp commander repeatedly beat a 60 year ol d man over a seven-day period, kicking him and

using a metal pipe. On each occasion he would be beaten into uncon sciousness until he finally

succumbed to death. Women were raped and sexually assaulted by camp guards or other men who

were allowed to enter and take them out. When they came back they were traumatized and

distraught.

21. The detainees were forcibly transferred from the camp and Vlasenica municipality. At

the end of June 1992, large numbers of the male detainees were transferred from Susica camp to

the larger Batkovic detention camp located near Bijeljina in eastern Bosnia, whereas most of the

women and children detainees were transferred to Bosnian Muslim-controlled territory. By

September 1992, virtually no Muslims or other non-Serbs remained in Vlasenica.

(ii)Fo ča municipality

22. The largest detention facility in the municipality of Fo ča was the KP Dom facility.

Again this camp was addressed in Section5 of Bosnia’s Reply. Since that time, the camp

commander of that facility, Milorad Krnojelać, was tried and convicted by the ICTY in relation to

41
what occurred there . This was only one of the places where non-Serbs were imprisoned, tortured,

raped and mistreated. Many of these other camps have been the subject of other judgments relating

42
to local military personnel participating in rape and detention of Muslim women and girls . These

4ICTY, Prosecutor v. Krnojelać, Trial Judgment, case No. IT-97-25-T, 15 March 2002; ICTProsecutor v.

Krnojelać, Judgment, case No. IT-97-25-A, 17 September 2003.
4Also see ICTY, Prosecutor v. Kunarać et al., Judgment, case No. IT-96-23&23/1, 22 February 2001; ICTY,
Prosecutor v. Kunarać et al., Judgment, case No. IT-96-23, IT-96-23/1-A, 12 June 2002 . - 28 -

judgments have been confirmed on appeal and are the subject of a body of adjudicated facts from

43
this municipality which tells the awful story of what happened there .

23. The main Serb attack on Foca town focused on the Muslim areas of the town and started

on 8April 1992. The Serb forces included sold iers from Montenegro and Yugoslavia, and in

particular a paramilitary formation known as the Wh ite Eagles as well as local Serb forces. After

the takeover of the town, Muslims were referred to as “balija”, they couldn’t work, they couldn’t

meet, their telephone lines were cut, their homes we re searched, their businesses were looted or

burned and their equipment was seized. Their nei ghbourhoods were systematically destroyed. As

Muslim houses burned, fire engines protected Serb houses. The Muslim civilian population,

including women and children, was brutalized and killed or detained. Their mosques were blown

up or burned.

24. But following the successful takeover of Fo ca town, the attack on the non-Serb civilian

population continued and the Serb forces continued to take over or destroy Muslim villages in the

municipality. The campaign was also waged against the Muslim civilian populations of

neighbouring municipalities of Gacko and Kalinovik. Once the towns and villages were securely

in their hands the Serb forces applied the same pattern: Mus lim houses and apartments were

systematically ransacked or burnt down, Mus lim villagers were rounded up or captured, and

sometimes beaten or killed in the process. Fo r example, on one occasion Serb troops followed

fleeing Muslims in the direction of Gorazde and captured civilians taking shelter at the JNA fuel

depot warehouse at Pilipovići. Muslim men were separated from the women and children. The

Serb forces selected several men whose names were on a list and arbitrarily selected several others.

These nine men were separated from the others and shot. One escaped, one survived.

25. Almost all the remaining Muslim men and women from Foca, Gacko and Kalinovik

municipalities were arrested, rounded up, separated fro m each other, and imprisoned or detained at

several detention centres like Buk Bijela, Ka linovik High School, Partizan and Foca High School

as well as the KP Dom in Foca, in accordance with the recurring pattern. Some of them were

killed, raped or severely beaten. The sole reason for this treatment of civilians was their Muslim

4ICTY, Prosecutor v. Krajisnik, Decision on Third and Fourth Prosecution Motions for Judicial Notice of

Adjudicated Facts, IT- 00-39-PT, 24 March 2005, Annex, pp. 9-22. - 29 -

ethnicity. The Muslim detainees held at the Kalinovik High School, Foca High School and

Partizan Sports Hall were guarded and kept in an atmosphere of intimidation without hygienic

conditions and insufficient food.

26. Sexual abuses and mass rape in these a nd other detention facilities in Foca will be

addressed in more detail during the presentation of Professor Stern on Thursday.

27. The KP Dom had previously been a pris on facility in Bosnia. From 17April1992

soldiers from the Užice Corps in Serbia, a part of the JNA, were running KP Dom, this was

occurring after the time that Bosnia had been recognized by the international community as an

independent State. The control of this prison was transferred to local Serbs during the course of the

following weeks 4. The warden of the prison ⎯ the subsequent warden of the prison ⎯ was

responsible to the Bosnian Serb Ministry of Justi ce and, to a certain extent, to the local military

command.

28. Prisoners at KP Dom, which had previously served as a prison in Bosnia, numbered

between 350 and 500 people, with peaks at about 7 50 detainees. The detention facility operated

from April1992 until October1994. Muslim men were interned just because of their ethnicity,

sometimes for periods of up to two-and-a-half y ears. The non-Serb detainees were forced to

endure brutal and inadequate living conditions whil e being detained at the KP Dom; they were

tortured and beaten during interrogation and many of the men who were detained there were killed.

29. In exhumations conducted in the Foča area, 375 bodies were identified by the State

Commission for the Tracing of Missing Persons. All but one of these was Muslim. The remaining

person was a Montenegrin who married to a Muslim.

30. Most of the surviving non-Serb popul ation was eventually forced to leave Foča. All

traces of Muslim presence in Fo ča, which had a Muslim majority in 1991, and its culture were

wiped out of Fo ča. In January1994, the Serb authorities crowned their complete victory by

renaming Foča, “Srbinje”, literally the town of the Serbs.

I will now move to examples in Bosnian Krajina.

4ICTY, Prosecutor v. Krajisnik, Decision on Third and Fourth Prosecution Motions for Judicial Notice of

Adjudicated Facts, IT- 00-39-PT, 24 March 2005, Ann. para. 467. - 30 -

D. Examples in Bosnian Krajina

(i) Bosnian Krajina in general

31. The region referred to as Bosnian Krajina is in the north-western part of Bosnia and is

just over the border from the territory of the self-p roclaimed Republika Srpska Krajina in Croatia.

Apart from the first strategic goal of the Serbian People, that is ethnic separation, the other strategic

goal which is pertinent to this area is the second goal, which required the setting up of a corridor

between Semberija, an area in the north-eastern corner of Bosnia, and Krajina.

32. The Brdanin judgment made the following findings in relation to the camps in this area:

“In the spring of 1992, camps and othe r detention facilities were established
throughout the territory of the Bosnian Krajina in army barracks and compounds,
factories, schools, sport facilities, police stations and other public buildings. These

camps and detention facilities were set up an d controlled by the Bosnian Serb army,
civilian authorities or the Bosnian Serb poli ce. Non-Serb civilians were arrested en
masse and detained in these camps and dete ntion facilities... While prominent
members of the SDA and the HDZ were among the first to be arrested, the

overwhelming majority were normal citizens arrested solely because of their
ethnicity ... Inmates were interrogated, beaten, subjected to inhuman and degrading
conditions of life and tortured. Women we re raped and killings occurred on a regular
45
basis.

33. Before proceeding to discuss examples of the camps in Bosnian Krajina it is important to

provide a context to what occurred in this region. The trial chamber in the Brdanin case found that

it was satisfied beyond reasonable doubt that “there was a coherent, consistent strategy of ethnic

cleansing” against Bosnian Muslims in this region which was implemented by several means 46. It

went on to describe these means.

34. Military operations were carried out against towns and villages that were not military

targets. Attacks were carried out in Prijedor, Sanski Most, Bosanski Novi, Klju č, Teslić, and

Kotor Varoš among others. Such military operations were undertaken with the specific purpose of

driving the Bosnian Muslim and Bosnian Croat residents away. The displacement of persons was

not simply a consequence of military action, but the aim of it. Following these attacks on towns

and villages, Bosnian Muslim and Bosnian Croa t men, women and children were rounded up and

often separated from each other. Most of them were confined to camps and detention centres for

45
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 115.
4ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, paras. 548-551. - 31 -

varying lengths of time. Most of these people were then deported or forcibly transferred, some of

them transferred immediately. The expulsion of Bosnian Muslims and Bosnian Croats was often

accompanied by a widespread destru ction of their homes and institutions dedicated to religion.

These expulsions and forcible removals were system atic throughout the region. Tens of thousands

of Bosnian Muslims and Bosnian Croats were permanently displaced. This mass forcible

displacement was intended to ensure the ethnic cleansing of the region.

(ii) Sanski Most municipality

47
35. Relevant findings have also been made in respect of Sanski Most municipality . The

SDS took over the municipality on 19April1992 through an armed attack on the municipality

building conducted by the JNA’s 6th Krajina Corps, territorial defence forces and members of a

Bosnian Serb paramilitary group known as the Red Berets. At the end of May 1992, after calls for

disarmament had been made, attacks were la unched on the Bosnian Muslim neighbourhoods and

villages. These attacks were planned well in adva nce by the army and the municipal crisis staff,

and they were carried out by the army acting jointly with a local paramilitary group. They would

begin with heavy shelling from outside the target ed neighbourhoods or villages. This shelling

caused severe damage and people were killed. Th e shelling forced the inhabitants of these villages

to flee. After the troops had entered the villages, a number of people who had not fled, were killed.

Houses were looted and fleeing persons’ belongings were taken from them.

36. There are a number of examples of particularly brutal killings of non-Serb men, women

and children in this municipality. After the attack on the Muslim hamlet of Begići by Bosnian Serb

soldiers, the men were separated from the women and between 20 and 30 of them were taken to

Vrhpolje bridge over the Sanna River. They were ordered to jump off one by one. As they landed

in the water the soldiers shot them. Twenty-eight people were killed.

37. On 31 May 1992, soldiers in JNA unifor ms, who referred to themselves as the ‘Serbian

Army’, came to the Muslim village of Hrustovo. Muslim women, children and one man gathered

in a garage adjacent to Ibrahim Merdanovi ć’s house. At one point, Bosnian Serb soldiers came to

the garage and started shouting. Shots were fired, and the people inside the garage panicked. The

4ICTY, Prosecutor v. Brdanin, Judgment , case No. IT-99-36-T, 1 September 2004 paras.101; 632-633

(takeover) 416-422; 451-452; 454 (killings); 868-886 (camps). - 32 -

only man inside walked out and was shot dead immedi ately. Then, the soldiers started to fire into

the garage randomly. Some people left the garage and tried to escape, but the soldiers continued to

shoot at them as they fled. At least 15 members of the Merdanović family were killed that day.

38. The killings continued. On 22June 1992, Bosnian Serb soldiers ordered around

20Muslim men to dig a hole in a stream flowing below the area near the Partisan Cemetery in

Sanski Most. All but three of them did not finish with the work because their throats were slit by

one of the soldiers. After Bosnian Serb soldiers attacked the Muslim hamlet of Budim on

1August1992 they executed 14members of the Alibegovi ć family, all of whom were unarmed

civilians. Seven Bosnian Croats were execu ted by paramilitaries in the Glamonica forest on

2 November 1992.

39. Beginning 27 May 1992, Muslim and Croa t civilians were detained both by regular and

Bosnian Serb military police and confined in detention facilities in Sanski Most until about the end

of August 1992. They were detained in places including the SUP building, Betonirka, Hasan Kikić

gymnasium and the Magarice military facility.

40. As of early June 1992, Bosnian Muslim civilians detained in facilities in Sanski Most and

the surrounding area were brought to the Manja ča camp in Banja Luka, on a large scale. Civilian

and military police from both Banja Luka and Sanski Most were in charge of putting together and

escorting the convoys. Two hundred and fourteen Bosnian Muslim men were transported on two

dates, 6June and 7July 1992. Upon arrival of the first group at Manja ča camp, at least six

prisoners were beaten and subse quently killed by policemen from Sanski Most. Twenty prisoners

died during the second transportation because of th e overcrowding, heat and lack of water during

the nine-hour transportation.

Madam President, I see that it is 11.22. Perhaps it would be a good moment to take a break?

The PRESIDENT: Yes, thank you. Before we do so, could I come back to the plan, the

graphic you presented us of the camps and detention facilities at the beginning of your presentation.

What is the provenance of this? Is it somethi ng that Bosnia and Herze govina had made specially

for the judges’ folders and upon what data is it based? - 33 -

Ms KARAGIANNAKIS: Yes, Madam President, it is based on the testimony of

Mrs. Milošević from the Alliance of Detainees of Bosnia a nd Herzegovina and it is also based on

her analysis as produced in Exhibit No. P4-04-7A in that trial. It was not produced upon the

request of the Bosnian Government but it is an independent document and exhibit in the Miloševi ć

trial.

The PRESIDENT: It is obviously helpful to understand from the graphics these things and

the same question will arise about the one that I s uppose we will come to later in the morning on

the destruction of cultural property.

The Court will rise.

The Court adjourned from 11.25 to 11.35 a.m.

The PRESIDENT: Please be seated. You have the floor.

Ms KARAGIANNAKIS: I now move to Prijedor municipality.

(iii) Prijedor municipality

41. The notorious camps in Prijedor were th e focus of numerous United Nations and civilian

society reports which have been set out in our Re ply. Since these reports were issued, the facts

contained in them have been c onfirmed and made even more vivid, by a series of judgments and

48
guilty pleas at the ICTY specifically focusing on this municipality . The camps in this

municipality are also the subject of adjudicated facts from the ICTY chambers that put the

49
atrocities that happened there beyond any doubt .

42. On 30 April 1992, life changed overnight, within 24 hours, in the Prijedor area. On that

day, Serb forces conducted a bloodless takeover of the town of Prijedor and declared their intention

48
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004; ICTY, Prosecutor v. Mrda,
Sentencing Judgment, case No. IT- 02-59-S, 31 March 2004; ICTY, Prosecutor v. Stakic, Judgment, case
No. IT-97-24-T, 31 July 2003; ICTY, Prosecutor v. Kvocka et al., Judgment, case No. IT-98-30-PT, 2 November 2001;
ICTY, Prosecutor v. Kvocka et al. , Judgment, case No. IT-98-30/1-A, 28 February 2005; ICTY, Prosecutor v.
Predrag Banović, Sentencing Judgment, case No. IT- 02-65/1-S, 28 October 2003; ICTY, Prosecutor v. Sikirica et al.,
Sentencing Judgment, case No. IT-9 5-8-S, 13 November 2001; ICTY, Prosecutor v. Tadić, Judgment, case
No. IT-94-1-A, 15 July 1999; ICTY, Prosecutor v. Tadić, Opinion and Judgment, case No. IT-94-1-T, 7 May 1997 and
ICTY, Prosecutor v. Milosević, Decision on motion for Judgment of Acquittal, case No. IT-02-54-T, 16 June 2004.

49ICTY, Prosecutor v. Krajisnik, Decision on Third and Fourth Prosecution Motions for Judicial Notice of
Adjudicated Facts, case No. IT-00-39-PT, 24 March 2005, Ann., pp. 22-38. - 34 -

to rename the territory the “Serb municipality of Prijedor”. After the takeover, non-Serbs were

dismissed from their jobs, their children were no longer allowed to attend school and their

movements were restricted. Propaganda against Muslims and Croats was broadcast on the radio

50
and both mosques and Catholic churches were targeted for destruction .

43. The forces which executed this takeover were the JNA and local police. This was one of

the JNA military operations which had comme nced before 19 May 1992 but did not cease

immediately on that day. The same elements of the VJ continued to be directly involved in this

operation after that date. Indeed, the attack on the Muslim area of Kozarac was continued by the

same JNA unit restyled as a VRS 1st Krajina unit with the same officers in command 51.

44. Between May and July 1992, the predom inantly Muslim and Croat inhabited areas and

villages were attacked by the Bosnian Serb army acting jointly with the police and the paramilitary

groups. Attacks were conducted by intensive sh elling with heavy armed weaponry. Houses in

Muslim villages and neighbourhoods were targeted and shelled indiscriminately, resulting in

extensive destruction and civilian casualties. Many of the survivors fled the villages and sought

shelter in the surrounding forests. After the she lling, armed soldiers ente red the villages, looted

and torched houses, and expelled or killed some of the villagers who remained behind. Women

52
were raped. Countless Muslim civilians were killed during these attacks .

45. At the end of May 1992, after the takeover of Prijedor and the outlying areas, women and

children were separated from the men before th ey were all loaded onto buses and taken to

Trnopolje, Omarska or Keraterm where the Serb forces confined thousands of these civilians.

Generally, the men were taken to Keraterm and Omarska dete ntion camps and the women to

Trnopolje. Male and female pris oners were subjected to severe mistreatment, which included

beatings, sexual assaults, torture, and summary executions. Prisoners were guarded by uniformed

and armed soldiers, police forces, local Serb milita ry or territorial defence (TO) units, who would

racially abuse the prisoners calling them “Balijas ”, a derogatory term for Muslim people, or

50
ICTY, Prosecutor v. Kvocka et al., Judgment, case No. IT-98-30-PT, 2 November 2001, para. 1.
51
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 151, footnote 391.
5ICTY, Prosecutor v. Brdanin, Judgment , case No. IT-99-36-T, 1 September 2004, paras.104, 151,
footnotes 391 and 401-415. - 35 -

“Ustasha”. Members of paramilitary organizations and local Serbs were routinely allowed to enter

the camps to abuse, beat, and kill prisoners 53.

(a) Omarska

46. During the summer of 1992, Omarska contained about 3,000 mainly Bosnian Muslim,

detainees. This is one of the most notorious camps in Bosnia and Herzegovina. One survivor

described the confines of the camp as follows:

“The Omarska camp wasn’t surrounded by barbed wire, but it was as secure as

a stone fortress. It was encircled by three rings of guards, with 30 guards in each ring.
One ring was in the camp, the second some 50 yards beyond, and the third about one
100yards from the first ring. The first and second group kept an eye on the camp

itself to make sure no prisoners ran away; the third protected the camp from any
possible invaders.” 54

47. Inmates in Omarska were divided into three categories:

“Category one comprised intellectuals and political leaders from the Bosnian

Muslim and Bosnian Croat communities, w ho were earmarked for elimination.
Persons who associated themselves with tho se from the first category would fall into
the second category, and the third category encompassed detainees that were in the

view of the Bosnian Serb authorities, the l east ‘guilty’, and eventually were to be
released. However, in practice, people from all three categories were kept detained in
the camp.” 55

48. Prominent members of the Muslim and Croat communities were specifically targeted and

killed there. At the end of July 1992, the killi ng of inmates with a special professional background

started. One night, lawyers were targeted, following which policemen and physicians were marked

for killing.

49. The fate of one of the physicians in Omarksa was described as follows:

“sari.kovi ć, a physician, had previously worked for the United Nations
High Commissioner for Refugees (UNHCR) and was described as a charismatic and
deeply humane person. In Omarska, he helped other detainees wherever he could, and

was regarded as a ‘moral and spiritual authority’. One night, a camp guard appeared
and said: ‘Dr.Eso Sadikovi ć, come out and take your stuff with you.’ The other
detainees knew that this meant he would not return. Everybody stood up and bid him
56
farewell.”

53
ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 183.
54
“The Tenth Circle of Hell: A Memoir of Life in the Death Camps of Bosnia” by Rezak Hukanovć, (1996),
p. 85.
55
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 443.
5ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, para. 445. - 36 -

He was taken out and killed.

50. Between 30 and 35 women were also detained in Omarska. They were frequently called

out by the camp Commander and the camp guards a nd raped. They were later transferred to

Trnopolje camp. Minors and mentally impaired non-Serb people were also imprisoned in

Omarska.

51. Prisoners were held in large numbers in very confined spaces, with little room either to

sit or to lie down to sleep. Sometimes 200 persons were held in a room of 40 sq m. Prisoners were

even crowded into lavatories where they were packed one on top of the other and often they had to

lie amidst excrement. Hunger was acute with some prisoners loosing 20 to 30kg in body weight

during their time there and others considerably more 57.

52. The detainees were severely beaten. They were tortured. They were killed. Many of the

killings at Omarska camp were committed at the building known as the “White House”. Incoming

detainees recount that dead bodies were lying around there on various occasions, and the inside of

the “White House” was covered with blood. Edin Elkaz, who was taken there, remembered that

“you could still see bits of flesh or brains [there] the next day” 58. This same Omarska survivor

recounted how he was beaten into unconsciousness:

“The barrel [of the gun] was in my mouth and I was receiving double blows

with a rubber baton and with a metal spring... My head was bursting, blood was
bursting. It was awful. My teeth were breaking. Everything was breaking. I cannot
remember exactly which blow was the last one. The last one was really terrible . . . I

do not know whether the barrel was out of my mouth at the moment or before that, but
I received a terrible blow there and everything burst.” 59

53. Killings also occurred at the “Red House”. Detainees were deprived of their lives in

various ways. Many of them were so severely beat en that they died from their injuries. Others

were riddled by bullets, jumped on by camp guards, or strangled. Many were called out never to be

seen again.

57
ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, paras. 191-193.
58
Raw memory, Prijedor: an “Ethnic Cleansing Laboratory”, by Isabelle Wesselingh and Arnaud Vaulerin, p. 53.
5Ibid., p. 52. - 37 -

(b) Keraterm

54. Another notorious camp in Prijedor was Keraterm. Keraterm began operating on

25May1992 and held up to 1,500 prisoners crow ded into a number of large rooms or halls.

Conditions in Keraterm were atrocious. Prisoners were crowded into its unlit, windowless,

unventilated rooms with as many as 570 in one room. Prisoners were kept locked in these rooms

for days on end. The pattern recurred; the f ood, water, sanitation and medical treatment were

woefully inadequate or non-existent.

55. Detainees were beaten, tortured and killed. During July 1992, the approximately

200Bosnian Muslim cleansed men from the Brdo area were crammed into room3 and were

executed. Witnesses heard the sound of breaking meta l and shattered glass, and human cries. The

next morning, dead bodies were piled outside room 3, and the entire area was covered in blood. A

truck arrived to carry away the bodies. When the truck left, blood could be seen dripping from it.

A fire engine was used to clean room 3 and the surrounding area from the traces of the massacre.

(c) Trnopolje

56. The third most notorious camp in Prije dor was Trnopolje. Trnopolje held thousands of

prisoners, most of whom were older men and wome n and children. They were detained there by

armed guards. No food was supplied by the camp authorities. Because the Trnopolje camp housed

the largest number of women and girls, there were more rapes at this camp than at any other, with

girls between the ages of 16 and 19 at greatest risk.

57. Detainees were also taken from this ca mp and massacred. On 21August 1992, four

buses comprised only of men set off from Trnopolje camp. At a junction near Kozarac, the buses

from Trnopolje were joined by other buses full of prisoners. Two of the buses headed towards the

line of separation between Bosnian Serb- and Bosn ian Muslim-controlled territory. Two of these

buses stopped on the road at Kori ćanske Stijene. On one side th ere was a deep gorge, and on the

other side was a steep face of rock. The men from the buses were taken in a column to the edge of

the cliff and ordered to kneel down. Before the victims were executed, they cried and pleaded for

their lives. Then the shooting started. The dead bodies fell into th e abyss or were pushed over the

edge, sometimes by other Bosnian Muslims prior to their own execution. Grenades were thrown

into the gorge to make sure no one would survive. At a minimum, 200 men were killed. - 38 -

58. The Trnopolje camp was the culminati on of the campaign of ethnic cleansing because

those Muslims and Croats who were not killed at the Omarska or Keraterm camps were sent to

Trnopolje, and then deported from Bosnia.

59. According to the 1991 census the population of Prijedor was 112,543. Of those

43.85 per cent were Bosniaks, 42.48 per cent were Serbs and there were 5.61percent Croats.

Bosniaks and Croats constituted the largest ethni c group in the municipality whereas most of the

60
municipalities surrounding Prijedor ha d a majority Serb population . By 1995, ethnic cleansing

had been so successful that the population had dropped to 66,100, of which 92.28percent was

61
Serb, 5.44percent Muslim and 1.51percent Croat . Thus the Muslim and Croat population of

Prijedor, which had been in the majority in 1991, had been almost completely cleansed from this

municipality.

(iv) Banja Luka municipality

60. We now move to the Banja Luka municipality. The most horrific camp in Banja Luka

municipality was Manjaca. It began operati ng as a detention camp on 15 May 1992 and contained

62
predominantly Muslim men and minors. The overwhelming majority of detainees were civilians .

63
Thousands of people were detained there with numbers ranging from 3,640 to 5,434 . In addition

to killings and beatings 64, the sanitary conditions in Manjaca were described as “disastrous...,

inhuman and really brutal”. Manjaca was said to be a “camp of hunger”. Most inmates lost

between 20 and 30 kg of body weight while they were detained there. One survivor stated that he

believed that had the ICRC and UNHCR not arrived, the inmates would have died of starvation” 65.

61. Manjaca was staffed by Bosnian Serb military police and was under the command of the

1stKrajina Corps. This was one of the m ilitary formations that underwent the so-called

transformation process from the JNA to the VRS after 19 May 1992.

60ICTY, Prosecutor v. Tadić, Opinion and Judgment, case No. IT-94-1-T, T, 7 May 1997, para. 128.
61
ICTY, Prosecutor v. Radoslav Brđanin, case No. IT-99-36-T, exhibit P58, pp. 6-7, ERN No. 930356-930357.
62
ICTY, Prosecutor v. Brdanin, Judgment, case No. IT-99-36-T, 1 September 2004, paras. 749-750.
63ICTY, Prosecutor v. Plavsić, Sentencing Judgment, case No. IT-00-39 and 40/1, 27 February 2003, para. 47.

64ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 178.

65ICTY, Prosecutor v. Plavsić, Sentencing Judgment, case No. IT-00-39 & 40/1, 27 February 2003, para. 48. - 39 -

62. The camps we have been dealing with in Prijedor and the Manjaca camp in Banja Luka

were discovered by the world’s media. For this reason we have video footage of what they looked

like.

63. Before we turn to those videos, we do have footage of the takeover of Prijedor. [On

screen] There is no sound to this: it is just pictures.

s[crenen]

64. In the next clip we are going to see images of Omarska and hear the comments of a judge

and a journalist who were detained there.

s[crenen]

This explanation provided by the journalists re lated to the visit of the first journalist to

Omarska and the attempts made by the authorities to hide the true fact of what was going on in that

detention facility.

65. In the next sequence we will see images from Trnopolje and Manjaća.

s[crenen]

E. Examples of municipalities linking northern Bosnia and eastern Bosnia

66. I am now going to move on to examples of municipalities linking northern Bosnia and

eastern Bosnia and the detention facilities there. Th e next examples that will be addressed are the

municipalities of Bosanski Šamac and Br čko. At this point it is useful to recall the strategic

objectives of the Serbian people. In addition to the first strategic objective of ethnic separation, the

second strategic goal required setting up a corridor between Semberija and Krajina, essentially

linking the north-western part of Bosnia to the north-eastern part of Bosnia. The municipalities of

Bosanski Šamac and Brčko were in this linkage area.

(i) Bosnanski Šamac municipality

67. One of the earliest examples of camps and the co-ordination of the JNA, Serbian

paramilitaries and local Bosnian Serb forces in th e process of detention and inhuman treatment of - 40 -

non-Serbs can be found in the municipality of Bosan ski Šamac. This municipality was the subject

66
of a multi-defendant trial and judgment of the UNICTY in the Simić case .

68. In this case the Tribunal found that on 17 April 1992, the municipality of

BosanskiŠamac was forcibly taken over by Serb forces, including Serbian paramilitaries and the

JNA. From that time these forces participated in executing a plan to persecute the non-Serb

civilians in the municipality.

69. Following the takeover, hundreds of non-Serb civilians, including men, women, children

and old people, were arrested and detained in va rious detention facilities in the municipality. The

first large-scale arrests were carried out by local Serb police and paramilitary forces from Serbia,

with some later arrests being carried out by the J NA soldiers. Their detention was arbitrary. Their

interrogations were coercive and forced. They were detained because of their non-Serb ethnicity

and political affiliations.

70. The non-Serb civilians were repeatedly and violently beaten in the detention facilities in

Bosanski Šamac and in Crkvina, Brčko, and Bijeljina municipalities. Some were beaten upon their

arrest and others during their imprisonment. Th e implements used included rifles, metal bars,

baseball bats, metal chains, police batons, and chair legs. Some prisoners were beaten while

undergoing interrogation. The beatings were a pplied by paramilitary forces from Serbia, local

policemen, and a few members of the JNA. The beatings took place on a daily basis, day and

night.

71. On one occasion, a victim was beaten in the crotch, and his assailants told him that

Muslims should not propagate. They were tortured through heinous acts of sexual assault, the

threat of execution and the extraction of teeth. This last form of vicious cruelty was recounted by

the Simić chamber:

“When, as a result of the beatings, th e detainees would open their mouths, an
object would be put in to keep the mouth open, and ‘Zubar’ came with his bloody and
rusty pliers and extracted teeth . . . When the gym of the primary school was cleaned

the next morning, over 100 teeth were in the main corridor outs67e the gym...
[T]hese same men went to the TO and pulled teeth there.”

66
ICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003. See in particular, paras. 442-456;
654-669; 770-772; 984.
6ICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, para. 722. - 41 -

72. The trial chamber in the Simić case concluded that

“the detainees who were imprisoned in th e detention centres in Bosanski Šamac were

confined under inhumane conditions. The prisoners were subjected to humiliation and
degradation... They did not have sufficient space, food or water. They suffered
from unhygienic conditions, and they did not have appropriate access to medical care.

These appalling detention conditions, the cruel and inhumane treatment through
beatings and the acts of torture caused sev ere physical suffering, thus attacking the
very fundamentals of human dignity... This was done because of the non-Serb
ethnicity of the detainees.”68

73. One group of approximately 47 Bosnian Mu slim and Bosnian Croat detainees, who were

held in the Territorial Defence building in B onanski Šamac, was transferred at the end of

April1992 by the JNA to the JNA barracks in Br čko where they were guarded by JNA soldiers.

They were held there until the fighting broke out in Br čko on 1 or 2 May 1992. They were then

transferred by a military escort to the JNA barracks in Bijeljina where they were beaten by Serb

forces, including members of the JNA 69. Some were taken back to detention facilities in

BosanaksiŠamac. Some detainees were subject to court proceedings in Bijelina. Significantly,

another group of detainees, including prominent pe rsons, were transferred across the border out of

Bosnia and Herzegovina to Serbia proper, to a place called Batajnica where they were subjected to

so-called trials in May 1992 70. This is a most telling example of the co-operation between the

Bosnian Serbs and their associates across the border.

(ii)Br čko municipality

74. We now move to an example of an atrocious camp in north-eastern Bosnia, in the critical

strategic position of Brčko: the Luka camp. The horrors of the Luka camp were first demonstrated

in Bosnia’s Reply in Section5 and were confirmed most recently by an up-to-date finding of the

ICTY trial chamber hearing the Milosević case. This stated:

“Many Muslim men of Br čko were detained in Luka Camp in May and
June 1992. Witnesses gave testimony describing the manner in which these detainees
were transported by bus to Luka Camp in Br čko. The number of detainees
incarcerated there varied on a daily basis; and [one witness] estimated that the number

of detainees could have been up to 1,500 at any given time. The conditions and

6UNICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, para. 773.
69
UNICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, para. 718.
7UNICTY, Prosecutor v. Simić, Judgment, case No. IT-95-9-T, 17 October 2003, paras. 667-669. - 42 -

treatment to which the detainees at Luka Camp were subjected were terrible and
included regular beatings, rapes, and killings.” 71

It went on to find:

“At Luka Camp, [one witness] and othe r detainees were forced to remove the
bodies, which typically had marks of beatings and gunshot wounds to the back of the
head. The witness personally moved about 12 to 15 bodies and saw approximately

100bodies stacked up like firewood at Luka camp; each day a refrigerated meat
truck . . . would come to take away the dead bodies.” 72

75. In making its finding that a trial chamber could be satisfied beyond reasonable doubt that

genocide was in fact committed in Br čko, it referred to various additional facts including those

which showed that the non-Serb leadership and particularly members of the SDA, which was the

main Muslim political party, were targeted. For example, people were called out by their surnames

and beaten, because their names were recognized as belonging to those who had been organizers of

the SDA. In another example, one witness saw men from Šešelj’s or Arkan’s group kill a Serb who

had tried to help a Muslim flee the former Yugosla via; later that night, the soldiers killed the

73
Muslim, who was an active member of the SDA .

76. Evidence of the use of lists in Luka also supports the proposition that the Muslim

leadership was particularly targeted. For example during an interrogation one witness saw

Goran Jelesić circle the names of three people on a list and order them to be brought into the office.

When the three Bosnian Muslims came in Jelesić interrogated them, beat them, and then took them

74
out of the office. The witness heard gunshots and screaming afterwards.

77. The existence of lists is supported by a detainee at Luka who was forced to clean the

administration offices. On one occasion, while cleaning one of the offices she saw a list with

50 names on it of mostly prominent, educated or well-off Muslims. The list was titled “The List of

People to be Executed” 75.

71ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,
16 June 2004, para. 159.

72UNICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal case No.IT-02-54-T,
16 June 2004, para. 161.

73UNICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No.IT-02-54-T,
16 June 2004, paras. 160, 165-168, 246.

74ICTY, Prosecutor v. Milosević, case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal,
16 June 2004, para. 168.

75Testimony of 6 February 2004, Transcript, p. 612, ICTY Prosecutor v. Krajisnik, case No. IT-00-39-T. - 43 -

78. Non-Serbs were also detained in other parts of the Br čko municipality after its takeover

by Serb forces. For example, one witness in the Milosević case testified that, while detained in the

house of a Muslim in Brč ko by Simo Radovanovi ć (a.k.a. “Captain”), who was a member of the

Red Berets from Serbia, she worked like a servant and was used as an object of sexual gratification

for him 76.

F. Conclusions

79. The conclusion that is forced upon us when confronted with this material is inescapable.

At a minimum 100,000 to a maximum of 200,000 Bosniak and other non-Serb men, women,

77
children and elderly people were imprisoned in camps across Se rb-claimed territory, for no other

reason than their ethnicity. Some were even detained outside the State borders of the independent

Bosnian State, in Serbia proper.

80. People were commonly imprisoned after be ing driven from their homes by Serb forces

including the JNA, the Bosnian Serb Army (VRS ), the Bosnian Serb police and both Bosnian and

Serbian paramilitary formations. Some of the detention centres were actually controlled and

operated by the JNA.

81. The inhumanity of the conditions in ca mps was uniform with little or no sanitation,

shelter, water, food and medical care. Inmates were routinely humiliated and debased. They were

subjected to horrific beatings, rape and other form s of torture by merciless perpetrators including

JNA personnel, the Bosnian Serb army and police, and paramilitaries from Serbia and Bosnia.

Untold numbers died as a result or were cold-bloodedly executed.

82. The leaders of the Bosnian Muslim commun ity were targeted for the worst atrocities and

for elimination, particularly in regions important to the nascent, ethnically “pure”, Serb State. The

survivors of this systematic terrorization were de ported, transferred or exchanged to areas out of

the territory of the Serb-declared areas. The Serb goals were achieved.

7ICTY, Prosecutor v. Milosević, Decision on Motion for Judgment of Acquittal, case No. IT-02-54-T,

16 June 2004, para. 152.
7Exhibit No. P404.7a; Testimony of Malesevi ć, Monday 10 March 2003, in ICTY, Prosecutor v. Milosević,
case No. IT-02-54-T. - 44 -

83. Madam President, Members of the Court, this concludes my pleading. May I ask you to

give the floor to my colleague Laura Dauban.

The PRESIDENT: Thank you, Ms Karagiannakis. I give the floor to Ms Dauban.

DMAs BAN:

D ESTRUCTION OF CULTURAL HERITAGE IN BOSNIA AND H ERZEGOVINA

1. Madam President, distinguished Members of the Court, as this is the first time I am

pleading before this Court, I would like to say what a very great honour it is for me.

2. During my pleadings, I will be presenting one of the most significant patterns of the

genocide in Bosnia and Herzegovina, a pattern wh ich can only be described as the deliberate

savaging of the country’s rich and unique architectural, bibliographical a nd religious heritage.

Cultural and historical significance and beauty aside, these buildings act as beacons and symbols to

keep the spirit of Bosnia and Herzegovina alive in the hearts of its people, whatever their faiths.

They are the heart and spirit of communities and their presence alone marks some part of the

chronicle of the nation and its people. The destru ction of Bosnia’s cultural heritage, alongside the

horrific ethnic cleansing was nothing less than a ru thless campaign to destroy not only the Bosniak

and Bosnian Croat aspects of the history of Bosnia and Herzegovina but also the very fabric of its

society.

3. In order to show the Court what I mean by the “destruction of cultural heritage” in Bosnia

and Herzegovina, I will be showing the calculate d damage done to and eradication of mosques,

churches, historical landmarks, libraries, manu script collections and ot her landmarks associated

with religion such as schools and offices. For there was not only an obliteration of Bosnia’s

religious heritage but also its written heritaThe characterization by the Committee on Culture

and Education of the Council of Europe of the destruction of cultural heritage in Bosnia as “a

cultural catastrophe in the heart of Europe”8 is very much correct. The ramifications of such

devastation will be felt for years and centuries to come.

78
Council of Europe Parliamentary Assembly, doc. 6756, 2 February 1993. - 45 -

4. Under the Hague Regulations and customary international law, institutions dedicated to

religion are protected. This protection is restated in both Additional Protocols I and II to the

Geneva Conventions. This protection can be lost if the buildings are used for military purposes,

but I intend to show you during the course of my pleadings on this subject that the destruction was

very often carried out in places which were under Bosnian Serb control and thus the fighting for

control of those places had indeed stopped.

The intent behind the destruction

5. Madam President, Members of the Court, such a wanton and deliberate destruction of

religious buildings gives a clear indication of the inte nt of the perpetrators: they wanted to ensure

that the departure of the Bosniak and Bosnian Croat populations would be on a permanent basis.

On top of the physical removal of the non-Serb po pulation, such a destruction of their cultural

heritage shows an attempt to wipe out the traces of their very existence. And not only to forget the

people but also the rich and unique history of Bosnia and Herzegovina: this is what they wanted to

destroy forever.

6. The intent for such a destruction can be seen by the words of those people in positions of

authority in the Bosnian Serb hierarchy. One of the Republika Srpska Assembly delegates,

Miroslav Vjestica, was not concerned about the damage done to the town of Veliki Badic by the

Serbs but he was more worried by the prospect that if the Muslims returned there: “We will have

to compensate them for everything that we destroyed and burned there and the 17 mosques we

79
razed to the ground.” The razing of churches and mosques was inextricably linked to the

cleansing of villages, towns and municipalities.

7. The eradication of the mosques in Bijeljina, was justified by the town’s mayor in 1996,

when he stated that: “For six centuries, mosques were synonymous with evil in this area... I

don’t want my children to see mosques again, ever ... We don’t want to live in any kind of

common country with them.” 80 These sorts of statements show the sort of misplaced ideological

rationale for the removal of all traces of the shar ed cultural heritage of Bosnia and Herzegovina.

79
34th Session of the Republika Srpska Assembly, 27 August-1 October 1993.
8Interview with Susan Sachs, Newsday, 19 March 1996. - 46 -

The Serb perpetrators saw such monuments not as treasured beacons of the local community or

even as objectively demonstrating the rich history of Bosnia; instead th ey characterized such

history as an unwelcome reminder of the 500 years before the late nineteenth century when Bosnia

formed part of the Turkish-run Ottoman empire. The Bijeljina mayor ⎯ who I just quoted to the

Court ⎯ characterized such a period as: “the worst days of [Serbian] slavery under the

81
Ottomans” .

8. The rationale for destroying the mosques was that if they were gone, the Muslims would

not return. This was stated explicitly to a jour nalist who visited Prijedor and spoke with one Serb

who had, with a military demolition team, received orders to blow up the mosque in the centre of

the town of Prijedor. His description of how the mosques were destroyed is unsettling in its very

frivolity:

“‘[it] was about 200 years old. I don’t know, they all look the same ⎯ cheap’. They
battered the door down and began smashi ng up the mosque, downing more rejki as

they looted and destroyed... One of the boys started playing Iron Maiden and
Nirvana over the loudspeakers that had once broadcast the muezzin calling the faithful
to prayer. Then they lit a bonfire of carpets and tables in the middle of the mosque

and bored holes in the walls by the light of the fire. They wired up the charges,
dismantled and took the sound system a nd gathered outside to watch the walls
crumble in a single cloudy explosion, singing and laughing. [Ranko stated to the
journalist] ‘if you destroy their džamijas [m osques] they (the Muslims) never come
82
back’.”

I would like at this point to show the Court a picture of the Stari Grad mosque in Prijedor, both in

1991 when it was still standing and in 2002 when it had been completely razed to the ground.

9. Destroying the religious buildings and cultural heritage of a community marks the death of

that community: all traces that they lived there for generations, even centuries, are cleared away

with the rubble. No one would ever be able to tell that these places were once inhabited by

Bosniaks and Bosnian Croats. Jan Boeles who was, in 1994, the Head of the Dutch delegation to

the European Community Monitor Mission to monito r political and security developments in the

regions of Bosnia and Herzegovina, had the specific task to match the dates of mosque and church

demolition with the names of militia commanders who controlled military units at the time of the

81
Bosnia Report, Vol. 2, No. 15, 15 April 1998.
8G. Weiss, “Street dogs, dead souls and killers who are heroes”, http://www. salonmagazine.com/jan97/
bosnia970106.html. - 47 -

destruction. They would then be able to prosecu te those people for war crimes. He stated, in an

interview with journalist Robert Fisk, that:

“You have to understand that the cultura l identity of a population represents its
survival in the future... This is the mu rder of a people’s cultural identity... In

many religions, destroying a cemetery is about the worst thing you can do. The
graveyard... proves that this piece of la nd has been in this peoples’ possession for
generations.” 83

10. Professor Thomas Franck, has pleaded before this Court about the law of genocide. I

will not attempt to duplicate what he has said but I think it is fitting to include a rather poignant

quote from the “Original definition of genocide” by Rafael Lemkin, the legal scholar who first

coined the term “genocide” in 1944 and whose initiative led to the adoption of the Convention for

the Prevention and Punishment of the Crime of Genocide four years thereafter:

“Generally speaking, genocide do es not necessarily mean the immediate
destruction of a nation, except when acco mplished by mass killings of all members of

a nation. It is intended rather to signify a coordinated plan of different actions aiming
at the destruction of essential foundations of the life of national groups, with the aim
of annihilating the group itself. The objectives of such a plan would be the

disintegration of the political and social institutions, of cultu re, language, national
feelings, religion, and the ec onomic existence of national groups, and the destruction
of the personal security, liberty, health, dignity, and even the lives of the individuals
84
belonging to such groups.”

General picture and pattern of the destruction

11. Such irreparable damage was unfortunately done to so many sites of cultural importance

that to go through them all in this part of the pl eading would simply take too long. I will instead

focus on some of the more villainous destructions while presenting the general picture and pattern

of those destructions to the Court. Mr. Andras Riedlmayer, who will provide his expert opinion to

this Court, carried out an extensive survey of 19 municipalities in Bosnia and Herzegovina for the

85
Prosecutor in the Milosević case at the ICTY and an additional seven municipalities in Bosnia

and Herzegovina for two other cases before the ICTY 86. In these reports he documented damage to

83As reported by Robert Fisk, “Waging war on history”, The Independent, 20 June 1994, p. 18.

84As quoted in Lori Lyman Bruun “Beyond the 1948 Convention: Emerging Principles of Genocide in Customary
International Law”, Maryland Journal of International Law and Trade, Vol. 17, No. 2, Fall 1993, 193-226.

85ICTY, Prosecutor v. Slobodan Milosevi ć, case No. IT-02-54-T “ Destruction of Cultural Heritage in
Bosnia-Herzegovina 1992-1996 ⎯ A Post-war Survey of Selected Municipalities”, Andras Riedlmayer,Exhibit Number
P486.

86Namely for the ICTY in the Krajisnik case and the Seselj case. - 48 -

cultural and religious sites of the Bosniaks and Bosnian Croats. His expert report for the Milosević

case, which is probably one of the most compre hensive surveys done to date, contains an

abundance of useful and accurate data, much of which I will be drawing on in my pleadings and

showing to the Court.

12. Another very reliable report is that produ ced by Dr.Colin Kaiser who testified as an

expert at the ICTY in the Brdjanin case. He conducted an investigation into the damage and

destruction of Islamic and Roman Catholic sacral buildings in a number of municipalities in

87 88
Bosnia between 1992 and 1995 . Dr.Kaiser wrote a series of reports for the Parliamentary

Assembly of the Council of Europe, for whom he acted as a consultant to the Committee on

Culture and Education, during the war. Since the year 2000 he has been Head of the Unesco office

in Sarajevo. The study Dr.Kaiser compiled for the Brdjanin Prosecutor for the ICTY is not as

comprehensive as the one carried out by Mr. Riedlmayer, as it does only cover six municipalities,

but the two studies do both come to similar conclu sions, some of which I will be presenting to the

Court over the course of my pleadings.

13. In Mr. Riedlmayer’s report, he found that all of the 277 mosques that he surveyed were

damaged and only 22 of those were assessed as lightly damaged. Most of the mosques surveyed by

him were located in territories seized and held by Bosnian Serb forces during the conflict, with

Sarajevo being the notable exception 89.

14. What can only be described as a “campaign” of devastation of buildings and institutions

dedicated to religion took place throughout the conflict. The Brdjanin trial chamber found that the

destruction of sites of cultural and religious importance was intensified in the summer of 1992, this

being the significant period of damage to Mus lim and Roman Catholic institutions. Their

conclusion was that this was “indicative that the devastation was targeted, controlled and

90
deliberate” .

87Namely Bosanski Novi, DonjiVakuf, Kljue, Kotor Varos, Prijedor and Sanski Most.

88ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T “Report on the Da maging and Destruction of Islamic and
Roman Catholic Sacral Buildings in the Municipalities of Bosanski Novi, DonjiVakuf, Kljue, Kotor Varos, Prijedor and
Sanski Most in the 1992-95 War with specific reference to 1992”, Dr. Colin Kaiser, Exhibit No. P1183.

89ICTY, Prosecutor v. Slobodan Milosevi ć, case No. IT-02-54-T “ Destruction of Cultural Heritage in
Bosnia-Herzegovina 1992-1996 ⎯ A Post-war Survey of Selected Municipalities ”, Andras Riedlmayer, Exhibit
No. P486, p. 9.

90ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgment issued on 1 September 2004, para. 642. - 49 -

15. That the destruction was deliberate rather than incidental to the conflict is something

which Mr.Riedlmayer has concluded in his report: a majority of the religious sites he identified

were destroyed as a result of attacks directed at them, rather than attacks incidental to fighting in

91
the vicinity . Madam President, Members of the Court, to raze a building to the ground is not

something which happens easily, quickly or without some amount of preparation.

16. The people who were destroying those Bo sniak and Bosnian Croat religious buildings

appeared to have been working from some pre-prep ared lists. It is Mr.Riedlmayer who deduces

this from the very fact that unfinished religious buildings were targets of vandalism but were not

generally blown up like many of the finished ones 92.

Some examples of destruction in Bosnia and Herzegovina

17. It was sometimes not even enough that the mosques had been burnt and the damage had

been so extensive that they had been rendered completely unusable: the destruction in some places

went as far as the foundations bei ng dug up and removed. One of the most chilling tales is that of

the fate of the eighteenth century Savska mosque in Brčko. A photo of the Savska mosque appears

behind me now ⎯ it is shown in its pre-war state, when it stood in all of its glory and then, in

July 2002 there is a picture which shows it is no longer there. I would like you to bear this picture

in mind while I describe what happened there. The rubble from the destruction of the Savska

mosque was mixed with tons of garbage then dumped on top of a mass grave site and used to cover

the remains of Muslim civilians from Brčko killed by Serb forces and buried on the outskirts of the

town 9. [Picture of the Savska mosque]

18. In the town of Fo ča a total of 11mosques, eight of them dating from the sixteenth

century, were destroyed during the first months of the town’s occupation by Serb forces in the late

spring and summer of 1992. One of them, the Aladza mosque, famous for its splendid mural

paintings and lofty dome, dating from 1555 and under Unesco protection, was dynamited and

razed. According to the ICTY Kunarac trial ch amber, the Aladza mosque, which was the last

standing mosque in Foča, was blown up on 1August 1992. This was “well after the end of the

9Riedlmayer, op. cit., Note 15, p. 11.
92
Ibid., pp. 9-10.
9Riedlmayer, op. cit., Note 15, pp. 12-13. - 50 -

94
fighting and . . . at a time when the town was securely under Serb control” . The Aladza Mosque

was one of the world’s most beautiful Muslim places of worship, famous for its magnificent wood

95
and marble carvings. Serb fire brigades stood by and watched as the mosques burned in Foča .

19. The Islamic community of Fo ča’s historical archive and library were also burned, as

were three shrines of Muslim holy men, and a histor ic dervish monastery of the Nakshibendi order.

In the surrounding municipality of Foč a, a total of 33 Islamic sites were destroyed, including

24 mosques. In addition to such a destruction of its cultural heritage, the very name of the town of

Foča ⎯ as Ms Karagiannakis explai ned earlier in her pleadings ⎯ was replaced; and this was a

common pattern across the territories which were cleansed by the Serbs. So, in January 1994,

“Foča” became “Srbinje”, “Serb Town”, by reference to the fact that it is now almost exclusively

inhabited by Serbs. Indeed, “[e]verything that in any way was reminiscent of the past, ... was

96
destroyed” . As a consequence of the concerted effect of the attack upon the civilian population

of Foča, and surrounding municipalities, all traces of th e Muslim presence in the area were wiped

out.

20. The village of Novoseoci, which is 50 km from Sarajevo, was the scene of an atrocious

act of cold-blooded murder, which was centred around the mosque. On 21 September 1992,

soldiers from the 2nd Romanija Brig ade of the VRS, the army of the Bosnian Serbs, blocked and

surrounded the village. There was no armed resistance in that village, Madam President. The next

day, the women and children were bussed out of the area; the men were lined up outside the

mosque and shot. The bodies were then placed in a garbage dump a few kilometres outside

97
Novoseoci and were buried beneath the rubble of the mosque . Amor Masovi ć, head of the

Bosnian Missing Persons Agency, stated that to nnes of garbage and “15-ton chunks of the

mosque”, destroyed by the Serbs had to be remove d before the mass grave site was uncovered. He

further pointed out that each of the victims had eight or nine bullet holes in them ⎯ and I shall

quote him again: “Only military trucks could have carried those huge chunks of the mosque. This

94
ICTY, Prosecutor v. Kunarac et al., case No. IT-96-23&23/1, Judgment, 22 February 2001, para. 44.
95
ICTY, Prosecutor v. Krnojelac, case No. IT-97-25, 17 September 2003 at para. 33.
96ICTY, Prosecutor v. Bijlana Plavsi ć, case NoI.T-00-39, testimony of Mirsad Tokaca, Judgment,
27 February 2003, para. 44.

97ICTY, Prosecutor v. Krajisnik, case No. IT-00-39-T, testimony of Milan Tupajić, 29 June 2005. - 51 -

98
was a deliberate, organized act of terror, not war.” Madam President, Members of the Court, the

Commander of the 2nd Romanija Brigade in 1992 was none other than Radislav Krsti ć, the man

who is currently serving a life sentence for complicity in genocide for his actions in Srebrenica. He

was sentenced by the ICTY. He was also, for a ll times between 1991 and 1995, an officer in the

VJ, the Yugoslav army, and the VRS, the army of the Bosnian Serbs. We have submitted

99
documents to the Court on a DVD on 16Ja nuary, showing that this was the case . This will be

discussed in more detail when the Deputy Agent of Bosnia and Herzegovina, Mr. van den Biesen,

presents to the Court the role and nature of Belg rade’s involvement in military matters in Bosnia

and Herzegovina.

21. Madam President, Members of the Court, I would now like to talk about Banja Luka.

This had been taken over by Serb forces at the start of the war without any fighting, all of the city’s

16mosques, including two famous sixteenth century buildings ⎯ the Arnaudija and the Ferhad

Pasha mosques ⎯ were deliberately razed to the ground. Both of these mosques were registered

with Unesco. The Mayor of Banja Luka, Djordje Umicevi ć, wrote that to rebuild the mosque

would be a “deep humiliation for the Serbian people” and further that the mosque was a

“monument to the cruel Turkish occupation” 100.

22. In the northern Bosnian municipality of Prijedor, the Brdjanin trial chamber found that

“the most systematic and brutal infliction of damage to both Muslim and Catholic institutions

dedicated to religion occurred in Prijedor” 101. Dr.Kaiser concluded that all of the acts of

102
destruction took place in the summer of 1992 . One of the most disturbing incidents so far

reported is that which Mr. Riedlmayer refers to in his expert report submitted in the Milosović case.

In the village of Carakovo, Serb forces massacred 18 Muslim villagers in front of the mosque; they

then proceeded to wrap the Imam in a prayer carpet and burnt him death, before burning down the

mosque itself and finally blowing up the minaret 103.

98M. Rosemblum, “41 Muslims Finally Buried in Bosnia”, Associated Press, 5 November 2000.
99
Documents submitted to the ICJ by Bosnia and Herzegovina, 16 January 2006, docs. Nos. 44a-j.
100
Bosnia Report, Vol. 2, No. 15, 15 April 1998.
101ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgment, 1 September 2004, para. 652.

102Op. cit., Note 14, p. 10.

103Riedlmayer, op. cit., Note 15, p. 13. - 52 -

23. Dr.Kaiser concludes that the Islamic and Roman Catholic sacral buildings were

destroyed in a “targeted, controlled and deliberat e campaign of devastation, a kind of blitzkrieg

104
against places of worship” .

24. In the eastern Bosnian municipality of Zvornik, Serb forces destroyed all five mosques in

the town and a total of 46 Islami c sites, including 36 mosques, in the municipality. I would like

now to demonstrate to the Court the link between the elimination of the religious sites and the

removal of those people so inextricably connected to them in the eyes of the Serbs, as regards the

municipality of Zvornik. In doing this, I would like to share with the Court the words of the Serb

Mayor of Zvornik, Branko Grujić, who, in early 1993, was interviewed by several foreign reporters

and he uttered a pure and simple lie when he made the absurd claim that: “There never were any

105
mosques in Zvornik.” I would now like to show you a picture of one of those mosques which

apparently never existed. It is shown in 1990, before it was destroyed. Then we see, in 1998, a car

park stands on the place where it once stood.

[Picture: mosque in Zvornik]

25. Later on in the same month, Mayor Gruji ć did admit that Muslims may once have had a

legitimate claim to ownership of eastern Bosnia. Ho wever, he quickly qualified this by explaining

why the United Nations map for the region needed to be thrown away. I would like to quote the

article where he was interviewed:

“The demographics are different now,” he said. [The journalist writes]
“Zvornik once had a population of almost 70,000 ⎯ with more than 60 per cent being

Muslims. Today, the mosque has been blown u106and the city is more than 90 per cent
Serb, maybe even 99.9 per cent Serb.”

26. A year later, Mayor Grujić was quoted in the Belgrade press as saying that there were

107
only five Muslims left in Zvornik . Unfortunately, this time, Mayor Grujić’s words were not so

10Kaiser, op cit., Note 14, p. 12.

10Branko Grujić, interviewed by Carol Williams, “Serbs Stay Their Ground on Muslim Lands: Conquering
Warlords Bend History and Reality in an Attempt to Justify Their Spoils”, Los Angeles Times, 28 March 1993;
LauraSilber, “Serb Mayor Confident in Bosnian Town Where Mosques Are Rubble”, Financial Times (London),
17May1993; Roger Cohen, “In a Town Cleansed of Muslims, Serb Church Will Crown the Deed”, New York Times,
7 March 1993.

10Chicago Tribune, 23 March 1993.

10Vreme News Digest, No. 156, 19 September 1994, Title: “On the Spot: Loznica and Zvornik, the Banks of the
Drina”, by Dragan Todorović. - 53 -

incredulous. Madam President, Members of the C ourt, before the takeover by the Serbs, Zvornik

was made up of 54 per cent Muslims. In 1997-1998 this was 0.6 per cent 10.

27. The findings of the ICTY on the destruction of religious and cultural heritage of Bosnia

and Herzegovina are succinctly put in the Brdjan in trial chamber judgment. This trial chamber

found that there was a wilful damage done to both Muslim and Roman Catholic religious buildings

and institutions in the relevant municipalities by Bosnian Serb forces. They furthermore concluded

109
that the evidence showed that they were not used for military purposes . I will describe some of

the findings of that trial chamber, as listed in the judgment, to you now.

28. In Bosanski Petrovac, the two mosques in the centre of town were destroyed during the

110
takeover of it. There was no apparent resistance in the area . The mosques in Staro Šipovo,

Bešnjevo and Pljeva were destroyed on 7 August 19 92 by Bosnian Serb fo rces. The mosques and

111
their minarets were completely destroyed and th e tombstones in the vicinity were also damaged .

The religious buildings in Sanski Most were also subject to major damage. In Čelinac town, two

mosques, the Imam’s house and a Roman Catholic church were destroyed. In Tesli ć, the Roman

Catholic church was demolished during an attack on it by Serb forces in mid-1992.

The damage done to Sarajevo’s cultural heritage

29. The damage done to Sarajevo’s cultural heritage was touched upon yesterday by the

Deputy Agent, Mr.van den Biesen. I would like now to go into a little more detail. The robust

construction of the historic buildings which make up the city managed to survive a lot of the

shelling and gunfire ⎯ although many have sustained a cons iderable amount of damage. One of

the most nefarious attacks on the cultural heritage of Sarajevo and Bosnia and Herzegovina was the

destruction on 17 May 1992 of the Institute for Or iental Studies along with its priceless collection

of more than 5,000 Arabic, Turkish, Persian and Bosnian encyclopaedias, works of Islamic

philosophy and Ottoman poets. The archives al one contained over 200,000 manuscripts, which

108
ICTY, Prosecutor v Slobodan Milosevi ć, case No.IT-02-54-T, Expert Report of Ewa Tabeau: Exhibit
No. 548, tab 2, Ann. A1, p. 72.
109
ICTY, Prosecutor v. Brdjanin, case No. IT-99-36-T, Judgment on 1 September 2004, paras. 640 and 658.
11Ibid., para. 647.

11ICTY, Prosecutor v. Brdjanin, case No.IT-99-36-T “Document mentioning the destruction of the Staro
Šipovo, Bešnjevo and Pljeva mosques”. Exhibit No. P2404. - 54 -

included the edicts of the sixteenth century sultans and land deeds for all of Bosnia, many of which

could be considered works of art 112. The destruction was significant because it was a means of

destroying the documents, such as the historic land d eeds, that was evidence of the fact that Bosnia

and Herzegovina had not always been Serb land; and because by d estroying the Oriental Institute

and its thousands of manuscripts, it annihilated one of the greatest repositories of the written legacy

of 500 years of Bosnian Muslim cultural history. Furthermore, Madam President, it is clear from

the fact that none of the other buildings, in what is a densely built neighbourhood in the city, were

hit, that this was a deliberate attack on the Institute.

30. It was only just over three months later that one of the most notorious and shattering

attacks on the cultural heritage of Bosnia and He rzegovina took place, the burning of Bosnia’s

National Library, which was, according to Mr. Andr as Riedlmayer: “the largest single incident of

113
deliberate book burning in modern history” . The pattern was similar to that of the attack on the

Oriental Institute: the Library was targeted and set ablaze by a barrage of shells. It was bombarded

by a barrage of shells and fired upon from multiple VRS positions. This shows all the hallmarks of

a co-ordinated attack. It burnt for 15 hours and smouldered for days afterwards but despite the

inside being completely reduced to ashes, the shell of the building still stands today ⎯ a distressing

reminder of what happened to the city, country a nd its people. As firemen fought the blaze, using

water from the Miljacka River as the city’s water s upply had been cut-off, they were shot at by

114
snipers . I would like to show the Court pictures of the Sarajevo National Library being burnt.

[Picture: burning library]

31. Madam President, Members of the Court, The library was a national landmark and a

cultural treasure; the main depository of Bosnia’s written history including works in the languages

of all of the cultures that have shaped the very history of the country including Old Slavic, Latin,

Hebrew, Turkish, Arabic, Persian and Serbo-Croatian. Mr.Riedlmay er estimates the loss to be

over 1.5 million volumes 115. Like the Oriental Institute, the Library is located in a densely built

11As reported by Robert Fisk, “Waging war on history”, The Independent, 20 June 1994, p. 18.
113
Riedlmayer op. cit., Note 15, p. 19.
11Ibid., pp. 18-19.

11Ibid. - 55 -

neighbourhood in the city and the surrounding bu ildings remain intact even in 2006. The written

history of a nation was reduced to ashes overnight: a blazing example of what the Serbs wished to

do to its very people and what they very nearly succeeded in doing. As Heinrich Heine warned,

nearly two centuries ago: “Where they burn b ooks, they will in the end burn human beings as

116
well.” I would now like to show the Court a picture of what the interior of the library looked

like after the destruction.

[Picture: interior of the library]

32. Aside from the two examples I have dw elt upon in Sarajevo thousands of historic

buildings and many important collections of manus cripts and works of art were lost or severely

damaged or completely destroyed throughout Bosnia. Madam President, every religious building

has its records of the local community spanning gene rations and different periods in the history of

Bosnia. The books and documents which embodied the historical memory of the Bosniak and

Bosnian Croat communities, many of which were unique and the product of centuries of cultural

history, were spitefully wiped out in a chilling parallel to the fate of the people who lived there.

Conclusions

33. The pattern of the destruction of the cultural heritage in Bosnia and Herzegovina can be

seen on the map which is appearing on the screen behind me.

[Picture: map of cultural destruction in BiH].

I would like at this point to explain to the Court that this map was compiled by Bosnia and

Herzegovina based on a database compiled by Mr. Andras Riedlmayer, submitted to ICTY in the

Milosević case which was used by the ICTY in that c ase. As you can see on the map, much of the

devastation occurred on the territory of what is now the Republika Srpska. This ties in with the

first of the strategic goals, which was to separate the Serbian people from the other two ethnic

communities. Madam President, they did not just want the territory, they wanted the territory

cleansed of all traces of the Bosnian Muslim and Bosnian Croat populations that once lived there.

34. The destruction of Bosnia’s cultural herita ge by the Serbs was an occurrence that started

right from the beginning of the war and conti nued even after the Dayton Agreement had been

116
Heinrich Heine “Dort wo man Bücher Verbrennt, verbrennt man auch am Ende Menschen” Almansor (1821). - 56 -

signed. Some of the early destructions were carried out by JNA forces, after Bosnia and

Herzegovina had been recognized by the interna tional community. Some of these destructions

carried out by the JNA were the mosques at Ko torsko and Orašje (near Doboj) on 6 May 1992, the

117
destruction of a Roman Catholic church in Gorice on 8May1992 and the destruction of the

mosque in Grapska on 12May1992 11. I would like to now show to the Court a picture of a

church in Gorice, both as it was before the war and in 2002 after it had been destroyed. Those who

destroyed these cultural, historical and religious monuments were, in fact, completing the work of

the genocidal operation.

[Picture: Gorice Church before and after destruction]

35. The conclusions of both Dr.Kaiser and Mr.Riedlmayer focus on the intent behind the

destruction, in that it was done to remove any tr ace of the Bosniak and Bosnian Croat civilizations.

Dr.Kaiser points to the difference in the level of destruction between those religious buildings in

the rural and urban areas. In the former, he found that there was less complete physical

annihilation, which he concludes is due to the assu mption, on the part of the destroyers, that the

people would not return to the areas so the walls of the mosques and churches would crumble and

disintegrate naturally. There was a more “radic al removal” of religious buildings in urban

119
centres .

36. Both Dr. Kaiser and Mr. Riedlmayer point out that the minarets on mosques were almost

always destroyed as these are the most prominent parts of the building and their removal changes

the face of the landscape in the most dramatic of ways.

37. It was not even the case that when th ese buildings were destroyed an empty space was

left: in many instances they were covered with parking lots and rubbish tips! Such a sign of

contempt and disrespect shows the attitude towards the Bosniaks and Bosnian Croats by those who

perpetrated such dreadful crimes. Mr.Riedlmayer even stated in his report that “the presence of

large, overflowing containers of rubbish on an empty lot in the centre of towns in Republika Srpska

11Riedlmayer, op. cit., Note 15, p. 16.
118
Ibid., p. 11.
11Kaiser, op. cit., Note 14, p. 12. - 57 -

120
often signals the site of a destroyed mosque” . I would like to use one comment published in

Vreme, which was one of the few remaining independent periodicals in Belgrade during the war, as

it sums up the situation accurately:

“It is characteristic that a great number of the destroyed places of worship were
not within the range of war actions. In some towns, in places where sacral buildings
had once stood, foundations have been laid for other purpose facilities. Sufficient
121
cement, labour and hatred were found.”

38. The Respondent’s replies to the eviden ce we have produced so far in our written

pleadings have been entirely dismissive of the facts we have put before the Court. In their

Counter-Memorial, where they allege that Serbian cultural property was destroyed in Bosnia, they

are less than specific, both in description and date of those occurrences. More worryingly, their

evidence sometimes does not match the descriptive terms they use for the damage and at times it is

122
even downright misleading. For example , they state in their Counter-Memorial of 1997 that on

“May 26, 1993 the Muslims levelled to the ground the Orthodox church which was located in the

very centre of Travnik”. In June 1994, the European Parliament’s rapporteur visited Travnik and

123
found the church still there having suffered only “minor damage from small shells” .

39. The Rejoinder is even more telling, give n that it says nothing of the evidence presented

by Bosnia and Herzegovina in its Reply of 23 April 1998 and focuses entirely on counter-claims

for damage done to Orthodox heritage sites. It is important to make clear at this stage that Bosnia

and Herzegovina does not deny that damage was done to religious sites of all of the communities of

the country. There were indeed a number of attacks on Serb Orthodox churches. This was

especially seen in the early phase of the war in Herzegovina: the Serb Orthodox Church in Mostar

was blown up by Croat extremis ts in June 1992 following the JNA siege, which had destroyed

Mostar’s Catholic churches; the destruction of the old Serb Orthodox monastery in Zitomislic by a

Croat gang from Medjugorje. What is clear is that there are no statements by Bosniak members of

Government either condoning or encouraging such attacks, as Prime Minister Haris Silajdzić stated

in 1995 when questioned about the safety of Serbs living in the Federation. He said:

12Riedlmayer, op. cit., Note 15, p. 13.
121
E. Stitkovać, “More than Hatred”, Vreme News Digest Agency, 23 November 1992.
12Para. 7.4.1.3.26.

12Council of Europe, Sixth Information Report, doc. 7133, p. 5. - 58 -

“Our history is our guarantee. Our credibility is our history, this history, the
history of this conflict in which these authorities have demonstrated maximum

tolerance even at the most difficult moment s . . . I visited Bosanska Krupa following
its liberation. In one small area there had been a Catholic church, a mosque and an
Orthodox church. When I visited Krupa, the Catholic church and the mosque had

been destroyed. The Orthodox church was in tact. This is our credibility and this is
not just the way things are around Sarajevo. This is the case everywhere. There are
probably some exceptions that only confirm the rule.” 124

Madam President, Members of the Court, I see it is now 1.00 p.m. and I would like to ask the

permission of the Court as I have only a few paragr aphs left to go to complete my submission.

Thank you.

40. It is worth noting that after more than th ree years of a bloody and bitter siege, the Serb

Orthodox Church at the centre of Srebrenica was still standing ⎯ though not undamaged: it had

suffered some vandalism. When the safe area fell and Mladić entered the town, Bosnian Serb army

officers can be seen visiting the Orthodox Church and planting the Serb flag over its entrance. This

stands in stark contrast to the fate of the town’s five mosques which were systematically

destroyed ⎯ as were the town’s male Muslims. The combination of those killings with the forcible

transfer of the women, children and elderly would inevitably result in the physical disappearance of

the Bosnian Muslim population at Srebrenica. Th is ethnic cleansing of people was also achieved

by a barbaric cultural cleansing ⎯ another way of killing the people by trying also to kill their

spirit. By eradicating the mosques in the town , the aim was to make sure that the displaced

population would never return. Madam President, Members of the Court, on the screen behind me,

I would like to show you some pictures of the destruction of the mosques in Srebrenica.

s[crenen]

41. Madam President, Members of the Court, this is what genocide looks like. This is what

the wages of racial hatred and ethnic cleansing lead to. This is only a part of what Bosnia and

Herzegovina has lost through cold-blooded attacks on those things which symbolize its people, its

history and the very fabric of its society.

I would like now to conclude my pleadings and thank the Court.

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Radio Bosnia-Hercegovina, Sarajevo, in Serbo-Croat, 1900 GMT, 7 December 1995. - 59 -

The PRESIDENT: Thank you, Ms Dauban. The Court now rises and the oral arguments of

Bosnia and Herzegovina will continue tomorrow morning at 10 o’clock.

The Court rose at 1.05 p.m.

___________

Document Long Title

Audience publique tenue le mercredi le 1er mars 2006, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président

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