CR 2006/17
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on Monday 13 March 2006, at 3 p.m., at the Peace Palace,
President Higgins presiding,
in the case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
________________
VERBATIM RECORD
________________
ANNÉE 2006
Audience publique
tenue le lundi 13 mars 2006, à 15 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-Presi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc AhmedMahiou
Kre Milenko ća
Couvrisrar
⎯⎯⎯⎯⎯⎯ - 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 fact 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, Master in law, avocat à la cour, Paris,
Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the
International Criminal Bar,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,
Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, and President of the International Law Association of Serbia and Montenegro,
Mr. Igor Olujić, Attorney at Law, Belgrade,
as Counsel and Advocates;
Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,
Ms Ivana Mroz, LL.M. (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 Djeri ć, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie-et-Monténégro,
M. Igor Olujić, avocat, Belgrade,
comme conseils et avocats;
Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,
Mme Ivana Mroz, LL.M. (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. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. Professor Brownlie.
Mr. BROWNLIE: Thank you, Madam President.
F. THE NON -INVOLVEMENT OF THE B ELGRADE G OVERNMENT :
CONFIRMATORY EVIDENCE
I. Introduction
162. I am continuing on the theme of the non-involvement of the Belgrade Government and I
now wish to present a series of items of confirma tory evidence. The subs tantial evidence already
presented can be enhanced by several significant forms of confirmatory evidence, in particular:
(a) the decisions of the ICTY relating to genocide;
(b)the opinions of Lord Owen on the relations between the Bosnian Serb leadership and
President Milosevic;
(c) the opinion of the Netherlands Institute for War Documentation of 2002; and lastly,
(d) the attitude of Milosevic as President of the Federal Republic of Yugoslavia.
II. Decisions of the ICTY relating to genocide
163. And so, first of all, I shall refer to the decisions of the ICTY. At the present time there
are a number of decisions by the ICTY relating to genocide. These decisions involve much effort
on the part of the prosecution and substantial reaso ning on the part of the Tribunal. And yet in
these significant decisions there is no reference to any involvement of the FRY Government, or any
command structure ⎯ or any command structure ⎯ relating to leaders in Belgrade. This silence is
very eloquent. It is eloquent because the existen ce or not of a command structure is a question of
fact. It is also a question of fact, which involves what may be called necessary connections. If the
situation concerned involved a ladder of command r eaching to officials in Belgrade, this would
inevitably show up in the evidence. But in these cases, it was not manifested in any form.
164. In chronological order, the relevant decisions are as follows.
F6is.t, Prosecutor v Stakic, Trial Chamber II, 31 July 2003. This decision relates to
events in Prijedor in 1992. The accused was f ound not guilty of genocide or of complicity in - 11 -
genocide. The analysis of the law and facts in the judgment makes no reference to members of the
FRY Government (see pp. 155-60, paras. 546-560).
1ec6.nd, Prosecutor v. Radislav Krstić, Trial Chamber, 2 August 2001. This decision
relates to crimes committed in Srebrenica and Po tocari. The accused was convicted of genocide
and other offences. The factual analysis is ve ry detailed and runs from pages 3 to 171. No
reference is made to any involvement of the FRY Government.
1h7ir.d, Prosecutor v Krstić, Appeals Chamber, 19 April 2004 . This decision related to
events in Srebrenica and Potocari. The appellant’s conviction as a participant in a joint criminal
enterprise to commit genocide (Count 1) was set aside, but he was found guilty of aiding and
abetting genocide. In spite of the considerable di scussion of issues of joint criminal enterprise and
the chain of command, no reference was made to the involvement of members of the FRY
Government (see pp. 2-54 of the judgment).
168. Similarly, the partial dissenting opinion of Judge Shahabuddeen makes no reference to
any involvement of leaders in Belgrade (see this opinion, pp. 89-106).
N6e9x.t, Prosecutor v. Blagojevi ć, Trial Chamber 1, 17 January 2005. This decision
related to events in Srebrenica. The accused was found guilty of complicity to commit genocide
(Count 1B). The judgment involves reference to command structures and, in particular, the
functional chain of command and the actions of th e Bratunac Brigade. The examination is very
detailed. No reference is made to any involv ement of the FRY Government. I refer to the
decision, pages 149 to 164.
III. The opinion of Lord Owen on the relations between the Bosnian Serb leadership
and President Milosevic
170. Next, I shall deal with the opinion of Lord Owen on the relations between the
leadership and President Milosevic. Lord Owen, in his role as Co-Chairman of the International
Conference on the Former Yugoslavia, had the res ponsibility for negotiating with the President of
the FRY and the Bosnian Serb leadership. The process lasted from September 1992 until 1995. In
the negotiations there were three parties, the Croats, the Bosnian Muslims under Izetbegovic, and
the Bosnian Serbs led by Karadzic. - 12 -
171. Milosevic was much involved in the negotiations, as the President of Serbia, but from
the evidence, it is clear that he was independe nt of the Bosnian Serbs and that they were
independent of Milosevic and the Belgrade G overnment. As I have already indicated, from
May1992 onwards, the Bosnian Serbs were indepe ndent of Belgrade. The relations between
Milosevic and Karadzic are the subject of several passages in Lord Owen’s book, Balkan Odyssey.
(See, in particular, pp. 102-103, 223, 324-326, and 357.)
172. The final rupture between the Bosnian Serbs and Belgrade took place on
4 August 1994. As Lord Owen reports the development in his memoir,
“On 4 August 1994 the following measures were ordered by the government of
the FRY, to come into effect the same day: ‘To break off political and economic
relations with the Republika Srpska. To prohibit the stay of the members of the
leadership of the Republika Srpska (Parlia ment, Presidency and Government) in the
territory of the Federal Republic of Yugoslavia. As of today the border of the Federal
Republic of Yugoslavia is closed for a ll transport towards the Republika Srpska,
except food, clothing and medicine.’” (Balkan Odyssey, p. 320.)
IV. The report of the Netherlands Institute for War Documentation
on Srebrenica published in 2002
173. This report is of considerable quality and reflects the professional approach of the
progenitors. In November 1996, the Dutch Govern ment commissioned the Institute to conduct an
investigation into “the events before, during and af ter the fall of Srebrenica”, but this list was not
exhaustive. The provenance of the research team was as follows: the investigation was conducted
under the direct responsibility of the NIOD Director, J.C.H. Blom, and the Head of Research at the
Institute, P. Romijn. In 1996 a research team was formed of experienced historians: A. E. Kersten,
specialist in the history of international relations; P.C.M.Koedijk, investigative journalist and
media historian; and Mr. D.C.L.Schoonoord, military historian. In 1997 a contemporary
historian, T.Frankfort, was appointed as research assistant. Later, she joined the team as a
researcher. Three extra researchers were appointed at the start of 1999: N. Bajalica, specialist in
Slavonic Studies and regional expert for the Balkans; B. G. J. de Graaff, specialist in political and
administrative history; and C.Wiebes, expert in the history of the operating methods of
international intelligence and security services. - 13 -
174. Part III of the report consists of a ma jor account of the Srebrenica murders and the
background. The Bosnian Serb strategy is examin ed in great detail (pp.1944-1962). Chapters 5
and 6 describe the main episodes. Further aspects are examined in ch apters 7 and 8. There is no
suggestion at any stage of the discussion that th e FRY leadership was involved in planning the
attack or inciting the killings of non-Serbs.
175. The report (pp. 2217-2219) includes a careful examination of the question whether the
Yugoslav army gave assistance to the armed forces of the Republika Srpska in the period prior to
the attack on Srebrenica. The view taken is th at there was no hard evid ence of such assistance.
Moreover, the report does not contain any suggestio n that the Belgrade Government had advance
knowledge of the attack.
176. In the Epilogue to the report the Institute stated the following conclusion: “There is no
evidence to suggest any political or military liaison with Belgrade, and in the case of this mass
murder such a liaison is highly improbable.” (Epilogue, point 10).
V. The attitude of Milosevic as President of the Federal Republic of Yugoslavia
177. There is reliable evidence of the conduct of President Milosevic when faced with an
humanitarian crisis. The evidence consists of th e urgent telephone call made by Milosevic on
16April 1993 to Lord Owen, who was a Co-Chair man of the International Conference on the
Former Yugoslavia.
178. Lord Owen describes the episode in his statement, in written form and dated
September2003, to the ICTY. With reference to the conditions in the Muslim-held enclave at
Srebrenica, Lord Owen states:
“General Philippe Morillon’s brave a ttempt to do something has been well
chronicled. What that personal initiative demonstrated for the future, however, was
that there was no way that we would get the Bosnian Serbs to lift their blockade unless
there was true demilitarisation and such de militarisation was politically unacceptable
within the Security Council, largely because of the opposition of the Bosnian
Government in Sarajevo and the Muslim commander in Srebrenica.”
179. Lord Owen then quotes in his statement to the ICTY the relevant passage from his
book, Balkan Odyssey. The passage reads as follows:
“On 16 April I spoke on the telephone to President Milosevic about my anxiety
that, despite repeated assurances from Dr. Ka radzic that he had no intention of taking - 14 -
Srebrenica, the Bosnian Serb army was now proceeding to do just that. The pocket
was greatly reduced in size. I had rarely h eard Milosevic so exasperated, but also so
worried: he feared that if the Bosnian Serb troops entered Srebrenica there would be a
bloodbath because of the tremendous bad blood that existed between the two armies.
The Bosnian Serbs held the young Muslim commander in Srebrenica, Naser Oric,
responsible for a massacre near Bratun ac in December 1992 in which many Serb
civilians had been killed. Milosevic be lieved it would be a great mistake for the
Bosnian Serbs to take Srebrenica and promised to tell Karadzic so. He did not think
we would be able to get Canadian troops into Srebrenica for some time but thought we
might be able to negotiate UN monitors. I agreed to meet Milosevic in Belgrade for
lunch on Wednesday, 21 April.” ( Balkan Odyssey, 1995, p.143; Lord Owen’s
Statement, pp. 35-36).
180. This exchange with Milosevic was conf irmed by Lord Owen during the evidence in the
ICTY on 3 November 2003 (Transcript, pp. 28411-28412, 28415-28416).
181. In this same general context, there was a significant exchange in the ICTY on
4 November 2003. The accused Milosevic asked the following question of Lord Owen:
“Q. Well, Lord Owen, I quoted Morillon and said that I too don’t believe that he
ordered the massacre, and that is what Morillon says, that he doesn’t believe it
either. But let’s move on. Speaking about what you knew from 1993 or, rather,
what he knew on the basis of 1993 and Morillon’s testimony in parliament and the
amassed hatred, Morillon adds: ‘I informed Belgrade too. I went to see Milosevic
and told him this is what is going to happen. He helped me. What I ⎯ that I had
won that battle then that was thanks to the position taken by Milosevic, but New
York was also kept au courant.’ So I assume you know about that as relating to
1993.
[So that was the 1993 not very articulate question asked by Milosevic. And Lord Owen answers.]
A. Mr. Milosevic, I made it quite clear, and many people don’t like me saying it, but I
do believe that you were very helpful in 1993 in stopping General Mladic going in
and taking Srebrenica. And I rang you up personally. You were also under many
representations of other people, and I believe the record is quite clear that you did
intervene and you were of considerable help in that situation. I think you were
well aware of the great danger for the reputa tion of the Serbs. If they had gone
into Srebrenica, there would have been very bitter street fighting. The grudge
match that existed around Srebrenica between ⎯ over Bratunac and others would
have spilled over into a very, very nasty scene. And I do not know what
representations if any were made to you in 1995 or what were the circumstances.
As I say, I was no longer a negotiator. But I think it is the most shameful single
episode to have occurred in Bosnia-Her zegovina, the massacre around Srebrenica
in 1995 . . .”
And that is the answer Lord Owen gave.
182. The answer from Lord Owen ends w ith criticism of the safe areas policy as
implemented in practice.
183. This evidence of the attitude of the President of Yugoslavia in 1993 is of obvious
significance. It is well authenticated and is impossible to deny. - 15 -
There is further strong evidence of the contemporary view of the role of Milosevic in a key
period. It is a matter of public knowledge that President Milosevic played a major role in the
negotiations which took place during the Dayton Conferen ce. It is absolutely clear that in that
context he was not characterized as a war crimin al. Indeed, other participants subsequently
indicated the significant role of Milosevic in developing the architecture of the political settlement.
VI. Conclusion
184. That concludes my examination of the evidence which provides substantial
confirmation of the non-involvement of the Belgra de Government in events alleged to have
occurred in Bosnia. The evidence derives from various independent sources:
(a) the decisions of the ICTY involving charges of genocide;
(b) the opinion of Lord Owen on the relations between the Bosnian Serb leadership and Milosevic;
(c) the very substantial report of the Netherlands Institute for War Documentation on Srebrenica;
and lastly,
(d) the evidence of the attitude of Milosevic as President of Yugoslavia in face of events in Bosnia.
185. Each of these sources is impressive and cogent weighed individually. Taken as a group
their probative value is enhanced by the consistency and mutuality the sources exhibit.
G. R EBUTTAL : THE EXTERNAL MILITARY ASSISTANCE PROVIDED TO
THE REPUBLIKA SRPSKA
I. Introduction
186. The applicant State approaches the issu e of attribution on the following basis.
According to Bosnia, in spite of the withdrawal of JNA forces from Bosnia and Herzegovina on
19 May 1992, the authorities in Belgrade continued to control Serbian armed forces and institutions
in Bosnia and, consequently, the Republika Srpska was merely the agent of the Government of the
Federal Republic of Yugoslavia. This thesis is expounded in Chapter 8 of the Reply of Bosnia and
was featured of course in the oral argument.
187. The Bosnian argument is based upon a series of related assertions, as follows:
(a) First, the refusal to recognize the political status and role of the Republika Srpska in the period
following the political disintegration of Yugoslavia. - 16 -
(b) Second, the allegation that the Republika Srpska was represented exclusively by the Belgrade
Government in the political negotiations of the International Conference on the Former
Yugoslavia and again in the proceedings of the Dayton Conference.
(c) Third, the redeployment of JNA troops within Bosnia.
(d) Fourth, the fact that members of the JNA joined the newly formed army of the Bosnia Serbs.
(e) And last, the assistance given by the JNA to the armed forces of the Republika Srpska.
188. The issues raised in points (a) and (b) have been considered already. I shall now deal
with the other issues.
II. The external assistance provided to the Republika Srpska
189. According to the Reply of Bosnia and He rzegovina, the Republika Srpska received the
following forms of assistance from the Belgrade authorities.
(a) The provision of military assistance in the form of arms and communications equipment.
(b) The accession to requests by the Bosnian Serbs to provide military units to protect particular
communities within Serb inhabited areas.
(c) The seconding of personnel from the JNA to the armed forces of the Republika Srpska.
(d) The provision of financing for the officer corp s of the Republika Srpska armed forces, and the
provision of the pertinent benefits and promotions.
190. These assertions appear in the Bosnian Reply, Chapter 8, and also in the indictment of
Momcilo Perisic dated 22 February 2005. For the purposes of the legal argument, and to assist the
Court, I shall proceed on the basis that the assertions of fact are true. However, on behalf of the
respondent State, the legal inferences drawn by the other side are rejected.
Madam President, I shall base my argument upon a series of propositions.
(a) First: In any case, the Belgrade authorities had no control over the Republika Srpska at the
material time
191. The provision of assistance to the Republik a Srpska cannot as such prove the existence
of external control by the Federal Government of Yugoslavia over the actions of the Republika
Srpska. The available evidence, from diverse sour ces, contradicts the existence of control from
Belgrade and this evidence has been reviewed already. - 17 -
(b) The second proposition: The circumstances in which the assistance was given included the
likelihood of acts of genocide directed against Bosnian Serbs
192. The progress made by the secessionist arme d forces in Croatia and Bosnia gave rise to
fears on the part of the Bosnian Serbs which were justified by the recent history of the region.
193. The Bosnian Reply refers to intercepted telephone conversations involving Serb leaders
of May and August 1991 (see pp. 475-478, paras. 25-30). The situation is described in the Bosnian
Reply as follows: “At that time, the former Y ugoslavia still existed as such and the fighting had
not broken out yet. The war in Slovenia, for exam ple, erupted one month later, on 27 June 1991.”
(P. 475, para. 26.)
194. Consequently, the situation involves lead ing Serb political figures within a still unified
Yugoslavia formulating contingency plans for a future in which Serb communities would be
threatened by secessionist forces. It is difficult to see what relevance such evidence has in relation
either to the issue of attribution or to the issue of genocide as such.
195. The conversation of 29May1991 ⎯ referred to in the Reply at page475 ⎯ involves
concern for the future of Serbs in Sipovo, Mrkonj ic Grad and Kupres. In the region of Kupres
attacks by Muslim-Croat forces began in ear ly April1992 (Yugoslav Counter-Memorial,
pp.447-454, para.7.1.13.0) and various atrociti es resulted. In the region of Mrkonjic Grad and
Sipovo Muslim-Croat attacks began in June 1992 an d were followed by atrocities against civilians
(ibid., pp. 632-633).
196. The simple truth is that the telephone conversation in May 1991 between politicians
familiar with the history of the region involved an experienced and intuitive judgment that the Serb
communities were under a serious threat if the secessionist tendencies were to develop further. Far
from the conversation having a sinister purpose, it prefigured the imminent danger to Serbs in the
region.
197. In the same vein, the Bosnian Reply giv es prominence to the diary of Petar Jankovic, a
member of the Serb political party, SDS, in Bosn ia (Reply, pp. 478-482, paras. 31-36). The diary
relates to the period from 12 January 1991 to 24 Jan uary 1992. The diary was adduced to establish
that in this period the lawful Government of Y ugoslavia was, at the request of groups of Serbs
living in Bosnia who felt threatened by potentia l developments, willing to supply weapons. There - 18 -
is not the slightest hint in the material quoted by the Bosnian Government either that the requests
for arms, or the decision to supply arms, had any connection with a plan involving genocide.
198. These defensive preparations involve reference to specific places: namely, Kalesija and
Tuzla. As the Yugoslav Counte r-Memorial shows, Muslim attacks in the Kalesija municipality
began on 2 May 1992 (pp. 627-630, para. 7.1.51.0). Many at rocities were committed in the Tuzla
region, beginning in May1992 (Counter-Mem orial, pp.500-504, 927-932, and 995-998).
Reference is also made to people from Zvornik seeking arms. In the Zvornik commune Muslim
armed forces first attacked in January a nd April1992 (see the Yugoslav Counter-Memorial,
pp. 505-513, and 897-898).
199. It is thus apparent that the desire toacquire means of defence in 1991 reflected an
objective threat. And it also becomes clear that the concerns of the Serb leaders did no more than
reflect the justified fears of the Serbs living in Bosnia.
200. The atmosphere of the period is conveye d by the document actually given prominence
in the Bosnian Reply. This is a request from a Serbian association, addressed to the Chief of Staff
in Belgrade, asking for the provision of military assistance. It is dated 22 January 1992 and reflects
the gloomy expectations of Bosnian Serbs in the wake of the disintegration of the Yugoslav Federal
State. The document reads as follows.
“ASSOCIATION OF THE SERBS
FROM BOSNIA AND HERZEGOVINA
IN SERBIA
11000 BELGRADE
Terazije 3/9
FEDERAL SECREATARIAT FOR
PEOPLE’S DEFENCE [Yugoslav Ministry
of Defence in Belgrade]
(- attn. Chief of General Staff
major-general Blagoje Adžić)
‘Reference: Placement of a military unit in the territory of municipality of
Kupres [central Bosnia], . . . for the prevention of the genocide over the Serbs
‘Municipality of Kupres lies at the farthermost south of Bosankska Krajina
[region in the northwest of Bosnia a nd Herzegovina] and is surrounded by the
municipalities populated by Catholic and Muslim population: Gugojno, Duvno and
Livno.
In the 2nd World War neighbouring Mus lim and Catholic population attempted
to commit genocide over the Serbs, but, fort unately they succeeded only partly. By - 19 -
such attempt the number of Serb populati on was reduced, and after-war colonisation
in Vojvodina [north Yugoslavia] contributed to their reduced number as well.
By the beginning of this century 70% of population of Kupres were Serbs,
while today there are only 51% of them. The overall population is some 11,000.
High percentage of the presence of Catholic and Muslims in the very
municipality, its encirclement by such co mmunities as well as close vicinity of
Catholic West Herzegovina, speaks in favour of the necessity to protect the Serb
population in the municipality of Kupres.
By the protection of Kupres, the care of the periphery villages in the
municipalities Livno, Duvno and Bugojno, p opulated by the Serbs would be provided
for, because this population suffered a lot during the second world war.” (Letter to
Chief of Staff, Major-General Blagoje Adži ć, signed President Gojko Djogo,
22 January 1992, Annex 124; emphasis added.)
And there is then a description of the strategic significance of the Kupres Plateau, the reception of
troops by the local population and its relation with the local authorities.
201. Having sent this letter out the Bosnian Reply then makes a most unfortunate comment:
“The requested placement of a new JNA unit in the Kupres area was thus
justified on two grounds. Firstly, the JNA tr oops had to be deployed to defend the
Serb population, which in the view of the au thor of the request was threatened with
genocide, just like the one that had allegedly [allegedly] taken place during the Second
World War. Secondly, the ‘Kupres Plateau’ was supposedly of primary strategic
importance.” (Reply, pp. 507-508.)
202. But, Madam President, the genocide duri ng the Second World War did take place. The
principal victims were Serbs living in Croatia, Jews and gypsies. The leading French authority on
the Second World War, HenriMichel, describes the s ituation in the satellite states of Germany.
And he writes:
“On the other hand, in Croatia it was the Fascist Ustashi party that took over
power under its leader Ante Paveli ć that instituted a reign of terror against the Serbs
living in Croatia, the Communists, the Jews and the gypsies. He set up concentration
camps at Jasenova ć and Stara-Gradiska, in which the inmates were regularly
slaughtered. The entire populations of some localities inhabited by Serbs were
massacred, such as those of the village of Suvaja in July 1941.” (Henri Michel, The
Second World War, English translation, 1975, p. 284.)
203. In the Survey of International Affairs 1939-1945 , published by Chatham House, the
historian Elizabeth Wiskemann gives an account of the State of Croatia which includes the
following passage:
“The most positive performance of the Us tasa State was an atrocious series of
massacres; the Serbs in Bo snia, and Jews, wherever they were found, were the
victims of the unbridled fury of the savage Praetorians of Paveli ć, ably seconded by
groups of Muslims from Bosnia; it was like a new religious war with Catholics and - 20 -
Muslims allied against the Orthodox and the Jew s. It seemed little else but ironical
that in the spring of 1942 the Poglavnik [that is the ruler] should establish a Croat
Orthodox Church in order to control more tightly those Serbs who had survived the
massacre.” ( Survey of International Affairs, 1939-1945, Hitler’s Europe , ed. by
Arnold Toynbee and Veronica M. Toynbee, 1954, pp. 649-650.)
204. This, Madam President, Members of the Court, constitutes the pertinent historical
background. In the Bosnian region in the late tw entieth century any form of protracted political
turbulence was likely to produce inter-communal vi olence. It was to be expected that the
communities newly exposed as a consequence of secessions and civil war would seek to take
defensive measures. The letter of 22 January 1 992 given prominence in the Bosnian Reply makes
express reference to the events during the Second World War and the genocidal threats to the Serbs
in that era.
(c) The Yugoslav military documents, 13 December 1991 to 20 March 1992
205. My third proposition relates to the re buttal of Bosnian assertions based upon captured
documents. The chapter on the question of attri bution in the Bosnian Reply gives emphasis to a
series of captured Yugoslav milita ry documents relating, according to their dates, to the period
from 13December 1991 to 20 March 1992 (pp.484- 498, paras.40-58). These documents, it is
asserted, prove the “JNA’s massive involvement in the distribution of arms” (p. 484).
206. The importance of these documents is difficult to see. They tend to confirm the account
of the period of transition described in the Y ugoslav Counter-Memorial (C hap. III, pp. 245-258).
After the loss of Croatia and the clear indications of secessionist tendencies in Bosnia, the JNA was
involved in various forms of co-operation with the Serb communities in the relevant areas of
Bosnia and Herzegovina. None of these activities involved any preparation for activities contrary
to principles of international law and, it is n ecessary to recall, Bosnia and Herzegovina did not
become independent until 6 March 1992.
207. The documents relate exclusively to ac tivities which were lawful and, in all the
circumstances, perfectly reasonable.
(d) The alleged Yugoslav military involvement in Bosnia and Herzegovina before 19 May 1992
208. A substantial section of Chapter 8 of th e Bosnian Reply is concerned with the military
involvement of the JNA in Bosnia and Herzeg ovina prior to the withdrawal of the JNA - 21 -
(pp. 498-572). In this connection it may be reca lled that as a matter of fact the JNA was no longer
in general control of Bosnia by May 1992, when Muslim and Croat military formations began
attacking JNA units in Bosnia. The final withdrawal of the JNA was completed on 19 May 1992.
209. This lengthy section in Chapter8 of the Bosnian Reply calls for very cautious
evaluation. In particular, the following factors will be found to render the material either irrelevant
or seriously unreliable.
210. First: The account fails to accept that by Ma rch 1992 the Yugoslav Government no
longer had control of Bosnia as a whole. Otherwise, on what grounds did the Court and other
agencies recognize the independence of Bosnia and Herzegovina on 8March 1992? And,
according to the Bosnian Reply “the genocidal conflict” did not erupt until April 1992 (p.501,
para.67). The report by General Kukanjac, da ted March 1992, shows that the JNA was already
withdrawing from the Muslim and Croat areas of Bosnia (Reply of Bosnia, Ann. 120).
211. Second: The entire period of the disintegration of former Yugoslavia is caricatured.
Every reaction of the JNA to the crisis, which ha d been engineered externally, is represented as a
form of aggression and every redeployment of the JNA is portrayed as a threat. In reality, the JNA
was throughout reacting to initiatives, political and military, taken by others.
212. Third: There is no evidence of any preparati on for genocidal acts. As the Bosnian
Reply itself admits: “The main aim of the JNA was, after all, the protection of the Serb people in
Bosnia and Herzegovina and ‘the location of the JNA forces was to be adjusted accordingly’.”
(Reply, p. 505, para. 73.)
213. In the light of subsequent developments, this policy was fully justified.
214. Fourth: The various accounts given in the Bosn ian Reply of military activities by JNA
units (pp. 518-541, paras.84-113) relate to episodes in a civil war and nothing more. The
numerous documents advanced by the Bosnian Govern ment in this section of the Reply contain no
evidence of genocidal intent. In light of the fact that these appear to be official documents of the
JNA they constitute direct eviden ce of the absence of genocidal intent. As the documents make
clear, they are concerned exclusively with “combat activities” ⎯ see, for example, the document
dated 7April1992 (Reply, pp.524-525, pa ra.91). The hostile documents quoted from - 22 -
non-Yugoslav sources refer to “Muslim resistance fo rces” (see the Reply, p.530, para.98). The
commentary itself constantly refers to “military operations”.
215. Episode after episode recounted in the Bosnian Reply relates to the military activities of
the JNA in the chaotic period in April 1992 when the Yugoslav forces were on the defensive and
were on the point of withdrawal. In the television interview with a former JNA commander
invoked by the Reply, the key point is that thinterviewer, speaking on behalf of the Bosnian
Serbs, is upbraiding Kukanjac for the failure of the JNA to provide adequate protection to the Serb
residents of Sarajevo (Reply, p.540, para.113).And, in any event no JNA members have been
indicted for crimes in respect of the period prior to 19 May 1992.
(e) Conclusion
216. I have completed this part of my argum ent and by way of conclusion I now present two
related propositions. First, in the circumstances it was lawful for th e JNA forces to be deployed in
Bosnia to provide protection to the long-estalished Serbian communities in the region. And
secondly, as I have argued earlier, the provisionassistance by Belgrade did not establish the
existence of control from Belgrade.
217. Madam President, I must now move on to the task of rebutting the Bosnian arguments.
And first of all the rebuttal of the allegations th at units of the Yugoslav armed forces assisted the
armed forces of Republika Srpska after the evacuation of Bosnia by the JNA was completed on
19 May 1992.
H. REBUTTAL : THE ALLEGATIONS THAT UNITS OF THE Y UGOSLAV ARMED FORCES
ASSISTED THE ARMED FORCES OF REPUBLIKA S RPSKA AFTER 19 MAY 1992
218. The Applicant makes major allegations to th e effect that the JNA, that is, the Yugoslav
regular armed forces, gave assistance to theRepublika Srpska subsequently to 19 May 1992.
These allegations, as presented in the Reply, are as follows:
(a) First, the redeployment of Yugoslav army units within the Republika Srpska (Reply, Chap.8,
pp. 503-515).
(b) Second, the movement of troops from Yugoslavia (ibid., pp. 515-518). - 23 -
(c) Third, the merging of Yugoslav units ⎯ left within Bosnia by the secessionist process of
1991-1992 ⎯ and the armed forces of the Republika Srpska (ibid., pp. 553-573).
(d) Fourth, incidents after 19 May 1992 involvi ng Yugoslav units seconded to the army of the
Republika Srpska (ibid., pp. 580-596).
(e) And lastly, assistance to the Republika Srpska by the Yugoslav Air Force (pp. 581-583).
219. Some of these matters I have dealt with already. However, for the present the specific
focus is the question of legal responsibility in resp ect of any armed forces seconded to the army of
the Republika Srpska, and the general question of assistance by the FRY to the new State of
Republika Srpska.
220. At the outset a clear denial is necessary. There is no evidence that the Republika Srpska
was controlled by the Government of the FRY, and it must now follow that the army of the
Republika Srpska was not controlled by the army of the FRY. In consequence, the respondent
State denies that any action of the army of the Republika Srpska was planned, directed or
controlled by the FRY. This denial is significan t for many reasons, and not least the nature of
Chapter8 of the Bosnian Reply, which constitut es a farrago of legal and factual confusions and
rests upon baseless assumptions.
221. The assumptions made in the Reply exhibit a mixture of naivety and strong prejudice.
If the list of allegations made on behalf of Bosnia is perused, it becomes immediately apparent that
the episodes and developments rehearsed were prim a facie lawful. In the circumstances of the
disintegration of Yugoslavia, what was to be ex pected? What were Serbs from Bosnia, who were
members of the old FRY armed forces, supposed to do? Was it unlawful or sinister that they
should participate in the formation and protection of the Bosnian Serb State? Of course not.
222. Chapter 8 and the Reply as a whole are characterized by the assumption that anything
Serbs did, either as individuals, or as a community, was unlawful. And yet the assistance provided
by the FRY to the Republika Srpska and its ar med forces was perfectly compatible with the
principles of general international law and the provisions of the United Nations Charter.
223. Assistance to a State or to irregular forces, such as the contras, is not sufficient for the
attribution of acts committed by the State or by the irregular forces, unless there is effective control - 24 -
exercised by the assisting State. This is the prin ciple formulated in the Judgment of this Court in
the merits phase of the Nicaragua case.
224. The substance of Chapter 8 of the Bosnia n Reply relates directly to the subject-matter
of the key passages in the Judgment. Madam Presid ent, let it be assumed for the sake of argument,
that the FRY was involved to a certain extent in the financing, organizing, training, supplying and
equipping of the army of the Republika Srpska. This would still not be sufficient for the purpose of
attributing to the FRY the acts committed by the armed forces of the Republika Srpska.
225. MadamPresident, the practice of providing such assistance is very familiar and is an
aspect of numerous treaties of mutual security, both bilateral and regional. Moreover, it is a matter
of public knowledge that the armed forces of Bosnia received external assistance from friendly
sources.
226. I quote the key passage from the Nicaragua Judgment as follows:
“The Court has taken the view (paragraph110 above) that United States
participation, even if preponderant or decisi ve, in the financing, organizing, training,
supplying and equipping of the contras, the selection of its military or paramilitary
targets, and the planning of the whole of its operation, is still insufficient in itself, on
the basis of the evidence in the possession of the Court, fo r the purpose of attributing
to the United States the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. All the forms of United States participation
mentioned above, and even the general cont rol by the respondent State over a force
with a high degree of dependency on it, would not in themselves mean, without further
evidence, that the United St ates directed or enforced the perpetration of the acts
contrary to human rights and humanitarian la w alleged by the applicant State. Such
acts could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United States,
it would in principle have to be proved that that State had effective control of the
military or paramilitary operations in the course of which the alleged violations were
committed.” (I.C.J. Reports 1986, pp. 64-65, para. 115; emphasis added.)
227. The contents of Chapter 8 of the Reply do not provide sufficient proof for the purpose
of attributing acts of the Republika Srpska to the FRY.
228. In examining the question of assistance provided by the FRY certain issues remain to be
addressed.
229. First, the role of paramilitary units. The ro le of paramilitary units in the conflicts of the
period 1991 to 1995 varied considerably. Some were volunteers who for certain periods were
accountable to no higher authority. In other cases the paramilitaries may have taken part in joint
military action with regular armed forces. In some circumstances paramilitary groups were - 25 -
incorporated into the regular armed forces and thereupon formed a part of the same command
structure.
230. The treatment of the role of paramilitary units in the Bosnian Reply is superficial and
there is a complete failure to address the key issu es of State responsibility. The relevant section of
the Bosnian Reply can be analysed in terms of the following segments.
2i3st., Introduction at pages 612 to 616. This Intr oduction fails to address the issues
of State responsibility, and relies principally upon journalistic sources as evidence. The
Introduction also appears to make the assumption th at the creation of or provision of assistance to
paramilitary forces is unlawful per se. Much of the material is concerned with political themes.
232. Second, the section on Arkan’s Serbian Volunteer Guard at pages 616 to 620. This
contains much political information and is not based upon reliable evidence.
233. Third, the section on Seselj’s Serbian Cetnik Movement at pages 620 to 625. This
section is also devoted to political description and avoids precise legal analysis.
234. Fourth, the section entitled “Arkan and Sesej’s Paramilitary Military activities in Bosnia
and Herzegovina”, pages 625 to 631. The text is not intended to apply the relevant principles of
State responsibility and is devoted to a simple description of the activities of the paramilitary
groups.
2i3t., the section entitled “Yugoslavia’s continuing support for and control over Arkan
and Seselj” at pages 631 to 636. In spite of the promise of relevant material the content of this
section is disappointing and based almost exclusiv ely upon journalistic accounts. If these sources
were to be accepted as reliable, they only indi cate that, on some occasions, the Serbian armed
forces provided weapons and training.
236. Sixth, the section on the publication in th e Belgrade press of obituaries of paramilitary
casualties at pages 636 to 639. This material shares the common characteristic of this part of the
Bosnian Reply in that it is divorced from the relevant principles of State responsibility.
237. Seventh, the next section is entitled “The Yugoslav paramilitary units were responsible
for the most evil atrocities” (pp.639-644). As w ith previous sections there is no serious effort
made to establish that the paramilitaries concer ned in the activities reported were a part of the - 26 -
command structure of the Serbian army or otherw ise under instructions from the Government of
Belgrade.
238. The treatment of the issue of paramilita ry units in the Bosnian Reply leads to the
following conclusions.
(a) First, in general the applicant State has not even begun to satisfy the standard of proof.
(b)Second, the entire legal perspective is distorted by the assumption that the formation of
paramilitary units was unlawful in terms of international law.
(c) Third, no account is taken of the fact that th e Republika Srpska was independent of the Federal
Republic of Yugoslavia in the material period.
(d) And fourth and last, no attempt is made to appl y the criteria relevant to the generation of State
responsibility. In this connection no single re ference is made to the question of effective
control or to the existence of a command structure.
239. In any event, there were a limited number of actions by the Serbian MUP in the territory
of the Republika Srpska and with the permission of that Government.
240. There is a certain amount of evidence to th e effect that Serbian Security Police units of
the FRY were seconded to the Republika Srpska for short periods. These units of the Serbian MUP
included a Unit for Special Operations. However, th e actions of such units could be attributed to
the FRY only if, when secondment took place, they remained a part of the command structure of
the FRY armed forces.
241. In any event, the actions of such un its, seconded to the armed forces of the Republika
Srpska, would constitute a form of lawful assist ance. Moreover, there were very few occasions
when such action by seconded units took place.
242. And in conclusion on the topic of assist ance, MadamPresident, I would point to the
egregious double standards adopted by the applicant State. Thus, in the Reply, the appearance of
the new State, the Republika Srpska, is presented in exclusively pejorative terms as a form of
Serbian subversion, which involved the distribution of arms to Serb volunteers and to members of
the Territorial Defence Forces. And yet in th e conditions of the time and the appearance of
secessionist states in Croatia and Bosnia itself, such activity was a natural response to events. - 27 -
243. This treatment in the Reply of Serbian responses to the disintegration of Yugoslavia is
to be contrasted with the description in the Bosnia n Reply of events in Slovenia and elsewhere.
The Reply has this to say in paragraph 17:
“17. The 1991 order to hand over all ar ms under the control of the Territorial
Defence was given in all republics of the form er Yugoslavia, but with varying result.
In Slovenia, for example, the order was ge nerally ignored. In Croatia, it was partly
complied with; the Territorial Defence fo rces in Croatia handed over approximately
half of their weapons. In Bosnia and He rzegovina, the order was carried out almost
completely, with the exception of those areas in western Herzegovina with
predominantly Croatian populations (Dr. Milan Vego, The Army of Bosnia and
Herzegovina, Jane’s Intelligence Review, February 1993, p. 63, Annex 101).
18. The response to the June 1991 order determined the future of the various
republics of the former Yugoslavia. Sloveni a, as was also explained in the Memorial,
gained its independence with relative ease in the first stages of the fighting (Memorial,
Section 2.3.2, pp.62-64, paras.2.3.2.1-2.3.2.4). There, in the summer of 1991, the
JNA suffered a humiliating defeat in ten days. This defeat of the JNA was primarily
due to the fact that the Slovenian author ities had succeeded in creating an effective
national army. This national army was almost exclusively armed with weapons which
had once belonged to the Territorial Defence forces. Croatia was less successful in its
struggle for independence, as the JNA, Serb ian based [para]military units and the
Croatian Serbs succeeded in carving out larg e parts of the territory of the newly
formed independent state of Croatia. S till, the Croatian military managed to offer
some resistance, in sharp contrast with the authorities in Bosnia and Herzegovina who
were not able to organise any opposition at all.”
244. And thus it can be seen, Madam President, that when the process of separation and the
formation of national armed forces occurred in Slovenia and Croatia, this is presented as a
foreseeable and entirely natural political devel opment. But, when the newly exposed Serb
communities in Bosnia go through an identical pr ocess, this is stigmatized by our opponents in
these proceedings.
245. In concluding my argument on the questi on of military assistance, two other issues call
for some attention. The first concerns the asserti ons to be found in the Reply relating to elements
of co-operation in banking and monetary matters between the Federal Republic of Yugoslavia and
the Republika Srpska (Reply, pp. 274-85). The s ubject was developed at length by Mr. Torkildsen
who proved to be an expert witness presented as counsel (CR2006/9, pp.22-49). This speaker
introduced a sheaf of documents which conveyed th e information that the three Serbian territories
had reacted to the political and economic turbulen ce caused by secessionist activities in the region,
and the appearance of separate Serb republics, by making practical arrangements for mutual
assistance. - 28 -
246. The documents confirm the separate existe nce of the Republika Srpska. The relevant
documents include the Decision on the Adoption of the Rebalance of Republika Srpska Budget for
1993, and the Official Note of the Governors of the National Banks of Yugoslavia, Republika
Srpska and the Republic of Serbian Krajina, held on 12 May 1994.
247. Madam President, the documents, and the arrangements they envisage, only make sense
if these are separate national entities, which agree to a form of co-operation. These arrangements
would be normal even in a time of peace. Mo reover, it is the monolithic perspective adopted by
our opponents which results in the facile assumption th at such financial arrangements were illegal.
The arrangements were published in the Official Gazette and it is not the case, as alleged by
Mr. Torkildsen that the financing was done in secrecy.
248. The second issue concerns the military assistance provided to the Government of
Bosnia and Herzegovina by third States, which co mmenced as early as 1991, and to this question I
shall now turn.
I. The military balance and the substantial military assistance obtained
by the Bosnian Government from third States
249. It would be clear to the Yugoslav authoriti es that the substantial flow of arms to the
Bosnian Muslims in the early stages of the disinteg ration of Yugoslavia could seriously affect the
military balance. In the circumstances, it must be obvious that the provision of assistance to the
Serbs of Bosnia and their new State was an inevitable reaction to events.
250. The military and political situation in the Bosnian region was complex and the
complexities included a considerable element of mutual assistance between the Bosnian Muslims
led by Izetbegovic and the Croatian Government. This assistance involved the use of Zagreb
airport as a facility for transport of military supplies, destined for the forces of Mr.Izetbegovic,
from friendly third States.
251. The question impinged on the activities of DavidOwen as the Co-Chairman of the
International Conference on the Former Yugoslavi a. Referring to the period of September1992,
Lord Owen records his reactions in his book Balkan Odyssey:
“In Zagreb President Tudjman told us about the Iranian cargo aircraft, a
Boeing747, that had landed on 4 September with a declaration that it was carrying
relief supplies but was found also to hold significant quantities of various kinds of - 29 -
armaments. Tudjman’s motivation in telling us was mixed, for this was not the first or
by any means the last Iranian plane to land in Croatia with arms. Already the Croatian
government had become skilled at evading the arms embargo which had been applied
to them ever since 25September 1991 by United Nations Security Council
resolution713. They extracted a heav y price for being an arms conduit to
Bosnia-Herzegovina, either in terms of money from the Bosnian government or by
demanding 50 per cent or more of the arms for themselves; sometimes both. The
land-locked Bosnian government forces, mainly Muslim, were dependent on the
Croats. Yet when people talked of lifting the arms embargo for the Bosnian Muslim
forces, they neglected to say that this could only happen with Zagreb’s agreement, and
that would mean lifting it for the Croats too. A selective lifting for the Bosnian
Muslims was at that stage in the war totally impossible. Moreover, West European
governments and the United States tolerated and indeed in some cases condoned the
Croatian government bringing arms and mat erials in, by road through Hungary and
Slovenia and by plane and sea in the earl y stages of the conflict. Nor did they do
anything to stop the Croatians then transferring arms on into Bosnia-Herzegovina, for
there were no UN or other monitors on the border with Western Herzegovina or
Posavina. These rarely acknowledged facts put the discussions surrounding the arms
embargo in a better perspective. There was no effective restriction on Croatia
building up effective armed forces, and it was Croatia who then controlled the
quantity and quality of the arms that moved into Bosnia-Herzegovina to increase the
effectiveness of the Bosnian Muslim forces.” (P. 47; emphasis added.)
252. These questions of fact are dealt with also in an appendix to the Srebrenica report by the
Netherlands Institute for War Documentati on. The appendix has been prepared by
ProfessorCeesWiebes, a professor at Amsterdam Un iversity and the title is “Intelligence and the
war in Bosnia 1992-1995”: The role of th e intelligence and security services, Chapter 4 ⎯ Secret
arms supplies and other covert actions; Appe ndix II to the NIOD Report entitled “Srebrenica a
‘safe’ area”. (Available in English at www.srebrenica.nl/en/a index htm)
253. This report confirms the picture provide d by Lord Owen, and refers to an agreement
concluded by Izetbegovic directly with Teheran in October 1992. In early 1993, both Iran and
Turkey supplied arms to Bosnia via Croatia. After an intermission, regular arms supplies from Iran
were resumed on 4 May 1994. The report makes clear the fact that by this stage the supply of arms
was known to several western governments. Military assistance from unidentified sources took the
form of low altitude drops from C-130 transport aircraft. These flights were known as the “Black
Flights”.
254. There is no need to go into the details. The pattern of foreign assistance is clear and the
evidence available is cogent. There can be little do ubt that the leaders of the Bosnian Serbs were
well aware of the foreign assistance from the early stages of the secessionist conflict. - 30 -
255. MadamPresident, in this particular connection it maybe recalled that in the original
Application in this case, Bosnia requested the Cour t to affirm the right of self-defence, “including
by means of immediately obtaining military w eapons, equipment, supplies and troops from other
States...” This request was accompanied by fu rther requests that the Court should construe the
arms embargo resolution so as not to impair the right of individual or collective self-defence.
Similar requests were included in the subseque nt requests for the indication of provisional
measures. The Court, in the pertinent Orders, explai ned that it only could act in respect of matters
falling within the jurisdiction provided fo r by ArticleIX of the Convention ( Order of
13 September 1993, I.C.J. Reports 1993 , p. 325, paras 42 and 43). The existence of these requests
provides confirmation of the significance of extern al assistance to the military opponents of the
community of Bosnian Serbs.
J. REBUTTAL : AT NO STAGE DID THE GOVERNMENT OF THE FEDERAL REPUBLIC OF
Y UGOSLAVIA FORMULATE OR ADHERE TO A PLAN FOR THE GENOCIDE
OF NON -SERBS IN B OSNIA AND H ERZEGOVINA
256. The Bosnia Memorial and Reply present no adequate evidence of a plan to commit
genocide. The Bosnian Reply consists of 993 pages. In spite of this amplitude, no evidence of any
kind emerges of a plan to commit genocide on the part of the Yugoslav Government, or of any
group within the Government. The Memorial of Bosnia contains a section, pages59 to 94,
concerning “the context of the acts”, which contains no such evidence. The Bosnian Reply,
pages55 to 68, includes a similar section on “thecontext of the war”. The conclusion of this
section of the Reply consists of the following two paragraphs:
“17. The ICTFY (referring to the Tadic case) was correct in combining the
Greater Serbia rhetoric with the imminent threat-to-the-Serbs rhetoric, because these
are two side of the same coin. The right ofthe Serbian nation to a Serb state was,
according to this rhetoric, supported by the need for the Serb people to defend
themselves against the outside (non-Serb) world, which, also according to this
rhetoric, as usual threatened to commit ge nocide against the Serbs. This was a key
message of the Serb propaganda campaign. It was designed to recall memories of
atrocities committed against Serbs in ordeto arouse fears in Serbs everywhere and
prompt them to seek protection with a Greater Serbia.
18. This rhetoric also served to set e tone for the Serb agenda within the
context of a disintegrating Socialist Federal Republic of Yugoslavia. The facts clearly
reveal that the Serb leadership in Belgrade was indeed engaged in an effort to unite the
Serb nation in one Serb State. That this was not just some political programme but,
rather a particular course of conduct aimed to achieve a specific result, became clear - 31 -
as soon as the Serb leadership actually left the stage of rhetoric and entered the stage
of armed conflict.” (Reply, p. 68.)
257. These concluding paragraphs present a very distorted picture of the concerns of Serbian
politicians. But that is not the most important feature. What is important is that no evidence of any
plan to commit genocide is presented. Moreover, at the beginning of the relevant section, the
Bosnian Government makes the following admission:
c“ourse, a political programme proposing one nation for one ethnic group
cannot in and of itself be cons idered incitement to genocide , but such a political
programme can easily be used as part of a political propaganda campaign supporting
the idea of an ethnically pure State. This is exactly what happened in this case.”
(Reply, p. 55, para. 4; emphasis added.)
258. The Final Report of the Commission of Experts established pursuant to Security
Council resolution780 of 1992 makes no reference to a plan for genocide. The Report is dated
27 May 1994 and the final session of the Commission was from 11 to 15 April 1994.
259. The report of the Secretary-General submitted pursuant to Security Council
resolution 1010 1995 contains no reference to a plan. The report relates to the events in Srebrenica
and Zepa and is dated 30 August 1995.
260. On 15 November 1999 there was published the report of the Secretary-General pursuant
to General Assembly resolution53/35. This repor t is substantial, runni ng to 117pages, and is
entitled “The Fall of Srebrenica”. There is no refe rence to the existence of a plan to organize
genocide on the part of the authorities in Belgrade . Madam President, Members of the Court, in
this type of document, if there had been a plan one would expect it to be referred to.
261. The only material alleged to provide evid ence of a plan to commit genocide relates to
the “RAM” Plan and the concept of a Greater Serbia . There is no sufficient evidence to establish
that either of these projects, assuming they ever ex isted, related to a plan to organize genocide:
these subjects have been examined already by th e distinguished Agent and will not be pursued
further at this stage.
262. In any event the question of there being a plan is related to the existence of evidence
which contradicts the existence of such a plan. Lord Owen in his memoir, Balkan Odyssey (1995,
pp.134-135) gives his own description of the r eaction of President Milosevic to the possible
seizure of Srebrenica by Bosnian Serb forces in Ap ril 1993. As we have seen, President Milosevic - 32 -
had telephoned Owen, the United Nations negotiator. Owen repor ts that Milosevic was very
concerned, and that:
“He feared that if the Bosnian Serb troops entered Srebrenica there would be a
bloodbath because of the tremendous bad blood that existed between the two armies.
The Bosnian Serbs held the young Muslim commander in Srebrenica, Naser Oric,
responsible for a massacre near Bratunac in December1992 in which many Serb
civilians had been killed.”
263. And so surely, this conduct on the part Milosevic is clearly incompatible with the
view that the political leadership in Belgrade were adherents to a plan for genocide.
Madam President, I would be grateful if we could take a break there. Thank you very much.
The PRESIDENT: Mr. Brownlie, we will return in 15 minutes.
Mr. BROWNLIE: Thank you.
The Court adjourned from 4.15 to 4.30 p.m.
The PRESIDENT: Please be seated. Professor Brownlie.
Mr. BROWNLIE: Thank you, Madam President. I now move on to the next stage of my
rebuttal argument which concerns allegations in the Bosnian Reply of involvement of the Belgrade
Government in the events in Srebrenica.
K. R EBUTTAL : ALLEGATIONS IN THE B OSNIAN R EPLY OF INVOLVEMENT OF THE B ELGRADE
G OVERNMENT IN THE EVENTS IN SREBRENICA
264. On behalf of the respondent State it has been demonstrated that the Belgrade
Government did not have effective control over the Bosnian Serb leadership and, in particular, over
Mladic and Karadzic. It has also been shown that at a critical juncture Milosevic was involved in
seeking to prevent, in April 1993, precisely the type of event which occurred subsequently in 1995.
265. The impressive pattern of evidence of the non-involvement of the Belgrade Government
is not seriously contradicted by the Bosnian Reply. However, more or less in passing, the Bosnian
Government in paragraphs 201 to 205 of the Repl y makes certain allegations. Paragraph 201 reads
as follows: - 33 -
“The continuing co-operation between the Federal Republic of Yugoslavia and
the Bosnian Serbs is also illustrated by th e genocidal attack on Srebrenica, which
initiated [and that is the way it is put] on 6 July 1995, when the Serbs shelled the town
and the surrounding observation posts set up by the United Nations. The attack on the
safe area continued through 11 July 1995, when Serb forces entered the town of
Srebrenica itself. There is ample evidence that Yugoslav Army units were among
those forces. The presence of the Yugosla v Army in Srebrenica was for example
acknowledged by the ICTFY in The Hague , which indicted both Ratko Mladi ć and
Radovan Karadžić for their share in the horrendous slaughter of non-Serbs that
followed the fall of the enclave.”
266. Madam President, the assertion that “[t]he re is ample evidence that Yugoslav Army
units were among those forces” is false. It is clear from other sources, and conceded by the
Respondent, that the forces of the Republika Srps ka included members of the original JNA army
prior to the secessionist developments of 1991 and 1992. But the Reply provides no evidence
whatsoever of any control, least of all effective control, by the Belgrade Government. The Reply
relies heavily upon evidence which cannot be ch ecked, involving briefings to the press by
unidentified “western and Bosnian intelligence s ources” (para.203). Moreover, the evidence
provided by Bosnia fails to indicate that the fo rces on the ground formed part of the command
structure headed by Mladić.
267. The reality is that the available th ird party sources do not support the Bosnian
hypothesis. The following third party sources ma ke no suggestion that th e Belgrade Government
was involved in planning or implementing the murders in Srebrenica.
(a) The report of the Secretary-General pursuant to General Assembly resolution 53/35 dated
15 November 1999 and entitled “The Fall of Srebrenica” (A54/549)
268. This substantial report contains no i ndications that the FRY Government had been
involved in the events in Srebrenica and Zepa. Moreover, the content of the Report does not
indicate that Belgrade had control over the Bosnian Serb leadership. Of particular interest are the
following paragraphs:
“292. The delegate of the Special Representative of the Secretary-General in
Belgrade telephoned the Special Representativ e’s office at 2245 hours to indicate that
he had seen President Miloševi ć, who had responded that not much should be
expected of him because the Bosnian Serbs ‘did not listen to him’. At 2300 hours, the
Force Commander, having spoken to Genera l Tolimir, who had told him that the
offensive action had stopped, requested hi s team to reconvene at 0600 hours the next
morning.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -
373. On 14 July, the European Union negotiator, Mr.Bildt, travelled to
Belgrade to meet with President Miloševi ć and General Mladi ć one week earlier.
According to Mr.Bildt’s public account of that second meeting, he pressed the
President to arrange immediate access for UNHCR to assist the people of Srebrenica,
and for ICRC to start to register those who were being treated by the BSA as prisoners
of war. He also insisted that the Netherla nds soldiers be allowed to leave at will.
Mr.Bildt added that the international co mmunity would not tolerate an attack on
Gorazde, and that a ‘green light’ would have to be secured for free and unimpeded
access to the enclaves. He also demanded that the road between Kiseljak and Sarejevo
(‘Route Swan’) be opened to all non-military transport. President Miloševi ć
apparently acceded to the various demands, but also claimed that he did not have
control over the matter. Milošević had also apparently explained, earlier in the
meeting, that the whole incident had been provoked by escalating Muslim attacks
from the enclave, in violation of the 1993 demilitarization agreement.”
(b) The report of the Netherlands Institute for War Documentation (2002)
269. In this extensive examination of th e Srebrenica murders the Epilogue includes the
following conclusion: “There is no evidence to suggest any political or military liaison with
Belgrade, and in the case of this mass murder such a liaison is highly improbable” ⎯ which I have
quoted earlier.
(c) The judgments of the ICTY relating to events in Srebrenica, namely: Prosecutor v.
Radislav Krsti ć, Trial Chamber; Prosecutor v. Radislav Krsti ć, Appeals Chamber;
Prosecutor v. Blagojević, Trial Chamber I
270. These judgments make no reference to any involvement of the Government in Belgrade
in Srebrenica.
(d) The evidence of the former FRY President Zoran Lilic in the Milosevic trial
271. At this trial the former President of the FRY, Zoran Lilic, denied that Milosevic had had
any role in the events in Srebrenica. The relevant section of the transcript reads as follows:
“Q.After the fall of Srebrenica and when the details of the massacre were discovered,
the accused’s reaction was, as you’ve already told us, but just remind us.
A. Yes. I tried to link that up to the constitution of the centres. And one of the fears
was, in which I issued an order for this to be stopped, that President Milosevic
himself ⎯ actually, I was in a situation in wh ich I could directly at the beginning
of August have intensive meetings to discuss other issues and problems within the
Federal Republic of Yugoslavia. I know that he was personally very upset and
angry, and I think that he was very sin cere in his behaviour and conduct, and he
even said at one point that that leadership from Pale, that they were mad, if they
had actually done that. And I’m quite sure that as far as he is concerned, he could
not have issued an order of that kind. I do believe that Srebrenica, unfortunately,
is the result of individuals who allowed th emselves to perpetrate an act of that
kind, and it is my deep conviction that it cannot be placed in the context of any - 35 -
participation on the part of the Yugoslav ar my at all, and that is why I said that
Mr.Milosevic, which was exceptionally angr y, his reaction was very strong, and
he considered that this kind of beha viour and conduct would worsen our positions
with respect to preparations for the Dayt on Conference. I think he even said that
at one of the meetings. Of course, nob ody would take on this great burden on the
side of the Bosnian Serbs, that is.” (Transcript, 17 June 2003, pp. 22616-22617.)
272. And on 18 June 2003, the same Zoran Lilic again referred to the events in Srebrenica.
He was asked the following question: “I see. Now I want to turn to another topic. Yesterday you
volunteered to us in relation to Srebrenica that certain individuals were responsible. Can you tell
us, please, who those individuals were.” And the answer of former President Lilic was:
“It is difficult that you can expect me to name any individual. That would be
difficult. I don’t think you can expect to do that. But I think that there is individual
responsibility, and I am sure that in the cour se of this trial, you will be able to show
and prove who those individuals were. And I said I was convinced that that kind of
order didn’t come from any political or m ilitary person from Belgrade, and that I’m
complete[ly] sure . . .” (Transcript, 18 June 2003, p. 22668.)
273. This evidence confirms the evidence of Lo rd Owen, already invoked on behalf of the
Respondent, concerning the attitude an d the conduct of the President of Yugoslavia at the material
time.
(e) The evidence of Robert Franken, a Dutch officer present at Srebrenica
274. In giving evidence at the Milosevic trial, this Dutch officer denied the existence of any
evidence whatsoever that the operation in the Srebrenica enclave had been initiated in co-operation
with Belgrade, either in the military or political sense (Transcript, 13November 2003,
pp.29053-29054). Colonel Franken was the Deputy Commander of the Dutch battalion in
Srebrenica at the material period.
275. His answers to the two questions from Mr.Milosevic appear in the Transcript as
follows.
“Mr. Milosevic: [Interpretation]
Q. But anyway, Mr. Franken, do you know that in the last part of the main report of
the Dutch government 2001 in point 10 it says literally, ‘There are no indications
that the action was launched in cooperation with Belgrade either in respect of
political or military coordination.’ Are you are (sic) of that?
A. I’ve read that, yes. I’ve read that [Franken is saying], that’s correct.
Q. [From Milosevic] Is that in keeping with what you know from that period of time?
Does it coincide with your knowledge? - 36 -
A. [From Franken] At least for me, I did not have any evidence that it was launched
in cooperation with Belgrade. And again, I read all kinds of reports and opinions
and papers where all kinds of scenarios were analysed, and so forth. Again, I do
not have any proof that the action, being the attack on the enclave, was launched in
cooperation with Belgrade.” [That was the answer from Franken.]
276. MadamPresident, in my submission, these responses from Colonel Franken constitute
reliable and significant evidence.
(f) The CIA account published in May 2002
277. I now move to the CIA account, published in May 2002, to which I have already made
extensive reference. This is the Central Inte lligence Agency military history of the Yugoslav
conflict entitled Balkan Battlegrounds . In Volume I, under the heading “The Possibility of
Yugoslav Involvement”, the following assessment appears:
“No basis has been established to imp licate Belgrade’s military or security
forces in the post-Srebrenica atrocities. Wh ile there are indications that VJ or RDB
(the Serbian State Security Department) may have contributed elements to the
Srebrenica battle, there is no similar evid ence that Belgrade-directed forces were
involved in any of the subsequent massacres. Eyewitness accounts by survivors may
be imperfect recollections of events, and details may have been overlooked.
Narrations and other available evidence sugg est that only Bosnian Serb troops were
employed in the atrocities and executions that followed the military conquest of
Srebrenica.” (Balkan Battlegrounds, p. 353.)
(g) The intercept evidence presented in the Krstić trial
278. One of the intercepted telephone conver sations, used as evidence in the trial of
General Krstić, provides clear indications to the effect that the VRS, the Republika Srpska forces,
did not act in co-operation with the authorities in the Republic of Serbia ⎯ this is in the context, of
course, of Srebrenica. Right after the fall of the two enclaves, about 600 Muslim refugees fled to
the territory of Serbia Colonel Popovi ć, VRS security officer, attempted to take them over, but he
was denied access to the refugees by the MUP of the Republic of Serbia. During that time the
refugees were visited by Serbian government mini sters, together with representatives of the Red
Cross. Colonel Popovi ć informed General Krsti ć of the event by telephone. According to the
information received from the Red Cross of Serbia, this group of refugees, who crossed the river
Drina after the fall of Srebrenica enclave and en tered the territory of the Republic of Serbia,
numbered about 600 men. The group was accomm odated in the facilities of the Serbian MUP on
Mount Goč, where it was visited by the representatives of the Commission on Missing Persons of - 37 -
the Federal Government of the FRY, the Commission on Missing Persons of BIH, the Red Cross of
Serbia and the International Committee of the Re d Cross, who provided clothes, footwear and
medicines. All persons from that group were enabled to leave for third countries or for the
Federation of Bosnia and Herzegovina.
279. The intercept was presented in the Krsti ć trial as an exhibit number (OTP
Exhibit 853A), and appears in the transcript at pages 8809 to 8810.
(h) Conclusion
280. Each of these sources of evidence is c ogent when weighed individually. The sources
are varied and independent of each other. In th ese circumstances, the consistency of the sources
can only lead to a reliable conclusion. The a llegations contained in the Bosnian Reply, and
repeated in the first round of these proceedings, have no substance.
L. RESPONSE TO CERTAIN ORAL ARGUMENTS
281. Madam President, I would like to move on now to various responses I need to make to
certain of the oral arguments.
282. The first topic is what Mr.van den Bi esen describes as “ethnic cleansing in Eastern
Bosnia” (CR 2006/4, pp. 37-60). The material is in tended to cover Srebrenica and refers to a wide
range of activities, such as arms distribution, as though these were all preparations for the events of
July 1995 (ibid., pp. 37-40).
283. In response, it is necessary to refer to some further passages from the Netherlands
Government report, which do not form part of Mr. van den Biesen’s narrative. If I may quote:
“Throughout the second half of 1992 the Serbs remained on the defensive in
this region. Overall, Muslim fighters from Srebrenica attacked 79 Serbian places in
the districts of Srebrenica and Bratunac. They followed a certain pattern. Initially,
Serbs were driven out of ethnically mixe d towns. Then Serbian hamlets surrounded
by Muslim towns were attacked and fina lly the remaining Serbian settlements were
overrun. The residents were murdered, their homes were plundered and burnt down or
blown up. There was a preference to la unch these attacks on Serbian public holidays
(those of Saint Joris, Saint Vitus and the Blessed Peter, and Christmas Day), probably
because least resistance was expected. Yet it simultaneously contributed to the
development of profound Serbian grievances. Many of these attacks were bloody in
nature. For example, the victims had thei r throats slit, they were assaulted with
pitchforks or they were set on fire.” (P. 910.)
And in another part of the report: - 38 -
“ It is estimated that between 1,000 and 1,200 Serbs died in these attacks, while
about 3,000 of them were wounded . Ultimately, of the original 9,390 Serbian
inhabitants of the Srebrenica district, only 860 remained, mainly in the four villages of
Skelani, Crvica, Petrica and Lijesce.” (P. 910.)
284. The available sources, which I have quoted already, establish the character of the war in
the region and the facts recorded indicate the natu re of the local relations of the communities and
the local origins of the hatreds generated.
285. In the last quotation, it will be noticed th at one of the Serb villages named in the second
quotation is Skelani, in which Serbs still remained . Now, what happened in Skelani in January
1993? There is a clear account available in the CIA publication, Balkan Battlegrounds, which
refers first of all to atrocities by the Bosnian army in various villages east of Bratunac. The
narrative then continues as follows ⎯ and, Madam President, this is quite a long narrative but it
bears a very close relation to a major part of the speech by Mr.van den Biesen but from a
completely different angle to the subject-matter . The subject matter is the same, the angle is
completely different. So in Balkan Battlegrounds, we have the following account:
“On 16 January [this is 1993], Oric followed up this success with an attack
toward the village of Skelani, on the Serbia n border, some 25 kilometres south east of
Srebrenica. The Muslim forces nearly captured it and the entire sector along the
border. It was the Yugoslav Ar my’s Operational Group ‘Drina’ ⎯ controlling a
combination of local VRS troops from the Skelani Battalion and VJ border guard and
territorial defense units from the Uzice Corps, reinforced with regular VJ troops drawn
from the 95thProtection Motorized Regime nt, the 2nd Mechanized Brigade, and
probably the VJ Corps of Special Units ⎯ that managed to halt the Muslims within a
kilometer of Skelani. The Muslims were so close that one of Oric’s men was able to
machine-gun women and children fleeing across the bridge to the Serbian town of
Bajina Basta. By 20 January, the VRS and VJ troops had managed to rescue a VRS
company cut off at the key Jezero hilltop, so me 12 kilometres northwest of Skelani.
Nevertheless, the Muslims were able to c onsolidate their positions and dominate the
village and the border. The Bosnian Army troops also took time to mortar Serbia near
Bajina Basta and the town of Ljubovija. The VRS lost at least 30 soldiers killed and
almost 100 wounded in the fighting.
VRS Preliminary Counterattacks, 26 January-10 February 1993
Reacting to these Muslim successes, the VRS and the VJ rushed reinforcements
to the Bratunac-Skelanic area to bolster VRS defenses and make some preliminary
counterattacks while the VRS Main Staff made preparations for a full
counteroffensive to crush the Srebrenica-Ce rska enclave. In late January, Ljubisa
Savic-Mauzer’s elite Special Brigade ‘Panth ers’ arrived in Bratunac via Serbia. Two
battalions of the 6th Sanske Infantry Brigade were also on the way. The VJ
contributed a military police company from the 95th Protection Regiment and
elements of the 2nd Mechanized Brigade. The Serbian State Security Department
(RBD) appears to have provided a volunt eer reconnaissance-sabotage company from
its special operations unit. By 1 February, the ‘Panthers’, elements of the 1st Bratunac - 39 -
Brigade, and the VJ units were counteratt acking towards the south and south east in
order to give the VRS elbow room ar ound Bratunac and capture the village of
Vojavica so that the town’s water supply could be restored. VJ artillery units provided
fire support from across the Drina River in Serbia. Despite the reinforcements, it was
hard going, and it was not until 10 February that VRS troops were able to storm the
important Caus Hill, overlooking both Bratunac and the Muslim-held industrial suburb
of Potocari. Voljavica remained untaken.
Serb forces also made counterattacks near Skelani to push the Muslims away
from the Serbian border and create some manoeuvring room. A mixed force of VJ
and Serbian RDB special operations troops and Serbian Chetnik volunteers provided
the main striking power. A mixed artillery battalion of the VJ 152nd Mixed Artillery
Brigade backed up the infantry. By 26 Ja nuary, the joint VRS and VJ/Serbian force
managed to create a five-kilometre buffer between Skelani and the frontline. By
30 January, Serb forces had retaken the key Jezero hill. The Serbs then consolidated
their positions.”
And that is the rather long quotation from Balkan Battlegrounds (pp. 386-387).
286. MadamPresident, Members of the Court, it is in this context that counsel for the
applicant State refers to the village of Skelani ( CR 2006/4, pp. 41-45). And it is very instructive to
compare the version provided by Mr.van den Bi esen with the passages I have just quoted. The
argument of counsel for Bosnia relates to the events involving Skelani in January 1993, that are the
same subject of the CIA account, and he relies on the documents submitted on 16 January this year.
But in his account there is not the slightest indication of the background and the necessity in having
co-operation between Serb forces on either side of the Drina River. It would appear that he is
indifferent to the real situation and is assuming th at even defensive actions by Serbs are somehow
culpable.
287. In this framework of co-operation between Republika Srpska and the JNA in
January 1993, document 19 of the documents submitte d on 16 January of this year is of particular
interest. In this document the Commander of the Yugoslav forces involved in defending Skelani
informs his counterpart in Republika Srpska of the schedule for withdrawal. The correspondence
submitted on 16 January and discussed by Mr. van de n Biesen indicates very clearly the existence
of two distinct military commands.
288. The second topic is the question of attr ibution in relation to camps and detention
facilities. MsKaragiannakis gave a flawed account of the facts on 1March (CR2006/5,
pp.22-44). Professor Franck revisited the subject ve ry briefly on 2March. In the context of the - 40 -
camps, the applicant State has faile d to establish that there was an el ement of control in respect of
operations involving genocide as such.
289. I move now to the third topic, namely, the efforts of my opponents to implicate the
leadership in Belgrade in the planning of genoc ide. Two episodes are re lied upon quite frequently
in these hearings by my learned opponents. The fi rst was described by Professor Franck in the
following terms:
“In July 1991, Mr.Babi ć, a leader of the Serb-breakaway Republika Srpska
Krajina, had a conversation with Milosevi ć and Karadzi ć in which the Bosnian Serb
leader develops his plans to bring about their grand design of Greater Serbia, and
Milosević warns Babić not to get in Karadzi ć’s way. He meant: let Karadzi ć do his
dirty work without hindrance. By his own words you will appreciate the total
involvement of Milosevi ć and his cohorts in Belgrade’s massacre of non-Serbs in
Bosnia.” (CR 2006/3, p. 36.)
290. This interpretation of the words apparently used by Mr. Milosevic is extravagant. The
assertion is based upon a highly compressed quotation from the Milosevic Decision on Motion for
Judgement of Acquittal, on 16 June 2004, paragr aph253. This reads as follows ⎯ and this
document and the relevant part of the transcript is in the judges’ folder today. Paragraph 253 from
the Decision on Motion for Judgement of Acquittal reads:
“In July 1991, Mr.Babi ć, Radovan Karadzic, and the Accused had a
conversation during which Radovan Karadzic stated that he would chase the Muslims
into the river valleys in order to link up all Serb territories in Bosnia and Herzegovina.
The Accused warned Mr. Babic not to ‘stand in Radovan’s way’.”
291. Madam President, this short text is a very prejudicial summary of a long series of
exchanges from the transcript of the testimony of Mr.Babi ć before the ICTY. There is no
justification in the transcript for the language repor ted by Professor Franck or for the inferences he
draws. The Court can appreciate the situation for itself by perusing the passages in the transcript.
292. There is a second episode, referred to on several occasions, which the Bosnian side
considers to implicate Mr. Milosevic. Mr. van den Biesen is quoting from the Trial Chamber of the
ICTY in the Judgement on Motion for Acquittal in the Milosevic case. Paragraph 280 of the
judgment states:
“General Clark asked the Accused why, if he had this influence over the
Bosnian Serbs, he had allowed Ratko Mladic to kill all those people at Srebrenica.
The Accused replied, ‘Well, General Clark, I told him not to do it but he didn’t listen
to me.’ General Clark testified that he had regarded the admission as stunning,
because it indeed showed foreknowledge of Srebrenica.” - 41 -
293. Mr. van den Biesen then puts an interpretation on this exchange:
“34. What indeed is not unimportant here is that Miloševi ć, apparently, and not
surprisingly I may add, knew what was going to happen in Srebrenica. We do not
know where and when exactly the conv ersation between Mladic and Milošević which
General Clark referred to took place, but it ca nnot be excluded that this was on either
7 or 15 July, when Mladic, as has been confir med, was in Belgrade at the time of the
takeover of Srebrenica and the killings were at the heart of the matter.” (CR2006/8,
pp. 48-99.)
294. Madam President, this is pure conjectur e and is typical of Mr.van den Biesen’s
resistance to understatement. There is no evid ence that Mr.Milosevic knew in advance of the
massacre. What he did appreciate, as the evidence shows, was the risk of revenge in the light of the
actual history.
295. That is why, as I have already reported to the Court, Mr. Milošević spoke to Lord Owen
on the telephone during the crisis in April 1993. If I can remind the Court, once more, of the
relevant passage in Lord Owen’s book:
“On 16 April I spoke on the telephone to President Miloševi ć about my anxiety
that, despite repeated assurances from Dr. Ka radzic that he had no intention of taking
Srebrenica, the Bosnian Serb army was not proceeding to do just that. The pocket was
greatly reduced in size. I had rarely heard Miloševi ć so exasperated, but also so
worried; he feared that if the Bosnian Serb troops entered Srebrenica there would be a
bloodbath because of the tremendous bad blood that existed between the two armies.
The Bosnian Serbs held the young Muslim commander in Srebrenica, NaserOric,
responsible for a massacre near Bratun ac in December 1992 in which many Serb
civilians had been killed. Miloševi ć believed it would be a great mistake for the
Bosnian Serbs to take Srebrenica and promised to tell Karadzic so. He did not think
we would be able to get Canadian troops into Srebrenica for some time but thought we
might be able to negotia te UN monitors.” ( Balkan Odyssey , 1995, p.143;
Lord Owen’s Statement to the ICTY, pp. 35-36.)
296. Madam President, Members of the Court, this particular episode confirms the persistent
tendency of our opponents to avoid evidence which contradicts their theses about various legal and
factual questions. In the context of Srebrenica the gaps left in the Bosnian arguments will, no
doubt, be filled during the second round of these proceedings. Then, for example, we can learn
whether the applicant State accepts or denies the making of the telephone call by LordOwen on
16April1993 and the response of Mr.Milosevic. And then, for further example, the evidence
given by Wesley Clark can be assessed on the basis of appropriate judicial standards.
297. Madam President, I shall now revisit some issues of legal principle, which have been
the subject of much comment and no little obfusca tion by counsel for Bosnia and Herzegovina. - 42 -
The first issue, logically, is the interpretation of the Genocide Convention, and I refer here to the
arguments of Professor Pellet (CR 2006/8, pp. 10-39, and CR 2006/11, pp. 26-49).
298. Professor Pellet discusses the question wh ether the responsibility established by the
Convention is civil or criminal, and concludes that it is simply an international responsibility of the
State. As a consequence Professor Pellet and hi s colleagues assume that the principles of State
responsibility can be applied. These principles are then applied in such a way that the State is
made vicariously responsible for the crimes committ ed by individuals. This involves a failure to
apply the provisions of the Convention in accordance with their clear meaning. This approach also
fails to understand that the principles of State r esponsibility must be applied by reference to the
pertinent causes of action: they cannot be applied in the abstract.
2h9e. Nicaragua case provides a good illustration. The Court in that case applied the test
of effective control rigorously in the context of the acts contrary to principles of humanitarian law
and less rigorously to the causes of action relating to the use of force, for example, acts in breach of
the obligation of non-intervention.
300. What is also important is the nature of the duty. If, for example, a State party to the
Genocide Convention has failed to prevent, or to punish, the commission of genocide, this
constitutes a breach of the treaty-based duties concerned. The failure does not involve the
responsibility of the State for acts of genocide. This is reasonably clear from the travaux of the
Convention. Hence the opinion of the United States representative in the Sixth Committee:
“Mr.Maktos did not share the opinion of the United Kingdom representative
that genocide could be committed by juridical entities, such as the State or the
Government; in reality, genocide was al ways committed by individuals which was
one of the aims of the convention on genocide to organise the punishment of that
crime. It was necessary to punish perpetrators of acts of genocide, and not to envisage
measures such as the cessation of imputed acts or payment of compensation.”
(Doc. A/C.6/S.R.93, pp. 319-320.)
301. The account of the debate in the m onograph of Nehemiah Robinson indicates the
existence of serious doubts concerning the paymen t of reparation (pp.24 and 102 of Robinson’s
book). Dr.Robinson points out that the definitio n of civil responsibility was by no means clear,
and no specific provision relating to reparation was adopted (p. 102). - 43 -
302. The provisions of the Convention are themselves reasonably clear. The crimes as
defined in ArticlesII and IV are crimes committed by individuals. ArticleV refers to those
committing genocide as individuals. Article VII refers to “persons charged with genocide or any of
the other acts enumerated in Article IV” and pr ovides that such persons shall be tried by a
competent tribunal of a State.
303. If my learned opponents are right in their contention, then either this Court has acquired
a criminal jurisdiction, more or less in passing, or the normal principles of State responsibility
would have to be applied as if they provided ve hicles for the imposition of criminal responsibility
of the State. However, it is well known that the introduction of penal elements into the Draft
Articles on State responsibility was resisted by th e International Law Commission after extensive
discussion.
304. The responsibility of the States parties to the Genocide Convention is limited to
responsibility for breaches of the provisions est ablishing the specific duties of prevention and
punishment. The appropriate remedy is a declarator y judgment. This results from the applicable
law, which consists of the Convention itself and the law of treaties. There is no evidence that, as a
matter of treaty law, the usual array of remedies was expected to be applicable. Article IX provides
a basis of jurisdiction for breaches of the duty to prevent and punish the acts of individuals, but
even then the jurisdiction is to deal with dis putes relating to the interpretation, application or
fulfilment of the present Convention. The substa ntive provisions of the Convention do not deal
with the responsibility of the State for acts of genocide, and ArticleIX is concerned with
jurisdiction and not with remedies.
305. I can now return to the question of control and effective control. I refer to the argument
of Professor Pellet in CR 2006/8, pages 33 to 39, and CR 2006/10, pages 38 to 40 and 46 to 47. In
my submission, this concept must be applied in the context of the actual provisions of the Genocide
Convention. The Nicaragua case rested for the most part upon customary or general international
law and the optional clause. In consequence, the normal principles of State responsibility applied.
In the present case the Genocide Convention is not lim ited territorially and the Court so held in
paragraph 31 of the 1996 Judgment. However, the question of control must still be applied
contextually and therefore in relation to the obl igation to prevent and punish acts of genocide - 44 -
committed outside the territory of the State. The a pplication of the Convention, if it were to be on
the basis of global control, would become chaotic a nd extra-legal. If one looks at the argument of
ProfessorPellet (CR2006/10, pp.46-47), you will see that he does not explain how the
requirements of intention, for example, would apply.
306. In this context we see again the use by our opponents of general principles of State
responsibility completely divorced from the applicab le law and the provisions of the Convention.
Thus, reliance is placed by our opponents upon Articl es 4 and 8 of the Articles of the International
Law Commission concerning State responsibility. If I can refer to the text of Article 8:
“The conduct of a person or a group of pe rsons shall be considered an act of a
State under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction and control of that State in carrying out the
conduct.”
307. If these formulations are to be applied as a means of applying the Convention, then
serious difficulties result and Professor Pellet is very frank on this subject. As he admits, relating
the specifics of the mens rea of genocide to the modalities of attribution and global control leads to
serious problems. The solution proposed by counsel for Bosnia and Herzegovina appears to be to
recommend a doctrine of strict responsibility.
308. Madam President, my final topic is the Republika Srpska, which was discussed at
length by my distinguished opponents and, in particular, by MsKaragiannakis (CR2006/4,
pp. 10-12); Professor Condorelli (CR 2006/10, pp. 10-27); and Professor Pellet ( ibid., pp. 40-44).
The theses counsel for the other side propagate call for some brief commentary.
309. As in the Reply (pp. 788-816), the main thesi s is to the effect that the Republika Srpska
was not a State. My first point ⎯ and I know I am repeating myself ⎯ is that, for present
purposes, the issue of statehood is not conclusi ve. The central question is that of State
responsibility and the question of control. Th ere is substantial evidence that from May 1992
onwards the Republika Srpska was a separate entity with its own armed forces. This is clear from
third party sources, including the CIA study, Balkan Battlegrounds, and references are provided
(Balkan Battlegrounds 2002, Vol.I, Chapters 15 and 16 (pp.122-130), and Vol.II, Annex
(pp. 239-253)). - 45 -
310. The approach of the applicant State tends to veer away from legal analysis as a result of
the unattractive exceptionalism, which is applied, to Serbs. Madam President, the appearance of
secessionist States was the result of factors in the region which were of general application. The
appearance of Republika Srpska as a separate politi cal body was simply a replica of developments
in Croatia and elsewhere. But, of course, when the Republika Srpska developed separate
institutions counsel for the applicant State tells this Court that this is a preparation for genocide, or
for a Greater Serbia.
311. In actual fact, the military arrangements made by the Serbs were clearly defensive as
appears from the account in the CIA history, in which the following passage appears:
“Although most of the Serb troops in Bosnia served in the ranks of the JNA,
Bosnian Serb Territorial Defense and volunteer units formed an important segment ⎯
and, at the start, a... heavily engaged one ⎯ of the Serb forces. Drawn from the
towns and villages now contested between Se rbs and Muslim-Croat armed forces, the
TO and volunteer units formed the Serbs fi rst line defense (or offence). Although
volunteer units were nominally formed separately from the TO, in practice most
volunteer troops, as counted by the JNA, appear to have been incorporated by design
into the TO when fighting erupted. The JNA had continued the practice begun during
the Croatian war of forming separate volunteer units, but in Bosnia its purpose was to
legitimise the arming of local Bosnian Serbs. When the budding Serbian Republic of
Bosnia and Herzegovina (SRBH) activated its municipal, brigade-level Territorial
Defense staffs ⎯ which the Serbs had appropriated from the Bosnian Republic TO ⎯
most of the volunteer units recruited by the JNA were folded into the local TO
formation and ceased to exist as separate en tities. In addition to slipping these
volunteers into the TO, the JNA supplied some weapons directly to TO headquarters
and units.” (Balkan Battlegrounds, Vol. 2, p. 240.)
However, in the world of counsel on the other side of the Bar, such preparations are only concerned
with genocide and with an alleged programme for a “Greater Serbia”.
312. A remarkable feature of the presentation by the applicant State is the ability displayed
to ignore the substantial eviden ce of the separate political existe nce of Republika Srpska and the
role played by the Bosnian Serbs in the high-le vel diplomacy of the International Conference for
the Former Yugoslavia and the Vance-Owen plan. The diplomacy was based on the three parties,
the Croats, Muslims and Serbs, w ho were treated as equal negotiati ng partners. All this evidence
has been ignored by counsel for the Applicant.
313. Then there is the question of recognition. The other side point out that the Republika
Srpska was not recognized as a State (for example, see Reply, p. 797, para. 104). - 46 -
314. This, in the circumstances, cannot be in any way conclusive. As the available
documents indicate, it was accepted as a major politi cal player in the Vance-Owen negotiations.
Moreover, the Republika Srpska was the object of sanctions imposed by the Security Council.
315. Counsel for the Applicant have made several generalized references to Security Council
resolutions but failed to explain their precise relevance in relation to the issues of State
responsibility.
316. I turn now to the question of the assi stance provided by the FRY to the nascent
Republika Srpska. Once again, such assistance ca nnot provide critical indications for the purposes
of State responsibility. Co-ordination and assistan ce do not constitute evidence of subordination.
Indeed, the evidence available shows that at ke y periods relations between the Republika Srpska
and the FRY were very bad.
317. The applicant State continually avoids an y reference to the circumstances in which the
Serbs in Serbia proper found it necessary to provide assistance to the Serb communities in Bosnia.
In particular, counsel for the applicant State ha ve made several references to the Second World
War in the context of genocide but have avoided discussion of the events of the Second World War
in Croatia and Serbia.
318. And, Madam President, it is absurd to assert that assistance provided by one community
to another community of the same national origin s and culture is inappropriate and redolent of
forms of domination. I recall that in the Jan Mayen case (Denmark v. Norway) the evidence
included a fisheries agreement concluded by Norway with Iceland, which was disproportionately
beneficial to Iceland. The background was si mply the long historical association between
Norwegians and Icelanders. No one would see in such a transaction evidence of domination on the
part of Norway, even in light of the significance of fisheries for the economy of both those States.
319. This completes my section relating to th e oral arguments. However, some aspects of
State responsibility will be examined further later this week. - 47 -
M. F INAL SUBMISSIONS
320. I come to some submissions. In conclu sion, on the question of attribution of breaches
of the Genocide Convention to the Federal Republic of Yugoslavia and its successor in the relevant
period, the following submissions are presented on behalf of the respondent State.
First : As a matter of fact and law no acts of genocide occurred as alleged in the Application
of Bosnia and Herzegovina in the pleadings. A nd the Court will be addressed on this question by
my colleagues.
Second : In the alternative, if, which is not admitted, acts were committed, which, if
committed by the agents of a State, would have constituted breaches of the Genocide Convention,
there is no basis for the attribution of such acts to the respondent State.
Third : The Government of Bosnia and Herzegovina has failed to prove that the Government
of Yugoslavia had effective control over the Repub lika Srpska (or other areas concerned) at the
material time.
Fourth : In particular, the applicant State has failed to prove that Yugoslavia had effective
control over the military or paramilitary operations in the course of which the alleged violations
were committed.
Fifth : In addition, the Government of Bosnia and Herzegovina has failed to prove the
existence of any specific directions or instruc tions emanating from Yugosla via and relating to the
planning or commission of acts referred to by the applicant State as breaches of the Genocide
Convention.
Sixth : In any event the Government of Bosnia and Herzegovina has failed to prove the
existence of any plan to commit genocide on the part of the Government of Yugoslavia.
321. Having completed the submissions, I must respectfully remind the Court of two related
considerations. The first is th e importance of applying the appropr iate standard of proof. This
should not depend upon theoretical concerns as to whether responsibility for breaches of the
Convention is civil or criminal. It must be ev ident that, given the subject-matter, the standard
should be rigorous and not related to a mere preponderance of evidence.
322. The second consideration involves a major issue of substance. If the Court were to
adopt the interpretation of the Convention according to which the State itself is responsible for the - 48 -
crime of genocide, how would the requirement of intention apply? The hypothesis would be that
the Court decides that certain acts or omissions are attributable to the Government of Yugoslavia in
the period 1992 to 1995. But, of course, the res pondent State, in 2006, has a completely different
government.
323. MadamPresident, distinguished Members of the Court, it is now obviously more than
ten years later. It must be recalled that in th e Judgment in the preliminary objections phase the
Court preferred, at least on a provisional basis, the interpretation according to which Article IX of
the Convention allows or might allow the impositi on of some form of criminal responsibility.
Moreover, in the same context the Court observed “nor is the responsibility of a State for acts of its
organs excluded by Article IV of the Convention, which contemplates the commission of an act of
genocide by ‘rulers’ or ‘public officials’”.
324. Madam President, at this point the anomali es and vexations of this interpretation of the
Convention can be more fully assessed. Is it possible that some form of criminal responsibility can
be imposed upon Serbia and Montenegro for the acts of leaders and officials of the Government in
a different era? How, in such circumstances, can the criteria of intention be proved? And is such a
form of substituted or vicarious responsibility compatible with the normal principles of justice and
due process?
Madam President, I have finished my submissions today. I regret the length of those
submissions. I seem to have finished early but I doubt if that will be a cause for complaint.
The PRESIDENT: Thank you, Professor Brownl ie. So we assume that the Respondent
would like to leave it there for day and we shall resume at 10 o’clock tomorrow morning.
The Court rose at 5.30 p.m.
___________
Audience publique tenue le lundi 13 mars 2006, à 15 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président