Corrigé
Corrected
CR 2014/5
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Monday 3 March 2014, at 10 a.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 lundi 3 mars 2014, à 10 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
Gaja
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
M. Gaja
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, University 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. c andidate (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 morning. Please be seated.
The Court meets today to hear th e oral arguments of the Parties on the merits in the case
concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia).
Since the Court does not include upon the Bench a judge of the nationality of either of the
Parties, both Parties have availed themselves of the right, under Article 31, paragraph 2, of the
Statute, to choose a judge ad hoc. The Republic of Croatia chose Mr. Budislav Vukas and Serbia
chose Mr. Milenko Kreća.
They were duly installed as judges ad hoc in the case on 26 May 2008 during the hearings on
the preliminary objections raised by the Respondent.
*
I shall now recall the principal steps of the procedure so far followed in this case. On
2 July 1999, the Government of the Republic of Croatia filed in the Registry of the Court an
Application instituting proceedings against the Federal Republic of Yugoslavia (the “FRY”) in
respect of a dispute concerning alleged violations of the Convention on the P revention and
Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nati ons on
9 December 1948. To found the jurisdiction of the Court, Croatia invoked Article IX of the
Genocide Convention.
By an Order dated 14 September 1999, the Court fixed 14 March 2000 as the time -limit for
the filing of the Memorial of Croatia and 14 September 2000 as the time- limit for the filing of the
Counter-Memorial of the F ederal Republic of Yugoslavia. At the request of Croatia, these
time-limits were successively extended to 14 September 2000 and 14 September 2001, and then
again, at the request of the Applicant, to 14 March 2001 and 16 September 2002, respectively.
On 11 September 2002, within the time -limit set in Article 79, paragraph 1, of the Rules of
Court as adopted on 14 April 1978, the F ederal Republic of Y ugoslavia raised preliminary
objections relating to the Court’s jurisdiction to entertain the case and to the admissibility of the
Application. Consequently, by Order of 14 November 2002, the Court noted that, by virtue of - 11 -
Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended, and
fixed 29 April 2003 as the time -limit for the presentation by Croatia of a written statement of its
observations and submissions on the preliminary objections raised by the F ederal Republic of
Yugoslavia. Croatia filed such a statement within the time-limit thus fixed.
Public hearings were held on the preliminary objections from 26 to 30 May 2008. By its
Judgment of 18 November 2008, the Court rejected the first and third preliminary objections raised
by Serbia. It found that the second objection that claims based on acts and omissions which
took place before 27 April 1992, that is, the date on which the F ederal Republic of Yugoslavia
came into existence as a separate State, lay beyond its jurisdiction and were inadmissible so this
objection did not according to the Court in the circumstances of the case, possess an
exclusively preliminary character and should therefore be considered in the merits phase. Subject
to that conclusion, the Court found that it had jurisdiction to entertain Croatia’s Application.
By an Order dated 20 January 2009, the Court fixed 22 March 2010 as the time-limit for the
filing of th e Counter -Memorial of Serbia. The Counter -Memorial, filed on 4 January2010,
contained counter-claims.
At a meeting held by the President of the Court with the representatives of the Parties on
3 February 2010, the Co- Agent of Croatia indicated that her Government did not intend to raise
objections to the admissibility of Serbia’s counter-claims as such, but wished to be able to respond
to them in a Reply. The Co-Agent of Serbia stated that, in that case, his Government would wish to
file a Rejoinder.
By an Order dated 4 February 2010, the Court directed the submission of a Reply by Croatia
and a Rejoinder by Serbia, concerning the claims presented by the Parties, and fixed
20 December 2010 and 4 November 2011 as the respective time- limits for the filing of those
pleadings. The Court also instructed the Registrar to inform third States entitled to appear before
the Court of Serbia’s counter -claims, which was done by letters dated 23 February 2010. The
Reply and the Rejoinder were filed within the time-limits thus fixed.
On 16 January 2012, at a meeting held by the President of the Court with the Agents of the
Parties, the Co-Agent of Croatia stated that her Government wished to express its views on Serbia’s
counter-claims in writing a second time, in an additional pleading. - 12 -
By an Order dated 23 January 2012, the Court authorized Croatia to submit such an
additional pleading, and fixed 30 August 2012 as the time -limit for its filing. Croatia filed that
pleading within the time-limit thus fixed, and the case was ready for hearing.
*
At a meeting held by the President of the Court with the representatives of the Parties on
23 November 2012, it was decided that the Parties would negotiate with a view to communicate to
the Court, by late March or early April 2013, their common views and points of agreement on the
organization of the hearings in the case. By a letter dated 16 April 2013, Croatia informed the
Court that the Parties had concluded an “Agreement on the method of examining witnesses and
expert witnesses”. That agreement, as amended subsequently with the permission of the Court,
provided inter alia, that each Party would submit to the Court, not later than 1 October 2013, a list
of witnesses and experts that it wished to call, together with th eir authentic written testimonies and
statements, if such testimonies and statements had not been annexed to the written pleadings. Each
Party would then communicate to the Court, not later than 15 November 2013, the name of any
witness or expert called b y the other Party that it did not wish to cross -examine. It was further
agreed that written testimonies and statements would replace the examination-in-chief.
On 1 October 2013 the Parties communicated to the Court information concerning the
persons whom they intended to call at the hearings, as well the written testimonies and statements
which had not been previously appended to their pleadings. Croatia stated that it wished to call
nine witnesses and three witness- experts in support of its claims. For its part, Serbia announced
that it was planning to call seven witnesses and one witness-expert in support of its counter-claims.
By a letter dated 15 November 2013, Croatia informed the Court that it did not wish to
cross-examine the witnesses and witness -expert announced by Serbia, on the understanding that
they would not be called to testify before the Court, and that their evidence to the Court would be
in the form of their written testimonies or statements. Croatia added that, if this understanding w as
not correct, or if the Court itself wished to put questions to Serbia’s witnesses or witness -expert, it
reserved the right to cross-examine them. By a letter of the same date Serbia informed the Court of - 13 -
the names of the five witnesses and one witness- expert of Croatia that it did not seek to
cross-examine, and indicated that it wished to cross -examine the other four witnesses and two
witness-experts announced by Croatia.
At a meeting held by the President of the Court with the Agents of the Parties on
22 November 2013, the Parties agreed, inter alia , that there was no need to have witnesses and
witness-experts come to the Court if they were not to be cross -examined, unless the Court itself
wished to put questions to them.
By letters dated 16 December 2013, the Registrar informed the Parties, inter alia, that, at this
stage of the proceedings, the Court did not wish to question the witnesses and witness -experts that
the Parties were not intending to cross- examine. At the same time, he further informed them that
the Court wished to receive certain additional documents concerning their witnesses and
witness-experts, and that Serbia would have an opportunity to file written observations on a
document requested of Croatia. By a letter dated 14 January 2014, Serbia provided the Court with
the documents requested. By a letter dated 31 January 2014, Croatia communicated to the Court
the requested document. By a letter dated 11 February 2014, Serbia indicated that it did not wish to
present written observations on the document provided by Croatia.
By a letter dated 17 January 2014, Croatia asked the Court to take certain protective
measures for two of its witnesses, consisting in particular of hearing their evidence in closed
session and referring to them by pseudonyms.
By letters dated 7 February 2014, the Registrar informed the Parties that the Court had
decided that the Parties should use pseudonyms when addressing the two witnesses for which
Croatia had asked for protective measures, or when referring to them; and that these witnesses
would be heard in a closed session of the Court, with only Registry staff and members of the
official delegations of the Parties being permitted to attend that examination. The Parties were also
informed that the Court had decided to impose the following measures to ensure the integrity of the
testimonies/statements of the witnesses and witness- experts: (i) the witnesses and witness-experts
would have to remain out of the court both before and after their testimony/statement; (ii) the
Parties would have to ensure that the witnesses/witness- experts would not have access to the
testimonies/statements of other witnesses/witness -experts before the end of the oral proceedings; - 14 -
(iii) the Parties would have further to ensure that their witnesses and witness- experts would not be
otherwise informed of the testimonies/statements of other witnesses/witness -experts and that they
would have no contact which could compromise their independence or breach the terms of their
solemn declaration; and (iv) the public could attend the witness examinations (except the closed
session), but would be requested not to divulge the content of the testimonies/statements before the
end of the oral proceedings; the same would apply to representatives o f the media, who would
have to subscribe to a code of conduct under the terms of which they would be allowed to take
photographs and make sound recordings, on the express condition that they did not make public the
content of the testimonies/statements before the end of the oral proceedings.
Regarding the publication of the written testimonies of witnesses and written statements of
witness-experts who will appear before the Court, and the publication of the verbatim records of
the hearing of these witnesses/witness- experts, the Parties were advised that this would take place
at the end of the oral proceedings (in their public versions with redacted passages concerning the
protected witnesses). As to the written testimonies of witnesses and the written stat ements of
witness-experts announced on 1 October 2013 but who will not be coming to the Court to be
cross-examined, the Court intends to publish them on its website at the end of the oral proceedings,
with a mention that the Parties did not wish to cross -examine these witnesses and witness- experts.
A few of these written testimonies will be published in a redacted form or under pseudonyms.
Lastly, on the question of the broadcasting of the hearings, the Parties were notified, in the
same letters, that the Court has decided that, while oral arguments would be broadcast on the
Internet, the examinations of witnesses and witness-experts, protected or not, would not.
*
Having ascertained the views of the Parties, the Court decided, pursuant to Article 53,
paragraph 2, of its Rules, that copies of the pleadings and annexes would not be made accessible to
the public immediately on the opening of the oral proceedings. The Court considers that more
information is required to decide exactly whether some of these documents should be redacted (and
to what extent), or possibly withheld from publication, to protect personal information relating to a
number of individual victims and witnesses. In any case, the annexes to the pleadings (which - 15 -
contain written testimonies on disputed events in this case) will not be made public in any form
until the end of oral proceedings. In addition, to ensure the protection of any information that
should possibly be kept confidential, the Court has decided that a number of individuals will be
referred to in public sessions by the annex number of their written testimony or, casu quo, by their
pseudonym.
*
I note the presence at the hearing of the Agents, counsel and advocates of both Parties. In
accordance with the arrangements on th e organization of the procedure which have been decided
by the Court, the hearings will comprise a first and a second round of oral argument by the Parties.
The first round of oral argument will begin today. Croatia will have six sessions of 3 hours
each, five sessions to present arguments on its own claims, the last one being on Friday
7 March 2014, and one session to respond to Serbia ’s counter-claims on Tuesday 18 March 2014,
at 10 a.m. Serbia will begin its first round of oral argument and will have the same number of
sessions as Croatia, that is, six. Its first round of oral argument will end on Friday 14 March 2014.
The second round of oral arg ument will begin on Thursday 20 March 2014, at 10 a.m.
Croatia will have two sessions of 3 hours and one session of one and a half hours to present
arguments on its own claims, the last one being on Friday 21 March 2014 at 3 p.m. Croatia will
then have one session of one and a half hours to respond to Serbia’s counter -claims on Tuesday
1 April 2014, at 10 a.m. Serbia will begin its second round of oral arguments on Thursday
27 March, at 3 p.m. It will have three sessions of 3 hours, the last one starting on Friday
28 March 2014, at 3 p.m.
*
In addition, I note that, during the first round of Croatia’s oral argument, the Court will hear
the witnesses and witness-experts called by Croatia which Serbia wished to cross-examine. These
witnesses and witness-experts will be heard at two public hearings on 4 and 5 March from 3 p.m. to
6 p.m., as well as in one closed hearing. They will be cross-examined by Serbia and re-examined,
if need be, by Croatia. Members of the Court may also ask them questions. - 16 -
*
Croatia, which will be heard first, may, if so required, in this first sitting of oral argument,
avail itself of a short extension of time, I would say up to twenty minutes, beyond 1 p.m., in view
of the time taken up by my introductory words. I now give the floor to the Agent of Croatia ,
Professor Vesna Crnić-Grotić, to open. You have the floor, Madam.
Ms CRNIĆ GROTIĆ:
I. Introduction
1. Good morning. Mr. President, Members of the Court, I am honoured to appear before the
Court on behalf of Croatia in the case against Serbia, all the more so on a case that raises such
important issues under the Genocide Convention. Croatia is committed to the rule of law, and
believes that a just decision by the Court will reinforce peace and stability in the region, contribute
to the healing process for all involved, and support the purposes of the 1948 Convention.
2. Mr. President, Members of the Court, Croatia initiated these proceedings in 1999. At that
time, Slobodan Milošević was still in power in Serbia, the man who was the mastermind behind the
conflict and atrocity that tore apart the former Yugoslavia. You will be aware that Mr. Milošević
was charged with genocide, crimes against humanity and war crimes before th e ICTY. He died in
2006, avoiding conviction for any of those crimes.
3. When Mr. Milošević was removed as President of Yugoslavia in 2000 and a new
government was established, Croatia immediately engaged in negotiations, with the aim of
achieving a ju st solution with regard to the many issues left open after the war. Amongst those
issues was that of the people still missing, a decade or more after the atrocities came to an end.
Despite Croatia’s efforts, many political leaders in Serbia have maintain ed an attitude of denial. It
is to our great regret that this persists today. The current President of Serbia, Mr. Nikolić, has
recently given interviews in which he has refused to recognize the events in Srebrenica as being a
1
genocide, despite the clear verdict of this Court . His statement is in your folders at tab 2. It is the
1http://www.Bdlive.Co.Za/World/Europe/2013/04/26/Serbian-President-Apolo…-
Srebrenica (judges’ folder, tab 2). See also: http://article.wn.com/view/2013/04/26/Serbian
president_apologises_only_for_crime_in_Srebrenica/ . - 17 -
kind of approach which means that thi s case has proceeded. Nor has Mr. Nikolić repudiated his
connections with Vojislav Šešelj, indicted at the ICTY, and the paramilitary groups with which he
has been associated. Such an unfortunate comportment explains why we are here today.
4. Croatia’s only resort to justice appears to be this Court, which has an important role. This
Court is the guardian of the 1948 Convention, and this Court is uniquely placed to address facts and
state the legal principles in a manner that is authoritative and final. No other court or tribunal has
that possibility, not a national court, not the ICTY. Serbia takes refuge in the fact that the ICTY
prosecutor has not brought charges of genocide for facts that are before you in these proceedings.
Does that mean that no genocide was committed, or that there was no failure to prevent genocide?
Of course not. It means only that the ICTY prosecutor chose, in its exercise of prosecutorial
discretion, to adopt the approach it did. You are the first international court to decide whether the
terrible acts committed in and around Vukovar, and elsewhere on the territory of Croatia, were
genocidal.
5. We do recogniz e that Serbia did, at one time, show a willingness to bring prosecutions
against responsible persons on its terr itory. Some efforts were taken, some proceedings brought
and convictions obtained. Yet the more recent developments are deeply unsettling. A Serbian War
Crimes Chamber convicted 14 perpetrators of the massacre in Lovas, of which you will hear more
this week, where a great many people were killed and exposed to the worst genocidal acts. Yet the
Supreme Court quashed th e judgment in January this year, and ordered a re-trial. Similarly, the
judgment in the case concerning events in Vukovar was overturned by the Constitutional Court of
Serbia last year. Mr. President, Members of the Court, undoubtedly courts in all States have a duty
to protect the human rights of defendants in criminal cases, but these two cases cast a long shadow
over Serbia’s commitment to justice and the rule of law. We note too that no senior army officer
has been indicted, as if the armed forces acted without orders from the top. Mr. President,
Members of the Court, you will now on your screens see the results of what happened in Vu kovar,
a video taken in late November 1991, after the city succumbed to the attacks of the Y ugoslav
People’s Army (JNA) and its allies . Please show the video. [Video: footage of Vukovar]
Source: http://www.youtube.com/watch?v=xfbRuaiGN5Q. - 18 -
6. These images show what we are dealing with in this case, the result of an intention to
destroy a part of a group. Over the course of the coming days, Croatia will show that its claims
under the Genocide Convention are well -founded. Croatia still has no information on the
whereabouts of the remains of more than 840 Croatian citizens, still missing as a direct result of the
genocidal acts. In the past year, Serbia has helped to identify only one mass grave (in Sotin in
Eastern Slavonia). A great part of our cultural property taken from churches, museums and
galleries is still missing.
7. Mr. President, in 2008 this Court decided, subject to one point on which the jurisdictional
issues were joined to the merits, that it had jurisdiction to hear this case. In its Judgment the Court
decided that Serbia was legally b ound by the Genocide Convention. The Court’s solitary caveat
was in relation to a preliminary objection ratione temporis. The key date appears to be
27 April 1992, which is the date on which Serbia now claims it came into existence as a State.
Croatia will show that the Genocide Convention is applicable from the beginning of the conflict on
the territory of Croatia, and that Serbia is to be held accountable for actions taken at all material
times, not only actions of the Serbian authorities but also thos e of the former governing authority
for which Serbia is internationally responsible. It is our case, and we will demonstrate, that Serbia
took over de facto and de iure control of former federal organs, including the Yugoslav People ’s
Army (JNA), from the time the former State effectively ceased to exist.
8. Mr. President, Croatia is well aware of the J udgment of the Court in the proceedings
brought by Bosnia and Herzegovina against the same Respondent Serbia. In that case, too, the
Court had to hear about the extreme human suffering, killings and torture. In its Judgment in 2007
the Court decided that the only event amounting to the crime of genocide was the massacre in
Srebrenica. Croatia will adopt the approach taken by the Court and show that genocide and
genocidal intent is not a numbers game. The 1948 Convention aimed at preventing and
outlawing actions of the kind that were taken on the territory of Croatia, beginning in the summer
of 1990. It started with unrest and instability in the ar eas where the Serbs lived but grew gradually
to the genocidal campaign incited, organized, controlled and facilitated by the Respondent.
9. Mr. President, in the next few days we will show you that the crimes that took place in the
campaign against Croat s amount to genocide within the meaning of Article II of the Convention, - 19 -
and the true intention of its drafters. Let us be reminded that the intent to achieve the total
destruction of the targeted group has never been seen as part of the definition of tha t crime. This
Court rightly said that “genocide may be found to have been committed where the intent is to
destroy the group within a geographically limited area ” 3. Respectfully, Croatia will show how
crimes took place in regions of Croatia that were designated by the Serbian leadership as falling
within the compass of an ethnically homogenous “Greater Serbia”.
II. Outline of the present hearing
10. Mr. President, allow me to outline for the Court the manner in which Croatia will
proceed with its oral pleadings over the course of this week. We will follow the written pleadings
without, however, repeating the arguments unnecessarily. We will rely on the material contained
in our written pleadings but we will also make use of new relevant material that h as come into the
public domain since we submitted our Memorial and Reply. We will make use of updated
information on deaths and missing persons, having regard to the mass graves that have been found
over the past 15 years. These express the truth about w hat happened, events that remain open.
Before turning to the outline of Croatia ’s oral pleadings, there is one administrative matter that I
wish to address. In order to assist the Court, we have prepared judges ’ folders, which will be
referred to by counsel as appropriate. The folder contains selected legal and factual authorities, and
selected slides from those that will be presented during the speeches. The slides that depict written
quotations are not reproduced in the folder as the relevant passages will appear in the compte
rendu. The documents and slides in the folders are separated by dividers, and Croatia will provide
the relevant parts of the folder prior to each session, so that it is regularly updated.
11. So, t oday my colleague Ms Andreja Metelko Zgombić will take the Court through the
process of dissolution of the former Yugoslavia but, s ince the Court has heard the story on more
than one occasion, Ms Metelko Zgombić will focus on the most important aspects of those matters
for the purposes of this case. It allows an understanding of the legal and factual relations between
the former republics and the federal structure of former Yugoslavia.
3Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), I.C.J. Reports 2007 (I), p. 126, para. 199, hereafter: Bosnia case. - 20 -
12. She will be followed by Ms Helen Law , who will show how the rise of Serbian
nationalism affected the r elations between various nations in the former Yugoslavia and brought
Slobodan Milošević to power, first in Serbia and then in Yugoslavia. She will set out how Serbian
nationalism gave rise to the genocidal acts that followed, as the former Yugoslavia was torn apart.
The idea of a Greater Serbia had been initiated in 1986, and in 1990 Mr. Milošević and his allies
men like Šešelj and Arkan of whom you will hear more started to work on its realization by the
harnessing of a genocidal intent. Hate speech was used to target Croats, and this opened the door
to genocidal acts.
13. The first day of these proceedings will continue with Professor James Crawford, who
will address the role of the JNA and paramilitary groups in the genocidal actions. He will show
how the JNA turned from a force that protected Yugoslavia from foreign enem ies into a supporter
and collaborator of Mr. Milošević’s genocidal intentions. This was reflected in the command
structure and in the field. The JNA rounded up “volunteers” and paramilitary groups from Serbia,
from Croatia and Bosnia, with the intention of destroying a part of the Croat population. The JNA
kept the command over them and provided artillery, aviation and any other kind of support in
destroying, seizing and occupying Croatian towns and villages.
14. We will end today with Professor Sands who will address the Genocide Convention,
taking you through its origins and evolution. He will set out elements of the actus reus and specific
intent that are to be applied by the Court. He will complete his presentation tomorrow morning.
15. Then Sir Keir Starmer will address issues of evidence and proof in these proceedings.
He will explain the Applicant’s position with respect to the Court’s findings in the Bosnia case and
the case law of the ICTY.
16. Finally, on the same day the Court will be presented with evidence of genocidal activities
by the Respondent that took place in Croatia and its different regions. My colleague Ms Jana Špero
will address these issues in overview, and Professor Sands will then provide the Court with an
overview of how the Respondent’s genocidal campaign unfolded across Croatia as a whole.
17. On the same day, in the afternoon, you will hear some first -hand accounts of the
atrocities and the sufferings in Vukovar from the witness Mr. FranjoKožul. In the same session
you will also hear our expert witness, Ms Sonja Biserko, an individual of impeccable independence - 21 -
and integrity. She will set out the political and historical framework for the genocide committed
against the Croat population.
18. On Wednesday, Ms Blinne Ní Ghrálaigh will address the systematic pat tern of attack
adopted by the Serb forces, led by the JNA, and then as they pursued their genocidal campaign.
She will focus in particular on the region of Eastern Slavonia. She will be followed by
Sir Keir Starmer, who will describe how this pattern of attack was put into play against Vukovar,
which is amongst the worst of the crimes committed by the JNA and its paramilitary allies. The
events of November 1991 are well known, but they lie at the heart of this case, emblematic of
genocidal intent and act.
19. By way of example, my colleague Professor Maja Seršić will illustrate some of the worst
examples of genocidal acts in two places in Lika and Dalmatia. We will conclude the morning
session of day three with Professor DavorinLapaš, who will present evidence of massacres and
mass killings committed with intent to destroy the Croat population.
20. On the same day in the afternoon you will hear a witness , Ms Marija Katić, who will tell
you about killings and destruction in the village of Bogdanovci in Eastern Slavonia. The next
witness will be Mr. Ivan Grujić, an expert witness who has been personally in charge of the
excavations of mass graves and identifications of the dead from the beginning of the war in
Croatia. He is the person well respected for his work by the International Committee of the Red
Cross and he has testified before the ICTY on several occasions.
21. On Thursday morning, Mr. President, I will set out Croatia ’s position as to the fulfilment
of the actus reus element of genocide in accordance with Article II of the Genocide Convention by
giving you evidence about the ill -treatment of the Croat population, including rape and torture on
attacked territories.
22. Professor James Crawford will then address the issues of attribution. Contrary to
Serbia’s assertion, all the acts of genocide are in fact attributable to the Respondent in accordance
with international law. These acts were either committed directly by the JNA or under their
command. It is the Applicant ’s argument that the JNA was a de facto and de iure organ of the
Respondent and as such all responsibility is attributable to it. - 22 -
23. The final presentation of the morning will be the first part of Sir Keir Starmer’s argument
about the legal basis for responsibility of the Federal Republic of Y ugoslavia, or Serbia , for
violations of the Genocide Convention.
24. Mr. President, Members of the Court, Friday, our final day of the first round, will be
dedicated to the continued argument by Sir Keir Starmer about the legal basis for responsibilit y of
FRY/Serbia for violations of the Genocide Convention.
25. After that, Professor James Crawford will address the single jurisdictional issue that
remains outstanding. On the basis of the facts, it will be evident that the Court has jurisdiction over
the entire period of these unhappy events.
26. Finally, Professor Sands will bring together the main strands of Croatia’s case, and bring
our arguments to conclusion.
III. Conclusions
27. Mr. President, Members of the Court, Croatia will not address the issues raised by
Serbia’s counter-claim in this first round. In accordance with the schedule set by the Court, these
will be addressed on the morning of 18 March.
28. Mr. President, that sets out the approach that will be taken by Croatia over the next week.
We appreciate that the Court may wonder why it has taken so long to get to this stage, indeed why
the Parties have not been able to resolve their differences. We have tried, time and again. Yet,
time and again, new governments have come into power in Serbia who were unwilling to confr ont
the truth about the events that began more than two decades ago. For this reason they are not mere
historical events. They continue to resonate, and the Court continues to have an important role in
addressing the facts and confirming once and for all that the requirements of the 1948 Convention
have been met in relation to the Croatian application.
29. And now, Mr. President, I invite you to call Ms Metelko Zgombić to the Bar. Thank
you.
The PRESIDENT: I thank Professor Crnić Grotić for her Agent’s introductory statement. I
will now call on Ambassador Metelko Zgombić, Co-Agent of Croatia, to continue the presentation
of its case. You have the floor, Madam. - 23 -
Ms METELKOZGOMBIĆ:
H ISTORICAL AND P OLITICAL C ONTEXT FOR THE G ENOCIDE IN CROATIA :
T HE DISSOLUTION OF THE SFRY
I. Introduction
1. Mr. President, Members of the Court , it is my honour and privilege to appear before you
once again on behalf of the Republic of Croatia . I will address the historical and political context
of the dissolution of the SFRY and, by doing this, I will respond to the unfounded claim by the
Respondent that it can have had no responsibility for conduct before its formal proclamation on
27 April 1992.
2. Serbia asserts that before 27 April 1992, the otate with the responsibility for any
relevant acts or omissions in Croatia was the Socialist Federal Republic of Yugoslavia (the SFRY) .
This is a strategy of evasion, and it is not the one that the Court should accept . The reality is that
during the critical period in 1991, the institutions of the SFRY had been appropriated by an
emergent Serbian S tate and were no longer functioning as federal org ans in accordance with the
1974 Constitution of the former Yugoslavia. Note that when Serbia together with
Montenegro adopted a new Constitution on 27 April 1992 and named the S tate the Federal
Republic of Yugoslavia, it did not ask for recognition by the international community and it did not
consider itself to be a new S tate, different from the SFRY . The international community did not
accept its claim of continuity ; neither did Croatia . But the claim did implicitly, even expressly,
involve an avowal by the Federal Republic of Yugoslavia of the conduct of the organs, previously
organs of the SFRY, which it had taken overin the process of the dissolution of the Former
Yugoslavia. In short, the Federal Rep ublic of Yugoslavia continued to operate with the organs
over which it assumed control in the process of dissolution of Yugoslavia. For convenience, I and
my colleagues will simply refer to the Federal Republic of Yugoslavia by the current name, Serbia.
3. In this presentation, I am going to outline the process of the dissolution of the SFRY . To
put these events in their context , some knowledge of the historic and cal background is
necessary and is provided in the pleadings, in particular in Ch2 of the Memorial and in - 24 -
Chapter 3 of the Reply . I will focus on the structure of the SFRY and on the developments which
caused the constitutional crisis in the 1980s and early 1990s and which ultimately led to the
SFRY’s dissolution during the course of 1991. These events took place in the context of the
re-emergence of extreme Serbian nationalism and the adoption by the Serbian leadership of a plan
for a de facto “Greater Serbia”.
4. I can do so briefly because the facts are relativ ely well known to the Court and it is
familiar with them from the other cases. My colleagues will return to particular episodes of that
process as required for the presentation of the case, and on Thursday Professor Crawford will deal
with the legal implications for the attribution of conduct.
II. Serbia’s repudiation of the SFRY Constitution
5. [S creen on ] Mr. President, Members of the Court: let me briefly set the scene
geographically. On the screen you can see the various geographical regions of Croatia. In these
proceedings, particular reference will be made to Banovina, Kordun, Lika, Dalmatia , and for the
purposes of these proceedings, Eastern and Western Slavonia. It is mainly in these regions that the
acts that are the subject of this Application were committed acts that, as you will hear during the
course of this week, amounted to the genocide. [Next graphic]
6. You can now see on the screen a map of the whole territory of t he former Yugoslavia.
The SFRY was a federal S tate with eight constituent units . Its six r epublics were: Bosnia and
Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia . It had also two autonomous
provinces, Kosovo and Vojvodina, which were parts of the Federation and also parts of Serbia.
7. It is essential for this case to understand the fundamental principles on which the SFRY
was established and on which it functioned . Without this understanding, it is impossible to fully
appreciate the developments in the SFRY, including key events that led to the destruction of its
federal institutions and its ultimate dissolution.
8. Established on the principle of the self -determination of peoples, the second Yugoslavia
was from its inception envisaged as a federation of six constitutionally equal republics. This was in
sharp contrast to the previous first Yugoslavia, which existed between the two World Wars and
4Memorial of Croatia ( MC), Ch. 2, especially paras. 2.105–2.116; Reply of CroaRC), Ch. 3, especially
paras. 3.81–3.117. - 25 -
5
which was a Serbian-dominated unitary State, often referred to as “the dungeon of na tions” . The
principles of federalism and equality of the constituent r epublics were implemented in the first
post-war constitution of Yugoslavia in 1946 and were further developed and reinforced in the
1974 Constitution, which was in force until the dissolution of the SFRY. [Screen off]
9. Under the 1974 Constitution, the sovereignty of the six constituent republics and the two
autonomous provinces were enhanced. The result was a federation with distinct confederal
elements. This considerably strengthened the position of the republics in relation to the federal
structure of the SFRY . All matters that were not explicitly granted to the federal government by
the federal Constitution were reserved for the republics and the autonomous provinces.
10. The central organ of the federation was the collective rotating Presidency, composed of a
member from each of the six republics and two autonomous provinces. Decisions were taken on
the basis of a majority of the eight votes of the members of the Presidency, who were elected for
terms of five years. As provided under Article 327, the Presidency of the SFRY was required to
rotate the position of President and Vice -President from among its members for a term of one
6
year .
11. Under Article 313 of the SFRY Constitution, the Presidency of the SFRY was “the
supreme body in charge of the administration and command of the armed forces . . . in war and
peace”. Under Article 328, the President of the SFRY Presidency was in charge of the command
of the armed forces and was also the Chairman of the Council for National Defence.
12. Mr. President, soon after the death of Tito in 1980, the Socialist Republic of Serbia
began to question the basic principles governing the structure of the SFRY . With the re-emergence
of e xtreme Serbian nationalism, inflamed by the infamous 1986 Memorandum of the Serbian
Academy of Sciences and Arts the so-called SANU Memorandum and Milošević’s coming
to power in 1987, Serbia took a series of unilateral actions which disrupted the balance between the
republics and cut deeply into the core structure of the federal State 7.
5R. J. Davies and B. Riley, The Croats under Yugo- Slavian Rule : The Result of an Inqui(London, 1932),
National and Unive rsity Library in Zagreb, available at http://www.scribd.com/doc/97139484/Croats -Under-Yugo-
Slavian-Rule.
6MC, para. 2.16.
7
MC, para. 2.43. - 26 -
13. A key development in the undermining of the constitutional system of the SFRY was the
adoption on 28 March 1989 of an act amending the Serbian Constitution, followed by the Serbian
Constitution in 1990. In contravention of the Constitution of the SFRY, the act abolished the
autonomy of the two autonomous provinces. Power was centralized in the Republic of Serbia .
Serbia retained, however, their representatives in federal organs. As a result of these changes in
Kosovo and Vojvodina, along with the establishment of a pro- Serbian Government in
Montenegro 8, Serbia came to control four out of the eight votes in the Presidency of the SFRY .
This development can be seen as marking the beginning of the constitutional crisis in the SFRY. It
became increasingly clear to the non -Serbian members of the SFRY Presidency that they could
exercise no real power and authority in this federal organ and that half of the members of the
Presidency had effectively been taken over by Serbia.
14. In March 1991, the SFRY Presidency rejected a Serbian proposal to declare a state of
emergency. Responding to the failure to get the measure through the Presidency, Serbian President
Slobodan Milošević made a televised speech noting that the refusal of the other republics to declare
the state of emergency “ had pushed Yugoslavia into the f inal stage of its agony ”. [Screen on] In
the speech, made on 17 March 1991, several months before the conflict started, Milošević declared:
“Under the existing conditions, the Republic [of Serbia] does not recogni ze the legitimacy of the
Federal Presidency.” 9 [Screen off]
15. On 15 May 1991, the Presidency, dominated by Serbia, with four votes against it, refused
to recognize the constitutionally prescribed accession of the Croatian representative, Stjepan Mesić,
to the office of President of the SFRY Presidency.
16. By that date, in mid- 1991, the Yugoslav People ’s Army or the JNA no longer
functioned as a federal organ. Command and control of the army had clearly vested in the Serbian
leadership and those senior military figures who gave their al legiance to Serbia .
Professor Crawford will show in more detail how the constitutional crisis extended to the JNA, but
I will highlight a few key events.
8
MC, para. 2.61.
9Orlando Sentinel Tribune, 17 March 1991, MC, Anns., Vol. 4, Ann. 34, para. 2.98. - 27 -
17. The JNA had already disarmed the territorial defence forces in Croatia. The territorial
defence forces were a component of the armed forces of the SFRY, but they were under the control
of each of its constituent republics. The disarmament of the Croatian forces was planned and
quickly undertaken in May 1990, before there had been a handover of authority following the
election and before the new Government had been installed. The disarmament took place on the
basis of a strictly confidential command signed unlawfully and without the knowledge and
agreement of the SFRY Presidency by the Head of t he General Staff of the JNA,
General BlagojeAdžić. [Screen on] The arms taken, an estimated 80,000 to 200,000 guns, were
stored in the warehouse of the JNA . Borisav Jović, the Serbian representative on the SFRY
Presidency, wrote about the event on 17 May 1990: “Practically speaking, we have disarmed them.
Formally the Head of the General Staff did this, but in fact, it was actually under our order .
Extreme reaction by the Slovenes and Croats, but they have no recourse.” 10 [Screen off]
18. In accordance with Article 5 of the Constitution of the SFRY, the boundaries between the
republics could only be altered by mutual agreement between the republics concerned. But in
January 1991 President Milošević made it clear that Serbia would not accept the separation of “the
11
Serbian nation” into different States . In March 1991, he said: “borders, as you know, are always
dictated by the strong, they are never dictated by the weak ” 12. By early 1991, t hen, the Serbian
leadership had begun to question the territorial borders between the constituent republics. In
response to an explicit question asked by Serbia about the nature of the republican borders within
the SFRY, the Badinter Commission concluded that the borders between Croatia and Serbia,
between Serbia and Bosnia and Herzegovina, or with other S tates, could be changed only by free
will and a common agreement. In the absence of such an agreement, the former administrative
13
borders of the republics had become external borders and were protected by international law .
10
B. Jović, Poslednji dani SFRJ (Last Days of the SFRY) (1996), 146, MC, Apps., Vol. 5, App. 4.
11BBC Summary of World Broadcasts, 17 Jan. 1991, MC, Anns., Vol. 4, Ann. 30.
12“Excerpts from shorthand notes from a meeting of the President of the Republic,dan Milošević, and the
deputy chairman of the National Assembly of the Republic of Serbia with presidents of municipal councils of the
Republic of Serbia, held on 16 March 1991”, prepared by M . M. Vreme (Belgrade), No. 25, 15 Apr. 1991, 62–66, quoted
in RC, para. 3.38.
13
Arbitration Commission, EC Conference on Yugoslavia (Badinter, Chairman), Opinion No.3, 11 Jan. 1991. - 28 -
19. Mr. President, Members of the Court , in January 1991, the SFRY Presidency had
rejected a Serbian proposal to allow JNA intervention in Croatia . In March, as I mentioned, it had
rejected another Serbian proposal to declare a state of emergency . Faced with these refusals,
Serbia went ahead on its own initiative. In early April 1991, Milošević and Jović met
Generals Kadijević and Adžić. The generals assured the Serb leadership that the JNA would secure
areas held by rebel Serbs in Croatia without consulting the Presidency. On 5 July 1991, Milošević
and Jović, who was at that time Serbia’ s representative in the SFRY Presidency, issued
General Kadijević a series of demands, which he accepted. They demanded that the JNA
concentrate its main forces along a line that would give it control over all the territory where Serbs
lived14. They also demanded the complete elimination of Croats and Slovenes from the JNA. It is
plain that by the middle of 1991, and despite the continuation of formal and obviously futile
meetings, the SFRY Presidency had been effectively rendered impotent by Serbia. This set the
stage for what followed.
20. In September and October 1991, the JNA and Serb paramilitary units began a general
attack on all fronts i n Croatia . On 7 October1991, the historic building of the Croatian
Government in the cen tre of Zagreb was attacked from the air . This deliberate attack occurred
while the Croatian President, Franjo Tudman, the then President of the Presidency of the SFRY,
StjepanMesić, and the SFRY Prime Minister, Ante Marković, were meeting inside the building. It
was in this violent context that next day, on 8 October 1991, the Parliament of the Republic of
Croatia declared the independence of Croatia.
21. Mr. President, Members of the Court , can there be any stronger proof of the collapse of
the former common State and its organs and of Serbian control of the JNA , than the fact that the
JNA attempted to kill the head of S tate and head of government of the SFRY, together with the
President of Croatia?
1B. Jović, Poslednji dani SFRJ (Last Days of the SFRY) (1996), 349, cited in RC, para. 4.62. - 29 -
22. The Badinter Commission concluded, in its Opinion No. 1 of 29 November 1991, that by
15
that time the SFRY was already in a process of dissolution . In truth, that process was by then
advanced and, in fact, irretrievable.
III. Serbia’s response to these facts
23. In its response to these facts, Serbia points to international and diplomatic activities
undertaken by the SFRY between 1991 and early 1992 16. These activities included the conclusion
of bilateral and multilateral agreements, participation in diplomatic conferences and meetings. But
this level of diplomatic activity cannot mask the reality : the fundamental breakdown and the
inability of the SFRY organs, in particular the collective Presidency, to govern the SFRY during
this period. Nor can it hide the fact that, at the time, the Serbian President had publicly disavowed
the legitimacy of decisions taken at the federal level.
24. Serbia also argues that the finding of the ICTY in the Martić case namely that
Milošević participated in a joint criminal enterprise with, among others, G enerals Kadijević and
Adžić does not mean that international responsibility for acts and omissions that took place
in 1991 can be transferred to a State that only came into existence in April 1992. But the relevance
of the joint criminal enterprise is that it indicates the extent to which the Federal Secretary for
National Defence of the SFRY and the Head of General Staff of the JNA had by April 1991
committed themselves to the creation by force of a de facto “Greater Serbia”. This plan came into
existence no later than April 1991. An indispensable element of the creation by force of a “Greater
Serbia” was a plan to rid large parts of Croatia of its Croat inhabitants, including by the destruction
of a part of the Croatian population. That was, in plain words, a genocidal plan.
IV. The rebellion of Serbs supported by Belgrade
25. Mr. President, Members of the Court , I will now briefly address another i mportant
development: the rebellion of Croatian Serbs supported by Belgrade . From 1989 onwards, mass
1Arbitration Commission, EC Conference on Yugoslavia (Badinter, Chairman), Opinion N1, 29 Nov. 1991,
92 ILR 162.
1Rejoinder of Serbia (RS), paras. 435–436. - 30 -
rallies of Serbs in Croatia were instigated, supported and encouraged by Belgrade. You will recall
that at that time Croatia was still governed by the League of Communists.
26. Soon after the democratic transition in Croatia in 1990, an open Serb rebellion broke out,
backed by Serbia and the JNA . In August 1990, weapons were seized en masse from police
stations in areas with Serb majorities or significa nt Serb minorities. Roads and railway lines were
blocked or cut off in the central area of Croatia, the Knin area . From that time, these areas were
beyond the effective control of the Croatian authorities.
27. This rebellion resulted in the self -proclaimed Serb entities on the territory of Croatia
in 1990 and 1991, the so- called Serb Autonomous Provinces or “SAOs”. The establishment of
these entities is discussed at more length in Croatia’s pleadings 1.
28. The first to be proclaimed was the so -called “SAO Krajina”. The Serb community in
Knin adopted a resolution establishing this entity one day before the proclamation of a new
constitution for the Republic of Croatia, on 21 December 1990 18. The Serbs in the area ceased
their relations with the Croatia n Government and the police there separated themselves from the
policing system of Croatia 19. On 19 December 1991, the rebel Serbs proclaimed the so -called
“Republic of Serbian Krajina”, the “RSK” . The “RSK” was soon joined by the two other
self-proclaimed SAOs on the territory of Croatia. These were the “SAO Western Slavonia” and the
“SAO Eastern Slavonia, Baranja and Western Syrmium” 20. By the end of 1991, almost one third of
Croatia’s territory was occupied, with the genocidal campaign under way.
29. Mr. President, Members of the Court , just to complete the story . After more than four
years of occupation, destruction of Croats, failed negotiations, facing constant destruction of its
towns and infrastructure, the intransigence of the rebel Serbs and th e inefficiency of the
United Nations, Croatia regained control over most of its occupied territory in 1995. The last area
to be reintegrated into Croatia was that of Eastern Slavonia, in cluding the area around Vukovar
17RC, paras. 3.57–3.80.
18
MC, para. 2.94.
19MC, paras. 2.93–2.95.
20
RC, para. 3.76. - 31 -
where some of the worst atrocities of the genocide were commi. The area was peacefully
reintegrated by January 1998.
V. Conclusion
30. Mr. President, Members of the Court , you do not need to dwell on any of these facts at
great length . The evidence is plain and overwhelming , by early 1991, the SFRY had, in
reality, ceased to exist and function as an effectiveState. Within a few months, by the
middle of 1991, as the conflict in Croatia began, it was also plain that Serbia, under the leadership
of Milošević, had rendered the Presidency effectively impotent and had taken control of the JNA .
Serbia including the JNA was pursuing an expansionist and aggressive policy of acquiring
the part of Croatia that it envisaged as forming part of a “Greate. This policy included
support for the self -proclaimed Serb entities that were established on Croatian terr.tory in 1991
This was the context for the genocidal campaign that ensued.
31. With your permission, Mr. President, Ms Law will begin the process of analysing that
genocidal campaign by setting out in more detail the influence of the extremist Serbian nationalism
in the period before conflict.
32. Thank you, Mr. President, Members of the Court, for your attention.
The PRESIDENT: Thank you very much, Madam Co-Agent, and I now give the floor to
Ms Helen Law. You have the floor.
Ms LAW:
HISTORICAL AND POLITICAL C ONTEXT FOR THE G ENOCIDE IN CROATIA :
THE R OLE OF EXTREMIST SERBIAN NATIONALISM
1. Mr. President, Members of the Court, it is an honour for me to appear before you in these
proceedings on behalf of the Republic of Croatia. I anticipate my presentation taking
approximately 30 minutes. With your permission I will continue without a break, but of course
please do indicate if, at any stage, you would like me to break.
2. My presentation is the second of the three presentations this morning addressing the
background to the genocide committed by Serbia against ethnic Croats. It focuses on the rise of - 32 -
extremist Serb nationalism in th e years leading up to the genocide. Professor Crawford will then
describe the parallel Serbianization of the Yugoslav People’s Army (JNA) that contributed to the
acts of genocide.
3. This morning I will address three matters:
I. The rise of extremist Serbian nationalism from the late 1980s and the virulent campaign of
hate speech against Croats conducted in the Serbian media;
II. The support shown by President Milošević for extremist nationalist aims;
III. The connection between extremist Serbian natio nalist ideology and the genocidal acts
committed in Croatia.
I. The rise of extreme Serbian nationalism
4. I begin then with the rise of extremist Serbian nationalism in the period before the conflict
in Croatia. This builds on the accounts of the rise of extremist Serbian nationalism following the
death of President Tito in 1980 set out in our pleadings 21.
5. The political importance of Serbian nationalism in this period does not appear to be in
dispute between the Parties. Serbia admits that, prior to 2000, “Serbian nationalism was the
leading political idea”; it does not dispute that, “hate speech was abundant in the Serbian media at
the end of the 1980s and during the 1990s” 22. The Respondent goes so far as to concede the role
played by historical re visionism during this period and admits that, “Serbian nationalists misused
23
the recollections of these past events . . .” .
6. The Respondent’s assertions that Serbian nationalism went “ hand in hand” with Croatian
24
nationalism have been refuted comprehensi vely in Croatia’s pleadings . The role and effect of
Serbian nationalist propaganda was confirmed by the expert report of Professor de la Brosse, a
Senior Lecturer at the University of Reims, which was submitted to the ICTY Trial Chamber
21
See Chapter 2 of the Memorial and Chapter3 of the Reply.
22Counter-Memorial of Serbia (CMS), paras. 423 and 434.
23CMS, para. 420.
24
RC, Vol. 1, paras. 3.17-3.25 and 3.41-3.53. - 33 -
during the procee dings against Slobodan Milošević . In 2004 the Trial Chamber adopted the
conclusions of the report, noting that, and as you shall see on screens [Plate on]:
“Professor de la Brosse determined that a comparison between Serbian,
Croatian, and Bosnian nationalist propaganda yield ed the conclusion that Serbian
propaganda surpassed the other two both in the scale and content of the media
messages put out.” 26 [Plate off]
7. The publication in 1986 of a Memorandum drawn up by the Serbian Academy of Sciences
and Arts which you have heard referred to as the “SANU Memorandum” precipitated a
27
period in which extreme nationalist propaganda dominated Serbian culture . The Memorandum
was in effect a manifesto, setting forth a Serb nationalist reinterpretation of the recent history of the
SFRY. It carried weight because of the authority of its authors, and reflected basic precepts of the
Serb nationalist movement. It was premised on the view that the Socialist Republic of Serbia and
the Serbs in the other republics of the SFRY were in a uniquely unfavourable position within the
SFRY.
8. The Memorandum adopted the position that: “[The Serbian nation] . . . is now the only
nation in Yugoslavia without its own state .” 28 The Memorandum proposed a review of the SFRY
Constitution under which the autonomous provinces would become an integral part of Serbia and
the Federal State would be strengthened. This option, referred to in the SFRY as the “Unitarian
option”, was unlikely to be acceptable to other r epublics in the SFRY, fearing the dominat ion of
Serbian interests in a Unitarian State. The Memorandum also claimed that a covert programme for
the Croatization of ethnic Serbs was underway in Croatia.
29
9. In her expert report submitted to the ICTY during the trial of Slobodan Milošević ,
Professor Audrey Budding, an associate at the Harvard Academy for International and Area
Studies, who wrote her doctoral dissertation on Serb Intellectuals and the Nati onal Question,
25RC, Vol. 4, Ann. 106, (Professor R. de la Brosse, “Political Propaganda and the Plan to Create a ‘State for all
Serbs’ Consequences of Using Media for Ultra- Nationalist Ends”, Report Compiled at the Request of the OTP of the
ICTY, 4 February 2003) (Professor R. de la Brosse Report).
26Prosecutor v. Slobodan Milošević, Decision on Motion for Judgement of Acquittal, c ase No. IT -02-54-T,
16 June 2004, para. 237.
27MC, Vol. 1, para. 2.43 et seq.
28
MC, Vol. 4, Ann. 14, p. 75, para. 7.
29Expert Report of Professor Audrey Budding entitled “Serbian Nationalism in the Twentieth Century” submitted
to the ICTY during the trial of Slobodan Milošević referred to in Prosecutor v. Slobodan Milošević, Decision on Motion
for Judgement of Acquittal, case No. IT-02-54-T, 16 June 2004, para. 235; the Budding Report. - 34 -
1961-1991, described the Memorandum as “the best known document of the contemporary Serbian
national movement” , and explained how it set off “a political firestorm” 3. As she noted, the
second half of the Memorandum asserted that the very survival of Serbs in Croatia was threatened
32
by assimilation: “Serbs in Croatia were never as endangered in the past as they are today” . She
concluded that the Memorandum was inflammatory because of the contrast between its complaints
about the position of Serbia and Serbs within Yugoslavia and its “vague and elliptical references to
a possible post Yugoslav future” 33.
10. The Respondent claims that Croatia exaggerates the importance of the SANU
Memorandum 34. We disagree, and so does the ICTY, having regar d to the reliance placed on the
reports of Professor Budding and Professor de la Brosse. Professor de la Brosse found that it was
the deliberate leaks of the SANU Memorandum that sparked things off and “raised the issue of
Serbian nationalism publicly” 35. Other independent commentators have described the
36
Memorandum as a “political bombshell,” one that “convulsed” the country .
11. Following the publication of the SANU Memorandum, articles began to appear in the
Serbian media that demonized the Croats 37, referring to their alleged genocidal tendencies.
12. As noted in the written pleadings, during the Second World War terrible crimes were
committed against the Serbs and others by the Ustasha puppet r égime of the so-called Independent
State of Croatia (NDH) . From the early 1980s, leading Serbian newspapers ran inflammatory
articles about the Ustasha concentration camp in Jasenovac 38.
13. A number of Serbian historians and journalists gave vent to the theory that the Croatian
people were collectively to blam e for the large number of Serbs who were killed between
30
The Budding Report at Pt. 4, p. 53.
31
Ibid., p. 54.
3Ibid., Pt. 4, p. 54.
3Ibid., pp. 57-58.
34
CMS, para. 428.
35
RC, Ann. 106, Professor R. de la Brosse Report, para.34.
3RC, Vol. 1, para. 3.11.
3MC, Vol. 5, App. 3 ( Hate Speech: The Stimulation Of Serbian Discontent And Eventual Incitement To
Commit Genocide), see especially paras.17-22.
3MC, para. 2.53 and RC, para. 3.13. - 35 -
1941-1945. This promoted a view that Croats were, by their very nature, genocidal in character
39
and that they adhered to a continuing genocidal intent against the Serbs .
14. As Professor de la Brosse’s Report notes, and you see on the screen [Plate on]:
“[the] incessant reminders of the [NDH] and atrocities committed by the Ustasha were
an alibi for the political objectives of the [Serbian] regime and were at the root of the
development and strengt hening of inter -ethnic hatred . . . The parallel between the
past and the present comparing Franjo Tuđman’s regime to that of Ante Pavelić, was
made to raise anti-Croatian hatred to fever pitch.” 40 [Plate off]
The Report sets out several examples in this regard.
15. In 1986 a mobile exhibition entitled The Dead Open the Eyes to the Living, was
displayed at JNA barracks throughout Yugoslavia 41. The Exhibition, which was open to the public,
ran from 1986 to 1991. From the map showing the exhibition sites it is easy to see that these were
the areas were genocidal acts were later perpetrated by the Respondent 42. This had a clear goal. It
connected the crimes of World War II to the allegedly “separatist” tendencies in the Socialist
Republic of Croatia. This coincided with articles that appeared in weekly journals with a large
JNA readership (e.g., Front, People’s Army), fomenting the demonization of the Croats.
16. These and other actions played a key role in preparing the ground for the acts of
43
genocide against Croats that were to follow .
17. In April 1991 a Member of the Serbian Parliament Milan Par oški made a
well-publicized and widely reported speech in the village of Jagodnjak in Baranja (north- eastern
Croatia). Referring to Croats and Hungarians, he declared that this was Serbian land and then said
(as you can see on your screens) [ Plate on]: “Whoever tells you that this is his land is a usurper,
and you have the right to kill him like a dog!” 44 [Plate off] Baranja was occupied by Serb forces in
August 1991 and remained under Serb control until 1998. It was the scene of many horrific
atrocities.
39MC, Vol. 5, App. 3 (Hate Speech).
40
RC, Ann. 106, Professor de la Brosse Report, para. 54.
41RC, Vol. 1, para. 3.14.
42RC, Vol. 4, Ann. 113, Exhibition sites of “The Dead Open the Eyes to the Living”.
43
MC, Vol. 5, App. 3, in particular paras. 35-37.
44See MC, Vol. 5,App. 2, Video clip 3. - 36 -
II. The support shown by President Milošević for extremist nationalist aims
18. I turn to my second point, namely the role played by Slobodan Milošević in whipping up
anti-Croat hatred. The ICTY found in Martić that Milošević and others including Babić, Adzić,
Karadzic, Mladić and Vojislav Šešelj were party to a joint criminal enterprise ( the “JCE”). Its
45
common purpose was the establishment of an ethnically pure Serb territory . The finding
withstood the 2008 appeal 46. I will now examine Milošević’s role in supporting and encouraging
extremist Serb nationalist aims in the period leading up to the genocide.
19. According to Budding, from 1990 the Serbian leadership actively supported Serb
nationalists in Croatia, in order to secure their allegiance to Belgrade and against the newly elected
Croatian government 47. By August 1990, Serbs in the area around Knin, in Croatia, severed
relations with Zagreb and were engaged in an outright rebellion by cutting off the Knin area from
the rest of Croatia, in a move that came to be known as the “Log Revolution”.
20. At this time, President Milošević used hate speech against the Croats to rally support for
his nationalist aims. As noted in the 1994 Report of the UN Commission of Experts, in addressing
Serbia’s parliament in March 1991, he said (and again, you see on the screens) that [Plate on]:
“Serbia and the Serbian people are faced with one of the greatest evils of their
history: the challenge of disunity and internal conflict . . . All who love Serbia dare
not ignore this fact, especially at a time when we are confronted by the vampiroid,
fascistoid faces of the Ustashas, Albanian secessionists and all other forces in the
anti-Serbian coalition which threaten the people’s rights and freedoms.” 48
21. He also made use of the media to legitimi ze the go al of a Greater Serbia, including
through violent means. As Professor de l a Brosse noted in his authoritative report (and you see on
the screen) [Next plate]:
“The political and military goal of a S tate for all the Serbs, which presupposed
annexing Bosnian and Croatian territory in which Serbs lived, was supported by the
Serbian media that served as tools to legitimise the use of force and violence. In July
1991, Slobodan Milošević would again choose Serbian television to deliver a speech
in which he announced that war had become inevitable.” 49 [Plate off]
45
Martić, Trial Chamber Judgement, IT-95-11-T, 12 June 2007, paras. 445-446.
46Martić, Appeals Chamber Judgement, IT-95-11-A, 8 Oct. 2008.
47Budding Report, p. 67.
48
See the Final report of the United Nations Commission of Experts established pursuant to Security
Council Resolution 780 (1992), 28 Dec . 1994, at http://www.ess.uwe.ac.uk/comexpert/anx/IV.htm, citing Misha Glenny,
The Fall of Yugoslavia: The Third Balkan War 47 (1992).
49
RC, Vol. 4, Ann. 106, Professor R. de la Brosse Report, pp. 59 – 60, para. 60. - 37 -
22. The rise of Serb nationalism also found expression in the formation of extremist political
parties and paramilitary organi zations. The Serbian leadership and the JNA worked in close
concert with extremist politicians, such as Vojislav Šešelj and Arkan, and the paramilitary
organizations they established as well as many others.
23. The link between President Milo šević and extremist Serbian nationalist views has been
confirmed by the ICTY. In its 2004 Milošević decision, the ICTY Trial Chamber adopted the
testimony of United States Ambassador Galbraith, to the effect that Slobodan Milo šević “was the
architect of a policy of creating Greater Serbia and that little happened without his knowledge and
50
involvement” . This applied equally to the situation in Croatia.
24. One of the most prominent extreme nationalist politicians during this period was
51
Vojislav Šešelj, who establis hed the Serbian Radical Party (SRS) in Serbia in 1991 . He is
currently on trial for war crimes before the ICTY. As outlined in the Memorial, Šešelj began his
rise in the Serbian political arena in 1990. In June 1991, he was elected to the Serbian Assem bly.
He and his paramilitary organization, “ Šešelj’s Men” were responsible for countless genocidal
atrocities across Croatia, including in Vukovar.
25. As set out in the pleadings, Šešelj advocated an extremist plan to achieve a Greater
Serbia, a plan w hich was aired on Serbian state- controlled television. When asked where the
Serbian borders should lie, Šešelj stated: “ The western border is the Karlobag -Ogulin-Karlovac-
Virovitica line . . . There can be no changes unless a new war takes place . . . You can see that
52
Croats don’t have much territory left .” . You can now see on your s creens a video. [Play video]
A related photograph is in your judges’ folder at tab 4. And Šešelj’s vision has be en set out in the
53
Memorial .
26. Serbia has accepted th at Šešelj became President Milošević’s ally by November 1991 54.
Mr. Milošević relied on Šešelj’s extremist rhetoric at a much earlier stage, well before the conflict
50
Prosecutor v. Slobodan Milošević, Decision on Motion for Judgement of Acquittal, c ase No. IT -02-54-T,
16 June 2004, para. 249.
51
MC, para. 3.51.
52See MC, Vol. 5, App. 2, Video clip 4.
53
See MC, para. 2.76 and related notes including Vol. 5, App. 2, Video clip 7.
54
CMS, para. 445. - 38 -
began. Although Milošević and Šešelj later fell out, Milošević ensured that Šešelj was in a position
to promote his extremist nationalist aims. This was clear from the uncritical, prime time coverage
Šešelj received on the Milošević controlled, State-run television as confirmed by Professor
de la Brosse in his expert report. As you see on the screens [Plate on]:
“Systematic media coverage was given to Vojislav Šešelj’s positions, such as
the declaration he made in September 1991 before the Serbian parliament which was
broadcast by Belgrade Television:
‘Karlobag-Ogulin-Karlovac-Virovitica must be our op tion and the army must
withdraw its troops to this line. If they cannot be withdrawn from Zagreb without a
fight they should pull out under fire and constantly shell Zagreb. The army still has
unused resources. If its troops are in danger it has the rig ht to use napalm bombs and
everything else it has in its arsenals . . . They wanted war , now they have it! ’” 55
[Plate off]
27. Šešelj was one of those responsible for the validation of the Chetnik movement. The
Chetnik movement was based on an extreme f orm of nationalism which centred on the idea of a
“Greater Serbia”. In the implementation of thei r nationalist aims, the Chetniks collaborated with
the Italians and the Germans during the Second World War, and committed atrocities against
Muslim and Croat populations in parts of Bosnia and Herzegovina and Croatia . Before breaking
away to establish the SRS, Šešelj had co -founded the extremist nationalist Serbian Renew al
Party (SPO) in 1989 with VukDraskovic, a writer and later a politician, who sought to resurrect the
57
reputation of the Chetniks . He was a vocal proponent of the need to establish a Serbian Krajina
region in Croatia 58. As pointed out by Professor Budding in her report, the SPO was the most
prominent party in putting forward specific border claims for a Greater Serbia in the 1990 Serbian
59
elections .
28. The evidence shows and it is not seriously disputed that President Milošević
(1) made use of Šešelj’s rhetoric and extremist ideology in the build -up to the war in Croatia, in
particular by ensuring his access to the State controlled media; and (2) that the Serbian leadership
55RC, Ann.106, Professor R. de la Brosse Report, p. 60, para. 60.
56
MC, paras. 2.09, 2.54 et seq.
57MC, para. 2.55.
58
B. Mamula, Slučaj Jugoslavija [Yugoslavia Case], 2000, pp. 292-293.
59
Budding Report, Part 5, p. 66. The SPO said that Serbia should claim all territories which belonged to Serbia
on 1 December 1918 and also all territories in Croatia and Bosnia which Serbs were in a majority before the Ustasha
genocide. - 39 -
was then also prepared to give his paramilitary organization a key role in the conflict, during which
they were involved in the commission of crimes, in Croatia’s case, genocidal crimes.
29. Another prominent extremist Serb nationalist who played an important part in the
conflict was Željko Ražnjatović, known as Arkan. As explained in the pleadings, Arkan’s
paramilitary organization the “Serbian Volunteer Guard” which was later referre d to as the
“Tigers” was established on 11 October 1990 and had its headquarters in Erdut in Eastern
Slavonia in Croatia. This followed a decision of the Federal Secretariat for National Defence to
form special units for the protection of the Serbian le adership and Serbia itself. These units
reported directly to the Headquarters of the JNA and Arkan was appointed by the then Secretary of
60
the Federal Secretariat for National Defence, Lieutenant Colonel-General Marko Negovanović .
30. As shown in the pleadings, Arkan used hate speech against the Croats whom he
61
consistently referred to as Ustashas . He and his paramilitary group, Arkan’s Tigers , were also
responsible for some of the worst atrocities of the genocide.
31. Arkan and his paramilitary organization were deployed in Eastern Slavonia, where they
committed acts of genocide in and around Vukovar in the summer and autumn of 1991 62. There is
overwhelming evidence of Arkan’s ties with the Government s of Serbia and the FRY, with the
63
self-declared Serbian Republics, and with the JNA .
32. Serbia acknowledges in the Rejoinder that Arkan had “political connections with the
64
leadership of Serbia” . Serbia conceded this, although it claims that “the natur e and the extent of
these connections are not easy to determine”. In fact, there is clear evidence of the nature and
extent of these connections as set out in the pleadings and in the findings of the ICTY to which my
colleagues will refer.
33. Šešelj and President Milošević were committed to what came to be known as the
“amputation of Croatia” 6. According to this idea, up to one third of the territory of the Republic of
60MC, Vol. 5, App. 5a, p.119.
61
MC, Vol. 5, App. 3, pp. 64-65, paras. 43-45.
62MC, Vol. 5, App. 2, Video Clip 8.
63RC, para. 4.107.
64
RS, para. 547.
65See MC, Vol. 5, App. 4.3, p. 99 where Borisav Jović reports Serbian President Milošević as having referred to
the “amputation” of Croatia in a conversation with him on 28 June 1990. - 40 -
Croatia would be cut away from the boundaries and included within a n extended Serbian S tate.
The core of the “amputation” consisted of those parts of Croatia in which Serbs claimed they were
in the majority, or a significant minority, but the “amputation” was also to include larger
Croat-majority towns, such as Dubrovnik, Split, Zadar, Šibenik and Osijek, in which there were
relatively few Serbs. The “amputation” was coupled with an intention to destroy a part of the Croat
population. The original core of 11 districts with a Serbian ethnic majority gradually grew due to
the further addition of smaller Serb enclaves, but also of areas where the Serbs had never been even
a significant minority. A map published on 1 March 1991 in the Serbian weekly paper Nin
provided the clearest possible indication of the Serbian intent to extend its territoria l limits into the
66
Republic of Croatia .
34. In March 1991, Milošević confirmed the Serbian government’s support for the
nationalist Serbs in Croatia which you will see on your screens: [Screen on]
“I have asked the Serbian government to carry out all preparations for the
formation of additional forces whose volume and strength would guarantee the
protection of the interests of Serbia and the Serbian people . . . The citizens of Serbia
can be sure that the Republic of Serbia is capable of ensuring the protection of its own
interests and those of all its citizen s and the entire Serbian people. The Republic of
Serbia, the citizens of Serbia and the Serbian people will resist any act of dismantling
67
our homeland.” [Screen off]
35. Serbia now accepts that the leadership of the Republic of Serbia, headed by
Slobodan Milošević supported the establishment of Serb territorial autonomy in Croatia . It did so8
publicly and covertly, and provided considerable political and financial support.
III. Connection between extremist Serbian nationalism and the genocide
36. Serbia argues that there is a “missing connection ” between Croatia’s evidence as to the
69
rise of Serbian nationalism and the establishment of genocidal intent . There is no missing
connection: the connection between extremist Serbian nationalist ideology and the Serbian
leadership’s openly expressed plan to create a Greater Serbia, involving the destruction of a part o f
the Croat population, is well documented in the evidence before the Court. So is the connection
66
See MC, Vol. 1, Plate 8.
67MC, Anns., Vol. 4, Ann. 35, BBC Summary of World Broadcasts, 18 Mar ch 1991.
68RS, para. 537.
69
RS, paras. 19-20. - 41 -
between that ideology and the conduct of the campaign itself, in particular through the participation
of extremist paramilitary organizations. This is clear from the following points:
(a) Extremist Serbian paramilitary organizations played a direct role in the genocide.
(b) Paramilitaries began to be integrated int o the JNA from around September 1991, following a
refusal on the part of conscripts and reservists from Croatia, Slovenia and other republics to
join the JNA.
(c) To meet the significant shortfall in numbers required for the campaign, the JNA enlisted tens of
thousands of volunteers. The army command and senior officials from the Serbian Ministry of
the Interior MUP) also worked closely with leaders of paramilitary forces who, while not
formally integrated into the JNA, worked in concert with it and operated under JNA command.
(d) Prominent extremist Serbian nationalist politicians, including Šešelj and Arkan, formed
paramilitary groups which actively participated alongside the JNA in the acts of genocide
perpetrated in Croatia.
(e) The S erbian leadership, led by Slobodan Milošević, encouraged support for the views of
extremist nationalists by promoting their access to the media and supporting their aim to create
a Greater Serbia.
(f) From the late 1980s onwards, extremist commentators an d politicians openly engaged in hate
speech against Croats, who were systematically demonized as “ustasha” or fascists, said to be
collectively responsible for the crimes of the puppet NDH r égime during World War II. The
view that Serbs were under imminent threat from Croats was widely promoted.
(g) The idea that a single, ethnically pure State for all Serbs, a Greater Serbia, had to be created by
force therefore took place in this toxic environment. The clear implication was that the Croat
population in such territory would have to be destroyed.
(h) In this way, the emergence in th e 1980s of a plan for a single S tate for all Serbs, a de facto
Greater Serbia, was not merely a territorial reconfiguration of the SFRY to be achieved by
conventional armed conflict. It became inextricably linked with extremist views about Croats,
and the intention to destroy a part of the Croat population. These views promoted the idea that
it was impossible for Croats and Serbs to live together peacefully as the Croats posed a threat to
Serbs by their very presence in the territory to which Serbia now laid claim. - 42 -
(i) This was the context for the establishment of a Greater Serbia, based on the forcible acquisition
70
of approximately one third of the territory of Croat. That plan underpinned a genocidal
campaign.
37. In this way, expressions of extremist Serbian nationalist ideology played a key role both
before and during the genocidal conflict in Croatia. The demonization of the Croats was the first
stage of a programme that led to their intended destruction. During the conflict, proponents of this
extremist ideology participated in political and military actions during the genocidal campaign in
Croatia both within the ranks of the JNA and alongside it, as Professor Crawford will later explain.
Mr. President, Members of the Court, I thank you for your kind attention.
The PRESIDENT: Thank you, Ms Law, for your presentation and Professor Crawford will
address the Court after the break. This sitting is adjourned for 15 minutes.
The Court adjourned from 11.50 a.m. to 12.05 p.m.
The PRESIDENT: Please be seated. The hearing is resumed and I invite
Professor Crawford to address the Court. You have the floor, Sir.
Mr. CRAWFORD: Thank you, Mr. President.
SERBIAN CONTROL OF THE JNA AND JNA CONTROL
OF SERB FORCES IN C ROATIA
I. Introduction
1. Mr. President, Members of the Court, it is again an honour to appear before you on behalf
of Croatia.
2. Serbia has sought to distance itself from the conduct of the JNA . And it i s obvious why
Serbia would try. The evidence for the JNA’s role in what we say were acts of genocide which
role has been the subject of numerous findings of the ICTY is overwhelming and in many cases
beyond dispute. From early to mid -1991, the JNA purported to adopt a neutral “buffer zone”
policy, but in fact it intervened to ensure that rebel Serbs could seize control of Croatian territory .
7RC, para. 3.37. - 43 -
From August 1991, it was involved in some of the worst atrocities, directly and through collusion
with Serb pa ramilitaries. Among other examples, after the fall of Vukovar in Eastern Slavonia,
high-ranking JNA officers aided and abetted the large-scale murder and torture of prisoners. Faced
with these facts, Serbia falls back on the for malistic argument that, un til 27 April 1992, the JNA
was a de iure organ of the SFRY and not an entity for which Serbia had responsibility. That claim
partly involves issues of law which I will address on Thursday ; it also raises an issue of
jurisdiction, which I will address on Friday. But above all it involves questions of fact, and as to
the facts the evidence is clear . By July 1991, before the conflict began, the SF RY had ceased to
function as a State. Instead the JNA was following the political direction of the Serbian lea dership
and was engaged in an aggressive campaign to seize some one third of Croatia’s territory.
3. In this presentation I will address three aspects of the developing role of the JNA . First,
the process of what we have termed “ Serbianization”, which brought the JNA firmly under the
control of the Serbian leadership. Second, the phoney policy of neutrality. Third, the JNA’s role in
arming and then controlling and directing Serb forces in Croatia. This narrative about the JNA not
only provides crucial background to the facts of what occurred, it underlies their legal
consequences, including the attribution to Serbia of the acts of the JNA . I will finish this
presentation with a word about the mismatch between Serbian and Croatian forces.
II. The JNA falls under Serbian control
4. Mr. President, Members of the Court, Croatia has presented a substantial body of evidence
on the critical role of the JNA in the atrocities committed in Croatia . This includes JNA orders and
regulations; witness testimony; press articles from the official JNA newspaper Narodna Armija
and elsewhere, and videotapes. It also includes extracts from memoirs by members of the Serbian
political and military leadership, in particular Borisav Jović, at the time a Serbian representative in
the SFRY Presidency, and General Kadijević, the SFRY Defence Minister. Croatia will also refer
the Court to a number of rulings of the ICTY that support our case on the role played by the JNA in
the crimes committed during the war. These rulings lend further support to the conclusion that the
JNA was pursuing Serbian aims and objectives from at least July 1991 and that they established its
relationship with other Serb forces. - 44 -
5. I begin with some background on the JNA . It was an important constitutional, political
and social entity in the SFRY . Its role was to protect, as a w hole, the interests of the six republics
and the two autonomous p rovinces in the SFRY. Under the 1974 Constitution of the SFRY, the
control of defence was decentralized to a significant degree. The military structure comprised two
elements. The first was the JNA itself. [Screen on] You can see on the screen how at this time the
organizational structure of the JNA provided for a number of armies and independent corps whose
territorial locations generally corresponded to the internal borders of the r epublics. As the ICTY
explained in Mrkšić, I’m sorry, I’ve been practising that, not very well it seems the law of the
SFRY “allowed for the possibility in time of war, or in the event of an immediate threat of war or
other emergencies, for the armed forces to be reinforced by volunteer s” 7. These volunteers,
thousands of them from Serbia, joined the JNA of their own volition rather than because they were
subject to military service.
6. The second element of the military structure was the Territorial Defence forces, often
referred to by the abbreviation TO, for Teritorijalna obrana. These were established in each of the
republics. Whereas the JNA itself acted under the control of the SFRY P residency, in peacetime
72
the republics themselves controlled the Territorial Defence forces . As the Trial Chamber
explained in Mrkšić, they were “organised on a territorial basis, at the level of local communities,
municipalities, autonomous provinces and republics, the highest command level being the
republican level” 73.
7. The process of Serbianization began as early as the mid-1980s, when the JNA increasingly
allied itself with Serbian conservatives who opposed political reform and favoured greater
74
centralization . An important shift occurred in 1988, when the JNA was restructured. In effect, it
was recentralized. [Next graphic] You can now see on the screen a map of military regions in the
SFRY. The restructuring of the JNA removed the significant powers of the Territorial Defence
forces of the republics and made them subordinate to the milita ry regions 75. Ultimately this more
71
Prosecutor v. Mrkšić et al, IT-95-13, Trial Chamber Judgment, 27 Sept. 2007, 31, para. 83.
72See MC, paras. 3.08–3.12 and more generally on the history of the JNA, Ch . 3.
73Mrkšić, 31, para. 83.
74
MC, paras. 3.13–3.16.
75MC, paras. 3.17–3.31; RC, para. 4.23. - 45 -
centralized structure would facilitate the takeover of the JNA by the Serbian leadership. The
76
process is well evidenced and is detailed rather thoroughly in our Reply . I will take you only to a
few points. In light of the evidence, it is profoundly counter -factual to suggest as the
Respondent now does that the JNA could have continued to function as an organ of the SFRY
until April 1992. [Screen off]
8. You will recall that Slobodan Milošević, the President of Serbia, had announced publicly
77
in March 1991 that Serbia no longer recognized the legitimacy of the SFRY Presidency . The
constitutional crisis that undermined the role of the collective SFRY Presidency and led to the
dissolution of the SFRY extended to the JNA. Over the period of the crisis, it progressively ceased
to function as an organ protecting the interests of all of the republics and autonomous provinces.
By early 1991, the SFRY had lost control. Instead the JNA took its orders from and pursued the
political objectives of the Serbian leadership. [Screen on] Let me quote from the 2003 report of
Reynaud Theunens, submitted to the ICTY in the Milošević case. Mr. Theunens is a military
expert with experience as a Balkan analyst in the Belgian Ministry of Defence. He participated in
United Nations peacekeeping operations in the former SFRY from 1994–1999 78. He said:
“From late summer 1991 onwards, . . . orders and instructions from what
remained of the SFRY Presidency, the Supreme Command and the Supreme
Command Staff indicated that at least de facto the JNA moved towards ceasing to be
the ‘SFRY Army’ and i79tead gradually developed into a m ainly Serb force, serving
Serbian goals . . . ” [Screen off]
9. There are two points here. First, the JNA did indeed become a mainly Serb force. By
June 1991, the officer corps of the JNA was already about two thirds Serbian. The commanders of
every armoured and mechanized JNA brigade located in Croatia and in the adjoining areas were
Serbs or Montenegrins. This reflected the lack of confidence placed in non -Serb commanding
officers to fulfil what by that time had become the objectives of the JNA namely the objectives
of the Serbian leadership 80.
76
MC, Ch. 3; RC, Ch. 4, especially paras. 4.16–4.38.
77Orlando Sentinel Tribune, 17 March 1991, MC, Anns., Vol. 4, Ann. 34, quoted in MC, para. 2.98.
78
See Prosecutor v. Milošević, IT-02-54, Decision on Motion to Acquit, 16 June 2004, para. 270.
79Expert Report of R. Theunens, 16 Dec. 2003, Part I: Structure, command & control and discipline of the SFRY
Armed Forces, 6–7, para. 8, submitted by the Prosecution in Milošević and cited in RC, para. 4.52.
80MC, paras. 3.32–3.42. See also Anns., Vol. 3, plates 9.1, 9.2 and 9.3. - 46 -
10. That alignment of objectives between the JNA and the Serbian leadership is my second
point. Under the Constitution, the use of the armed forces required the agreement of five out of the
eight members o f the Presidency. But SFRY constitutional requirements were bypassed, and
manifestly bypassed, to the extent that private meetings took place between the Serbian leadership
and General Kadijević. Jović gives us a number of accounts of these meetings. According to one,
on 5 July 1991, Jović and Milošević demanded and obtained a significant promise from Kadijević.
Kadijević promised that the JNA would “defend” the Serb population of Croatia. This was in July.
But you will hear over the course of this we ek, the word “defend” is a gross distortion of what the
Serbian leadership actually intended and what the JNA actually did a gross distortion. Jović
noted that Kadijević had promised that the JNA would execute the orders “of a group of members
of the Presidency, although they do not constitute a qualified majority”, this in the event that the
Presidency was “not able to perform its functions and to make the decision on defending the
country’s integrity” 8. From that time until the end of 1991 and the end of Kadijević’s command
over the JNA, Serbia demanded and consistently received support from the JNA. Serbia argues
that the fact that this promise was sought demonstrates the independence of the JNA (it does not
appear to dispute that the promise was sou ght and obtained) 82. What the promise illustrates rather,
is the contempt and disregard of the JNA command for the Constitution and the SFRY Presidency.
It also illustrates the close alignment of the JNA, by this stage, with the position of the Serbian
leadership.
11. From mid May1991 to 7 July 1991, the Serb Presidency did not hold any meetings. This
was a time of crisis in the country of which it was the primary constitutional organ. But the JNA
was deployed along the borders of the territory to whic h Serbs laid claim, including large parts of
Croatia. This was consistent with what Jović and Milošević had requested from Kadijević on
5 July 1991. By then, the transformation of the JNA had been achieved 83. [Screen on ]
General Kadijević himself described what was happening at a meeting he had with Milošević and
Jović on 30 July 1991 he said:
81
B. Jović, Poslednji dani SFRJ (Last Days of the SFRY) (1996), 162, cited in RC, para. 4.70.
8RS, para. 459.
83
MC, para. 3.39. - 47 -
“The JNA should be transformed into a military force of those who want [] to
remain in Yugosl84ia, comprising at least: Serbia, the Serb nation, plus
Montenegro.”
12. Note the reference in this candid statement not only to Serbia but also to “the Serb
nation”. [Next graphic] And here are Kadijević’s views on the nature of the JNA, again candidly
expressed and again as recorded by Jović, on 24 September1991, when he said:
“Serbia and Montenegro should declare that the military is theirs and assume
command, financing, the war, and everything else. All the generals on the General
Staff, 85cept one, are Serbs, and they all support this approach and think the same
way.” [Screen off]
13. Why did the Serbian leadership not declare, at this time, that the JNA was a Serbian
army? The fact that it did not do so de iure does not detract from the fact that it was a Serbian
army de facto. Its rationale for not do ing so was purely tactical and presentational. One of the
paramilitary leaders, Šešelj, of whom you have heard, explained: “[w]e must fight for a Serbia that
covers all Serbian territories” and “[w]e shall call such a Serbia Yugoslavia as long as that is in our
86
interest” . I will say more about the legal consequences of the de facto status of the JNA in my
presentation on Thursday, but Šešelj, not for the first or last time, really says it all: “[w]e shall call
such a Serbia Yugoslavia as long as that is in our interest”.
14. The Balkan Battlegrounds report, on which Serbia’s pleadings rely heavily, confirms that
by midsummer 1991 Milošević and Jović were the JNA’s de facto political overseers in rump
87
Yugoslavia . Perhaps unsurprisingly given its relia nce on the report, Serbia seems to accept the
conclusion that “[t]he Army became increasingly Serbianized after the eruption of the Slovenian
Ten-Day War as conscripts began deserting and the other republics refused to send their biannual
intakes of conscripts to the JNA” 88. At the same time, Serbia refuses to confront the fact that JNA
had ceased to enjoy any legitimacy as a federal army. It was seen by many Serbs and non -Serbs as
following the directives of the extreme nationalist government led by Miloš ević 89 and that
perception was accurate.
84Jović, Last Days of the SFRY, MC, Apps., Vol. 5, App. 4.3, quoted in MC, para. 3.34.
85
Jović, Last Days of the SFRY, MC, Apps., Vol. 5, App. 4.3, quoted in MC, para. 3.40.
86MC, Apps., Vol. 5, App. 2, video clip 13, quoted in MC, para. 3.40.
87Balkan Battlegrounds: A Military History of the Yugoslav Conflict, 1990 –1995 (Central Intelligence Agency,
Office of Russian and European Analysis, May 2002), 96, cited in RC, para. 4.71.
88
Balkan Battlegrounds, 93, cited in RC, para. 4.38.
89RS, para. 445. - 48 -
III. The phoney policy of neutrality
15. Mr. President, Members of the Court, this brings me to the next aspect of the developing
role of the JNA . Serbia seeks to present it as playing first a neutral role and th en, from
September 1991, a defensive role initially, at least, in defence of the SFRY . That is a
whitewash.
16. Serbia’s Rejoinder uses revealing language when it characterizes the JNA ’s role in the
early stages of the conflict. Serbia continues to claim that the JNA “acted as a federal organ of the
then SFRY”, and that it was “trying to subdue insurgent forces that were attempting to bring about
the secession of Croatia from the SFRY” 90. In intervening to prevent Croatia ’s independence,
however, the JNA was not acting as a federal organ . Its actions can be contrasted with its rapid
retreat from Slovenia, which was also trying to separate. The opposition to Croatia’s independence
came from Serbia, supported by the governments in Montenegro and the two autonomous
provinces, which had been brought under control of Serbia. In acknowledging that the JNA was
determined to preserve the existence of a notional SFRY, including by force, Serbia effectively
concedes that the JNA stepped outside its constitutional role as a federal organ.
17. In its Rejoinder, Serbia concedes that “the role of the JNA in Croatia gradually changed
from a peacekeeping force to one of the warring parties” 91. This is a significant concession (even if
it is wrong to describe the JNA ’s role as ever having been that of a “peacekeeping force”) . Serbia
adds that the JNA became a warring party “only as a reaction to hostile and criminal actions
undertaken by the newly created Croatian armed forces who started a war for secession against t he
SFRY the country the JNA was tasked to protect” 92. Serbia again misses the point . It does not
seek to defend the JNA ’s actions on legal or constitutional grounds . Instead it cites a political
objective patently a political objective of Serbia rath er than of the r epublics collectively. The
JNA adopted a line drawn by Serbia on what could be permitted to the other republics, without
regard to the functioning of the Constitution or the democratically -expressed will of three
republics, including Croatia. The point here is that, by this stage, the JNA was operating under the
effective control of the Serbian leadership and was pursuing Serbian objectives.
9RS, para. 176.
9RS, para. 454.
92
Ibid. - 49 -
18. The Balkan Battlegrounds report acknowledges this. In summer 1991, the JNA was
93
“acting in the name of Yugoslavia but irresistibly biased towards Serbia” . The report also notes
that “after the war in Slovenia began, the JNA dispatched large numbers of troops to the border
with Eastern Slavonia and elsewhere in Croatia to intimidate Zagreb into backing away from
secession” 94. Coming from a report on which Serbia relies, these are strong statements. They
confirm that the JNA was acting in accordance with Serbian objectives, Serbian characterizations.
These objectives were far from being “neutral” or defensive.
19. Serbia makes a number of assertions about the extent to which the Serbian leadership
controlled or commanded General Kadijević. It calls them “uneasy political allies” 95. But whether
uneasy or not, they were political allies. The relevant point is the role played by the JNA in the
conflict under General Kadijević. He describes that role in his memoir . The objective, he said ,
was to totally block Croatia from the air and the sea and to secure and hold the planned border of
the territory claimed by Serbs 96. This aligns, not with the objectives and interests of the republics,
but rather with those of Serbia and its allies in the self -proclaimed Serb entities in Croatia, and
those objectives were not defensive; they were avowedly aggressive. In Martić, the Trial Chamber
of the ICTY concluded that Kadijević was a party to a joint criminal enterprise whose common
purpose “was the establishment of an ethnically Serb territory through the displacement of the
Croat and other non- Serb population” 9. And that is the fact: the displac ement can be
characterized one way or another but the fact is indisputable and has been found by tribunals
looking at the issue with care. Indeed Serbia does not dispute this ; it simply says that this
conclusion must be “taken with reserve” and does not prove that the JNA was a de facto organ of
Serbia or acting under its direction or control 98. I will consider that legal proposition in my later
presentation. But as a factual matter, given that the JNA ’s senior command was actively engaged
in a joint criminal enterprise with the President of Serbia , to take action against the population of
93RC, para. 4.26.
94
Balkan Battlegrounds, 92, cited in RC, para. 4.57.
95RS, para. 462.
96V. Kadijević, My View of the Collapse (1993), p. 135.
97
Prosecutor v. Martić, IT-95-11, Trial Chamber Judgment, 12 June 2007, para . 445.
98RS, para. 464. - 50 -
one of the constituent r epublics of the SFRY, only one conclusion is possible : that it was already
functioning as a Serbian army.
IV. The JNA arms, controls and directs Serb forces in Croatia
20. Mr. President, Members of the Court , I turn to the next issue: the JNA’s role in arming,
controlling and directing Serb forces. The proclamation of the Serb entities in Croatia in 1990 and
1991 set the stage for the destruct ion of part of the Croat ian population. Serbs were spurred into
action by the emergence of radical Serb institutions and by powerful anti-Croat rhetoric, as we have
shown. In addition to the JNA itself, a variety of groups were involved in the destructive onslaught
against the Croat population. Serbia asserts that it did not supervise or direct these groups . But
that is not correct: they were under the control of the JNA. Without the active, extensive and
sustained assistance of the JNA and Serbia, th ey could not have conducted a campaign to destroy a
part of the Croat population.
21. I will introduce the variety of groups that participated in the Serb onslaught, then I will
deal with the JNA ’s role in arming th ese groups, and then with its direction and control . The
groups fell into several categories.
99
22. First, of course, there was the JNA itself .
23. Secondly, there were the Territorial Defence forces from the constituent republics, in
100
particular Serbia .
101
24. Thirdly, there were the groups th at we have termed “paramilitaries” . Overall,
32 volunteer paramilitary units operated in Croatia : 16 organized in the Republic of Serbia, and
16 operating from the Serb entities in Croatia . They were organized not only by the Serbian
Government but also by political parties and local police or community leaders. Their members
were drawn from the JNA, from the T erritorial Defence forces and from local militia and police.
There are some reports that criminals were released from prison solely for the pur pose of forming
102 103
units . We have listed these groups in our pleadings and annexes .
99RC, paras. 4.73–4.77.
100RC, paras. 4.78–4.84.
101
RC, paras 4.11–117.
102Final Report of the U nited Nations Commission of Experts established pursuant to SC res 780 (1992), U nited
Nations doc. S/1994/674/Add. 2 (Vol. I), 28 Dec. 1994, Ann. IIIA, Special Forces, cited in MC, para. 3.48.
103
MC, paras. 3.47–3.53 and Anns., Vol. 3, plate 6.7. - 51 -
25. Fourthly, there were the forces established by the self -proclaimed autonomous Serb
entities in Croatia : the “SAO Krajina”, the “SAO Eastern Slavonia” and the “SAO Wes tern
104
Slavonia” . These included forces described as “police” and as “T erritorial Defence” forces.
These so-called Territorial Defence units of the self -proclaimed Serb entities are distinct from the
Territorial Defence units of the constituent republics, which were part of the formal military
structure of the SFRY. Also established by the “SAO Krajina” were special police units known as
the Milicija Krajine . Serbia states in its pleadings that the Milicija Krajine were within the
framework of the Minist ry of Internal Affairs but were under the authority of the Ministry of
105
Defence . The “SAO Eastern Slavonia” also established its own special police units: the Srpska
Nacionalna Bezbednost (Serbian National Security) 106. Along with the Milicija Krajine, th is was
107
later incorporated into the Ministry of Internal Affairs of the “RSK” .
26. Like the more heterogeneous paramilitaries, the forces of the Serb entities were ad hoc
formations which would have been unable to perpetrate atrocities without JNA support . One vital
aspect of that support was the role of the JNA in arming both the forces of the Serb entities and the
paramilitaries 108. In May 1990, the JNA had disarmed the Croatian Territorial Defence 109. These
weapons were inherited by the so- called “police” and Territorial Defence units of the “SAO
Krajina” 110. More widely, in early 1991, the JNA began arming local Serbs and paramilitaries .
Villages with a Serb majority became outposts of the JNA and bases for these newly established
paramilitary groups 111.
27. There is considerable eyewitness testimony and official JNA orders to evidence that this
was endorsed at the highest Serbian political and military levels. For example, a letter from
Colonel Dušan Smiljanić to General Ratko Mladić, both senior JNA officers, describes how from
April 1991 the JNA engaged in “the illegal arming of the Serbian people from our . . .
104RC, paras. 4.85–4.99.
105CMS, para. 494; RC, para. 3.75.
106
Prosecutor v. Hadžić, IT-04-75-PT, Second Amended Indictment, 22 March 2012, p. 4.
107Prosecutor v. Hadžić, IT-04-75-PT, Second Amended Indictment, 22 March 2012, p. 4.
108
RC, paras. 4.118–4.129.
109RC, para. 3.55.
110
MC, para. 3.47.
111MC, para. 3.45. - 52 -
112
warehouses” . Between April and July 1991, the letter says, “around 15,000” infantry wea pons
and anti -aircraft guns were distributed to Serbs in the area, and in August 1991, the JNA
established a special operation team responsible for the “arming of the Serbian people”. The letter
adds: “from August to October 1991, we distributed, or to s ay pulled out from the Ustashas’
warehouses around 20,000 pieces of va rious weapons” and they included “howitzers, bombs and
rocket launchers” 113. Two JNA officers describe how the JNA distributed weapons to rebel Serbs
114
across Lika in the summer of 1991 . [Screen on] One of the officers explained that senior JNA
commanders had authorized the mass arming of Serbs throughout the region:
“During July and August 1991, mostly at night, they transported weapons from
Sv[eti] Rok and Skradnik, and which was dis tributed among the Serbs in Lika . . .
Usually after a visit of Lieutenant Colonel Smiljanić and GeneralBorić, the Serbs
115
would be armed on a massive scale.” [Screen off]
28. Similarly, the ICTY found that in Kordun “helicopters were used by the JNA to carry
weapons and ammunition, which were distributed to local Serbs” 11. In relati on to Western
Slavonia, a former Serb fighter testified before a Croatian military court that in November 1991 the
117
JNA supplied paramilitaries with arms from a local Territorial Defence warehouse . A document
entitled “Request for Ammunitio n and Other Equipment” of 18 September 1991 shows that the
JNA supplied arms and military equipment to the so- called “Ministry of Defence of the Rep[ublic]
of the Serbian Krajina” 118, a wholly unconstitutional entity. Other witnesses described how the
119
JNA similarly armed Serb forces in numerous locations across Croatia . This was not the defence
of the 1974 Constitution.
29. Serbia presents the self -proclaimed Serb entities as operat ing independently of the Serb
leadership 120. But that is inconsistent with the facts 121 and with the findings of the ICTY . The
112
Letter from Dušan Smiljanić to General Mladić dated 15 Oct. 1994, MC, Anns., Vol. 2 (III), Ann. 411.
113Letter from Dušan Smiljanić to General Mladić dated 15 Oct. 1994, MC, Anns., Vol. 2 (III), Ann. 411.
114
See the witness statement of former JNA Major Mustafa Čandić and former JNA officer Suad Šalo, MC,
Anns., Vol. 2 (III), Anns. 339 and 340.
115MC, Anns., Vol. 2 (III), Ann. 340.
116
Martić, para. 201.
117MC, Anns., Vol. 2 (II), Ann. 169.
118Request for Ammunition and Other Equipment, delivered to the “Ministry of Defence of the Republic of the
Srpska Krajina” on 18 Sept. 1991, MC, Anns., Vol. 2 (II), Ann. 234.
119
MC, Anns., Vol. 2 (II), Anns. 193, 206, 247, 293 and 495; testimony of Dzuro Matovina, in Prosecutor v.
Milošević, IT-02-54, 8 Oct. 2002, transcript, 11105.
120CMS, paras. 610–613.
121
RC, paras. 4.39–4.44. - 53 -
Milošević indictment alleged that Milošević and other participants in the joint criminal
enterprise which included high- ranking officials of the self -proclaimed Serb entities in
Croatia “directed, commanded, controlled or otherwise provided substantial assistance or
122
support to the JNA, the Serb-run TO staff, and volunteer forces” . In Martić, the ICTY held that
the existence of that joint criminal enterprise had been established 123. It also found that the “SAO
124
Krajina” Territorial Defence was subordinate to the JNA “beginning after the summer of 1991” ,
that the Serbian authorities financed and equipped its Ministry of Internal Affairs and that its units
125
were subordinated to the JNA for specific assignments . When subordinated, those units would
be under the command of the JNA unit commander 126.
30. In fact, JNA control extended much further than this . Mr. Theunens to whom I have
referred testified about this control in his expert report . [Screen on] He comments as follows
on the legislative framework adopted by Serbia and by organs of the collapsing SFRY under Serb
control in order to accommodate “volunteers”:
“In order to regularise the de facto situation that existed on the ground, in
particular with regard to the presence of volunteer groups and paramilitary formations,
legislation was amended . In August and September 1991, Serbia and the SFRY
adopted Decrees and Instructions for the registration and acceptation of volunteers in
the TO of the Republic of Serbia and the JNA . In December 1991, the SFRY
Presidency adopted an Order for the engagement of volunteers into the SFRY Armed
Forces. Contrary to the situation during the Kosovo conflict eight years later,
volunteers were allowed to join a127remain in their own groups during their
participation in operations.”
31. The order of September 1991 integrating volunteers into the JNA confirms that Serbia
128
had effective control of the paramilitary groups . It is notable that the 1982 law on volunteers,
annexed to Mr. Theunens’ report, provides that “i n view of the rights and responsibilities,
122
123Milošević, Indictment, para. 68.
Martić, para. 445.
124Martić, para. 142.
125
Martić, paras. 140–142.
126Martić, para. 142.
127Expert Report of R . Theunens, 16 Dec . 2003, submitted by the Prosecution in Milošević, ParI: Structure,
command & control and discipline of the SFRY Armed Forces, 6 (para . 7). The legislative framework is discussed in
more detail in Part II: The SFRY Armed Forces and the conflict in Croatia, 34–46.
128RC, para. 4.108. - 54 -
129
volunteers are on an equal footing with military personnel or military conscripts” . [Next
graphic]
32. Mr. Theunens goes on to give the following summary of the unified command structure
for operations by the JNA along with other Serb forces in Croatia:
“Documentary evidence indicates that (local) Serb(ian) TO units and staffs
operated under single, unified command and control with the JNA . The JNA
established Operational (OG) and Tactical Groups (TG) to res tore and/or maintain
unified and single command and control during the operations, in130ving the JNA,
local Serb TO, Serbian TO and volunteers/paramilitaries.”
33. Let me repeat that list . The JNA itself. The local Serb TO that is, the forces of the
self-proclaimed Serb entities in Croatia . T he Serbian TO . And four th: the volunteers or
paramilitaries. All those forces were under a single, unified command. [Screen off]
34. The ICTY explored this unified command structure in Mrkšić. It observed that “ in
situations when JNA and TO forces were engaged in joint combat operations, these units were
subordinated to the officer in charge of carrying out the operation” 131. This command structure was
reflected in the JNA ’s own Brigade Rules, which stated that the integration of command was
achieved “through joint efforts by the brigade command and commands of the brigade ’s
subordinate and other units and staff of the TO operating in coordination [with] the brigade” that
is, the JNA brigade. [Screen on] Rule 108 made it clear that this integration of command was to
be achieved, “on the basis of unity of command and subordination” 13. As the ICTY noted:
“The principle of unity or singleness of command. . . required that in a zone of
operations, in combat action, one commander was responsible for commanding all
military units in that area, including TO and volunteer units, and that all subjects in the
area, i.e. all units and their individual members, were subordinated to the one
commander . . .
[I]t is clear that that, in practice, at least at the time relevant to the Indictment,
the officers in command of all joint combat operations were JNA officers.” 133
35. The ICTY gave an example of how this principle of “singleness of command” was
implemented. A circular issued on 12 October 1991 by General BlagojeAdžić, the Chief of Staff
12Expert Report of R . Theunens, 16 Dec . 2003, submitted by the Prosecution in Milošević , Part II: The SFRY
Armed Forces and the conflict in Croatia, 34–35.
13Expert Report of R . Theunens, 16 Dec . 2003, submitted by the Prosecution in Milošević , Part I: Structure,
command & control and discipline of the SFRY Armed Forces, 7 (para . 9), cited in Reply, para. 4.77.
131
Mrkšić, para. 84.
13Mrkšić, para. 84
13Mrkšić, paras. 84–85. - 55 -
of the Federal Secretariat for National Defence, affirmed that “at all levels all armed units, whether
JNA, TO or volunteers, must act under the single command of the JNA”. [Next graphic] Three
days later, on 15 October, the command of the First Military District of the JNA and I quote
again from the ICTY “issued an order to all units subordinated to it . . . to establish ‘full control’
within their respec tive zones of responsibility . Pursuant to this order, paramilitary units which
refused to submit themselves under the command of the JNA were to be removed from the
territory.”134 [Screen off]
36. The Trial Chamber held that the evidence established “comp lete command and full
control of the JNA of all military operations” involving Serb paramilitaries and volunteers. I repeat
those words: “full control” . Moreover, said the Trial Chamber, “in the final analysis the JNA
under the command of Mile Mrksić not only had de jure authority as identified above, but also had
the manpower, armament and organisation to exercise effective de facto control over all TO and
volunteer or paramilitary units” in the relevant areas 13.
37. The inclusion of the paramilitaries in this structure is confirmed by some of the
paramilitary leaders themselves. The Serb Volunteer Guards, for example, told the press : “[w]e
are currently under the command of the Territorial Defence of the Serb Slavonia, Baranja and
136
Western Sirmium Regi on, and they are under the command of the JNA” . [Screen on]
Dragoslav Bokan was the leader of the White Eagles paramilitary unit, which you will hear was
responsible for some of the worst atrocities committed against the Croat population . He explained
that an agreement existed that implied that
“nobody should wear special signs and that all units should be under the direct control
of the Territorial Defence . Only [Vuk Drašković’s] guard did not accept it . They
demanded that their headquarters be in Belgrade, which was not accepted . Anyway,
we no longer had direct control over our men from the moment they were put under
the control of the Territorial Defence.” 137 [Screen off]
38. Finally, let me highlight the close ties of the Serbian leadership and the JNA with another
paramilitary leader, nicknamed “Arkan ”. The Security Service of the Headquarters of the
134
135rkšić, paras. 85–86.
Mrkšić, para. 89.
13“Time of the warriors” (“Vrijeme ratnika”), Pobjeda, 13 Jan. 1992, MC, Anns., Vol. 4, Ann. 22.
13Dejan Anastasijević, “Plucking the eagle’s feather” (“Cerupanje orlova”), Vreme , 22 Nov. 1993, MC, Anns. ,
Vol. 4, Ann. 23. - 56 -
Territorial Defence of the Republic of Serbia stated that Arkan was “paid especial attention to by a
larger number of ministers and other officials in the Government of Serbia and enjoy[ed] a
138
specially privileged treatment” . The Security Service of the 12th Corps of the JNA stated in
January 1992 that Arka n was openly “supported by the Ministry of the Interior, the TO and the
Ministry of People’s Defence of the Republic of Serbia, but it is claimed that this is so on direct
orders of the highest leadership of the Republic of Serbia” 139. The same JNA document also
reports that Arkan was “taking part in meetings of the Command of the 1st Military District
together with the Corps Commanders”. Croatia’s Memorial includes a photo of Arkan attending a
funeral in the company of Milošević 14.
39. [Screen on] The expert report of Mr. Theunens in the Milošević case, which analyses the
command structure of the JNA in detail, cites a letter to Arkan from the may or of Pentrinja, in
Croatia, which is described as a “Serbian municipality”. This confirms that the JNA was
responsible for arming and feeding Arkan’s unit and that it was under JNA control:
“We agree with the proposition that members of . . . ARKAN’s unit participate
in fighting on the JNA and Territorial Defence positions in the municipality of
Petrinja. The unit will be commanded by a senior officer and the unit will be part of
and under the command of the commander of the 2nd motorised battalion of the 622nd
motorised brigade, Bogdan ERCEGOVAC . Arming and food supplied are the
responsibility of the 2nd motorised battalion.” 141
40. That is of course of the JNA. [Screen off]
41. I will deal with the legal consequences of the control and direction ex ercised by the JNA
on Thursday. But those are the facts . A peacekeeping force does not arm one of the warring
parties. Yet the JNA armed, controlled and directed all the other Serb forces responsible for the
acts that Croatia says amount to genocide both the forces of the self -proclaimed autonomous
Serb entities and the paramilitaries. The evidence is clear, precise and direct; just as you required
it in Nicaragua. The evidence I have cited also provides further proof that the JNA was acting as a
Serbian army pursuing the political objectives of Serbia and its Serb allies in Croatia.
13Security Organ of the Republic’s Headquarters of the TO of the Socialist Republic of Serbia, Strictly
Confidential No. 254-1/9, 13 Oct. 1991, Notification, ICTY doc. No. 0340-4870-0340-4871.
139
Security Organ of the Command of the 12th Corps, 1 Jan. 1992, Information, ICTY doc. No. 0340-4884-0340-
4887, cited in RC, para. 4.107.
14MC, Vol. 1, plate 13.
14Expert Report of R . Theunens, 16 Dec . 2003, Part II: The SFRY Armed Forces and the conflict in Croatia,
p. 62, para. 6, submitted by the Prosecution in Milošević. - 57 -
V. The mismatch with Croatian forces
42. Mr. President, Members of the Court , I will finish by mentioning the mismatch in
strength between the JNA and other Serbian and Serb forces on one side and the Croatian defence
forces on the other. Serbia ’s pleadings make various allegations about Croatia’ s preparations for
the conflict. They allege that the Croatian G overnment started to prepare for an armed conflict in
142
mid 1990 ; in other words, they were the aggressors. But by 1990, rebel Serbs had already
begun their unlawful seizure of parts of Croatian territory, with the support of the JNA . It was the
preparations by Croatia that were defensive.
43. I mentioned that in May 1990, the JNA completely disarmed the Croatian Territorial
Defence. Serbia’s pleadings largely ignore this fact, and yet it preceded the defence activities of
Croatia 14. It was this disarmament that rendered necessary the enlargement and arming of th e
Croatian police. Additional personnel were also required to meet the shortfall in numbers caused
by the rebellion of Serb ian police officers in the areas of Croatia where the Serb community had
purported to proclaim its autonomy. Croatia began these de fence activities very much at a
disadvantage. The disarmament left the Croatian Ministry of Internal Affairs as the only internal
institution in Croatia with weapons . It had only a single armed unit, a special operations or
antiterrorist force about the size of a company and a total of 15,000 rifles or pistols 144. It was thus
the Ministry of Internal Affairs that played the key role in the first phase of the development of the
Croatian forces: it enlarged the regular police and organized Special Police an d Reserve Police
145 146
units . It also began to organize some company-sized volunteer units during this phase .
44. There were two subsequent phases. On 18 April 1991, Croatia formed the National
Guard Corps, otherwise known as the “ ZNG”. From June to Septem ber 1991, the ZNG brigades
were the only Croatian units fully equipped with small arms, though they lacked heavy weapons 147.
The Ministry of Internal Affairs also began transferring police reserve units to the ZNG to provide
it with territorially organized reserve brigades and independent battalions 148. The final significant
142
RS, para. 448.
143RC, para. 3.55.
144Balkan Battlegrounds, Ann. 2, pp. 35–37.
145
Ibid., pp. 35–37.
146Ibid., pp. 37–38.
147
Balkan Battlegrounds, Ann. 3, p. 45.
148Ibid., p. 45. - 58 -
player to emerge was the Croatian Army itself . This came in the third phase, after the State
Supreme Council decided on 22 September 1991 to establish a Main Staff of the Croatian Army ,
which absorbed the ZNG command 149. It is notable that despite the addition of armoured and
artillery units at this time and the incorporation of arms captured from the JNA, the ZNG was still,
as the Balkan Bat tlegrounds report described it, “an infantry- rich, firepower -poor force in
comparison to the JNA, which fielded upwards of 1,000 tanks compared to the 250 or so available
150
to the ZNG in the 1991 fighting” .
45. More generally, the Balkan Battlegrounds report observes that the Croatian forces lacked
the firepower to push “the more professional and heavily armed JNA” out of Croatia and “[i]n
contrast with the JNA, Croatia had little in the way of a military logistic structure and little time to
develop one” 15. This mismatch , augmented by the Serb paramilitary forces that the JNA armed
and exercised control over, was a significant one.
46. I should add that the victims of the Serb forces were themselves not always totally
defenceless. But here the mismatch was even more extreme. The primary defence of towns and
villages was often conducted by local men, calling themselves “defenders” but sometimes
defending their villages with little more than hunting rifles . As you will hear for example, from
Sir Keir Starmer with respect to Vukovar the disproportion is a compelling indication that
Serbia’s intention was not limited to military objectives but involved the devastation of the civilian
population. The intention was to destroy that population, in part, because it was Croat. By the time
Vukovar fell, the JNA had an advantage of at least 16:1 in manpower and of more than 100:1 in
artillery and tanks.
VI. Conclusions
47. Mr. President, Members of the Court , let me sum up. During 1991 the JNA abandoned
any “neutral” role under the Constitution of the SFRY and progressively transformed itself into an
army pursuing Serbian objectives . This culminated in General Kadijević’s agreement on
5 July 1991, before the conflict started, that the JNA would act in Serbia ’s interests, and
14Balkan Battlegrounds, Ann. 11, p. 111.
15Ibid.
151
Balkan Battlegrounds, Ch. 13, p. 109. - 59 -
irrespective of the Constitution . By then, Serbia had clearly assumed control over the JNA, which
became its de facto military force. You will hear more this week about the consequences of the
relationship between the Serbian leadership a nd the JNA, including the JNA ’s direct participation
in activities. This included the sustained support for the rebel Serbs in Croatia provided by Serbia
through the JNA and other State organs. It enabled acts which we say were acts of genocide both
by the JNA and by forces under its direction or control.
48. The issue of attribution of conduct to Serbia, to which I will return, should be seen in the
context of that relationship between the Serbian leadership and the JNA.
49. Mr. President, Members of t he Court, thank you for your attention. Mr. President, I
would ask you now to call upon Professor Sands, who will address the legal framework for the
crucial issue of characterization that faces you,Croatia’s claim under the Genocide Convention.
The PRESIDENT: Thank you, Professor Crawford, and I give the floor to Professor Sands.
Mr. SANDS:
T HE G ENOCIDE C ONVENTION
(TO BE CONTINUED )
I. Introduction
1. Mr. President, Members of the Court, it is an honour for me to appear once again before
you in these proceedings on behalf of the Republic of CroatiaYou’ve heard some of the context
that leads into the terrible events, the details of which we are going to describe to you in the course
of this week. My presentation, which will be short this afternoon, will address the law applicable,
at least begin to address the law applicable, to the present case, which is of course the Convention
on the Prevention and Punishment of the Crime of Genocide, adopted in 1948.
2. The Convention is, of course, of great significance, the first modern human rights treaty,
adopted in that remarkable period immediately after the end of the Second World War. The
concept of “ genocide” came into being, as a legal term, onlyin the summer of 1945. It did so
before any other human rights treaties existed, and it did so alongside the parallel concept of - 60 -
“crimes against humanity ”. Since the Convention was adopted it has of course been subject to
judicial interpretation, including by this Court, by the ICTY and by the ICTR.
3. I will begin by addressing the emergence of the Convention and the role of this Court in
giving effect to its ob ligations. I will then set out, in some detail, the elements of the crime,
focusing both on the physical and mental elements (the actus reus and the mens rea requirement),
and in particular the meaning of the words “ in whole or in part ”, a central element of this case. I
will then address the obligations to prevent and to punish, and the other categories of acts specified
in the Convention that do not in themselves amount to genocide.
II. The evolution of the Genocide Convention
(a) The Second World War, Rafael Lemkin and the Nuremburg trials
4. Mr. President, Members of the Court, you need no reminder about the harrowing events
that led to the drafting of the Genocide Convention. Its adoption stems from the terrible events in
the years after 1933. The end of the war, in the spring of 1945, was followed by the preparation of
the Statute of the International Military Tribunal at Nuremberg . It was adopted in August 1945,
152
and the indictment of German defendants on the 8 October 1945 . Article 6 of the Nuremberg
Statute includes “crimes against peace” , “war crimes” and newly “crimes against humanity ” (I
should mention that this last mentioned was introduced into the Statute on the suggestion of
Professor Hersch Lauterpacht in a conversation with Robert Jackson, which took place in the
afternoon of 29 July 1945, at Lauterpacht ’s home , in the garden at No. 6 Cranmer Road, in
Cambridge; it was a part of Professor Lauterpacht’s desire to make individuals and their
protection the “central unit ” of international law) 153. The Statute made no reference to
“genocide”, or the destruction of groups as such; that was much to the dismay of Rafael Lemkin,
who nevertheless managed to get the word “genocide” and its definition inserted into the
indictment which was adopted in October 1945 and became a central charge in the proceedings.
5. Lemkin, like Lauterpacht, studied law at the University of Lviv, now in the Ukraine,
although he arrived two years after Lauterpacht had left for Vienna. Unlike Lauterpacht, who was
152
14 Nov. 1945-1 Oct. 1946, Nuremburg 1947, Vol. I, pp. 43-44.al Military Tribunal, Nuremburg,
15Principle VI, Charter of the International Military Tribunal, 1945. - 61 -
focused on the protection and rights of individuals as such , Lemkin’s concern was with the
protection of groups. His original work, in 1933, addressed this as “ barbarity” and “vandalism”,
but a decade later he decided to create a new word. And in 1943 he published a proposal for the
then Polish Government-in-exile in London, using the Polish word ludobójstwo, a literal translation
of a German word, which was Völkermord (murder of the peoples), a word used by the poet
August Graf von Platen (in 1831), then by Friedrich Nietzsche in his work “The Birth of Tragedy”
(in 1872).
6. By the end of 1943 Professor Lemkin had abandoned the use of the word for one that was
more easily pronounceable and created a new one, “ genocide”. This combined the Greek word
“genos” meaning race or tribe with the Latin word “cide”, which means to kill. [Screen on]
The term was first used in Chapter IX of his book Axis Rule in Occupied Europe , which was
published in November 1944, published by the Carnegie Foundation and you can now see a copy
of that on your screen. The word offered a reaction against what Lemkin described as a “scheme”
intended to effect a permanent c hange to the biology of certain occupied areas, by killing off the
intelligentsia, destroying culture, transferring wealth, depopulating territories by starvation, killing
or other means of displacement. On Lemkin’s approach, genocide described a process, it identified
a number of steps, from the identification and separation of members of a group to their removal
from a territory and in some cases their killing. On Lemkin’sapproach, each step was to be treated
as a genocidal act. And the commission of “ genocide” did not require the killing of an entire
group, or indeed even a significant part of it. Preparatory acts, i n his view , were genocidal.
[Screen off]
7. Integrated into the indictment, but not the Statute at Nuremburg, t he word “genocide” was
first used in a n international courtroom on 20 November 1945. It was spoken by
154
Monsieur Pierre Mournier, the assistant prosecutor for the French Republic . Later that day,
Captain Kuchin, Chief Prosecutor for the USSR, became the second person to use the term 155in an
international courtroom. David Maxwell-Fyfe became the first member of the British prosecution
15French prosecutor Champetier de Ribes: Trials of the Major War Criminals (Franv. Goering), opening
statements, 20 Nov. 1945.
15Chief Prosecutor for the Soviet Union Captain Kuchin; Trials of the Major War Criminals (France v.
Goering), opening statements, 20Nov. 1945. - 62 -
team to use the term, although he had to wait several months until his cross -examination of
Konstantin von Neurath, on 25 June 1946. “We are charging you and your fellow-defendants with,
among many other things, genocide”, Sir David said, “which we say is the extermination of racial
and national groups, or, as it has been put in the well -known book of Professor Lemkin: ‘ a
co-ordinated plan of diffe rent actions aiming at the destruction of essential foundations of the life
of national groups with the aim of annihilating the groups themselves’” 156. Of the four prosecution
teams at Nuremburg, only the United States declined to call for a conviction on genocide in its
closing arguments, which may well explain why the word was not mentioned in the j udgment 157.
158
Rafael Lemkin was utterly dismayed by that failure , but he did not give up.
(b) The negotiating history: 1946-1948
8. Two months after the judgm ent, on 11 December 1946, the United Nations General
Assembly unanimously adopted resolution 96 (I), entitled “The Crime of Genocide”. This affirmed
that [Screen on]
“genocide is a crime under international law which the civilized world condemns and
for the commission of which principals and accomplices whether private
individuals, public officials or statesmen, and whether the crime is committed on
159
religious, racial, political or any other grounds are punishable” .
The General Assembly also called on Member States “ to enact the necessary legislation for the
prevention of this crime” and requested the Economic and Social Council ( “ECOSOC”) to
undertake “the necessary studies, with a view to drawing up a draft convention on the crime of
genocide” 160. [Screen off]
9. Two draft texts of the Convention were prepared by the Secretariat and an ad hoc
committee established by the Economic and Social Council before a third draft was subsequently
drawn up and adopted by the General Assembly in Paris in 1948. The first draft, which was
156
British prosecutor Sir David Maxwell-Fyfe: Trials of the Major War Criminals (France v. Goering),
17 IMT 61, 25 June 194); Lemkin, R., Axis Rule in Occupied Europe, p. 79.
15Proceedings of the International Military Tribunal, Judgment of the Tribunal, 1 Oct. 1946.
15King, H. T. Jr., Remarks at Case Western Reserve University School of Law Frederick K. Cox International
Law Center Symposium, “To Prevent and to Punish: An International Conference in Commemoration of the Sixtieth
Anniversary of the Negotiation of the Genocide Convention” , 27 Sep. 2007, reprinted in 40 Case Western Reserve
Journal of International Law pp. 13–14.
159
Resolution on the Crime of Genocide, General Assembly resolution 96 (I), 11 Dec. 1946.
160
Ibid. - 63 -
circulated in May 1947, was prepared by the Secretary -General in consultation with three experts,
161
including Rafael Lemkin, and it was published with their comments . The two other experts were
Professor Henri Donnedieu de Vabres, who had been a French judge at the International Military
Tribunal at Nuremberg, and Vespasian Pella, a Romanian diplomat. As with all other major
international conventions, the negotiating history reveals a number of substantive and definitional
issues that had to be resolved before the final text could be adopted for signature.
10. A summary preliminary report of the a d hoc Committee provided that “in this
Convention, the word ‘genocide’ means a criminal act aimed at the physical destruction, in whole
162
or in part, of a group of human beings ” . The prevailing view at the General Assembly was that
cultural genocide should be dealt with elsewhere, but not all aspects of cultural genocide fell out of
the Convention. Article II (e), for example, lists “Forcibly transferring children of the group to
another group” as a genocidal act 16. The Secretariat produced a draft under the direction of
Rafael Lemkin which provided that the “forcible transfer of children to another human group” is a
form of cultural genoc ide 164. So while the term “ cultural genocide” does not feature in the final
text of the Convention, one of its core elements at least is listed in the Convention as amongst the
methods by which the crime of genocide is perpetrated. In this way, Lemkin’ s broad vision and
understanding of the legal concept of genocide has endured and is reflected in the Convention as
adopted.
11. A second area of divergence among the negotiating parties concerned the issue of scale
for the crime of genocide to occur, and the extent of the requisite intent , which I will focus on in
more detail tomorrow. During the negotiations there were a number of explicit references to the
concept of “partial destruction”. [Screen on] The negotiating Committee stated in a preliminary
draft of the principles that “[t]he convention should include as instances of genocide such crimes as
165
group massacres or individual executions on the grounds of race, nationality (or religion) . . .” . I
161
The Secretary-General, Report and the Draft Convention of the General Secretariat, UN docA/AC.10/41,
26 June 1947.
162
UN doc. E/AC.25/SR.10.
16Article II (e) of the Genocide Convention.
164
UN doc. E/447, p. 6.
165
UN doc. E/AC.25/7, Principle VII. - 64 -
emphasize these words : “ individual executions ”. This drew on Lemkin ’s approach and the
historical experience through which he and the drafters of the Convention and that entire generation
in Europe and elsewhere lived: they understood from first-hand experience that the identification
of genocidal acts was not a numbers game alone; it was not to be limited to the killing s of huge
numbers of individuals, or indeed the destruction of groups in their entirety. The meaning of
partial destruction was an issue that permeated the negotiating process. The French delegate,
Mr. Chamount, suggested that one individual death could, in and of itself, constitute an act of
genocide. At the Sixth Session of the negotiations, he proposed that [next graphic] “the crime of
genocide existed as soon as an individual became the victim of acts of genocide. If a motive for the
crime existed, genocide existed even if only a single individual were the victim. ”166 Others
delegates argued that such an extreme example should not be made explicit in the Convention, but
could be covere d by the alternative wording of “in whole, or in part”, which was proposed by
Norway. Mr. Rafaat of Egypt expressed the view that [next graphic] “the aim of the French
amendment would be met if the Committee adopted the Norwegian proposal [A/C.6/228] to i nsert
the words ‘in whole or in part’ after the words ‘with the intent to destroy ’” 16.
12. It is this Norwegian formulation in this context relating to “in whole or in part” that made
its way into the final draft, and is part of the Convention today that you will have to interpret and
apply. The negotiating history makes it absolutely clear that the final wording adopted by the
delegates envisaged that the crime of genocide encompasses the destruction of even a small group
of individuals, a subgroup of a larger group, which itself forms a part of the whole group. The
words “in part” say what they say: if the drafters had intended to indicate a large group, or a very
large group, or a complete group, they could have said so; they could, for example, have used the
formulation “in significant part” or “in substantial part”. They chose not to do so. [S creen off]
Tomorrow I will continue in more detail on the question of numbers in relation to a separate but
related issue, the intention to commit genocide, which is the mens rea of the crime.
13. There was at least one other important area of disagreement amongst the delegates, and
that concerned the role of this Court under the Convention. The original draft of the Convention
16UN doc. A/C.6/SR.73 (Chamount, France).
16Ibid. (Rabaat, Egypt). - 65 -
sent to the General Assembly w ould have limited th is Court’s jurisdiction simply to matters of
interpretation or application of the Convention. The ad hoc Committee draft, which was silent on
the question of State responsibility, provided that [screen on] “[d]isputes between any of the High
Contracting Parties relating to the interpretation or application of this Convention shall be
168
submitted to the International Court of Justice” .
14. This more limited formulation was not the text that was adopted. [Screen off] Instead,
following the incorporation of a text proposed by the United Kingdom and Belgium, the Court was
169
given jurisdiction to rule on the question of the responsibility of a State for genocide . The
United Kingdom delegate explained that “[t]he delegations of Belgium and t he United Kingdom
had always maintained that the convention would be incomplete if no mention were made of the
170
responsibility of States . . .” . The United Kingdom ’s delegation explained that “ the
responsibility envisaged by the joint . . . amendment was the international responsibility of States
following a violation of the Convention. That was [and I use his words] civil responsibility , not
criminal responsibility.” 171
15. The intention of the drafters that this Court be charged with th at duty of overseeing the
conduct of State parties, according to that standard, and to hold them accountable if established, is
evident from the final wording of Article IX of the Convention, which explicitly refers to the
responsibility of States. Those words place a sig nificant responsibility on this Court, recogni zing
that States, as well as individuals, may perpetrate genocide, and may be internationally responsible
for acts of genocide or for failing to prevent acts of genocide from taking place. The conditions in
which that will occur are matters to which I will return tomorrow morning.
16. Mr. President, with your permission, this is probably a good place to break. I thank you
for your attention. Tomorrow we will get to the nitty-gritty of the issues that you face.
168
UN doc. E/AC.25/SR.20, p. 6.
169UN doc. A/C.6/SR.105 (18 in favour, 2 against, with 15 abstentions).
170UN doc. A/C.6/SR.103 (United Kingdom, Fitzmaurice).
171
Ibid. - 66 -
The PRESIDENT: Thank you, Professor Sands, for completing your pleading of today.
May I kindly just ask you to check the name of the French delegate — whether it was
Mr. Chamount, or rather Charles Chaumont, a later well-known professor.
Mr. SANDS: I will certainly do that, Mr. President.
The PRESIDENT: This sitting is adjourned. We will meet tomorrow morning at ten
o’clock.
The Court rose at 1:10 p.m
___________
Audience publique tenue le lundi 3 mars 2014, à 10 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)