Corrigé
Corrected
CR 2014/19
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Tuesday 18 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 mardi 18 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 today to hear Croatia’s observations on Serbia’s counter -claim, which will conclude the first
round of oral argument. I call on the Agent of Croatia, Professor Crnić-Grotić. You have the floor,
Madam.
Ms CRNIĆ-GROTIĆ: Thank you, Mr. President.
INTRODUCTION AND FACTUAL BACKGROUND
1. Mr. President, Members of the Court, I appear before you this morning to deliver some
introductory remarks on the Respondent’s counter -claim, and to briefly address the factual
background and the events that compelled Croatia to launch a military operation, Operation Storm,
against the rebel Serbs of the so -called Republika Srpska Krajina, the “RSK”, in 1995. I will also
address the issue of the alleged genocidal plan for Operation Storm, and certain issues of evid ence
relied upon by the Respondent.
2. Following my introductory presentation, Ms Anjolie Singh will address the Court on the
planning and implementation of Operation Storm and in doing so respond to some of factual
manipulations of last week. Sir Keir Starmer will follow, demonstrating that the Respondent’s
counter-claim, even taken at its highest, fails to establish either of the two elements of the crime of
genocide: the actus reus and mens rea. Professor Sands will conclude Croatia’s submissions by
setting out the main features that distinguish the Applicant’s claim from the Respondent’s
counter-claim. The evidence conclusively establishes that the counter -claim is entirely without
merit, on the facts and on the law. Unlike the responsibility of Serbia for the operations of the JNA
and forces under its control for the acts taken in 1991- 1992, the counter-claim has no support from
the ICTY.
I. General observations
3. Mr. President, allow me first to present briefly Croatia’s reasons for launching Operation
Storm. In order to do that, it is important to remember the situation Croatia found itself in
mid-1995. [Plate on] Croatia had to provide for almost 400,000 refugees and displaced persons 1;
Branko Pek-Slobodan Lang, “Pravo na dom”, Osijek, 2011, p. 38. - 11 -
one third of the country was still occupied [next graphic] and Serbia continued to provide financial,
political and military support to the rebel Serb criminal enterprise. Occupied territories severed
Croatia’s coast from its hinterland, making travel and economic development all but impossible.
2
4. Contrary to the Respondent’s assertions, the situation in the “RSK” was not “improving” .
3
Life for the few Croats who remained in the Republika Srpska Krajina, the “RSK” was
characterized by violence and discrimination. The United Nations Special Rapporteur fo r Human
Rights reported that of the 44,000 Croats who in 1991 lived in United Nations Sector South, which
marked the southern half of the occupied territory, only 1,100 remained in November 1993 4. By
5
November 1994, that number had fallen to only 800 to 900 Croats . According to the so- called
RSK’s police reports, 47 per cent of persons murdered in the occupied territories between 1992 and
6
1994 were non-Serbs, and the perpetrators of these 268 murders went largely unpunished . Croats
continued to be forced from their homes and properties. Artillery attacks continued to be launched
from the “RSK” on towns and villages in non- occupied areas of Croatia. In late July 1995, news
began to emerge about the Srebrenica massacre, along with information that Serbia n forces were
surrounding Bihać, another Muslim enclave in Bosnia and Herzegovina close to the Croatian
border. Croatia’s repeated efforts to reach a peaceful solution to this untenable situation were met
with repeated rejections by the so-called “RSK” leaders. Croatia had no option but to act.
5. The only realistic option was to reclaim the occupied territories by military force. It
launched two military operations Operation Flash, which lasted from 1 to 4 May 1995,
liberating Western Slavonia, as shown on the screen [next graphic] and Operation Storm, from 4 to
8 August 1995, which liberated the territory of the so- called Krajina. [Next graphic] These
operations were intended to defeat what the ICTY in the Marti ć case determined to be a Joint
Criminal Enterprise (JCE) the product of which was known as the “RSK” operating on
2
Counter-Memorial of the Republic of Serbia (CMS), para. 1123.
3In mid-1993 Croats made up only 7 per cent of the Krajina population. Stanje i osnovni pravci oživljavanja i
razvoja privrede RSK, 2 (The state and the basic directions of revitalization and development of the RSK commerce),
referred to in N. Barić, Srpska pobuna u Hrvatskoj 1990-1995, p. 384.
4Fifth Periodic Report submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human
Rights, pursuant to paragraph 32 of the Commission resolution 1993/7, E/CN.4/1994/47, 17 Nov . 1993, para. 147.
5
Situation of Human Rights i n the former Yugoslavia: Note b y the Secretary-General, A/49/641, S/1994/1252,
4 Nov. 1994, para. 136.
6Report by Gojko Košević, Main Operative for General Criminality, 5 Oct. 1994, referred to in N. Barić, Srpska
pobuna u Hrvatskoj 1990-1995, p. 384. - 12 -
Croatian territory. The “RSK” was not, as Mr. Obradović put it, a State in statu nascendi
(CR 2014/17, p. 57, para. 153) but the territory illegally occupied by the Respondent.
Mr. President, the Respondent’s counter-claim alleges that Croatia committed genocide during and
after Operation Storm. In fact, Operation Storm was a legitimate military operation during which,
let us not forget, 196 Croatian soldiers were killed, 15 disappeared, and more than 1,000 were
injured 7. Operation Storm was thoroughly examined by the ICTY, in proceedings against three
8
Croatian generals: Gotovina, Čermak and Markač . These proceedings took almost seven years to
complete and, at the end, the three generals were acquitted of all charges. [Screen off]
6. The account you heard last week a revisionist history had no basis in reality. Th e
findings of the Trial Chamber and the Appeals Chamber thoroughly vindicate the Applicant’s
position in these proceedings.
II. Gotovina Trial Chamber findings
7. Turning first to the findings of the Gotovina Trial Chamber. You heard the Respondent’s
claims last week that the intention behind Operation Storm , imputed to President Tuđman and the
Croatian leadership, was to drive out Serb civilians from the occupied areas of Croatia, to destroy
the Serb population left behind, to destroy their property, their cultural buildings and churches and
to treat prisoners cruelly. But, the ICTY Trial Chamber’s unanimous findings, not appealed by the
Prosecutor, conclusively establish that none of this is true. The Gotovina Trial Chamber made a
specific finding of fact that President Tuđman and the Croatian leadership did not intend to allow
crimes to occur after Operation Storm, much less that they ordered them directly. The Trial
Chamber specifically rejected the Prosecution’s allegations of Croatian G overnment intentional
complicity in crimes committed after Operation Storm and I quote, the text is on the screen:
[screen on]
“The Trial Chamber finds that the common objective [of the Joint Criminal
Enterprise]did not amount to, or involve the commission of the crimes of persecution
7“Operation Storm liberated 10,400 sq. km. or 18.4 per cent of the total area of the Republic of Croatia. Losses
totalled 0.12 per cent or 1,314 person196 killed, 1,100 wounded (572 severely and 52lightly), 3 taken prisoner,
15 missing in action . . .” in Davor Marijan , “Oluja” (“Storm”) (Croatian Homeland War Memorial & Documentation
Centre, August 2010), p. 159.
8
See Prosecutor v. Gotovina, Čermak and Markac, IT-06-90-T, Judgment of the Trial Chamber of 15 April 2011
(“Gotovina TJ”). The Trial Chamber acquitted Ivan Čermak of all charges. - 13 -
(disappearances, wanton destruction, plunder, murder, inh umane acts, [and] cruel
treatment, and unlawful detentions), destruction, plunder, murder, inhumane acts,
and cruel treatment.” (Judgement, para. 2321.)
8. Contrary to the Respondent’s assertions, the Gotovina Trial Chamber also found that
President Tuđman and the Croatian leadership did not have a general policy of non-investigation of
crimes committed against Serb civilians in the aftermath of Operation Storm 9. Similarly, the Trial
Chamber noted that [next graphic] “the leadership, including Tudjman, d isapproved of the
destruction of property” and on the basis of the evidence before it concluded that it “[did] not find
that destruction and plunder were within the purpose of the joint criminal enterprise” 10.
9. Moreover, the Prosecution conceded during trial that President Tuđman and the Croatian
leadership had issued strict orders for the protection of Serbian Orthodox churches and monuments,
and that these orders had been implemented effectively. This fact was not in dispute during the
11
ICTY proceedings . [Screen off]
10. Finally, the Trial Chamber rejected the Prosecution’s claim now revived by the
Respondent in the hope that you might offer a further possibility of appeal that when
President Tuđman at Brioni referred to making “Serbs disappear”, he was referring to Serb
civilians rather than to Serb military forces 12. Let me repeat that: the central plank of the
Respondent’s counter-claim of genocide against Croatia has been determined to lack any factual
basis by the ICTY Trial Chamber the findings of which the Respondent seeks to bolster and
defend in these proceedings.
11. It is true that the Trial Chamber did find that the Croatian Generals and
President Tuđman were responsible for deporting Serb civilians from the four Croatian towns of
Knin, Benkovac, Obrovac and Gračac due to the unlawful shelling the so-called Four Towns.
Yet even the Trial Chamber ruled decisively with respect to all other towns and villages it
considered namely the towns and villages in the southern part of the territory of the so- called
Krajina, that the Serb population on 4 and 5 August left for reasons that could not be attributed to
any unlawful conduct of Croatian authorities. Those reasons included the following: [Screen on]
9Gotovina et al., TJ, para. 2203.
10
Ibid., para. 2313.
11Prosecution Final Trial Brief, Prosecutor v. Gotovina, at paras. 17, 646, 650.
12
Gotovina et al., TJ, para. 1990. - 14 -
“Krajina” Serb officials telling inhabitants to leave the areas (Trial Judgement, paras. 1754,
1762);
“Fear of the violence commonly associated with armed conflict” (Trial Judgement, para. 1762);
“General fears of Croatian forces or distrust of Croatian authorities” (Trial Judgement,
para. 1762);
The fact that other Serbs were departing caused some to leave (Trial Judgement, paras. 1754,
1762).
12. The Trial Chamber thus found that in the overwhelming majority of towns, villages and
hamlets in southern so -called Krajina on 4 and 5 August, Croatia did not deport the Serb
population. [Screen off]
13. The Trial Chamber convicted the Croatian Generals for the alleged deportation from the
four towns. It also found them guilty of crimes that were the “foreseeable” consequence of the
alleged Joint Criminal Enterprise to expel Serbs from the four towns. The Trial Chambe r did not,
however, find that they had intended to commit these crimes.
III. Appeal Chamber findings
14. On appeal, the central issue was whether the Croatian Generals were guilty of
persecution by means of deportation from the four towns. If the Genera ls were not guilty of
participation in a Joint Criminal Enterprise from the four towns, then their convictions for murder
and other alleged crimes would also have to be reversed because these crimes could not have been
the “foreseeable consequence” of a Joint Criminal Enterprise that did not exist. The ICTY Appeals
Chamber found in favour of the Appellants and reversed all of the Trial Chamber’s convictions. It
concluded that Croatia’s leadership and by implication Croatia did not deport Serbs from the
so-called “Krajina” as alleged in the Indictment.
15. These findings of fact and law by the ICTY Trial and Appeals Chamber are “highly
persuasive” for this Court, and totally undermine the Respondent’s c ounter-claim. The Appeals
Chamber Judgement highlighted some of the same criticisms of the Trial judgement that Croatia
had pointed out in its Additional Pleading 13. Ms Singh will take you to these findings. It is striking
1Additional Pleading of Croatia (APC), pp. 53-63. - 15 -
that the Respondent should still cling so desperately and steadfastly to the Goto vina Trial Chamber
judgement in its unfounded efforts to assert genocide: the Trial Chamber itself unanimously found
that the most serious forms of persecution and those capable of being directed at physical
destruction of a group such as murder were not intended in any Joint Criminal Enterprise on the
14
part of the Croatian leadership . These findings were not appealed by the ICTY Prosecutor. And I
repeat: there was no Joint Criminal Enterprise.
16. Contrary to the erroneous picture the Respondent has attempted to paint, the ICTY
findings demonstrate that Serbia’s counter -claim has always been entirely baseless. The
unanimous Trial Chamber found that President Tuđman and the Croatian leadership had: no
intention to murder Serbs in Operation Storm; no intention to inflict serious bodily harm or
ill-treatment on Serbs; no intention to obstruct investigations of crimes against the Serbs; and that
they actively opposed the destruction of Serbian property; and protected Serbian Orthodox
religious monuments. The Prosecutor did not appeal on any of these findings. Professor Schabas
is well aware of those findings. He chose not to mention them to the Court in his speech last
Friday. Apparently he did so because those findings in and of themselves are fatal to the
Respondent’s counter-claim. When the Appeals Chamber ultimately concluded that the Generals
were not guilty of persecution through deportation either, the Respondent’s case evaporated.
17. The findings in the Gotovina judgement concerning President Tuđman’s intent,
demonstrate that the Brioni Minutes record a discussion about the preparation of a lawful military
operation. The Applicant notes with deep regret the comments made by Professor Schabas last
week equating those who deny any genocidal reading of the Brioni Minutes, with Holocaust
deniers who reject the historical facts about the Wannsee Conference. This is all the more so given
Professor Schabas’s own statements outside of this courtroom that there was no genocide in
Srebrenica 15. It is a matter of particular regret that Professor Schabas should cast aspersions on the
integrity of those who do not view the Brioni Minutes in the manner that he or his client chooses to
see them, including Judge Theodor Meron, himself a Holocaust survivor, and
14
Gotovina et al., TJ, para. 2321.
1William A. Schabas, “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the
International Criminal Tribunal for the Former Yugoslavia ”, 25 Fordham International Law Journal 23, 2001, pp. 45, 46,
47. - 16 -
Judge Patrick Lipton Robinson, former President of the ICTY and a candidate for election to this
Court. Professor Schabas’s charge is both serious and unworthy of this courtroom.
18. Mr. President, Members of the Court, the only denier i n this case is the Respondent. It
seeks to deny ICTY judgements and findings. Over the course of the past week, you were
repeatedly told that numerous ICTY Trial and Appeals Chambers are wrong. Last Wednesday,
Mr. Ignjatović told you that the ICTY was wrong in its assessment of the role of the JNA in the
16
Mrkšić case . He told you that Mr. Babić was wrong when he admitted to the criminal character
of the so- called RSK 17. He told you that the Martić Trial Chamber also got it wrong. Indeed,
Mr. Ignjatović asserted that Serbia challenges the ICTY’s unanimous ruling in the Martić case that
the project called “Republika Srpska Krajina” “RSK” involved a Joint Criminal Enterprise
at all .
19. The Respondent denies the ICTY’s finding in Martić that Serbian
President Slobodan Milošević together with Serbian leaders were part of that Joint Criminal
19
Enterprise . Mr. Obradović denied to you that Belgrade was attempting to create a Greater Serbia,
now arguing improbably that it was no more than an effort to preserve Yugoslavia. This is in
direct denial of the ICTY’s finding in the Martić case, that Belgrade was involved in a Joint
Criminal Enterprise, the purpose of which was to create “an ethnically Serb territory through the
displacement of the Croat and other non- Serb population” 20. It is also well known that high s tate
officials of Serbia to this day continue to deny that genocide was committed at Srebrenica, despite
the ruling of this Court and numerous rulings of the ICTY. Mr. Jordash and Professor Schabas last
week denied the findings in Gotovina of both the ICTY Trial and Appeals Chamber s. Yet the
ICTY had used ample resources to assess the conduct of Operation Storm. It found that Croatian
authorities did not expel Serbian civilians and were not criminally responsible for crimes
committed against Serbs. Serbia would like this Court to rule that the ICTY got it wrong in
Mrkšić; got it wrong in Martić; that Milan Babić was wrong when he admitted his guilt and the
16CR 2014/15, pp. 26-27, paras. 44-45 (Schabas).
17
Ibid., p. 23, para. 34 (Schabas).
18Ibid., p. 16, para. 81 (Ignjatović).
19Ibid., p. 16, para. 81 (Ignjatović).
20
Martić, Trial Judgement, para. 445. - 17 -
guilt of the leadership of Serbia; and that the ICTY was wrong in acquitting the Croatian generals
in Gotovina. Mr. President, the merits of the arguments speak for themselves. Serbia’s
decades-long pattern of denials, distortions and cover-ups is untenable.
20. Croatia wishes to express to this Court its sincere desire to achieve full reconciliation
with Serbia. Our Presidents, Mr. Mesić and Mr. Josipović, have expressed their sincere regret on
behalf of the Croatian people for all crimes committed against Serbs — including in Operation
Storm. They have done so on official visits to Belgrade. However, reconciliation must be based on
historical facts. Seeing Serbia last week deny the criminal nature of the Joint Criminal Enterprise
of the Serb leaders known as the “RSK”, despite clear, unequivocal ICTY findings, was an affront
to the victims of its crimes, who are to be counted in the thousands. It is an affront to the next of
kin of those who are still missing. Mr. President, Members of the Court, Operation Storm was the
operation that put an end to a criminal enterprise. It marked the beginning of the end for those
responsible for the crimes in Srebrenica, and Sarajevo and many other places in Croatia and Bosnia
and Herzegovina, many of whom were subsequently convicted by the ICTY.
21. It is a fact that individual crimes were committed in the course of Operation Storm.
Croatia deeply regrets the crim es committed and the pain caused to victims during the course of
Croatia’s liberation in Operation Storm. It has put in place structures to compensate the victims,
and to provide redress through criminal and civil proceedings. According to the information
provided by the State Attorney Office of Croatia, 33 persons have thus far been prosecuted for
murders committed during or after Operation Storm, and more than 2,300 people have been
convicted for looting and destroying property. There are also three wa r crimes cases still
pending 2. According to data provided by the United Nations High Commissioner for Refugees, by
June 2013 more than 130,000 Serbs had been registered as returnees to Croatia 22. Their houses
have been repaired or rebuilt at the expense o f the Croatian State. These facts speak about the will
of Croatia to ensure the return of all of its citizens who wish to return.
2Http://www.dorh.hr/DrzavnoOdvjetnistvoRepublikeHrvatskePostupanjeU.
2Http://www.unhcr.hr/2012-12-20-09-46-40/statistics. - 18 -
IV. Issues of proof and evidence
22. Mr. President, Members of the Court, I would like now to address the Respondent’s
approach to evidence and proof. This issue will be examined in detail by Ms Singh and
Sir Keir Starmer.
23. In the Counter -Memorial the Respondent’s factual assertions with regard to the
counter-claim are essentially based on just two documents:
(i) a list of missing and killed persons compiled by the Serbian NGO, Veritas so the
“Veritas List” headed by Mr. Savo Štrbac lately an expert witness for the
Respondent in this case; and
(ii) a Report prepared by the Croatian Helsinki Committee for Human Ri ghts “the
CHC Report”.
24. Croatia has set out detailed criticisms of both these documents in the written pleadings
23
and called into question the Respondent’s reliance on them . An analysis of the CHC Report
carried out by the Croatian Directorate for D etained and Missing Persons identified significant
methodological and factual flaws 2. The ICTY has confirmed these flaws. The Trial Chamber in
Gotovina concluded [screen on] that it could not rely on the CHC Report in relation to information
it described “if uncorroborated by other evidence” 25. In light of this finding we say it is unsafe to
rely on this Report. [Screen off]
25. The Respondent offers the list prepared by Veritas as that “corroborating” evidence.
First of all, Croatia already set in det ail the reasons for which it considers that organization to be
neither neutral nor independent. Moreover, the Applicant has also identified serious discrepancies,
mistakes and methodological errors whereby, for instance, some of those listed as dead or mi ssing
were still alive when the list was published, and there were a number of deaths unconnected to the
26
Operation Storm . Nevertheless, the Respondent considers that the credibility of Veritas is still
valid despite the fact that Mr. Obradović had to admit last week that the Applicant had been right
23
For example, see Reply of Croatia (RC), paras. 2.65-2.68, 11.66-11.70, 11.85, 11.91-11.92, 11.95-11.101.
2See RC, para. 2.65.
2Gotovina et al., TJ, para. 50; emphasis added.
26
RC, paras. 2.67, 11.68. - 19 -
showing examples of wrong entries in the Veritas list in its written pleadings. How many more
entries are there that the Applicant did not point to?
26. For example, on the website of Veritas, [screen on] Mr. Petar Golubovac, born on
20 October 1947 is listed as No. 1731 and as No. 1732. The same “mistake” is often repeated.
There are more examples like this, documenting the credibility of Veritas 2. [Screen off]
(1) Factual background: the reasons for Operation Storm
27. Mr. President, I will now address the events that led to Operation Storm in more detail.
But first it is important to reiterate that Serbia’s allegations regarding genocide against the Serbs
28
are restricted to “events which occurred in August 1995 and subsequent months” . The
Respondent makes no allegations regarding any breaches of obligations under the Genocide
Convention prior to this date, although it sets out various allegations of human rights violations.
We have comprehensively responded to these allegations in the written pleadings. However, even
the Respondent recognizes that those allegations fall outside the jurisdiction of the Court 29.
(a) Plans for the creation of “Greater Serbia” started well before President Tuđman was elected
28. The Respondent seeks to justify its own earlier actions by claiming that the Serbs in
Croatia were only reacting to the election of President Tuđman and their fear of a recurrence of
World War II crimes being committed against them. This is w rong. The Serb population’s fear
was created by the hate- speech campaign against Croats and their demonization as Ustasha, as we
demonstrated in our claim.
29. Moreover, Mr. Obradović’s claim that Serbs were only reacting to President Tuđman is
also false. The Serb rebellion in Croatia goes back to at least 1989, well before President Tuđman
was elected. In July 1989 near Knin, thousands of Serbs gathered, carrying photos of
Slobodan Milosevic and Chetnik iconography from World War II, chanting “This is Serbia!”
These are people who believed their “one country” was Serbia, not Yugoslavia as Mr. Obradović
claimed. The event followed a series of similar staged “events of the people” in other parts of the
27
For example, entries No. 2972/2973; No. 2830/2831.
2CMS, paras. 570, 1098, 1102 ,1123, 1165, 1464; Rejoinder of Serbia (RS), para. 688.
29
CMS, para. 211. - 20 -
former Yugoslavia where Serbs lived such as in Kosovo, in Vojvodina and Montenegro and
it caused anxiety among the Croatian population. Why were they rebelling in 1989 not just in
Croatia but across former Yugoslavia? Mr. President, Members of the Court, it was Serbian
nationalism and the drive for Greater Serbia that destroyed Yugoslavia and brought a war to
Croatia that Croatia did not want.
(b) Serbian refusal of peaceful settlement
30. Despite the ongoing failure of the rebel Serbs to demilitarize the United Nations
30
Protected Areas in accordance with the Vance Plan , Croatia sought a peaceful solution
throughout 1992, 1993 and 1994, while affirming its right to re -establish control over its entire
territory. We describethese attempts in our written pleadings.
31. There was no long -term prog ress on a political settlement, or on an Economic
Agreement. The rebel Serb rejection of any peaceful settlement continued through early 1995. A
plan, known as Z4, which offered them exceptionally broad autonomy, was generally accepted by
Croatia, but rejected outright by the rebel Serbs.
32. As confirmed by witness Slobodan Lazarevic, who was a member of the Serbian
delegation during talks with Croatia in this period: “Belgrade did not want any settlement of the
issues that divided the RSK Serbs and t he Croatian government.” He explained: “[m]ost of the
time we were told not to agree to anything” 31. The account was confirmed by the United States
Ambassador in Zagreb, Mr. Peter Galbraith, who told the ICTY at the Milošević trial, and you can
read it on the screen [Screen on]
“The difficulty was that the Krajina Serbs refused to engage seriously for a very
long period of time on the economic and confidence -building measures . . . when the
time came following the signing of an economic and confidence -building measures to
present a political plan, they refused to even receive this plan.” 32 [Screen off]
33. Mr. President, we strongly reject accusations made by the Respondent that the p eaceful
reintegration of the territory of “Krajina” was not an option for Croatia. Croatia ultimately
reintegrated the last part of its occupied territories peacefully in 1998. In the run -up to Operation
30
APC, para. 2.26.
31Gotovina et al., Trial Exhibit D1461, p. 16.
32
See testimony of Ambassador Galbraith at the Milošević , Transcript, 26 June 2003, p. RC, para. 10.66
(fn. 141). - 21 -
Storm, Croatia was still willing to negotiate to a chieve a peaceful settlement. The rebel Serbs, on
the other hand, refused to envisage life under Croatian authority. The “RSK” Serb leadership
would never agree to a negotiated settlement because they would never agree to the “peaceful
reintegration” of the “RSK” into Croatia, a point which their lead negotiator made clear in Geneva
on the night before Operation Storm. And this was also admitted by the Respondent in the
Rejoinder.
34. This point is well known to the Serbian team appearing before this Court. Indeed, their
so-called “Expert Witness”, Mr. Savo Štrbac was at the relevant time the “government secretary”
of the Serb para-State on the Croatian territory. In 1994 and early 1995 he told the New York Times
and Agence France Presse, “It is out of the question for us to return to Croatia”, and he said “we
don’t want to be in Croatia, in any form”. These articles are in your judges’ folder, at tab 15.
Mr. President, Members of the Court, this shows why negotiations with the rebel Serbs were futile.
(c) Operation Flash
35. As for the Operation Flash, it took place in May 1995. Last week you heard claims from
Mr. Jordash that Operation Flash amounted to a persecutory ethnic cleansing campaign to wipe out
the Serb population from Western Slavonia. This position is completely detached from reality.
Special Rapporteur Mr. Mazowiecki of the United Nations Commission for Human Rights
reviewed Operation Flash in great detail and reported his findings as follows, and you can read that
on your screen: [Screen on]
“28. [T]he leaders of the ‘RSK’ insisted that persons left behind, estimated at
3-4,000, be given the opportunity to leave Western Slavonia and join the other
refugees in the Serb -held territory of Bosnia and Herzegovina. The United Nations
acceded to this demand and initiated the program known as ‘Operation Safe Passage’.
29. Serbs still living in the Sector were advised of their right to remain, and the
public assurances of the Government of Croatia that their rights, including the right to
citizenship of the Republic of Croatia, would be fully respected. Nevertheless, during
the month of May hundreds of Serbs from Sector West applied for inclusion in
Operation Safe Passage, and by early June more than 2,000 had left for Serb -held
territory in Bosnia and Herzegovina . . .” 33 [Screen off]
3Periodic Report submitted by Mr.Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human
Rights, pursuant to paragraph 42 of the Commission resolution 1995/89, E/CN.4/1996/6, 5 July 1995, paras. 28-29. - 22 -
36. The full text of that part of the report is also found in your folders, at tab 16.
Mazowiecki’s report makes explicitly clear that the departure of the Serbs from Western Slavonia
during and after Operation Flash was not the responsibility of Croatia, but of the rebel Krajina Serb
leadership itself. Furthermore, the United Nations Secretary -General praised the Croatian
Government’s efforts “to achieve high standards of respect for the Serbs’ human right s in [Western
Slavonia] and to discourage them from moving into Bosnia and Herzegovina”.
37. And finally, Mr. President, United States Ambassador Peter Galbraith travelled to the
island of Brioni on 1 August 1995, the day after the famous Brioni Meeting, and he told
President Tuđman to ensure that Croatian forces in Operation Storm conducted themselves as they
had in Operation Flash because that conduct had earned President Tuđman “tremendous credit” in
the international community. Ambassador Galbraith confirmed this conversation in his ICTY
testimony 34.
38. Yet Mr. Jordash told this Court on Friday that the Serbs in Western Slavonia had been
“viciously chased out” in Operation Flash 35, and that Flash had involved “multiple persecutory acts
36
designed to effect the mass deportation or forcible transfer of tens of thousands of civilians” . The
only way you could accept Mr. Jordash’s view about Operation Flash is if you were to ignore the
reports of the Special Rapporteur, the United Nations Secretary -General, and the United States
Ambassador, all of whom found the conduct of the Croatian Forces not only to be lawful, but
praiseworthy. Another denial?
39. The same pattern was played out in Operation Storm. The “RSK” leaders convinced
their compatriots that they could not live together with the Croats and made them leave. This much
was admitted also by Mr. Štrbac’s televised statement soon after Operation Storm that they were
37
preserving “their biological potential” .
34
Gotovina et al., Trial Transcript, p. 5031.
35CR 2014/18, p. 23, para. 77 (Jordash).
36Ibid., para. 35.
37
RC, Ann. 200. - 23 -
V. Conclusion
40. Mr. President, Members of the Court, in my introductory speech I unmasked some of the
misinterpretations and manipulations by the Respondent with regard to the reasons for Operation
Storm and some salient findings of the ICTY in the Gotovina case. The Respondent offers nothing
but denial in its continuing refusal to face and accept its own responsibility for the tragic
consequences of extreme Serbian nationalism and manipulation that brought war and violence to
Croats, Serbs and other nations in former Yugoslavia. My colleague M s Singh will now present
you with a detailed account of the planning and implementation of Operation Storm.
41. Mr. President, thank you for your attention. I kindly ask you to invite Ms Singh.
The PRESIDENT: Thank you and I now give the floor to Ms Singh. You have the floor,
Madam.
Ms SINGH:
THE RESPONDENT ’S EVOLVING COUNTER CLAIM : OPERATION STORM
1. Mr. President, Members of the Court, it is an honour for me to appear before you for the
first time and to do so on behalf of the Republic of Croatia. My task is to address the Respondent’s
account of the planning and conduct of Operation Storm and the events thereafter. In so doing, I
will set the record straight.
2. I regret that I am required to go into some detail, given the many factual erors and
manipulations from last week. But this is necessary, and I will highlight only the most egregious
examples. To be clear, those factual points that Croatia does not address should not be taken as
accepted by the Applicant. Croatia maintains, in full, the response set out in its written pleadings.
3. Mr. President, I will begin my presentation by listing certain events that transpired in the
days preceding Storm. I will then, very briefly, mention the planning related to Operation Storm.
Then I will turn to the conduct of Storm, and respond to the factual allegations identified by the
Respondent as establishing genocide. These relate to:
(i) shelling;
(ii) expulsion;
(iii) targeting columns and killings of the Serbs that remained in the “RSK”; - 24 -
(iv) looting; and
(v) legal measures as barriers to the return of the Serbs.
These allegations are entirely without foundation, as you will see. I will address each in turn.
I. Events preceding Operation Storm
4. Turning to the events that preced ed Operation Storm: Croatia’s Agent has taken you
through the reasons that compelled Croatia to launch a military offensive against the “RSK” in
August 1995. This followed years of negotiations, hampered by the rebel Serb leadership’s refusal
to consider options involving reintegration of the occupied territories. The Respondent admits
38
this . Even in the weeks preceding Storm the authorities of the “RSK” (with the support and
backing of the FRY/Serbia) continued to do all they could to avoid a settlement. For example:
(i) they re-organized their army under the command of Mrkšić, a Lieutenant-General in the
Army of Yugoslavia, the VJ, (he was later convicted by the ICTY) 39;
(ii) the “President” of the “RSK”, (Milan Martić, also convicted by the ICTY), declared a
state of war throughout the “RSK” and mobilized its army on 28 July 1995;
(iii) Mladić (now on Trial at the ICTY) was in Knin (in the “RSK”) to arrange and co-ordinate
operations between the two rebel Serb armies of Croatia and Bosnia on 30 July. An
appeal was made to all Serbs, including in Serbia, to assist in the defence of Serb territory;
(iv) Mrkšić issued orders for the defence of the “RSK” and plans for evacuation were put in
40
place .
5. By 3 August, Serb leaders knew that Operation Storm would commence the next day.
Nevertheless, they rejected the Geneva proposals for peaceful reintegration. Croatia’s Pleadings
offer a detailed rebuttal of the Respondent’s submissions in this regard 4. Martić told a gathering
of Serbs that the strategy of the rebel Serb leaders was to w ait for Croatia to attack, create a
38
Counter-Memorial of Serbia (CMS), para. 1160.
39Reply of Croatia (RC), para. 10.114.
40RC, paras. 11.28-11.37.
41
RC, paras. 10.112, 11.32-11.35 and Additional Pleading of Croatia ( APC), paras. 2.49-2.51. - 25 -
stalemate, and achieve international recognition for the so- called “RSK” . It was plain that the
rebel Serbs had no intention of seeking a peaceful solution.
6. On 3 August one day before Operation Storm commenced Serb forces shelled
43
Dubrovnik and its surroundings, killing at least three civilians and wounding others . It was in
these circumstances that Croatia acted in legitimate national interest and took lawful and necessary
steps to restore control over its territory. Operation Storm began on 4 August 1995.
II. Planning and preparation for Operation Storm
7. I turn now to the planning for Operation Storm which provided for a simultaneous attack
by Croatian forces, in all operational and tactical directions, a nd an advance to the border with
Bosnia within seven days. General operational planning was governed by a Croatian Army
44
Directive issued on 26 June 1995 . This Directive included guidance on the use of artillery.
Following this detailed artillery plans were prepared 45.
8. As you are aware, on 31 July 1995, President Tudjman met with senior military officials
to consider military options for retaking Croatian territory at Brioni. Sir Keir Starmer will take the
Court through the Brioni Minutes in some detail.
9. On 2 August 1995, at a meeting at the Croatian Ministry of Defence, Mr. Šušak, the
Minister, met with operational commanders to discuss combat plans and plans for re -establishing
law and order in the liberated territories following Storm. He stressed that all military police be
“energetic in its actions and prevent . . . offences”. He expressly reiterated a prohibition of any
“uncontrolled conduct” 46. This order was given after the Brioni meeting. The final decision to
launch Storm was taken at a meeting of Croatia’s National Security Council on the evening of
3 August 47.
42
RC, para. 11.34 and RC, Ann. 161.
43
RC, paras. 11.36-11.37.
44RC, Ann. 170.
45RC, para. 11.57; RC, Ann. 173 (Witness Statement of Rajčić, Chief of Artillery, Split MD).
46
RC, Ann. 172 and Gotovina Trial Judgement (“TJ”), para. 1987.
47RC, para. 11.57. - 26 -
III. Conduct of Operation Storm
48
10. Mr. President, a full operational account of Operation Storm is set out in the Reply .
[Screen on] It was a large operation involving multipl e lines of attack across a long confrontation
49
line, as you can see on the graphic . The Respondent has not challenged the Applicant’s account
of the combatants involved the Croatian armed forces and the army of the “RSK” known as
50
the SVK and of their weapons, including rocket systems, tanks and artillery .
11. The Split Military District of the Croatian Army started its operation at 5 a.m. on
4 August. In Knin, the “capital” of the “RSK”, artillery was directed against military targets spread
across the city, including the headquarters of the SVK’s General Staff, the Northern Barracks, the
TVIK factory and the railway intersection 5. An artillery barrage followed on the morning of the
5th and the Croatian infantry entered Knin at 11 a.m. the same day. Serb forces withdrew and Knin
was liberated 5. [Screen off] Serbia alleges that through Operation Storm , Croatia “succeeded in
53
its criminal plan to destroy Krajina Serbs” . However, c ontrary to Serbia’s claims, there was n o
criminal plan, as Sir Keir will demonstrate. There was no “indiscriminate shelling” of towns and
villages; no “forcible displacement”, no targeting of Serbs who remained and no policy of
imposing barriers to the return of Serb refugees. The Applicant took measures to prevent unlawful
acts before, during and after Storm. It initiated investigations and legal proceedings to punish
individual perpetrators of such acts. I will say something about each of these allegations.
(1) Shelling during Operation Storm
12. The Respondent claims that “artillery fire was of special importance” during Storm and
that artillery orders did not specify the targets of artillery attack. It also asserts that certain towns
54
“with no identifiable military targets” were repeatedly shelled . In doing so it repeats the claims
48
RC, paras. 11.56 et seq.
49RC, Ann. 174.
50See Davor Marijan, “Storm”, Zagreb, August 201 0, p. 44 states that in mid -1994, the SVK had 300 tanks,
295 various armoured battle vehicles and 360 artillery pieces of 100 mm and larger calibre. The CIA publication relied
upon by Serbia also mentions the comparative armoured strength of the SVK. See, e.g., CIA, Balkan Battlegrounds: A
Military History of the Yugoslav Conflict 1990–1995, May 2002, Vol. I, pp. 368-369.
51RC, para. 11.62. See RC, Anns. 176, and 177.
52
Ibid.
53
CMS, para. 1356.
54CMS, paras. 1215-1216; see also, e.g., CR 2014/18, p. 31, para. 117 (Jordash). - 27 -
of the ICTY Prosecutor in the Gotovina case and asks this Court to review the evidence de novo.
In effect it invites this Court to act as a court of higher appeal to overturn the findings of the
Appellate Chamber of the ICTY.
13. Mr. President, Members of the Court, there was no “deliberate indiscriminate shelling”
by Croatian forces. The shelling was carried out in compliance with applicable international rules.
Artillery was used to engage legitimate and pre- determined military targets in Knin, Benkovac,
Obrovac and Gračac. And the Trial Chamber in Gotovina identified legitimate military objectives
in each of these towns 5.
14. Croatia’s Additional Pleadings filed before the Appeal Chamber’s judgement set
out detailed cri ticisms of the Trial Chamber’s judgement, including its finding that there was
“indiscriminate and unlawful” shelling of the four towns that is Knin, Benkovac, Obrovac and
Gračac. Croatia argued that the evidence showed that artillery rounds were not fired
indiscriminately; that the Trial Chamber’s findings were based on an arbitrary and overly
restrictive margin of error; and that the Trial Chamber had improperly decided that projectiles
impacting more than 200 meters from known military targets were deliberately fired into civilian
areas 56.
15. Croatia’s arguments were fully vindicated by the Appeals Chamber’s findings, handed
down in November 2012. The Appeals Chamber found that the “touchstone” of the Trial
Chamber’s analysis concerning the existen ce of a joint criminal enterprise was its conclusion that
unlawful artillery attacks had targeted civilians and civilian objects in the Four Towns; that these
unlawful attacks caused the deportation of civilians from the “Krajina” region; and that the
artillery attacks were unlawful based on a 200 -metre range of error for artillery projectiles fired at
legitimate targets. The Appeals Chamber unanimously overturned this analysis, holding that the
Trial Chamber had erred in applying the 200- metre Standard 5. Having reversed this finding, the
55
Gotovina TJ, paras. 1899-1902, 1919, 1929-1931, 1939.
56APC, paras. 3.28-3.45.
57
See Gotovina, Appeals Judgement (“AJ”); separate opinion of Judge Theodor Meron, para. 2. - 28 -
Appeals Chamber then reversed the Trial Chamber’s finding that a joint criminal enterprise existed
58
to permanently remove the Serb civilians from the “Krajina” by force or threat of force .
16. Mr. President, you will have noted that the Respondent’s engagement with this issue was
59
brief last Friday, compared to the very extensive arguments in the written submissions . The
reason is plain: with the decision of the Appeals Chamber the Respondent’s case collapses in its
entirety. Serbia is bound to admit that the shelling undertaken by Croatian forces during
Operation Storm was not criminal, and that it cannot have constituted evidence of genocidal intent
60
per se .
(2) The departure of the Serbs
17. The Respondent’s second argument is connected to the first: it argues that the departure
of the Serbs from the “Krajina” was caused by indiscriminate shelling. Mr. President, this
argument is untenable.
18. In so far as the Trial Chamber had found that the Serbs were forcibly deported as a result
of unlawful shelling, its findings were limited exclusively to the Four Towns. It held, as fact, that
Serbs left all other areas of southern “Krajina” on 4 and 5 August for other reasons. Their
departure was not the result of any unlawful conduct by Croatian forces. By reversing the Trial
Chamber’s judgement regarding the unlawful attacks on the Four Towns, the Appeals Chamber
also reversed the forcible deportation finding with regard to the Serbs from the Four Towns.
19. The truth is, as the Trial Chamber noted, that some Serbs left “because of a fear of the
violence commonly associated with armed conflict, or general fears of Croatian forces or distrust of
61 62
Croatian authorities” . Some departing Serbs then prompted others to le ave . This is
corroborated by witness statements filed by Croatia 63.
58
Gotovina, AJ, paras. 96-97.
59
CMS, paras. 1215-1228; Rejoinder of Serbia (RS), paras. 723-728.
60RS, para. 728.
61Gotovina et al., TJ, para. 1762.
62
Ibid., paras. 1754, 1762.
63See e.g. APC, Ann. 22. - 29 -
20. Second, there was an ongoing departure of Serbs from the RSK throughout the four years
of its existence. These departures increased after Operation Flash , and were the result of years of
Serbian claims that co-existence between the Serbs and Croats was impossible. Ms Law referred to
the extensive hate speech and demonization of the Croats, as has Agent 65.
21. Mr. President, Members of the Court, the expert witness for Serbia, Mr . Štrbac,
confirmed that the RSK authorities were evacuating the civilian population from Croatia. On the
third day of Operation Storm, he stated, and I quote [Screen on]
“we cannot allow ourselves to live with [the Croats] so that the genocide committed
against us in the past would not be repeated, and I use the term we ‘cannot allow
ourselves’ because it has a stronger meaning than ‘we do not wish to live with them’,
we do not and cannot of course live with them and because of this it was necessary
first and foremost that we preserve our biological potential, our people. We could
have died off. The civilian population could have been killed. Our civilians and
women could have been killed. We need our biological potential for something that is
hopefully yet to come.” 66 [Screen off]
Mr. President, I should also add that when Mr. Lukić introduced Mr. Štrbac’s expert statement to
the Court last week, and gave a detailed account of his curriculum vitae, he failed to mention a key
67
fact: Mr. Štrbac, Serbia’s “expert witness”, was a Secretary in the Government of the RSK .
22. Third, there is evidence that some Serbs were compelled to leave by the RSK authorities
and its armed forces, as they had been after Operation Flash. This was confirmed by many Serbs
who later returned to Croatia and mention leaving pursuant to orders of the “local authorities”,
pressure from the “Krajina police” and “the military and civilian authorities of the Krajina” 68. The
69
Trial Chamber also noted that some Serbs left at the behest of the rebel Serb leadership .
23. Finally, the RSK had prepared comprehensive evacuation plans 70. Croatia addressed
71
these in detail in the written pleadings . It is plain from the evidence that the Respondent’s
6APC, para. 3.47 and RC, para. 11.82.
6CR 2014/5, p. 34, paras. 11 et seq. (Law). See Memorial of Croatia (MC), Vol. 5, App. 3 (Hate Speech); RC,
Ann. 106 (Professor de la Brosse Report); APC, Ann. 17.
66
RC, Ann. 200 (transcript, Savo Šrbac TV Studio, Banja Luka, 7 Aug. 1995); emphasis added.
67
CR 2014/16, pp. 62 et seq. (Lukić).
6See APC, Ann. 23; Serb returnee states that while in a column on the way to Dvor, Croatian p olice asked him
why they were proceeding to Bosnia when they could go back home? He states that the officers provided them food and
water, but despite their requests to re main, he and the others refused “because [they] were afrai d of the Army of the
Krajina . . . which specifically insisted that [they] leave [Croatia] immediately. . .”. See also APC, Anns. 12-14.
6Gotovina et al., TJ, para. 1762
7CR 2014/17, pp. 62-64, paras. 171-176 (Obradović). - 30 -
reliance on the Trial Chamber’s judgement to show a “massive exodus” brought on by the shelling
is without any foundation . 72
(3) Response to claims about the “victims of Storm”
24. I turn now to Serbia’s allegations with regard to the victims of Operation Storm. Croatia
has never denied that there were victims, and regrets that there should have been any loss of life or
other harms. However, Croatia categorically rejects allegations that there was any plan to commit
violations of the rules of international humanitarian law, much less to commit genocide.
25. In its Counter-Memorial, Serbia made allegations regarding the numbers of Serbs killed
or missing during and after Storm relying on the Croatian Helsinki Committee Report (CHC) and
Veritas. These two reports set out widely differing figur es. Yet another figure a different
73
one was advanced by the Respondent last week .
26. The Respondent alleges that “the killing of Serbs was mainly carried out while Serbs
were fleeing the area in columns, or while they were in their houses for those Serbs who did not or
could not escape fast enough” 74. It alleges that there were more killings in Sector North “probably
due to the fact that the evacuation started earlier, which gave Croatian forces more time to organise
and direct the shelling of columns” 7. Initially, it provided no direct evidence in support of its
claims. It attempted, in its Rejoinder, to rectify this significant lacuna in its pleadings and evidence
76
by submitting 12 witness statements regarding the columns . I will return to them.
71
RC, paras. 11.77-11.79 and APC, paras. 3.57-3.64.
7RS, para. 740 , citing the Gotovina et al. TJ, para. 1539. Witnesses at the Gotovina et al. Trial, including
Mrkšić, testified that the Serbs left pursuant to evacuation orders, with several leaving before the arrival of the Croatian
army ( Gotovina et al . Trial, 19 June 2009, Mrkšić Testimony: 18935:7-14). See also Testimony of
Ambassador Galbraith, Milošević Trial, Thursday 26 June 2003, p p. 23,181, 23,205. The U nited Nations
Secretary-General informed the Security Council that it was “ difficult . . . to determine the extent to which the mass
exodus of the Krajina Serb population was brought about by fear of Croatian forces, as opposed to a desire not to live
under Croatian authori ty or encouragement by local leaders to depart” (Report of the U nited Nations Secretary-General,
S/1993/730, dated 23 Aug. 1995, p. 3).
7See RS, para. 818 and cf., CR 2014/12, p. 46, para. 113 (Obradović).
74
CMS, para. 1241.
7Ibid., para.1243.
7APC, para. 3.72. - 31 -
(a) Croatia did not target fleeing Serb civilians
27. Mr. President, Croatian forces did not target civilian refugee columns. Columns of
combatants and civilians passed through areas of ongoing fighting. It is deeply regrettable that, on
occasion, some were caught in the crossfire. There is considerable evidence that attests to the fact
that armed members of the RSK’s army travelling in the columns, continued to attack the Croatian
77
army as they withdrew . The Respondent admits that the columns compris ed of civilians and
combatants and that the Bosnian army was also involved in the conflict 78. The Human Rights
79
Watch report relied on by the Respondent last Thursday , investigated the matter and found that:
[Screen on]
“Serbian soldiers and heavy artill ery, including tanks, were reported to have
been part of, or near, the refugee columns. Moreover, Serbian combatants
interviewed . . . confirmed that they transported large quantities of ammunition and
weaponry from the Krajina and that they transferred t hese weapons to the Bosnian
Serb authorities upon arrival in territory under the latter’s control. The materiel was
transported within vehicles manned by RSK military forces that were intermingled
among the columns of fleeing refugees.” 80 [Screen off]
28. This view was entirely corroborated by the final report submitted by the commander of
the rebel Serb Army, General Mrkšić, to his commanding officer in Belgrade, General Perišić. In
this report, submitted three weeks after Storm , Mrkšić sets out the actions of the retreating rebel
army including the fact that they were transporting significant quantities of weapons for the
Bosnian Serb army of Ratko Mladić near Petrovac 8.
29. In any event, contrary to Serbia’s allegations, the Applicant has never stated that civilians
become legitimate targets when they flee with soldiers 8. The Respondent claims that the targeting
83
of civilians was confirmed by the Trial Chamber in Gotovina . It provides no citation in support.
The Trial Chamber made no findings that the Croatian army targeted refugee columns.
77APC, para. 3.68.
78
CMS, paras. 1244, 1243.
79CR 2014/17, p. 34, para. 74 (Obradović).
80Human Rights Watch, Impunity for Abuses Committed During “Operation Storm ” and the Denial of R ight of
Refugees to Return to the Krajina, Aug. 1996, at: http://www.hrw.org/reports/1996/Croatia.htm.
81RC, Ann. 165.
82
RS, para. 746.
83RS, para. 747. - 32 -
30. Virtually all of the Respondent’s initial allegations with regard to the alleged killing of
Serbs “escaping in columns” were based on statements in the CHC Report 84. As Serbia chose not
to annex these state ments to its pleadings, it remains unclear when these statements were made,
who made them and to whom were they made 85. It is characteristic of the Respondent’s approach
to evidence that it should proceed in this way, whilst seeking to criticize the Applic ant’s witness
statements 86.
31. In any event, Croatia has reviewed the Respondent’s allegations carefully. An analysis
of the CHC Report indicated a multitude of discrepancies and inconsistencies: these were
87
addressed in our written pleadings . The Tria l Chamber in Gotovina confirmed these flaws. It
concluded that it could not rely on the report — in relation to information in the report if
88
uncorroborated by other evidence . Mr. President, Members of the Court, the Respondent bases a
number of its al legations on this report alone. These remain uncorroborated and unsupported by
any other evidence. They should be dismissed in their entirety.
32. In its Rejoinder, for the first time, Serbia filed 12 statements regarding the alleged attacks
on refuge e columns 89. We set out our response in the Additional Pleading. One of these
statements was provided by a former police officer of the “RSK”. This statement of
Mirko Mrkobrad was referred to by the Respondent last Wednesday 9. The witness mentions an
attack by the Croatian Army on 8 August 1995. He offered what he himself characterized as a
“wild guess” that it left at least 30 people dead and many wounded. He goes on to state that once
the convoy reached Glina, it was surrounded by the Croatian Army and he said: [Plate on]
“All of a sudden, a small arms fire was opened at them. People91ere falling like
flies. My wild guess was that about 150 people were killed.”
84See CMS, Chap. XIII, (5)(A), pp. 398-404.
85
RC, paras. 11.91-11.92.
86
CMS, para. 153.
87RC, para. 11.92, and RC, Anns. 204 and 205.
88Gotovina et al., TJ, p. 30, para. 50.
89
RS, paras. 756-760, Anns. 52-66.
90
CR 2014/16, pp. 61-62.
91RS, Ann. 52 (Minutes of a hearing of Mirko Mrkobrad) ; emphasis added. - 33 -
Mr. President, Members of the Court, the Respondent did not quote this part of the st atement in its
Rejoinder despite the very large number of alleged victims. It also offers no corroboration of this
event. [Plate off]
33. On Thursday Serbia’s Agent accepted the Applicant’s account of the surrender of the
Serb Army’s 21st Kordun Corps t o Colonel Stipetić of the Croatian army. He accepted the
account of the treatment of rebel soldiers and civilians, in the midst of fighting, in Topusko in
92
Sector North, on 7 August 1995 . Reports show that the Croatian Military Police provided
security to moving columns of Serb combatants and civilians. They established reception centres
93
for civilians and took the injured to medical centres .
34. In this light, the Respondent’s allegation of targeting civilian refugee columns in Sector
North is unfounded for at least three reasons. First , there is no evidence that the Croatian Army
targeted refugee columns. Second, Serbia acknowledges that the incidents it highlights in Sector
94
North were areas where the Army of Bosnia was also operating . Third, Serbia does not explain
why the commander in charge of Sector North, Petar Stipetić, would target refugee columns,
when according to the Respondent’s Agent he did not share the alleged genocidal intent of
95
the Brioni participants .
35. There are also repor ts that the retreating Serb forces caused casualties amongst the
96
fleeing population . A representative of the Croatian Helsinki Committee relied on so heavily
by the Respondent testified at the Gotovina trial that 100 Serb civilians were run over by
97
Serbian tanks fleeing Sector North . Moreover, a Serb returnee testified that “i n a column via
Žirovac. . . tanks led by [a Serb] Mile Novaković were treading over a part of our column” 98.
92
CR 2014/17, p. 27, para. 55 (Obradović).
9See A PC, Ann . 30 (Report on the Employment of RH Armed Forces Military Police Units in Storm,
11 Aug. 1995).
9CR 2014/17, p. 58, paras. 158 ff. (Obradović). See also tabs 7 and 14 of Serbia’s judges’ folder.
9CR 2014/16, p. 28, para. 56 (Obradović).
96
APC, para. 3.69. See ibid., Anns. 19 and 20.
9Gotovina et al, Trial Transcript, p. 15975.
9APC, Ann. 19. Similarly, another witness refers to the killing of her Serb neighbour, by “members of the
Serbian army, that is, ‘Arkan’s men’”, APC, Ann. 20. - 34 -
36. Last week Serbia also referred to two attacks on columns in Medeno Polje and Svodna in
Bosnia . While these actions by the Croatian air force took place in Bosnia, the document Serbia
cites in support (filed in the Court last August) does not “confirm” that the actions “ targeted Serb
civilians” 100, as the Respondent claims. The document makes clear that the targets were “armoured
mechanized” columns and the actions resulted in the destruction of a tank and several vehicles.
37. Finally, the Respondent has also failed to provide any evidence of a “plan” to target the
civilian columns.
(b) The Serbs that remained were not “systematically” killed
38. Mr. President, Croatia did not “systematically target” theSerbs who remainedduring and
after Storm. Nor did it carry out a “systematic killing campaign” against the Serbs 101; this was
confirmed by the ICTY in Gotovina. No convincing evidence ha s been tendered in support of
these allegations. In its Counter -Memorial, the Respondent relied almost exclusively on the
102
discredited CHC Report . Its allegation that “the majority of killings were committed in August
1995 but continued throughout 1995” lacked any source 103. In several instances, the Respondent
provided no details of the alleged killings victims without names; events without dates; killings
without locations. This argument by assertion, untroubled by any evidence. Equally unfounded
since there is no supporting evidence is the claim that the alleged killings were systematic.
39. The number of persons killed after Operation Storm is grossly exaggerated by the
Respondent. Counsel for the Respondent, Mr. Jordash, referred to the “fi nal and devastating
104
destruction of those left behind” . Professor Schabas told the Court that “Croatian soldiers
kill[ed] everyone whom they were able to track down” 105; adding that the “Croatian army
106
massacred virtually everyone who had stayed behind.” Yet the United Nations
99CR 2014/17, p. 61, para. 167 ff. (Obradović).
100
Letter dated 8 Aug. 2013 from Saša Obradović to the International Court of Justice, Ann. 3.
101CMS, para. 1258 and RS, paras. 762 ff.
102CMS, para. 1260.
103CMS, para. 1259.
104
CR 2014/18, p. 11, para. 11 (Jordash).
105CR 2014/18, p. 66, para. 68 (Schabas).
106Ibid. - 35 -
Secretary-General’s Report of 21 December 1995 (cited by the Gotovina Trial Chamber) found that
9,000 Serbs remained in UN Sectors North and South. For his part, Mr. Štrbac, the Respondent’s
expert witness, claims that 1,662 persons were allegedly killed by Croatian Forces during
107 108
Operation Storm , of whom 1,513 were killed during the first week . On Serbia’s case, at its
very highest, 149 people were killed after the first week of the operation. There was no killing
campaign.
40. With regard to Sector South, initially the Respondent claimed that civilians in Knin were
shot by Croatian forces upon entering the city. You were shown testimony from the Gotovina trial
to demonstrate the “magnitude of killings”. Last week, you saw video testimony of Andrew Leslie
at the Gotovina trial, in which he claimed to have seen 30 to 60 bodies at Knin Hospital, including
women and children. However, Mr. President, the Trial Chamber ultimately rejected this
testimony. It noted: [Screen on]
“In a Canadian radio programme broadcasted [sic] on 21 July 2003, Andrew
Leslie stated that during Operation Storm there was a deliberate targeting of
residential areas on a massive scale which resulted in the deaths of an estimated
109
10,000-25,000 people.”
As compared with Mr. Leslie’s excessive claim, the Trial Chamber was unable to identify a single
victim of shelling in Knin. It is easy to see why the ICTY ignored Mr. Leslie’s testimony. There is
no reason for this Court to depart from the ICTY’s assessment of it. [Screen off]
41. Similarly, the crimes alleged to have been committed in Sector North were not supported
by reliable evidence. Once again Serbia relied on the CHC Report. Again, it contains numerous
unsubstantiated allegations and flaws wit h respect to acts committed, the perpetrators of the acts
110
and circumstances of death .
42. The Respondent also relies on the list prepared by Veritas. The Applicant identified
numerous discrepancies and mistakes and noted other flaws, which go to its probative value. We
provided examples in the Reply 11. You can see some of these on your screen. Veritas lists
107
Expert witness statement of Savo Štrbac, para.6.3.2.
10Ibid., para. 6.7.
10Gotovina et al., TJ, para. 1334.
110
See CMS, paras. 1301- 1311 and response in R C, paras. 11.98 ff . See also R C, Vol. 5, Ann. 207 (List of
Persons with Incorrect Personal Data) and Ann. 208 (List of Persons with Incomplete Personal Data).
111
RC, para. 11.68 and related footnotes. - 36 -
persons who were alive when the list was published, and who obtained new documents after Storm.
As examples:
Veritas claims that Dušan Korolija 112 died in September 1995, yet his death
certificate states that he died in April 2009 .
It claims that Nikola Kresojević went missing on 5 August 1995, yet he applied
for an identity card thirteen years later, in 2008 . [Screen off]
43. Veritas also lists persons who died in circumstances unrelated to the operation, including
Mirko Rajšić, killed in a traffic accident in 1993 ; Živko Banda died as a result of falling down
115
the stairs drunk in 1992 ; examples of two ladies who both of whom died of natura l causes in
1993 . It also lists several victims twice, as the Agent pointed out 117. These flaws in the report
are typical of its quality. It is entirely unreliable.
44. Mr. President, the two NGOs that the Respondent relies upon, the Croatian Helsinki
Committee and Veritas and which the Respondent claims corroborate each other 118 are in
fact extremely critical of one another. Far from seeing Veritas as “uncovered, and beautiful”
119
holding a mirror “in which misdeeds of everyone are reflected” the CHC has called Veritas
“biased” and accuses Veritas of having “made the living dead and turned soldiers into civilians” 120.
Similarly, Serbia’s expert witness, who presides over Veritas has identified flaws in the CHC
Report including double entries, incorrect biographical details, and listing people alive as having
died 121. The only conclusion to be drawn is that the documentation that the Respondent relies upon
is inaccurate, unreliable, and biased.
11RC, Ann. 179.
11RC, Ann. 180.
11RC, Ann.182. See also RSK, Police Department, Letter Confirming the Death of Branko Bajić, 22 Feb. 1995,
RC, Ann. 183; Željko Bolić, died in a traffic accident in August 1993, RSK, Regional Centre Vrginmost, Operational
Report, 27 Aug. 1993, RC, Ann. 184; Dragan Dobrić who died in 1992, RC, Ann. 186.
11RC, Ann. 185.
116
RC, Anns. 187 and 188.
117
For example Predrag Krivokuća.
118
CR 2014/16, p. 40, para. 21 (Obradović).
11CR 2014/16, p. 42, para. 28 (Obradović).
12CMS, Ann. 62, p. 283 at 287.
121
Expert witness statement of Savo Štrbac, filed by Serbia on 1 Oct. 2013, Sect. 6.10. - 37 -
45. The Respondent seems to have recognized this. After the Appeals Chamber acquitted
the Generals,Serbia filed new material to try and rebuild a case that had fallen apart. In addition to
the documents it filed in August 2013, six months ago, the Respondent filed five new statements.
These included the statement of the expert that I have referred to. This purported to set out the
122
particulars of 11 alleged sites of “mass murders” . Three of these sites were not mentioned in the
Counter-Memorial. Three others were mentioned but without any particulars as to the numbers or
identities of victims. With respect to five, the only authority provided was the CHC Report.
Serbia’s Rejoinder is silent with respect to ten of these sites. It only refers to the events in
Kijani 123.
46. The Respondent testifies that only one of the 11 sites of “mass murders” were considered
in the Gotovina indictment 124. This is incorrect. The Trial Chamber made findings with respect to
three further incidents (Palanka, Zrmanja and Mokro Polje). The Trial Chamber noted that a
number of criminal investigations were conducted by the Croatian Police in relation to these. It
125 126
specifically noted one conviction in Zrmanja , criminal reports in relation to Mokro Polje and
with regard to the events in Kijani, the Trial Chamber found that it was p ossible that the perpetrator
was an ethnic Serb 127. Last Thursday, Mr. Obradović told the Court that “no one has ever been
accused” in relation to the events in Mokro Polje and that Trial Chamber was “unable to draw any
conclusion regarding the identity or affiliation of the perpetrator” in Kijani 128. This is simply not
true. Moreover, the Respondent’s expert fails to mention any of this.
47. Serbia also relies on four new witness statements prepared expressly for this case 129. We
take particular issue with the statement of Božo Suša, who claimed to have witnessed the execution
122
Expert witness statement of Savo Štrbac, filed by Serbia on 1 Oct. 2013, Sect. 6.11.
123
RS, para. 767.
124Expert witness statement of Savo Štrbac, filed by Serbia on 1 Oct. 2013, Section 6.11.
125Gotovina et al., TJ, paras. 244 ff., 2189.
126
Ibid., paras. 229-236.
127
Ibid., paras. 257- 262.
128CR 2014/17, p. 39-40, paras. 89-93 (Obradović).
129New witnesses Sovilj, Babic, Ugarkovi ć, Suša referred to by the Respondent in CR 2014/16, CR 2014/17 and
CR 2014/18. - 38 -
of 15 Serb civilians in a church in Knin. No such incident was mentioned in the Gotovina
indictment. Another example of a claim made without a shred of evidence.
48. Mr. Obradović claimed last week for the first time that Mr. Štrbac had uncovered
“70 victims who were killed just in the town of Knin in Operation Storm . . . the majority of whom
130
must be the victims of shelling” . This is most curious, since Mr. Štrbac’s statement does not say
that the section relied on by Mr. Obradović makes no reference to shelling 131. If Serbia and
Mr. Štrbac really believed that there was evidence of victims of shelling in Knin, they had until
November last year, one year after the Gotovina Appeals judgement, to submit that evidence and to
seek a review. They did not do so.
49. Mr. President, Members of the Court, the number of those alleged to have been killed is
grossly overstated by the Respondent.
50. On a related note, the Respondent has also made allegations regarding Croatia’s
investigatory policy after Storm. The Trial Chamber considered this issue at length 132, and noted
the efforts of the Croatian law enforcement authorities to investigate and prosecute crimes. It
found “that the insufficient response by the Croatian law enforcement authorities and judiciary can
to some extent be explained by the . . . obstacles they faced and their need to perform other duties
133
in August and September 1995” . The Trial Chamber concluded that it could not establish a
policy of non-investigation of crimes committed against Serbs. Mr. President I am wondering if
you think that we should take a break now?
The PRESIDENT: How many more minutes do you have still?
Ms SINGH: Maybe ten.
The PRESIDENT: OK, you can proceed, please.
Ms SINGH: Thank you.
130
CR 2014/17, p. 32, para. 67 (Obradović).
13Ibid., footnote 94.
13Gotovina et al., TJ, paras. 2100, 2108, 2137.
133
Ibid., para. 2203. - 39 -
(4) Response to Allegations of Looting and Destruction of Serb Property
51. The Respondent’s expansive allegations regarding looting and the destruction of property
were significantly scaled down in its Rejoinder. Croatia maintains its detailed respon se in its
134
entirety . The evidence demonstrates that acts of looting and destruction were not “planned”,
“tolerated” or “condoned” by the Croatian government. Mr. Akashi, the United Nations
Secretary-General’s Special Representative stated that he “did no t in any way associate the
135
continued burning and looting . . . with the Government” .
52. The Agent has taken you to the Trial Chamber’s findings that also did not accept the
claims advanced by the Respondent. There is no reason for this Court to adopt a different view.
(5) The Serbs were not Targeted after Operation Storm
53. Finally, there is no evidence to support the allegation that Serbs were targeted after
Operation Storm. Contrary to the allegations we heard last week, Croatia did not take lega l
measures that targeted the Serbs; or use its legal system in a discriminatory manner or prevent
136 137
their return . Nor did it confiscate Serb property .
54. Once again, Serbia referred to certain temporary laws regarding property that were
138
subsequently amended or repealed. This issue has been fully addressed in the written pleadings .
Croatia promulgated a law on temporary takeover of property for the protection of abandoned
properties irrespective of the ethnicity of the owners. This was done for sever al reasons including
to house refugees and internally displaced persons and to protect the properties from theft 139.
140
55. A greater obstacle to the return of the Serbs to Croatia was created by the Respondent .
Under Serbian law refugees are bound by the s ame requirements regarding military service as
citizens. As a result refugees from the “Krajina” were inducted into military service in Serbia and
134
RC, paras. 11.103-11.108.
135
RC, Ann. 209 (UN, Coded Cable, Meeting with Mr. Šarinić, 9 Sept. 1995)
13CMS, paras. 1328, 1329, 1338-1346 and 1347-1352. RS, paras. 776-780, 816, 820, 821-823.
13CR 2014/17, p. 16, para. 147 (Orbadović).
138
RC, paras. 11.115-11.118.
139
APC, para. 3.96 and Ann. 33.
14RC, Ann. 215 and APC, para. 3.93. - 40 -
sent to fight in Bosnia and Eastern Slavonia (in Croatia) in the late summer and autumn of 1995.
141
The Respondent accepts this .
56. As the Agent mentioned during the conflict Croatia provided shelter for over a million
people including refugees and internally displaced. The Government was in favour of repatriation
once basic infrastructure could be provided, and law and order had been comprehensively restored.
The UNHCR has monitored the repatriation. In 2011 a European Commission Progress Report
noted that Croatian authorities had registered over 132,000 Serb returnees. More recently UNHCR
142
estimated that the number of Serb returnees is 133,280 .
57. Almost 150,000 housing units have been reconstructed at a cost of 2.24 billion euros. It
is estimated that one-third of this was for the reconstruction of housing units for the ethnic Serbs.
These are just som e programmes and developments that demonstrate that Croatia did not enact
legal measures “to prevent any possibility that Krajina Serbs would reclaim their property” as Serbia
143
alleges . The number of Serb returnees is a testament to this.
58. Contrary to the Respondent’s repeated misstatements last week that no one has been held
accountable for crimes committed during Storm, Croatia began to prosecute perpetrators of
murders, including its soldiers, in 1995 itself 14. The Agent has referred to various dom estic
proceedings. I would only add that the Organization for Security and Co- operation in Europe
(OSCE) has noted the “significant efforts” of Croatia in the prosecution of war crimes which it has
145
found are “conducted in an impartial manner by. . . independent judicial bodies” .
14Expert witness statement of Savo Štrbac filed with the Court on 1 Oct. 2013, section 6.6.4.
142
The UNHCR statistics are based on data provided by the State Office for Reconstruction and Housing Care.
All returnees are registered in UNHCR Field Units’ VOLREP Database (as at 15 Dec. 2013). According to the UNHCR
Serb refugees returned to Croatia in 1998 (10,048), 1999 (12,378);2000 (15,619); 2001 (10,888); 2002 (12,230), 2003
(9,591); 2004 (8,198), 2005 (5,612) and every year since. UNHCR Statistical Report June 2013. See:
http://www.unhcr.hr/media/com_form2content/documents/c2/a57/f9/UNHCR%20…
3.xls.
143
CMS, para. 1346.
144
Gotovina et al., TJ, paras. 207, 311, 2172 to 2192.
14APC, Ann. 33 (Status Report of the Head of the OSCE Office in Zagreb to the OSCE Permanent Council,
22 Nov. 2011). - 41 -
IV. Conclusion
59. Mr. President, Members of the Court, this brings me to my conclusions: [Screen on]
(i) The purpose of Operation Storm was to establish the territorial integrity of Croatia. This
was accepted by the ICTY ’s Trial Chamber in Gotovina, which found that “the primary
focus of the [Brioni] meeting was on whether, how, and when a military operation against
146
the SVK should be launched” .
(ii) There was no plan to destroy the rebel Serbs during Operation Storm or thereafter, either
at Brioni or anywhere else. [Next graphic]
(iii) There was no indiscriminate shelling of Serb civilians and no forcible displacement.
There were various reasons for the departure of the Serbs, not least the fear of an
impending mili tary engagement and a refusal to accept Croatian sovereignty. [Next
graphic]
(iv) There was no plan to target fleeing Serbs civilians and there was no systematic killing of
the Serbs who remained. Croatia took a number of measures to prevent unlawful ac ts and
initiated investigations and legal proceedings to punish individual perpetrators. [Next
graphic]
(v) Croatia did not adopt measures to prevent the return of Serb refugees and the return of
over 130,000 Serbs is testament to this fact. [Screen off]
60. Mr. President, Members of the Court, that concludes my presentation. I thank you so
much for your kind attention and ask that you call Sir Keir Starmer after the break.
The PRESIDENT: Thank you very much. The Court takes 15 minutes break. Aft er that I
will call on Sir Keir Starmer, thank you. The sitting is suspended.
The Court adjourned from 11.25 a.m. to 11.50 a.m.
The PRESIDENT: Please be seated. I give the floor to Sir Keir Starmer. Please, you have
the floor, Sir.
14Gotovina et al., TJ, para. 1990. - 42 -
Sir Keir STARMER:
NO GENOCIDE AGAINST THE SERBS IN THE “RSK” AND
NO RESPONSIBILITY OF C ROATIA
I. Introduction
1. Mr. President, Members of the Court, in this speech I will address the question of whether
the Respondent has made out its case that the Applicant committed genocide against the Croatian
Serbs living in the area of Croatia declared as the -called “RSK” during Operation Storm or
thereafter.
2. I will analyse, from a legal perspective, the Brioni Minutes and the Respondent’s so-called
“confirmatory facts”, which last Friday transformed, without much explanation, into evidence of
“pattern”. Before I do either of those things, I will deal with the legal significance of the ICTY
Trial and Appeals Chamber decisions in the Gotovina case, and will thereby respo nd to the
important question asked by Judge Bhandari on Friday.
II. The Gotovina case
3. Let me start my analysis by focusing on the legal significance of the Gotovdecisions.
As you know, the Trial Chamber found that Mr. Gotovina was part of a joint criminal enterprise,
whose common purpose was permanently to remove the Serb civilian population from the Krajina
region by ordering unlawful artillery attacks on four towns: Knin, Benkovac, Obravac and
through Mr. Markač Gračac, and by failing to make serious efforts to prevent or investigate
crimes committed by his subordinates.
4. The central issue on the appeal was the alleged unlawful shelling of those “Four
Towns” and I want to just focus on that. The Trial Chamber, as you know, had employed a
“200-metre standard”, essentially finding that any artillery fire impacting 20metres or more
beyond a military target was evidence of the unlawful targeting of civilians and civilian objects.
So, the standard was critical to their approach and their finding in the “Four Towns” that the
shelling was unlawful. - 43 -
5. Last Friday, Professor Schabas referred to the “200 -metre standard” used by the ICTY
Trial Chamber. He told you and I will quote him precisely that “the majority of the [ICTY]
Appeals Chamber said that this was an error” 147. That may have been a rather loose summary but it
is not accurate. The Appeals Chamber unanimously found that the 200-metre standard of artillery
accuracy was invalid: that was unanimous; they described it as evidentially groundless 148. I think
that by the time the appeal came on even the Prosecutor had abandoned the standard, so there was
no question that this was not a unanimous decision that the starting -point was i nvalid. The two
dissenters disagreed not about the invalidity of the starting- point but about the legal consequences
of that invalidity 14. And that in turn developed into a dispute about whether it was an error of law
or an error of fact.
150
6. Since the 200- metre standard was the “cornerstone and organizing principle” of the
Trial Chamber’s analysis, upon which it had based its findings that the two leaders ordered
unlawful artillery and rocket attacks during Operation Storm, the majority ruled that, absen t the
flawed inferences from the 200- metre standard, no reasonable trier of fact could conclude that
Messrs. Gotovina and Markač intended unlawfully shelling civilians or civilian objects. So, once
you took away the standard, the unlawfulness of the shelling fell with it. And the majority went on
to note that, without the unlawful artillery attacks, no court could reasonably decide that the joint
criminal enterprise existed. They then considered whether the convictions could be sustained on
any alternative theory of liability, and found that they could not. They did , contrary to one of
Professor Schabas’s submissions 151, specify a “legal error” 152. Despite the attempts by the
153
Respondent’s legal team to characterize this approach as “puzzling” , this is self -evidently a
rational and entirely conventional approach. As I will show in just a minute, they actually followed
the structured analysis of the Trial Chamber in coming to their conclusions.
147CR 2014/18, p. 52, para. 27 (Schabas).
148
Gotovina, Appeals Judgement (AJ), para. 58.
149
Gotovina, AJ; separate opinion of Judge Meron, para. 2.
150Gotovina, AJ, para. 64.
151CR 2014/18, p. 52, para. 28 (Schabas).
152
Gotovina, AJ, para. 64.
153CR 2014/18, p. 28, para. 101; p. 29, para. 109 (Jordash). - 44 -
7. Now, just pausing there: no unlawful shelling, no intenti on to remove or deport, no joint
criminal enterprise (JCE); it is immediately obvious to this Court, as it is to the Respondent, why
the ruling of the ICTY Appeals Chamber stops the counter-claim in its tracks.
8. As you have heard, at first instance, the ICTY had already found that the artillery and
shelling attacks on all the other towns and villages bar the four were not unlawful; so that was
already decided. That was a unanimous decision of the first instance chamber and has not
appealed 154. And, as I will develop in a minute, the Respondent is not really being clear as to what
this Court is supposed to do about that finding. On that basis, the ICTY at first instance decided it
could not characterize the civilian departures from those towns and vil lages subject to lawful
attacks as forced deportation. So, no unlawful attack, says the ICTY at first instance, cannot lead
to a finding of forced displacement. The Appeals Chamber adopted the precise same logic.
Having held that because of the flawed 2 00-metre standard, the shelling of the “Four Towns” was
equally lawful and not unlawful, it followed the approach of the court below and held that equally
it could not characterize as deportation the leaving of Serbs from those “Four Towns” 155.
9. Mr. President, Members of the Court, that does bring the counter -claim crashing down.
For this reason, much of the discussion before this Court in the last two and a half weeks has been
about the intention to commit genocide. On the basis of the joint findings of the ICTY at first
instance that were not disturbed, and the findings of the appeal court, before even getting to a
consideration of the specific intent for genocide, the Respondent is left in the position where even
the basic criminality or wrongfulness of the acts it relies on for the actus reus is not made out. As
156
Professor Schabas notes in his book on genocide , when it comes to killing as conduct contrary to
Article II (a) of the Genocide Convention, the ICTR in the case of Akayesu identified two material
elements: the victim must be dead; and the death must have resulted from an unlawful act or
omission 157. It is obvious from the reading of Article II. The actus reus has got to be an unlawful
act. The same applies, obviously, to the other conduct in Article II. If the shelling, which the
154
Gotovina et al., TJ, paras. 1162, 1755.
155Gotovina, AJ, paras. 91, 96.
156W. A. Schabas, Genocide in International Law: The Crime of Crimes (2009), 179.
157
Akayesu, Trial Judgement, paras. 501, 589. - 45 -
Respondent relies on as prohibited conduct and as causing the displacement of Serbs from the
so-called “Krajina” was not even unlawful, the Respondent’s case on genocide is, quite literally,
hopeless. You cannot mount a case to prove genocidal intent on lawful acts.
10. That is why the Respondent’s legal team spent so much time, energy and ingenuity in
trying to convince this Court to depart from the clear approach set out in the Bosnia case and spent
so much time seeking to persuade you not to treat the ICTY Appeal Chamber decision in Gotovina
as “highly persuasive”. That is clear evidence that they understand only too well the significance
of the case for the prospects of success of their counter-claim.
11. They have to convince you not to treat as highly persuasive: [Screen on]
(a) First and this I hope is now coming up on your screen so, first they have to persuade you
not to treat as highly persuasive, the unanimous decision of the ICTY at first instance that the
shelling of all the towns and villages other than the Four Towns was lawful so that was the
first thing; and it is obvious that no amount of criticism heaped on the Appeals Chamber helps
them with that. [Next graphic]
(b) Second, they have to persuade you not to treat as highly persuasive the unanimous decision of
the ICTY at first instance that accordingly the attacks on those other towns and villages were
not carried out with the intention to forcibly displace Serb citizens living there; again, no
amount of criticism heaped on the Appeals Chamber helps them with that. [Next graphic]
(c) Thirdly, they have to persuade you not to treat as highly persuasive the Appeals Chamber
decision that the shelling of the Four Towns was lawful, thus completing the picture. [Next
graphic]
(d) And fourth, they have to persuade you not to treat as highly persuasive the Appeals Chamber
decision that accordingly the attacks on the Four Towns were not carried out with the intention
forcibly to displace the Serb citizens living there.
12. Now if I may just leave those on your screen for a moment. Despite the lengthy
exposition of the Respondent’s case on genocide last Friday, Mr. Jordash did not even begin to
articulate how he says the Court should deal wi th the findings of the ICTY set out at (a) and (b) on
your screen; what guidance, what approach does he put to you on that? If he invites you to treat
them as highly persuasive, that cut rights through his argument. If he invites you to ignore them, - 46 -
he is essentially asking you to depart from that unanimous finding. Perhaps even the findings of
the ICTY at first instance are, like the findings of the Appeals Chamber, to be ignored when
inconvenient to the Respondent’s case. I note that when Mr. Jordash, in his speech, asserted that
the other towns were heavily shelled despite having no identifiable military objects, if you trace the
158
footnote in his speech it actually goes back to the Prosecutor’s pre -trial brief in Gotovina you
will not find there a finding of fact. He makes that assertion he footnotes it look at the
footnote, and where does the footnote take you? It takes you to the Prosecutor’s pre -trial brief in
Gotovina. That, of course, set out the case the Prosecution hoped, but in the end failed, to succeed
on, even at first instance. And whilst I still have that plate still up, can I remind the Court that
again at first instance the ICTY found that the joint criminal enterprise did not extend to crimes
of persecution, destruction, plunder, murder, inhuman acts, and cruel treatment. So, a further
powerful finding of the ICTY at first instance. [Screen off]
13. Mr. President, Members of the Court, it gets even worse for the Respondent. Having
decided as it did about the lawfulness of the shelling and the lack of intent forcibly to displace
Serbs from Krajina, the ICTY Appeals Chamber went on to hold as follows the next part of the
logic: [Screen on]
“Portions of the Brioni Transcript deemed incriminating by the Trial Chamber
can be interpreted, absent the context of unlawful artillery attacks, as inconclusive
with respect to the existence of a JCE, reflecting, for example, a lawful consensus on
helping civilians temporarily depart from an area of conflict for reasons including
legitimate military advantage and casualty reduction. Thus discussion of pretexts for
artillery attacks, of potential civilian departures, and of provision of exit corridors
could be reasonably interpreted as referring to lawful combat operations and public
relations efforts. Other parts of the Brioni Transcript, such as Gotovina’s claim that
his troops could destroy the town of Knin, could be reasonably construed as using
shorthand to describe the military forces stationed in an area, or intending to
demonstrate potential military power in the context of planning a military
159
operation.” [Screen off]
14. In other words, the Respondent’s case on the Brioni Minutes falls as well. The position
could not be worse for the Respondent. Every factor they rely on to prove their case of genocide
has been tested and clear findings have been entered which contradict their case.
15CR 2014/18, p. 31, para. 117, fn. 88 (Jordash).
15Gotovina, AJ, para. 93. - 47 -
15. No wonder Mr. Obradović, Mr. Jordash and Professor Schabas took turns tilting at the
decisions in Gotovina. That is what happened on Thursday and Friday. Mr. Obradović tried to
persuade you to adopt a purely mathematical approach: add the two dissenters in the Appeals
Chamber to the three judges at first instance and claim victory. Well, if this Court adopts that
approach we can all rewrite our CVs to claim success in the cases we actually lost. Perhaps
unpersuaded by his own argument, Mr. Obradović also adopted the tactic of carrying on regardless.
Sweeping statements were made about Article II conduct without any attempt being made before
this Court to make out its basic wrongfulness required as a matter of law, or to relate it to the
findings of the ICTY either at first instance or on appeal.
16. Mr. Jordash obviously took the decision not to follow Mr. Obradović’s crude ,
mathematical approach, emphasizing instead the trenchant terms of the dissent in the Appeals
Chamber. Mr. President, Members of the Court, the Applicant accepts that parts of the dissent
were trenchant. But that is hardly novel or unique. Dissenters usually di ssent because they think
the majority got it completely wrong. If they did not think that, they would not dissent. Trenchant
dissents litter the law books.
17. Professor Schabas, for his part, adopted what one might call a “mathematics plus”
approach. He tried to persuade this Court that in deciding whether to treat the decision of the
Appeals Chamber as “highly persuasive”, you should take into account not only the numbers of
judges at first instance and/or on appeal whose comments the Respondent thinks helpful to its case,
but also the personal and professional qualities of the dissenters when compared with the qualities
of the majority, as well as the volume of their dissent.
18. Although he, of course, disavowed any intention of doing so, Professo r Schabas invited
this Court to rank the judges of the ICTY at first instance and on appeal. To this end, he recited to
you some of the judges’ career credentials. He described Judge Orie, the presiding judge at trial, as
“very distinguished” 160; the diss enters Judge Pocar and Judge Agius as “legal minds of great
distinction and authority” 161; but President Theodor Meron, in the majority in the Appeals Court,
whilst “a great jurist”, is someone who Professor Schabas invites you to consider as a judge whose
16CR 2014/18, p. 44, para. 9 (Schabas).
16Ibid. - 48 -
judgments have been “controversial” and who “may well have been mistaken” in the Gotovina
162
case . He even managed to track down, I think, a subsequent case of his that had been
overturned, as evidence of his quality. Something, of course, all judges are f amiliar with. And,
like Mr. Jordash, Professor Schabas relied on the terms of the dissent, presumably on the basis that
the louder the dissent, the more weight that should be given to it.
19. Mr. President, Members of the Court, Professor Schabas did not go into the mechanics of
how you should approach your task. Assuming for the moment that he is content for each of your
opinions to carry equal weight which is by no means a given on his own analysis presumably
the first thing you have to do on reti ring to consider this case is to indicate what you personally
think of the quality of each of the judges at first instance and on appeal? And where on a scale of
one to 10 would you put the volume of the dissents?
20. These are obvious pitfalls. You might not all agree. What do you do on this thesis about
the good quality dissenter who dissents quietly? We all know that some of the most powerful
dissents in legal history have been expressed in the politest of terms. And equally, what do you do
about the not such good quality dissenter who dissents loudly? Presumably you can take into
account what you know of the general demeanour of each of the judges when coming to your view
about their dissent.
21. Frankly, that Professor Schabas should advocate a n approach that descends into such
absurdity serves only to underline just how desperate he is that the Court should not follow the
established course, and treat the Appeals Chamber decision as “highly persuasive”. He knows the
consequences for the counter-claim if you follow the established approach adopted and followed in
the Bosnia case.
22. Professor Schabas seeked to legitimize his novel approach on the basis that an appeal
from the ICTY at first instance to the Appeals Chamber is quite unlike an appeal in a domestic
jurisdiction. He suggests that it is some special process whereby, in reality, the Appeals Chamber
is not really an appellate body, but really just adding a few more judges to the Bench. He gave the
example of the Grand Chamber in the European Court of Human Rights.
16CR 2014/18, p. 45, para. 10 (Schabas). - 49 -
23. Mr. President, Members of the Court, Professor Schabas is plain wrong. The ICTY
Appeals Chamber is not merely an enlarged Bench. It is an appeal court. Its function and standard
of review make that clear. The App eals Chamber hears appeals on errors of law invalidating the
decision or errors of fact occasioning a miscarriage of justice 163 as set out in the Statute. Where
the Appeals Chamber finds an error of law, it articulates the correct legal standard and reviews the
relevant factual findings of the Trial Chamber 164. When considering alleged errors of fact, the
165
Appeals Chamber applies a standard of reasonableness , and only substitutes its own findings for
those of the Trial Chamber when no reasonable trier of fa ct could have reached the original
decision 166. That is a classic appellate function. Contrary to Professor Schabas’ assertion, the
Appeals Chamber operates in exactly the same way as many appeal courts in many jurisdictions
across the world. In this respect, the example Professor Schabas gave of the Grand Chamber of the
European Court of Human Rights is not a good one. The Grand Chamber, hearing a case referred
or relinquished to it, is engaged in a wholly different exercise to the ICTY Appeals Chamber,
167
because it is involving itself in a fresh consideration of the whole case rather than an appeal .
24. Against that background, the Applicant submits that there is simply no good reason for
this Court to depart from the approach it took in Bosnia . The process for appointing judges is not
168
opaque, as was suggested. It is set out in the ICTY Statute . And the Statute clearly specifies the
experience, abilities and status required of all of the judges 169. They are all respected judges,
properly appointed, and the Applicant submits that it is invidious to invite this Court to afford more
weight to the opinions of some judges than to others. In approaching its task, this Court should
163ICTY Statute, Art. 25.
164
Gotovina, AJ, para. 12; Haradinaj et al., Appeals Judgement, para. 11; Boškoski and Tarčulovski, Appeals
Judgement, para. 11.
165
Boškoski and Tarčulovski, Appeals Judgement, para. 13; D. Milošević, Appeals Judgement, para. 15; Mrkšić
and Šljivančanin, Appeals Judgement, para. 13; Krajišnik, Appeals Judgement, para. 14; Martić, Appeals Judgement,
para. 11; Strugar, Appeals Judgement, para. 13; Hadihasanović and Kubura, Appeals Judgement, para. 10.
166
Boškoski and Tarčulovski, Appeals Judgement, para. 13; D. Milošević, Appeals Judgement, para. 15; Mrkšić
and Šljivančanin, Appeals Judgement, para. 13; Krajišnik, Appeals Judgement, para. 14; Martić, Appeals Judgement,
para. 11; Strugar, Appeals Judgement, para. 13; Orić, Appeals Judgement, para. 10; Nchamihigo, Appeals Judgement,
para. 10; Zigiranyirazo, Appeals Judgement, para. 11.
167
European Convention on Human Rights and Fundamental Freedoms, Arts. 30 and 43; K. and T. v. Finland,
App. No. 25702/94, 12 July 2001 [GC], para. 140.
168See ICTY Statute, Arts. 13bis, 13ter, 14 (3) and (4).
169ICTY Statute, Arts. 13, 13quater. - 50 -
recognize the difference functions of the ICTY Trial Chamber, and the Appeals Chamber. If on
review by the Appeals Chamber, a finding of the ICTY Trial Chamber is found wanting, and not
upheld, it defies logic to give that original finding highly persuasive status. Let me be clear, the
Applicant does not suggest to this Court that it is bound by the undisturbed findings of the ICTY at
first instance or by the Appeals Chamber decision in Gotovina, but they are “highly persuasive”.
The more so because they deal in detail with the very issues which are central to the disposal of the
Respondent’s counter-claim before you.
25. This is an appropriate moment for me to deal, if I may, with the question posed by
Judge Bhandari on Friday, which reads as follows:
“Both Parties have made frequent reference in their written pleadings to the
findings made by the Gotovina Trial Chamber Judgement of the ICTY.
Since the close of written pleadings in these proceedings, the Appeals Chamber
of the ICTY has set aside the Judgement of the Trial Chamber in the Gotovina case
and acquitted the accused.
In view of this development, what would be the probative value of the findings
contained in the Trial Judgement?”
26. In response, the Applicant makes two brief points:
(a) first, the Applicant draws the Court’s attention to paragraph 223 of the Bosnia case, where
and I will quote exactly from here on , where the Court said: “the Court concludes that it
should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at
170
trial, unless of course they have been upset on appe al” (emphasis added). So, when the
Court in Bosnia was considering this, they expressly made an exception for findings that had
been set aside on appeal, which reinforces our submission, that it defies logic to give those
findings a persuasive status. T his Court has therefore held that the undisturbed findings of the
Trial Chamber will remain highly persuasive even when there is a successful appeal on other
issues. So our submission is, if upset on appeal, the finding loses its highly persuasive status.
If not upset on appeal, it retains it;
(b) secondly, we point out that it is evident from the preceding passage of the same Judgment
and this paragraphs 221 to 222 that this Court deliberately contemplated the probative value
17Application 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. 134, para. 223. - 51 -
of ICTY trial and appeal judgments which contain dissenting opinions, and determined to give
such judgments no lesser value than unanimous judgments. That is obviously an important
point. Part of the rationale behind the Court’s decision in Bosnia, that findings should have
highly persuasive status, was because there were recent judgments and there were dissenters.
So this Court could have full transparency about the finding. So, it contemplated dissent, it
used that, as a reason for saying the findings should be highly pers uasive. The Respondent can
hardly say now, to this Court, because in this case there is dissent, something in Bosnia that
was contemplated, you should not follow the approach that was set out in the Bosnia case. The
Court had contemplated just this situation.
27. The Applicant’s submission is therefore straightforward, in accordance with this
standard, and absent compelling new evidence from the Respondent, of which there is none, the
ICTY findings and Appeals Chamber decision in Gotovina is fatal to the Respondent’s case. It
cannot succeed in the face of those findings.
28. I turn now to my consideration of the Brioni Minutes.
III. The Brioni Minutes: no genocidal intent
29. The starting-point is, of course, the Appeals Chamber’s ruling to which I have already
referred. Absent unlawful shelling and absent an intention forcibly to displace Serbs from the
Krajina, an incriminating reading of the Brioni Minutes is not possible, as the Appeals Chamber
rightly concluded. That accords with a common sense and an objective reading of the Minutes.
And that is actually an end of the case on the Brioni Minutes.
30. From the date of the first pleading put forward by the Respondent in this case, the
Respondent has always insisted that the Brioni Minutes are the sole basis for its conclusion that the
Croatian political and military leadership harboured genocidal intent vis- à-vis Croatian Serbs, and
that that intent was confirmed but not established by certain additional facts. In the
Counter-Memorial, the Respondent submitted, and I hope this is on your screens: [Screen on] - 52 -
“1430. It should be stressed . . . that, in accordance with the practice of the
171
Court[ ], none of these elements [and by these elements the Respondent was
referring to the nature of the acts committed after the plan, the so-called deportation of
Serbs and the scale of destruction of property, none of these elements, so says the
Counter-Memorial] could prove the genocidal intent by itself, either viewed
individually or collectively [and it then gives a reason], since all these elements could
equally, without other evidence, indicate the existence of a discriminatory intent,
instead of a genocidal intent.” (Emphasis added.)
This is the Respondent’s case. At that time putting all its eggs in the basket of the Brioni Minutes.
31. And that was affirmed in the Rejoinder 17. The three elements became six factors,
spelling out the acts in question, as they did in the Agent’s speech, but they are essentially the same
elements. The acts that follow the plan.
32. And that has been the consistent way that the Respondent put its case until, by my watch,
approximately 10.15 a.m. last Friday morning when, in his speech last Friday, Mr. Jordash
swapped horses and radically departed from that consist ent approach. He said, and this is
paragraph 23 in the transcript, having identified his three phases, and Phase Two, just to remind
you was the execution of the plan, the carrying out of Operation Storm and Phase Three was the
aftermath, he said: [Next graphic]
“23. Proof of specific intent in Phases Two and Three, [so after the plan] when
viewed alone, require an examination of a pattern of atrocities committed over many
communities focused on the targeted group.” 173
So he is clearly loosening the grip of the pleaded case.
33. And then later he said: [Next graphic]
“33. When viewed in isolation, any of the three phases [any of the three phases]
point inexorably to the existence of the required acts and the specific intent . When
viewed together, they are overwhelming evidence of a violation of the Genocide
Convention.” 174 (Emphasis added.) [Screen off]
171
This footnote in the Counter-Memorial reads:
“The dolus specia lis, the specific intent to destroy the group in whole or in part, has to be
convincingly shown by reference to particular circumstances, unless a general plan to that end can be
convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its
existence, it would have to be such that it could only point tthe existence of such intent.” (Case
concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007 [I.C.J. Reports
2007 (I), pp. 196-197], General List No. 91, para. 373; see also Chapter II, paras. 46-58.
172RS, para. 721.
173
CR2014/18, p. 13, para. 23 (Jordash).
174
Ibid., p. 15, para. 33 (Jordash); footnotes omitted. - 53 -
How can paragraph 1430 and 33 sit together? One says it is the Minutes with confirmatory acts,
not what follows, with real clarity in the Counter-Memorial. Last Friday it changes to a reliance on
the acts after the plan, rather than the plan itself.
34. No doubt this seismic shift in the Respondent’s case is reflective of the collective
assessment by the Respondent’s team of the likelihood of success if they continue to base their case
solely on the Brioni Minutes. However, it in no way begins to deal with the express finding of the
ICTY Appeals Chamber already referred to which did not uphold the findings that incriminatory
intent could be found in theMinutes.
35. Mr. President, we have set out our detailed views in the pleadings and I will not go
through them in detail at this stage 175. I will, however, take you to the Brioni Minutes themselves,
they are Annex 52 of the Respondent’s Counter -Memorial. They are also in your folders today.
And I will just focus on the key passages cited by the Respondent in its written pleadings and oral
arguments, and in particular the sentence quoted 13 times in the written pleadings. This is this
statement by President Tudjman that, and I hope this is now on your screen: [Screen on] “We have
to inflict such blows that the Serbs will to all practical purposes disappear.” 176 You have heard this
emphasized to you repeatedly last week, you have seen it in the pleadings, and all the weight is on
the word “disappear”. Mr. President, Members of the Court, the Respondent takes this statement
out of context. When the next few sentences are added to the passage, the context becomes clear.
And I will just focus, if I may, on the first and the fourth paragraph. You have had the first
paragraph read to you, but can I just emphasize there is in there a verb, [Next graphic]
“We have to inflict such blows [there is an object] that the Serbs will to all
practical purposes [and there is an intended consequence] disappear, that is to say, [so
there is a comma, i.e., let me explain what we mean by that] the areas we do not take
at once must capitulate within a few days.”
So immediately after the word “disappear” is an explanation of what is meant by that in this
context.
If you then go to the fourth paragraph you have a paragraph which is so strikingly similar,
that it is almost impossible not to conclude that it is referring to precisely the same thing.
17RC, paras. 11.40-11.55, 12.4-12.18; APC, paras. 3.10-3.11, 4.8-4.19.
17CMS, para. 1197. - 54 -
“We have to [verb] inflict such powerful blows [using the same words] in
several directions that [object] Serbian forces [obviously underlined by us] will no
longer be able to recover but will have to [intended consequence] capitulate.”
The very word used to explain what was meant in paragraph 1.
36. Thus a more complete textual analysis makes it clear that the President’s reference to
“Serbs” in paragraph 1 is, in truth a reference to Serbian military forces and not Serb civilians 177.
[Screen off]
37. This was confirmed in fact by the ICTY Trial Chamber in Gotovina, even as it convicted
Gotovina himself. The full context of the Trial Chamber’s finding is coming up on your screen,
this is what the Trial Chamber said: [Screen on]
“[The Trial Chamber] duly considered this contex t . . . For example [and then
the very passage] . . . [Croatia must] ‘inflict such blows . . . [that the Serbs will . . .
disappear]’. In its Final Brief, the Prosecution appears to suggest that this refers to
Serb Civilians. However, the end of the sentence reads ‘that is to say, the areas we do
not take at once must capitulate within a few days’ . . [And then again] the expression
‘blows’ [he referred explicitly to ‘the Serbian forces’]. When read in context, the Trial
Chamber considers that this par ticular statement focused mainly on the Serb military
178
forces, rather than the Serb civilian population.”
So that is the ICTY at first instance.
38. But despite that, on Friday Mr. Jordash’s continued to insist, and I quote what he said
“President Tudjman’s comment did refer to civilians, even if this was not at that time his main
179
focus” . That, with respect, is a very strained interpretation of the ICTY judgement, which was
was clearly rejecting the Prosecution case, not somehow accepting it. [Screen off]
39. And just pausing there, for the ICTY at first instance to have taken any other view would
have been entirely inconsistent with its own approach. It had just found that the shelling of other
than the four towns was lawful, and thus there was no i ntention forcibly to deport. So any other
reading of those minutes would not have been consistent internally with the logic of its own
judgement. And this Court does not need reminding that the Appeals Chamber obviously went one
step further.
40. The Minutes do need to be read carefully. It is clear from the opening statement of the
Minutes, that the President was calling on the military leadership to “carry out/the
177
CR 2014/15 (12 March 2014), p. 54, para. 23 (Obradović).
17Gotovina et al., TJ, para. 1990 (internal references omitted).
179
CR 2014/18, p. 29, para. 105 (Jordash). - 55 -
180
operation/professionally” . And the remarks are entirely consistent with the stated pur pose of
Operation Storm namely to liberate occupied areas 181. And there was an interchange with
AdmiralDomazet and, during that interchange, he was interrupted by President Tudjman who said,
and this is a quote that you saw on Friday, and I just put it up to remind the Court what the
President said about exits and providing the forces with an exit and a strategy to prevent the Serb
forces fighting to the bitter end, and to allow them to retreat. [Screen on]
41. The Respondent’s invitation to the Court t o infer the existence of a genocidal plan from
the Minutes is, we submit, contrary to the plain reading therefore of the document, and ignores the
finding by the ICTY Trial Chamber in Gotovina and that is a plate you have seen. [Screen on]
182
Forgive me for coming back to it and I will not read it but Mr. Jordash focused on the corralling
together of civilians and military forces into one column or set of columns and invited the question:
what could conceivably have been the purpose of that if there was not a clear intention to destroy
those in the columns? There is nothing in the Minutes that supports that and whilst that is on your
screen, how can that possibly sit with this finding of the ICTY at first instance unanimous,
unappealed and highly persuasive?
42. Obviously the Trial Chamber’s finding that a joint criminal enterprise existed at all was
reversed on appeal with the Appeals Chamber concluding that: [screen on]
“no reasonable trial chamber could conclude that the only reasonable interpretation of
the circumstantial evidence on the record was the existence of a JCE with the common
purpose of permanently removing the Serb civilian population from the Krajina by
183
force or threat of force” . [Screen off]
43. Mr. President, Members of the Court, t hat concludes the Applicant’s submissions in
relation to the Brioni Minutes. As for the confirmatory facts, everything that followed the
attacks on the column, the alleged persecution and killing of those that remained all of that has
been dealt with in considerable detail by my colleague Ms Singh and, in the circumstances, I will
thank the Court for your kind attention and ask that Professor Sands now be heard to complete this
part of the Applicant’s submissions.
180
CMS, Ann. 52, p. 1.
18Ibid., p. 2.
18Gotovina et al., TJ, para. 2321.
183
Gotovina, AJ, para. 96. - 56 -
The PRESIDENT: Thank you very much, Sir Keir Starmer. I now call on Professor Sands.
You have the floor, Sir.
Mr. SANDS:
CLAIM AND COUNTER -CLAIM : ACOMPARISON
N O GENOCIDE WAS COMMITTED THROUGH O PERATION STORM
I. Introduction
1. Mr. President, Members of the Court, Croatia’s presentation today concludes with a closer
comparison of the Applicant’s claim and the Respondent’s counter-claim. The exercise of
comparison has merit in two respects. First, it makes abundantly clear that, even taken at its
highest, the counter -claim does no t come close to making out a case under the Genocide
Convention and second and significantly it serves to reinforce Croatia’s claim against Serbia,
by highlighting the vast differences in respect of the Parties’ conduct and intentions during the
relevant periods but also by requiring Serbia to make numerous concessions in respect of the
interpretation and application of the Genocide Convention, concessions which we accept.
2. The three presentations you have heard this morning set out the reasons for and context of
Operation Storm; planning, conduct and the fact that no genocide was committed by the Applicant.
I am going to try and draw these threads together, and show you the stark contrabetween
Croatia’s claim and Serbia’s counter-claim. I will proceed in nine points.
3. But before doing so, let us note the very difficult line that Serbia has sought to walk. In
response to Croatia’s claim, it argued the exceptional gravity of the charge of genocide. You heard
rather less about that when it a rgued its own claim. The purpose of that claim, as the Agent of
Serbia has now made clear, was not to vindicate the rights of victims, or deter the commission of
genocide in future, it was entirely tactical, to divert this Court’s attention from the charg es levelled
against Serbia. This Court was used as a platform from which to reach the public in Serbia. Serbia
employed the very same diversionary and equally unsuccessful tactic against Bosnia when it - 57 -
184
filed another hopeless counter -claim . You hear d the diversionary tactics in this courtroom last
week, not least from the Agent. If you wish to do so, you can read about it in the news reports in
the Serbian media, as the Agent and then Professor Schabas and even Mr. Jordash, offered a
running commentary outside this courtroom as to what was going on inside this courtroom.
4. The aim is clear: the counter -claim is what might be called a “Morton’s fork” I must
say, for breakfast this morning I was trying to work out how one might translate that in to French
but I suppose it is a “fourchette de Morton” on which either outcome, Serbia is off the hook for
its own genocidal conduct between 1991 and 1995. On Serbia’s approach, this Court has either to
accept its claim that Operation Storm was genocide which it manifestly was not or reject it
on its claim and, as a necessary consequence, it argues, reject also the Applicant’s claim. It is
interesting that Serbia criticizes Croatia, quite trenchantly even, for the supposed late filing of its
claim, but then has nothing to say about the fact that its own counter -claim was filed more than ten
years after Croatia’s claim, but just 14 months after Serbia’s preliminary objections on jurisdiction
were rejected by this Court. On that it was silent.
II. Substantial areas of difference
1. The temporal scope
5. So, let us turn to the nine points of difference. First point: the temporal scope of the
claim. Serbia argues that claim and counter -claim are based on what it calls the same “factual
185
complex” and on facts that have a “common territorial and temporal setting” . Is that really the
case?
6. Croatia’s claim concerns events occurring over a period of four years, between 1991 and
1995, primarily but not exclusively in the first two years of the illega l Serb occupation, and then
extending throughout 1993 and into 1994, until the eventual liberation of the occupied regions in
186
August 1995 , with disappearances continuing still today of a large number of people, with all
that implies under the Convention, a point we will come back to later in the week.
184
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 243.
18Counter-Memorial of Serbia (CMS), paras. 1108-1109.
186
Memorial of Croatia (MC), paras. 1.03-1.05. - 58 -
7. By contrast, the focus of Serbia’s counter -claim is, in large measure, basically a short,
four-day period in August 1995, bolstered by the occasional reference to a sprinkle of what are
called “confirmatory” acts occurring in the months thereafter . 187
8. There is no common temporal ground between the two proceedings, as Serbia claims.
Croatia’s claim ends in large part before Serbia’s even begins. Serbia’s case on genocidal intent
that a State can hatch and then implement a genocidal plan to destroy the entire Serb population of
the “Krajina” in the space of little over half a week is not immediately plausible.
9. By contrast, the temporal scope of Croatia’s claim reflects the calculated and systemat ic
nature of Serbia’s policy, implemented from the summer of 1991 onwards. In Stanišić and
Simatović the ICTY found as fact that, from April 1991 to April 1992, there were widespread
“attacks on villages and towns with substantial or completely Croat popu lations . . . killings, use as
human shields, detention, beatings, forced labour, sexual abuse, and other forms of harassment
188
(including coercive measures) of Croat persons . . .” . The ICTY made similar findings regarding
the situation prevailing in the territory of the SAO Krajina portion of the so- called RSK from 1992
189
to 1995 . It has made no such findings in relation to Operation Storm or any other such acts.
2. The geographic scope
10. Second point: the geographical scope of the claims. Obviousl y, these are markedly
different. Croatia’s claim concerns events occurring in six different regions of Croatia, over
one-third of its entire territory. By contrast, Serbia claims a genocide occurred in the so- called
Krajina portion of the RSK just one of the three areas of the illegal Serb “republic”. It is a
fraction, a fraction, of the area covered by Croatia’s claim, and no doubt that is the reason why
Serbia has had to change position again and conceded that intent can be found even where “few
Article II attacks occurred” 190. I am going to return to this point.
187See the opening remarks of the Respondent’s Agent: “Mr. President, allow me to start presenting now the
Serbian counter -claim, which is related to Operation Storm and genocide commi tted against the Krajina Serbs.”
(CR 2014/16, p. 34, para. 1 .) See also, CMS, para. 1427: “It is thus no surprise that the entire operation lasted
only 4 days and that the main goal, the takeover of Knin, was fulfilled within 30 hours from the onset of the operation.”
188Prosecutor v. Jovica Stanišić and Franko Simatović, (IT-03-69-T), Trial Chamber Judg ement, 30 May 2013,
para. 404.
189
Ibid., para. 406.
190
CR 2014/18, p. 34, para. 131 (Jordash). - 59 -
3. Purpose of the armed campaigns
11. Third point of difference: the nature of the armed campaigns that occurred respectively
in the periods 1991 to 1995, and then in August 1995. These w ere markedly different and
obviously so. Croatia’s Operation Storm was a conventional military operation for the sole
purpose of restoring control over Croatia’s sovereign territory, within internationally recognized
boundaries. It was a legitimate military response to an illegal occupation 191, carried out as the
ICTY ruled lawfully. There was no objective of ethnic destruction, as the tribunal ruled in
Gotovina, at the Trial Chamber level: “the common objective did not amount to, or involve the
commission of the crimes of persecution . . .” 192. The Appeals Chamber, of course, subsequently
overturned the Trial Chamber and ruled beyond that there was no joint criminal enterprise, you
have heard from Sir Keir just before me.
12. By contrast, the operations undertaken by or with the support of Serbia occurred in the
context of an unlawful invasion of a sovereign State, with the objective of achieving a “Greater
Serbia” within the territory of Croatia. Serbia did not claim last week or in its pleadings nor
could it plausibly do so that it was acting lawfully when it invaded and occupied parts of Croatia
for four years from 1991. The attacks on Croat towns and villages served no legitimate military
purpose. [Screen on] The ICTY Trial Chamber made thi s clear in Mrkšić you will see on your
screens now a quotation I will simply take you to the last sentence: “It was an unlawful
193
attack.” [Screen off] Where is the ICTY’s equivalent condemnation of Croatia in relation to
Operation Storm? Search for it and you will search in vain, because it does not exist.
4. The identity of the protagonists
13. Turning to the fourth point of difference: the protagonists in the two situations were
different. The protagonists of Serbia’s genocidal campaign were t he JNA which had been
co-opted as the national army of Serbia and TO forces and paramilitary forces operating under
its direction and command. The victims were predominantly unarmed Croat civilians, many of
them elderly, many of them killed while shel tering from the violence. This was not, as the
191
Reply of Croatia (RC), para. 12.3; Additional Pleading of Croatia (APC), para. 3.12.
19Prosecutor v. Gotovina et al., IT-06-90-T, 15 Apr. 2011, Trial Chamber Judgement, para. 2321.
193
Prosecutor v. Mrkšić, IT-95-13/1-T, 27 Sep. 2007, Trial Chamber Judgement, para. 472. - 60 -
Respondent seeks to argue in rather distorted terms, a conventional armed conflict between equally
194
matched armies . Again, the ICTY’s findings in the Mrkšić case regarding the Serbian attack on
Vukovar are worth recalling, and you can see that on your screen: [Screen on]
“What occurred was not in the finding of the Chamber, merely an armed
conflict between a military force and an opposing force in the course of which
civilians became casualties and some pro perty was damaged. The events, when
viewed overall, disclose an attack by comparatively massive Serb forces, well armed,
equipped and organised, which slowly and systematically destroyed a city and its
civilian and military occupants to the point where th ere was a complete surrender of
those that remained. While the view is advanced before the Chamber that the Serb
forces were merely liberating besieged and wronged Serb citizens who were victims of
Croatian oppressiveness and discrimination, this is a sig nificant distortion of the true
195
position as revealed by the evidence, when reviewed impartially.” [Screen off]
You heard the very same distortions last week. They were rejected then and they should be
rejected again now.
14. By contrast, however, Opera tion Storm was a focused military operation carried out by
the Croatian army (HV) soldiers to restore Croatia’s sovereign territory illegally occupied by Serb
forces. In Gotovina all parties agreed that it occurred in the context of an armed conflict betw een
Croatia and Serbia 196. Moreover, it is now clear that Croatian military commanders instructed
197
soldiers to respect the rules of humanitarian law, including the treatment of POWs and civilians .
Commanders were also directed, instructed, to prohibit uncontrolled conduct 198. The differences
between the two situations could not be more stark.
5. Existence of a systematic pattern of attack
15. I turn to my fifth point: the systematic pattern of attack. In the first week,
Ms Ní Ghrálaigh provided a detailed description of the systematic pattern of attack repeated in
village after village across large parts of Croatia 199. The pattern was expressly identified by the
ICTY Trial Chamber in the Mrkšić case, it echoed the description of the European Community
194CMS, para. 1109.
195
Mrkšić, Trial Chamber Judgement, para. 470.
196Gotovina et al., Trial Chamber Judgement, para. 1681.
197RC, Vol. 5, Ann. 170, Ministry of Defence Directive Op. No. 12-4/95, 26 June 1995.
198
RC, Vol. 5, Ann. 172, m inutes of the meeting held at the Defence Ministry of the Republic of Croatia on
2 Aug. 1995.
199CR 2014/8, pp. 13-26, paras. 20-70 (Ní Ghrálaigh). - 61 -
200
Monitoring Mission that was on the ground observing the events . The existence of that
pattern a tried and tested formula for the destruction of parts of an ethnic group belies any
claim to a legitimate military purpose.
16. By contrast, the Respondent did not in its pleadings or last week in the hearing assert any
systematic pattern of attack, of the kind that might be expected of an armed campaign that was
designed to eliminate the en tirety of an ethnic group from a particular region. The only “pattern”
referred to by the Respondent in the written pleadings in relation to the counter -claim was that of
the artillery shelling of a single town Knin which it asserted then was delibera tely
indiscriminate 201. As you have heard, that allegation has been rejected in the Gotovina case . Yet 202
last week, Mr. Jordash characterized apparently for the first time in this case on the part of
Serbia an alleged genocidal campaign by Croatia as a three -phase process a three-phase
process the Court will note which bore a rather striking similarity to that enunciated by Croatia just
a week earlier. Mr. Jordash argued, apparently for the first time on the part of Serbia, that “[i]ntent
may be illum inated by circumstantial evidence, including by words spoken or deeds done or a
203
pattern of purposeful action” . What Mr. Jordash singularly failed to do, however, was to identify
the existence of such a pattern by reference to the evidence before the Cour t. There is no such
evidence.
17. Mr. President, Mr. Jordash’s argument is nevertheless significant for another a number of
reasons: it contains a bundle of concessions, an acceptance of Croatia’s legal arguments as to how
an “intent to destroy” may be proven, an acceptance that “a pattern of purposeful action” can be
relied upon to prove genocidal intent. We will take those concessions. The Parties are now in
agreement on these points, which has the merit of making this Court’s task a lot easier.
6. Instances of ethnically motivated killing, serious violence and destruction
18. I turn to my sixth point of difference: there is a world of difference between the two
claims as to the instances of ethically motivated killing on which each Party relies. Croatia’s claim
200
Mrkšić, Trial Chamber Judgement, para. 43.
20CMS, para. 1220.
20Prosecutor v. Gotovina and Markač, Appeals Chamber Judgement, IT-06-90-A, 16 Nov. 2012, paras. 77-84.
203
CR 2014/18, p. 13, para. 22 (Jordash). - 62 -
focuses on a great mass of distinct and separate instances of killings, beatings, torture and so on,
designed to impose conditions of life that would result in the destruction of the Croat ethnic group.
I do not need to set out the facts again. The point is a simple one: in making its counter -claim,
Serbia concedes that genocide can take place on a limited scale of facts like the one it alleges.
Even if those facts are not proven, in Serbia’s case, as they are not, we will take that con cession
too: Serbia now accepts that acts on the scale of those proven by Croatia, in evidence before this
Court, can amount to genocide.
19. Yet Serbia’s case on actus reus largely rests on just two specific acts: deliberate
indiscriminate shelling and forced expulsion. You have heard from Sir Keir Starmer on those two
issues: the case collapses.
7. Evidence and materials
20. I turn to my seventh point of difference: the nature and volume of the evidence and
related material before the Court. In support of its claim, the Applicant adduced more than
450 witness statements and hundreds of political, military and intelligence documents; it adduced
reports of international organizations and independent humanitarian bodies; expert reports;
detailed mass grave and exhumation data and a large volume of contemporary newspaper and
media articles. These materials most of which are contemporaneous or near -contemporaneous
accounts of events in Croatia from 1991 onwards provide extensive first -hand descriptions of
the crimes committed by Serb forces against the Croat population. The reliability of that body of
evidence has been confirmed by the subsequent findings of the ICTY. It was also demonstrated by
the live witness testimony of six of Croatia’s witnesses during the first round, whom you had an
opportunity to question and did question.
21. In stark contrast, the evidential basis for the Respondent’s counter -claim is, to put it
mildly, remarkably thin. Mr. President, Serbia’s Counter -Memorial when it set out its
counter-claim was not accompanied by a single witness statement not a single witness
statement. Subsequently they realized they were in difficulty so they scrabbled to find what they
could and they found 24 witness statements prepared for the purposes of the Rejoinder, the CHC
Report which, of course has been completely discredited by the ICTY as a reliable basis for - 63 -
finding fact and a wholly inaccurate Veritas report prepared by an individual who is manifestly
204
unreliable and self-interested .
22. The conclusion is plain: the documentation that the Respondent relies upon is
inaccurate, unreliable, insufficient and biased. It offers a manifestly inadequate basis to assert
genocide and it is striking that any State could come be fore this international court on so thin a
basis and make such a claim.
8. ICTY findings
23. I turn to my eighth point of difference: the findings of the ICTY. In support of its claim,
the Applicant has made detailed references to factual findings of t he ICTY Trial and Appeals
Chambers in Babić, Martić, Mirkšić and Stanišić and Simatović and references were made to other
cases such as the Tolimir cases. Those judgements, which run to over 1,600 pages of factual and
legal analysis, provide an evidential foundation that is consistent with and strongly supportive of
the Applicant’s case, both on fact and law. I will not take you back over those cases but it has
allowed Croatia to invite this Court to take account of those persuasive factual findings, in s upport
of the claims by Croatia in relation to the actus reusof genocide.
24. By contrast, what is available for the Respondent to rely on? Nothing, Mr. President. In
support of its counter-claim at this hearing it has not been able to rely on a singl e conviction by the
ICTY of any person not one in relation to the events of August 1995. Not one person. Last
week you heard Professor Schabas offer a long excursus on the merits of a judgement of the ICTY
Trial Chamber in Gotovina, but of course tha t was overturned by the Appeals Chamber. Then he
said you might pay careful attention to the views of the minority and then he suggested you engage
in some creative exercise of arithmetic: you have heard from Sir Keir Starmer on that. Such an
approach, frankly, has no merit whatsoever and is completely unbecoming of a court such as this.
25. But whilst I am on the subject of that presentation, Mr. President, please allow me to
express the very real regret that Professor Schabas sought to compare the Ho locaust of the Jews
between 1933 and 1945 with the events of August 1995. He referred the Court to the minutes of
20CMS, Ann. 62, p. 287. - 64 -
205
the Wannsee Conference, and he then asked: “Is Brioni any different?” That was a breathtaking
and terribly unfortunate question to ask and, through you, Mr. President, we express the sincere
hope that Professor Schabas will withdraw that question and the implication he invited the Court
to draw from it when he next addresses the Court. Professor Schabas well knows that if the
Respondent’s characterization of Operation Storm were correct or even half correct that it
was the most serious and blatant example of genocide to occur in Europe since the Second World
War one might have expected to see, to say the least, a substantial body of case law in relation
to crimes against humanity and war crimes, if not genocide, in respect of those factual matters.
There is nothing. Not a single conviction at the ICTY for any action taken in relation to the events
in that period. No amount of legal sophistry, no amount of creative juridical arithmetic, no amount
of reliance on terribly unfortunate analogies on the part of the Respondent or a solitary member of
its legal team can displace that plain and harsh fact.
9. Intent to destroy
26. I turn to my ninth point, the final point: the intent to destroy. Mr. President, Members of
the Court, in the first week Sir Keir Starmer listed 17 factors that offered evidence of Serbia’s
genocidal mens rea 20. You have heard about the conduct that revealed the unmistakable animus
underlying the Respondent’s attacks against the Croat civilian population 207, a pattern of conduct in
the face of the opportunities that presented themselves.
27. By contrast, the Respondent has adduced no equivalent evidence. The minutes of the
Brioni Meeting on which the totality of Serbia’s pleaded case hangs sadly, pathetically
manifestly fails to support its case. The ICTY made that very clear, as did Sir Keir Starmer earlier
this morning.
28. Serbia’s treatment of Vukovar stands in stark contrast to Croatia’s treatment of Knin, the
so-called capital of the so -called RSK. The nature, duration and consequences of the parties’
activities were vastly different:
205
CR 2014/18, p. 54, paras. 31–33 (Schabas).
20CR 2014/12, pp. 19–21, para. 27 (Starmer).
207
CR 2014/6, pp. 56–65, paras. 13–42 (Sands). - 65 -
(a) Serb forces, firstly, laid siege to Vukovar for three mon ths; the Croatian operations in Knin
lasted a day and a half;
(b) the shelling of Vukovar was indiscriminate and resulted in hundreds of casualties. In Knin, the
ICTY was unable to identify a single civilian casualty caused by shelling in the town;
(c) when Vukovar fell on 18 November 1991, Serb forces entered and unleashed a brutal campaign
of violence and killing against the remaining Croat inhabitants; by contrast, in Knin civilians
were permitted to remain or to leave if they wanted and many of them chose to do so in
United Nations compounds;
(d) one thousand Croats or more were killed in the siege of Vukovar 208, the Respondent’s own
209
written pleadings refer to a report describing 13 deaths in Knin . Last week the Agent told
the Court that he wa s upping the number to 36 210. In Gotovina, the Trial Chamber found
evidence of a total of three deaths civilian deaths, in the town of Knin; none of them caused
by indiscriminate shelling;
(e) in support of its case on Vukovar, the Applicant submitted m ore than 40 witness statements
from eye-witnesses to Serb attacks. What did the Respondent offer in relation to Knin? One, a
single eye-witness account.
29. Mr. President, the question of “intent to destroy” lies at the heart of this case. On one
side you have a great volume of evidence 21; on the other you have basically a single minute and a
few scraps of paper that do not amount to a claim for genocide. There is no evidence to support an
“intent to destroy” in relation to the events of 1995.
30. But there is here a related question to ask: if the Respondent believes that its solitary
document, its one document, is sufficient to prove intent, on what basis does it then argue that the
evidence provided by Croatia is insufficient? It has offered no answer to that question.
208
MC, para. 4.149; Battle for Vukovar (2002), Davor Marijan, Croatian Institute for History, p. 284.
20CMS, para. 1261; RS, para. 769.
21CR 2014/17, p. 32, para. 67.
211
See, for example, RC Vol. 4, Ann. 63, the JNA military intelligence report dated 13 October 1991. - 66 -
III. Conclusion
31. [Screen on] Allow me to conclude, Mr. President, briefly. These nine points of
comparison reveal Serbia’s counter -claim for what it really is: contrived, diversionary, wholly
inadequate device intended to cr eate a platform from which to deflect attention away from the
events of 1991 and after, for which it is internationally responsible. The claim is unarguable. In
any reasonable domestic court it would have been struck out at an early stage.
32. T hat is n ot to say, however, that the claim is not without some utility to these
proceedings. Serbia has been required to walk a very difficult line. The very making of the claim
by the Respondent offers unwitting support to the claim put forward by Croatia. It does so by
confirming the legal foundations of Croatia’s claim. Serbia has rather helpfully confirmed that
genocide is established even where there exists an intention to destroy a relatively small part of a
group in a narrowly defined area, and only a sm all number of individuals are targeted or killed.
That is now Serbia’s position. It has confirmed that an intention to destroy may be established by
212
inference and on the basis of circumstantial evidence . It has confirmed that a “pattern of
purposeful action” may be taken into account in proving an intent. And it has confirmed that
available “opportunities on the side of the perpetrator” are an element to take into account in
determining whether a genocide has occurred. In the course of these proceedin gs it has come to
accept that intent can be inferred from a staged pattern of actions taken against civilian populations
of a particular ethnic composition. Its rather curious reliance on dissenting opinions in ICTY
judgements without any actual judgements in its favour to rely upon seems only to reinforce
the point that the findings of the majority in those cases (and the judgements that followed, and the
convictions) on which Croatia has squarely based its claim are entitled to be given far greater
weight by this Court.
33. Mr. President, the points of difference between the Parties are very great when it comes
to the facts and to the evidence. There is some agreement between them, however, on the elements
that are to be taken into account in determ ining whether a genocide case occurred, within the
meaning of the Convention. So, in this sense at least, Croatia has reason to be grateful to the
Respondent for its apparently ill -considered decision to put forward a counter -claim. Croatia also
21CR 2014/18, pp. 68-69, paras. 4.20–4.70 (Obradović). - 67 -
has particular reason to thank Professor Schabas and Mr. Jordash for associating themselves with
the legal arguments that underpin Serbia’s supposed counter-claim and which, in this way, by logic
if not by design, offer considerable support to Croatia’s claim.
34. This lays the way for the Court to rule, that the acts of genocide which occurred in and
after 1991 were attributable to Serbia and it is internationally responsible for them. To those
matters we will turn on Thursday and Friday. This concludes our pre sentation, Mr. President,
Members of the Court; again I thank you for your kind attention and invite you to conclude the
session. [Screen off]
The PRESIDENT: Thank you, Professor Sands. It brings to an end Croatia’s observations
on Serbia’s counter -claim, and the first round of oral argument. The Court will meet again on
Thursday 20 March at 10 a.m. when Croatia will begin its second round of oral argument on its
own claims. Thank you.
The Court is adjourned.
The Court rose at 1.05 p.m.
___________
Audience publique tenue le mardi 18 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)