Audience publique tenue le jeudi 27 mars 2014, à 15 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l'affaire relative à l'Application de la convention pour la prévention e

Document Number
118-20140327-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2014/22
Date of the Document
Bilingual Document File
Bilingual Content

Corrigé
Corrected

CR 2014/22

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2014

Public sitting

held on Thursday 27 March 2014, at 3 p.m., at the Peace Palace,

President Tomka presiding,

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

________________

VERBATIM RECORD
________________

ANNÉE 2014

Audience publique

tenue le jeudi 27 mars 2014, à 15 heures, au Palais de la Paix,

sous la présidence de M. Tomka, président,

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

____________________

COMPTE RENDU
____________________ - 2 -

Present: President Tomka

Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade

Yusuf
Greenwood
Xue
Donoghue
Sebutinde
Bhandari
Judges ad hoc Vukas

Kreća

Registrar Couvreur

 - 3 -

Présents : M. Tomka, président

M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade

Yusuf
Greenwood
Mmes Xue
Donoghue
Mme Sebutinde
M. Bhandari, juges
MM. Vukas

Kreća, juges ad hoc

M. Couvreur, greffier

 - 4 -

The Government of the Republic of Croatia is represented by:

Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,

as Agent;

H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,

Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,

Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,

as Co-Agents;

Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,

Mr. PhilippeSands, Q.C., Professor of Law, Universi ty College London, Barrister, Matrix
Chambers, London,

Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,

Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,

Ms Maja Seršić, Professor of International Law, University of Zagreb,

Ms Kate Cook, Barrister, Matrix Chambers, London

Ms Anjolie Singh, Member of the Indian Bar, Delhi,

Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London

as Counsel and Advocates;

Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,

Ms Helen Law, Barrister, Matrix Chambers, London

Mr. Edward Craven, Barrister, Matrix Chambers, London,

as Counsel;

H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,

H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,

as Members of the Delegation; - 5 -

Le Gouvernement de la République de Croatie est représenté par :

Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,

comme agent ;

S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,

Mme Jana Špero, chef de secteur au ministère de la justice,

M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,

comme coagents ;

M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,

Matrix Chambers (Londres),

M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),

M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,

M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),

Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,

Mme Kate Cook, avocat, Matrix Chambers (Londres),

Mme Anjolie Singh, membre du barreau indien (Delhi),

Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),

comme conseils et avocats ;

M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),

Mme Helen Law, avocat, Matrix Chambers (Londres),

M. Edward Craven, avocat, Matrix Chambers (Londres),

comme conseils ;

S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,

S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,

comme membres de la délégation ; - 6 -

Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,

Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,

as Advisers;

Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,

Ms Sedina Dubravčić, Head of Department, Ministry of Justice,

Ms Klaudia Sabljak, Ministry of Justice,

Ms Zrinka Salaj, Ministry of Justice,

Mr. Tomislav Boršić, Ministry of Justice,

Mr. Albert Graho, Ministry of Justice,

Mr. Nikica Barić, Croatian Institute of History, Zagreb,

Ms Maja Kovač, Head of Service, Ministry of Justice,

Ms Katherine O’Byrne, Doughty Street Chambers,

Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,

as Assistants;

Ms Victoria Taylor, International Mapping, Maryland,

as Technical Assistant.

The Government of the Republic of Serbia is represented by:

Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of

the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,

as Agent;

Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,

Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of

Arbitration,

Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -

M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),

Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,

comme conseillers ;

Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,

Mme Sedina Dubravčić, chef de département au ministère de la justice,

Mme Klaudia Sabljak, ministère de la justice,

Mme Zrinka Salaj, ministère de la justice,

M. Tomislav Boršić, ministère de la justice,

M. Albert Graho, ministère de la justice,

M. Nikica Barić, Institut croate d’histoire (Zagreb),

Mme Maja Kovač, chef de département au ministère de la justice,

Mme Katherine O’Byrne, Doughty Street Chambers,

M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,

comme assistants ;

Mme Victoria Taylor, International Mapping (Maryland),

comme assistante technique.

Le Gouvernement de la République de Serbie est représenté par :

M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des

Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,

comme agent ;

M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,

M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,

M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -

Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,

Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,

Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,

as Counsel and Advocates;

H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,

Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,

as Members of the Delegation;

Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,

Bulgaria,

Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,

Mr. Igor Olujić, Attorney at Law, Belgrade,

Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,

Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),

Mr. Georgios Andriotis, LL.M. (Leiden),

as Advisers. - 9 -

M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,

M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,

M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,

comme conseils et avocats ;

S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,

M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,

comme membres de la délégation ;

Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal

de district de Sofia (Bulgarie),

M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,

M. Igor Olujić, avocat, Belgrade,

M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,

M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),

M. Georgios Andriotis, LL.M. (Université de Leyde),

comme conseillers. - 10 -

The PRESIDENT: Good afternoon. Please be seated. The sitting is now open. The Court

meets this afternoon to hear Serbia begin its second round of oral argument. Judge Gaja, for

reasons that have been explained to me is unable to sit today and tomorrow. I shall now give the

floor to the Agent of Serbia, Mr. Obradović. You have the floor, Sir.

Mr. OBRADOVIĆ: Thank you, Mr. President.

INTRODUCTION TO THE SECOND ROUND OF ORAL ARGUMENTS
OF THE R EPUBLIC OF SERBIA

1. Mr. President, distinguished Members of the Court, I am honoured to open the second

round of oral arguments of the Republic of Serbia. I have a task to address you in relation to three

short points before I respectfully ask you to give the floor to our counsel and advocates. The

schedule of our presentation is, first, my topics; a general view to the Applicant’s case,econd;

and, the issue of evidence, in brief, the last one.

Schedule of presentation

2. Following my introductory words, Professors Zimmermann and Tams will re -address the

issue of relevance of the events pre- dating 27 April 1992 for the Applicant’s claim in light of the

arguments advanced by Professor Crawford last week, as well as the issues concerning the

obligations to prevent and punish the crime of genocide. Mr. Jordash will continue our oral

arguments today and tomorrow morning with regard to the factual and legal rebuttal to the Croatian

claim. Professor Schabas will deal with some specific legal arguments, as the interpretation of the

Genocide Convention in light of the 2007 Judgment of this Court and the question of standard of

proof raised by t he Applicant in the second round, including the first question of

Judge Cançado Trindade. Mr. Lukić and Mr. Ignjatović will briefly address the rest of the issues of

attribution concerning the JNA and paramilitaries. Tomorrow afternoon, Professor Schabas and

Mr. Jordash will rebut the Croatian arguments concerning the Serbian counter -claim. The question

of Judge Bhandari will be also answered during that sitting. I will finish our presentation with

some closing remarks about victims, including the respo nse to the question of

Judge Cançado Trindade, concerning the missing persons. - 11 -

Reconciliation based on historical facts

3. Mr. President, the first round of these hearings was concluded with some remarkable

words of the Croatian Agent,Professor Crnić-Grotić, who pleaded for reconciliation that, however,

“must be based on historical facts” 1. We could not agree more. That could be a leitmotif of my

further presentation.

4. Thus, I would commence with recalling the statement of the fo rmer Agent of Croatia,

Professor Šimonović, that this case was submitted to your jurisdiction in 1999 as an attempt to

“paralyze cases against Croatians at the ICTY” 2. It is a historical fact that was not denied by our

distinguished opponents. And how could it be?

5. In doing so, Croatia in this case had to demonize Serbs  as I explained in the first

round  their policy in the 1990s and to blow up allegations on individual crimes that were

certainly committed against the Croat civilians. The allegatio ns are not enough; at a court of law,

they must be based on evidence. Some help was found in the documents fabricated by the Croatian

3
police during the war . And when we place on record different views, the Applicant’s side offends

us as genocidal deniers, and accuses us for “a revisionist history”, “a false historical narrative” and

“factual manipulations”. However, if we say something that sounds acceptable to our opponents,

they quickly approach the roster stating  “This is an admission”  “That is a concession”  as

if we were in a childish game rather than before the principal judicial organ of the United Nations.

6. Indeed, what is the “game” played by the Applicant in this case? At the very beginning of

4
the first round the Applicant establishe d a mantra: “Genocide is not a numbers game” . In that

sense, Professor Sands “improves” the theory of substantiality requirement by the following

statement:

“The intention [as the element of the crime of genocide ] is connected to the

location of an a rea, to the group that is there located, and to the opportunity. The
location can be a state, or a region, or a town, or a village, or a hamlet, or even
something smaller.” 5

1
CR 2014/19, p. 17, para. 20 (Crnić-Grotić).
2
CR 2014/14, p. 11, para. 10 (Zimmermann).
3CR 2014/17, pp. 61 and 62, paras. 23-27 (Obradović).
4
CR 2014/5, p. 18, para. 8 (Crnić-Grotić); CR 2014/8, p. 49, para. 4 (Seršić).
5
CR 2014/6, p. 22, para. 31(Sands). - 12 -

How much smaller? It is not quite clear; but anyway, his offer for so broad an interpretation of the

Genocide Convention is a very inventive approach which would undoubtedly, if accepted by the

Court, push many State clients to knock on the door of the skilful barristers.

7. However, when I thought that I understood what the Appli cant’s approach to this case

was, Professor Sands all of a sudden departed from the thesis of genocide limited to a hamlet or

something smaller, claiming that “a large number of genocidal acts” were committed in the

occupied regions, which were “very large regions by any standard” 6. So, no hamlets, no limited

areas. “The intention was plain and simple”, he said, “to destroy the Croat communities in their

entirety, and this was largely achieved” 7. The allegations became more and more serious. “Town

after town”  he claimed  “Serb forces sought out, identified and then executed Croat civilians

8
who hid from the carnage just because they were Croats” . The other counsel for Croatia continued

in the same manner: “Croats were starved, beaten, hanged, stabbe d, mutilated, castrated and

9
hacked to death with axes, because they were Croats” .

8. Was it really the case? How many of them were hanged, mutilated and castrated? This

sort of rhetorical exaggeration blurs the real suffering of many individual victims of that war,

Croats and Serbs, those who necessarily are forgotten in this false genocide narrative.

9. Sir Keir Starmer said: “[T]he men were separated from the women and children [in

Vukovar], and most were transported to the torture and death camps in other places, particularly in

10
Serbia.” This is untrue. There was not a single camp in Serbia designated for killing. At its

highest, one domestic indictment in Croatia contained the allegation of 12 murders of Croatian

11
prisoners of war committed in the whole territory of Serbia , which is incomparable with the

Holocaust definition of death camps, the examples of which are Auschwitz -Birkenau in Poland or

12
Jasenovac in Croatia . But Serbia, as I said, had to be demonized. That was the 1999 vision of

6CR 2014/6, p. 54, para. 1 (Sands).
7
Ibid., p. 56, para. 10 (Sands); emphasis added.
8
Ibid., p. 64, para. 37 (Sands).
9CR 2014/8, p. 25, para. 67 (Ní Ghrálaigh).

10Ibid., p. 35, para. 26, (Starmer); emphasis added.
11
Indictment of the County State Attorney in Osijek, No. K-DO-51/08 dated 11April 2011.
12http://en.wikipedia.org/wiki/List_of_Nazi_concentration_camps. - 13 -

President Tudjman whose hostages seem to be our colleagues from the other side of the Bar still

today. Professor Lapaš so added: “There are too many incidents about which the Respondent still

refuses to divulge information, especially those that took plac e in prison camps within Serbia.” 13

This is a very severe accusation of Serbia’s current Government. On the other hand, it seems like

an excuse for the lack of serious evidence in support to the Applicant’s allegations. However, I am

in doubt whether this would be the best approach to the “reconciliation based on historical facts”.

Issue of evidence in light of the question posed by Judge Greenwood

10. Mr. President, in the first round of oral arguments, I prepared a sample analysis of the

14
shortcomings of evidence on which the speech of Professor Sands was based . Another speech of

the Croatian Agent containing the terrible allegations on rapes, torture and imprisonment was the

15
subject of a new review that I submit to your attention today in the form of the judges’ folders .

The complete analysis can be found in the Counter-Memorial and Rejoinder 16.

11. In answering the question posed by Judge Greenwood concerning the admissibility of

unsigned statements before the domestic Croatian courts, Professor Crnić-Grotić apparently was

17
not quite comprehensible . Although she admitted that the police statements  by the way, the

question was about unsigned statements  that the police statements were not themselves

admissible in the court proceedings in Croatia, she tried to give some mitigating explanations

blurring the core issue. Members of the Court, there has never been such a thing as “police witness

18
statements” in Croatia, as Madam Agent stated. Those were simple police reports containing

information collected by the police. Those police reports  signed or unsigned  could not be

admitted into evidence before the courts in Croatia, as I have already explained in the first round of

our oral pleadings 19. It is now confirmed by the Croatian Agent. Accord ing to the Croatian

13CR 2014/10, p. 12, para. 7 (Lapaš).
14
Judges’ folders of 10 Mar . 2014: A sample review of the quotes and their sources vis-à-vis CR 2014/6,
pp. 56-62, paras. 13-30 (Sands; The ethnic purpose of the Respondent’s campaign).
15Judges’ folders of 27 Mar. 2014: A sample review of the sources of evidence vis-à-vis CR 2014/10, pp. 20-32

(Crnić-Grotić; Rapes, torture, imprisonment and deportations with intent to destroy ).
16Counter-Memorial of Serbia (CMS), paras. 153-158; see also, Rejoinder of Serbia (RS), paras. 245-263.

17CR 2014/21, pp. 33-34 (Crnić-Grotić).
18
In Croatian, Službena zabilješka, The OfficialRecord.
19CR 2014/13, p. 62, para. 27 (Obradović). - 14 -

Criminal Procedure Code, the police authority may not examine citizens as witnesses 20. It is a

procedural safeguard. Moreover, any information given by the citizens to the police shall be

excluded from the Court’s file by the investiga ting judge 21. However, it seems that for the

Applicant in this case, the police authority is still the supreme fact finder. The Croatian counsel

thus reminds us that 188 witnesses allegedly confirmed authenticity of their unsigned statements

22
“in the presence of a police officer” . Why do we not go then to that police officer to solve our

dispute? Why are we before the United Nations Court? Mr. President, we remain at our position

that documents prepared by the Party, especially for the case of so except ional gravity, is

inappropriate to be taken as convincing evidence 23.

12. Furthermore, the Applicant has ignored my argument from the first round t hat witnesses

like Ms Marija Katić cannot give the probative weight to all other witness statements 24. And after

all, should it be the case with witness Marija Katić? With great respect, it seems that the Applicant

forgot the question of Judge Greenwood to that witness, as well as many new details that appeared

in her live testimony compared with the unsigned written statement given by three persons

altogether. This is not a convincing example that such police statements should be of any

assistance to the Court.

13. However, the Agent of Croatia did not answer the question concerning the admissibility

of unsigned statements, whoever produced them. Let me be brief and clear: if a party appears

before the court in Croatia, or elsewhere in the former Yugo slavia, with a piece of paper claiming

that it is an out-of-court witness statement, which is unsigned, and request the court to admit it into

evidence without calling witness for live testimony, any judge in Croatia, or elsewhere in the

former Yugoslavia, would dismiss that request finding that the statement in that form is prima facie

without any probative weight. For that reason, it is inadmissible.

20
Criminal Procedure Code of the Republic of Croatia, Art. 208 (4); trans lation into English available at:
legislationline.org/.../id/.../Croatia_Criminal_proc_code_am2009_en.pdf.
21Ibid., Art. 86 (3).

22CR 2014/20, p. 30, para. 10 (Ní Ghrálaigh).
23
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 201, para. 61.
24CR 2014/13, p. 59, para. 18 (Obradović); CR 2014/20, p. 30, para. 12 (Ní Ghrálaigh). - 15 -

14. If these Croatian unsigned statements, either from police or from unknown sources, were

really the “basis” for the decisions of domestic judges to open investigations, as Madam Agent

suggests, Croatia would furnish those statements from the Court’s files, as it did in several cases

that were not disputed by the Respondent. But only in several cases.

15. From the other point of view, if these Croatian unsigned statements were really
25
confirmed by evidence accepted by the ICTY, as claimed , Croatia would submit that ICTY

evidence. Indeed, where are the witness statements given before the ICTY that conta in the

testimonies as “all Ustasha would be killed” or that Serb units were ordered to “kill and slay every

living creature of Croat origin”? 26 We cannot see such ICTY witness statements or findings in

these proceedings. Please do not tell me that our Cro atian colleagues have forgotten to produce

them, as they “forgot” to ask their “witnesses” whether they feel “a genuine security risk” when

they were asking the Court to protect their names from publication in these proceedings. Excuse

me, but I could not believe them.

Allegation that Serbs killed the Serbs

16. Demonization of the Serbian side in the conflict is presented also by arguing that Serbs

commonly killed other Serbs. While Croatia admits only that “individual crimes were committed

27
in the cours e of Operation Storm” , it claims that Serbs were those who committed the most

horrific crimes including those in the Croatian final operation. Thus, Ms Singh has stated with

confidence that “a representative of the Croatian Helsinki Committee  relied on so heavily by the

Respondent  testified at the Gotovina trial that 100 Serb civilians were run over by Serbian tanks

fleeing Sector North” 28.

17. That representative was no one else but Professor Žarko Puhovski, the statement of

whom was indeed quoted by our side. But did he really say it? The relevant part of his testimony

before the ICTY is now on your screen. I quote:

25
Only four examples have been shown: see CR 2014/20, p. 31, para. 13, fn. 63 (Ní Ghrálaigh).
26See judges’ folders of Serbia dated 10 Mar. 2014.

27CR 2014/19, p. 17, para. 21 (Crnić-Grotić); emphasis added.
28
Ibid., p. 33, para. 35 (Singh). - 16 -

“Mr. Mišetić [defence counsel for accused Gotovina]

Question. Now, Mr. Puhovski, do you have, first of all, any information about
the number of people that may have been run over there in that column of refugees?

Answer. I cannot tell you anything with any degree of certainty. I seem to
recall the figure of 82 from the report of the RS Helsinki Committee. However, I saw
that report a number of years ago, and I don’t know whether it is correct. What I am
certain though that it was 100. I couldn’t verify it any further.”

18. Hence, the original information comes from “the RS Helsinki Committee”. RS can be

the Republic of Sr pska, but its Helsinki Committee was established in 1996, one year after

Operation Storm. RS can also be the Republic of Serbia, in which case the organization would be

that one led by Ms Sonja Biserko. However, Professor Puhovski did not confirm that information

as correct, nor has the ICTY ever come to a finding on this, nor does any serious report contain that

finding. The Court deserves an apology by the Applicant for the incorrect and obviously

misleading reference to the ICTY statement of Mr. Puhovski.

19. Mr. President, it happens rarely that you have before you so divided parties as is the case

now. Solving this dispute, the Court will meet the very substance of its main objective.

I would kindly ask you now to give the floor to Professor Andr eas Zimmermann, who will

address another important preliminary issue.

The PRESIDENT: Thank you very much, Mr. Obradović. I call on Professor Zimmermann.

You have the floor, Sir.

Mr. ZIMMERMANN:

PART 1

I. Introduction

1. Mr. President, Members of the Court, last week you heard Prof essor Crawford tell you a

fairy tale  a fairy tale about two law professors appearing in two ICJ cases, one of them not even

charging fees  which in itself shows that it could have been nothing but a fairy tale anyhow.

29Gotovina et al., Trial Transcript, p. 15975; emphasis added. - 17 -

2. Yet that was nothing but a fairy tale  not the reality of international law. Instead of

coming up with a mock case, counsel for Croatia should have rather referred you to a real decision

that was rendered only 100 met res away from here in the Small Hall of Justice. H e should have

referred you to this real case decided by the Eritrean -Ethiopian Claims Commission because it has

so much in common with the proceedings at hand 30.

3. For one the case involved two States, one of which, Eritrea, had come into existence as the

result of the fight of an insurrectional movement against the territorial State. A real insurrectional

movement and a successful one.

4. What is more is that the case relates, just like the case at hand, to an ethnically -driven

armed conflict involving serious violations of international humanitarian law. And it relates to

alleged violations of, inter alia, the Geneva Conventions , which, as you have confirmed in your

Wall Opinion, have as much an erga omnes character as the Genocide Convention 3.

5. Furthermore, just as in the present case, the temporal scope of the treaty, the Geneva

Conventions, was in dispute. Ethiopia had been bound by the Geneva Convention s since 1969.

Eritrea, however, had only become bound by the Conventions as late as August 2000, several years

after it had come into existence.

6. Unlike in your Georgia v. Russia case, automatic succession to the Geneva Conventions

was pleaded by the parties  but the Claims Commission rejected it.

7. Obviously, in both cases the relevant treaties  the Geneva Conventions in

Ethiopia-Eritrea and the Genocide Convention in our case  had previously been applicable to the

respective predecessor States before the successor States, Eritrea and Serbia, came into existence.

And the Geneva Conventions had, just like the Genocide Convention, been applicable throughout

the entire territory of E thiopia prior to Eritrea’s secession. Nevertheless, the Claims Commission

still found that there was no continuity of treaty obligations. Indeed, it even found that Eritrea 

unlike Serbia  had only become bound several years after its independence. To use Croatia’s

30Prisoners of War Eritrea’s Claim 17 (The State of Eritrea v. The Federal Democratic Republic of Ethiopia),
Partial Award, 1 July 2003, Eritrea-Ethiopia Claims Commission; available at: http://www.pca-
cpa.org/showpage.asp?pag_id=1151.
31
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territ, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 199, para. 155. - 18 -

terminology, the Claims Commission did thus accept a huge gap in the applicability of the Geneva

Conventions, which in cases of armed conflicts are, I submit, as important as the Genocide

Convention.

8. The result reached by the Claims Commission then, in turn, raised the obvious question of

a possible retroactive application of the Geneva Convention s. Despite what Croatia would

certainly call a customary law mooring of the Geneva Conventions, and despite their obvious

humanitarian and erga omnes character, the Claims Commission still found that the Geneva

32
Conventions did not apply retroactively . Again, no continuity of treaty obligations.

9. What is, however, fundamental, even if Professor Crawford might probably again call it

33
banal , is this: unlike in our case , Ethiopia and Eritrea had also empowered the Claims

Commission to determine possible violations of customary law . Under these circumstances, the

Claims Commission in Ethiopia and Eritrea could then make findings on violations of customary

law  violations of customary law that had occurred prior to the entry into force of the relevant

treaty34.

10. So, it is customary international law that provides for continuous legal protection even

where the treaty is not yet in force. And nothing precludes international courts and tribunals to

pronounce on violations of customary law if they have jurisdiction to do so.

11. In our case, too, the customary law prohibition of genocide continuously applied. The

only difference is that in our case the Court’s jurisdiction is limited to making findings as to

violations of the Genocide Convention. But would really the Ethiopian Eritrean Claims

Commission have been able to pronounce on violations of the Geneva Conventions if the parties

had limited its jurisdiction to breaches of treaties  of course not. The Geneva Conventions were

not applicable. So perhaps our case is not as sui generis as Professor Crawford wants it to be.

32Prisoners of War Eritrea’s Claim 17 (The State of Eritrev. The Federal Democratic Republic of Ethiopia) ,
Partial Award, 1 July 2003, Eritrea-Ethiopia Claims Commission, p. 9, para. 38, as well as pp. 10-11, para. 42, available
at: http://www.pca-cpa.org/showpage.asp?pag_id=1151 .

33CR 2014/21, p. 17, para. 31 (Crawford).
34
Prisoners of War Eritrea’s Claim 17 (The State of Eritrev. The Federal Democratic Republic of Ethiopia) ,
Partial Award,1 July 2003, Eritrea-Ethiopia Claims Commission, p. 9, para. 38, as wel l as p. 9, para. 38, available at:
http://www.pca-cpa.org/showpage.asp?pag_id=1151 . - 19 -

12. Mr. President, this is the reality of international law, argu ed and decided just 100 metres

from here in the Small Hall of Justice rather than the fairy tale you heard last week in this Great

Hall of Justice.

13. And it is this reality that forced Croatia to request the Court to overrule itself on issues of

temporal jurisdiction and on standing developed in Georgia v. Russia and Belgium v. Senegal. In

the last round of Croatia’s oral pleadings there was however a novelty. A n unveiled attempt by

Professor Sands, and by Professor Crawford, to threaten the Court. Bo th told you that the Court

would become “ irrelevant” 35, or that it would be “ sidelined” 36 should it not follow Croatia’s

arguments in this case. Yet, as the saying has it, fear is a bad adviser.

14. What is more , Croatia attempted to threaten the Court in a case that has been brought

with a very peculiar form of dolus specialis, namely the intent to instrumentalize this Court to

paralyse ICTY cases against Croatian State officials.

15. Members of the Court, after a week of oral pleadings, Croatia now formally claims that it

can also prove acts of genocide occurring after 27 April 1992. Obviously, events after that date

come within the Court’s temporal jurisdiction  just as the crimes committed by Croatia during

37
Operation Storm in 1995. Still, as acknowle dged by Croatia’s former Agent himself , Croatia’s

case largely depends on acts pre-dating the critical date. Serbia is fully convinced that no genocide

at all was committed in Croatia in 1991 and 1992. Still it insists that the Court must, first and

foremost, determine the scope of its jurisdiction and the admissibility of Croatia’s case, before then

dealing with the merits of Croatia’scase.

II. Croatia’s disregard for its own behaviour

16. Mr. President, while 27 April 1992 constitutes a watershed for the Court’s jurisdiction in

this case, there is complete continuity in these proceedings on one respect: this is Croatia’s

complete disregard for its own prior behaviour. Croatia itself has for years  and indeed

successfully  rejected the very idea of continuity of treaty oblig ations when it came to the

FRY/Serbia, and it did so specifically concerning human rights treaties.

35
CR 2014/20, p. 19, para. 19 (Sands).
36CR 2014/21, p. 17, para. 30 (Crawford).
37
See CR 2014/14, p. 10, para. 3 (Zimmermann). - 20 -

17. Let me give you but some examples, i nter alia, in 1994, in a letter addressed to the

Secretary-General of the United Nations, Croatia stated that it would only accept the FRY/Serbia as

a party to treaties of the former SFRY provided that a notification of succession was eventually

forthcoming  and it would only accept the FRY as a party with effect of 27 April 1992. Croatia,

obviously, was then not concerned with the continuity of treaty obligations as it now seems to be

for the purpose of this case, and for this purpose only. As Croatia then put it in 1994  and as you

will see: [Slide on]

“[i]f the Federal Republic of Yugo slavia (Serbia and Montenegro) expressed its
intention to be considered . . . a party, by virtue of succession to the Socialist Federal
Republic of Yugoslavia, to treaties of the predecessor State with effect from
27 April 1992, the date on which the Feder al Republic of Yugoslavia (Serbia and

Montenegro) as a new State, assumed responsibility for its international relati38s, the
Republic of Croatia would fully respect that notification of succession”. [Slide off]

18. To provide you with a further illustr ation of the Croatian position on the matter, let me

mention an aide-memoire of January 1994 in which the Permanent Mission of Croatia to the United

Nations stressed:

“Since the . . . ‘Federal Republic of Yugoslavia ’ (Serbia and Montenegro) has

not notified the Secretary-General of its succession to the International Convention on
the Elimination of all Forms of Racial Discrimination as one of the successor States of
the former SFRY, it cannot be considered as one of the parties to the said
Convention.” 39

That was 1994, Croatia considered the FRY not to be a party of CERD.

19. Again, no sign of claimed continuity of treaty obligations, even with regard to most

fundamental human rights treaties such as CERD.

20. As a result of Croatia’s in sistence, th e FRY /Serbia, was frequently barred from

participating in meetings of contracting parties of human rights treaties 4. It seems Croatia was

38
Letter dated 16 February 1994 from the permanent representative of Croatia to the United Nations addressed to
the Secretary-General, UN doc. S/1994/198, p. 3; see also, Preliminary Objections of Yugoslavia (POY), Ann. 9;
emphasis added.
39Note Verbale dated 14 January 1994 from the Permanent Mission of the Republic of Croatia to the United
Nations addressed to the Secretary General, UN doc. CERD/SP/51, p. 3; see also, POY, Ann. 15; emphasis added.
40
Ibid., p. 8. - 21 -

then not so much concerned with time gaps in protection. In a letter dated 30 January 1995, again

from the Permanent Representative of Croatia to the United Nations , Croatia again stated:

“[t]he representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro)
have been p revented from participating in . . . conferences of State parties to
multilateral treaties . . . (i.e., . . . Convention on the Right s of the Child, International
Convention on Elimination of All Forms of Racial Discrimination, International

Covenant on Civil and Political rights, etc.) as the Federal Republic of Yugoslavia
(Serbia and Montenegro) had . . . tried to participate in international forums as a State
party without having notified its succession . . .”

21. Again, no claim of continuity  quite to the contrary: Croatia always insisted on

discontinuity. What is however most telling, is how Croatia then perceived the legal effect of any

eventual succession, by the Respondent, to human rights treaties such as the Genocide Convention.

As Croatia stated it: [slide on]

“Should the Federal Republic of Yugoslavia (Serbia and Mont enegro) express
its intention to be considered a party, by virtue of succession, to the multilateral
treaties of the predecessor State with effect as of 27 April 1992, the date on which the

Federal Republic of Yugoslavia (Serbia and Montenegro), as a new State, assumed
responsibility for its international relations , the Republic of Croatia would take note
of that notification of succession.” 42 [Slide off]

22. Mr. President, Members of the Court, Croatia consistently took the position that the FRY

would only become bound by the date you have by now heard so often and I apologize for that,

namely 27 April 1992. And where was Croatia’s claim for continuity then when, as

Professor Crawford put it, it was needed most? And does Croatia’s insistence on continuit y now,

when it is serves its purposes in this case, not ring a little hollow?

III. Position taken by third States and the Court

23. As shown, Croatia’s position as then taken was shared by all relevant stakeholders,

43
including the Arbitration Commission of the Peace Conference of the Former Yugoslavia .

24. Let me just give you one more example : it relates to the reaction of Bosnia and

Herzegovina to Serbia’s attempt to accede to the Genocide Convention in 2001.

Bosnia-Herzegovina stated that the “Agreement on Succession Issues” of 2001 concluded by the

41
Letter dated 30 Jan. 1995 from the Permanent Representative of Croatia to the United Nations , addressed to the
Secretary-General, UN doc. A/50/75-E/1995/10, 31 Jan. 1995; see also, POY, Ann. 10; emphasis added.
42Ibid.; emphasis added.
43
See CR 2014/14, p. 14, para. 28 (Zimmermann). - 22 -

successor States of the former Yugoslavia  which obviouslyCroatia, as a contracting party to 

and Bosnia stated, that agreement:

“implies that the Federal Republic of Yugoslavia has effectively succeeded the former
Socialist Federal Republic of Yugoslavia as of 27 April 1992 as a Party to the
Genocide Convention“. 44

Bosnia then went on and stated: [slide on] “27 April 1992 [is] the day on which FRY [sic!] became

bound to [sic!] the Genocide Convention . . .” 45 [Slide off]

25. Mr. President, l et me now consider what this Court , what you said on the matter.

Professor Crawford claimed that your 2008 J udgment was irrelevant, quoting its paragraph 129 46.

Let us see what you stated there. You confirmed that 27 April 1992 is to be considered  and you

will see it on the screen: [slide on] “27 April 1992 is the date on which the FRY came into

47
existence as a separate State, capable of being a party in its own right to the Convention” . [Slide

off]

26. The sole question, according to the Court, that remained was the “question of the

applicability of the obligations under the Genocide Convention to the FRY before 27 April

48
1992” .

27. But if the Respondent State  as you put it, as the 2008 Judgment put it  had not even

been capable of being a party to the Genocide Convention before the date , this question can then

only be an issue of the retroactive application of the treaty.

IV. No gap in protection

28. Mr. President, Croatia has argued that if one wer e to follow Serbia’s argument on issues

of jurisdiction, States would enjoy impunity when genocide is committed in times of transition 49.

44
Communication of Bosnia-Herzegovina to the Secretary-General dated 27 Dec. 2001 regarding the accession of
Yugoslavia to the Genocide Convention, Endnote 14 of the Convention, available at: https://treaties.un.org/
pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en.
4Ibid.

4Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 460, para. 129.

4Ibid.
48
Ibid.
4CR 2014/21, p. 22, para. 43 (Crawford). - 23 -

5051
29. What, however, Croatia disregards is that, as this Court has stressed time and again , a

lack of jurisdiction does not mean that States are freed from their obligations under either

customary law or under the Genocide Convention.

30. Croatia also disregards the possibility of enforcing obligations through other States rather

than through the Court, especially when we deal with obligations erga omnes.

31. Croatia also disregards the fact that the Security Council, can take enforcement action

when genocide is being committed. Indeed, the Security Council has done so in the past on several

occasions, including concerning the conflicts in Bosnia, Rwanda and Sudan.

32. Croatia similarly disregards the possibility of invoking the crimina l responsibility of

individuals, in particular, in situations of transition. This is confirmed by the very creation of the

ICTY by the Council and by the Libyan and the Sudanese ICC referrals.

33. Finally, Croatia also disregards the possibility of the Court exercising ju risdiction other

than under Article IX of the Genocide Convention on the basis of jurisdictional title s covering not

just treaty breaches. And t he Ethiopian-Eritrean example I mentioned in the beginning illustrates

this very point.

34. On the whole, the so-called time gap argument simply does not apply if one was willing

to look beyond the walls of this Great Hall of Justice, or even if one was willing to take a simple

look beyond the Genocide Convention . I nternational law constitutes a multi- layer, multi- actor

legal régime. While the Court is important, is not the only mechanism to enforce the prohibition of

genocide, and the Genocide Convention is not the only source of the prohibition of genocide.

35. Mr. President, this is confirmed by the practice of reservations to the Genocide

Convention. States as diverse as, inter alia, Algeria, China, India, Morocco, the United States and

Venezuela, all have made reservations as to Art icle IX. They are thereby preventing the Court

from exercising jurisdiction under Article IX. The Court has, on several occasions, confirmed the

52
validity of such reservations , including in cases brought by Serbia itself . The Court has thus

50
See e.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p p. 52-53, para. 127.
51CR 2014/14, p. 56, para. 38 (Zimmermann).
52
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006 , pp. 32-33, paras. 66 ff.; Legality of Use of
Force (Yugoslavia v. Spain), Provisional Measures, Order, I.C.J. Reports 1999, p. 772, paras. 32-33. - 24 -

accepted what Croatia would probably call a permanent and unlimited time gap in the protection

under Article IX and the Court accepted it. If Croatia was right , the Court would have certainly

nullified such Article IX reservations but you never did.

36. Besides, Croatia itself has frequently accepted such Article IX reservations 53. It seems

that Croatia, outside this courtroom, is not concerned with any gap it now alleges. Croatia did not

even object when, in 2006, Montenegro confirmed the Art icle IX reservation Serbia and

54
Montenegro had made in 2001 .

37. Summarizing, if one takes a holistic and realistic approach to the matter, it becomes

obvious that Croatia’s time gap argument ignores the very reality of international law.

V. The 27 April 1992 declaration

38. Mr. President, let me now move on to the 27 April 1992 declaration. I have four points

to make. My arguments relate

 first, to the alleged binding force of the declaration,

 second, the content of it, as interpreted by the Court,

 third, Croatia’s behavior on the matter,

and, finally,

 fourth, the relevance of the declaration within the context of your 2008 Judgment.

39. As to the alleged binding effect of the declaration , Serbia has dealt with this in detail in
55
its written and oral arguments . Croatia has thought it proper not to deal with these arguments in

its second round of oral argument.

40. Second, the Court itself limited the effect of the declaration, as “having had the effects of

a notification of succession to treaties” 56. The Court did so in light of the very limited formal

requirements for such notifications set out in Article 2 (g) of the 1978 Vienna Convention on State

53
The following States have acceded respectively succeeded to the Genocide Convention after Croatia had
become a party with an Art. IX reservation without Croa tia lodging an objection: Bangladesh, Malaysia, Singapore and
Montenegro.
54See for further details CR 2008/12, p.41-42, paras. 39-45 (Zimmermann).

55See e.g. CR 2014/14, p. 60 et seq., paras. 58 ff. (Zimmermann).
56
Croatia, p. 451, para. 111. - 25 -

57
Succession to Treaties . Besides, the Court took its position in light of what you called the

“essentially confirmatory”character of such notifications of succession 58.

41. Assuming State responsibility for each and every violation of international law allegedly

committed by one’s predecessor State, is however of a completely different magnitude. It can not

be subject to a similarly low standard of formality . It is for this very reason that the Court limited
59
the effect of the declaration as amounting, at most, to a notification of succession with an effect

ad futurum only.

42. Third, Croatia again completely disregards its own previous behaviour: it has in the past ,

as shown, simply rejected any legal effect of the declaration whatsoever 60; it was only in 2010 that

it finally referred to the declaration a s having had the effect of a binding unilateral declaration.

There was accordingly no reliance whatsoever by Croatia. Counsel for Croatia had nothing to say

on that either.

43. Finally, fourth , the interpretation of the declaration as constituting an ac ceptance for

State responsibility for acts pre -dating 27 April 1992 is not compatible with your 2008 J udgment.

As you will recall, the Court in 2008 found that it needed further information and further arguments

to determine whether it has temporal jurisdiction, and whether the R espondent can be held

accountable for acts before the critical date. It is for that reason that the Court in 2008 joined

Serbia’s preliminary objection ratione temporis to the merits.

44. Mr. President, if Croatia was right, and if the declaration was indeed meant to assume

responsibility, the Court in 2008 would have simply rejected Serbia’s third preliminary objection.

It would have sufficed to state that the Respondent had, by virtue of its declaration and its

subsequent behaviour, already in 1992, accepted State responsibility for acts pre-dating that date, as

well as the applicability of the Genocide Convention for that very period. Joining Serbia’s

temporal preliminary objection to the merits would have been simply redundant and nonsensical.

The simple fact that the Court joined Serbia’s third preliminary objection to the merits constitutes,

57
Croatia, p. 450, para. 109.
58Ibid.

59Ibid., p. 451, para. 111.
60
Ibid. - 26 -

therefore, unequivocal evidence that Croatia’s approach is simply wrong and plainly incompatible

with what you decided in 2008.

45. Mr. President, that brings me to the issue of succession to responsibility.

VI. Succession to responsibility

46. Last Friday at precisely 10.35 a.m., i.e. less than half an hour before concluding its case,

Croatia, for the first time ever since it submitted its A pplication in 1999, raised the question of a

possible succession, by Serbia, to the obligations incurred by its predecessor State, the SFRY for

having allegedly committed genocide prior to its dissolution. That behaviour by the Applicant

raises various issues, including those of the proper administration of international justice before this

Court.

47. First, Croatia has, at this late stage of the proceedings, introduced a new claim, based on

the concept of State succession to responsibility. Yet, as you have confirmed in your

jurisprudence, in order to bring such a new claim not already contained in the Application, it must

61
have either, as a matter of substance, been included in the original claim , or must arise directly

out of the question which is the subject-matter of the Application 62. That is not the case.

48. Second, as again confirmed in your jurisprudence, the very timing of such a new claim

raises serious doubts as to its admissibility as such 63.

49. Third, Croatia had never previously raised the matter with Serbia, and accordingly no

dispute had arisen as between the P arties at the relevant date, as required by the compromissory

clause under which the case has been brought.

50. Fourth, even if there has been a dispute as to the possibl e succession, by Serbia, to the

obligations of the SFRY at the relevant time, it is not one covered by Art icle IX of the Genocide

Convention since it does not relate to a dispute as to the application, interpretation or fulfilment of

the Genocide Convention by the Parties, as you have confirmed, Mr. President 64.

61
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, pp. 240 ff.; p. 266, para. 67.
62Ibid.

63See mutatis mutandis, Legality of Use of Force (Serbia and Montenegro v. Belgium), Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999 (I), pp.138-139, paras. 42-44.
64
Croatia; separate opinion of Judge Tomka, p. 520, para. 13. - 27 -

51. Fifth, the question whether or not one or more of the successor States of the SFRY might

have succeeded to the delictual obligations of the SFRY does not only concern Serbia, but all

successor States of the SFRY. Those include Montenegro which, at the relevant date of succession,

27 April 1992, still formed part of the Respondent. Those other successor States are thus to be

considered necessary third parties within the meaning of your Monetary Gold jurisprudence 65.

52. Six, as already previously mentioned, both Croatia and Serbia are parties to the

2001 “Agreement on Succession Issue” 66 which in Article 2 of its Annex F provides that  and

you have it in front of you: [ slide on] “All claims ag ainst the SFRY which are not otherwise

covered by this Agreement shall be considered by the Standing Joint Committee established under

67
Article 4 of this Agreement.” [Slide off]

53. This provision, according to the former Special Negotiator, the late Sir Arthur Watts,
68
governs claims arising out of succession to international responsibility directed against the SFRY .

It precludes the submission of the claim in the current proceedings, or, at the very least,

presupposes that prior to bringing the matter before the C ourt, Croatia ought to have seis ed the

Committee set up by the Agreement. Yet, Croatia has so far never done so.

54. Finally, seventh , and on the substance of Croatia’s belated claim, as rightly put by the

69
latest edition of Brownlie’s Principles of Public International Law , the better arguments suggest

that new States do not succeed to responsibility. In the Lighthouse Arbitration, to which counsel

70
for Croatia referred , the tribunal specifically referred to the fact that it was dealing with the

violation of a private contract 71. As a matter of fact, France as the applicant State in those

proceedings, itself had advocated the principle of non- succession and had proposed a limited

exception only for cases of concessions, and it is in light of these considerations that the award has

to be seen.

65Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern
Ireland and United States of America), Judgment, I.C.J. Reports 1954, p. 32.
66
Agreement on Succession Issues, adopted 29 June 2001, United Nations, Treaty Series ( UNTS), Vol. 2262,
p. 251.
67
Ibid., p. 293.
68See P. Dunberry, State Succession to International Responsibility (2007), p. 212, fn. 294.

69J. Crawford, Brownlies’s Principles of International Law (8th ed., 2012), p. 442.
70
CR 2014/21, p. 21, para. 41 (Crawford).
71Lighthouses Arbitration (France v. Greece), Decision No. 23, International Law Reports (ILR), pp. 81, 92. - 28 -

55. Mr. President, this brings me to the end of the first part of my presentation of today. I

would now kindly request you to call on ProfessorTams to the Bar. Thank you.

The PRESIDENT: Thank you very much, Mr. Zimmermann. It is now your turn,

Professor Tams, to address the Court. You have the floor.

Mr. TAMS: Thank you, Mr. President.

INTRODUCTION

1. Mr. President, Members of the Court, last week  after years of assertion  you finally

heard Croatia engage with the temporal scope of the Convention. My purpose today is to respond

to the arguments we have now heard . I will also revert to Article 10, paragraph 2, of the ILC

Articles on State Responsibility . After my presentation, Professor Zimmermann will conclude

Serbia’s argument in so far as it relates to events predating 27 April 1992.

R ETROACTIVITY OF THE G ENOCIDE CONVENTION AND ITS A RTICLE IX

2. Mr. President, Members of the Court, Professor Crawford last week distinguished between

the temporal scope of the Convention as such and thatof its jurisdictional clause, Article IX.

The temporal scope of the Convention

3. On the first point, he faithfully reiterated Croatia’s mantra that there was no need to

72
discuss retroactivity. All that was required, he said, was the continuous application of the

Convention. So, continuity is the new watchword. Professor Crawford further sought to alleviate

concerns by saying that Croatia did not argue for what he called “full retroactivity ”, and he
73
understood that to mean the application of the Genocide Convention to events pre -dating 1951 ,

when it first entered into force. So the terms of the debate have changed slightly: “retroactivity not

properly so- called” has now become “continuity”; and “retroactivity proper” is now “ full

retroactivity”4. But, Mr. President, the substance of Croatia ’s argument  the substance  has

not changed one iota: a s before, Croatia ’s argument depends on an effect that is described in

72
CR 2014/20, p. 67, para. 11 (Crawford).
73CR 2014/20, p. 66, paras. 9-10 (Crawford).
74
Cf. RC, para. 7.13. - 29 -

Article 28 of the Vienna Convention : Croatia wants to “bind . . . [Serbia] in relation to acts or

facts . . . which took place before the date of the entry into force of the treaty [the Genocide

Convention] with respect to that party [Serbia]” . 75

76
4. Now, Croatia may call this “retroactivity not properly so -called” , or lesser retroactivity,
77
or even “continuity” . But international law uses a different term : international law calls this

retroactivity. As I have said in the first round : Article 28 defines retroactivity . Its approach is

deliberately formal, it is not formalistic , it is formal. Article 28 looks at the State party whose

conduct is assessed  that is Serbia. It does not look to predecessor States. It leaves that question

to the rules on State succession. Article 28 asks when that State party became bound, which for the

case of Serbia the international community says was on 27 April 1992. Mr. President, note that the

date on which the treaty as such first ent ered into force  1951 in our case, the Genocide

Convention  that date does not feature in Article 28; for the purposes of retroactivity in the way

international law defines it  not Croatia, but international law  for the purposes of retroactivity

the critical date is the date when the treaty entered into for ce for a particular party, not when it

entered into force for the first time . Legal effects preceding that date are called retroactivity,

whether they go back to before 1951 or not.

5. And a ll this is deliberate because the international community wants clarity when

identifying the temporal scope of treaty obligations . Customary international law , as

Professor Zimmermann has shown, helps avoid the time gaps about which Croatia now, suddenly,

is so worried. Rules on State identity and State succession d eal with changes in the legal

personality of a State party. But treaty law matters here and as far as treaty law is concerned,

Article 28 is clear : it identifies the critical date ; and it formulates a presumption and two

exceptions.

6. Now, Mr. Presid ent, Croatia has said nothing on the two exceptions set out in

Article 28  express and implied retroactivity . Last week, you were told again that the

75
Article 28 of the Vienna Convention on the Law of Treaties ( VCLT).
76RC, para. 7.13.

77CR 2014/20, p. 67, para. 11 (Crawford). - 30 -

78
Convention was declaratory  and again, we agree. But we maintain that nothing in the text of

the treaty, nor in its very nature, mandates the application of the Genocide Convention to acts and

facts that pre-date its entry into force for any given State party . And this is the test, Mr. President,

this is the test that Croatia’s argument simply does not a ddress. As Croatia has now begun to

79
emphasize the duty of prevention  which featured prominently in the second round

pleadings perhaps I may briefly recall my discussion of the temporal scope of that particular

obligation. And I can be brief because I have made the point two weeks ago: can we plausibly say

that States, when joining the Convention régime  and I gave the examples of the United States or

Nigeria, which ratified late in the day  did they plausibly thereby agreed to a duty to have

stopped atrocities decades earlier ? Most certainly not. If Article 28 is taken seriously, which we

say it must, it is clear that the Convention does not apply to events pre-dating 27 April 1992.

The temporal scope of Article IX

7. Mr. President, Members of the Court, Croatia ’s main argument  I think it is fair to

say  focuses not on the Convention as such, but on one of its provisions, Article IX. Last Friday,

Professor Crawford defended the view that jurisdictional clauses, like Article IX, follow a separate

temporal logic, and he continued to refer to this as the Mavrommatis principle 80. He seemed to

accept that this Judgment  Mavrommatis  depended on the terms of the specific clause. But
81
the principle, he said, “is well established and is not unique to Mavrommatis” .

8. Now, Mr. President, before assessing the evidence put forward in support of that

statement, perhaps I can invite you to reflect on a preliminary matter? Assume Croatia were

correct. Assume the principle existed. Where would we expect this “well-established” principle to

be reflected? We are talking about a treaty clause, so I suggest we would look to Article 28 and its

customary equivalent. The specific provision that the international community has agreed upon to

determine the temporal scope of treaty provisions. Article 28 governs inter -State treaties

irrespective of their nature , and irrespective of their character . It applies to the provisions of a

78
See e.g., CR 2014/21, p. 19, para. 36 (Crawford).
79See e.g., CR 2014/20, p. 10, para. 2 (Sands); p. 58, para. 46 (Starmer).

80CR 2014/21, pp. 13-14, para. 22 (Crawford).
81
CR 2014/21, p. 13, para. 22 (Crawford). - 31 -

treaty, without exception. It sets out a flexible system , a presumption and two exceptions. It was

drafted by ILC members and by State delegates with ample experience in treaty making and in

international litigation.

9. Mr. President, Members of the Court, when these experts drafted Article 28 of the Vienna

Convention, why did they not include a special rule for compromissory clauses ? It would have

been so easy. [Slide on] On the screen, you can see two versions of Article 28: the real Article 28,

below, and a hypothetical version  one based on Croatia’s argument. If Cro atia were right, if

jurisdictional clauses were special, Article 28 would presumably have been drafted as follows 

and it is on the screen: “unless a different intention appears from the treaty or is otherwise

established, [its] substantive provisions . . . do not bind a party in relation to [ any] acts [or] facts

[which took place, or any situation which ceased to exist before the date into entry into force of the

treaty  with respect to that party] ”. That would have been a rather straightforward way 

perhaps even an elegant one , if I may say so  to give effect to what Croatia calls the

“Mavrommatis principle”.

10. But a quick look at the real Article 28 makes clear that the reference is not to the

substantive provisions, it is to “its provisions”  “les dispositions d’un traité” in French  all of

them. Now, do jurisdictional clauses not count among “the provisions of a treaty” ? What

happened to Croatia ’s “well -established Mavrommatis principle”? It seems to have got lost

somewhere on the way  on the way from Mr. Mavrommatis’ concessions in Palestine to the

Vienna Diplomatic Conference  perhaps it was lost on the Balkans, on the way? It does not

feature in the ILC commentary either. Perhaps the drafters just forget about jurisdictional, perhaps

this was an oversight? [Slide off]

11. Well, Mr. President, Members of the Court, of course it was not an oversight. Of course,

the drafters were aware of treaty-based compromissory clauses. Of course, compromissory clauses

are “provisions of a treaty ” in the sense of Article 28 . And of course the Vienna Convention

régime applies . Nothing in the text, or the context, of Article 28 points to a special rule for

compromissory clauses. Nothing supports Croatia ’s distinction between substantive and

jurisdictional clauses of a treaty. Both are subject to the same régime of retroactivity  the régime

reflected in Article 28. So unless Croatia can show that , as Article 28 puts it , “a different - 32 -

interpretation appears from the treaty or is otherwise established ”, which it does not even try to do.

Unless this can be shown, Article IX cannot apply to acts and facts pre-dating 27 April 1992.

12. Mr. President, Members of the Court, when discussing the temporal scope of Article IX,

Croatia ignores Article 28. But it points us to two cases, Mavrommatis and Phosphates in

Morocco. The first, as I discussed in the first round, does not support any general proposition. But

Professor Crawford was quick to move from Mavrommatis to Phosphates  from Palestine to

Morocco, as it were 82. So does the Phosphates case help Croatia in establishing a legal principle of

general application? For three reasons, we submit it provides even less support than Mavrommatis.

13. First, Phosphates in Morocco was really all about upho lding temporal limitations, not

about overcoming them: France  the Respondent in that case  had been clear, the PCIJ should

only have jurisdiction over “ disputes which may arise after the ratification of the present
83
declaration with [respect] to situations or facts subsequent to this ratification ” . And the Court

upheld that restriction. It gave a fact to a restrictive clause. A special clause. It did not overcome

restrictions, it upheld them.

14. Second, contrary to Croatia ’s assertion, the Court in the Phosphates case  if

anything  contemplated that generallythere should be a restrictive reading of jurisdictional titles.

It made clear that  and I quote, and you see it on the screen [slide on]: “[J]urisdiction only exists

within the limits within which it has been accepted. [Now of course, and the quote continues.] In

this case, the terms on which the objection ratione temporis submitted by the French Government

84
is founded, are perfectly clear.”

15. And so, because the terms were clear, g eneral principle supporting a restrictive

interpretation did not have to be relied on. But, general principles were referred to. The PCIJ

spoke of the “restrictive interpretation ”  and that too is on the screen  the “restrictive

interpretation that, in case of doubt, might be advisable in regard to a clause which must on no

85
account be interpreted in such a way as to exceed the intention of the States that subscribed to it” .

82CR 2014/21, p. 13, para. 22 (Crawford).
83
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 22.
84Ibid., p. 23.
85
Ibid., pp. 23-24. - 33 -

16. Now, on no account must such a clause “exceed the intention of States”, in subscribing to

it or in conferring jurisdiction. That was the PCIJ’s concern in the Phosphates case  and that is

86
the same concern that this Court shown time and again, for example, in the Certain Property case

and that is the same concern that we say, should guide you in the present proceedings. [Slide off]

17. Mr. President, Members of the Court, Croatia’s attempt to derive a general principle

governing compromissory clauses from Phosphates in Morocco suffers from a third weakness, and

this is perhaps the most obvious one. The Phosphates in Morocco case simply was not based on a

compromissory clause. The case was based on an Optional Clause declaration: Article 36,

paragraph 2, not Article 36, paragraph1; a different jurisdictional title. Now , both compromissory

clauses and Optional Clauses of course are titles of jurisdiction, but beyond that, a nd you made that

87
clear in the Certain Property case, they cannot simply be equated .

18. An Optional Clause declaration is a unilateral act, it is not a treaty commitment. An

Optional Clause declaration is self -standing, it is not integrated into a treaty. For treaty -based

compromissory clauses, we have the clear rule of Article 28 of the Vienna Convention on the Law

of Treaties (VCLT). For treaty -based compromissory clauses, we have the guidance you provided

88
in many cases, including the Georgia v. Russia case . For Optional Clause declarations there is no

equivalent. So whatever you make of the Phosphates case  in which, I repeat, the PCIJ looked to

the terms of the particular jurisdictional title and of which the PCIJ was mindful not to stretch

jurisdiction beyond the parties’ intentions  whatever you make of the Phophates case, it

concerned Article 36, paragraph2, Optional Clauses, not Article 36 (1) compromissory clauses. It

does not support Croatia’s claim that treaty -based compromissory clauses should apply

retroactively.

19. Mr. President, Members of the Court, a brief reprise, as it were, on Georgia v. Russia.

Last Friday, Professor Crawford said I had read too much into your Judgment and he correctly

noted that you could leave open Russia’s third preliminary objection in that case which had

86
Certain Property (Liechtensteinv. Germany), Preliminary Objections, Judgment, I.C.J.Reports 2005, p. 6.
87Ibid., p. 24, para. 43.
88
Application of the International Convention on the Elimination of All Forms of Racial Discrim ination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 70. - 34 -

expressly addressed questions ratione temporis . But , Mr. President, judgments can make points

even without addressing them under a dedicated heading. And, with that in mind, permit me to

have a second look at Georgiav. Russia.

20. You began your analysis by looking at “Documents and Statements from the Period

89
before CERD Entered into Force bet ween the Parties on 2 July 1999” . Why did you do this?

You did so with a view to finding whether there was a dispute between the parties, Georgia and

Russia, that came within the jurisdictional clause, Article 22 CERD  and Russia had disputed

that poin t; that was its first preliminary objection 90. You then reviewed a whole range of

statements and documents which Georgia felt proved the existence of a long -standing dispute,

going back to before 1999; but you held “ that none of the documents or statements provides any

basis for a finding that there was such a dispute by July 1999” 91when the Treaty entered into force

between the Parties. And this, in turn, meant  and now we come to paragraph 64 which I relied

on in my first round pleading  that Georgia had not been able to establish “its contention that ‘the

92
dispute with Russia over ethnic cleansing is [a] long-standing and legitimate [dispute]’” . And

then you added, still at paragraph 64, that

“even if this were the case, such dispute, though about racial discrimination, could not
have been a dispute with respect to the interpretation or application of CERD, the only
kind of dispute in respect of which the Court is given jurisdiction by Article 22 of that
93
Convention” .

21. Mr. President, Members of the Court, even if Georgia had been able to point to a dispute

about racial discrimination at a time before the Convention entered into force for the parties  this

“could not have been a dispute with respect to the interpretation or application of CERD”. How are

we to read this  if not that only disputes arising at a time when both parties are bound are

disputes coming within the scope of the jurisdictional clause? Y ou did not need to decide about

Russia’s third preliminary objection; you made a much more fundamental point: there was no

dispute in the sense of the jurisdictional clause, and there could not have been one before the

89Application of the International Convention on the Elimination of All Forms of Racial Discrim ination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 94, para. 50.
90
Ibid., p. 81, para. 23.
91Ibid., p. 100, para. 63.

92Ibid., p. 100, para. 64.
93
Ibid., p. 100, para. 64. - 35 -

Convention was in force between the parties. That is the relevance of your Judgment in the

Georgia v. Russia case.

22. Mr. President, Members of the Court, if we take stock, what remains of Croatia’s

“well-established [Mavrommatis] principle” 94, the principle that says that compromissory clauses

generally apply to prior acts and facts? What evidence is there to suggest su ch clauses should not

be governed by the principles set out in Article 28? What evidence is there to refute your holding

in the Georgia v. Russia case? Mavrommatis was exceptional and it depended on the special terms

of the jurisdictional title. The Pho sphates Judgment concerned a different jurisdictional title, an

optional clause not a compromissory clause and, again, it was narrowly reasoned. Mr. President,

Members of the Court, through two rounds of written and oral pleadings Croatia has not been abl e

to come up with any evidence supporting its claim that compromissory clauses are special. Serbia

submits that this is indicative. Article IX does not introduce retroactivity through the back door.

C ROATIA ’S ARGUMENTS RELATING TO A RTICLE 10 (2) ILCA RTICLES

23. Mr. President, M embers of the Court, this brings me to my second point, and that is

Croatia’s attempt to clutch at the straw that is Article 10 (2) of the ILC Articles.

Issues clarified during the first round of oral argument

24. On this I can be relatively brief, because Croatia has said so very little to our arguments.

In fact, judging from Croatia’ s response, the P arties now seem agreed on three basic points and I

will quickly go through them.

25. The first is that Article 10 (2) of the ILC Articles was drafted to cover insurrectional

movements and nationa l liberation movements. Draft A rticle 15 (2) from the first reading and

Professor Crawford’s first report from 1998 faithfully reflect this. That was the drafters intention

26. Second, the addition in 1998 of the words “and other” before movements, so there would

be insurrectional and other movements, was a “generic addition”. It meant no substantive change,

it ensured that the draft could be acceptable to those feeling that national lieration movements

94CR 2014/21, p. 13, para. 22 (Crawford). - 36 -

were separate from insurrectional movements  no substantive change intended. We have not

heard anything from Croatia to dispute this reading.

27. Third, there is no practice on “other movements”. Again, that is, the application of the

purported rule to movements that are neither insurrectional nor liberation movements  there is no

practice whatsoever: Croatia was encouraged to point us to examples, but we have heard nothing.

Instead, Professor Crawford referred to cases, he called t hem within “the same general

95
configuration” . So a general configuration, some sort of general principle rather than

Article 10 (2) now seems to matter and perhaps that is convenient because that general principle

may come with lesser implications, with lesser conditions. If you argue to a principle you need not

establish the wording of a clause. Serbia of course does not accept that such a general principle

exists  and wonders where it comes from. But that is a separate matter. What Croatia’s

argument last week suggests is that , unless there is such a general principle, extending beyond

Article 10 (2), then Croatia’s claim must fail.

28. Mr. President, M embers of this Court, these are important interpretative convergences,

which we hope will facilit ate the Court’s task. But m any questions of interpretation continue to

divide the Parties and in the remainder of my time, I will deal with two of them.

Attribution of conduct allegedly directed or controlled by the movement

29. The first , Mr. President, is fairly discrete but it is important . It concerns the scope of

attribution under Article 10 (2) of the ILC Articles: whose conduct is covered by the reference to

the “conduct of a movement” that Article 10 (2) speaks of? Addressing that point briefly last week,

Professor Crawford likened movements to States, they were just the same. Just like a State could

be responsible for conduct of its organs  Articles 4 and 5  and, exceptionally, for conducts of

non-organs, of others, for example under Article 8  so could a movement . And, he said : “The
96
usual principles of attribution apply” . Serbia respectfully disagrees. We submit that a movement

can only be responsible for acts of its organs, not for acts of non-organs. In the exceptional setting

9CR 2014/21, p. 27, para. 55 (Crawford).

9CR 2014/21, p. 25, para. 50 (Crawford). - 37 -

of Ar ticle 10 (2), which is unusual, not usual , there is no room to apply another exception,

Article 8, by analogy.

30. And, Mr. President, the drafting history, is in fact, quite clear on this. The ILC had to

address this matter, as so many insurrectional s truggles are waged by alliances of factions or

alliances of movements, it is not always clear -cut  think of PLO and Hamas to take a recent

example. So it was important for the ILC to clarify whose conduct would be transferred to the new

State, once emerg ed: only that of the core movement, or also that of groups making up the

penumbra, if you want, if directed andcontrolled?

31. Now this is what the ILC said in paragraph 6 of its Commentary, and you see it on the

screen [Slide 4 on]:

“The attribution to the new State of the acts of the organs of the insurrectional
movement which preceded it, and of such acts only , is . . . justified by virtue of the
continuity between the organization of the insurrectional movement and the
97
organization of the State to which it has given rise.”

32. Mr. President, “acts of the organs of the movement . . . and such acts only”  the core

movement, not the penumbra. This was no accident, this was deliberate: the notion of “organs of

the movement” is used throughout the ILC Commentary , and of course Professor Crawford used

99
it in his first report in 1998 . The draft provision he put forward refers to “ Organs of the

movement”: t hat terminology was chosen at a time when the basic framework of the rules of

attribution distinguishing between responsibility for acts of organ s, Article 4 (5) and

exceptionally responsibly for acts of others, non-organs as it were  was agreed. And faced with

this dichotomy  organs versus non-organs  the ILC opted to formulate Article 10 (2) as a rule

covering conduct of its organs only. It made clear thereby, by implication, that t here was to be no

attribution outside the core structures, no attribution of conduct by “non -organs”  such as

paramilitary groups. No analogy withArticle 8. [Slide 4 off]

33. Mr. President, Members of the Court, tomorrow my colleagues will demonstrate that the

alleged Greater Serbia “ movement” never controlled or directed paramilitaries in the sense of

97
Yearbook of the International Law Commission (YILC) , 1975 Vol. II, p. 101, para. 6.
9See, e.g., YILC, 1975, Vol. II, pp. 100-101, e.g., at paras. 1, 3, 4 ( “ruling organization of the insurrectional
movement”), 5 (“organs of the organization which grew up during the insurrection” ).
99
YILC, 1998, Vol. II (1), 57. - 38 -

Article 8. My point is separate. Ev en if it had, and even if Article 10 (2) applied  which, we

submit, are two fairly substantial “ifs”  those groups at no time were organs of the movement.

Their conduct, for that reason alone, cannot form the basis of a judgment against Serbia.

Article 10 (2) as a rule of attribution, not of responsibility

34. Mr. President, Members of the Court, this leaves one final point in my discussion of

Article 10 (2). It is by far the most fundamental disagreement dividing the P arties, and it concerns

the legal effects of the pr ovision. As Professor Zimmermann showed in the first round,

Article 10 (2) is a rule of attribution  not a provision creating new treaty rules, and certainly not a

provision retroactively extending jurisdictional title s. What has been Croatia’s response?

35. Curiously, Croatia has remained almost completely silent . To be fair,

Professor Crawford did repeat Croatia ’s claim that “Article 10 (2) is not limited to substantive
100
obligations that apply specifically to movements” . But this is not the same as to say that a State,

before it came into existence, was bound by the Genocide Convention and that questions of

compliance with this treaty could be litigated before this Court . So does Article 10 (2) really

perhaps establish a new way for would -be State s to become bound by a treaty, alongside

ratification, succession and accession, is it perhaps a retroactivity clause in disguise  whose

retroactive effect so far no one has grasped, that escaped the ILC during decades of debate? To call

this far-fetched would be a bit of an understatement.

36. And, in fact, even Croatia’s own evidence contradict s such far-fetched constructions.

Searching for comparable cases, on Friday, Professor Crawford referred you to the emerging S tate

of Poland (after World War I ) and to Algeria (prior to and after 1962). Once established, Poland

101
and Algeria, he said, had been held responsible for conduct of insurrectional movements . But

being held responsible is not enough, even if this were right. If Croatia wants these cases to

support its claim it needs to ask two further questions. Were Poland and Algeria held responsible

for treaty breaches and did international courts have jurisdiction to deal with claims against them?

And on both questions, we submit, the answer is “No”. Of course not. In the Polish Upper Silesia

10CR 2014/21, p. 24, para. 49, (Crawford).

10Ibid., pp. 26-27, paras. 53-54 (Crawford). - 39 -

case, the PCIJ was distinctly hostile to the idea that the Polish National Committee (or indeed the

nascent State of Poland) should have enjoyed any treaty-based rights or duties 10. As regards

Algeria: it is difficult to make much of French court decisions which, as Croatia notes, “did not

103
[usually] make findings against Algeria” . But to the best of our knowledge they certainly have

made no findings based on treaty breaches. And, as regards jurisdictional titles, I note in passing

that Algeria joined the Genocide Convention in 1963, and it made a reservation to Article 9.

France of course had been bound before, without a reservation. Under Croatia’s approach Algeria

could be held responsible before this Court for acts of the FLN and, incidentally, Croatia could

bring such a claim, because nothing depended on its independence in October 1991. But all this is

far-fetched.

37. So Mr. President, Members of the Court, after two rounds of written and oral pl eadings

on Article 10 (2)  the provision which Professor Crawford says will now become famous 

Croatia has still not been able to tell us how the principle could apply in the present instance in

which responsibility can only be invoked for treaty breache s. If Algeria and Poland are Croatia’s

best examples of what Professor Crawford referred to as “situation[s] of the same general

104
configuration” , if these are the best examples, then, with due respect, all they do is betray the

weakness of Croatia’s claim.

38. Mr. President, Members of the Court, all this explains Serbia’s scepticism with respect to

Article 10 (2) of the ILC Articles. Croatia overstretches a narrow provision; it seems now to have

stopped caring about its wording ; and it has from the beginning, right until the end, ignored the

very specific function of Article 10 (2) as a rule of attribution only.

39. Mr. President, Members of the Court, in the Parties’ pleadings directed to the merits of

this case you have heard a lot about patterns . I have not used that term so far but, in concluding, it

seems to me that there may be a certain pattern to Croatia’s argument on jurisdiction and

admissibility too. Throughout Croatia has postulated general principles that suited its case. The

Mavrommatis principle, the principle of continuity, the statu nascendi principle, so that, in some

102
German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 28.
10CR 2014/21, p. 27, para. 54 (Crawford) (in relation to the Perriquet case).
104
Ibid., p. 27, para. 55 (Crawford). - 40 -

ways, seems to have been a pattern. Now these principles sound nice, they may even sound fancy,

but there is a c ertain Potemkin quality to them. Like Potemkin’s villages, the façade is perhaps

impressive, but there is so little behind that façade. And so, as far as jurisdiction and admissibility

are concerned, Serbia respectfully asks this Court to look beyond the façade of Croatia’s Potemkin

principles. If you do that, you will find what one tends to find behind Potemkin façades: nothing.

This, Mr. President, Members of the Court, concludes my presentation today . I am grateful for

your kind attention.

The PRESIDENT: Thank you, Professor Tams. Now I call on P rofessor Zimmerman, if his

pleading is not longer than some 15, 20 minutes.

Mr. ZIMMERMANN: Fifteen minutes maybe, Mr. President.

The PRESIDENT: OK. Please, you have the floor.

Mr. ZIMMERMANN:

PART 2

1. Thank you, Mr. President, Members of the Court. Let me now move on to the issue of the

obligation to punish and prevent, while my colleague, Professor Schabas, will deal tomorrow with

the issue of missing persons.

I. Obligation to punish genocide

2. As to the obligation to punish, I apologize to the Court to revert to the matter. This is only

due to the fact that Croatia itself thought it proper to come back to it in its second round of

pleading 10. It seems counsel for Croatia have still not read para. 442 of your Judgment in the

Bosnia case. It simply and unequivocally states: [Start slide]

“Art. VI [of the Genocide Convention] only obliges the Contracting Parties to
institute and exercise territorial jurisdiction.”6 [End slide]

10CR 2014/21, p. 23, para. 45 (Crawford).
106
Application of the Conventioon the Prevention and Punishment of the Crime of Genocid(Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports, 2007 (I), p. 226, para.442; emphasis added. - 41 -

3. Mr. President, Croatia’s allegations almost exclusively relate to events in Croatia. To that

extent, Serbia’s territorial jurisdiction is simply not implicated and I believe no more comment is

needed on the matter. That brings me to the issue of prevention.

II. Obligation to prevent genocide

4. For one, let me reit erate that, as confirmed in your Bosnia Judgment, the obligation to

107
prevent genocide does not constitute a continuous violation . Any determination on the matter

does accordingly presuppose that the Court’s temporal jurisdiction extends to the relevant ti me.

This in turn, as shown, excludes any alleged violation of the obligation to prevent genocide

pre-dating 27 April 1992.

5. In order to eventually make a finding on the matter, “which calls for an assessment in
108
concreto” as he put it, the Court would have to first determine that in a specific location and at a

specific time genocide had indeed been committed 10. The Court would then have to consider the

specificities of the situation prevailing so as to eventually make a finding on Serbia’s obligation t o

prevent genocide. It is only if it could be proven that Serbia had manifestly, as you put it, failed to

110
take appropriate measures , when faced with a concrete danger of imminent genocide, in a

specific situation, that the Court could then make a finding on a violation of the obligation to

prevent.

6. Moreover, in your 2007 Bosnia Judgment you considered it to be particularly pertinent

that the respondent had, at the relevant time, been subject to a provisional measures order of the

Court which had spe cifically required the FRY to exercise its influence vis- à-vis non- State

111
actors . In the case at hand, which was brought more than five years after the end of the armed

conflict, there simply and obviously was no such order by the Court. Put otherwise, for Croatia the

matter seems not to have been one of urgency when the acts, which it now claims were genocidal

107
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports, 2007 (I), pp. 221-222, para. 431.
108
Ibid., p. 221, para. 430.
109Ibid., pp. 221-222, para. 431.
110
Ibid., p. 422, para. 430.
111
Ibid., pp. 223-224, para. 435. - 42 -

in character, were about to take place. Otherwise they would have asked for a provisional

measures order.

7. Besides, in the Bosnia case, you also stressed that Serbia, with regard to the genocide in

Srebrenica, had been formally put on notice by the international community of the serious risk of

112
the crime to be eventually committed . Again, the situation concerning the armed conflict in

Croatia was different in that the international community never warned the Respondent of an

imminent genocide  and it did not simply because there was none.

8. Mr. President, the differences between the situation in Srebrenica in 1995, and the one in

Croatia in 1991-1992, are striking and Serbia therefore rejects Croatia’s claim as to the alleged

violation of the obligation to prevent genocide.

III. Croatia’s lack of standing as to events prior to 8 October 1991

9. Mr. President, let me now move on to the issue of Croatia’s standing related to events

pre-dating 8 October 1991 in light of your Belgium v. Senegal Judgment. It is first worth noting

that the Court’s Judgment in that case was based on the finding that the obligations arising under

the Torture Convention, just like those under the Genocide Convention, are obligations erga omnes

113
partes. This included the obligations under Articles 6 (2) and 7 (1) , which the Judgment

perceived as part and parcel of, as you put it, a “single conventional mechanism” 114. So there was

no distinction drawn  a “single conventional mechanism”. And, in the Court’s view, this

necessarily implied “the entitlement of each State party to the Convention to make a claim

concerning the cessation of an alleged breach by another State party” 115.

10. But notwithstanding this erga omnes partes character of the obligations arising under the

Torture Convention, the Judgment still and nevertheless limited the standing of a State to facts

“with effect from”  “à compter du”  the date at which it becomes a State party. In our case this

is, as far as Croatia is concerned, 8 October 1991.

112
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports, 2007 (I), p. 224, paras. 436–437.
113Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), p. 450, para. 69.

114Ibid., p. 455, para. 91.
115
Ibid., p. 450, para. 69. - 43 -

11. Professor Crawford claimed 116 that your Belgium v. Senegal Judgment, in its

paragraph 104, did refer to an entitlement of Belgium, and I quote Professor Crawford “from the

date it became party to the Convention” (emphasis added). But that is not what the Judgment said.

The Judgment did not use the phrase that Belgium has standing “from 25 July  à partir du

25 juillet 1999”. That is not what you said. Ins tead, you stated that Belgium has standing “with

117
effect of  à compter du 25 juillet 1999” and this obviously implies that it is irrelevant when the

claim is made. But what is relevant is the time the alleged treaty violations have been committed.

12. Let me also note again that this case is about treaty violations only. Accordingly, the

Court is not dealing with the obligation not to commit genocide as such which is owed to the

international community  governed by Article 48, paragraph 1 (b), of the ILC Articles. Rather,

given the jurisdictional basis under which this case has been brought, the only question that arises

are obligations erga omnes parte s, governed by Article 48, paragraph 1 (a), of the ILC Articles.

Yet, prior to October 1991 Croatia was not a party to the Genocide Convention. Accordingly, to
118
use the words of the ILC Commentary on Article 48 , Croatia was, at the relevant time, not a

member of the group to which the treaty-based obligation was owed. And it is for that reason that

it lacks standing it this regard.

119
13. This brings me to the reference by Professor Crawford to the Nauru case . I am afraid

to say that this reference is nothing but a red herring. Apart from the case not having reached the

merits stage, one cannot but not e that Nauru itself had claimed violations of obligations applicable

specifically in a pre -independence context vis -à-vis a not -yet-existing State such as, inter alia,

120
violations of Article 76 of the [United Nations] Charter , violations of the principle o f

self-determination 121, and violations of obligations of a predecessor State owed specifically towards

122
a future successor State . Those were the claims of Nauru and those are exceptional entitlements

116CR 2014/21, p. 18, para. 32 (Crawford).
117
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), p. 458, para. 104.
118Yearbook of the International Law Commission (YILC) , 2001, Vol.II, Part II, p. 126, para. 6.

119CR 2014/21, p. 13, para. 21 (Crawford).
120
Certain Phosphate Lands in Nauru (Nauru v. Australia), Application, 19 May 1989, p. 30, para. 43, available
at: http://www.icj-cij.org/docket/files/80/6653.pdf.
121
Ibid., p. 30, para. 45.
122Ibid., p. 30, para. 48. - 44 -

that do not depend on statehood. In contrast, Mr. Presi dent, Croatia invokes rights arising under a

treaty that is open to States only and Croatia was not a State at the relevant date.

14. Members of the Court, let us not be mistaken where Croatia’s argument on standing

would lead us to. Notwithstanding Croa tia having become bound by the Genocide Convention as

late as October 1991, or Bolivia having become a party in 2005 only, both States could, for

example, bring before this Court alleged violations of the Genocide Convention having been

committed during the colonial wars in the 1950s and the 1960s.

15. Mr. President, this is precisely what the late Sir Gerald Fitzmaurice had in mind in his

separate opinion in Northern Cameroons to which I have made reference 12.

IV. Concluding remarks

16. Mr. President, Members of the Court, the allegation that genocide has been committed is

a most serious one. It calls for utmost scrutiny, not only on the merits but also when it comes to the

Court’s jurisdiction and the admissibility of the claim.

17. Croatia, in order to come up with at least an arguable claim that the Court may consider

the merits of Croatia’s case when it comes to events predating 27 April 1992, requests the Court to

ignore not only its own prior behaviou r, which I have shown but to also disregard long -standing

and firmly established rules of the law of treaties. What is more, Croatia also wants the Court to

endorse a novel and almost unlimited rule on attribution, Article 10 (2) of the ILC Articles, which

in 1991-1992 had not even addressed the behavi our of so-called “other movements”, and Croatia

wants it to be combined with other broad rules such as Article 8 of the ILC Articles. Finally, it

wants you to also stretch the Court’s jurisdiction arising under Article IX of the Genocide

Convention not only ratione temporis, but also ratione materiae.

18. Croatia does so based on two strands of arguments. For one, it says that in a case where

genocide is being alleged, specific considerations should apply when it comes to issues of

jurisdiction and admis sibility, given the seriousness of the crimes, so as to avoid what it calls

impunity.

12CR 2014/14, p. 69, para. 109 (Zimmermann). - 45 -

19. Second, Croatia argues that this case constitutes a case sui generis, unique in its setting,

which will not have repercussions beyond this very case. Let me address these two propositions,

fundamentally underlying Croatia’s case, one by one.

20. As to the first argument, let me first note that it cuts both ways. It is not only most

serious for a State to bring a case of genocide, but even more serious to be the Res pondent,

allegedly being responsible for genocide. I therefore submit to you that there is a bona fide

expectation that a State should only be requested to answer such a charge on its merits, once it is

beyond doubt that indeed such State has accepted your jurisdiction on the matter.

21. What is more is that Croatia has implied, throughout its pleadings, that there are several

layers of erga omnes and jus cogens obligations, the prohibition of genocide being unique among

them. What should one then tell t he victims of apartheid and racial discrimination , given that the

Charter of the United Nations itself, ever since 1945, had the fight against racial discrimination at

its core? Are they victims of jus cogens violations not properly so called? And can i t really be

124
argued, as Croatia does , that as late as 1966, when the Convention on the Elimination of all

Forms of Racial Discrimination ( CERD) was adopted, racial discrimination, including practices of

apartheid, was still lawful under international law?

125
22. That brings me to the second issue, the so called sui generis character of this case .

Counsel for both sides agree on one proposi tion, namely that, as Professor Crawford put it mildly,

the various cases dealing with the former Yugoslavia were “a sou rce of some difficulty for the

126
Court” . Still, Croatia invites you to devise yet another sui generis solution. Yet, already your

“tantalizing brief” paragraph 34 of the 1996 J udgment “tantalizing brief”, that is what

127
Sir Michael Wood called it  your “tantalizing brief” paragraph 34 left it to use the words of

Sir Michael Wood “unclear how this finding relates to the normal rules of the temporal application

of treaties”. And Sir Michael Wood found that its implications should be considered to be

12CR 2014/21, p. 19, para. 36 (Crawford).
125
CR 2014/20, p. 63, para.1 (Crawford).
12CR 2014/21, p. 22, para. 43 (Crawford).
127
M. Wood, Participation of former Yugoslav states in the United Nations and in multilateral treaties ,
Max Planck Yearbook of UnitedNations Law (YB of UN Law), 1997, Vol. 1, p. 231 (253). - 46 -

128
“potentially far -reaching” . In your 2008 J udgment you have, as shown, in the meantime

obviously confined the legal effects of your previous holding 129, but what the example shows is that

sui generis answers to alleged sui generis situations are prone to eventually cause unforeseen, and

indeed unforeseeable, consequences for the larger fabric of international law.

23. It is against this background that Serbia , unlike Croatia, is basing its case on jurisdiction

and admissibility on generally accepted and generally applicable rules of international law.

24. Serbia therefore respectfully submits that the Court should stay true to your

well-established jurisprudence on matters such as the Court ’s temporal jurisdiction and obligations

erga omnes.

25. Serbia further submits that the Court should also stay true to its 2007 J udgment in the

Bosnia case and its 2008 Judgment in the present case. The Court should not unnecessarily reopen

once again old questions relating to statehood, identity and treaty membership in this hopefully last

case relating to the dissolution of the former Yugoslavia. Instead this case provides the Court with

an opportunity to confirm the considered approach of the international community at large to treat

Serbia as a new State that came into existence on  and it is probably the last time that I use the

date: 27 April 1992  a solution Serbia, unlike Croatia which itself had fought for this solution

for so long, has come to accept. Serbia has accepted this solution and Croatia had done previously,

but not for purposes of these proceedings.

26. What Croatia wants you is to turn a blind eye on this larger picture and on the possible

consequences of its approach not only when it comes to the Court ’s jurisdiction and the law of

treaties and the law of State responsibility, but also as to the very concept of genocide.

27. Mr. President, there is one fact that is indeed specific in this case: it is that the Applicant

has not come before the Court with clean hands, neither on jurisdiction, nor on the merits. I

suppose there is no need to once again remind the Court of Croatia ’s underlying motivation to

130
bring this case in the first place . Yet, what the Court must ask itself is whether it should then

heed the request made by Croatia to stretch the general rules on the temporal application of treaties,

128
M. Wood, Participation of former Yugoslav states in the United Nations and in multilateral treaties ,
Max Planck Yearbook of United Nations Law (YB of UN Law), 1997, Vol. 1, p. 231 (253).
12Croatia, p. 458, para. 123.
130
See CR 2014/14, p. 11, para. 10 (Zimmermann). - 47 -

on attribution and, maybe most importantly, on the Court ’s jurisdiction so as to accommodate the

wish of Croatia to approach what constituted an armed conflict governed by international

humanitarian law from the angle of the Genocide Convention  an armed conflict in which there

have been innocent victims on both sides.

28. Thank you, Mr. President, Members of the Court.

The PRESIDENT: Thank you, Professor Zimmermann. It is now time for a 15- minute

break. The hearing is suspended for 15 minutes.

The Court adjourned from 4.25 p.m. to 4.40 p.m.

The PRESIDENT: The hearing is resumed and I give the floor to Mr. Jordash. You have

the floor, Sir.

Mr. JORDASH: Mr. President, Members of the Court, it is an honour to address the Court

once more.

R ESPONSE TO THE A PPLICANT ’S CLAIM IN LIGHT OF THE ICTY JUDGMENTS

Introduction

1. The Applicant asserts that in contrast to the Respondent, it has advanced a positive factual

131
case, namely the description of a “pattern of purposeful action” . This positive case rests on the

ICTY findings that allegedly provide “the platform upon which this case proceeds”, which along

with the remaining evidence proves 17 enumerated factors. According to the Applicant, each of

the four on their own, the first four, and then all 17 taken together, give rise to an overwhelming

inference that there was genocidal intent 132. From these 17 factors, the Applicant focused on

identifying three issues assessed as critical to this question : (i) context; (ii) patterns of behaviour;

133
and (iii) opportunity .

131
CR 2014/6, p. 63, para. 52 (Starmer).
132CR 2014/7, p. 19, para. 27 (Starmer).
133
CR 2014/7, p. 21, para. 31 (Starmer). - 48 -

2. In order to advance these submissions, the Applicant claims that Serbia has failed to

advance a positive case. According to the Applicant: “It is all very well [Serbia] distancing its elf,

it is all very well saying the JNA is not our entity, it is all very well saying the JNA does not direct

or control the paramilitaries; but if we are wrong about that, what does Serbia say was the true
134
intent behind these atrocities?”

3. As the Respondent will demonstrate once more, despite these bold claims, what we saw

last week is more of the same: assertion devoid of real engagement with the law or with the facts

with regard to the issue of intent. The Applicant correctly concludes that patter ns, context and

opportunity are important to a proper understanding of intent and genocide usually occurs when a

series of features or factors come together to form an “explosive cocktail” 135and yet does its best to

avoid the facts. If Professor Tams is correct, and he surely is, that the Applicant is frightened of

retroactivity, then they run even faster from a proper examination of intent.

4. In the next two speeches, today and tomorrow, I would like to address these questions and

reiterate once more the problems with the so-called positive case on both the ICTY findings and the

non-ICTY evidence and crystalize, if that was needed, what the Respondent’s position is

concerning intent.

5. Of course, logic and good old fashioned common sense dictates that an armed conflict that

spanned over five years, thousands of square kilomet res, a multitude of actors and actions, and

terrible crimes on both sides, cannot be summed up by the Applicant’s neatly packaged theory.

6. It is important that we avoid the type of blunt assessments and generalities that taint the

Applicant’s case. It may serve the Applicant to continue to squeeze years of war and ethnic strife

into one globalized shape, but this is not the same as a positive case.

The Applicant’s proposed methodology: ICTY and non-ICTY evidence

7. Let me address the Applicant’s proposed methodology with regard to ICTY and

non-ICTY evidence. The Applicant asserts that the combined probative value of the ICTY findings

13CR 2014/6, p. 61, para. 45 (Starmer).

13CR 2014/19, pp. 23-24, para. 40 (Starmer). - 49 -

from Martić, Mrksić and Babić and the non- ICTY evidence demonstrates the actus reus of

genocide and provides the requisite material for a finding of intent . 136

8. They argue that the ICTY evidence provides a “robust platform” that is “highly

persuasive” with regard to the question of intent.

9. Despite Professor Schabas, and particularly Mr. Ignjatović, raising concerns about the

ICTY judgements last week, the Applicant failed to address the issue in their second round. As I

will today demonstrate, analysis of the ICTY jurisprudence does not provide a platform for the

Applicant, robust or otherwise. In fact, it supports the Respondent’s case.

10. Moreover, whilst the non -ICTY evidence may be similar, even strikingly similar, to the

ICTY findings, this does not assist the Applicant. The Applicant takes a selective approach to each

and fails to miss the overall congruence revealing a multitude of contexts and patterns that

demonstrates a number of intents, none of them, resembling anything close to genocide.

ICTY jurisprudence

11. Before I begin looking at the ICTY jurisprudence, I would like to raise a preliminary

137
issue. Last week, the Applicant accused the Respondent of being a “ denier” . We were told that

Serbia’s denial of “the criminal nature of the joint criminal enterprise of the Serb leaders known as

the ‘RSK’, despite clear, unequivocal ICTY findings, was an affront to the victims of its crimes,

138
who are to be counted in the thousands” .

12. Of course, that was an unfortunate submission and nothing could be further from the

truth. But for the avoidance of doubt, nothing I say about the law or the facts is intended to make

light of the suffering of the victims. Each death or injury is a personal tragedy . However, that

should not prevent a search f or reasonable legal and factual assessment. On the contrary, as mere

lawyers, this may be the only way we might contribute in some small way to the healing process.

This ought to go without saying. Now turning to the law.

13. As I understand the Appli cant’s case, they rest their ICTY case on the following three

propositions, namely:

136
CR 2014/18, p. 50, paras. 6 and 13 (Starmer).
13Ibid., p. 16, para. 19 (Crnić-Grotić).
138
Ibid., p. 17, para. 20 (Crnić-Grotić). - 50 -

(i) that the ICTY JCE judg ements are inconsistent with any suggestion of legitimate armed

conflict or excesses in an otherwise legitimate armed conflict 139;

(ii) that the JCE found in the Martić judgement provides a platform for a finding that there

existed a criminal enterprise between the Krajina Serbs  Martić, Babić and others 

and the Belgrade Serbs  Milošević, the JNA and others  that involved an agreement to

destroy 140; and

(iii) that the Mrkšić judgement finding  that all of the forces participating in the military

operations in Croatia operated under the effective command and control of the JNA  is

fully convincing evidence with respect to each operation during which the allege d

violations occurred 141.

14. The Applicant proceeds on the basis that the ICTY jurisprudence supports their case and

should be automatically accepted as “highly persuasive”. Of course, as we know this Court found

at paragraph 223 of the Bosnia case, that the ICTY case law should “ in principle” be accepted as

highly persuasive. However, accepting them at the outset as having this value, obviously does not

determine where we finally end up. Of course, this is trite law and I will not labour the point.

15. Bearing this in mind, I turn to the Applicant’s first proposition.

142
The ICTY JCE judgements are inconsistent with legitimate armed conflict?

16. According to the Applicant the JCE findings are “ only consistent with the unlawful

143
targeting of civilians ” . According to the Applicant, where the question of legitimate armed

conflict was raised in the ICTY, it was not accepted 14.

17. We returned to the same theme last week. We were told that there was “ no legitimate

armed conflict in the areas in question, in 1991 and 1992” 145. According to the Applicant, there

139
CR 2014/18, p. 50 (Starmer); CR 2014/20, p. 56, paras. 37 -45 (Starmer).
140
CR 2014/6, p. 50, para. 8 (Starmer).
14CR 2014/12, p. 35, para. 85 (Starmer), citing to Mrkšić, Trial Judg ement, para. 89, para. 400;CR 2014/6,
p. 50, para. 9 (Starmer).

14CR 2014/18, p. 50. (Starmer); CR 2014/20, pp. 56, paras. 37- 45, (Starmer).
143
Ibid., p. 50, para. 36 (Starmer).
144
Ibid., p. 50, para. 38 (Starmer).
14CR 2014/20, p. 57, para. 41 (Starmer). - 51 -

was no war, only attacks by the Serb forces. The Croats had no military forces, only civilians and

“civilian defenders” . 146

18. We were told, that all violence against civilians and these so -called civilian defenders

should be regarded as unlawful : to hold otherwise, we are told, would create a protection gap

whereby “members of the group who attempted, however ineffectively, to defend their group

against perpetrators of genocide could not be victims o f genocide and would have no protection,

legally, against it” 14.

19. Mr. President, Members of the Court, this is a seductive but ill -founded submission. For

two reasons. First, the ICTY jurisprudence says precisely the opposite. It confirms that there was

lawful combat. Where the ICTY has directly accused members of the Serb Government from

Belgrade of responsibility for the unlawful violence in Croatia, they have been acquitted.

20. Second, the Applicant’s attempt to support their case by blurring the distinction between

combatants and civilians is in fact the most efficient way to create the “ protection gap” that the

Applicant claims to wish to avoid. The Respondent will address the first issue today and the

second tomorrow when I return to the issue of context.

21. First, the Applicant’ s submission that the jurisprudence excludes a finding that the

Belgrade Serbs were engaged in legitimate warfare rests upon a selective reading of the least

probative cases of the ICTY, namely Martić , Mrkšić and Babić, and a perfunctory analysis of the

most relevant, namely Stanišić and Simatović, as well as Perišić 148.

22. As the Court will see, Martić, Mrkšić and Babić focused on individuals who were either,

as in the case of Martić and Babić, regional leaders from Croatia or, as in the case of Mrkšić et al.,

relatively low -level commander s, engaged on a specific military operation in a small part of

Croatia.

23. None of these three cases involved a close examination of the precise role of members of

the Serbian Government from Belgrade. Given the narrow focus on the criminal activities in these

146
CR 2014/20, p. 56, paras. 37-45 (Starmer).
147Ibid., p. 56, paras. 39-45 (Starmer).
148
Ibid., p. 57, para. 41 (Starmer). - 52 -

localized activities, nor did they have the same focus on the question of whether any of the

objectives were legitimate or any aspect of the warfare lawful.

24. Conversely, the Simatović and Stanišić and Perišić trial cases respectively examined the

role of members of the Serbian Government. They examined the policies of Milošević’s

Government and the role of his inner circle. As the ICTY Prosecutor has stated with regard to the

Stanišić and Simatović case, “[t]his case is the first case to come to judgement at the Tribunal

which examines the culpability of individuals who were at the heart of the common purpose

through which crimes were systematically committed against non -Serbs in both Bosnia and

Herzegovina and Croatia over a span of five years” 14.

25. For most of the five -year indictment period  1991-1995  Stanišić, a Serbian from

Belgrade, was the Chief of the Serbian State security service. He was alleged by the ICTY

Prosecutor to be Milošević’ s right hand man 15. Simatović was alleged to be his immediate

151
subordinate .

26. Stanišić and Simatović were charged as participants in a joint criminal enterprise that

according to the indictment came into existence no later than April 1991 and continued until at

least 31 December 1995. Milošević was alleged to be at the apex of the alleged joint criminal

enterprise, whose common criminal purpose was the forcible and permanent removal of the

majority of non-Serbs, principally Croats, Bosnian Muslims, and Bosnian Croats from large areas

of Croatia and Bosnia-Herzegovina. According to the indictment, this involved the commission of

crimes against humanity under Article 5 of the Statute and violations of the laws or customs of war

under Article 3 of the Statute, namely persecutions, murder, deportations, and inhumane acts 

forcible transfers. Not genocide.

27. In addition to the charges of individual criminal responsibility under Article 7 (1) for

committing crimes as part of a jo int criminal enterprise, the indictment charged each accused with

149
Stanišić, Prosecution Appeal, para. 12.
15Stanišić; Prosecution’s Pre-Trial Brief, para. 53.
151
Ibid., para. 54. - 53 -

having planned, ordered, and/or otherwise aided and abetted in the planning, preparation, and/or

execution of the crimes described in the indictment 152.

28. It was alleged that, on behalf of Milošević, Stanišić and Simatović commanded, directed,

financed, supplied and otherwise facilitated, both State and non-State paramilitary groups, from the

Special Purpose Unit of the Ministry of the Interior of Serbia, the Serbian Volunteer Guard, that is,

Arkan’s Tigers, to other formations, such as, inter alia , members of the JNA; the Serb TO in the

Krajina, the special police and police forces of the Krajina and other Croatian Serb paramilitary and

153
volunteer formations .

29. During the Trial the Prosecution relied upon Babić’s plea agreement and the evidence he

gave in the Milošević and Martić cases, to the effect that Stanišić was “the central figure” in

command of a “parallel structure of power and authority” allegedly formed and used by Milošević

to control the JNA, Martić’s police, and paramilitary groups in the Krajina. It was alleged that this

parallel structure, with Milošević at the apex, was the primary vehicle for implementing the JCE

that intended the crimes, persecutions, murder, deportations, and inhumane ac ts (forcible

154
transfer) .

30. Both Stanišić and Simatović were acquitted of all charges. The majority found that the

Accused had not shared the intent to further the common criminal purpose of forcibly and

155
permanently removing the majority of non-Serbs from Croatia , or committed any acts that might

be a stepping-stone towards destroying the group.

31. The precise terms of the acquittals provide an insight into why the Applicant, throughout

its arguments, including last week, have avoided examining the se cases, preferring instead to rest

their case on the much less relevant cases of regional leaders from the Krajina, such as Martić and

Babić, or lower ranking officials such as Mrkšić.

32. Stanišić and Simatović’s acquittal was not based on non- involvement in the war or

non-interaction with Mar tić or Babić or others found to be involved in crimes. On the contrary.

152
Stanišić Indictment, para. 10.
153Ibid., para. 5.

154CR 2014/16, p. 20, paras. 99-101 (Ignjatović).
155
Stanišić and Simatović Judgement, paras. 2309, 2311-2312, 2314-2336, 2340-2354, 2362-2363. - 54 -

They were found to have had a significant involvement in the war: supplying men, weapons,

ammunition, and logistics in large quantities. However, they were found to be acting in pu rsuance

of lawful military objectives.

33. As illustrations only. The Trial Chamber found that they directed and organized the

156
formation of Martić’s police in close co-operation with Martić ; they oversaw the delivery of

arms and ammunition to the Krajina police 157; they helped to set up a training camp for Martić and

158
Babić where military training was provided to TO units and members of the police ; they used

159
this camp to set up an anti-terrorist unit that participated in military operations in Croatia . None

of the findings showed that this assistance was provided with the intent to further any crimes 160.

34. The majority found that a reasonable interpretation of Stanišić and Simatović’s conduct

was that they had directed their military assistance to military operations “on territory not yet under

the exclusive control of the SAO Krajina and SAO SBWS authorities [that is, Eastern Slavonia

authorities] and armed forces” 161 and that they only intended to assist the Krajina authorities in

162
establishing and ma intaining Serb control over large areas of Croatia . These were lawful

objectives.

35. In sum, the m ajority rejected the Prosecution’s (and the Applicant’s case in this Court)

that all military activity by the Belgrade Serb leadership in Croatia was in furtherance of crime and

that there was no legitimate military objectives 163. As Presiding Judge Orie accurately noted in his

separate but concurring opinion, “[h]olding positions of broad influence, and being omnipresent in

a war situation, does not necess arily mean that one shares the intent to commit the crimes”  a

164
view that, in light of the burden and standard of proof, and the facts, is undeniably correct .

15Stanišić and Simatović Judgement,paras. 2159, 2331. See also paras. 2137 (citing AFIII-9), 2147.
157
Ibid., para. 2154.
158
Ibid., paras. 1365-1366, 2197, 2327.
15Ibid., para. 2325.

16Ibid., paras. 402, 1426, 2341.

16Ibid., paras. 2325.
162
Ibid., paras. 2326 and 2332.
16Stanišić Trial Brief, paras. 234, 243, 247, 256, 997, 1005.

16Stanišić and Simatović Judgement, para. 2418. - 55 -

36. These findings are corroborated by those enunciated by the Appeals Chamber in Perišić .

Starting on 26 August 1993 and through to November 1995, Perišić served as Chief of the

Yugoslav Army (“VJ”) General Staff. He was the VJ’s most senior officer 16. Mr. President,

Members of the Court, you may well have heard about this controvers ial case and its finding that

“specific direction” is an element of aiding and abetting. No doubt this customary law debate will

rumble on. However, we do not need to concern ourselves with this debate. I rely upon the case

for other purposes.

37. Perišić was charged with aiding and abetting crimes in the Bosnian towns of Sarajevo

and Srebrenica for his role in facilitating the provision of military and logistical assistance from the

VJ to the Army of the Republika Srpska (“VRS”). He was charged with a number of crimes

arising from these charges, from the facts. He was also charged, more importantly for this case,

with charges arising from his alleged effective control over the Krajina army 16.

38. Having reviewed the evidence on the record, the Appeal s Chamber acquitted Perišić.

The factual basis upon which he was acquitted is of persuasive value for this case. The Appeals

Chamber found that the Bosnian Serb army was not an organi zation whose actions were criminal

167
per se; instead, it was an army fig hting a war . More relevantly and more critically t he Trial

Chamber found that he was involved in the war in Croatia but was not responsible for any crimes.

39. To summarize, we need to avoid the Applicant’s broad- brush analysis. The three cases

that examined the question of whether Milošević’s government was engaged in legitimate warfare

in Croatia, and which delivered Judgements, came to the same answer. The three individuals have

not been found to be part of any criminal agreement with the Krajina leadership and not found to

have any intent to commit crimes.

40. Therefore, contrary to the Applicant’s claim, the ICTY has not consistently rejected the

proposition that the Serbian leadership from Belgrade were engaged in lawful or legitimate

conflict, it has consistently accepted it. The findings are consistent with the suggestion of

165
Stanišić and Simatović Judgement,para. 2418.
16Perišić, Appeal Judgement, para. 3.
167
Perišić, Appeal Judgement, para. 53. - 56 -

legitimate armed conflict designed to establish control of territory through fighting the Croat

military forces  that the Applicant claims did not exist.

41. This, Mr. President, Members of the Court, is the “robust platform” on which the

Applicant’s case and the non-ICTY evidence must rest and ultimately flounder. As I will address

in due course, the patterns of violence in this case shows that much of the unforgivable violence

against civilians is explainable from this perspective. Whether I am correct about this or not, the

starting-point cannot be the presumption urged upon the Court that all violence was unconnected to

military activities.

42. A close examination of the Applicant’s favourite cases  Martić, Babić, and Mrkšić 

only reinforces the ICTY’s findings in Stanišić and Simatović, and Perišić. Not only is the

168
phantom of Greater Serbia that has haunted this Court a total non- issue in these cases , they also

fail to establish the Applicant’s second proposition and to that I now turn.

That the JCE found in the Martić judgement provides a platform for a finding that there
existed a criminal enterprise between the Krajina Serbs (Martić, Babić and others) and
the Belgrade Serbs (Milošević, the JNA and others) that involved an agreement to
destroy? 169

Martić

43. The Applicant submits that the JCE found in the Martić Judgement provides a platform

for a finding that there existed a criminal enterprise between the Krajinc Serbs and the Belgrade

Serbs that involved an agreement to destroy. Let me turn to Martić to examine this proposition.

According to the Applicant, the Martić Judgement, at paragraph 446, established that at all relevant

times there was in existence a joint criminal enterprise amo ngst the Serb political and military

leadership “whose purpose was to destroy the Croat civilian population by killing and removing

them from approximately one third of the territory of Croatia”. This “is the first major finding that

170
the Applicant relies on” . However, we need to be careful. This is not what Martić found. In

fact it found the opposite.

168
Martic, Judgement, paras. 266 and 403;Stanisic and Simatovic, Judgment, paras. 342, 348, 1250Perisic,
Judgment, para. 1340.
16CR 2014/6, p. 50, para. 8 (Starmer).
170
CR 2014/12, p. 51, para. 8 (Starmer). - 57 -

44. In order to examine this proposition, it is necessary to say a few words about joint

criminal enterprise (JCE). Please forgive me for stating the obvious, but it is necessary to keep a

hold on what the fi ndings actually mean and what the liability actually does and says. Joint

criminal enterprise is a mechanism for assigning individual l iability to those charged with

“committing” crimes. The ICTY jurisp rudence establishes three forms: JCE I, the basic f orm,

171
JCE II, the systemic form, and the extended form, JCE III . All the ICTY cases relevant to this

case concerned JCE I and JCE III. We can leave JCE II to the side.

45. In essence, to prove liability pursuant to JCE I, the prosecution must establish the

following three objective elements beyond reasonable doubt:

172
(i) the existence of a common plan to commit a crime provided for in the Statute ;

(ii) a group of persons acting together in pursuit of this plan to commit a crime 173; and

174
(iii) that the accused significantly contributed to the common plan .

46. In addition to establishing these objective elements, a prosecutor must also prove that the

accused possessed the requisite mens rea for the crimes charged and the overall criminal plan.

47. There is a fun damental difference between JCE I and JCE III liability. Convictions

pursuant to JCE I require a different mens rea than convictions pursuant to JCE III. JCE I liability

attaches when the accused (together with the other members of the JCE) in tended the commission

of a crime or crimes in pursuit of the jointly agreed criminal plan 175. Under JCE I, the trier of fact

must be satisfied that the criminal intention of the accused is identical to the other JCE

participants 17.

48. JCE III is an extension of JCE I. It is further liability that arises when additional crimes

occur beyond the scope of the agreed common plan. Courts assess liability for these additional

crimes pursuant to a different mens rea. For JCE I liability to attach, additional crimes outside the

common criminal plan need not be intended by the a ccused. It is sufficient that they were carried

171Martic, Judgement, para. 190.
172
Martić, Judgement, para. 190; Tadić, Appeals Chamber, para. 227.
173Martić, Judgement, para. 190; Prosecutor v. Krajišnik, Judgement, Trial Chamber, 27 Sept. 2006, para. 884.

174Martić, Judgement, para. 190; Prosecutor v. Krajišnik, Judgement, Trial Chambe r, 27 Sept. 2006, para. 884;
Brđanin, Judgement, Appeals Chamber, 3 April 2007, para. 430 (internal citations omitted)
175
Brđanin , paras. 365, 430-431; Judgement, Vasiljević, Appeals Chamber, 25 Feb. 2004, para. 101.
176Tadić, Appeals Chamber, para.196. - 58 -

out in furtherance of the intended common plan, and were the reasonably foreseeable consequence

of that common plan . 177

49. Thus, JCE I liability arises from a plan to commit the crime intention; JCE III arises

from crimes that were a reasonably foreseeable consequence of that plan.

50. Holding these thoughts at the forefront, let me turn back to Martić . At paragraph445,

the Martić Trial Chamber found that the common purpose of the JCE was the establishment of an

ethnically Serb territory through the displace ment of the Croat and other non- Serb population

178
through the crimes of deportation and forcible transfer . They intended deportation and forcible

transfer.

51. The shared intent  the criminal agreement  found was not to destroy or even to

commit any of the Article II acts, without genocidal intent . The 11 JCE members were not found

to have agreed or intended to commit murder, or acts of physical or mental harm. They were found

179
responsible pursuant to JCE I for agreeing to deportation and forcible transfer . The other acts,

the murder, the physical and mental harm, were deemed to be foreseeable from the plan that was

intended.

52. Therefore, even if, as a general proposition, JCE findings could be used to establish the

type of “effective control” we are concerned with here, which in many cases is legally and factually

untenable, or even if the Martić Judgement specifically could stand, as the Applicant claimed last

week, as evidence of “irrefutable proof of the bonds of allegiance and control that existed between

the Serbian leadership in Belgrade and the forces of the ‘SAO Krajina’ and ‘RSK’” 180, it is proof of

nothing more than a shared intention to forcibly transfer or deport. Nothing else.

53. The Trial Chamber found that the JCE members from Belgrade and the Krajina intended

persecution but the constituent acts were forcible transfer and depor tation. None of the other acts

of persecution, murder, torture, inhumane acts, cruel treatment, wanton destruction of villages ,

177
Tadić, Appeals Chamber, para. 204.
17Martić, Judgement, paras. 452–455, 518.

17Ibid., paras. 445–446.
180
CR 2014/7, pp. 49-50, para. 14 (Starmer). - 59 -

wilful damage to institutions , plunder, etc., were found to have been perpetrated and intended or

181
agreed to by the members of the JCE .

54. Put simply: neither Martić nor any member of the criminal enterprise found intended to

commit the crimes that are the constituent foundation of the Applicant’s claim. The Trial Chamber
182
found them responsible for these types of crimes on the basis of foreseeability only .

55. Further, even on this extremely low and controversial foreseeability threshold, that is,

imputing crimes, even crimes of specific intent, such as persecution, on the basis of foreseeability,

and without a showing of shared intent, the Tr ial Chamber ruled that none, I repeat none, of the

JCE members, neither Martić, the leaders of the JNA or Milošević, intended to commit

extermination, nor was it foreseeable, nor had it in fact occurred.

183
56. As to the last point, as Professor Schabas highlighted in the first round , the Trial

Chamber found that the evidence did not support a finding that the actus reus of extermination was

established. The Trial Chamber ruled that the killings that had been foreseeable, but not intended,

did not occur on a “large scale” or “an accumulated basis” 18.

57. The Applicant’s claim therefore that the JCE found in the Martić Judgement that there

existed a criminal enterprise between the Krajina Serbs (Martić, Babić and others) and the Belgrade

Serbs (Milošević, the JNA and others) that involved an agreement that might be equated or give

185
rise to an inference of destructi on is wrong. Not only was there no intention to destroy, there

was not even an intent to commit Article II acts without genocidal intent.

58. Therefore we find ourselves in the unusual position of agreeing with the Applicant on an

issue, namely that th e Martić Judgement is highly persuasive. However, not for the reasons

advanced by the Applicant. In fact, the Martić Judgement has answered one of the precise question

that this Court has been called upon to address.

59. One question, the first question, perhaps: were Article II acts committed? The second

perhaps is the one asked and answered by the Martić Judgement: did the Belgrade Government

181
Martić, Judgement, paras. 454-455.
182
Martić, Judgment, para. 454.
183CR 2014/15, para. 36, p.23
184
Martić, Judgment, para. 404.
185
CR 2014/6, p. 50, para. 8 (Starmer). - 60 -

intend the commission of the Article II acts? This gateway question has been answered with a

resounding “No”.

60. The Applicant faces an additional problem with Martić, not quite as devastating as that

but, nonetheless, still significant. The problem with the Martić finding implicating the Belgrade

Serbs is that there are manifest flaws in the judgement with regard to the membership of the JCE

found, and there is little within or external to the judgement to corroborate the findings. First, I

will deal with the problems and then I will move to the lack of corroboration.

The PRESIDENT: Excuse me. Can we hav e it a little bit more slowly please. It will

facilitate the interpretation into French.

Mr. JORDASH: I beg your pardon.

61. As discussed earlier, to prove liability under JCE I, the existence of a common plan to

commit a crime; a group of persons acti ng together in purs uit of the crime; and that the a ccused

significantly contributed to the common plan, must be established beyond a reasonable doubt.

62. Of course, the degree of certainty of proof that might be established on each element is,

as of nece ssity, variable. Often in a case, areas that are non -contentious are not given the same

“airplay” as others and certain findings are based on evidence that has not been subject to the same

degree of challenge or scrutiny. One such area is the identificat ion of JCE members and the

establishment of their conduct.

63. Why does the Respondent say this? In any JCE trial involving individuals alleged to be

part of an agreement to commit crime, the accused tends not to focus on proving that there was no

criminal agreement or that certain individuals were not part of it, but, instead, focuses on seeking to

show that he was not part of it.

64. As a consequence, the Trial Chamber is optimally assisted with regard to resolving this

contentious issue, and less so with regard to others. The Trial Chamber gets all sides of this issue,

sees witnesses challenged, and makes their mind up accordingly. The Trial is about his guilt or

innocence, not the others.

65. The accused, frankly, does not care one way or anothe r about the external issues. All he

cares about is showing the court that he was not part of the criminal enterprise and that his - 61 -

contribution to the crimes was not significant. If he succeeds on these issues, he will be acquitted

of responsibility pursuant to the JCE.

66. No doubt the Applicant will deride such an analysis, claiming that it is only speculative.

Another attempt by the Respondent to wriggle out of the JCE judgements?

67. However, as recognized by this Court in the Bosnia case, ICTY ju dgements may be

highly persuasive, in part because the accused has the right to examine witnesses against them.

Thus, the Court recognizes that the presence or absence of cross- examination is a valuable
186
indicator of reliability and weight . Therefore, if you come to the conclusion that the Respondent

is right with regard to the lack of cross- examination or challenge on the membership of the JCE,

and for those of you involved in these types of trials, I am confident you will agree with my

proposition, then it follows. So less an attempt to wriggle, more a corollary of this Court’s

findings.

68. Moreover, this is not just theory. The frailties of the Martićjudgement with regard to the

findings on the involvement of members of the Serbian government in a criminal agreement with

the Krajina Serbs are manifest. This is clear from the findings with regard to Stanišić and

Simatović.

69. As this Court knows, as I have addressed you upon, these men were alleged to have been

at the core of the JCE. Their acquittal sits completely at odds with the Martić trial judgement that

found them to be members of the 11- man group engaged in pursuing a criminal enterpr ise 187. So

which decision, I pause to ask, does the Applicant claim is “highly persuasive”? The one that

examined Stanišić and Simatović’s alleged criminal liability at close hand, or the one that almost

certainly only addresses one side of the story.

70. If this is not sufficient to raise serious concerns with regard to placing too much weight

on the findings that appear to implicate the Belgrade Government, it is worthwhile examining the

Trial Chamber’s reasoning with regard to why it found that the Be lgrade Serbs shared the intent to

commit forcible transfer and deportation. Whilst brevity of legal reasoning may be considered a

18Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro, Judgment, I.C.J. Reports 2007 (I) (hereafter Bosnia), p. 133, para. 220.

18Martić, Judgement, paras. 445-446. - 62 -

virtue, the Trial Chamber’s reasoning on this critical aspect is almost absent. The Trial Chamber’s

factual and legal findin gs concerning the existence of a joint criminal enterprise was analysed in

13 paragraphs of a 520-paragraph judgement . 188

71. As an examination of these 13 paragraphs shows, there is little that explains why the

Chamber was persuaded beyond a reasonable dou bt that the co -operation of the Krajina and

Belgrade political and military leadership was actually in pursuit of a crime. This lack of reasoning

is important. As noted in the Bosnia case at paragraph 221, one of the reasons ICTY judgements

start out as highly persuasive is that reasons are given in writing. In this instance, they were not.

72. Of particular concern, is the one paragraph finding that the members of the joint criminal

189
enterprise consisted of “at least” 11 individuals . Whilst this find ing was globally referenced to

the Factual Findings in Section III of the judgement, the Trial Chamber failed to specify which

particular findings, or paragraphs, were relevant and how it reasoned from the factual findings to

the legal finding  that a particular JCE member’s conduct demonstrated his shared criminal intent

at the core of the JCE. There is nothing in the paragraph to show that the Trial Chamber’s grappled

with the central question.

73. An examination of the Factual Findings in Section III provides an insight, but only just,

190 191 192
into four members of the JCE  Babić , Adžić , Kadijević and Milošević. In relation to

others, as Mr.Ignjatović outlined during the first round 193, and the Applicant ignored in the second,

the analysis is weak to say the least.

74. Let me take one example. The Trial Chamber fou nd, purportedly beyond a reasonable

doubt, that Šešelj was one of the 11 and acting in furtherance of the criminal enterprise and

intended the crimes of forcible transfer and deportation.

75. However, as discussed, the paragraph that made the finding of the 11 contained no

reasoning. More importantly for this discussion, the remainder of the judgement  Section III,

188
Martić, Judgement, paras. 442-455.
189
Ibid., paras. 445-446.
190Ibid., para. 333.

191Ibid., para. 331.
192
Ibid., para. 330.
193CR 2014/16, pp. 15-16, paras. 79-81 (Ignjatović). - 63 -

Factual Findings  made only one factual finding in relation to Šešelj, namely that he visited a

hospital which was being used as detention centre in Knin 194 on one occasion and insulted the

195
non-Serb detainees . His shared intent for the criminal enterprise was established on the basis of

this single factual finding.

76. Is this an example of the Martić judgement’s persuasive value, showing “irrefutable

proof of the bonds of allegiance and control that existed between the Serbian leadership in

Belgrade and the forces of the ‘SAO Krajina’ and ‘RSK’ . . .”? 196

77. Moving to corroboration, this can be dealt with simply, as it was by Mr. Ignjatović

during the first round. The Applicant failed to respond in the second round, but the points cannot

be so easily ignored.

78. Of the 11 JCE members, only eight  Adžić, Bogdanović, Kadijević, Milošević, Mladić,

Šešelj, Stanišić, and Simatović  were alleged to be part of the Serbian leadership. The remainder

were part of the local leadership. It is useful to examine what happened at the ICTY with regard to

the whole 11, but with particular focus on the eight. As we can see:

(i) Adžić, Chief of Staff until May 1992: not indicted by the ICTY Prosecutor;

(ii) Bogdanović, Minister of Interior of Serbia until March 1991: not indicted by the ICTY

Prosecutor;

(iii) Kadijević, SFRY Federal Secretary for Defence until January 1992: not indicted by the

ICTY Prosecutor;

(iv) Milošević, President of Serbia: died before the trial was completed;

(v) Mladić, Commander of the 9th Corps of the JNA in Knin in 1991: on trial at the ICTY,

but not for events in Croatia;

(vi) Šešelj, Deputy Prime Minister of Serbia later in March 1998 until October 2000: on trial

at the ICTY;

(vii) Simatović: acquitted by the ICTY;

194
Martić, Judgement, para. 288.
19Ibid., paras. 288, 416.
196
CR 2014/7, pp. 49-50, para. 14 (Starmer). - 64 -

(viii) Stanišić: acquitted by the ICTY  and that is the eight that we are really concerned with

in this submission;

(ix) Babić, President of the RSK and other leadership roles in the Krajina: pleaded guilty to a

JCE. I will come back to that in a moment. Although he pleaded guilty to a JCE, it was

not the same as that found by Martić;

(x) Karadžić, Bosnian Serb President: on trial at the ICTY, but not for Croatia;

(xi) Vasiljković 19, alleged paramilitary leader: not indicted by the ICTY Prosecutor.

In other words, none of the eight dealt with in Martić have been convicted and most have not even

been tried.

79. And so again I a sk, does the Martić finding, when looked at in the totality of the

circumstances, really provide “irrefutable proof” of the guilt of the Serbian leadership  even

when looked at through the narrow lens of forcible transfer or deportation? It looks more li ke

highly persuasive evidence that the Milošević government was not involved in any criminal way

with the events in Croatia.

80. And so we are left with the Babić case, another of the Applicant’s favourite cases.

Unfortunately for the Applicant, this pl ea agreement only muddies their waters even further. The

Applicant claims that this judgement corroborates the findings in Martić of the existence of a joint

criminal enterprise that involved an agreement between the Krajina Serb and the Belgrade

leadership. However, it does not.

81. While the Respondent accepts this Court’s finding in the Bosnia case, that plea

agreements and the associated sentencing judgements, where relevant, start with a certain

weight 198, the question, of course remains, what that weight will finally accrue.

82. An examination of the Babić plea agreement and judgement, alongside the other ICTY

cases, especially Martić and Stanišić and Simatović really does raise more questions than it answers

and shows, if more evidence was needed, the dangers in the Applicant’s approach to the ICTY

jurisprudence and the shifting sand upon which they have built their house.

19Martić, Judgement, paras. 445-446.

19Bosnia Judgment, para. 224. - 65 -

83. On 22 January 2004, Babić pleaded guilty to being a co-perpetrator of a joint criminal

enterprise . However, the joint criminal enterprise he pleaded guilty to did not place h im into the

same criminal plan as that found in Martić.

84. First, Babić’s JCE consisted of an agreement to commit persecutions as a crime against

200
humanity . He alleged and admitted that his criminal agreement, which purportedly involved

Martić and others as we will see in a moment, involved not only persecution constituted from acts

of transfer and deportation, like the Martić finding, but also “[t]he extermination or murder of

201
hundreds of Croat and other non- Serb civilians . . . . Obviously different to the findings in

Martić.

85. Second, as part of his plea agreement, Babić and the Prosecutor, and this is expressed in

the agreement, agreed that the evidence showed beyond a reasonable doubt that,

“From August 1990, a parallel structure started emer ging in the Krajina
comprised of members of the Ministry of Interior of Serbia, the State Security service
of Serbia, the SDS in Croatia and policemen in the Serbian municipalities in Croatia
which ultimately answered directly and exclusively to Slobodan M ilošević. The

central figures of this parallel structure in Serbia, aside from Milošević himself, were
Jovica Stanišić from the Serbian DB and his subordinate Franko ‘Frenki’ Simatović.
In the Krajina, the central figures were Milan Martić and Dragan Vasiljković, aka
Captain Dragan.” 202

Obviously, this is not what was shown in the Stanišić and Simatović case, nor is it consistent with

the ICTY Prosecutor’s decision not to indict Vasiljković.

86. Several points therefore arise that are relevant to the Appl icant’s case and which they

continue to avoid. The first one is one of principle: in light of the fact that Babić was a

self-confessed criminal, how much probative weight can properly be given to those aspects of his

plea agreement that implicate others?

87. International criminal law takes a common sense approach to this issue. Any evidence

that emerges from such accomplices and implicates others, requires cogent corroboration from a

199
Babić, Plea Agreement, para. 3.
20Babić, Indictment, para. 16.

20Babić, Appeals Judgement on Sentencing, para. 3.
202
Babić, Factual Statement to the Plea, paras. 16 and 17. - 66 -

203
reliable source . In the Martić Trial, the Chamber went one step f urther with Babić’s plea and

took into account the fact that Babić had testified pursuant to a plea agreement and that some of the

204
charges were dropped against him as a result of that plea agreement .

88. Whether it was due to these admonishments that his evidence was rejected, in both

Martić and Stanišić and Simatović, is not immediately apparent, but rejected it was. Babić’s plea

agreement, and his allegations against others, stands in splendid isolation to the remainder of the

relevant ICTY findings.

89. In relation to the benefit that Babić obtained from advancing these allegations, it is

worthwhile returning to the Martić case. Whether they are directly comparable is a complex

question. However, Babić was the President of the RSK and Martić was, at least de jure, Babić’s

subordinate. Martić was convicted and received a sentence of 35 years. Babić’s arrangements led

to a sentence of only 13.

90. Therefore, the problem of the reliability of his allegations against others is, perhaps, an

obvious one. As part of Babić’s plea agreement, he had to co-operate with the prosecutor and

testify against the Serb leadership. He had to be useful. Only then would he receive his reduced

sentence. There can be no surprise that his allegations turned out to be overblown and found to be

in large part false. Be that as it may, they cannot corroborate the finding in Martić. Martić stands

alone as highly persuasive evidence against the Applicant.

91. I will now turn to the Applicant’s third remaining proposit ion, that the Mrkšić

Judgement’s finding that all of the forces participating in the military operations in Croatia

operated under the effective command and control of the JNA and that this is fully convincing

evidence in respect to each operation during which the alleged violations occurred 205.

203Accomplice evidence needs to be approached with caution, see Lukić and Lukić, Appeal Judgement, para. 128;
Krajišnik, Appeal Judgement, para. 146; Blagojević, Appeal Judgement, para.82; Haradinaj et al., Appeal Judgement
(retrial), para. 145; Blagojević and Jokić,Appeal Judgement, para. 82.

204Martić, Judgement,para. 34.
205
CR 2014/12, p. 44, para. 22 (Ignjatović), citing to Mrkšić, Trial Judgement, para. 89; CR 2014/6, p. 50, para. 9
(Starmer). - 67 -

Mrkšić

92. I will make a number of observations that I hope will assist this Court in deciding what

weight to place on theMrkšić finding.

93. Of course, we know why the Applicant places such overweening weight u pon a single

paragraph  paragraph 89. As Mr. Ignjatović correctly noted, “[t]he Applicant is trying to use one

sentence from paragraph 89 of the Mrkšić et al. Judgment as a vehicle to overcome the

requirements of Article 8 of the ILC Articles on State Responsibility” 206.

94. The Applicant’s attempt must be rejected. According to this Court’s jurisprudence,

effective control is required and needs to be established and proven in every individual and

concrete situation. The Applicant must meet very high standards. But the Court must be presented

with fully convincing evidence in respect to each operation during which the alleged violations

occurred, and not generally, in respect of all the actions taken by persons or groups who allegedly

committed such violations 20.

95. Therefore in a case full of astonishing claims, the Applicant’s reliance on paragraph 89

of the Mrkšić Judgement must be vying for the top spot. It must be the most overused and

shamelessly abused paragraph of any judgment ever written at the ICTY. I almost feel

embarrassed putting its contents back on the screen. However, in order to lay this argument to bed

once and for all, put it back, I must.

96. Paragraph 89, consists of three elements:

“(i) that the Court had found that “the de facto reality” was that not only in the zone of

operations of OG South, but, generally, in the Serb military operations in Croatia, the JNA

had complete command and full control of all military operations;

(ii) that the circular of the Chief of the Gener al Staff of 12 October 1991 and the order of the

command of the First Military District (1 MD) of 15 October 1991, confirmed this to be

correct; and,

20CR 2014/15, p. 62, para. 56 (Ignjatović).

20CR 2014/15, para. 42, p. 43 (Lukić), citing to Bosnia Judgment, p. 129, para. 209; p. 208, para. 400. - 68 -

(iii) that the JNA had the military might to enforce its will, even though it may well have been

reluctant to be too heavy handed in doing so, upon the TO and volunteer or paramilitary

units fighting in the Serb cause.”

97. As a preliminary matter, I would adopt, once again, Sir Keir Starmer’s words, let us have

a reality check. The proposition that a s ingle judgment, let alone a single paragraph, could bear

such a heavy probative load is asking perhaps a little too much. That the Applicant takes this

approach, speaks eloquently to the frailty of its case.

98. Even if the Mrkšić Judgement actually inv olved a detailed consideration of each and

every corner of Croatia, which it plainly does not, the proposition that the de facto reality of this

armed conflict could be neatly analysed and summed up in a single paragraph is curious to say the

least.

99. Leaving State responsibility aside as an examination of international criminal law

jurisprudence shows, command ability requires a careful examination of actual concrete

circumstances and an examination of the de facto reality of fluctuating war. Such questions cannot

be subordinated to singular considerations of how large or how well resourced a military

organization might be in relation to putative subordinates.

100. As the jurisprudence of the ICTY and ICTR ad hoc tells us, and common sense dictates,

an analysis of “de facto control” or “effective command” is a complex business that cannot be

reduced to such generalities.

101. Given the Applicant’s refusal to follow the operation -by-operation methodology of

assessing effective control outlined in the Nicaragua case, it may not be necessary in this case to

fully resolve the precise applicability of the international criminal law threshold for “effective

control” underpinning superior responsibility. Nonetheless, similar questions are addressed in

international criminal law, such as whether alleged subordinates were acting “on the instructions”,

or “under the direction” or “under the control” of alleged superiors. International criminal law’s

careful approach to examining on a case- by-case basis these questions, sits in stark contrast to the

approach urged by the Respondent in this case with regard to State responsibility. - 69 -

102. In international criminal law distinctions are drawn between de jure status and de facto

reality. Substantial influence must be distinguished from effective control 208. A trier of fact must

209
examine indices of effective control or authority . Factors to be considered in determining

authority and effective control include, inter alia, the official position held by the alleged

commanders; the capacity to issue orders; the procedure for appointment; the position of the

accused within the military or political structure; and the actual tasks performed 210 21.

103. Factors considered to determine whether particular units are under th e effective control

of the regular army include, inter alia, any compliance or non- compliance with army orders or

procedures; the precise participation in combat with the regular army; the access of the army to

premises and prisoners; the recruitment of civilians and soldiers; mutual assistance; reporting

procedures; the ability to investigate and punish unit members; the appointment of the members of

212
the unit; and the disbanding of units .

104. The fact that a unit fought alongside a unit of the r egular Army is insufficient to

213
establish de facto control over that unit . Merely being tasked with co -ordination does not

214
necessarily mean command and control . Mere participation in joint combat operations is not

sufficient to find that commanders of d ifferent units exercise effective control over all participants

215
in a battle . And so it goes on.

105. The Applicant wants to discard all these types of de facto considerations on the basis of

a single paragraph in a judgement that was plainly not focused on this issue.

106. Which brings me to the question of what the finding of Mrkšić is based on. Last week

we were told by the Applicant that the Tribunal’s findings in Mrkšić about “the JNA’s command

208
Prosecutor v. Delalic, Judgement, 20 Feb. 2001, paras. 266, 300; Prosecutor v. Blagojevic & Jokic,
Judgement, 17 Jan. 2005, para. 791; Prosecutor v. Halilovic, Judgement, 16 Nov. 2005, para. 59; Prosecutor v. Limaj et
al., Judgment, 27 Sept . 2007, para. 273 ; Prosecutor v. Blagojevic & Jokic, Judgment, 17 Jan. 2005, para. 791;
Prosecutor v. Oric, Judgment, 30 June 2006, paras. 309 and 311.
209
Prosecutor v. Hadzihasanovic & Kubura, Judgement, 22 April 2008, para. 199.
21Prosecutor v. Halilovic, Judgement, 16 Nov. 2005, para. 58.

21Prosecutor v. Hadzihasanovic & Kubura, Judgement, 15 March 2006, para. 83.
212
Prosecutor v. Delic, Judgement, 15 Sept. 2008, para. 368.
213
Prosecutor v. Delic, Judgement, 15 Sept. 2008, para. 345; Prosecutor v. Hadzihasanovic & Kubura,
Judgement, 22 April 2008, para. 209.
21Prosecutor v. Oric, Judgement, 30 June 2006, para. 311.

21Prosecutor v. Hadzihasanovic & Kubura, Judgement, 15 March 2006, para. 84. - 70 -

216
over Serb paramilitaries [in the whole of Croatia throughout 1991] were unequivocal” and that

by casting doubt over it the Respondent was seeking to invite the Court to “assume the role of

217
unofficial Appeal Chamber for ICTY findings unhelpful to the Respondent’s case” .

Professor Crawford told us that this finding of fact should be accepted: “the Court lives in the real

218
world” .

107. And yet the Respondent does not dispute that this finding is based upon only two

documents. It cannot dispute this, because despite the Court’s finding, neither the subject-matter of

the trial, the submissions of the parties, the contentious issues t hat required resolution, or the cases

of the accused, involved evidence that directly addressed the issue of the wider command

responsibilities throughout Croatia.

108. And so we are left with the Applicant clinging desperately to two documents. That a

finding of this breadth and import could conceivably be based on two documents is an astonishing

proposition. The Applicant’s continued reliance upon it is as ambitious a legal submission as we

are likely to find in any international court.

109. Even if this was slightly plausible, these documents do not even come close to

possessing that definitive character. On the contrary, as observed by Mr. Ignjatović, they are

aspirational documents, and do not purport to describe a given moment or situation in time. This is

not to “turn them on their head” or to “speculate that the orders were issued in order to ‘fix’

problems of ‘lack of discipline and [a] lack of control’”, as the Applicant claimed 219, but merely to

read the plain words on the page.

110. The circular of the Chief of the General Staff of 12 October 1991 is largely irrelevant to

the issue of command. Other than stating:

“All armed units, be they JNA, TO or voluntary units, must act under the single
command of the JNA. They should behave and act according to the rules that apply in
the army, showing full respect for military discipline hierarchy, military laws and

regulations, in all circumstances of life, work and combat activities. These positions
should [and this is the critical bit] immediat ely be communicated to the JNA officers,

216
CR 2014/20, p. 39, para. 40 (Ní Ghrálaigh).
217CR 2014/20, p. 40, para. 40 (Ní Ghrálaigh).

218CR2014/21, p. 32, para. 65 (Crawford).
219
CR2014/20, para. 46, p. 41 (Ní Ghrálaigh); CR 2014/15, p. 59, para. 47 (Ignjatović). - 71 -

and subsequently, in the most suitable manner, to soldiers220d civilians [subsequently
they shall be communicated to soldiers and civilians].”

111. The 15 October 1991 order of the command of the First Military Di strict (1 MD) of

15 October 1991  the second document  does not take the Applicant’s case any further. It

shows that the command of the first military district observed that “[p]ursuant to recent problems in

the zones of combat activities” they now orde r that the JNA should “[e]stablish full control in the

[area of responsibility] of the units”; order that “[a]ll paramilitary compositions and the voluntary

detachments which refuse to put themselves under the command of the JNA units are to be

removed from the territory”. It ordered that the JNA should establish full control, not that the JNA

had full control.

112. Plainly, the documents do not purport to describe an existing de facto situation in the

whole of Croatia. They are orders for the future  nothing more, nothing less. Is the Applicant

really saying that these two orders prove the de facto reality for each and every operation in

Croatia? Are they really saying that this Trial Chamber, asked to examine events that occurred in

Vukovar over a restricted period, heard evidence of command from all over Croatia? And, if so,

where is this evidence? Why does it not appear in the judgement? How are we to know whether it

was correct? How do we test its reliability? With the greatest of respect to the Trial Chamber, it is

assertion devoid of evidence other than to aspirational documents.

113. Moreover, as Mr. Ignjatović pointed out in the first round, nothing in the remaining

221
ICTY jurisprudence supports this assertion . Where the situation was concretely examined in

Martić and Stanišić and Simatović, the Trial Chambers disagreed with the Mrkšić judgement, yet

offered detailed and logical reasoning in support. As noted at paragraph 142 of the Martić

judgement, there:

“is evidence that beginning of the summer of 1991, the SAO Krajina TO was
subordinated to the JNA. There is also evidence of operational cooperation between

the JNA and the armed forces of the SAO Krajina. Any resubordination of MUP units
to the JNA for temporary assignment required prior approval of the Minister of
Interior of the SAO Krajina. When resubordinated, the MUP unit would be a cting in
cooperation or [in] concert with the JNA unit, it would remain under the command of
the MUP commander.”

114. Subordination as such did not even equate to subordination proper. And more:

22Federal Secretariat for National Defence, Order 12 October 1991, p. 2.

22CR 2014/15, p. 55, para. 31 (Ignjatović). - 72 -

“For the purpose of combat operations, TO units could also be resubordinated to

JNA units. When resubordinating, the largest unit of either the TO or the JNA would
command, which would normally be the JNA unit in a given area.”

These show the fluctuating nature of subordination. That is why examination of concr ete

operations is essential.

115. The Stanišić Trial Chamber agreed with these findings. The Stanišić Trial Chamber

found that any “resubordination of MUP units to the JNA for temporary assignment required prior

222
approval of the Minister of Interior of the SAO Krajina” . In other words, the de jure superior, at

least, was not the JNA. The MUP units were expected to act “on the instructions”, or “under the

direction” or “under the control” of the Ministry of the Interior which was Martić.

116. Finally, the Applicant alleges that the Respondent’s claim  that the Tribunal’s finding

of command and control in reality relates only to the circumstances that prevailed at Ovčara  is

“meritless” 22. Strong words, but plainly two Trial Chambers who descended to reasoning do not

agree.

117. True, as the Applicant pointed out, the Mrkšić Chamber did state, that it is, “misleading

to view the events in Vukovar in isolation or to imagine they were only governed by local factors.

224
They were but part of a much wider political and military struggle.” As pointed out also by the

Applicant, the Chamber also made some limited findings contained in two paragraphs of the

225
existence of military attacks in five named towns in Eastern Slavonia .

118. However, there is nothing in these meagre descriptions to suggest that the Chamber had

examined the narrative of the attacks, let alone examined the nature of the command. The only

other reference to military operations by the JNA in other locations in Croatia is a wholly

unsupported single sentence: “At the same time mili tary operations by the JNA were occurring

elsewhere in Croatia.” 226 No footnote, no evidence, no support.

119. The Applicant avoids addressing these issues.

222
Stanišić, Judgement, para. 2162.
223
CR 2014/20, p. 41, para. 46 (Ní Ghrálaigh).
224CR 2014/20, p. 41, para. 47 (Ní Ghrálaigh), citing to Mrkšić, para. 19.
225
Mrkšić, Judgement, paras. 34-35.
226
Mrkšić, Judgement, para. 34. - 73 -

Conclusion: the Applicant’s “robust platform”

120. So to conclude, the Applicant’s robust platf orm with regard to the ICTY evidence and

the three propositions.

Proposition one

121. That the ICTY jurisprudence excludes the possibility of lawful combat or excludes the

possibility that the Serbian leadership or in fact any of the Serb leadership from the Krajina or any

Serb individual was engaged in lawful combat has been roundly rejected by the ICTY.

Proposition two

122. The Applicant claims that the JCE found in the Martić Judgement provides a platform

for finding that there existed a criminal ente rprise between the Krajina Serbs (Martić, Babić and

others) and the Belgrade Serbs (Milošević, the JNA and others) that involved an agreement to
227
destroy .

123. The Applicant only gets home with this argument, by ignoring the plain terms of the

Martić findings and how it sits with the other salient judgements.

124. As I have shown, the Martić Judgement assessed the gateway question for the

Applicant’s genocide claim and rejected it. It asked the question “did the Belgrade Serbian and

Krajina leadership share an intention to commit murder or serious physical and mental harm”, and

answered that it did not.

125. Where the Martić Judgement might have proffered some support for the Applicant’s

case, inasmuch as it offered some support for the proposition that the Belgrade leadership formed

an agreement to commit the crime of forcible transfer or deportation, it can be shown to be

unreliable at best, wholly contradicted by the Stanišić and Simatović and Babić cases.

Proposition three

126. That the Mrkšić Judgement’s finding can be relied upon 22.

127. The Applicant proffers nothing in support of this proposition other than two documents.

22CR 2014/6, p. 50, para. 8 (Starmer).
228
CR 2014/12, p. 35, para. 85 (Starmer), citing to Mrk, Trial Judgement, para. 89, pa ra. 400; CR 2014/6,
p. 50, para. 9 (Starmer). - 74 -

128. This is the platform that the Applicant’s case rests upon: it is no platform at all.

129. And so, having addressed the foundation of the Applicant’s case, tomorrow, I will turn

to the remainder of the evidence and address the intent, through the prism of the context, the

patterns and the issue of opportunity.

130. As the Respondent has constantly asserted, we do n ot suggest there is one easy answer,

and certainly not the one that the Applicant attempts to dish up to this Court. This was a complex

war, with a multitude of actors and a myriad of intentions. None of them looking very much or at

all like genocide. If the Applicant expects a one dimensional or singular theory on intent, then they

will be disappointed. The Respondent lives in the real world. Thank you, Mr. President.

The PRESIDENT: Thank you, Mr. Jordash. This completes today’s hearing. The Cour t

will meet again tomorrow morning at 10 a.m. to hear the continuation of the second round of oral

argument by Serbia. Thank you, the Court is adjourned.

The Court rose at 6.00 p.m.

___________

Document Long Title

Audience publique tenue le jeudi 27 mars 2014, à 15 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire relative à l’Application de la convention pour la prévention et la répression du crime de génocide (Croatie c. Serbie)

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