Corrigé
Corrected
CR 2014/15
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Wednesday 12 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 mercredi 12 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. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning. Please be seated. The sitting is now open. The Cour t
meets this morning to hear the continuation of Serbia’s argument in the first round. Iinvite
Professor William Schabas to take the floor. You have the floor, Sir.
Mr. SCHABAS:
R ESPONSE TO THE C LAIM OF THE A PPLICANT ALLEGING
THE C OMMISSION OF GENOCIDE
1. Thank you, Mr. President. Good morning, Mr. President, Your Excellencies, may it
please the Court. On Monday I addressed the Court with respect to legal developments concerning
the interpretation and application of the relevant provisions of Genocide Convention. My
presentation reviewed the case law of various specialized international criminal and human rights
tribunals since the 2007 Judgment of this Court of this Court. It concluded that although doctrinal
debates persist with respect tosome issues, the Court’s authoritative decision provided great
clarification about the terms of the Convention. Since 2007, as a general rule, the path that was
cleared by the Court has been followed. In the present case, the central task is to apply eh
principles set out in the Bosnia decision rather than to break new ground or to explore uncharted
judicial territory.
2. The claim and the counter -claim each raise distinct problems. On Friday of this week, I
will address the Court on the application a nd interpretation of the substantive provisions of the
Genocide Convention with respect to the counter-claim. Today, I confine my remarks to Croatia’s
claim that Serbia perpetrated genocide on its territory. For your reference, Serbia has addressed
Croatia’s claims on this matter in Chapter VIII of the Counter-Memorial of December 2009 and in
Chapter IV of the Rejoinder of November 2011.
3. The bulk of the events that form the basis of Croatia’s Application took place nearly
23 years ago. Some delay at this Court is not unusual, but the time lapse in this case is quite
extraordinary. Is there another case that has taken so long to reach the stage of oral hearings?
Many factors may explain the delay. The single most important one is the fact that Croat ia did not
begin proceedings until about eight years after the relevant events. Perhaps when Croatia’s
archives are opened to historians, many years from now, some plausible explanation for this will - 11 -
emerge. In its Memorial, Croatia attempted to explain the rather tardy Application, suggesting as
one reason that it had been prompted to act because the International Criminal Tribunal for the
former Yugoslavia (ICTY) “ha[d] not yet issued indictments against those persons most
1
responsible for genocide in Croatia” .
4. What Croatia must have meant by that statement is that the ICTY had not issued
indictments concerning Croatia that charged genocide. At the time, there was already significant
practice of the Tribunal concerning alleged atrocities committed i n Croatia, including events that
are at the core of Croatia’s claim before this Court. For example, in 1996 four individuals were
charged with crimes against humanity and war crimes concerning the Vukovar hospital massacre,
notablythe president of the Vukovar municipality, SlavkoDokmanović, and three military officers,
2
including Colonel Mrkšić .
5. Of course, as we all know they were not charged with genocide. Although Croatia’s
position, in explaining that it was launching proceedings at the ICJ, might have been taken as some
implicit criticism of the Prosecutor of the ICTY, for failing to charge genocide in the Vukovar case,
in other respects at the time Croatia spoke quite positively of the Prosecutor’s practice. In the
Memorial, filed in early 2001, Croatia referred favourably to the Prosecutor on more than one
3
occasion, at least when her practice seemed to support its contentions . Croatia now seems to have
since changed its position on the significance of prosecutorial practice.
6. When the ar chives are opened, it will also be interesting to read the legal opinions that
drove Croatia to launch proceedings before this Court nearly four years after the Dayton Peace
Agreement. At the time, if Croatia had consulted a well-informed international criminal lawyer, he
or she might have explained that the law governing genocide was somewhat uncertain, and that
there was little in terms of case law to suggest whether or not the Convention definition could be
stretched to cover the factual matrix of the conflict in 1991. In a very general sense, international
criminal law was in a state of flux. The developing law on crimes against humanity and war crimes
was very dynamic. This Court’s interlocutory rulings in the Bosnia case, with the exception of the
1
Memorial of Croatia (MC), 1 March 2001, para. 1.07.
2Prosecutor v. Mrkšić et al. (IT-95-13a-I), Indictment, 26 March 1996.
3
MC, paras. 7.48, 7.49. - 12 -
separate opinion of the ad hoc Judge for Bosnia and Herzegovina, did not point in one direction or
another. Moreover, although conflicting signals had been sent from within the ICTY, when
Croatia’s Application was submitted in mid -1999, there had been no final verdict on a genocide
prosecution by that body.
7. But within weeks of Croatia’s filing of the application in this case, there was a very
inconvenient Judgement from a Trial Chamber of the ICTY. In Prosecutor v. Jelisić, three Judges
dismissed genocide charges with respect to atrocities perpetrated in Brčko in north-east Bosnia and
Herzegovina 4. If the Prosecutor could not prove genocide in Bosnia and Herzegovina, where the
scale of violence and atrocity greatly exceeded that of the earlier confli ct in Croatia, the
Application before the International Court of Justice confronted a big hurdle. Croatia’s Memorial,
filed on 1 March 2001, essentially ignored this first Judgement of the ICTY concerning a genocide
indictment. Only a summary mention was made of the single acquittal, but the reference in the
Memorial mistakenly referred to an unknown defendant and there was no consideration of the
5
significance of the decision within the general jurisprudence of the Tribunal . I suppose those who
drafted Croatia’s Memorial hoped that Jelisić would be overturned on appeal it was not and
that a more broad and liberal approach to the definition of genocide would prevail in the Tribunal’s
jurisprudence.
8. Mr. President, Members of the Court, as you know, the Jelisić case was only the first of
many ICTY rulings that confirmed the reluctance of that Tribunal to characterize the conflict in
Bosnia and Herzegovina as genocide, with the notable exception of the Srebrenica massacre in
mid-1995. All of this mus t have been quite disconcerting to Croatia. Over the years, it was
continually forced to repackage its claim before this Court as the international case law evolved
and developed in what, from the standpoint of Croatia’s claim in the present proceedings, was the
wrong direction. The 2007 Judgment of this Court in the Bosnia case was the coup de grâce.
9. The Applicant is arguing a claim that has been plainly overtaken and outdated by
the clarification of the law to the extent that it might ever have bee n arguable 6. In our
4
Prosecutor v. Jelisić (IT-95-10-T), Judgement, 14 Dec. 1999.
5MC, para. 7.22, fn. 50. There are two other references to the Jelisić Judgement, at para. 747, fn. 90; para. 754,
fn. 105.
6
RS, November 2011, para. 376. - 13 -
Rejoinder, we produced evidence that even Croatia does not really believe it has a case.
Professor Mirjan Damaška, who appeared for Croatia earlier in the present proceedings, and who is
listed as being part of the Croatian team in the present hearings, writing as a guest columnist of the
Croatian weekly Nacional on 13 March 2007, a few weeks after the Bosnia judgment, openly
discussed the slim chances of the Croatian Application being upheld by the Court, although he
7
thought it worth continuing because it would result in “a useful defeat” for Croatia
10. In our Counter -Memorial, we entitled the relevant section “ The Crimes Were Not
Committed with the Genocidal Intent”. It should be clear from this expression that Serbia is not
denying that crimes were committed. The Agent of Serbia, Mr. Obradović, made the position quite
explicit in his presentation on Monday. Several of my colleagues have expressed their great
sympathy for the victims of the conflict — both Croat and Serb — and I of course join them in
paying my respects. Prosecutions for war crimes and crimes against humanity perpetrated by Serbs
in Croatia have taken place before the International Criminal Tribunal for the former Yugoslavia
(ICTY) as well as before national courts, including those of Serbia. To that extent, some of the
underlying acts listed in the five paragraphs of Article 2 killing, causing serious bodily and
mental harm were most certainly committed at the relevant time. That is not an issue here. The
heart of the debate before this Court is whether such acts are al so characterized by the contextual
elements set out in the introductory paragraph or chapeau of Article 2 of the Convention. That is
to say, was killing or serious bodily or mental harm committed “with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group as such”.
NATURE OF THE DESTRUCTION AND MEANING OF THE WORDS “ WITH INTENT TO DESTROY ” IN
THE DEFINITION OF GENOCIDE IN THE GENOCIDE C ONVENTION
11. Mr. President, Your Excellencies, the chapeau of Article 2 of the Genocid e Convention
contains the phrase “with intent to destroy”. The chapeau is followed by the five paragraphs that
list the punishable acts of genocide. One of the great challenges to the interpreter had been to fix
the place of destruction falling short of physical extermination. Until a corpus of case law
developed, essentially over the past 15 years, the main body of material of assistance in the
7Mirjan Damaš ka, ‘Hrvatsku tužbu ne treba povući’, Nacional, No. 591, 13 March 2007, available at
http://www.nacional.hr/clanak/print/32333. - 14 -
construction of Article 2 was the preparatory work. It left no doubt that the intent of the drafters of
the Convention was to exclude a concept of genocide that went beyond physical extermination or
what was called biological genocide. The drafters quite deliberately decided to exclude the notion
of “cultural genocide” as well as forms of forcible transfer falli ng short of physical destruction.
Exceptionally but it was always clear this was an exception they agreed to include one
punishable act, forcibly transferring children, that did not correspond to biological or physical
destruction.
12. Nevertheless, a strictly literal reading of Article 2 left some room for differences of
opinion. Depending upon how canons of interpretation were applied to the problem, it was
possible, in the past, for reasonable people to differ about the scope of the words “with in tent to
destroy”, and more specifically as to whether the word “physically” should be added as an
adverbial modifier of the verb “to destroy”. With the clarification provided by case law of the
ICTY, crowned by the Judgment of this Court in the Bosnia case, there is no longer room for
debate. The destruction contemplated by the chapeau of Article 2 is physical destruction.
Moreover, the punishable acts must be perpetrated with the intent to destroy the group in a physical
sense.
13. The first punishable act, “killing members of the group”, raises no particular difficulties
in this respect. There is a quite logical consistency between the killing of members of the group
and their physical extermination. Much the same can be said of the third punishable act —
“[d]eliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part”. Indeed, in the third act of genocide, the requirement of physical
destruction is quite explicit. It is the second act— “[c]ausing serious bodily or mental harm to
members of the group” — that sometimes leads to misunderstanding because it does not
necessarily seem obvious that “causing serious mental harm”, for example, can be associated with
physical destruction or ex termination. In the submissions on Monday, I referred the Court to the
very authoritative judgement of the Appeals Chamber of the International Criminal Tribunal for
Rwanda (ICTR), issued since this Court’s ruling in the Bosnia case. The ICTR Appeals Chamber
noted that not only have nearly all convictions for genocide on the basis of causing serious bodily
or mental harm involved killing or rape, but that “[t]o support a conviction for genocide, the bodily - 15 -
harm or the mental harm inflicted on members of a group must be of such a serious nature as to
8
threaten its destruction in whole or in part” . In other words, it is not enough to inflict bodily or
mental harm with the intent to destroy the group. The analysis must also consider whether the
harm is “of such a serious nature as to threaten its destruction”. This important idea, now quite
entrenched in the case law of both international ad hoc criminal tribunals, seems close in
formulation to the words of the Elements of Crimes of the International Criminal Court, namely
that the conduct in question “could itself effect such destruction”. Here, I refer the Court to my
remarks on Monday where this provision of the Elements of Crimes was discussed in more detail.
14. Mr. President, Your Excellencies, Croat ia struggles to blur the relevant legal framework
by directing the Court’s attention to various acts that may arguably meet the criteria in the
individual paragraphs of Article 2. It is easier for Croatia to distract the Court by speaking of
evidence that physical or mental harm has been caused, or that killings have taken place, than to
provide the Court with a coherent and comprehensive analysis whereby it responds to the challenge
of linking the elements of the individual paragraphs with those of the ch apeau of Article 2. But
without the chapeau, taken at their highest, these acts are ordinary crimes or possibly one or
another form of war crimes or even crimes against humanity. Alas, they are not genocide. The
claim fails.
15. Even if we consider the authorities that hold there to be no requirement of a genocidal
plan or policy — a matter that is of some interest when relatively isolated individuals are being
prosecuted — all of the jurisprudence is consistent in stressing the importance of showing such a
plan or policy as part of the general evidentiary framework necessary to establish the existence of
genocide. Although without acknowledging formally that evidence of a plan is necessary to set out
a case for genocide, Croatia itself has recognized the importance of this factor when it speaks of the
9
“genocidal plan” in its submission. But, on this point, the Applicant has utterly failed to prove the
existence of any plan or policy to commit genocide on the part of the authorities of the Respondent
or the authorities of the Republic of Serbian Krajina (RSK), for whose actions the Applicant claims
8Prosecutor v. Seromba (ICTR-2001-66-A), Judgement, 12 March 2008, para. 46.
9CR 2014/10, p. 46, para. 79 (Starmer). - 16 -
the Respondent is responsible. In particular, the Applicant has not adduced any direct evidence of
the alleged intent on the part of the Respondent to commit genocide against Croats.
No evidence of a plan or policy to commit genocide or other manifestations
of genocidal intent
16. In an attempt to build its case, Applicant has produced evidence purporting to show
statements that may manifest a genocidal i ntent. Depending upon the context in which they are
made and the identity of their author, statements may be an important factor in demonstrating
genocidal intent. This has notably been the case in trials before the ICTR. Moreover, statements
tending to show genocidal intent are also significant in our counter -claim. I am here referring to
the remarks of President Tuđman to military leaders at the Brioni conference, immediately prior to
the attack on the Serb population in the Krajina known as Operation Storm. These are solid
examples of such evidence and we will discuss this further in our counter-claim.
17. By way of contrast, Applicant’s evidence in this respect is quite pathetic. The statements
on which Croatia relies are attributable to persons w ho are not capable of engaging the
responsibility of the Respondent in any way, whatever the contents of the statements.
18. More specifically, Croatia referred the Court to a statement made in April 1991 by
Milan Paroški during a talk to Serbs in the village of Jagodnjak in Baranja, in eastern Croatia. In a
video displayed by the Applicant in the course of last week’s presentations 10, Paroški is recorded
saying that anyone who claimed the land as theirs was a usurper whom they had the right to kill
“like a dog”. The incident was highlighted on the opening day of these hearings where it was
11
presented as a particularly striking example of the rise of extreme Serb nationalism .
Mr. President, Members of the Court, Paroški was a marginal politician who was never part of any
government structures in Serbia. The statement was certainly aggressive and unacceptable but it is
far from an incitement to commit genocide or evidence of some general intent attributable to Serbia
to destroy an ethnic group.
1CR 2014/5.
1CR 2014/5, p. 35, para. 17 (Law). - 17 -
12
19. The same observation applies to the statements attributed to Vojislav Šešelj . At the
time these were made, in 1991, Šešelj was an opposition politician in the Serbian Parliament in
conflict with President Milošević. In its Memorial, and in the course of last week’s oral
submissions, the Applicant stated that there is “substantial evidence that Šešelj and his paramilitary
13
formations had direct links to, and the support of, the Serbian governments and the JN A” . But,
alas, the only evidence that is provided for this mistaken claim is a citation from Šešelj himself.
Last Thursday, Croatia provided an answer to Judge Greenwood’s question about Šešelj. Croatia
conceded that in 1991, at the time of the remarks, Šešelj had no official position in the Government
of Serbia. They painted him as a close confidant of Milošević, a description that we think does not
accurately reflect the relationship. The Agent for Serbia is going to return to this point in his
statement this afternoon.
20. These and other comments made in the context of political crisis and violen t conflict are
invoked by Croatia. We have to bear in mind that the impending break -up of the former
Yugoslavia was unprecedented and catastrophic. Possibly, at their worst, some of these statements
were provocative and incendiary. But to transform this into evidence of the “crime of crimes” is
quite preposterous. The statements and speeches referred to by Croatia, most of them attributable
to individuals without any direct association to the respondent State, prove neither the existence of
genocidal intent nor even the existence of “simple criminal intent”. As a reference point, we would
refer the Court to the transcripts of the Brioni conference, where the statements were made by the
President of Croatia, to senior military officials, and where the ca usal link with the genocidal
violence that followed within a few days cannot be disputed. Can there be any serious comparison
between the statements by Tu đman at Brioni in 1995, as Croatia schemed to destroy the Serb
population of the Krajina, and the remarks that Croatia attributes to Serbia in its submissions.
No evidence of a pattern of events on the basis of which genocidal intent could be inferred
21. Mr. President, Members of the Court, in the absence of any direct evidence of genocidal
intent, Croatia falls back on “inferences”. Croatia urges the Court to identify a genocidal intent
1MC, para. 3.51.
1Ibid. - 18 -
14
from a “pattern of behaviour involving the prohibited acts and targ eted at a protected group” .
The Applicant infers the alleged genocidal intent on the basis of this alleged consistent pattern of
crimes or culpable acts systematically directed against the Croat group as such. The Applicant
relies upon this “cumulative effect” of crimes committed against Croats and invites the Court to
consider such a “combination of crimes” as amounting to genocide 15. This is a risky and uncertain
business, involving events and incidents that are characteristic of a large number of ethn ic conflicts
throughout the world. It takes a big leap of the imagination to bring such claims within the sphere
of genocide as it is defined in the Convention.
22. A pattern of behaviour or a pattern of crimes or a plurality of common crimes cannot, in
itself, constitute genocide. The broad proposition that “the very pattern of the atrocities committed
over . . . a lengthy period, focused on [national or ethnic groups] demonstrates the necessary
[genocidal] intent” was explicitly rejected by this Court in Bosnia. The Court held that for a
pattern of conduct to be accepted as evidence of the existence of the specific intent to destroy the
group in whole or in part, the alleged pattern of conduct “would have to be such that it could only
point to the existence of such [specific] intent” 1.
ICTY materials
23. Mr. President, Members of the Court, in the Bosnia case, the Court found that various
aspects of how the ICTY had dealt with the indictments charging genocide proved extremely
helpful in assessing whether or not genocide had been committed. Of course, in a sense that door is
closed in this case, because there have been no indictments charging genocide with respect to the
conflict in Croatia. Despite the very high level of persons who have been indicte d by the ICTY
with respect to the crimes that form the basis of the Application in this case, the crime of genocide
was never charged by the Prosecutor.
24. Croatia seems to have taken a very extreme position, arguing that the Prosecutor’s
decision not to charge genocide is essentially irrelevant. To be quite clear, Mr. President, Serbia is
14
Counter-Memorial submitted by the Republic of Serbia (CMS), Dec. 2009, para. 939.
15Reply of the Rep ublic of Croatia (RC), paras. 9.6-9.11, 9.20 et seq .; CR 2014/6, p. 40, para. 39 (Starmer);
CR 2014/8, p. 47, para. 83 (Starmer); CR 2014/12, p. 31, para. 72 and para. 76 (3) (Starmer).
16
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 197, para. 373. - 19 -
not arguing the opposite in the sense that we contend that the Prosecutor’s exercise of discretion
creates some kind of irrebuttable presumption. But, the position of the Prosecutor is simply a
relevant factor, no more and no less. Last Tuesday, Sir Keir Starmer cited Richard Goldstone, who
was the first operational prosecutor at the ICTY. Justice Goldstone’s comments were made
subsequent to this Court’s 2007 Judgment and are part of a broad criticism that he made of that
Judgment in an academic journal article. I think Justice Goldstone’s views about prosecutorial
discretion would have been more compelling had he expressed them before the Court’s Judgment,
and not i n 2008 as a way of trying to challenge it. Croatia cited the following words of
Justice Goldstone: “the Prosecutor’s decision not to charge genocide in an indictment may have
nothing at all to do with the absence of evidence that genocide was committed’ 17. We agree. The
key word here is “may”. But it may also have everything to do with it.
25. Sir Keir told the Court last week that
“the ICTY Prosecutor is constrained by the available evidence at that stage. That will
influence any investigation and, in turn, influence any prosecution decision about the
charge. As every prosecutor will appreciate, it is very rare indeed to have all the
relevant information available at the beginning of an investigation and, in very many
instances, had different inform ation been available at the outset, the investigation
would have taken a different course. That is an age- old problem in investigating a
[sic] prosecuting crime.” 18
It is an interesting observation. But it is entirely speculative. What exactly is this de cisive
evidence that Croatia possesses and that forms part of the record before this Court that was not
available to the Prosecutor of the ICTY and, for that matter, did not form part of the evidentiary
record in the relevant proceedings? Can Croatia poin t us to this smoking gun that it seems to have
found, but that eluded Richard Goldstone, Louise Arbour, Carladel Ponte and Serge Brammertz?
26. The Prosecutor of the ICTY is a responsible international official who will seek
indictments and attempt to pr ove charges that realistically correspond to the acts that were
perpetrated. He will, as a general rule, charge the most serious crime that can be sustained with
regard to the acts in question. The fact that there have been no charges of genocide with respect to
any of the crimes committed against the Croat people indicates that the entity responsible for the
1CR 2014/6, p. 38, para. 32 (Starmer).
1CR 2014/6, p. 35, para. 23 (Starmer). - 20 -
most thorough international investigations into the conflict in Croatia during the 1990s has failed to
19
find evidence of genocide . How can that not be relevant to these proceedings?
27. Mr. President, Members of the Court, I would like to comment on some of Sir Keir’s
observations concerning this issue. He said “there is a powerful argument for attaching no more
significance to the exercise of a pr osecutor’s discretion to the decisions of the ICTY Prosecutor
than would be attached to domestic prosecutorial decisions in other comparable jurisdictions” 20.
Sir Keir did not really set out the grounds for making such an argument, which he seems to have
based solely on an assumption that all prosecutors act like those within the English common law
system. I do not think that, in fact that is the case, as Professor Damaska, who is a specialist on
comparative criminal procedure, could tell us if he were present here.
28. At the ICTY, formal, legal constraints on prosecutorial discretion began with the
so-called “completion strategy”. When first proposed by the Tribunal itself in 2002, a result of
consultation between the judges and the Prosecutor, the Tribunal announced a strategy “focusing
the Tribunal’s mission on trying the most senior offenders of crimes which most seriously violate
21
international public order” . Less serious crimes are referred to the national courts. The Rules of
the Tribunal were am ended to authorize the Bureau of the judges to screen applications for an
indictment so as to ensure that they concentrate “on one or more of the most senior leaders” 22. The
Prosecutor reports every six months to the Security Council on the implementation of this
“completion strategy”. These are constraints on discretion without obvious analogy to national
justice systems dealing with ordinary crimes.
29. An interesting manifestation of this issue can be seen in the ongoing proceedings against
the Bosnian Serb leader Radovan Karadžić. The revised indictment against Karadžić was issued in
2008, a year after the Judgment of this Court in the Bosnia case, and following his apprehension
23
and transfer to The Hague . The Prosecutor might well have accepted the finding of the ICJ in the
Bosnia case and abandoned the allegations of genocide with respect to the municipalities that had
19
RS, paras. 282, 288.
20
CR 2014/6, p. 34, para. 19 (Starmer).
21Tenth Annual Report of the ICTY, UN doc. A/58/297-S/2003/829, para. 4.
22
Rules of Procedure and Evidence, Rule 28 (A), amended 6 April 2004.
23
Prosecutor v. Karadžić (IT-95-5/18), Prosecution’s Second Amended Indictment, 18 Feb . 2009. - 21 -
figured in the earlier indictments against Karadžić, retaining only the genocide charges for
Srebrenica. But the Prosecutor has insisted on keeping the charges of genocide with respect to the
municipalities. Moreover, when these charges were dismissed by the Trial Chamber at the close of
the prosecution case, the Prosecutor appealed. I discussed this on Monday and will not repeat my
comments on the case. But the example demonstrates the importance of genocide charges for the
Prosecutor when, of course, he considers that he has a case to make.
24
30. Contrary to the Applicant’s contentions , it is implausible that the ICTY Prosecutor
decided not to charge genocide in the cases of Milošević, Babić and Martić, all of which concern
the allegations in Croatia’s Application before this Court, because of, and I quote Croatia’s
submission, “the cost, length and manageability of proceedings . . . or the difficulties of identifying
and apprehending individual perpetrators or those bearing command responsibility, and the
availability of witnesses”. In order to sustain such an argument, Croatia might provide the Court
with more precise informati on. In what way would genocide charges have contributed in an
unacceptable manner to the “cost, length and manageability of proceedings”? Why would the
Prosecutor of the ICTY be reluctant to proceed with genocide charges in cases concerning Croatia
because of “cost, length and manageability of proceedings” yet willing to do so in the case of
Karadžić? Croatia’s contention that the Prosecutor may have felt overly challenged because of
“difficulties of identifying and apprehending individual perpetrators or those bearing command
responsibility” is quite absurd. The issue here is why he (or she) has not charged genocide with
respect to people who are actually detained and facing trial, not phantom officials who are difficult
to identify and impossible to apprehend.
31. Finally Mr. President, Members of the Court, if the Prosecutor has difficulty with
“availability of witnesses”, what does that say about Croatia’s own evidentiary problems in the
present proceedings. Perhaps when it submitted the Application, Croatia had nurtured the hope that
its claim might prosper here because the Court would adopt a much lower evidentiary threshold
than what is applied in criminal prosecutions. At the time, some said genocide would be much
easier to prove at the ICJ than at the international criminal tribunals because the civil standard of
2RC, para. 2.27 (3). - 22 -
25
proof of the balance of probabilities would apply . Something argued before this Court in 2006.
But any hope for that was quashed by the Judgment in the Bosnia case, when the Court confirmed
26
that charges of such exceptional gravity must be “clearly established” and “fully conclusive” .
32. Let me make one final observation about the relevance of the ICTY materials. Now I am
not going to talk about prosecutorial discretion, but rather of the findings of the judges themselves.
In his submission on 5 March, Sir Keir Starmer turned to the major ICTY judgement concerning
the events in Vukovar. He dismissed Serbia’s explanation, which focuses on the armed conflict
itself, on the difficult tactical decisions in what is sometimes called an asymmetric conflict, where
the sides are not evenly matched in terms of resources, and fight by different strategies. It is a
familiar scenario in many parts of the world where there is armed conflict. B ut here, as Sir Keir
noted, the Trial Chamber of the ICTY did not really accept the defence explanation, that this was
simply a feature of armed conflict. He cited, but only in part, some very devastating paragraphs in
the judgement that dealt with the ap proach of the JNA. Part of the sentence was left out and
replaced with ellipsis. Here is the entire sentence:
“In the view of the Chamber the overall effect of the evidence is to demonstrate
that the city and civilian population of and around Vukovar were being punished, and
terribly so, as an example to those who did not accept the Serb controlled Federal
government in Belgrade, and its interpretation of the laws of SFRY, or the role of the
JNA for which the maintenance of the Yugoslav Federation was a fundamental
27
element in the continued existence of the JNA.”
33. The three judges who made this observation about the motivation of the JNA, about the
Serb “plan”, reached this conclusion after 189 trial days in which 188 witnesses were called and
847 exhibits produced. They were familiar with the details of Vukovar in a way that, with respect,
is beyond the reach of the limited inquiry taken here by this Court. Their conclusions are very
harsh. Those who were convicted received lengthy prison terms. But if the purpose of the attack
on Vukovar had been to destroy, in whole or in part, an ethnic group, would not the judges of the
Trial Chamber have made a comment in this sense? Would it not have been reflected when they
pronounced the sentence, where they are required to consider aggravating factors?
25
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 129, para. 208.
26Ibid., para. 209.
27
Prosecutor v. Mrkšić et al. (IT-95-13/1-T), Judgement, 27 Sept. 2007, para. 471. - 23 -
The Martić case
34. Mr. President, Members of the Court, the Applicant refers at great length to various
findings in another case, that of Milan Martić. Martić was one of the most important and
influential political and military leaders during the relevant p eriod 28. In one of the first indictments
of the ICTY, in November 1995, Martić was charged with war crimes and crimes against humanity.
He was found guilty by the ICTY Trial Chamber of the murder of 189 people and he was sentenced
to 35 years’ imprisonmen t. The word “genocide” did not appear in the indictment or in the
judgements of the Trial and Appeals Chambers, except for a few isolated references to the term that
are of no relevance here because they concern crimes allegedly committed by Croats and no t
29 30
Serbs or the standard of proof applied by the ICJ in the Bosnia case .
35. Croatia invokes the Martić judgement in support of its claim that genocide was
31 32
committed , that it can be attributed to Serbia , and even as a basis for the application of
33
Article 10 (2) of the International Law Commission (ILC) Articles on State Responsibility . In
reality, however, the Martić judgement proves much less than the Applicant wants to read into it,
34
and with some of its main findings, actually support Serbia’s position in this case .
36. Martić was convicted of war crimes with respect to the shelling of Zagreb, but was
acquitted on the count of persecution as a crime against humanity because of the lack of sufficient
35
evidence of discriminatory intent based upon ethnicity . Martić was also found not guilty of the
crime against humanity of extermination because th e killings lacked the element of scale that that
36
crime requires . The Prosecutor did not appeal the acquittal on the extermination count, indicating
2On 4 Jan .1991, Milan Martić was appointed as the Secretary for Internal Affairs of the SAO Krajina. On
26 Feb.1992 he was re-elected as Minister of the Interior.On 25 Jan. 1994, Milan Martić was elected President of the
Republic of Serbian Krajina (RSK).
2Prosecutor v. Martić (IT-95-11-T), Judg ement, 12 June 2007, paras. 331 and 334; Prosecutor v. Martić
(IT-95-11-A), Judgement, 8 Oct. 2008, paras. 32 and 38.
3Prosecutor v. Martić (IT-95-11-A), Judgement, 8 Oct. 2008, para. 50.
3RC, paras. 9.34-9.35; as well as in its oral pleadings, see e.g., CR 2014/6, CR 2014/8, CR 2014/10.
32
RC, paras. 9.67, 9.71, 9.75 etc.; as well as in its oral pleadings, see e.g., CR 2014/6, CR 2014/8, CR 2014/10.
33
RC, para. 7.62.
3RS, para. 417.
3Prosecutor v. Martić (IT-95-11-T), Judgement, 12 June 2007; Prosecutor v. Martić (IT-95-11-A), Judgement,
8 Oct. 2008.
3Prosecutor v. Martić (IT-95-11-T), Judgement, 12 June 2007, para. 404. - 24 -
a degree of acquiescence in the verdict of the Trial Chamber and a recognition of the futility of
challenging it before the Appeals Chamber.
37. Some of the recent judgements relate genocide to the crime against humanity of
persecution. This is because the discriminatory component of the mental element of the two crimes
is related. The crime against humanity of persecution must be directed against a group in much the
same way as the crime of genocide. But this vision of the relationship has obscured another
important connection between genocide and crimes against humanity and that is with respect to the
act of extermination. In the absence of the act of extermination, as a crime against humanity, we
are outside the scope of genocide because of its requirement of the physical destruction of the
group.
38. Mr. President, Your Excellencies, the term “extermin ation” first appears in positive
international criminal law in the definition of crimes against humanity contained in the London
Charter, the legal instrument on which the Nuremberg trial was based. The Court will recall that
unlike more recent internatio nal criminal tribunal statutes, where genocide and crimes against
humanity are both listed in the subject -matter jurisdiction, the London Charter did not provide
explicitly for the crime of genocide. Robert Jackson, the American negotiator at the London
Conference and subsequently the American prosecutor at the trial itself, actually used the term
“genocide” on occasion and he was utterly convinced that what today we call the genocide of the
European Jews should be punished by the International Military Tr ibunal. He considered that the
37
concept of genocide was properly framed by the crime against humanity of extermination . In his
speech to the Court last week, Professor Sands helpfully referred to the various references to the
word “genocide” in the Nuremberg proceedings. The impression that emerges from these materials
is that the concept of genocide, yet to be defined in positive international law at the time of the
trial, was for all practical purposes a synonym for the crime against humanity of exterm ination.
This understanding of the crime against humanity of extermination is strengthened by our
contemporary interpretation of genocide as a crime limited to the physical destruction of the group
that is targeted.
3See also the report by Raphael Lemkin on the debates at the time General Assembly resolution 96 (I) was being
drafted: Donna-Lee Frieze (ed.), Totally Unofficial:The Autobiography of Raphael Lemkin, New Haven, Yale
University Press, 2013, p. 131. - 25 -
39. This is why the acquittal of Milan Martić on charges of extermination by the ICTY is so
relevant to the present proceedings. Applicant contends that genocide can be proven with an
accumulation of “physical and psychological methods” falling short of extermination. That may
have been consistent with an arguable interpretation of the crime of genocide in 1999, when the
Application was first filed, but it is completely at odds with the present state of the law as
confirmed by this Court in the 2007 Judgment.
40. Furthermore, the Martić judgement provides its own explanation as to why there have
been no prosecutions by the ICTY concerning the Municipalities of Šibenik and Drniš. With
respect to the Municipality of Drniš the Trial Chamber observed that there was “harassment and
intimidation” of the Croat population. Manifestly, the Prosecutor did not consider “harassment and
intimidation” to fall within the subject-matter jurisdiction of the Tribunal, which can only prosecute
grave breaches of the Geneva Conventions, violations of the laws or customs of war, crimes against
humanity or genocide.
41. The Martić Trial Chamber decision does not establish any pattern of events that could
amount to genocide. Furthermore, the judgement does not contain any finding, not even a sparse or
an unsubstantiated one, that any crime committed in the Serbian Autonomous Oblast (SAO) of
Krajina, other than deportation and forcible transfer, can be attributed to anyone apart from Martić
himself. Only crimes of deportation and forcible transfer were found by the Trial Chamber to be
within the common purpose of the joint criminal enterprise. The latter, according to the findings of
the Trial Chamber, was confined to “the establishment of an ethnically Serb territory through the
38
displacement of the Croat and other non-Serb populations” . Martić was found guilty of crimes
outside the common purpose of the joint criminal enterprise, as determined by the ICTY Trial
Chamber on the basis of his individual relationship to and knowledge of the crimes, namely
because he “willingly took the risk th at the crimes which have been found to be outside the
common purpose might be perpetrated against the non-Serb population” 3.
42. Mr. President, Members of the Court, the Martić decision also provides a more complete
understanding of the nature of the atta ck in Krajina. The judgement refers to evidence of
3Prosecutor v. Martić (IT-95-11-T), Judgement, 12 June 2007, paras. 445-446.
3Prosecutor v. Martić (IT-95-11-T), Judgement, 12 June 2007, para. 454. - 26 -
“displacement of the Croat population as a result of harassment and intimidation” 40, to “the
41
displacement of the non-Serb population” and of “such a coercive atmosphere that the Croat and
other non-Serb inhabitants of the RSK were left with no option but to flee” 42. It also says: “Acts
of violence and intimidation against the Croat and other non- Serb population, including, beatings,
robbery, theft, harassment and destruction of houses and Catholic churche s, were prevalent in the
RSK during the period between 1992 and 1995, and resulted in an exodus of the Croat and other
43
non-Serb population from the territory of the RSK” . To the extent that such acts took place, they
are entirely reprehensible and regret table. Those responsible should be brought to justice and
indeed this has taken place in many cases. But this is far outside the jurisdiction of this Court in
the present proceedings.
43. For the reasons set out above, the exaggerated attention given by the Applicant to the
Martić judgement is not helpful to the Court. The reference advanced by the Applicant to the
“eradication” of the Croat population as a factual finding of the ICTY lacks a basis. Quite to the
contrary, the judgement in the Martić case, as well as in Mrkšić et al, Jokić and Strugar cases 44,
confirm that the acts for which the accused were convicted cannot be legally characterized as
genocide.
Alleged inference of genocidal intent
44. Mr. President, Members of the Court, commentators a nd journalists often say that “it is
very difficult to prove genocide”, as if this were a crime like child sexual abuse where various
factors inherent in the crime, including social stigma and issues of reliability of children as
witnesses, complicate the task of investigators, prosecutors and judges. In fact, genocide is easy to
prove when it takes place. The nature of the crime, its scale, its association with racist and
xenophobic propaganda, mean that when genocide occurs the evidence is rarely subj ect to serious
challenge and the manifestation of the intentional element is quite obvious. Problems in proving
40
Prosecutor v. Martić (IT-95-11-T), Judgement, 12 June 2007, para. 299.
41
Ibid., para. 300.
42Ibid., para. 444.
43
Ibid., para. 351.
44
For more details, see CMS, para. 175. - 27 -
genocide and this is the great challenge to the Applicant in the present proceedings are
entirely due to the difficulty of proving something that did not happen.
45. We turn to the familiar statement of this Court in its first contentious proceedings, the
Corfu Channel case. In Corfu Channel, the Court observed that,
“indirect evidence is admitted in all systems of law, and its use is reco gnized by
international decisions. It must be regarded as of special weight when it is based on a
series of facts linked together and leading logically to a single conclusion . . .
The proof may be drawn from inferences of fact, provided that they leave no
room for reasonable doubt. ”45
This is a very cautious and prudent framing of the role of indirect evidence. We should also bear in
mind the context of the Court’s famous dictum. The issue in Corfu Channel was whether or not
knowledge of the mine -laying could be attributed to Albania. The evidentiary issues in this case
are of a very different nature. There is no single factual issue the knowledge of which is in dispute.
Rather, the factual matrix has been well established, largely through the determ ined efforts of the
ICTY. The debate is essentially about the mental element, where the issue of reliance upon
inferences of fact is an especially uncertain and indeed dangerous matter.
46. In particular, proof of acts causing serious bodily or mental ha rm to members of a group,
in this case the Croats, is not sufficient to establish the material element of the crime of genocide.
Nor is it sufficient to ascertain that members of the group were killed, or that inhumane conditions
of life were inflicted. The overarchingactus reus of the crime of genocide is in fact the destruction
of the group, in whole or in part. Such an actus reus involves a multitude of individual acts that
contribute to the physical destruction of the group as such. Such acts must be capable of effecting
such destruction, as the ICTR Appeals Chamber has recently noted.
47. In the present case, however, the mere “cumulative effect” of the alleged widespread and
systematic attacks against the Croat population, as asserted by the Appl icant, does not in itself
suffice to evince either the mental or the material element of the crime of genocide. None of the
specific factors that, in the view of the Applicant, “may be sufficient to demonstrate genocidal
4Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 18. - 28 -
intent” , whether considered individually or collectively, are sufficient to prove the existence of
either a genocidal intent or the actus reus of genocide.
47
Allegations concerning Eastern Slavonia and other regions
48. Mr. President, Members of the Court, with respect to the conflict in Eastern Slavonia, the
48
Applicant points to criminal prosecutions involving Croatian Serb elements . The Reply contains
rather lengthy recitals of alleged atrocities that were committed in the course of an armed conflict.
The highlights were repeated in or al argument, completed with videos and other photos. The
picture was further completed by some of the witnesses who testified before the Court. It is stating
the obvious to observe that the conflict had an important ethnic dimension. Ethnic hatred no doubt
figured in much of the behaviour of those responsible for the crimes that were committed, on all
sides. But there is nothing new in this material to strengthen the Applicant’s case.
49. The discussion concerning events elsewhere in Croatia is similar to the submissions
about Eastern Slavonia; Eastern Slavonia has always been the focus of the Applicant’s case. The
weaknesses in the Applicant’s discussion of Eastern Slavonia are repeated in its review of the facts
concerning the rest of Croatia. As the Applicant contends, the “same genocidal pattern analysed in
49
detail in the case of Eastern Slavonia, was repeated elsewhere in these other occupied areas” .
50. That various crimes may have been committed by forces associated with the Croatian
Serbs during the period of the conflict in Croatia is not in question. That the Respondent condemns
such activity is established by the existence of prosecutions before the courts of Serbia, of which it
50
is gratifying to see that the Applicant takes due notice . However, none of the prosecutions, be
they by the ICTY or by the courts of Serbia, have been for genocide. Nor should the possibility of
prosecutions by other States, based upon universal jurisdiction, be entirely overlooked. Although
some national jurisd ictions outside the region have undertaken universal jurisdiction cases
concerning the conflicts in the former Yugoslavia, there have been none with respect to genocide
46
MC, para. 8.16.
47MC, Chaps. 4 and 5; RC, Chaps. 5 and 6.
48RC, paras. 5.7-5.8.
49
MC, para. 1.30.
50RC, para. 5.8. - 29 -
perpetrated by Serbs in Croatia. Alone in the world, only Croatian courts seem to have considered
prosecutions of Serbs for the crime of genocide. The trials were flagrantly politicized and relied
51
upon extravagant definitions of the crime .
51. The Applicant refers to new documents emanating from the JNA, claiming that these
52
provide evide nce of genocidal intent . The language in these documents is actually quite
consistent with purely military objectives and activities. Like most terminology used in military
operations, where there is talk of “mopping up” and “destruction” of “the enemy” , it is possible to
adopt extravagant interpretations, and that is what the Applicant has done. It is also worth noting
that the Applicant interprets references to “Ustasha forces” as proof of a genocidal intent,
suggesting that this is a reference to the entire Croat population 53. That is about as absurd a
suggestion as to contend that the term “Nazi forces” is in fact a reference to all Germans at the time
of the Second World War. Incidentally, the Applicant is a lot more charitable when it comes to
interpreting the recorded words of Croatia’s former President at Brioni in July 1995.
Alleged incitement and hate speech 54
52. Both in its written and oral submissions the Applicant has made some rather summary
55
allegations identifying acts of “incitement” and “hate speech” . Certainly the existence of strong,
compelling evidence of racist propaganda associated with violence could be a relevant indicator of
genocidal intent, bearing in mind that hate speech takes many forms. Hate speech is sometimes
56
described as a risk factor for genocide . That is surely true, in a general sense, although it is
stretching things to suggest a direct causal link between hate speech and genocide. It is rather like
arguing that there is a direct relationship between the common cold and life -threatening respiratory
disease.
51
See CMS, paras. 184-199.
52RC, paras. 5.9 to 5.11.
53RC, paras. 11.40-11.45; see e.g. CR 2014/6, p. 26, para. 43; p. 58, para. 17 (Sands); p. 44, para. 10 (Špero).
54
MC, para. 8.16.2; RC, Chap. 9, para. 9.6 (b).
55MC, paras. 7.79-7.82, 8.23-8.26; CR 2014/6, CR 2014/10, CR 2014/12.
56See, for example, United Nations Special Advisor on the Prevention of Genocide, “ Preventing incitement:
Policy options for action”, Nov. 2013, available at: http://www.un.org/en/preventgenocide/ adviser/documents.shtml. - 30 -
53. At this point, let me turn to the Applicant’s assessment of the Babić case before the
ICTY, and in particular its contention that the plea agreement included an acknowledgment that the
accused had partici pated in “making ethnically inflammatory speeches aimed at fomenting an
atmosphere of fear and hatred amongst the Serb population” 57. The Applicant’s claim that the
admissions in the Babić plea agreement should be taken as “further evidence of direct and p ublic
incitement” is plainly incorrect. Further in the present context it is relevant to note that while there
has been occasional evidence of “hate speech” in the case law of the ICTY, there have been no
indictments for “direct and public incitement to c ommit genocide”, even in the Srebrenica cases.
And finally, a note of caution about reliance on plea agreements for evidence of fact. A
willingness to drop genocide charges and accept guilty pleas on lesser charges is of interest in the
same way that the inclusion of genocide charges in the indictment may be relevant. A bargain
between Prosecutor and defendant associated with an agreed statement of facts that is only
summarily endorsed by judges, who have not actually heard the evidence, should not be gi ven too
much weight.
Failure to punish?
54. Mr. President, Members of the Court, finally, there is the strange allegation that by
failing to prosecute genocidal acts, the Respondent is violating the 1948 Convention. We have
shown that various crimes per petrated by Serb combatants and others during the conflict have
indeed been prosecuted, by both the ICTY and by Serbia’s own courts. But obviously, they have
not been punished as genocide. But is this really a serious charge? Does the Applicant contend
that the ICTY Prosecutor is also breaching the Genocide Convention by his failure to prosecute the
crime?
Concluding remarks
55. Last week, the Court listened to many hours of oral submissions in which the horrors of
war were recounted. At times it borde red on the sensationalist. Counsel for Croatia apologized in
advance when ugly and disturbing pictures were displayed, but perhaps some of this was not
5RC, para. 9.52. - 31 -
entirely necessary. It was painful to watch. The details are adequately set out in the written
materials. Confronting this is difficult for all of us who cherish human life and who are repulsed
by war and racism, and the horrors that are associated with them.
56. Mr. President, Your Excellencies, over the weekend, I re- read the Bosnia decision that
this Court issued in 2007. I asked myself whether a well -informed observer who had attended
these proceedings and studied the file would consider a case of genocide to be made out during the
Croatian conflict in 1991 and early 1992, in light of the fact that, in the 2007 Judgment, the Court
had concluded that it had not been made out during the Bosnian conflict from 1992 until 1995,
prior to the Srebrenica massacre. In 2007, the Court had detailed materials from ICTY to draw
upon, just as it does today, with respect to the events in Croatia. The only difference is the absence
of prosecutions for genocide with respect to Croatia, a fact that counsel for Croatia have rather
slyly tried to turn to their advantage, by suggesting that this time the ICJ has its hands free as a
court of first instance.
57. I would urge the Court to revisit the material on which it relied in the Bosnia case. There
too we find the JNA, we find Arkan, we find Šešelj: they are all there. This honourable Court
relied on findings of fa ct by the Trial Chambers in the Bosnia case, where conclusions were
reached about terrible atrocities, where convictions were recorded for war crimes and crimes
against humanity, and where the highest sentences were recorded higher, indeed, than anything
imposed in the Croatian prosecutions. This Court considered the terrible siege of Sarajevo, as you
will consider here the siege of Vukovar. In the Bosnia Judgment, the Court referred to the report of
the Commission of Experts that 10,000 people were kil led or missing in Sarajevo. It also cited the
Galić Trial Chamber decision that reported a monthly average of over 100 killed from September
to December 1992 and an average of 64 per month throughout 1993 58. An expert report submitted
by the Prosecution i n the Milošević trial estimated 9,502 casualties, divided almost equally
between civilians and combatants 59. These numbers exceed considerably those in evidence before
the Court concerning the siege of Vukovar. Of course, for each individual victim, the g rief and
5Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 144, para. 247.
5ICTY, Slobodan Milošević case, Prosecutor Ex. 548, Death toll in the Siege of Sarajevo, April 1992 to
December 1995, A Study of Mortality based on Eight Large Data Sources, 18 Aug. 2003. - 32 -
suffering is the same. I do not mean, in offering this comparison, that the tragic consequences for
the individual Croats in Vukovar were any less than those of the inhabitants of Sarajevo. But this
Court did not conclude that genocide was perpe trated during the siege of Sarajevo. Why would it
decide otherwise with respect to Vukovar?
58. In the Bosnia case, the Court cited, and accepted, a finding of the ICTY Trial Chamber
that “a comprehensive pattern of atrocities against Muslims in Prijedor municipality in 1992 ha[d]
been proved beyond reasonable doubt” 6. This Court adopted the conclusions of another Trial
Chamber, that, in the Omarska camp “evidence shows that several hundred Bosnian Muslim and
Bosnian Croat civilians from the Prijedor are a were detained, and where killings occurred on a
61
massive scale” . I would submit to the distinguished Members of the Court that the evidence they
have before them in this case does not, either in quantity or quality, go beyond what you considered
and accepted in the Bosnia case. Yet in 2007, this honourable Court said it was not convinced that
it has been “conclusively established that the massive killings of members of the protected group
were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy,
in whole or in part, the group as such”. The Court concluded: “The killings outlined . . . may
amount to war crimes and crimes against humanity, but the Court has no jurisdiction to determine
whether this is so.” 62
59. Mr. President, Your Excellencies, in Croatia’s oral submissions last week, it never spoke
to this problem with its case. Was not the Court entitled at the very least to an attempt to
differentiate the facts in this case from those that were studied and considered in the 2007
Judgment? Because, if Croatia cannot explain the distinctions, it is legitimate to ask why this
Application is before the Court at all. Unless, of course, Croatia is inviting the Court to discard its
Judgment in Bosnia and set out in a new direction. But it has not dared to make such a suggestion.
What we are left with, then, is a warmed -over version of the plate that the Court was served in
60Application of the Convention on the Prevention and Punishment of the Crim e of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 149, para. 261.
61Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 150, para. 264.
62
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 155, para. 277. - 33 -
2007, taken out of the refrigerator where it was put in 1999 and reheated in the microwave. This is
a case, as a famous baseball player once said, of déjà vu all over again.
60. Mr. President, Members of the Court, it is difficult to see how this Court can reach any
different conclusion with respect to Croatia’s claim in these proceedings th an what it decided in the
Bosnia case. Croatia’s claim, premised on the Genocide Convention, is unfounded. It always was,
although as the law has developed over the past 15 years, with clarifications in the case law of this
Court and of the specialized i nternational criminal tribunals, this has become clearer and clearer,
and clearer.
61. Mr. President, this concludes my presentation this morning. May I kindly invite you to
give the floor to Mr. Lukić.
The PRESIDENT: Thank you very much, Professor Schabas. In order not to interrupt the
pleading of Mr. Lukić, the Court will take a break now for 15 minutes and then he will have an
opportunity to address the Court. So the sitting is suspended for 15 minutes.
The Court adjourned from 11.10 a.m. to 11.30 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and I give the floor to
Mr. Lukić. You have the floor, Sir.
Mr. LUKIĆ:
THE Q UESTION OF THE S TATE R ESPONSIBILITY
1. The alleged control of the Respondent over the JNA
Introduction
1. Mr. President, distinguished Members of the Court. It is my great honour and privilege to
appear again before this Court. My colleague, Mr. Dušan Ignjatović and I will be addressing the
Court on behalf of the Respondent on the issue of attribution. Our arguments will cover two
separate and distinct issues, namely: - 34 -
(a) the Respondent’s alleged responsibility for alleged crimes committed by the Yugoslav People’s
Army (hereinafter “the JNA”) and the Yugosla v Army (hereafter “the VJ”), which I will be
presenting; and
(b) the Respondent’s alleged responsibility for alleged crimes committed by other participants of
the armed conflict, which will be presented by Mr. Ignjatović. You will also, later on, hear
from Mr. Ignjatović on the issue of the obligation to prevent and punish the crime of genocide.
2. At the outset, the Respondent wishes to note, however, that it stands by the positions and
the arguments related to attribution expressed in great detail in the Counter -Memorial and, more
specifically, in Chapter V of the Rejoinder. It nevertheless firmly believes that the Court will not
need to go into the issue of attribution, since the arguments presented to you up until now will
surely suffice to convince the Court that there is no basis for considering Serbia’s responsibility
pursuant to the Applicant’s allegations.
Attribution on the basis of Customary international Law
3. Mr. President, unless there are special reasons to depart from them (as Professor Tams has
discussed yesterday), the International Law Commission’s Articles on Responsibility of States for
Internationally Wrongful Acts (hereafter “the ILC Articles”) 6, adopted in 2001, represent the legal
framework within which the issue of attribution is to be discussed, as noted by the Court in the
64
Bosnia case . The same test should be applied here in order to give an answer on whether the acts
of individuals or organs who might have been, according to the findings of the Court, physical
perpetrators of the alleged crimes could be attributed to the Respondent and whether the Republic
of Serbia should carry responsibility under international law for such alleged crimes.
4. According to the Applicant’s submi ssions, the JNA was the Respondent’s organ in the
65
sense of Article 4 of the ILC Articles throughout the time period in question . This represents the
63“Responsibility of States for Internationally Wrongful Acts”, General Assembly resolution 56/83 of
12 Dec. 2001, UN doc. A/RES/56/83, Annex (hereafter “ILC Articles”).
64Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 199, para. 379 (hereafter “Bosnia
Judgment”).
65
See Memorial of Croatia (MC), para. 8.47. - 35 -
primary basis for a finding of attribution, according to the Applicant. Nonetheless, the Applicant
66
also offers an alternative theory by invoking Article 8 and Article 10 (2) of ILC Articles .
5. As a matter of fact, the Respondent did not exist prior to 27 April 1992 and cannot be
therefore held liable, in any form or manner, for any of the acts or omissions noted by the
Applicant. The time frame in which the alleged events took place and the status of the Respondent
are therefore central to establishing parameters of possible attribution.
6. That having been said, the Respondent in no way concedes to the position that the acts
which took place after the creation of the FRY, Federal Republic of Yugoslavia, on 27 April 1992,
could be attributable to the Respondent. The Respondent merely wishes to underline that
international law sets an absolute bar as to t he consideration of events which pre -date the creation
of the Respondent.
7. Let me reiterate that, in the Memorial, the Applicant refers to roughly 120 events as
alleged acts of genocide. Out of those 120, only eight took place after 27 April 1992. Indeed, the
vast majority of those 120 events actually happened already in 1991. What is more, the Applicant
has not provided any evidence to show that after the creation of the FRY, members of the VJ, as an
organ of FRY, were involved in any alleged crimes.
8. Mr. President, Members of the Court, before addressing the Applicant’s argument on
attribution in detail, allow me to make a preliminary point a preliminary point that is however of
considerable importance.
9. In essence, in its pleadings on attr ibution, the Applicant ignores an essential distinction
drawn in the law of State responsibility, namely that between conduct attributable to a State on the
one hand, and conduct attributable to a movement on the other. My colleagues,
Professors Zimmermann and Tams, have addressed various aspects of this point already; but it
arises here in a separate way and is worth further exploring.
10. As my colleagues have shown, for a whole range of reasons, the Applicant’s claim
relating to the events pre-dating 27 April 1992 cannot be based on Article 10 (2) ILC Articles since
(a) that provision did not reflect customary international law in 1991;
6See Reply of Croatia (RC), para. 9.67; CR 2014/10, p. 38, para. 15. - 36 -
(b) The provision is no substitute for rules of State succession; and
(c) the provision simply does not cover inst ances like the present one where there was no
“movement” in the sense of Article 10 (2) of the ILC Articles; and if there was one, it certainly
did not succeed.
11. Of course, if only one of these arguments is upheld, we need not to go any further. As a
matter of fact the Applicant’s claim, which, as shown, almost exclusively draws on conduct
pre-dating 27 April 1992, depends on its stretched construction of an already highly exceptional
attribution rule.
12. Mr. President, Members of the Court, at the present stage, the Respondent would like to
draw the Court’s attention to a separate, albeit closely related, matter. Even when addressing
attribution proper (as opposed to questions of jurisdiction and admissibility), the Applicant’s
attempt to stretch the law of State responsibility continues and continues in an aggravated form.
13. In the sections on jurisdiction and admissibility, Croatia at least engaged with
Article 10 (2) ILC Articles accepting that it was not a regular rule of attribution. Yet, when
arguing attribution of conduct in detail, this caution was abandoned. Instead of applying
Article 10 (2), dealing with movement responsibility, we see Croatia invokes Articles 4, 5 and 8 of
ILC Articles the normal rules of attribution developed for States. It is simply taken for granted
that the JNA was a part of Serbia it was said to have been a State organ, in the sense of Article 4
ILC Articles, of a State that did not exist yet.
14. Mr. President, attribution in this case is exclusivel y to a movement, not to a State. No
State of Serbia existed before 27 April 1992. The SFRY existed. And Serbia submits that when
confronted with that exceptional case of movement responsibility, we cannot simply apply the
standard rules of attribution in the way that Croatia does.
15. To be specific in rebutting Croatia’s claims is difficult because Croatia does not clearly
identify the movement in question. As Professor Tams noted yesterday, at times it refers to the
alleged Greater Serbia movement in a very loose way, seeking to bring all forms of activity under - 37 -
Article 10 (2). Professor Tams has already shown that this attempt must fail as the loose grouping
67
is not a movement. It lacks distinct structures .
16. Croatia at the same time also refers to the Socialist Republic of Serbia, one of the six
constituent Republics of the SFRY, a non- State entity until April 1992. So perhaps that is the
alleged movement? But if it is, then how can conduct of the JNA, on which Croatia relies, be
relevant? The JNA may have been many things, but it never was an organ of the Socialist Republic
of Serbia. Its conduct could only be attributed to Article 10 (2) permitted the attribution, to a
movement (in the exceptional case of movement responsibility) of equival ents to the Articles 5 and
8 of the ILC text.
17. On all those questions we have heard very little from Croatia. In response to what we
have heard, Serbia puts two legal proposals to you:
18. First, in Serbia’s reading, in the exceptional case of mov ement responsibility, there can
be no equivalent to Article 8 of the ILC text. The movements responsibility is for, as Special
68
Rapporteur Crawford put it in 1998, “organs” of the movement . Or as the ILC Commentary
states, it is for the “apparatus” to th e movement 69. It is not for acts of the non- State actors outside
of the movement structures. The ILC Commentary expressly excluded conduct of individual
70
members of the movement .
19. Second, in Serbia’s submission, even if the regular rules on attribution could be adapted
and made to fit the situation covered with Article 10 (2), it is clear that in applying it by analogy,
the Court must take account of the special nature of Article 10 (2) of the ILC Articles.
20. Mr. President, to re-iterate the point, this is an exceptional case, not a regular form of
attribution to a State. Therefore, to the extent that an equivalent to Article 8 (or 5 for that matter)
exists at all, these analogous cases must certainly be interpreted restrictively, if they apply at a ll. In
the light of these considerations and by subsidiary argument, permit me now to address in more
detail the substance of the Applicant’s claims relating to the conduct of the JNA.
67
CR 2014/14 (Tams).
68Yearbook of the International Law Commission ( YILC), 1998, Vol.II (1), 57.
69YILC, 2001, Vol. II (2), 50, para. 4.
70
YILC, 2001, Vol. II (2), 50, para. 5. - 38 -
The JNA was not an organ of the Respondent
21. Mr. President, Memb ers of the Court, the Applicant makes numerous submissions in
relation to the involvement of the JNA, namely that the JNA had played a “ central role . . . in
Genocidal conflict in Croatia” 7. Yet, it misrepresents the role and the actions of the JNA. As a
matter of fact, during the time when the JNA existed, its members were involved in not more than
72
38 incidents, even accounting to the claim presented by Croatia . As a result, it creates a distorted
narrative of the JNA, preventing an objective and reaso ned analysis. This needs to be corrected.
The actions and roles of the Parties during the conflict, as presented by the Applicant, are
inaccurate and placed out of context, forming a misleading picture and providing a one -sided
version of events. The Respondent proceeds to addressing this issue.
22. As we have already noted, in order for one to claim that the JNA was the organ of the
Republic of Serbia in the sense of Articles 4 and 5 of the ILC Articles, one must prove that it was
such an organ either de jure, based on internal regulations in force in Serbia at that time, or,
73
irrespective of such regulations, a de facto organ, based on the “complete dependence” test .
23. The role and the status of the military in the former Yugoslavia during the period covered
in the Memorial was regulated by the Constitution and the relevant laws of States which existed
during the time period in question, namely the SFRY before 27 April 1992, and the FRY thereafter.
The main role of both armies, the JNA during the e xistence of the SFRY, and the VJ after the
creation of the FRY, was defined as securing independence, sovereignty, territorial integrity, and
public order, as is the case with numerous other armies around the world 74.
24. Legislative changes which took place after April 1992 were substantive, not mere
window dressing. The position of the Federal Secretary for National Defense, held by
General Veljko Kadijević during the relevant time period, was abolished. During the SFRY, this
position encompassed great power and was formally a superior to the JNA. The Federal Secretary
for National Defense was subordinate to the Presidency of the SFRY. Once this position was
71
See RC, para. 4.133.
72See RS, para. 1010.
73Application of the Convention on the Prevention and Punishment of the Crimes of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 205, paras. 392-393.
74
Constitution of the SFRY, Art. 240. - 39 -
abolished by law, the relationship between the military and the Government at that time became
structurally different. The position of the Chief of General Staff became the highest position in the
Army. The General Staff ceased to be subordinated to the Ministry of Defense, and became
75
subordinate to the Supreme Defense Council and the President of the Republic .
25. The Applicant’s assertion that the JNA and VJ are one and the same entity is simply not
supported by facts, irrespective of the theoretical basis for responsibility relied on by the Applicant.
The JNA was not an organ of the Respondent in the sense of Articles 4 and 5 of the ILC Articles.
26. The Applicant argues that the JNA, while active in Croatia, acted upon the direct orders
of the Serbian leadership, in furtherance of a plan to create the Greater Serbia and to get rid of
76
Croatian from the area in question . The Applicant has not provided any evidence of such direct
orders. The position that as of July 1991, the Republic of Serbi a assumed control over the JNA,
77
which became its de facto military force, is incorrect . The Respondent has shown that the SFRY
organs continued to operate during 1991 and early 1992, and that the JNA was not a de facto organ
of the emerging FRY, or Serbia, but rather a de jure and de facto organ of the SFRY, the joint State
of both Serbia and Croatia, but also the other nations 7.
27. The Applicant goes on to argue that “Serbianization“ of the JNA started in the late
1980s, and that the JNA thereafter eme rged as a Serb -dominated army with an ideological
commitment of the goal of Greater Serbia 79. The Respondent has however presented evidence of
structural changes in the JNA which took place in 1988, at the time when the SFRY Presidency
exercised “full juri sdiction” over the JNA. We even showed that the Croatian member of the
80
SFRY Presidency at that time gave his consent to the said restructuring of the JNA .
28. Evidence provided by Croatian State officials contradicts the Applicant’s thesis on the
“Serbianization” of the JNA. In the letter signed by Želimir Latković, President of the Croatian
Military Property Succession Council, the following is stated: “out of 235 generals from Croatia at
75ICTY Perišić Trial Chamber Judgement, paras. 205 and 223.
76
See MC, paras. 8.47 and 8.54.
77See RC, paras. 4.45.
78Volumes of evidence citied in Counter-Memorial of Serbia (CMS), paras. 519-537.
79
See RC, para. 4.130.
80See Rejoinder of Serbia (RS), para. 442. - 40 -
the onset of the war, less than 7, or expressed in percentages, 3 per cent, joined the Croatian army.
Other generals stayed with the other warring party” 81. Based on these figures is it reasonable to
believe, as the Applicant suggests, that 97 per cent of the Croatian generals who stayed in the JNA
did so in order to further a genocidal plan against their own people? Certainly, a more credible
explanation would be that the remaining 222 generals believed in the SFRY, did not wish to
become part of an army which supported secession from the SFRY, and neither supported nor
condoned the dissolution of the SFRY and the break-up of the armed forces they had served in, the
JNA.
29. The evidence presented established that the JNA was, throughout the existence of the
SRFY an organ of the SFRY, financed from the federal budge t. The federal budget was
administrated by the federal Government. The federal Government was chaired by the
PrimeMinister, a Croat, Ante Marković, who resigned as the SFRY Prime Minister on
82
20 December 1991 , but the federal Government continued to exist. All actions taken by the JNA
were conducted pursuant to decisions rendered by federal institutions of the SFRY. The JNA
reported to these institutions.
30. The Presidency of the SFRY worked in full or almost full composition until the
beginning of October 1991 83. For example, President Mesić signed a ceasefire agreement on
84
1 September 1991 , while his second order from 11 September 1991 was rejected by the SFRY
Presidency 85. The Presidency also continued to function as a body in early 1992 . 86
31. The Presidency, as a collective body, had the authority of a commander -in-chief of the
JNA. The Croatian member, Mr. Mesić, was one of its members, but the decisions were rendered
87
collectively . Accordingly, disagreements with the decisions voted out by the majority of its
81
RC, Ann. 108.
82See CMS, para. 530.
83See CMS, paras. 522-529.
84
See Ceasefire Agreement, Belgrade, 1 Sept. 1991, reprinted in S. Trifunovska, Yugoslavia Through
Documents From its creation to its dissolution, 1994, pp. 334-335.
85
See Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990-1995, 2002, Vol. I, pp. 94–95 (Peace Palace Library).
86Letter of Mr. Mesić to the SFRY Presidency, 9 Jan. 1992, Ann. 26.
87See CMS, para. 524; also Arts. 313 (3) and 328 (2) & (4) of the Constitution of the SFRY, Official Gazette of
the SFRY, No. 9/1974. - 41 -
members could not have meant that the body did not have legitimacy or that it ceased to function
when Croatian representatives were against the decisions being considered.
32. Documents invoked by the Applicant have been analysed in paragraphs 458 to 462 of
Rejoinder. These documents show that the Serbian leadership did not have any authority or control
over General Kadijević. The Applicant’s submissions, such as the often quoted diary of
Borislav Jović, as well as the book by General Kadijević, clearly show that the Serbian leadership
did not have significant influence, let alone control over the JNA. The animosity between
Kadijević and Milošević was clear. Neither influence nor control could exist in a relationship
described by Borislav Jović on 25 October 1991 in his diary as, “latent distrust and close to
conflict”88.
33. This description was confirmed by Kadijević himself. In the interview he gave in 2007,
answering to the question which Members of this Court would doubtless ask him. According to
Kadijević, Milošević and Jović did not try to keep him, but they “could not wait for him to leave
and take over the command of the JNA”, and on 6 January 1992, he relinquished the duty of the
Federal Secretary. In that interview, Kadijević precisely said that, “Milošević did not really
command the JNA when I was the Federal Secretary, and from the moment I resigned, he became
89
the absolute commander of the army.”
34. This statement, made by a direct and major participant in events, who was so often cited
by the Applicant, goes to the crux of the case of attribution. Moreover, it wholly contradicts the
thesis advanced by Babić, who testified as part of the deal he struck in his plea agreement, as well
as by expert witness, Theunens, who testified as an employee of Prosecutor of ICTY.
35. Kadijević and JNA were not organs of Serbian leadership, neither de jure neither
de facto. Let me use the language of Professor Crawford “perfectly clear”.
36. The JNA was not acting in Croatia following any previous designed plan of Greater
Serbia. It is beyond doubt that the two concurred on important issues, such as a wish for the SFRY
to persevere and on the need to protect parts of the population that supported the SFRY and was
placed at risk by those who wanted the Federation to dissolve through conflict. Those acts of JNA
8Borislav Jović, Poslednji dani SFRJ, p. 402, CMS, Ann. 29.
8http://www.novinar.de/2007/10/07/kadijevic -odbio-sam-vojni-puc.html. - 42 -
were sometimes in correlation with interest of Serbian lead ership, but never on the direction, or
through control, or orders, or otherwise as a result of any dependence.
37. At the outset of the conflict, acting pursuant to orders issued by its commander, the
SFRY Presidency, the JNA played the role of a neutral peacekeeper 90. The intention behind the
actions of the JNA, contrary to the claims expressed by the Applicant, was clearly visible and
cannot be ignored. In the ICTY Mrkšić et al. and Martić cases the Trial Chambers found that
91
during the time period in question the JNA was operating as a “peacekeeping force” .
38. The Respondent does not dispute the allegations that in late 1991 the JNA became an
active participant in the conflict in Croatia. However, the involvement of the JNA did not come as
a consequence or was part of an alleged systematic genocidal plan , as the Applicant claims 9. It
was in fact a direct reaction to actions taken by Croatian forces that started targeting the JNA.
These incidents cannot be ignored or considered to be of a lesser value. Participation of the JNA in
the conflict in Croatia did not arise in a theoretical vacuum.
39. Croatian armed forces did not emerge suddenly. Croatia began pur chasing weapons for
its armed forces in late 1990 or early 1991 9. This was illegal . Croatian armed forces gradually
grew. By January 1992, the Croatian army had around 200,000 troops, while the Ministry of
Interior (MUP) had over 40,000 employees 95. Th is expansion of Croatian armed forces was not
solely motivated, as asserted by the Applicant, by a necessity to defend itself and out of fear from
the existing threat. Another relevant factor is that the new Croatian leadership had political and
military aspirations towards the territories located outside of the borders of Croatia.
90See RS, para. 450, quoting the Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of
the Yugoslav Conflict 1990-1995 (2002), Vol. I, pp. 89, 91-92 (Peace Palace Library).
91ICTY Mrkšić et al., Trial Chamber Judgement, para. 31; also ICTY Martić Trial Chamber Judgement,
paras. 162, 165.
92
See MC, para. 3.07.
93
ICTY Mrkšić et al., Trial Chamber Judgement, para. 22.
94See CMS, paras. 467 -472; also M. Špegelj, Soldier’s Memoirs (Sjećan ja vojnika), Zagreb, 2001, p. 288,
table IV: Weapons purchased with support of the Ministry of Defense of the Republic of Croatia between 5 Oct. 1990
and 15 Jan. 1991, Ann. 36.
95Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990-1995, 2002, Vol. I, p. 96 (Peace Palace Library). - 43 -
40. The Trial Chamber in ICTY Kordić case found that: “President Tuđman harboured
territorial ambitions in respect of Bosnia and Herzegovina, and that was part of his dream of a
96
Greater Croatia, including Western Herzegovina and Central Bosnia.”
41. According to the ICTY Mrkšić et al. Trial Judgement, from 9 May until 4 August 1991,
340 attacks were carried out against the JNA units and staff in Croatia, in which six JNA sol diers
97
and officers were killed and 83 were wounded . Croatian forces committed massacre of
13 JNA solders in Karlovac, after promised free passage 9. In March of 1991, before the JNA got
actively engaged in the conflict, Croatian forces successfully blocked JNA barracks in various parts
of Croatia 99. The general strategy was to block JNA barracks on Croatian territory by cutting off
water, electricity, food supply, and communications 10. On 14 September 1991, Croatian forces
101
performed a sweeping attack on t he JNA barracks and other facilities . The Croatian leadership
started treating the JNA as the enemy 102. The only reasonable and an objective conclusion that can
be reached regarding the role of the JNA in the conflict is that it happened as a result of robust and
violent actions taken by Croatian forces that targeted the JNA.
The JNA did not act on the instructions of, under the direction or control of the Respondent
42. Mr. President, Members of the Court, in order to establish responsibility of the
Respondent pursuant to Article 8 of the ILC Articles, the Applicant must meet very high standards.
The Court must be presented with fully convincing evidence 103 in respect to each operation during
which the alleged violations occurred, and not generally, in res pect of all the actions taken by
persons or groups who allegedly committed such violations 10. T he Applicant agrees with this
96
ICTY Kordić, Trial Chamber Judgement, para. 142.
97ICTY Mrkšić et al., Trial Chamber Judgement, para. 26.
98See RS, para. 453.
99
Ibid., para. 23.
100
Ibid.
101Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990-1995, 2002, Vol. I, p. 95 (Peace Palace Library).
102The Applicant offered as evidence in App. 1 Daily Report of the Federal Secretary for National Defense
Operational Center No. 1-260 dated 17 Sep., which describes 19 incidents, attacks of Croatian armed fo rces on the JNA
facilities. Those incidents took place only 48 hours prior to the Report being issued.
103Bosnia Judgment, p. 129, para. 209.
104Ibid., p. 208, para. 400. - 44 -
105
legal standard and requirement . It however failed to meet this standard. There is no evidence on
specific operations and violati ons in which the JNA took part, based on instructions of, under
direction or control of Milošević and the Serbian leadership. Allegations on Article 8
responsibility are in fact being intentionally mixed, due to lack of evidence, with a thesis on a
de facto organ of the Respondent, which are two completely separate issues.
Role of the JNA in the commission of the alleged crimes according to ICTY findings
43. Mr. President, Members of the Court, as already stated in its written submissions, the
Respondent does not dispute the fact that individual members of the JNA were involved in
106
commission of crimes in Croatia in the second half of 1991 . Their criminal responsibility was
established both by the ICTY and national courts. When establishing criminal lia bility of
individual perpetrators of crimes, none of the said courts found any connection of those crimes to
an alleged plan to commit genocide, nor had they established individual involvement in genocidal
acts. The Respondent highlights once again that none of the individuals charged with crimes
committed in Croatia were ever charged with genocide, as Professor Schabas just showed, in the
previous session. Furthermore, in the case concerning events in Croatia it was never established
that the actions tak en by individuals involving members of the JNA were undertaken upon
instructions of, under direction or control of the Respondent.
44. Nonetheless, one of the ICTY cases very relevant to the case before this Court,
Mrkšić et al., is the best example of a marked difference between the allegations being made by the
Applicant regarding the role and involvement of the JNA in the events in Croatia and the actual
findings of a court of law.
45. The Respondent has analysed the findings of the Mrkšić trial judgement in regard to the
role of JNA in the events that took place in Vukovar, and its final findings in regard to the liability
107
of the convicted JNA officers . However, in our oral submissions we need to pay attention
particularly to certain arguments of the Applicant in regard to the role of the JNA in the events in
Ovčara and Velepromet. According to the Applicant, the findings of the Mrkšić judgement
105
See RC, para. 9.61.
10See RS, para. 470.
107
RS, paras. 509-514. - 45 -
regarding these crimes are the “worst examples of Phase 4 of the events at Vukovar” 10. Also, the
Applicant’s claim that the Respondent is trying “to minimize the factual findings of the Trial
Chamber in the Mrkšić judgment . . . they powerfully support the Applicant case” 109. These
allegations by the Applicant raise serious concerns.
46. Mr. President and Members of the Court, let us look together whether the Mrkšić et al.
judgement indeed does support the Applicant’s case. The question is: are there any findings of the
Mrkšić judgement that were omitted by the Applicant in the case study? And how do these
findings undermine the Applicant’s case of actus reus and mens rea of genocide?
47. First, the Trial Chamber in Mrkšić et al. case found that Serb forces treated the victims of
the crimes charged in the indictment differently from the civilian population. They were selected
and separated because of their known or believed involvement in the Croatian resistance against the
110
Serb forces . Those members of the Croatian armed forces tried to find shelter in the local
hospital, by taking patient’s clothes and disguising themselves as patients 11. The objective of the
JNA was to remove all persons, including patients, who it believed were involved as combatants in
the Croat forces, from the hospital in order to send them to the prison camp operated by the JNA
112
and located in Sremska Mitrovica .
48. Second, the Applicant, through Sir Kier Starmer, claimed that the ICTY found that
Major Šljvančanin played a key role in preventing the European Community Monitoring
113
Mission (ECMM) and ICRC representatives from stoppin g the “Death trips to Ovčara” .
However this is not correct. The Trial Chamber found that Major Šljivančanin did not bear any
responsibility for the murders of those prisoners, neither through the participation in joint criminal
enterprise, or aiding and abetting or any other mode of responsibility. The Mrkšić et al. Trial
Chamber explicitly found that Major Šljivančanin, when preventing the ECMM and ICRC from
acting and denying them access to hospital was not conducted with the purpose or intention of
108CR 2014/8, p. 45, para. 76 (Starmer).
109
Ibid., p. 46, para. 80.
110Mrkšić et al., Trial Chamber Judgement, para. 476.
111Ibid., paras. 109 and 602.
112
Ibid., para, 657.
113CR 2014/8, p. 40, para. 51 (Starmer). - 46 -
114
committing the killings . Plainly, the Applicant’s allegations to the contrary are unsupported by
the ICTY 11. True, such acts were not in conformity with the Zagreb agreement, however they had
nothing to do with the dolus specialis of genocide.
49. The Trial Chamber also found that Colonel Mrkšić, Commander of the JNA forces in
Vukovar, had changed the initial plan of transporting the detainees to a detention facility, without
116 117
prior consultations with any of the authorities in Belgrade . That was his per sonal decision .
He gave no order to the Serb TO and the paramilitary forces that were then at Ov čara and who later
118
executed the prisoners of war .
50. Third, contrary to the Applicant’s claims 119, the ICTY findings do not support the claim
that the JNA officers endorsed or were involved in beatings in Ovčara, nor is there any evidence of
120
the involvement of any JNA personnel in the excavating machine engagement .
51. Mr. President, Members of the Court, all these findings constituted the basis for the final
conclusion in the Mrkšić trial judgement that the joint criminal enterprise to kill the persons taken
from Vukovar Hospital did not exist, or that it involved any of the JNA officials 121. It is
noteworthy that the Prosecution before the ICTY did not appeal this finding in the judgement.
52. Finally, regarding Velepromet, the Trial Chamber findings, which concern the role of the
JNA, were also omitted by the Applicant. The Applicant did mention the finding of the Trial
Chamber that Velepromet was not wi thin the JNA’s authority, however it did not mention that the
prisoners, who were presented in Velepromet during the night of 19 November 1991, were taken
away from Velepromet during the same night by the JNA, despite the attack conducted by the
122
paramilitaries . Mr. Ignjatović will address this issue with more details.
11Mrkšić et al., Trial Chamber Judgement, paras. 604 and 658.
115
CR 2014/8, p. 40, paras. 51-53.
11Mrkšić et al., Trial Chamber Judgement, para. 586.
11Ibid.
11Ibid., para. 617.
119
CR 2014/8, p. 44, para. 68.
120
Mrkšić et al., Trial Chamber Judgement, paras. 596 and 601.
12Ibid., paras. 569-608.
12Mrkšić et al., Trial Chamber Judgement, para. 171. - 47 -
53. In addition, the Trial Chamber also found that all 181 members of the Croatian forces
who surrendered two days before these events, had been transferred in the detention facility in
123
Mitrovica . Civilians not suspected of involvement in the Croatian forces were evacuated from
Velepromet at some time on 19 and 20 November 1991 to the destinations in Serbia and other parts
124
of Croatia, in accordance with their free choice . All the references you can find in the footnotes
for these findings in the judgement. These findings confirm that acts of JNA were carried out
without any discriminatory intent, and especially without required mens rea for genocide.
54. Mr. President and Members of the Court, as you can see the Applicant’s reliance on the
Mrkšić judgement is not accurate. It is based on a selective reading of the Judgement out of
context and in part. In the end of this analysis of the Mrkšić judgement, we will ask the same
125
question as Mr. Starmer: “What a test of Serb intent this would prove to be?” Yes,
Mr. President, Members of the Court, as Mr. Starmer said, you know the answer.
55. The Applicant relies heavily on the ICTY judgement in the Martić case when it comes to
the questi on of attribution of responsibility to the Respondent and the JNA. In the case of
Mr. Martić, as Professor Schabas just explained, the Trial Chamber rendered the conviction finding
that he was part of a joint criminal enterprise. He was convicted of crim es against humanity and
violation of laws and customs of war. The Applicant however misinterprets and misapplies the
factual findings from the judgement in this case in respect to its genocide claim due to the
fundamental misunderstanding of the Chamber’s findings, and an incorrect interpretation of the
evidence regarding the common plan and the goal of the joint criminal enterprise and the
conclusions reached by the Chamber.
56. The Applicant concedes that forcible transfer or displacement (ethnic clean sing) may in
certain circumstances constitute a genocidal act contrary to Article II (c) of the Genocide
Convention, if committed with the necessary intent 12. The ICTY Trial Chamber in the Martić case
found that the execution of a political goal uniting al l territories populated by Serbs in Croatia and
123
Ibid., para. 155.
12Ibid., paras. 168 and 160.
12CR 2014/8, p. 39, para. 47.
126
See RC, para. 9.47 (iii). - 48 -
Bosnia and Herzegovina with Serbia proper did necessitate forcible removal of non -Serbian
population from SAO Krajina and the Republic Srpska Krajina 12. The judgement however does
not mention at any point the element of “destroying the group”, as the Applicant claims. It is not
mentioned in respect to any findings or a single piece of evidence. On the contrary, an analysis of
the findings of the Trial Chambers can only lead to the same conclusion regarding t he exercise of a
joint criminal enterprise to forcibly remove non -Serbian population and individual responsibility of
Milan Martić, a participant in that joint criminal enterprise. The crimes Milan Martić was
convicted of under the joint criminal enterpr ise theory of liability are deportation and forcible
transfer. He was also convicted of other crimes, namely murder, illegal imprisonment and torture,
plunder and destruction but, according to the Chamber, these crimes fell outside of the scope of the
common purpose of joint criminal enterprise (JCE) 12. An equally important finding of this
judgement, contrary to the position taken by the Applicant, is that the common purpose of creating
one State was being executed through a plan which involved displacement of the people, not
destruction of the group.
57. This, obviously significant distinction was crucial for this Court in the Bosnia case. The
Court at that junction referred to the findings in the Stakić case which states: “[t]he expulsion of a
group or part of a group does not in itself suffice for genocide” 129.
58. Since the Applicant is primarily relying on the joint criminal enterprise theory of liability
in its genocide thesis, the Respondent wishes to refer, at this point, to statements made by the
Applicant:
“The ICTY’s jurisprudence in relation to joint criminal enterprise theory and
provision of the Statute in which this theory is alleged contain by ‘implication’ is not
in unison and is not consistent with the principles of legal certainty and justice.”
(Emphasis added.)
and
“The extensive application of JCE theory to the entire political and military
structures of state and to other ‘known and unknown’ persons does not fulfill the
requirement of precise charges and may produce wrong impressi on of ‘political
influence’ on international criminal justice system.” (Emphasis added.)
127
Martić, Trial Chamber Judgement, para.445.
12Ibid., para. 454.
129
Bosnia Judgment, p. 123, para. 190. - 49 -
59. These two sentences represent the official position of the Government of Republic of
Croatia, stated in its Conclusions dated 15 August 2011 (hereafter “Conclusi ons”), which were
distributed to all diplomatic missions in the Republic of Croatia 13. In the said Conclusions,
Croatia’s Government fiercely criticized the decision of the ICTY in the case of Croatian generals
Gotovina and Markač dated 15 April 2011, whic h was rendered based on the joint criminal
enterprise theory of liability. Opinions expressed in the Conclusions are clearly contradictory to
the Applicant’s submissions in this case which extensively refer to the ICTY jurisprudence on joint
criminal enterprise.
60. It seems obvious that the Applicant is seeking application of double standards when it
comes to interpretation of international law. Accordingly, if Croatians are facing charges based on
joint criminal enterprise theory of responsibility, th e applicable legal standards are seen as not
unified and inconsistent with principles of legal certainty and justice. The Applicant is thereby
revealing that its general approach and interpretation of applicable legal standards, factual findings,
and jurisprudence of the ICTY is wholly dependent on its interests in a particular case 13.
Conclusions advanced by the Respondent in the light of the ICTY findings
61. Mr. President, allow me to make conclusions of the role of the JNA in the light of the
ICTY findings. After a thorough analysis of and comparison between the evidence presented in
this case and the findings of the ICTY in its cases which deal with crimes committed in the
Republic of Croatia, in the period from 1991 to 1995, the following conclusions can be drawn:
(a) individual members of the JNA, including a number of senior officers, were involved in a
number of crimes listed by the Applicant;
(b) a number of senior officers of the JNA were found to be members of the joint criminal
enterprise, whose goal was the creation of one State which would bring together all Serbs and
was being implemented through deportation and forcible transfer of non- Serbian population.
Nonetheless, none of those officers faced charges before the ICTY for those crimes;
13Conclusions of the Government of the Republic of Croatia dated 15 April 2011, communicated to the
diplomatic missions accredited in Croatia with the Diplomatic Note No. 2081/11 of 19 April 2011 (Ann. 75). For the full
referenced text, see RS, para. 422.
131
The Respondent wishes to remind the Court that the Applicant claimed that the Respondent is the one who
“distorts the ICTY case law” (see RC, para. 5.83). - 50 -
(c) crimes against humanity were committed exclusively on the territory of SAO Krajina, in the
period from late 1991 to early 1992. There were no other convictions for commission of
crimes against humanity in other parts of Croatian territory within the t ime frame offered in the
Memorial;
(d) there were no convictions for extermination, as a crime against humanity, within the set time
frame;
(e) members of the JNA who were convicted of violation of the laws and customs of war were
found guilty only for a iding and abetting through failure to act, and pursuant to command
responsibility doctrine in relation to crimes committed in Vukovar and Dubrovnik.
Conclusion
62. Mr. President, Members of the Court, at the very end of my presentation, I would like to
stress the following once again. The Applicant has not provided legal or factual support for
attribution of responsibility to the Republic of Serbia for alleged actions taken by the JNA, whether
it be direct responsibility or responsibility through the Re spondent’s alleged control over the JNA,
as required by the ILC Articles. As for the VJ, which was an organ of the Respondent in the sense
of ILC Articles, the Applicant has not provided legal or factual support for claiming that members
of the VJ took part in acts prescribed by Articles 2 and 3 of the Genocide Convention.
63. With this I conclude my presentation, Mr. President. I am grateful for your attention and
I would appreciate it if you would like to give the floor to my colleague, Mr. Ignjatović. Thank
you.
The PRESIDENT: Thank you very much Mr. Lukić and I call on Mr. Ignjatović. You have
the floor, Sir.
Mr. IGNJATOVIĆ: Mr.President, distinguished Members of the Court, it is my privilege
and honour to appear before you for the first time. - 51 -
T HE Q UESTION OF THE STATE R ESPONSIBILITY
2. Alleged Responsibility for Other Participants in the Conflict
1. I will present the Respondent’s position regarding the alleged responsibility of the
Republic of Serbia for actions taken by other participants of the armed conflict identified by the
Applicant in the Memorial, its subsequent submission and the oral arguments. By other
participants of the armed conflict we are namely referring to Krajina armed forces, volunteer or
“paramilitary” formations, and t he Territorial Defence of Serbia, units of “TO Serbia”. Krajina
132
armed forces which included local territorial defence forces (TOs) , Krajina Militia or
“Milicija Krajine” — and the Krajina Ministry of Internal Affairs or “Krajina MUP” 13. They
were subsequently organized as the Serbian Army of Krajina (SVK) and Krajina MUP.
2. In addition to the above -mentioned, I will also present actions taken by the Republic of
Serbia aimed at prosecuting and punishing those responsible for crimes committed in the territory
of the former Yugoslavia. These actions entail both co -operation with the International Criminal
Tribunal for the former Yugoslavia, “the ICTY”, and war crimes trials before domestic courts.
3. We emphasize that the questions related to attri bution are elaborated in detail in the
Counter-Memorial and, more specifically, in Chapter V of the Rejoinder. The Respondent stands
by the positions and the arguments expressed in its written submissions.
4. Let me also note that, obviously, as far as acts pre-dating 27 April 1992 are concerned,
these questions will only arise should you find that, indeed, Serbia in these proceedings, arising
under the Genocide Convention only, can be held responsible, as a matter of law, for events prior to
this date, prior to 27April 1992.
5. Mr. President, Members of the Court, the Applicant’s approach to identifying participants
of the armed conflict in Croatia is overly simplified and partisan. In the third chapter of the
Memorial entitled “The JNA and the Parami litary Groups”, the Applicant deliberately mixes
together all the different volunteer groups that were fighting against Croatian forces together with
forces of SAO Krajina and the RSK, referring to them as “Serb paramilitary groups”. The
Applicant is ther eby intentionally trying to hide and misrepresent facts that do not support its
13Territorial Defence (Teritorijalna odbrana) armed forces organized on the territorial basis.
13MUP (Ministarstvo unutrašnjih poslova) Ministry of Internal Affairs. - 52 -
version of the events. More specifically, by referring to various formations as one group, omitting
to note their key and obvious differences, the Applicant is in fact trying to show that they were all
part or under the control of the JNA which should accordingly be held responsible for all of their
actions.
6. But the confusion related to the differentiation of armed groups is not only confusion
deliberately created by the Applicant. It also mixes the grounds for the alleged responsibility of the
Republic of Serbia, leaving it open to what is the relevant norm of attribution so as to provide for
the alleged responsibility of the Respondent.
7. In particular, as shown this morning by Mr. Lukić, Croatia has not said anything on how
acts could be attributed to the alleged movement in the first place and how they could then, under
Article 10 (2) of the ILC Articles on State Responsibility if that norm applied be attributed to
the Respondent. Indeed, to reiterate the questions raised by my colleague, can a movement have
de facto organs and if it can, could de facto organs of a movement then additionally control some
other external actors and all this within the narrow parameters of movement responsibility?
8. Even if the regular rules of attribution were to apply in a scenario covered by
Article 10 (2) of the ILC Articles on State Responsibility, as Croatia seems to assume, it has
remained deliberately vague whether it is Article 4, or Article 5, or Article 8 of the ILC Rules on
State Responsibility that Applicant Croatia wants the Court to apply to the acts of the actors I have
mentioned.
9. Once again we believe that the behaviour of the Applicant is deliberate and inten tional
directed to additionally confuse the Court.
10. The Respondent, however, takes the position that it is not responsible for actions taken
by the above-mentioned participants of the conflict and that their actions cannot be attributed to it
either pursuant to either Article 4 or Article 8 or some other norm of attribution, even if the regular
rules of responsibility were to apply. These participants were neither de jure nor de facto organs of
the Respondent, nor had they acted on the instructions, or under the directions or control of the
Respondent. The Respondent therefore cannot be held responsible for their actions either directly
or indirectly through the alleged responsibility of the JNA/SFRY. - 53 -
11. In order to elaborate our position, I will go through the facts as they relate to the conduct
of the above-mentioned participants to the conflict, focusing on control allegedly exercised by the
JNA and the Respondent.
The PRESIDENT: Mr. Ignjatović, I think the interpreters into French would appreciate it if
you were to speak a little more slowly, please.
Mr. IGNJATOVIĆ: Sorry.
The PRESIDENT: Please, proceed.
Mr. IGNJATOVIĆ:
2.1. Alleged control exercised by the JNA
12. The Applicant claims that the JNA had command and control over all joint military
operations of SAO Krajina armed forces. This claim is, however, not based on facts, nor is it
supported by evidence. For this reason, it must be dismissed.
13. As previously mentioned, in addition to the JNA, other relevant participants of t he
conflict in Croatia were: (a) Krajina armed forces, including forces of MUP Krajina, (b) volunteer,
or “paramilitary” units, and (c) TO Serbia units, that is the Territorial Defence units of Serbia.
14. As a first step, it is important to analyse the relationship of each of these participants with
the JNA separately. And I will turn now to the relationship between the JNA and Croatian Serb
Forces.
Relationship between the JNA and Croatian Serb forces
15. During the period of 1990 to 1991 the Serb population in Croatia has been establishing
its own political and armed structures Serbian autonomous regions (SAO) and military forces.
16. Local Serb forces have been emerging from the local Territorial Defence units and MUP
units on the territory of municipalities in Croatia with majority or a substantial minority of Serbs. - 54 -
17. The SAO Krajina Serbian autonomous regions Krajina was proclaimed on
134
21 December 1990 .
18. On 4 January 1991 SAO Krajina established the Secretariat or Ministry of the I nternal
135
Affairs (MUP Krajina) .
19. On 29 May 1991 the Krajina Assembly established “special purpose units” and named it
Militia of Krajine, or “Milicija Krajine”. Milicija Krajine was under the authority of the SAO
Krajina Ministry of Defense 136.
20. On 1 August 1991 the Krajina Government proclaimed Milicija Krajine and TO Krajina
forces to be Krajina armed forces. The Krajina armed forces were under the command of the SAO
137
Krajina Prime Minister .
21. Local TO units were also established in two other S erbian autonomous regions on the
territory of Croatia that is, SAO Western Slavonia and SAO Slavonia, Baranja and Western
Sirmium, or Western Syrmia. Most of these units originated de facto from the former TO units of
the TO Croatia.
22. The SAO Krajina was transformed into the Republic of Srpska Krajina (RSK) on
19 December 1991 and it was subsequently joined by the other two Serbian autonomous regions in
138
Croatia in February 1992 .
23. The RSK exercised de facto control over substantial territory and had an independent
government and organized armed forces.
24. The process of formation of the Serbian Army of Krajina (SVK) was formally finished
139
on 18 May 1992, with the amendments to the RSK Constitution .
25. Military and police units in the Serbian autonomous regions and subsequently in the RSK
were created and organized according to the laws of these regions and then of the Republic of
Srpska Krajina, and not under the internal law of either the SFRY or the Federal Republic of
134See Counter-Memorial of Serbia (CMS), para. 610.
135
See CMS, para. 610.
136See CMS, paras. 494 and 611.
137See CMS, para. 612.
138
See CMS, para. 496.
139See CMS, para. 618. - 55 -
Yugoslavia or the Repub lic of Croatia. Consequently, the armed forces of the SAO Krajina, and
other Serb regions in Croatia, as well as the RSK, were not de jure organs of either the Socialist
Federal Republic of Yugoslavia or the Federal Republic of Yugoslavia.
26. The forces of the SAO Krajina and other ethnic Serb regions in Croatia, as well as the
Krajina MUP units, fought against the Croatian forces at the beginning of the conflict
independently of the JNA. When the JNA started to fight the Croatian Government forces, it
co-operated with the TO Krajina and MUP Krajina. On some occasions the TO and the MUP units
of Krajina were subordinated to the JNA, but this required prior approval of the relevant
TO commander or the SAO Krajina Minister of Interior, respectively 140.
27. Cases of such subordination could occur only during the period of 1991 to 1992, when
the JNA was there, and in this regard only the responsibility of the SFRY and not of the FRY, i.e.
of Serbia.
28. In order to attribute the conduct of the Krajina and ot her Serb regions in Croatia TO and
MUP units to the SFRY, the Applicant needed to prove in each specific case not only that the
Croatian Serb units were actually fighting together with the JNA, but also needed to specify the
nature of their relationship was it co -ordination, subordination or something else. Only then
could one possibly discuss whether those units perhaps in concrete specific occasions acted as de
facto organs of the SFRY or were under its direction or control.
29. Surprisingly, the Applicant did nothing of that sort in its written submissions.
30. The Applicant claims that “the ICTY has found as a fact that the participation of the TO
(volunteer groups), the Milicija Krajine, the MUP, and paramilitary groups in the commission of
the crimes in Croatia invariably occurred under the direction and control of the JNA”. As the proof
for this assertion the Applicant offers the ICTY judgements in the case of Martić and in the case
Mrkšić et al.
31. The Applicant’s claim is, however, misleading and it is wrong. The above -mentioned
ICTY judgements do not prove that the crimes found to be committed by the forces of Croatian
14Prosecutor v. Milan Martić, IT-95-11, Judgement, 12 June 2007, para. 135 and para. 142. - 56 -
Serbs can be attributed to the JNA/SFRY either on the basis of Article 4 or on the basis of Article 8
of the ILC Articles on State Responsibility.
32. The judgement in Martić makes a clear distinction between the JNA and the forces of
Croatian Serbs. Thus, in paragraph 344 of the judgement, the Trial Chamber concludes:
“Furthermore, evidence shows that the [SAO Krajina] leadership established the armed forces of
the SAO Krajina, made up of the TO and the Milicija Krajine, and co-operated with the JNA in
organizing operations on the ground.”
33. This is completely in line with the Respondent’s position that the forces of Croatian
Serbs were established by their leadership and that they fought in co -operation, and not under the
command of the JNA.
34. In another paragraph, quoted also by the Applicant in paragraph 4.40 of the Reply, the
Trial Chamber analysed the conduct of operations in Krajina and concluded:
“There is evidence that beginning after the summer of 1991, the SAO Krajina
TO was subordinate to the JNA. There is also evidence of operational cooperation
between the JNA and the armed forces of the SAO Krajina. Any resubordination of
MUP units to the JNA for temporary assignment required prior approval of the
Minister of Interior of the SAO Krajina. When resubordinated, the MUP unit would
be under the command of the JNA unit commander. However, if the MUP unit was
merely acting in cooperation or concert with the JNA unit, it would remain under the
command of the MUP commander. After the completion of a mission where it had
been resubordinated, the MUP unit would return into the structure of the MUP. For
the purpose of combat operations, TO units could also be resubordinated to JNA units.
When resubordinating, the largest unit of either the TO or the JNA would command,
which would normally be the JNA unit in a given area. Such resubordination of TO
units would be carried out by the JNA.” 141
35. While the Applicant quotes this paragraph as a proof of the JNA’s control over the
Krajina armed forces, the findings of the Trial Chamber actually show that both the MUP and the
TO of Krajina were independent units which could, under particular circumstances and subj ect to
decisions of their commanders, be subordinated to the JNA units for the conduct of particular
operations, or simply participate in the operations in co-operation with the JNA.
36. It is clear from the two quoted findings of the Trial Chamber in Ma rtić that neither MUP
nor TO of Krajina formed part of the JNA and, for that reason, they cannot be considered as nor
equated with de jure or de facto organs of the SFRY.
14Prosecutor v. Milan Martić, IT-95-11, Judgement, 12 June 2007, para. 142. - 57 -
37. The judgement in Mrkšić does not alter this conclusion. Namely, although the T rial
Chamber did find that the local TO units, as well as volunteer and paramilitary units, had been
subordinated to the JNA during the entire battle for Vukovar, it still made a clear distinction,
throughout the judgement, between the JNA units, on the one side, and the local TO units,
volunteers and paramilitaries on the other. This further means that neither of the latter units formed
part of the JNA and thus the responsibility of the JNA/SFRY for their actions cannot be based on
Article 4 of the ILC Ar ticles on State Responsibility, even if it were applicable as such in a
scenario alleged covered by Article 10 (2) of the ILC Articles on State Responsibility.
38. Finally, the document of the JNA 1st Military District confirms that the local TO units of
Croatian Serbs were never considered as part of the JNA 142. This document gives the full overview
of the JNA units that were engaged in Eastern Slavonia on 16 November 1991 and shows a clear
difference in the status and the relationship with the JNA between TO units from Serbia and TO
units composed of Croatian Serbs. While the document gives a comprehensive overview of the
forces under the command of the JNA, including the units of TO Serbia, none of the TO units of
Croatian Serbs was listed in the documen t and it is obvious that the JNA did not consider these
units as its part. The TO units of Croatian Serbs were formed independently as the armed forces of
the emerging Serb regions in Croatia with the spreading of the conflict in 1991 and they were never
integrated in the JNA, although they were occasionally subordinated to the JNA for the conduct of
particular operations.
39. All of the above -mentioned shows that neither MUP nor TO of Krajina became part of
the JNA, which lead to conclusion they were not de jure or de facto organs of the SFRY.
Consequently, Article 4 of the ILC Articles on State Responsibility cannot apply.
40. It remains, therefore, to be seen whether the responsibility of the JNA, and consequently
the SFRY, can be established on the basis of Article 8 of the ILC Articles on State Responsibility,
that is whether the units of the Croatian Serbs acted on the instructions of, or under the direction or
control of the JNA/SFRY. In this regard, the Respondent first recalls the Court’s inter pretation of
Article 8 of the ILC Articles on State Responsibility, according to which: “it would in principle
14RS, Ann. 9, Command of 1st Military District, Strictly Confidential No. 1614-162, 16 Nov. 1991. - 58 -
have to be proved that that State had effective control of the military or paramilitary operations in
143
the course of which the alleged violations were committed” . And that:
“it has to be proved that they [the persons who performed the acts] acted in
accordance with that State’s instructions or under its ‘effective control’. It must
however be shown that this ‘effective control’ was exercised, or that the State’s
instructions were given, in respect of each operation in which the alleged violations
occurred, not generally in respect of the overall actions taken by the persons or groups
144
of persons having committed the violations.”
41. The Marti ć judgement is not very useful since the Trial Chamber in Martić was not
directly concerned with the JNA’s participation and involvement in the crimes found to have been
committed and it did not analyse, with respect to any of the individual crimes, whethe r the crimes
had been committed while the JNA exercised its effective control over the forces who committed
the crimes or whether the JNA had specifically instructed the commission of the crimes.
145
42. The situation is, however, entirely different when it c omes to the Mrkšić judgement .
In this case, the Trial Chamber analysed, in respect of almost every detail possible, the events
relevant to the crimes committed at “Ovčara”, and the findings of the Trial Chamber are such that
they only confirm that these crimes canno t be attributed to the JNA/SFRY. The ICTY has
concluded that the killings at “Ovčara” had been perpetrated by local TO members and
paramiliatires, and also that there was no joint criminal enterprise for the commission of crimes at
“Ovčara” and that Mrkšić (nor other accused) did not order that the prisoners of war be
146
murdered . Mr. Lukić has already discussed in more details about the JNA responsibility related
to “Ovčara”.
43. It is, thus, submitted that the findings of the Trial Chamber in Mrkšić clearly point to the
conclusion that the crime committed at “Ovčara” was neither committed under the instructions of
the JNA nor that the JNA exercised its effective control over the Serb TO and paramilitary forces at
143
Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986 , p. 65, para. 115; emphasis added.
14Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, I.C.J. Reports 2007 (I), p. 208, para. 400.
14Prosecutor v. Mrkšić et al., Judgement, 27 Sept. 2007.
146
Ibid., para. 608 and paras. 615-617. - 59 -
the time when the crime was committed 14. Accordingly, the crime cannot be attributed to the
JNA/SFRY on the basis of Article 8 of the ILC Articles on State Responsibility.
44. In its oral arguments, the Applicant heavily relied on the conclusion of the ICTY Trial
Chamber in Mrkšić et al. that, during the Serb military operations in Croatia, the JNA had complete
148
command and full control over all military operations . The Mrkšić case relates to the crime
committed at Ovčara an event that happened in a very short period of time. Since the case d oes
not relate to the siege of Vukovar in its entirety, nor to other events that occurred in Eastern
Slavonia, not to mention other parts of Croatia, the above -mentioned Trial Chamber conclusion
seems a very unusual one. What evidence did the ICTY Trial C hamber use as a basis for such a
conclusion?
45. [Screen on] The Applicant avoided citing the first sentence of paragraph 89 of the Mrkšić
et al. judgement, which reveals that only two documents or, to be more specific, only two sentences
of these documents, represent the basis for such a robust finding the Circular of the Chief of the
General Staff of 12 October 1991 and the Order of the Command of 1st Military District of
15 October 1991 14. You can see that on your screen.
46. Let us take a closer look at these documents.
47. General Adzic’s circular dated 12 October 1991, among many things, states only one
sentence that all combat units, no matter if they are part of the JNA, TO or volunteers, have to
be placed under the unified command of the JNA. It does not say that such command was actually
put in place. One of the reasons for issuing the circular was an obvious need to suppress the lack of
discipline and lack of control. [Screen off]
150
48. [Screen on] Order of the Command of 1st Military District of 15 October 1991 applied
only to Eastern Slavonia, and it is not directed to JNA units elsewhere in Croatia. With this
document, the Commander of the 1st Military District, General Pani ć, among other things, ordered
two things: first, establishment of full control over the area under the responsibility of the Unit;
147
See RS, paras. 301-303.
14Mrksic et al., Judgement of 2007, para 89.
14Ibid.
150
Command of the 1st Military District, Strictly Confidential No. 1614 -82 27, 15 Oct . 1991, Ann. 67 with the
Reply. - 60 -
and second, removal of paramilitary and volunteer units that rejected the command of the JNA
from the area of its responsibility. The order was issued due to the emerging problems, with a goal
of regulating life, work, order and discipline. [Screen off]
49. Both documents show that, in mid- October 1991, the JNA was clearly experiencing
problems in the field with units whic h were not part of the JNA. The JNA commanding officers
were obviously of the opinion that those problems needed to be fixed and, for that reason, the order
and the circular were issued. The two documents are therefore not proof of the JNA control over
local TOs and paramilitaries in mid -October 1991 but, rather, proof of the JNA’s intent to assert
control at the time.
50. However, did the JNA manage to establish control in the aftermath of October 1991?
And that is the real question.
51. I would wish to remind the Court at this point of the fact that, on 10 December 1991, the
SFRY Minister of Defence, General VeljkoKadijevic, issued another order containing an almost
identical sentence that all of the volunteer or paramilitary units that do not acce pt JNA control
should be removed from the battlefield 151. And you have the exact quotation on your screens. The
problems with the irregular forces was mentioned in the United Nations Secretary-General’s Report
of February 1992: “[the] military forces on both sides continue to include irregular armed elements
who are not fully under the control of the established military commands and who have been
responsible for a substantial proportion of the alleged cease -fire violations”152. This represents
clear evidence that the JNA did not manage to establish control over the paramilitaries or at
least for a substantial number of volunteer or paramilitary units throughout the entire 1991.
52. The Respondent also believes that the conclusion stated in paragraph 89 of the Mrkšić et
al. judgement is inconsistent with the conclusions expressed in other paragraphs of the same
judgement. The Trial Chamber describes several serious conflicts between members of the JNA
and members of the other units. For example, it described a physical conflict between a JNA
15Federal Secretariat for National Defence, Order of 10 Dec.1991, Ann. 74 with the Memorial.
15Further Report of the Secretary -General to the Secu rity Council Pursuant to SC UNes. 721 (1991) of
4 Feb. 1992, para. 7. - 61 -
officer and a local TO member that took place when the JNA was transporting prisoners from
Velepromet:
A group of Serb paramilitaries and TOs actually interrupted the meeting and
told the counter-intelligence officers [the se are officers of the JNA] that they would
not be allowed to take PoW [prisoners of war] to the prison of Sremska Mitrovica in
Serbia”
and that: [Screen on]
“After the counter-intelligence officers had visited the detention rooms, military
police of the GMTBR [mechanized brigade] began loading prisoners of war onto
buses. While the boarding was underway, Colonel Vujic [of the JNA] and other
counter-intelligence officers were threatened by Serb TOs and paramilitaries.
Colonel Vujic sent an officer to th e OG [operational group] South command at
Negoslavci to ask for reinforcements, and to report the situation at Velepromet to
Mile Mrksic. Following this, he was on board one of the buses loaded with prisoners
of war registering names when ‘Duke Topola’, a TO, boarded the bus. Topola
physically lifted Colonel Vujic, put a knife to his neck and told him that he would not
be able to take the ‘Ustashas and criminals out’ since ‘[t]hey ha[d] to pay for what
they did to the Serbian people’. Another officer managed to drag Topola off the bus
153
which then departed without further obstruction.”
53. The ICTY established that when the buses carrying the male evacuees arrived at the JNA
barracks in Vukovar, local TOs and paramilitaries started to threaten and verbally abuse the men on
the buses. The paramilitaries and TO members were trying to get into the buses. The JNA soldiers
154
on the buses did not allow that to happen .
54. Those are not, by any means, pictures of a relationship in which the JNA had any, let
alone full control over local TOs and paramilitaries. [Screen off]
55. The Applicant’s argument that the principle of unity and singleness of command found to
be proven in Mrkšić et al. 155is therefore misleading. The principle of unity and singleness of
command was one of the key principles embodied in the JNA doctrine, as is probably the case with
many other armies. As it was noted in the 2003 Theunens Report:
153
Mrkšić Trial Judgement, para.171.
15Mrkšić Trial Judgement, para. 216.
155
CR 2014/10, p. 46, para. 36 (Crawford). - 62 -
“The principle of command and control identified in these JNA publications can
be considered universal. It is valid for any armed force, be it NATO, the JNA, or
(former) Wa156w Pact, at any given time, and for every possible operational
scenario.”
However, it is o bvious that the reality on the ground in 1991 differed significantly from the
doctrine.
56. The Applicant is trying to use one sentence from paragraph 89 of the Mrkšić et al.
judgement as a vehicle to overcome the requirements of Article 8 of the ILC Articles on State
Responsibility. Article 8 deals with effective control that needs to be established and proven in
every individual and concrete situation. The Responde nt’s position has not changed in order to
attribute responsibility, different armed groups have to be identified and distinguished, and it must
be proven that they acted under the direction or control of the Respondent. The Applicant admits
failing to d o so by saying that Croatia sought to identify all relevant groups as far as it was
possible. What the Applicant is however now suggesting is that for considering attribution at this
stage, this is not even necessary 15. The Applicant is suggesting that th e Article 8 test is met by a
mere proclamation that a de facto Serbian State organ the JNA either gave instructions or
directions pursuant to which such other forces had acted, or had otherwise exercised effective
control over military actions during w hich such forces committed the acts. The Respondent does
not share that position.
The PRESIDENT: Mr. Ignjatović, you have some six or seven minutes and I understand that
you are to address another issue. So, it is up to you whether you would then interrupt in the middle
of the presentation.
Mr. IGNJATOVIĆ: It is the last sentence, Mr. President.
The PRESIDENT: That is fine. Thank you.
15Prosecutor v. Slobodan Milošević, IT-02-54-T, Expert Report of R. Theunens of 16 Dec. 2003 (submitted by
the prosecution), p. 56.
157
CR 2014/10, p. 46, para. 36 (Crawford). - 63 -
Mr. IGNJATOVIĆ: The Respondent does not share the position of the Applicant. The
conditions provided in Article 8 are far from fulfilled in these proceedings. And this would be a
proper time, if you wish.
The PRESIDENT: Certainly, and you will have an opportunity to continue in the afternoon.
Thank you very much. So, this sitting is adjourned.
The Court rose at 12.55 p.m.
___________
Audience publique tenue le mercredi 12 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)