CR 2006/2
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on 27 February 2006, at 10.30 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
________________
VERBATIM RECORD
________________
ANNÉE 2006
Audience publique
tenue le 27 février 2006, à 10 h 30, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges Ranjeva
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc AhmedMahiou
Milenko Kreća
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
AlKh.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MM. Ahmed Mahiou,
KMrilenko ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib Softić,
as Agent;
Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
as Deputy Agent;
Mr.Alain Pellet, Professor at the University of ParisX-Nanterre, Member and former Chairman of
the International Law Commission of the United Nations,
Mr. Thomas M. Franck, Professor of Law Emeritus, New York University School of Law,
Ms Brigitte Stern, Professor at the University of Paris I,
Mr. Luigi Condorelli, Professor at the Facultyof Law of the University of Florence,
Ms Magda Karagiannakis, B.Ec, LL.B, LL.M.,Barrister at Law, Melbourne, Australia,
Ms Joanna Korner, Q.C.,Barrister at Law, London,
as Counsel and Advocates;
Mr. Morten Torkildsen, BSc, MSc, Tork ildsen Granskin og Rådgivning, Norway,
as Expert Counsel and Advocate;
H.E. Mr. Fuad Šabeta, Ambassadorof Bosnia and Herzegovina to the Kingdom of the Netherlands,
Ms Laura Dauban, LL.B (Hons),
Mr. Wim Muller, LL.M, M.A.,
Mr. Mauro Barelli, LL.M (University of Bristol),
Mr. Ermin Sarajlija, LL.M,
Mr. Amir Bajrić, LL.M,
Ms Amra Mehmedić, LL.M,
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre, - 5 -
Le Gouvernement de la Bosnie-Herzégovine est représenté par :
M. Sakib Softić,
coagment;
M. Phon van den Biesen, avocat, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de ParisX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies,
M. Thomas M. Franck, professeur émérite à lafaculté de droit de l’Université de New York,
Mme Brigitte Stern, professeur à l’Université de Paris I,
M. Luigi Condorelli, professeur à la faculté de droit de l’Université de Florence,
Mme Magda Karagiannakis, B.Ec., LL.B., LL.M.,Barrister at Law, Melbourne (Australie),
Mme Joanna Korner, Q.C.,Barrister at Law, Londres,
comme conseils et avocats;
M. Morten Torkildsen, BSc., MSc., Tork ildsen Granskin og Rådgivning, Norvège,
comme conseil-expert et avocat;
S. Exc. M. Fuad Šabeta, ambassadeur de Bosn ie-Herzégovine auprès duRoyaume des Pays-Bas,
Mme Laura Dauban, LL.B. (Hons),
M. Wim Muller, LL.M., M.A.,
M. Mauro Barelli, LL.M. (Université de Bristol),
M. Ermin Sarajlija, LL.M.,
M. Amir Bajrić, LL.M.,
Mme Amra Mehmedić, LL.M.,
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre, - 6 -
Ms Isabelle Moulier, Research Student in International Law, University of Paris I,
Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy),
as Counsel.
The Government of Serbia and Montenegro is represented by:
Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor at the Belgrade University School of Law,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of
the Netherlands,
Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and Montenegro in the
Kingdom of the Netherlands,
as Co-Agents;
Mr.Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of
the English Bar, Distinguished Fellow of the All Souls College, Oxford,
Mr. Xavier de Roux, Masters in law, avocat à la cour, Paris,
Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the
International Criminal Bar,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Directo
r
of the Walther-Schücking Institute,
Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, and President of the International Law Association of Serbia and Montenegro,
Mr. Igor Olujić, Attorney at Law, Belgrade,
as Counsel and Advocates;
Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,
Ms Ivana Mroz, LL.M. (Minneapolis),
Mr. Svetislav Rabrenović, Expert-associate at the Office of th e Prosecutor for War Crimes of the
Republic of Serbia, - 7 -
Mme Isabelle Moulier, doctorante en droit international à l’Université de Paris I,
M. Paolo Palchetti, professeur associé à l’Université de Macerata (Italie),
cocomnseils.
Le Gouvernement de la Serbie-et-Monténégro est représenté par :
M. Radoslav Stojanović, S.J.D., chef du conseil juridique du ministère des affaires étrangères de la
Serbie-et-Monténégro, professeur à la faculté de droit de l’Université de Belgrade,
coagment;
M. Saša Obradovi ć, premier conseiller à l’ambassade de Serbie-et-Monténégro au Royaume des
Pays-Bas,
M. Vladimir Cvetković, deuxième secrétaire à l’ambassade de Serbie-et-Monténégro au Royaume
des Pays-Bas,
comme coagents;
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, Distinguished Fellow au All Souls College, Oxford,
M. Xavier de Roux, maîtrise de droit, avocat à la cour, Paris,
Mme Nataša Fauveau-Ivanovi ć, avocat à la cour, Paris, et membre du conseil du barreau pénal
international,
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djerić, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie-et-Monténégro,
M. Igor Olujić, avocat, Belgrade,
comme conseils et avocats;
Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,
Mme Ivana Mroz, LL.M. (Minneapolis),
M. Svetislav Rabrenovi ć, expert-associé au bureau du procureur pour les crimes de guerre de la
République de Serbie, - 8 -
Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and
Montenegro,
Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro,
Mr. Christian J. Tams, LL.M. (Cambridge),
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdjić, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebić, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M. (Cambridge),
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. The sitting is open.
The Court now meets to hear the oral argum ents of the Parties on the merits in the case
concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).
I note initially that Judge Buergenthal info rmed the President, pursuant to Article24,
paragraph 1, of the Statute, that he considered he should not take part in the case.
I further recall that since the Court does not include upon the Bench a judge of the
nationality of either of the Parties, both Pa rties have availed themselves of the right, under
Article31, paragraph2, of the Statute, to choose a judge ad hoc . Bosnia and Herzegovina
originally nominated Sir Elihu Lauterpacht. Fo llowing the resignation of the latter, Bosnia and
Herzegovina chose Mr. Ahmed Mahiou. Serbia and Montenegro chose Mr. Milenko Kreća.
Article 20 of the Statute provides that “[e]very Member of the Court shall, before taking up
his duties, make a solemn declaration in open court that he will exercise his powers impartially and
conscientiously”. Pursuant to Article 31, paragraph 6, of the Statute, that same provision applies to
judges ad hoc.
KMrer. ća was duly installed as judge ad hoc in the case on 25August1993 during the
hearings on the further requests for provisional measures. In accordance with Article8,
paragraph3, of the Rules of Court, he is not required to make a new declaration for the present
phase of the case. Although Mr. Mahiou has been a judge ad hoc and made a solemn declaration in
a different previous case, Article 8, paragraph 3, of the Rules of Court provides that he must make
a further solemn declaration in the present case. In accordance with custom, I shall first say a few
words about the career and qualifications of Mr. Mahiou before inviting him to make his solemn
declaration.
Mr.Mahiou, who is of Algerian nationality, is a docteur d’Etat of the Faculty of Law at
Nancy and is agrégé in public law and political science. He has held a number of teaching and
research posts at the University of Algiers and in other countries, particularly in France.
Mr. Mahiou has represented Algeria at several in ternational conferences and has served on various
international bodies including the International Law Commission, of which he was Chairman at its
Forty-eighth session in 1996. Mr.Mahiou is a member of a number of academic institutions and - 11 -
bodies and is an Associate of the Institut de Droit International. He has published numerous works
and articles in various fields of intern ational law. Mr.Mahiou was a judge ad hoc in the case
concerning the Application for Revision of the Judgment of 11July1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and
Herzegovina).
I shall now invite Mr. Mahiou to make the sole mn declaration prescribed by the Statute, and
I would request all those present to rise.
M. MAHIOU:
«Je déclare solennellement que je remplirai mes devoirs et exercerai mes attributions de juge
en tout honneur et dévouement, en pleine et parfaite impartialité et en toute conscience.»
The PRESIDENT: Thank you. Please be seated. I take note of the solemn declaration made
by Mr.Mahiou and declare him duly installed as judge ad hoc in the case concerning the
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro).
*
In light of the length and complexity of the procedural history of the case, I shall not now
enter into the detail of the procedure followed thus far. However, for the convenience of the public
and the media, a press release containing a full account of the procedural history of the case has
been issued this morning. Paper copies have been made available at the entrance of the Great Hall
of Justice and an electronic version has been posted on the website of the Court.
At this stage, I will simply recall the following procedural events.
The Application instituting proceedings w as filed by Bosnia and Herzegovina on
20 March 1993. In Orders dated 8 April 1993 an d 13 September 1993, the Court indicated certain
provisional measures. Bosnia and Herzegovina filed its Memorial on 15 April 1994 and, within the
time-limit fixed for the filing of the Counter-Memor ial, the Federal Republic of Yugoslavia raised - 12 -
preliminary objections concerning the Court’s ju risdiction to entertain the case and to the
admissibility of the Application. By Judgm ent of 11July1996, the Court dismissed the
preliminary objections and found that it had jurisdiction to adjudicate on the dispute on the basis of
ArticleIX of the Genocide Convention and that the Application was admissible. The Federal
Republic of Yugoslavia subseque ntly filed its Counter-Memorial on 27July1997. Bosnia and
Herzegovina’s Reply was filed on 23April1998 and the Rejoinde r of the Federal Republic of
Yugoslavia was filed on 20 February 1999.
On 24April2001, the Federal Republic of Yugoslavia filed an Application instituting
proceedings whereby, referring to Article61 of th e Statute, it requested the Court to revise the
Judgment delivered on Preliminary Objections on 11July1996. On 4May2001, the Federal
Republic of Yugoslavia also submitted in the present case a document entitled “Initiative to the
Court to Reconsider Ex Officio Jurisdiction over Yugoslavia”, in which it requested the Court to
adjudge and declare that it had no jurisdiction ratione personae over the Federal Republic of
Yugoslavia and requested the Court to suspend the proceedings on the merits.
In the Judgment of 3February2003 in the Application for Revision case, the Court found
that the Federal Republic of Yugoslavia’s Applica tion for revision, under Article 61 of the Statute
of the Court, of the Judgment of 11July1996 on Preliminary Objections was inadmissible.
Subsequently, in a letter dated 12June2003, Serbia and Montenegro was informed that the Court
had decided that it could not accede to the Respondent’s request that the proceedings be suspended
until a decision was rendered on the jurisdictional issues raised in the Initiative; however, should it
wish to do so, Serbia and Montenegro would be free to present further oral argument on
jurisdictional questions during the oral proceedings on the merits.
We have now reached the opening of the oral proceedings on the merits.
*
Having ascertained the views of the Parties, the Court decided, pursuant to
Article 53, paragraph 2, of its Rules, that copies of the pleadings and the documents annexed would
be made accessible to the public on the opening of the oral proceedings. Further, in accordance - 13 -
with the Court’s practice, the pleadings without their annexes will be put on the Court’s website
from today.
*
I note the presence at the hearing of the Agents , counsel and advocates of both Parties. In
accordance with the arrangements on the organizati on of the procedure which have been decided
upon by the Court, the hearings will comprise a first and a second round of oral argument.
Between the two rounds of oral argument, th e Court will hear the witnesses, experts and
witness-experts called by the Parties.
*
The first round of oral argument will begin to day. Bosnia and Herzegovina will have ten
sessions and will thus conclude its first round of argument on Tuesday 7March2006. On
Wednesday 8 March 2006 at 10 a.m., Serbia and Montenegro will begin its first round of oral
argument and will have the same number of sessions for this purpose as Bosnia and Herzegovina.
The first round of oral argument will accordingl y be concluded on Thursday 16 March 2006. On
Friday 17March at 10a.m., the Court will begin the hearing of the witnesses, experts and
witness-experts and this will end on Tuesday 28March2006. There will then be a break in the
hearings until Tuesday 18April2006 at 10a.m. when the second round of oral argument will
begin. Bosnia and Herzegovina will have eight sessions and will thus conclude its second round of
argument on Monday 24 April 2006. On Tuesday 2 May 2006 at 10 a.m., Serbia and Montenegro
will begin its second round of oral argument and will dispose for this purpose of the same number
of sessions as Bosnia and Herzegovina. The second round of oral argument and the hearings in the
case will accordingly be concluded on Tuesday 9 May 2006.
* - 14 -
As I mentioned, Bosnia and Herzegovina, whic h is the Applicant in the case, will be heard
first. I now give the floor to Mr. Sakib Softić, the Agent of Bosnia and Herzegovina. You have the
floor.
SMOr.TI Ć:
1. Madam President, let me begin with c ongratulating you on behalf of Bosnia and
Herzegovina, on behalf of my Government and of my colleagues in our legal team, with your
election to this most honourable post of President of the International Court of Justice. Also, let me
avail myself of this opportunity to congratulate the four newly elected Members of this Court, who
were sworn in this morning. In this Great Hall of Justice there is no need for me to elaborate on the
importance of the rule of law, nor on the importa nce of the International Court of Justice, whose
eminent task it is to make the rule of law visible to the world.
2. Madam President, distinguished Members of the Court. For me, this is the second time
that I have the honour to appear before this Court. From a professional point of view this is an
extremely great honour, an honour to represent my country and its citizens in this effort to obtain
justice for the immeasurable harm inflicted upon us.
3. This case is of immense importance to my country, to its citizens and to the State of
Bosnia and Herzegovina, which I represent here today. The hundreds of victims who have
peacefully assembled here today in The Hague at the gates of the Peace Palace are a vivid
demonstration of this importance.
4. The armed violence, which hit our country like a man-made tsunami in 1992 and which
continued to chastise the non-Serb population in 1993, 1994 and 1995, destroyed the very character
of Bosnia and Herzegovina and certainly destroyed a substantial part of its non-Serb population. If
at all possible, it will take several generations to overcome this destruction and to heal the painful,
numerous injuries caused by the same. At the same time much of the personal and cultural damage
done to the specifically targeted non-Serbs of Bosnia will not be able to be healed at all.
5. Madam President, we used to be 4.3 m illion Bosnians living together, often intimately
connected through so-called mixed marriages. No w, we are somewhat over 3.5 million citizens of
Bosnia and Herzegovina, living within two entities which make up the present day structure of our - 15 -
country. Especially the territory of the Republika Srpska has changed into a more than 90 per cent
mono-religious, mono-ethnic region from which an y notion of multi-ethnicity has effectively
disappeared.
6. For this, we do not entertain feelings of revenge towards the Bosnian Serbs in our country.
After all, they have been clearly misled by their leaders who carried out what the Respondent
initiated in the early 1990s of the past century. So, revenge is not guiding us, neither is any notion
of collective guilt doing that. This case is not about blaming each and every Bosnian Serb for the
acts of genocide committed against the non-Serbs of Bosnia and Herzegovina.
7. Rather, we are here because the Belgrade authorities have, knowingly, taken the non-Serbs
of Bosnia and Herzegovina on a path to hell ⎯ a path littered with dead bodies, broken families,
lost youths, lost futures, destroyed places of cu ltural and religious worship, destroyed property,
destroyed homes, destroyed towns and villages; on a path towards a world where living memories
were erased and where the intimate living environment was destroyed.
8. Madam President, Members of the Court, many Serbian leaders have, over a long period
of time, developed the victim-concept into a tool to define Serbian history and, at the same time, as
a tool to mobilize their constituency. We do not want to minimize the truly horrific suffering that
came onto the Serbian people in the past, including the suffering of the Second World War. That
suffering should not be forgotten and we may only sp eak about this in the most respectful of ways.
At the same time, we are not able to ever accept th at these historic pains are utilized to incite the
victims thereof to commit acts of genocide against others.
9. The victim-rhetoric has played an always present role in the propaganda used to mobilize
the Serbian people into allowing and supporting th e Serbian authorities to engage the Federal
Republic of Yugoslavia in armed conflict. The victim-concept was, obviously, defined in ethnic
terms. This propaganda, therefore, aimed at defining the non-Serbs in the former Yugoslavia as the
enemy; the enemy which, according to this hate sp eech, had allegedly, clear genocidal plans in
mind for the Serbs of the former Yugoslavia. This is how all of this was started. During these
pleadings we will elaborate on all aspects of the real genocide that fol
lowed.
10. While the images of the massacres which hit the non-Serbs of Bosnia and Herzegovina
are not leaving anyone’s memories, already now, in Serbia, denials are part of the public debate: - 16 -
“we did not have anything to do with it, Srebre nica did not happen, mass-scale rapes did not occur,
we were not the aggressors”, and so on and so on. This is what many, many people in Serbia want
their fellow citizens to believe.
11. Actually, the position taken by the Respondent in the written pleadings in this case is at
the heart of this denial-position. In their C ounter-Memorial as well as in the Rejoinder, the
Respondent takes exactly this position: “it was not us, we were not in volved, we have done
nothing wrong”. In the Counter-Memorial, the Respondent even added that not the Respondent
was responsible for genocide, but, on the contrary, Bosnia and Herzegovina is the guilty party.
12. This case is before this Court and is e xplicitly continued before this Court to do away
with precisely this rude falsifying of history. This case is before this Court for truth-finding
purposes. A rebuilding of Bosnia and Herzegovina against the backdrop of continued denial seems
virtually impossible. Developing good-neighbour relations with Serbia and Montenegro against the
backdrop of continued denial is virtually impossibl e. Sitting next to each other in the European
Parliament does not look like a realistic, future option if the representatives of the Respondent keep
entertaining totally false views on what their State did to its neighbours.
T1he. ad hoc Tribunal which the United Nations has established in order to bring to justice
the perpetrators of genocide in Rwanda consider ed in one of its judgments that “cessation of the
atrocities of the conflict does not necessarily imply that international peace and security has been
restored, because peace and security cannot be said to be re-established adequately without justice
1
being done” .
14. Yes, the truth may be painful to many people in Serbia and Montenegro as well as, for
that matter, in the Republika Srpska. But no one w ill deny that this particular pain will not ever
come close to the immeasurable pain which, e ffectively, has been inf licted on the non-Serbs of
Bosnia and Herzegovina. Healing that almost unhealable pain is also the reason for our deep desire
that this Court delivers a positive judgment on our submissions.
15. Madam President, the Government of my country does not deny that during the time that
ethnic cleansing raged across my country, Bosnian Serb s have also become victims of war crimes.
1ICTR, Prosecutor v. Joseph Kanyabashi, case No.ICTR-96-15-T, Decision on the Defence Motion on
Jurisdiction, 18 June 1997. - 17 -
Without any reservations we stipulate here that we deeply deplore that. However, never ever have
these incidents been part of any policy authorized by the Government of my country. At no point
in time has this Government engaged in perpet rating crimes, let alone in the perpetration of
genocide.
16. Madam President, this case is not aimed at the individual citizens of Serbia and
Montenegro, let alone at the individual citizens, my fellow Bosnian citizens, in Republika Srpska.
This case is about State responsibility and seeks to establish the responsibilities of a State which,
through its leadership, through its organs, committed th e most brutal violations of one of the most
sacred instruments of international law. This case does, by far, supersede the level of individual
responsibility and it is only left to other tribunals and courts to see that individuals who deserve so
are properly punished. Bosnia is, through this case, not seeking to punish individuals.
17. At the same time, the healing aspect of this case is explicitly also aimed at repairing the
damage done to those, who became the victims of ethnic cleansing which, in Bosnia, is so clearly
equal to genocide.
18. Madam President, this perspective on what this case is not about and on what it, indeed,
is about, seems to be shared by quite a few pe ople in Serbia proper. Several civil society
organizations in Belgrade have publicly declared that they want to see justice done through this
Court’s establishing that, indeed, Serbia and Monten egro is to blame for genocide in Bosnia and
Herzegovina.
19. Not so the Respondent. The Respondent is not particularly fond of the truth. Apart from
denying the truth, it also seems to focus on a strategy aimed at keeping the Court from reaching a
conclusion on the merits of this case. Basically, the Respondent is trying to hide from being held
accountable before this independent and authoritative Court. Given the issues at stake that is not a
very laudable choice. However, for us today the most important issue is to state clearly before this
Court, Madam President, that we are convinced that the Respondent, as far as the Respondent is
trying to do so, will, again, enga ge in an undertaking not worth any cause and, in any event, in an
endeavour not worth being honoured by this Court.
20. Madam President, after almost 13 years the time has arrived for Bosnia and Herzegovina
to publicly present its case. This presentation will inevitably lead to the conclusion that Serbia and - 18 -
Montenegro have violated all of its obligations under the Genocide Convention. I will not take up
more time, but I will ask you to give the floor now to the members of Bosnia’s legal team, who
have not only put all of their significant professional, legal and litigating skills in this case, but who
have also invested enormous amounts of personal energy and personal commitment in this case.
21. First of all, I am honoured to ask the Court to give the floor to our Deputy Agent, my
friend and colleague, Phon van den Biesen. Thank you.
The PRESIDENT: Thank you, Mr. Softić. I now give the floor to the Deputy Agent
Mr. van den Biesen.
Mr. van den BIESEN:
INTRODUCTION
General
1. Madam President, Members of the Court, this is the third time I appear before this Court,
while representing Bosnia and Herzegovina. I am honoured to be pleading before the World Court
and I am much honoured by Bosnia and Herzegovina having me do so. If any case is worth
pleading, to me, this is the one. If any case deserves to be judged by this Court, again, to me, this is
the one.
2. Madam President, this is not going to be a pleasant week of pleadings. We will have to
present to this Court the story of a prolonged, ugly, extremely vicious, genocidal, assault on people
whose only mistake it apparently was not be born as a member of the Serbian nation. An armed
onslaught which not only included “regular” war cr imes, but which also had, from the very, very
early stages onward, the apparent characteristics of a military undertaking aimed at the destruction
in whole or in part of a clearly ethnically, religiously defined group of people.
3. This case is for many reasons exceptional, the overriding reason being the fact that this is
the very first time that this Court was called upon to apply the Genocide Convention. Besides that,
this case is exceptional since it is related not to just a few factual events, not to just some incidental
violations of the laws of war. In this case, this Court needs to look at the totality of an abundance
of facts covering an entire episode of armed, genocidal conflict. - 19 -
4. We trust that the Court will give due no tice to each and every provision of the Convention
which is at stake in this case. We will provide proper assistance to the Court in addition to that
which we already gave during the written stages of these proceedings.
5. In our pleadings we will, in accordance w ith Article60, paragraph1, of the Rules of
Court, not repeat the facts and arguments alread y contained in the written pleadings. We will,
however, continuously refer back to the written plea dings. Not only to refresh our memories, but
also to provide for consistency and to demonstrat e our consistency in what we are requesting the
Court to adjudge and declare.
Our written pleadings
6. Madam President, we are not embarrassed in admitting that there is an important
difference in the quality of each of our written pleadings.
7. The Application of 20March1993 was clear ly drafted under the pressure of actual mass
killing of the non-Serb population of Bosnia and Herz egovina. This Application, in the first place,
had to function as groundwork for the request for provisional measures, which was submitted to the
Court on the same date. As we know, the Appli cation was effective for that purpose and it led,
together with the request, to a positive Order of yo ur Court dated 8 April 1993. An Order which,
by the way, was totally ignored by the Respondent; it was totally violated by the Respondent. The
same was true for your second Order of 13September1993, which not only literally repeated the
earlier one, but added that the earlier one should be “immediately and effectively” implemented.
So, on two subsequent occasions the Respondent not only demonstrated utter contempt for this
Court, but also ⎯ within half a year ⎯ twice violated its related obligations under international
2
law . Obviously, Bosnia and Herzegovina will at the end of these pleadings request that the Court,
indeed, finds that the Respondent twice totally ignored this Court’s Order and not only that but it
continued for many years to do precisely what the Court had ordered it to stop doing, this fact, also,
entails its responsibility.
2LaGrand (Germany v. United States of America) , Judgment, I.C.J. Reports 2001 , p.506, para.109 and Armed
Activities on the Territory of the C ongo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005,
para. 263. - 20 -
8. The Memorial of 15April1994 provided a further, firm foundation for our case.
However, the drafting of that written pleading was se riously hampered by the fact that, in spite of
the two Orders just mentioned, and in spite of num erous resolutions of the Security Council of the
United Nations, the genocidal atrocities continued. This made proper communications with, within
and from the besieged capital, Sarajevo, virtuall y impossible. It goes without saying that the
Respondent did not encounter this type of obstruction when drafting its Counter-Memorial.
9. In our Reply of 23 April 1998 we were, fo r the first time, better positioned to provide the
Court with a more detailed picture of what exac tly had happened in Bosnia and Herzegovina and
how these events should be appreciated from a legal perspective.
New evidence since April 1998; ICTY
10. Since April 1998, almost seven years went by. In that period of time an enormous
amount of new materials and many, many previ ously unknown existing materials with respect to
the ethnic cleansing in Bosnia and Herzegovina surfaced; hundreds of articles in the media, various
documentary films, many, many books, and ⎯ even more extremely relevant for our case ⎯
thousands and thousands of documents and reports which have served as a foundation for the
numerous judgments which have been delivered by the various Chambers of the International
Criminal Tribunal for the former Yugoslavia. We will try to avoid acronyms during our pleadings,
but we will frequently refer to this Tribunal by the acronym ICTY.
11. Studying and analysing the materials from the ICTY thoroughly leads not only into an
horrendous and continued con frontation with the “scenes from hell”, to which ICTY
JudgeFuadRiad referred when he, in 1995, in his ruling confirming the Indictments against
3
Karadzić and Mladi ć , spoke. At the same time, seen from the perspective of our case, these
materials ⎯ with no exception ⎯ provided support for the analysis of the facts, the same analysis
of the facts, which we have presented to the C ourt before. As far as the facts themselves are
concerned, all of the findings of the ICTY in rele vant cases are entirely in line with what we have
presented to this Court earlier. Exactly the same applies for the facts presented by the Prosecutor
3ICTY, Prosecutor v. Radovan Karadžić and Ratko Mladi ć (“Srebrenica”), case No.IT-95-18-I, Review of the
Indictment, 16 Nov. 1995, p. 1. - 21 -
of the ICTY in cases against indictees from Se rbia and Montenegro and their affiliates from
Republika Srpska, which indictments at all times were confirmed by an independent judge.
The Respondent’s approach
12. That the facts revealed since April 1998 are so overwhelmingly in support of our position
may be an explanation why the factual part of our submissions has hardly been disputed ⎯ and in
any event certainly not seriously disputed ⎯ by the Respondent. The Respondent, actually, has not
been forthcoming with any serious defence. Inst ead of that, Serbia and Montenegro has chosen
to ⎯ other than what Article49, paragraphs2 and 3, of the Rules of Court call for ⎯ rely on all
sorts of propaganda which the Bosnian people have been hearing for much too long.
13. Madam President, Members of the Court, if the Respondent at all plans to become more
substantial in its defence during the present pleadings , this necessarily needs to become visible in
their first round in order to enable Bosnia and He rzegovina to properly rebut. Saving any defence
for the second round of these oral pleadings would almost certainly lead to a violation of the
principle of fair trial.
14. So, Madam President, what exactly did the Respondent do instead of ⎯ within the
setting of these proceedings ⎯ properly responding to the submissions put forward by Bosnia and
Herzegovina? It seems that Serbia and Montenegro has focused on trying to prevent the Court
from delivering a judgment on the substance of this case. In doing so, more often than not they
have focused on putting up some sort of defence outside of these proceedings.
No peace without justice
15. The fact that we are here today demonstrat es that in this respect the Respondent has not
been successful, and rightly so. The extremely horrific nature of the substance of this case and the
utmost infamy of the violations of the Ge nocide Convention for which the Respondent is
responsible, simply demand that justice be done ⎯ justice provided by the highest and most
authoritative Court, created in the name of the peoples of the world.
16. Not only the people of Bosnia and Herzegovina, but also the peoples of the world, are
entitled to see that the justice system of the United Nations, indeed, functions properly and is,
indeed, capable of delivering justice. Justice to a State and justice to a people which suffered from - 22 -
the most brutal violations of norms; norms that are considered to be jus cogens and by which, as
the Respondent time and again stipulated, the, then , Federal Republic of Yugoslavia was indeed
bound. This case, therefore, provides this Court with the opportunity, indeed with the duty, to
demonstrate to the peoples of the world that, yes, th e rule of law will prevail. The whole world is
watching. The Balkans are watchi ng, the surviving victims of the only genocide that occurred in
Europe since the Second World War, and hopefully the very last one, are very closely, and filled
with expectations, watching.
Procedural history of the case
17. Madam President, in your introduction, you referred to the procedural events. Some of
those deserve some further observations. The public record with respect to this case would not be
complete without a proper accounting of its proce dural history, which accounting needs to include
a public accountability as to why and how it is that it took almost 13 years for this case to be
publicly heard, since the initial Application in March 1993.
18. Indeed, Bosnia and Herzegovina in a way shares part of the responsibility for this, albeit
a very minor part: Bosnia did not meet the first deadline set by the Court for the submission of its
Memorial. Due to the ongoing ethnic cleansing, we were forced to request an extension of six
months of the first time-limit until April 1994.
19. For reasons of equality of arms, this pr ovided the Respondent with a time-limit of one
year, until April1995, to submit its Counter-Mem orial. However, on 9February1995, the
Respondent requested the Court to extend th e time-limit until 15November1995. Bosnia
obviously objected to this, and the Court only partly honoured the request, extending the deadline
until 30June1995. At that point in time the Federal Republic of Yugos lavia did not submit a
Counter-Memorial but it did submit preliminary obj ections in which it included a considerable
amount of grounds, certainly an exhaustive amount of grounds, on which the Court would have to
declare it had no jurisdiction or that the Application was not admissible. This Court has rejected all
of that in its Judgment of 11July1996 and decl ared that, indeed, it does have jurisdiction and
declared the Application admissible. - 23 -
20. One year later, on 22 July 1997, two years after the Srebrenica massacre, the Respondent
submitted its Counter-Memorial. At that point in time, it took an unparalleled step, seen from the
perspective of the substance of this case: it submitt ed counter-claims. It stated, in our words, “it
wasn’t us who committed genocide, it was Bosnia and Herzegovina”. The Respondent plainly and
without any shame stated this, however without pr oviding even the tiniest bit of evidence which
could possibly support this preposterous and extremely insulting claim.
21. Of course, while realizing full well that c ounter-claims as such usually are considered to
be admissible, Bosnia could not but object to permitting this particular counter-claim. To protect
the honour of the true victims of genocide, wh ich our case is all about, Bosnia and Herzegovina
was under an obligation to strongly protest against this impertinent manoeuvre of the other side.
The Court did not agree with us and through its Order of 17December1997 it declared the
counter-claims admissible. After that, on 23Apri l1998, we submitted our Reply, after a short
extension of the time-limit was requested and granted. This was followed by the Rejoinder on
22February1999, after the already prolonged deadline of 22January1999 had again been
extended at the request of the Respondent.
22. After that Bosnia, from a procedural point of view, was entitled to produce another
written pleading, a rejoinder with respect to the counter-claims. However, Bosnia had all along
during these proceedings stressed that it wanted to keep the pace and it had pointed out repeatedly
that the case had suffered ample delays already. Therefore, Bosnia and Herzegovina waived its
right to submit a rejoinder.
23. Then the Parties met on 19 April 1999 ⎯ that is, almost seven years ago now ⎯ with the
President of the Court to discuss the proper conducting of the oral pleadings for which the Court
was then about to fix the dates.
24. Before the Court could actually do so, the Respondent engaged in a ⎯ seen from the
procedural point of view ⎯ rather shameless action. On 9 June 1999, the Bosnian Serb Member of
the Bosnian Presidency, Zivko Radisi ć, sent a letter to the Court stating that he had appointed a
4
new Co-Agent of Bosnia . The day after, this freshly “appointed” new Co-Agent sent a letter to
4Letter from Zivko Radisić, “President of Presidency” of Bosnia and Herzegovina, to the President and Members
of the International Court of Justice, Banja Luka, 9 June 1999. - 24 -
5
the Court stating that Bosnia and Herz egovina “is not going on” with the case . And again, a few
days after that, the Agent of the Respondent sent a letter to the Court stating:
“I have the honour to inform you that the Federal Republic of Yugoslavia has
accepted the proposal of Bosnia and Herzegovina to discontinue the proceedings in the
Case concerning Application of the Conventio n on the Prevention and Punishment of
the Crime of Genocide (B osnia and Herzegovina v. Yugoslavia) under conditions
stated in the letter of the Applicant.” 6
25. Obviously, Madam President, all of this w as a total fraud. There was no decision of the
Presidency to appoint this Mr. Mileti ć. More importantly, there was never a decision taken by the
Presidency of Bosnia and Herzegovina to withdraw the case ⎯ and everybody knew that. Clearly,
this strongly suggests a concerted operation between Belgrade and some Bosnian Serb authorities.
As such, it was nothing else than a perfect demons tration of the ever ongoing close co-operation
between Belgrade and the Bosnian Serb side. A party acting in good faith would, of course, not
have sent a letter like the one that Belgrade sent on 15 June to the Court, but it rather would have
waited for the reaction of the earlier and properly appoi nted Agent. In any ev ent, in any event, a
party acting in good faith would have withdrawn its letter after Bosnia’s truly appointed Agent
informed the Court on 14 June 1999 about the actual situation. In this letter the Agent stated,
among other things:
“The Presidency of Bosnia and Herzegovi na has not taken any action to either
appoint a new Agent or Co-Agent or to terminate the current proceedings before the
Court . . . Therefore, Mr. Radisić’s communications to you are without the authority
of the Presidency of Bosnia and Herzegovina , the Dayton/Paris Peace Accords, or the
Rules of Procedure of the Presidency . . . If there is to be a change in my capacity as
Agent or Bosnia and Herzegovina’s pursuit of the current case before the Court, this
will be decided by the Presidency as a whole and will be communicated to the Court
as such.” 7
26. We are grateful that the Court handled this issue very carefully, although ⎯ as we did
mention several times in meetings with the President of the Court ⎯ this did take much longer than
was justified considering the grave issues at stake in this case. Thus, it took over a year-and-a-half
for this issue to stop being an issue, and for the Court to resume the planning of the oral pleadings.
5
Letter of Svetozar Miletić, claiming to be “Co-Agent of Bosnia and Herzegovina”, to the President and Members
of the Court, The Hague, 10 June 1999.
6Letter of Rodoljub Etinski, Agent of the Federal Republic of Yugoslavia, to the President and Members of the
Court, Belgrade, 15 June 1999.
7Facsimile letter of Muhamed Sacirbey, Agent of Bosniaand Herzegovina before the International Court of
Justice, to the Registrar of the International Court of Justice, New York, 14 June 1999. - 25 -
27. However, not long before the actual announ cement of the planning of the oral pleadings
was expected, Serbia and Montenegro sent another letter to the Court. Among other things this
letter asked for “a stay of proceedings, or alterna tively, for a postponement of the opening of the
oral proceedings for a period of twelve months . . .” And then the Respondent went on to state:
“Elections for the President and for the Federal Assembly of Yugoslavia held
on September 24, 2000, massive demonstrations of hundreds of thousands of citizens
which brought about recognition of the results of the September elections, as well as
the December 23, 2000, elections for the Serbian National Assembly, have marked the
end of a most dramatic and painful decade in Yugoslav history. The result of these
events was not just a simple change of government. What took place is a fundamental
and dramatic change in the basic orientation and policies of our country . . .”
And the letter continues:
“The Federal Republic of Yugoslavia has already taken decisive steps in order
to improve relations with its neighbours, and with the international community as a
whole. Notably, Yugoslavia established diplomatic relations with Bosnia and
Herzegovina on 15 December 2000 . . .
In the light of the fundamental change of policies as well as the new
international position of the Federal Repub lic of Yugoslavia, my Government will
have to undertake a careful review of Yugoslavia’s position in our cases pending
before the International Court of Justice . . .
The improvement of Yugoslavia’s relations with Bosnia and Herzegovina might
8
open the way for finding an amicable solution to all outstanding controversies . . .”
28. Bosnia and Herzegovina welcomed this a pproach in its response to the Court and just
expressed the hope that there was new resolve and good faith. But it also let known to the Court
that:
“It must be taken into consideration that the request for a one year ‘freeze’ on
the case does have prejudicial consequen ces for Bosnia and Herzegovina, both in
terms of the substantive and practical cons iderations. Nonetheless, we have given
indications of our willingness to resolve amicably the outstanding matter with the
FRY on the basis of a mutually acceptable methodology to settle Bosnia and
Herzegovina’s claims, and the FRY’s commitment to international legality in terms of
international cooperation with the War Crimes Tribunal for the former Yugoslavia.
Unfortunately, the above has not as yet o ccurred and there are indications to the
contrary, in terms of the willingness of the FRY to meet its international obligations
9
and cooperate with the Tribunal.”
8
Letter of Goran Svilanovi ć, Federal Minister for Foreign Affairs of the Federal Republic of Yugoslavia, to the
President of the International Court of Justice, Belgrade, 18 January 2001.
9Letter of Muhamed Sacirbey, Agent of Bosnia and Herze govina, to the Registrar of the International Court of
Justice, New York, 25 January 2001. - 26 -
And the letter ends requesting that the Court would continue to plan the oral pleadings and not to
provide for a delay.
29. None of the conditions proposed by Bosnia were ever, ever met; nor was any substantive
or serious initiative for any “amicable solution” ⎯ which was the reason given for the request for
the stay of the proceedings ⎯ ever developed. Moreover, Serbia and Montenegro also at that point
in time continued its policy of non-co-operation with the ICTY.
30. The so-called “careful review” of the FRY position with respect to the pending cases
aimed at finding “an amicable solution” with Bosnia and Herzegovina turned out not to be related
at all to the reasons provided by the Respondent in support of its request for an extension. Yet
again, Serbia and Montenegro had misled Bosnia an d Herzegovina and, for that matter, the Court.
The extension allowed by the Court, eventually, merely led to Serbia and Montenegro’s submitting
a new case, the request for a revision. As is well known, this request was rejected by the Court on
10
3 February 2003 . And from that point in time, again, the fixing of the schedule for the present
hearings became possible.
The present oral pleadings
31. Madam President, without any doubt, the de laying tactics of the Respondent are to be
characterized as an entirely inappropriate way to de al with Bosnia and Herzegovina and, for that
matter, to deal with this Court. They have clearly been aimed at escaping factual and legal
accountability for the worst atrocities committed in Europe since the Second World War. The
approach of Serbia and Montenegro in the cour se of these proceedings is another deeply hurting
blow in the face of the victims, on top of what they already have suffered. The only positive side to
this is that, over the last couple of years, an extensive body of additional evidence in support of our
case has become available, especially through the mechanism of the ICTY. During the course of
our pleadings we will refer frequently to those ma terials. Whenever we do so, we will include
detailed references in footnotes but we are not going to read out the references. We are grateful to
the Registry for including the references in the verb atim records of the pleadings. Also, we will, at
1Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention
on the Prevention and Punishment of the Cime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003. - 27 -
the end of our first round, as a matter of convenience provide the Court and the Respondent with a
CD-ROM containing the electronic version of all th e ICTY materials that we will have, by then,
referred to.
32. Also, and obviously, Madam President, dur ing the course of our pleadings, we will
respond to the contents of the Rejoinder. However, we will not, we will not spend any time
discussing the contents of those sections of the written pleadings of the Respondent which
exclusively relate to its counter-claims. As is well known, the Respondent has withdrawn the
counter-claims, because they no longer fit the strategy of the Respondent, which changed into
focusing on the revision of the Court’s Judgment with respect to its jurisdiction. The President of
the Court has, on 10 September 2001, placed on record that the counter-claims by Yugoslavia have
been withdrawn, and that Bosnia and Herzegovina had indicated that it had no objection.
33. During our pleadings, we will, more or less, closely follow the structure of the written
pleadings in the Reply. We will not repeat the points we made earlier, but we will expand and we
will elaborate.
34. Today we will, after the coffee break, provide the Court with a general overview of the
years of genocide that hit Bosnia and Herzegovina, including the years leading up to it.
35. Tomorrow morning will be devoted to some remarks with respect to the present
jurisdictional situation, which we consider to be clearly res judicata and we will go into evidentiary
issues. In particular, we will provide the Court with an overview of the types of ICTY sources to
which we will refer during these pleadings.
36. From tomorrow afternoon through Thursd ay 2March we will focus on the acts of
genocide. From Friday morning 3 March through the morning of Tuesday 7 March we will focus
on State responsibility, i.e. the attribution of the acts of genocide to the Respondent. The Tuesday
morning session will be concluded by general concluding observations. Needless to say that the
structure we are following may not be considered as a strict separation of the two main issues at
stake ⎯ genocide and State responsibility ⎯ since, at all times, they are closely interconnected and
we will show that to the Court.
37. Madam President, as we have done all along during the proceedings, in presenting the
facts, we will rely entirely on facts made availa ble by independent and aut horitative sources. The - 28 -
choice to do so is in the first place a matter of principle; at the same time we do not resist
acknowledging that this choice also was easy and obvious. The abundance of materials available,
with respect to the ethnic cleansing of a large part of Bosnia and Herzegovina, to anyone who takes
some trouble to digest and understand these materials points in only one direction: the Respondent,
its authorities and its organs have been contiuously, intensively and entirely involved in the
preparation, the conducting and the execution of this genocidal war.
38. Clarifying the relevance of the Genoc ide Convention under present-day conditions will
be of immense importance to the world at larg e. First and foremost, it will be of immense
importance to Bosnia and Herzegovi na and to all people on the Balkans that the record of this
horrendous period is set straight in the most auhoritative way that is available to the civilized
world: precisely the judgment that we are asking this Court to come to. Thank you very much.
The PRESIDENT: Thank you, Mr. van den Biesen . The Court will take a very short break
and will later resume.
The Court adjourned from 11.40 a.m. to 11.55 a.m.
The PRESIDENT: Please be seated. Thank you. Mr. van den Biesen you have the floor.
Mr. van den BIESEN: Thank you very much, Madam President.
GENERAL PICTURE OF THE GENOCIDE HITTING
BOSNIA AND H ERZEGOVINA 1992-1995
Politics and propaganda
1. Madam President, Members of the Court, as we have demonstrated in the written
proceedings, the actual beginning of the atrocities in Bosnia and Herzegovina may have been in
March1992, but the preparation for this campaign of ethnic cleansing started a long time before
that date.
2. The ending of the cold war and the ⎯ related ⎯ dissolution of the Yugoslav Communist
Party at its 14thCongress in January1990 may have been the “outside” factors. However, the
“inside” factors were actually fuelling the process. - 29 -
3. First, obviously, there was politics, a nd, then, there was propaganda. The draft
Memorandum of the Serbian Academ y of 1986 reflects the message of these politics and of this
propaganda: “We are victims” that is the message. The Serbian people are continuously described
as victims: victims of the very structure of th e former Yugoslavia, victims of genocide over a
century’s long period of time and ⎯ most importantly in this propaganda ⎯
victims-of-genocide-to-be; victims-of-genocide-to -be if no decisive actions would be undertaken.
The victims-of-genocide-to-be approach comes back all the time in this sort of propaganda and the
theme is used by many of the key players in this case.
4. This propaganda translated into a political programme of action under the heading of the
Greater Serbia ideology. This political programme may be summarized in only a few words: “All
Serbs in one State”. As time showed this was not only a political programme but this included,
from the very beginning onwards, a military campaign aimed at ethnic cleansing as well.
5. The purpose of the propaganda was not unclear whatsoever: strengthening of the Serbian
Republic, putting the Serbian people first, hammering the historic importance of Kosovo Polje, the
place where the famous battle of Kosovo was fought and lost by the Serbians 600years ago in
1389. All Serbian children were taught for a long time already that one day they would have to
serve as the avenger of this battle lost to the Ottomans by the Serbian Prince Lazar. This is the
language which began to define the public rhetoric of the authorities of the late 1980s in Serbia.
Milosević, who became the President of the Serbian Communist Party in 1987, was soon turned
into and promoted as an all-Serbian hero. With the decline of the importance of the communist
platform in the former Yugoslavia, the Serbian-focused rhetoric gained in importance as a factor to
build and to retain a political power basis. The well-known mass meeting at Kosovo Polje on
28 June 1989 celebrating the 600th anniversary of the lost battle was attended by an unprecedented
number of half a million Serbs. Not only that, portraits of both Prince Lazar and Milosevi ć had
been widely distributed beforehand and those two portraits determined the looks of the crowd. The
metaphor could not have been clearer: Milosevi ć had himself portrayed as the “avenger” and
“saviour” of the Serbian nation. It was at this occasion that Milosević suggested that armed
conflict would be part of the renewed struggle on behalf of the Serbian nation ⎯ we refer to that in
the written pleadings. - 30 -
6. The resonance of precisely this message w as unmistakably present six years after that in
July1995, in Srebrenica: Mladi ć, when arriving in Srebrenica at the take over of this United
Nations “safe area”, stated in front of Serb television cameras that this was the moment for revenge
on the Turks 11.
7. From the beginning onwards, the Serb authorities clearly defined what they would soon
begin to call “the enemy”. The same is true for the material substance of the issues at stake.
Milosević stated on 15January1991 that “it would be unacceptable for Serbs to live in separate
States”. That was the message: “it would be unacceptable for Serbs to live in separate States”, and
he added that the Serbian nation would, indeed, live in one State, in one single State, thus echoing
the message of the 1986 Memorandum. He explaine d his vision of the future Yugoslavia: the
borders of the constituent Republics of the former Yugoslavia would not be defining for this future
Yugoslavia; what would be defining would be borders which would ensure that the Serbian nation,
12
not to be confused with the Serbian State , would be brought together in one single State . The
Vice-President of Milosević’s Serbian Socialist Party said it this way on 9October1991;
Michaelo Marković, talked about the new State and he said there would be at least three federal
13
units: Serbia, Montenegro and a united Bosnia and Knin region .
8. This approach, Madam President, of the Belgrade authorities is precisely the reason why
we, during these pleadings, will quite regularly, in our explanations and in our analysis, include the
Republika Srpska Krajina, across the border, in our observations. This is the region in Croatia just
north-west of Bosnia and it has a counterpart in Bo snia itself, by the name Bosnian Krajina. The
events in Bosnia and Herzegovina, in the territory of Bosnia and Herzegovina, only represented one
part of the Greater Serbia project; from the very beginning onwards, the Belgrade authorities
looked at the larger picture and acted accordingly. We will do the same. We will do the same in
order to provide the Court with the best understanding of what exactly happened.
11
Included, among others, in the documentary film “Triumph Of Evil”, SENSE Tribunal, 2003.
12Memorial, 15 April 1994, para. 2.3.1.4; Tanjug, 1939 gm t, 15 January 1991, source: BBC Summary of World
Broadcasts.
13Reply, 23 April 1998, Chapter 4, Section 1, para. 12; Tanjug, 1746 gmt, 9 October 1991. - 31 -
One State for all Serbs
9. Clearly, the one State for all Serbs approach was bound to have most repercussions in
Bosnia and Herzegovina: more than any other of the Republics of the former Yugoslavia, Bosnia
and Herzegovina had a very mixed population. According to the official count, the census of
14
31 March 1991 , the figures are as follows: at that time, the total population of Bosnia counted a
little over 4.3 million people, and the division, the listing of them, was as follows:
⎯ a little over 43 per cent Bosnian Muslims
⎯ 31 per cent Bosnian Serbs
⎯ 17 per cent Bosnian Croats, and
⎯ almost 8 per cent Others.
Most municipalities had truly mixed populations, a lthough in certain areas, there was a clear
prevalence of a specific group.
10. So, the authorities of Serbia aimed at creating one State for the entire Serbian nation, a
State in which all Serbs living in the territory of the former Yugoslavia would be united, whether
that would be in the form of one single State or in the form of a federation State, made up out of
several smaller republics. The new entity would ha ve to cover all of the areas where Serbs at the
time were actually living. That the creation of this new Yugoslavia, this new Greater Serbia, would
not just be a matter of redrawing borders and related negotiations was, to the promoters of this
concept, clear from the very beginning. And, therefore, this undertaking turned into a
well-prepared military, political and propaganda operation.
11. The first thing that needed to be done was to strengthen the position of Serbia proper.
For this purpose the, relatively, autonomous st atus of the two Serbian provinces, Kosovo and
Vojvodina, was put to an end. The way in which th is was realized is generally considered to have
been entirely illegal. In one of the cases before the ICTY the Prosecutor described the process as
follows and it is related to Kosovo:
“In early 1989, the Serbian Assembly proposed amendments to the Constitution
of Serbia which would strip Kosovo of mo st of its autonomous powers... Kosovo
11991 Census Population of Bosnia and He rzegovina, State Institute for Statistics of the Republic of Bosnia and
Herzegovina, Sarajevo, December 1993. - 32 -
15
Albanians demonstrated in large nu mbers against the proposed changes . On
23March1989, the Assembly of Kosovo me t in Pristina/Prishtinë and, with the
majority of Kosovo Albanian delegates abstaining, voted to accept the proposed
amendments to the constitution. Although lacking the required two-thirds majority in
the Assembly, the President of the As sembly nonetheless declared that the
amendments had passed. On 28March1989 , the Assembly of Serbia voted to
approve the constitutional changes, effectiv ely revoking the autonomy granted in the
1974 constitution.” 16
Again, this was only about Kosova but, at the same time, in the same procedure, at the same vote,
this was done to the autonomous status of Vojvodina. Soon after that Milosevi ć delivered his 1989
speech, to which I referred a minute ago.
12. In the beginning of the 1990s, this rude reorganization of Serbia proper was followed by
actual military, political and economic steps, initiate d in Belgrade, in preparation of the envisaged
new Yugoslavia.
Military preparations
13. First came the military steps. We discu ssed the role of MihaljKertes in the Memorial
17
and the Reply . MihaljKertes, who was at the time the Deputy Minister of the Interior in
Belgrade, was crucial in the arming of the Bosnian Serbs. In itself this arming of the Bosnian Serbs
was an elaborate and extensive operation, undoubtedly something different from what the
Respondent argued in its Counter-Memorial, where the Respondent stated:
“The Serb population in Croatia and Bosnia and Herzegovina spontaneously
armed itself always when it felt threatened. The arms for the most part came from the
depots of the territorial defence which were under the control [says the Respondent] of
the local population. Part of the arms . . . belonging to territorial defence units was in
the houses of members of the territorial defe nce according to the regulations in force
at that time. The Serb population in these areas procured part of the arms by illegal or
legal purchases.” 18
Now the facts, Madam President. As the facts show and as the extensive involvement of the
Yugoslav National army, the JNA, and of Belgrade demonstrate, there was nothing spontaneous
about this arming of the Serb population. If the Re spondent states that the depots of the territorial
1ICTY, Prosecutor v. Nebojsa Pavkovic, Vladimir Lazarevic, Vlastimir Djordjevic, Sreten Lukic , case
No. IT-03-70, Initial Indictment, 22 September 2003, para. 49.
1Ibid., para. 51.
1Memorial, 15 April 1994 , paras. 2.3.4.1-2.3.5.2; Reply, 23 Apr1998, Chapter 8, Section 2, para.24 and
Section 6.
1Counter-Memorial, 23 July 1997, p. 102, para. 1.3.17.2. - 33 -
defence were under the control of the local population, this is, to a certain extent, correct.
However, at the time the “local population” was of mixed ethnicity. Part of the not-so-spontaneous
operation was precisely to take away arms from the control of non-Serbs and to secure them
exclusively for use by the Serbs in Bosnia and Herzegovina.
14. At roughly the same time while the arms were distributed and redistributed into
exclusively Serb hands, the political structures were adapted. We have a statement of someone
who was totally involved at the time, the statement of Mrs.Plavsi ć, which she gave to the ICTY
when she pleaded guilty to crimes against humanity. Mrs. Plavsi ć was a member at the time of the
Bosnian Serb Presidency. She declared:
“In addition, the [Serbian Democratic Party of Bosnia and Herzegovina] SDS
prepared and distributed instructions to SDS [that is the political party] municipal
leaders to form crisis staffs [we will get back to the crisis staffs later] to proclaim
Serbian Municipal Assemblies and carry out preparations for the formation of
municipal governmental bodies and to mobili se Bosnian Serb police and Territorial
Defence forces and [subordinate them] to JNA command. The municipal crisis staffs
implemented these objectives and directives in the field, including ultimately the
objective of separation by force.” 19
And then we are talking about people ⎯ “separation by force”. This, Madam President, again, is
20
exactly in line with what we st ated earlier in our written pleadings . And I would like to stress
that Mrs.Plavsi ć acknowledges here, explicitly, in so many words, that the Bosnian Serb Police
and Territorial Defence Forces acted in subordination to the JNA, the Yugoslav National army.
Reviewing political structures
15. So after the structural reorganization of Serbia proper, the political structures outside
Serbia proper needed to be created so as to enab le the establishment of Serb power when the time
came. On 19December1991, the Main Board of the Serbian Democratic Party (SDS, i.e.
Karadzić’s) issued a document entitled “Instructions for the Organisation and Act
ivity of Organs of
the Serbian People in Bosnia and Herzegovina in extraordinary circumstances”, In general,
reference to this document is made under the title “Variant A and B Instructions”. This document
essentially mapped out the takeover of power by Bosnian Serbs (1) in municipalities where they
19
ICTY, Prosecutor v. Biljana Plavsic , case No. IT-00-39&40-PT, Factual basis for plea of guilt,
30 September 2002, para. 12.
2Reply, 23 April 1998, Chapter 4, Section 1, paras. 14-15. - 34 -
constituted a majority of the population, and tho se were named the “Variant A” communities, and
(2)in municipalities where they were in a minor ity, and those were named “VariantB”. The
document also included the directive that the SDS Municipal Boards should form those crisis staffs
of the Serbian people in their respective municipa lities, with the primary task of ensuring the
co-operation between ⎯ and then there is a listing ⎯ the political authorities, the JNA ⎯ the
Yugoslav army ⎯ the Territorial Defence and the po lice within their respective areas of
jurisdiction21.
Reviewing financial structures
16. Parallel to this process, financial structur es were created. In the autumn of 1991, helped
by the previous declarations of independence of Croatia and Slovenia, the Serbian authorities in
Belgrade took complete control over the Board of Governors of the National Bank of Yugoslavia
and, consequently, in doing so, the political authorities took complete control over Yugoslavia’s
monetary policy. This crea ted the desired room for, inter alia, the conspicuous financing of the
JNA, which was fundamental for the realization of the plan.
17. The relevance of this restructuring of the finances cannot easily be underestimated ⎯ we
mentioned that in the Reply and were surprised to see that the Respondent, in its Rejoinder, totally
ignored the issue 2. This operation would, in years to come, result in the integration of the
economies of the Federal Republic of Yugoslavi a, the Republika Srpska and the Republika
Srpska Krajina. Later on this week one of us will further elaborate on this particular issue.
Disintegration of SFRY
18. What the combination of these preparations would lead to would soon become visible.
While first Milosevi ć ⎯ as early as 1989 ⎯ had signalled that one should count with armed
struggle, Karadzić was much more outspoken. On 14 October 1991, he ⎯ in precisely these
words ⎯ at the meeting of the Assembly of Bosnia and Herzegovina, threatened the Muslims of
Bosnia with annihilation. Indeed, the prepar ations which took place between these two speeches
21
“Instructions for the Organisation and Activity of Organs of the Serbian People in BiH in extraordinary
circumstances” (Variant A and B Instructions), ICTY, Prosecutor v. Radoslav Brdjanin , case No. IT-99-36-T, Exhibit
No. P25.
2Reply, 23 April 1998, Chapter 8, Section 9, paras. 346-368. - 35 -
demonstrate that Milosević was not merely referring to theoretical possibilities in 1989; nor was
Karadzić doing so in 1991.
19. It is clear that the Serbian propaganda, together with the described preparations, went not
unnoticed by the other Yugoslav Republics. Professo r de la Brosse, a propa ganda expert from the
University of Reims in France, in his e xpert report prepared for the ICTY in the Milosević case,
puts it this way:
“The anti-Albanian propaganda of th e early days would be followed by
anti-Slovenian, anti-Croatian and then anti-Bosnian propaganda, multifaceted
propaganda used for one and the same political goal: the creation of a State for all the
Serbs.” 23
There is no doubt that these combined Serb ian undertakings speeded up the process of
disintegration of the former Yugoslavia.
20. When Slovenia declared independence on 25 June 1991, Belgrade, i.e., Serbia, did at first
respond with military force, but soon decided not to worry too much since no substantial part of the
Serbian nation was affected by this.
21. The Croatian declaration of independence, also on 25June1991, did lead to strong
reactions from Belgrade: the JNA, restructured a nd led by a great majority of exclusively Serb
generals, responded, indeed. It did so in close concert with paramilitaries from Serbia proper. This
is what happened: Vukovar, in Croatia, was take n. It was first pounded and shelled by the JNA
army, then the paramilitaries were called in to do the killing and hundreds, hundreds of men Serbs
in Vukovar, indeed, were killed. And we all remember the images of the hospital in Vukovar ⎯
the hospital that as such was shelled. And afte r a cleansing operation which took three months, all
the remaining and surviving non-Serbs were driven out of the town.
A pattern develops
22. Not only Vukovar received this Serb “treat” of destruction. Precisely this approach was
repeated in many other parts of Croatia and r esulted in the JNA and local Serbs occupying about
one third of Croatian territory. “Occupation”, Mada m President, is, in this context, a much too
2Professor de la Brosse, ‘Political Propaganda and the Plan to Create a State for all Serbs: Consequences of using
the media for ultra-nationalist ends’ for the OTP in ICTY, Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, p. 55
para. 58, Exhibit No. P446.2. - 36 -
mild description of what actually happened. Th is is what one of the ICTY Trial Chambers
established in its Judgment of 29 June 2004 in the case against Milan Babić, who became President
of the Republika Srpska Krajina in December 1991, the day when the Serbian Autonomous Region
of Krajina (SAO) proclaimed itself a Republic; the Trial Chamber found:
“from about 1 August 1991 to 15 February 1992, Serb forces comprised of JNA units,
local Serb Territorial Defence Units, te rritorial defence units from Serbia and
Montenegro, local MUP [Ministry of Inte rior] police units, MUP police units from
Serbia, and paramilitary units attacked a nd took control of towns, villages, and
settlements in the Serb Autonomous Region of Krajina. After the takeover, in
cooperation with the local Serb authorities, the Serb forces established a regime of
persecutions designed to drive the Croat a nd other non-Serb civilian populations from
these territories. The régime . . . included the extermination or murder of hundreds of
Croat and other non-Serb civilians in Dubica, Cerovljanji, Bacin, Saborsko, Poljanak,
Lipovaca, and the neighbouring hamlets of Sk abrnja, Nadin, and Bruska in Croatia;
the prolonged and routine imprisonment and confinement of several hundred Croat
and other non-Serb civilians in inhumane liv ing conditions in the old hospital and the
JNA barracks in Knin, which were used as detention facilities; the deportation or
forcible transfer of thousands of Croat and other non-Serb civilians from the SAO
Krajina; and the deliberate destructi on of homes and other public and private
property, cultural institution s, historic monuments, and sacred sites of the Croat and
other non-Serb populations.” 24
25
23. This is exactly the pattern we earlier described in our Reply . A pattern which would,
indeed, become visible in Bosnia throughout the period of ethnic cleansing, including at the
Srebrenica massacre.
24. Moreover, precisely this same pattern w ould, again, be visible in Kosovo in 1998 and
1999, when the crisis in Kosovo developed. The Prosecutor in the Milosević case observes exactly
the same:
“The unlawful deportation and forcible transfer of thousands of Kosovo
Albanians from their homes in Kosovo involved well-planned and coordinated efforts
by the leaders of the Federal Republic of Yugoslavia and Serbia, and forces of the
FRY and Serbia, all acting in concert. Ac tions similar in nature took place during the
wars in Croatia and Bosnia and Herzegovi na between 1991 and 1995. During those
wars, Serbian military, paramilitary and poli ce forces forcibly expelled and deported
non-Serbs in Croatia and Bosnia and Herz egovina from areas under Serbian control
utilizing the same method of operations as we re used in Kosovo in 1999: heavy
shelling and armed attacks on villages; widespread killings; destruction of
non-Serbian residential areas and cultural a26 religious sites; and forced transfer and
deportation of non-Serbian populations.”
24
ICTY, Prosecutor v. Milan Babic, case No. IT-03-72-S, Judgement of 29 June 2004, paras. 14, 15.
25
Reply, 23 April 1998, Chapter 4, Section 2, paras. 19-27.
2ICTY, Prosecutor v. Slobodan Milosevi ć, case No. IT-99-37-T, Second Amended Indictment filed on
16 October 2001, para. 103. - 37 -
Of course, on top of this, the Prosecutor demons trates that the pattern of takeovers in Kosovo
mirrored those in Bosnia with the liquidation of the élite and the separation of the men from the
women, the former being killed and the latter being deported 27.
25. Actually, it is not surprising that the pi cture of the takeovers and the following human
and cultural destruction looks indeed similar from 1991 through 1999. These acts were perpetrated
as the expression of one single project, which basically and effectively included the destruction in
whole or in part of the non-Serb group, wherev er this ethnically and religiously defined group
could be conceived as obstructing the all-Serbs-in-one-State concept.
26. Back to 1991. President Izetbegovi ć has received quite some criticism,
MadamPresident, from many people in Bosnia for being too naive about these developments.
Indeed, Izetbegović did not seriously prepare for an armed confrontation, since he just did not think
that was conceivable, he did not think that was coming, let alone that he would have expected
genocide.
K2a7r.adzić , who ⎯ at the time, and not only then ⎯ was in close contact with the
Belgrade authorities, expressed clearly, and more than just ironically, the general knowledge that
the Bosniacs did not have arms ⎯ I am referring to the Bosnian Muslims as Bosniacs, as since
1993 that is the accepted denomina tion. This is what Karadzi ć said when he addressed for the last
time the Bosnian Parliament on 14October1991 ⎯ and he talked to the Bosniacs, he talked
expressly to Mr. Izetbegović, who was President:
“You want to take Bosnia and Herze govina down the same highway of hell and
suffering that Slovenia and Croatia are travelling. Be careful. Do nothing that will
lead Bosnia to hell and do nothing that may lead the Muslim people to their
annihilation, because the Muslims cannot defend themsel28s if there is war. How will
you prevent everyone from being killed in Bosnia?”
28. That “the Muslims” could not defend themselves if there would be war, was, indeed,
correct; it was also a fact which was generally known. The year following these ominous words of
Karadzić indeed showed how the JNA, how the param ilitaries, how the Serb leadership in Bosnia
and in Serbia actually operated on the basis of th eir knowledge that they were up to an adversary
2Ibid., paras. 66 b, c, d, e, g, i, and 87.
2Speech by Radovan Karadzi ć to the BiH Parliament on 14 October 1991 as cited in ICTY,Prosecutor v.
Slobodan Milosević, case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 241. - 38 -
side who was not able to defend itself. In no time 70percent of the territory of Bosnia and
Herzegovina was taken over, which capture was follo wed by the truly ugliest of crimes, the ethnic
cleansing of this territory in order to create this ethnically pure, single State for all Serbs.
29. Even when the killing had started already in Croatia and even while the Bosnian Serbs
had already opted out of the Bosnian State institutions, the Bosnian Presidency did not seem to
believe that an armed struggle would be a real option.
30. The atrocities committed by the JNA and Belgrade paramilitaries in Croatia led the
international community to become more involved. International diplomatic efforts to find a
solution to the different crises in the former Yugos lavia were first formalized in early September
1991 and talks were held in The Hague, Brussels , Lisbon and Sarajevo. On 2January1992, the
JNA and Croatia reached an agreement in Sara jevo that ended the Croatian war, although a
political solution was deferred.
31. At the same time the JNA, the Yugoslav National army, was drastically restructured. On
1January1992, Sarajevo was elevated from a position of being the headquarters of just an army
corps to the headquarters of the Second Army District with responsibility for five army corps.
Before this reorganization the territory of Bosnia fell under the responsibility of separate military
districts: the first, which also covered part of Serbia, and the fourth, which also covered part of
Croatia. The result of the reorganization was that the territory of Bosnia and Herzegovina came to
fall under one single military district, i.e., under one single military command, this being the
second military district. The first general to have this second military district was
GeneralKukanjac. At the same time, Bosnian Serb recruits se rving in other Yugoslav Republics
were transferred to Bosnia a nd Herzegovina, while non-Serbian so ldiers employed in Bosnia and
Herzegovina were sent closer to their native home ⎯ there was a reshuffle of the Serbians of the
various armies and the officers. As a consequence of this operation, by March1992, some
90 per cent of the 90,000 JNA troops in Bosnia were of Bosnian Serb descent. It is, in a way, a sort
of cleansing process of the army only with totally different means and goals.
32. The JNA’s attention shifted to Bosnia and Herzegovina. The same was true for the
attention of the international community. Th e European Community convened in Lisbon.
JoséCutileiro (on behalf of the EU) succeeded in getting the parties to agree to a principle - 39 -
agreement, a “Statement of Principles”, which provided for a Bosnian and Herzegovinian State
composed of three constituent units based on ethno-national characteristics.
33. In fact these negotiations did not end in Lisbon but they continued in Sarajevo, in
Brussels and again in Sarajevo in March. But, even before the second talks took place in Sarajevo,
President Izetbegović sent a letter to Cutileiro stating that the Bosnian Serb Party, the SDS, was
planning to proclaim a constitutio n for the RepublikaSrpska in violation of the constitution of
Bosnia and Herzegovina and, therefore, was undertaking unilateral steps in contravention of the
Lisbon agreement. In other words, Izetbegovi ć came to be convinced that further meetings would
serve no purpose unless the Serbs opted for a diff erent course. Given the preceding years of
Greater Serbia propaganda and gi ven the preceding preparations for the actual creation of a new
Serbian entity or, for that matter, the creation of several Serbian entities, it was, indeed, not to be
expected that the Serb side would drop those plans and would, indeed, have accepted the Lisbon
agreement.
34. On the contrary, the violent approach of the Serb side, which we have already seen in
Croatia, soon began to dominate the entire picture. What exactly did those actions look like in
Serbia?
35. We have seen what it looked like in Vukova r and we have heard what the Prosecutor at
the ICTY has stated about the events in Vukovar. But the Vukovar approach was not especially a
one-off event. In view of the result of the referendum held on 29February1992 and
1March1992, Bosnia and Herzegovina officially declared its independence on 6March1992.
Subsequently the new State was recognized by th e European Community and the United States on
6 and 7April1992. Apparently , first the declaration of independence and, later, the international
recognition triggered the Belgrade authorities to begin an all-out and, indeed, genocidal war in
Bosnia.
36. The armed attack, which would immediatel y turn into ethnic cleansing, was rather
successful due to the fact, as I mentioned before , that the non-Serb population was left with
practically no weapons after the reorganization of the Territorial Defence (TO). It was a blitzkrieg,
a blitzkrieg which succeeded in achieving what apparently was its main goal: to destroy, to destroy
in whole or in part, the non-Serb population of the better part of Bosnia and Herzegovina, in line - 40 -
with the political goals propagated during the preceding years. This, then, was meant to lead to the
creation of several Serb entities which would make up one single State, a State which would hold
the Serbian nation, the entire Serbian nation within its borders.
Relabelling the JNA
37. On 25April1992, at the time that Bo snia was already recognized as an independent
State by the international community, General Mladi ć was appointed as Commander of the
2nd Military District of the JNA ⎯ the Yugoslav army ⎯ and he was appointed to that function by
the political authorities in Belgrade. Thus Mladi ć received the responsibility of the command over
all JNA forces, all Yugoslav army forces, in Bo snia and Herzegovina. MadamPresident, Mladi ć
was not exactly appointed to lead the total withdr awal of the JNA armed forces. The contrary was
the case. He was to stay in Bosnia, he was to st ay in this post, he was to head the reconstructed
Yugoslav army. And as soon as the JNA changed its name into VRS, the army of Republika
Srpska, Mladić was not called back to Belgrade, but he became Commander-in-Chief of the
Bosnian Serb army. This, basically, implied the continued responsibility covering exactly the same
territory, the same troops, etc., as he had had as JNACommander of the 2ndMilitary District.
Also, at the employment level, nothing changed for General Mladi ć: he remained, for a very long
time, at least until 2002, a General of the Yugosla v army. That was not a bureaucratic issue. He
was even promoted by the Supreme Defence Council ⎯ the highest military and political authority
in Belgrade ⎯ to the rank of General of the Yugosla v army, and this promotion took place on
24 June 1994 29.
38. In Belgrade, within the also newly-la belled Yugoslav army (VJ), a new department
would be created for all officers of the Repub lika Srpska army, and it was the 30th Personnel
Centre. Through this department, continued payment of the officers who were serving their duty in
the territory of the Republika Srpska was implemen ted. Also, all other related personnel matters
fell under the responsibility of this VJ bureau, obviously in subordination to the Serbian leadership.
A similar structure was not only served for Bosnia. A similar structure or exactly the same
29
ICTY, Prosecutor v. Momcilo Perisic, case No. IT-04-81, Amended Indictment, 26 September 2005, para. 39. - 41 -
structure was put in place in order to secure the army of the so-called Serbian Republika Krajina,
and that became the 40th Personnel Centre.
39. While in this way all of the officers of the Republika Srpska army remained at the same
time officers of the Yugoslav army, received thei r payments, their pensions, their promotions,
directly from Belgrade, the rest of the RS army ⎯ the number is mentioned of 200,000 men ⎯
was paid by Pale out of the Republika Srpska budget, which in itself was entirely covered by
Belgrade.
40. In other words, without Belgrade paying the 30th Personnel Centre officers and without
Belgrade at the same time funding the rest of the army, the armed assault could never have begun
in the first place and certainly the ethnic cleansing campaign could not have be en continued. This
becomes even clearer if one realizes that it was the Yugoslav army, the JNA under its former name,
that started ⎯ together with the Serbian and local Serb paramilitaries ⎯ the military violence in
Bosnia and Herzegovina. The so-called withdrawal of the JNA on 19May 1992 did not obstruct
the Serb side in doing what they did before this so-called withdrawal. All of the military
equipment, as well as the officers, was left in Bosnia and Herzegovina at the Republika Srpska’s
disposal. This way the Serb side could, indeed, continue the blitzkrieg, begun by the JNA in March
1992. “Continue” is exactly the right terminology here, since the military campaign was started by
the JNA and, indeed, continued, without any sort of interval, by the very same army that started it.
Only the labelling of this army had changed.
41. Of course, armies run out of fuel, they run out ammunition, they run out of weapons or
weapons are destroyed or they will need spare parts, and recruits and officers need training. All of
this was actively supplied by Belgrade within th e course of its normal doings with respect to the
army. This supply continued unabated throughout the entire period of ethnic cleansing.
42. It was not only Republika Srpska which recei ved this sort of funding, exactly the same
would be true for the Republic of Serbian Krajina. The leadership there would simply send letters
to Belgrade; they would send the invoice for expenses incurred and they would get paid. The
amount of money was soon so high that the taxpaye rs’ contribution in Serbia and Montenegro was
no longer sufficient. That was no reason for the Belg rade authorities to stop or to curb or restrict - 42 -
their spending. They simply instructed its financ ial institutions to print as many additional dinars
as were needed to cover the expenses of the ongoing war effort.
43. Now, did all Bosnian Serb soldiers within the former JNA want to fight against their
fellow citizens? No, Madam President, no not at all. Many tens of thousa nds of them refused and
fled the country. Those who fled to the Federal Republic of Yugoslavia made a serious mistake:
the Belgrade authorities had them arrested and th ey were simply sent back and handed over to the
Bosnian Serb authorities.
44. Again, all of these types of support con tinued throughout. Given the substance and the
size of this support ⎯ “support” is actually not the right word to use, since the input continuously
delivered by Belgrade clearly by far exceeds the threshold of one side “s upporting” another. The
situation should rather be defined in terms of “co llective effort”, “partnership”, single enterprise”,
and it is certainly not accurately reflected by labe lling it as Belgrade providing “support” to Pale.
This is especially true since, as we are demonstrating in this case, Belgrade’s role in the alliance
was at all times the role of the principal partner within the collective enterprise.
The pattern in Bosnia
45. It is this continued partnership which en abled the Serb side to actually and successfully
wage this blitzkrieg, to take over some 70per cent of the territory of Bosnia and Herzegovina by
the end of 1992, and to establish the most brutal ré gime, for the non-Serbs that is, that Europe has
seen since the end of the Second World War.
46. Roughly, the pattern for the take-over of each and every municipality looked the same ⎯
and I will just refer back to what I have said about that earlier.
Part of it, in any event was that people w ould be put into camps and that generally men
47.
would be separated from women. If any reason for this was provided at all the standard phrase of
the Serbs would be: “We do this for purposes of interrogation, we are looking for war criminals”
or they would say “to exchange them as prisoners of war”.
48. It took some time before the existence of camps became known to the world at large.
The well-known reports of Roy Gutman and th e likewise known images of ITV television are - 43 -
engrained in the memories of civilized people. They brought home the message of what precisely
went on in Bosnia and Herzegovina.
49. In every municipality at least one and usually many more camps where established.
Thus, 520 Serb-controlled camps and detention facilities were active in some 50different
municipalities 3. In these camps, in total, at least 100,000 people of all ethnicities ⎯ not including
31
Serb ethnicities obviously ⎯ were detained from 1992 to 1995 .
50. Many of these camps were reserved for women and became the horrific scenes of
repeated mass rapes. Indeed, because it hou sed the largest number of women and girls, the
Trnopolje camp became very known as an infamous camp in terms of mass raping. However, rape
and sexual assault were found to have occurred all over Bosnia as a vicious and integral part of a
recurring pattern of ethnic cleansing by Serb perpetra tors; this has been confirmed by the ICTY in
numerous judgments and will be discussed extensively later on this week.
51. Madam President, if the Srebrenica mass acre is generally defined as genocide, the
extensive, organized, large-scale and effective murd er, torture and rape of the civilian non-Serb
population during the first year of the ethnic cleansing campaign most certainly meet the criteria of
this definition.
52. This becomes even clearer when we r ealize how the Serb side chose to handle the
cultural heritage of the people which they killed, tortured, put in camps, raped or forcibly
transferred. The account of this particular destruction prohibits any misreading of the purposes of
the Serb side.
53. The striking aspect here is that all of the destruction of mosques, catholic churches,
cemeteries and other sanctuaries, usually took pl ace after the actual takeover of a municipality. In
other words, the destruction was not part of some sort of armed battle (again there weren’t many
armed battles, because the non-Serb side did not have any arms), but it was the result of deliberate
destruction. Generally, in the parts of Bosnia -Herzegovina ethnically cleansed by Serb forces,
75per cent of all Roman Catholic churches and almost 100per cent of all Muslim houses of
3List compiled by the Alliance of Detainees of Bosnia and Herzegovina, submitted by the OTP in ICTY,
Prosecutor v. Slobodan Milosević, case No. IT-02-54-T, Exhibit No. P404.7a.
3ICTY, Prosecutor v. Slobodan Milosevi ć, case No.IT-02-54-T, witness testimony of Melike Malesevi ć,
10 March 2003, p. 17428. - 44 -
worship were either damaged or destroyed, and if they were damaged then 90per cent of the
damaged mosques and churches suffered serious damage. Clearly, the purpose here was to prevent
the non-Serb part of the Bosnian population to ever again return to live in their homeland.
54. Later on, you will have the opportunity to hear one of the experts that we have called to
appear before this Court, Andras Riedlmayer, who is a renowned academic and renowned recorder
on this chilling and, indeed, telling chapter of th e ethnic cleansing in Bosnia and Herzegovina and
he will appear during the experts’ sessions.
55. The destruction of cultural property continued until the very end; it was not something
that was just done in the beginning, it was part of it all along and it continued also in July1995
when the mosques in Srebrenica were destroyed af ter the massacre. However, when we look at
it ⎯ the totality of the picture ⎯ by far most of the damage done happened in the first nine, or
maybe 12, months of the ethnic cleansing campaign.
Casualties
56. Indeed, 1992 was, by far, the worst year as far as casualties are concerned. But from the
point of view of hardship, 1993 and 1994 easily co me up to the level of 1992. Obviously, 1995,
alone measured by the Srebrenica massacre, demonstrates that the eagerness of the Serb side to
implement its initial plans, had not diminished to wards what would become the end stages of the
four years in which Bosnia suffered under the ethnic cleansing of most of its territory.
57. During the entire period relevant to our case, the siege of Sarajevo was an ongoing
element. The purpose of this siege, clearly, was to prevent the existence of a viable independent
State of Bosnia and Herzegovina. At the same time, it served as an ongoing opportunity for the
Serb side to, literally, keep pounding the non-Serb population, in order to make a decent life for
them virtually impossible. According to the number of victims, the Serb side was rather successful.
The endurance of the citizens of Sarajevo (including, by the way, many Bosnian Serbs, who did not
support the ethnic cleansing) eventually made them survive. A more detailed analysis of the
Sarajevo situation will follow tomorrow in the afternoon. - 45 -
58. The clear aim of the entire military campaign started by the JNA in March1992 and
continued throughout, albeit dressed in RS uniforms, was to cleanse the territory from its non-Serb
population.
59. Estimates of the amount of people actually killed as part of the ethnic cleansing do vary
between 100,000 and 200,000 victims. In our Memorial (para.2.1.0.8) we have mentioned a
provisional number, based on documented figures, which amounted to a little over 142,000 people
killed. Recently two experts have submitted several reports on demographics to the ICTY and they
have been able to estimate a figure of 102,000 dead, which, given that “the records from the
Republika Srpska and from exhumations are far from being known, it is still not complete” 32,
according to these researchers. We do not wish, Madam President, to question the validity of these
findings. At the same time it is acknowledged th at these numbers do not include people who were
not directly killed but who did actually die due to the wartime circumstances. Indeed, the
aforementioned estimated total does not include ex cess deaths due to harsh living conditions, as
well as mortality among refugees, and, lastly, deat h records of those who moved out of Bosnia
during the conflict.
60. From the point of view of morality, obviously, there is no relevant difference between an
amount of 100,000 or 200,000 killed. From the persp ective of law there is no relevant difference
either. As we all know, the Genocide Convention covers far more than “killing”. Professor Franck
will elaborate on the reach of the Convention late r on this week, beginning tomorrow. He will
observe, among many other things, that the true dimension of what ha ppened here is further
defined by the fact that, as of December 1997, 816,000 persons were internally displaced and over
1.3million persons were refugees according to the UNHCR (1997) 33. This amounts to around
50 per cent of the population of Bosnia and Herzeg ovina, which, as I mentioned before, counted a
little over4.3 million in 1991 . Just imagine the size of this: would this have happened in France?
It would have implied 30 million displaced pers ons. Would this have been Mexico? We would
have talked about 53million and so on, and so on. More precisely, with regard to the Milosević
32
Ewa Tabeau and Jakub Bijak, War-related Deaths in the 1992-1995 Armed Conflicts in Bosnia and
Herzegovina: A Critique of Previous Estimates and Recent ResultEuropean Journal of Population , Vol.21, N.2-3,
June 2005.
3Ewa Tabeau and Jakub Bijak, ibid., p. 210. - 46 -
case area, which is a restricted area part of Bosnia (47municipalities), a report 34 prepared for the
ICTY estimated an overall number of more than 745,000internally displaced and refugees. Of
these, 73per cent were non-Serbs. Thus several hundred thousand non-Serb citizens of Bosnia
were forced to leave their home, their municipality , their region and were forced to try and rebuild
a life in the 30 per cent of the territory of Bosn ia where they would not be harassed, nor killed by
the Serb side; otherwise they were forced to move abroad. This devastation of the non-Serb
population of Bosnia and Herzegovina did not occur by coincidence; it did not occur in a random
disorganized manner. It was the result of a carefully designed and meticulously prepared, political,
military and economic plan.
“Humanitarian aid”
61. As I mentioned before, Madam Preside nt, the entire undertaking was paid for by
Belgrade, by the citizens of Serbia-Montenegro, and through the printing of new money.
62. For one time Milosevi ć spoke the truth, when he publicly stated in 1993 that the FRY
had put a lot of effort in supporting their Serb friends across the Drina River:
“Most of the assistance was sent to pe ople and fighters in Bosnia-Herzegovina,
but a substantial amount of aid was given to the 500,000 refugees in Serbia . . . Serbia
finds it difficult to sustain the burden of the great assistance which goes to Bosnia . . .
and there is no reason for it to sustain the bur den if the war in Bosnia stops. We have
of course not excluded further humanitarian aid to the population of
Bosnia-Herzegovina, but the people there will in peace-time become capable of
rebuilding their economy and taking care of their own lives... Serbia has lent a
great, great deal of assistance to the Serbs in Bosnia. Owing to that assistance they
have achieved most of what they wanted.” 35
63. I just said that Milosević spoke the truth when he stated this. Well, it wasn’t exactly “the
truth and nothing but the truth” what he said, since the labelling of the aid as “humanitarian aid” is
not precisely correct. Most of the Bosnian Serbs’ sp ending went to military spending. And this is
exactly what the so-called assistance given by Belgrade, in currency as well as in kind, was meant
for.
34
Ewa Tabeau, Marcin Zoltkowski, Jakub Bijak, Arve Hetland (Demographic Unit, Office of the Prosecutor,
ICTY), “Ethnic Composition, Internally Displaced Personsand Refugees From 47 Municipalities of Bosnia and
Herzegovina, 1991 to 1997-98”, submitted as an Expert Report in the case of Slobodan Milosević, 4 April 2003.
3Yugoslav Telegraph Service, 1553 gmt, 11 May 1993; source: BBC Summary of World Broadcasts. - 47 -
M64il.osevi ć was not the only one using this “ humanitarian-aid” terminology. On
28 May 1993, two weeks after Milosević made this declaration, a fax was sent from Belgrade to the
Commander of the VRS [the Republika Srpska army], of the 1st Krajina Corps
General Momir Talic ⎯ a fax from Belgrade to the Commande r of the Republika Srpska, and it
says:
“Mr.General, today I was informed at the Federal Administration for
Commodity Reserves, by the Deputy Manager, Nede Bodiroga, that all provisions of
goods in the RS can be issued only upon a decision by the FRY Government and only
as huma36tarian aid... It should not be me ntioned that this is for the needs of the
army.”
65. Part of this so-called “humanitarian” aid was ⎯ really the last word in generosity ⎯ the
provision of an entire, recently totally restructur ed and reorganized, army. Since this has never
been a secret, and has not been tr eated as a State secret by the Respondent either, the actual size of
this “generosity” was extens ively described by Mladi ć in his report to the 50th Session of the
Assembly of Republika Srpska in April 1995 37. It follows from this report that from the beginning
of the ethnic cleansing to 31December1994, 90per cent ⎯ 90per cent ⎯ of the infantry
ammunition was provided by first the JNA and later th e VJ; the same is true for 73 per cent of the
artillery ammunition, while 95 per cent of the anti- aircraft ammunition came from the resources of
the Yugoslav army.
66. Earlier, two years before, in April 1993, Mladi ć presented the so-called “Analysis of the
Combat Readiness Report of the VRS in 1992” to th e Republika Srpska Assembly. In this report
the level of so-called support given to the VRS in 1992 is discussed in more detail. It is a peculiar
document and we will come back to that later on. This is what Mladić stipulates in the introduction
to his report on the year 1992: “We have carri ed out individual and c oncerted battle operations
38
according to a single design and plan.”
3ICTY, Prosecutor v. Slobodan Milosevi ć, case No. IT-02-54-T, Exhibit No.P464.23; See also ICTY,
Prosecutor v. Slobodan Milosevi ć, case No. IT-02-54-T, Witness Testimony of Osman Selak, 12June2003,
pp. 222197-22243.
3ICTY, ibid., “The Assembly of Republika Srpska, 1992-95: Highlights and Excerpts”, Expert Report of
Dr. Robert J. Donia, 29 July 2003.
3Analysis of the Combat Readiness and Activities of the Army of Republika Srpska in 1992, ICTY,
Prosecutor v. Radoslav Brdjanin, case No. IT-99-36, Exhibit P2419. - 48 -
67. Indeed, Madam President, everything went according to a single plan. The pattern
described earlier was, indeed, continued throu ghout 1992 and after 1992, for that matter. The
“plan” that Mladić refers to, was most certainly not a plan which the leaders of the self-proclaimed
Republika Srpska at the time designed on the day that they proclaimed the “independent Republic”,
and it was not a plan that the Republika Srpska leadership only began to draft on 20 May 1992, the
day after the so-called “withdrawal” of the JNA. This plan simply refers to something which
formed the guideline for Belgrade’s policies already for quite some time, which policies were from
May and June 1992 onwards very much implemented by the Pale leadership. This guideline fits
the Greater Serbia plan and the strategies to be em ployed in order to achieve the goal thereof. The
ICTY has established this through, for ex ample, the acknowledgement of Mrs.Plavsi ć, who said
the following:
“The SDS and the Bosnian Serb leadership were committed to a primary goal
that all Serbs in the former Yugoslavia would remain in a common state. One method
of achieving this goal was by separating the ethnic communities in BH. By
October 1991, the Bosnian leadership, including Mrs. Plavsi ć, knew and intended that
the separation of the ethnic communities would include the permanent removal of
ethnic populations, either by agreement or by force and further knew that any forcible
removal of non-Serb from Serbian-claimed te rritories would involve a discriminatory
39
campaign of persecution.”
Paramilitaries
68. Madam President, I mentioned several times the involvement of so-called paramilitaries.
Later on during the pleadings we will spend some more time on this issue. For now, just a few
additional observations. Already, in early repor ts of Human Rights Watch and also in United
Nations reports, mention is made of the brutal role played by these units of non-army military
personnel. Apparently, at the time, many of these units were put in place. Sometimes linked to a
particular politician, sometimes linked to a so-called “businessman”. Most of them originated from
Belgrade and had clear connections to the Belgrade political establishment.
3ICTY, Prosecutor v. Biljana Plavć, case No. IT-00-39&40-PT, Factual basis for plea of guilt,
30 September 2002, para. 10. - 49 -
69. The most notorious names here are Šešelj, Staniši ć and Simatovi ć, and Arkan, all
indicted by the ICTY. When one reads these indictments, the sheer ferocity, the sheer cruelty of
40
these persons and their units become inescapable .
70. At the same time, the consistent feature of these indictments is that these paramilitaries,
as a rule, operated in close concert with regular army units. Not only that, they performed their
role in close concert with the JNA ⎯ beginning at Vukovar in August 1991 and continued to do so
in Bosnia and Herzegovina throughout the Srebre nica massacre, and after th at for that matter.
Usually, in Bosnia, they operated in close concert with the Bosnian Serb army (VRS), sometimes in
co-operation with both the Bosnian Serb army a nd the Yugoslav army (VRS and the VJ). And
finally, these same paramilitaries were again pr esent in Kosovo in 1999, as confirmed by the
41
Security Council in its resolution of 10 June 1999 :
MUP
71. Another feature of this entire period is that not only the paramilitaries formed part of the
pattern but that, also, and consistently the Minist ries of the Interior of the Respondent would be
involved ⎯ the Ministry of the Interior also known as MUP. This was particularly true for the
Ministry of the Interior (MUP) of Serbia. At all times of involvement the MUP would harmonize
its efforts with the Pale Ministry of the Interior (RS-MUP).
72. In the Reply we have demonstrated the significant role of the Serbian MUP, including its
Secret Service and the Police, in the various stages of the ethnic cleansing, including the
42
preparational stages . The Respondent, in its Rejoinder, did not address the issue at all. The MUP
would assist in the arming of the Territorial Defence in Bosnia and Herzegovina, after these were
purified into exclusively Serb units; the MUP w ould provide weapons to the paramilitaries; the
MUP would provide Yugoslav passports for tho se non-Serbs who were forced to leave their
country. The Serbian MUP would also take care of arresting conscripts from the territory of
Republika Srpska who were trying to escape being part of the killing exercises.
40
ICTY, Prosecutor v. Vojislav Šešelj, case No. IT-03-67, Modified Amended Indictment, 15 July 2005; ICTY,
Prosecutor v. Jovica Staniši ć and Franko Simatovi ć, case No. IT-03-69-PT, Second Amended Indictment,
20 December 2005; ICTY, Prosecutor v. Željko Ražnjatović, case No. IT-97-27, Initial Indictment, 23 September 1997.
41
United Nations Security Council resolution 1244 (1999) of 10 June 1999, paras. 3, 9.
4Reply, 23 April 1998, Chapter 8, Section 6, paras. 206-238. - 50 -
73. Besides all that, the MUP would participate in offensive actions of the army. And this
was definitely not restricted to the first mont hs in 1992, but continued throughout and included
participation in the massacre at Srebrenica. Later on during these pleadings we will, obviously,
discuss Srebrenica at greater length. For now it su ffices to point out that in our Reply we already
informed the Court about the participation of sev eral units from the Belgrade Ministry of the
Interior in offensive actions on the territory of Bosnia and Herzegovina, and we referred among
other things to actions that took place as late as June and July1995. In the Reply we listed the
“Skorpions” ⎯ one of the units from the Serbian MUP ⎯ as participating in the battle at Trnovo,
which is some 30 km south of Sarajevo 43. This Skorpions unit is precisely the same unit which has
been registered on video while killing sev eral young boys who were under arrest ⎯ boys from
Srebrenica whom they killed by shooting them in th eir backs. In its Rejoinder the Respondent did
not deny what we stated in the Reply with respect to the Skorpions. All the Respondent did was to
state in very general terms that “the special forc es of the Army of Yugoslavia” took part in another
44
operation “under the command of the Main Headquarters of the Republic of Srpska Army” .
74. As the Serbian military obviously falls unde r the political responsibility of the Belgrade
authorities, this was all the more true for the Serbian MUP, being part of the very same authorities.
One of the names that also keeps popping up here, is that of Michael Kertes. He was the one that
was in charge of arming the Territorial Defence in Croatia and Bosnia, but he also played a crucial
role in the organization of paramilitary groups. James Gow, in one of his testimonies before the
ICTY states:
“Kertes, in his role of Deputy Federal Interior Minister and Head of the Federal
Security Service, was instrumental with Radmilo Bogdanović (the Head of the Serbian
45
Security Services) in helping to organize and establish the paramilitary groups.”
In fact, Kertes apparently was one of the persons most trusted by Miloševi ć, since he was also,
upon instructions of Miloševi ć, responsible for channelling enor mous amounts of deutsch marks,
43
Reply, 23 April 1998, Chapter 8, Section 6, paras. 227-232.
44
Rejoinder, 22 February 1999, para. 3.2.2.7.
45Testimony of Dr. J. Gow in ICTY, Prosecutor v. Duško Tadić, case No. IT-94-1-T , 8 May 1996, p. 256. - 51 -
hundreds of millions of deutsch marks, from the Serb ian Customs Services to various foreign bank
46
accounts .
United Nations organs on FRY’s role
75. Madam President, while it is unmistakably so that Belgrade at all times was the principal
partner in this collective enterprise known as ethnic cleansing, Miloševi ć has chosen to play
hide-and-seek about it, making up various stor ies to cover up his and his Government’s
predominant role. Whoever may, in 19 93 and in 1994, have believed Miloševi ć, not the Security
Council of the United Nations. The list of the numerous Security Council resolutions and related
sanctions upon the former Yugoslavia and, later, the Federal Republic of Yugoslavia (FRY), can be
summarized by just naming a few:
⎯ resolution 713, which imposed a general and co mplete embargo on all deliveries of weapons
and military equipment to Yugoslavia ⎯ the resolution was adopted in 1991;
⎯ resolution 757 adopted on 30 May 1992 imposing economic and other sanctions on the Federal
Republic of Yugoslavia (Serbia and Montenegro), including a full trade embargo, a flight ban,
and the prevention of the participation of the FRY in sporting and cultural events;
⎯ resolution 787 of 16November1992 stating that the transhipment through the FRY of
petroleum, coal, steel and other products, unless authorized on a case-by-case basis by the
committee, would be prohibited;
⎯ resolution 820 of 17 April 1993 further strengthening the sanctions against the FRY.
76. Apart from the suspension on 23 September 1994 of a few minor bans 47, it was only on
22 November 1995 that the Security Council, one day after the Dayton Agreement was concluded,
passed its resolution 1022 which suspended all the sanctions against the Federal Republic of
Yugoslavia indefinitely.
77. The Security Council was clearly not the only United Nations body not to believe
Milošević on his face. The Order of this Court of 8April1993 is clear and, if it were not clear
4Amended Expert Report of Morten Torkildsen, para s.12-26, submitted by the OTP on 7June2002, ICTY,
Prosecutor v. Slobodan Milošević, case No. IT-02-54-T.
4United Nations Security Council resolution 943 ( 1994) of 23 September 1994, S/RES/943 (1994), regarding
civilian passenger flights to and from Belg rade airport, ferry services and particip ation of the FRY in sports and cultural
exchanges. - 52 -
enough, the Order of 13 September 1993 of this Court left no doubts whatever. The Orders of this
Court were, apparently, not able to stop the FR Y, which was obviously for many, many reasons
very regrettable. In the first place it was very distressing for all the victims of FRY’s continued
ignoring of this Court’s Orders. Madam President, our pleadings will manifest that justice requires
that the Respondent is told in no unclear language that it should have respected this Court’s earlier
rulings and that its contemptuous treatment of th is Court throughout these proceedings will in no
way be rewarded. Thank you very much.
The PRESIDENT: Thank you Mr. van den Bies en. The oral argument of Bosnia and
Herzegovina will resume at 10o’clock tomorrow morning and will continue tomorrow afternoon.
There being no further business before the Court, the Court now rises.
The Court rose at 1.10 p.m.
___________
Audience publique tenue le lundi 27 février 2006, à 10 h 30, au Palais de la Paix, sous la présidence de Mme Higgins, président