CR 2006/30
International Court Cour internationale
of Justice de Justice
THHEAGUE LHAAYE
YEAR 2006
Public sitting
held on Tuesday 18 April 2006, at 10.15 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 mardi 18 avril 2006, à 10 h 15, 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-Presi-Kntasawneh
RanjevJaudges
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou
Kre ća
Couvgisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MaMhou.,
Kre ća, juges ad hoc
CgoMfferr,
⎯⎯⎯⎯⎯⎯ - 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, Professorat the Faculty of 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,
Ms Laura Dauban, LL.B (Hons),
as Counsel and Advocates;
Mr. Morten Torkildsen, BSc, MSc, Torkildsen Granskin og Rådgivning, Norway,
as Expert Counsel and Advocate;
H.E. Mr. Fuad Šabeta, Ambassador of Bosnia and Herzegovina to the Kingdom of the Netherlands,
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,
comament;
M. Phon van den Biesen, avocat, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de Pa risX-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,
Mme Laura Dauban, LL.B. (Hons),
comme conseils et avocats;
M. Morten Torkildsen, BSc., MSc., Torkildsen Granskin og Rådgivning, Norvège,
comme conseil-expert et avocat;
S. Exc. M. Fuad Šabeta, ambassadeur de Bosnie-Herzégovine auprès du Royaume des Pays-Bas,
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 recherche 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, Master 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, Director
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. (Indianapolis),
Mr. Svetislav Rabrenović, Expert-associate at the Office of the 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),
comconseils.
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,
comament;
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 me mbre 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 Djeri ć, 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. (Indianapolis),
M. Svetislav Rabrenovi ć, expert-associé au bureau du procur eur 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. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. The sitting is open.
The Court meets today to begin the hearing of the second round of oral argument of the
Parties. Each Party will dispose of eight sessions fo r this purpose and, as in the first round of oral
argument, Bosnia and Herzegovina will speak first. The second round of oral argument of Bosnia
and Herzegovina will be concluded on Monday 24April2006 and Serbia and Montenegro will
begin its second round of oral argument on Tues day 2May2006. And the second round of oral
argument of Serbia and Montene gro and the oral proceedings in the case will end on Tuesday
9 May 2006.
I now give the floor to Mr. Softić, the Agent of Bosnia and Herzegovina, to begin the second
round of oral argument.
SMOF.TI Ć: Thank you, Madam President.
1. Madam President, honourable Members of the Court, after the end of the first and at the
very beginning of the second round I would like to express my honour for having another
opportunity to address this honourable Court and to reiterate the significance of this case for Bosnia
and Herzegovina, for its citizens and peoples, for th e victims of genocide as well as for peace and
security in the whole region. Moreover, I would like to repeat its importance for defining the
content of international humanitarian law as well as the role of the International Court of Justice in
its development and interpretation.
2. Let me address once more, why this case and why now? Simply stated, this case is more
about the future rather than the past. Some have suggested that this case scrapes on old wounds,
but this is about helping to heal what is still an open sore and susceptible again to the disease of
ultra-nationalism. This case is about a fresh star t for Bosnia and Herzegovina and for the region as
a whole. Indeed, Bosnia and Herzegovina’s future is intertwined with that of its neighbours,
including Serbia and Montenegro, and we sincerel y look forward to the fresh start in better
relations and opportunities which we believe will be created by the resolution of this case by this
Court.
3. Serbia and Montenegro committed genocide on the non-Serbs in Bosnia and Herzegovina
and particularly on the Bosniak population of Bosnia and Herzegovina in the areas which, - 11 -
according to the planners of the Greater Serbian project, should have gone to the composition of
the future Serb State or the future union of Se rbian States. Action bears responsibility. We are
here to establish responsibility for breaching provisions of the Genocide Convention. Fulfilment of
justice and implementation of the rule of law can do no harm, but on the contrary it can advance
international peace and security.
4. Some people still suggest that Bosnia and Herzegovina should let bygones be bygones.
Each of you comes from a State that has at some time suffered injustice and victimization. Would
your country, though, set aside the violation of genocide and its responsibility to its citizens who
are victimized? Could we allow our own histor y to be rewritten to justify old crimes and
rationalize the potential for new ones against our citizens and country?
5. The Respondent has verbally offered the se ttlement of this case in the political realm.
However, this offer has never been more than a statement of intention. Not on one occasion have
representatives of the Respondent given any substance to what Serbia and Montenegro would have
to offer. The Respondent has said at various time s that the withdrawal of the counter-claims was a
first step. Madam President, really, appearances are against the Respondent. We all know that the
withdrawal of the counter-claims was closely connected to the Respondent’s newly acquired
position with respect to the jurisdiction of this C ourt. This new position would not have had a
beginning of credibility if the counter-claims would have been entertained at the very same time.
An acknowledgment of what has been done to the non-Serbs of Bosnia ⎯ other than “all sides did
the same” ⎯ would have been one part of the minimum, the other part being some level of
acknowledgment of responsibility. That could have been seen as a sign of true intentions to think
seriously about a friendly settlement.
6. The approach now followed by the Respondent not only creates an image that this would
be about avoidance rather than acceptance of respon sibility. It would be about going back rather
than moving forward. This is the picture which Serbia and Montenegro has left while conducting
this case: it has engaged in rapid succession only exhibiting tactical objectives, has attempted to:
deny any responsibility; deny this Court’s ju risdiction; blame Bosn ia and Herzegovina for
genocide; marginalize the consequences and victims of its actions in pursuit of ethnic cleansing;
recruit some Serb leaders within Bosnia and Herzegovina to try and subvert Bosnia and - 12 -
Herzegovina’s position before this Court. An d most recently, the Respondent turned side and
claimed differently. Bosnia and Herzegovina may appear before this Court but now, it claims, a
criterion is not fulfilled by the Respondent: the Respondent was not a Member of the United
Nations or a State party to the Statute of the Inte rnational Court of Justice. All this is clearly
directed to prevent reaching a decision in this ca se respectively to avoid that responsibility will be
established. In that case the profit for the Respondent would be absolute.
7. We cannot see in these consecutive tactics sincerity toward a fresh start and better future,
nor the acceptance of responsibility. Rather, we se e another attempt to rewrite history. Rewritten
history promoted by the Belgrade authorities has be en used as a tool of war and genocide against
Bosnia and Herzegovina in the past, and we have le gitimate fears that a similar rewriting of history
may be misused for the future. History traditiona lly has belonged to the victor. Bosnia and
Herzegovina is only a survivor, and a weak one, since our State is, on a daily basis, still afflicted by
the consequences of genocide. We ask that the Court not allow the Belgrade régime to presume the
right of the victor, and that this Court provide the objective judgment of history.
8. Madam President, our people, i.e., Bosnia and Herzegovinian people, have lived in these
areas for centuries sharing a common destiny. It is almost impossible to find similar territory
where people and religions were so mixed as in Bosnia and Herzegovina. It used to be impossible
to find a building that did not have members of all of our peoples living next to each other. Not to
mention settlements and towns. Bosnia and Her zegovinian citizens shared the same Bosnian
culture with strong influence of all larger worl d’s cultures and religions whose basic characteristic
was tolerance. All of this could only be undone, Bosnia and Herzegovinian society could only be
broken by genocide. Making the territory of Bo snia and Herzegovina part of a new Yugoslavia,
which turned out to be “one State for all Serbs” necessarily implied the need for separation of
people. Since no one voluntarily leaves his home and ⎯ if that happens ⎯ returns as soon as the
opportunity arises, i.e., as soon as the danger is over, then genocide was the only means to
permanently separate people. Genocide was the required precondition for fulfilling the objectives.
9. Madam President, this case is not directed against the Serb people in whole and especially
not against the Serb people in Bosnia and Herzegovina. Genocide was not committed by
individually operating non-organized Serb people. The genocide was committed by a - 13 -
well-organized entity, i.e., the then Federal Republic of Yugoslavia. We are asking to determine
the responsibility of this State for committing genocide, i.e., for breaching the Genocide
Convention. We are not asking to determine the responsibility of Serb people.
10. The death of Slobodan Milosevic, leader of the Serb people when genocide occurred,
main creator and executor of the genocide campaign, which at first sight is not related to this
procedure, additionally complicates the situation in the whole region. The lack of a judgment in his
case blurs the judgment of history. It only incr eases the role for this Court to act as envisaged
under the Genocide Convention. We do not deny but quite on the contrary we emphasize the role
and importance of the International Criminal Tribunal for the former Yugoslavia as well as the
need for all perpetrators to be punished for the criminal offences committed. Some of the
perpetrators will face criminal sa nctions while the others will evade justice in this or that way
forever. However, this kind of responsibilit y does not exclude but on the contrary creates the
exigency for establishing State re sponsibility. Those convicted by the ICTY were not doing it for
their own sake to realize their own or family ob jectives but in the name of the State and for
realization of State objectives.
11. Madam President, both States, the Applicant and the Respondent, have the same
objective: joining the community of European peoples. The fact that the Respondent has
committed genocide on the population of Bosnia and Herzegovina makes this objective hard to
achieve until the Respondent hands in the main su spects for war crimes and until it faces its own
past. Facing its own past means accepting respon sibility for genocide. European future for the
Respondent must not mean avoiding responsibility for genocide while at the same time enjoying
the advantages produced by committing genocide. Facing the consequences of genocide means
giving up the Greater Serbia ambitions.
12. Judgment on responsibility for genocide will help democratization of the Serbian society.
The impression is that most of the citizens of Serbia and Montenegro have not dealt with its own
past, yet. Political parties and movements that support war criminals and their aims still enjoy
great support. The main indictees for war crim es are not being delivered because that would
allegedly destabilize Serbia. - 14 -
13. The truth is that many prominent intellect uals and human rights activists are longing for
Serbia’s confrontation with its own past. Judgment for genocide would accelerate democratization
of the society and help abandon the ideology of conflicting with neighbours, and speed up the
joining process of Serbia into the community of European States and peoples.
14. Judgment on responsibility for genocide wo uld ease the reconstruction of Bosnia and
Herzegovina and the reintegration of Bosnia and Herzegovinian society. Serbs in Bosnia and
Herzegovina who are still exposed to strong propaga nda, given the fact that political parties and
movements that are co-responsible for genocide ar e still present at the political scene, would come
to realize that in their name and with their assistance genocide was committed over their
neighbours with whom they are far longer and more deeply connected. That would help the
progressive forces among Serb people in Bosnia and Herzegovina who advocate the reintegration
of Bosnia and Herzegovinian society and putting an end to continued injury inflicted by genocide.
15. Moreover, that would show not only to the Respondent but to all other potential
offenders of the Convention on Genocide that genocide does not pay.
16. Madam President, here we are talking about mass violation of human rights in order to
realize a political project. The perpetrators and the victim are here before the highest judicial
instance of the United Nations awaiting justice.
17. Madam President, Bosnia and Herzegovina is notavictor. Wealsorefusetobeonly
victims. We are trying to rebuild and start anew. It is up to the Court to record the judgment of
history, but for the first time in the context of an objective ruling under the current treaty. New
genocides will also be planned and executed, and we can only hope that they will never reach the
scope of the holocaust. Let us not mislead ourselves, though: genocides continue to be committed
as part of a political strategy of one form of ho mogeny or another executed under some red, blue,
green, yellow, black or white banner. Unfortunatel y, this will not be the last genocide, but it will
be the first upon which this Court can pass judgmen t and amplify the rule of law and reject those
arguments that would, if taken to their rational conclusion, justify the destruction in whole or in
part of a group of people only because they belong to a national or to an ethnically defined group,
or because they adhere to a certain religion. - 15 -
18. It is the obligation of all countries to work towards preventing and punishing the crime of
genocide. This case is about the relation between the perpetrators and the victim. But of course it
is also about relation of all countries and the international community as a whole towards genocide.
19. Therefore, not only the victims of the genocide but all signatories to the Convention on
Genocide, the international community as a whol e and the international legal system seek for
establishing responsibility for genocide, correing the consequences and discouraging future
potential perpetrators. Thereby, we are expecting that this Court declare Serbia and Montenegro
responsible for genocide in accordance with our cl aim which we will be submitting to the Court at
the end of our pleadings.
20. Madam President, I am honoured to ask the Court to give the floor to our Deputy Agent,
Phon van den Biesen. Thank you.
The PRESIDENT: Thank you. I give the floor to Mr. Phon van den Biesen.
Mr. van den BIESEN:
A SSESSMENT OF SERBIA AND M ONTENEGRO ’S PLEADINGS
Introductory remarks
1. Madam President, Members of the Court, you have been taken through 60hours of
pleadings and through close to 20 hours of witness and expert statements. And we have just started
with the second round which will amount to another 40 or 50 hours of pleadings. Is that ⎯ on top
of the many thousands of pages of this file⎯ enough to provide for a complete picture of four
years of ethnically motivated armed violence in Bosnia and Herzegovina? Is it enough to provide
for a complete picture of what was done to make this happen? The answer to these questions is
probably: yes and no. “Yes”, because it shou ld be enough to provide a proper basis for the
judgment Bosnia is seeking to obtain from this Co urt. “No”, because in 30 hours of pleadings we
are just not able to do justice, justice to each and every victim of this violence, let alone to each and
every one of the beloved of each and every victim, wh o are trying to cope with the grief, the loss,
the incalculable damage done to them. Damage d one to them precisely because they happened to
be Bosniak, or they happened to be Bosnian Croat. Obviously, we are not able to do justice to - 16 -
those hundreds of thousands of victims in 30hours of pleadings, and the upcoming 24hours will
not be of help for that purpose either.
2. In Bosnia these pleadings have been and, indeed, are broadcast live on television and they
are simultaneously being translated. In Bosnia the question has been raised why it is that we did
not bring the victims in person before this Court in order for them to testify about the cruelties, the
atrocities, the ugliness, the unfairness, the ruth lessness, the meanness, the unscrupulousness, of
which they and their killed beloved were the victims. Maybe, maybe that would have been a good
idea. However, given the enormity of the number s involved, that would have, inevitably, led to a
process of selection. We have chosen not to go into such a process, simply because we do not
think that the grief of one victim would deserve more attention, let alone more weight, than the
grief of the next victim.
3. So, from this perspective, no, 50 hours of pleadings are not sufficient at all to do justice to
each and every one of the victims. But we should not forget that the pleadings are only part of
these proceedings and that all of our pleadings are entirely aimed at one goal only: to obtain a
judgment from the Court which will, indeed, do justice, to the State of Bosnia and Herzegovina and
to all of the ⎯ surviving ⎯ victims, including all of those who are watching these proceedings day
after day after day. A judgment which clearly es tablishes State responsibility, the responsibility of
Serbia and Montenegro for acts of genocide committed against the non-Serbs, the Bosniaks and the
Bosnian Croats, of Bosnia and Herzegovina.
What the Respondent did not provide
4. If, from our perspective and from the pers pective of the uncountable number of individual
victims, the amount of time spent on these pleadings would be “yes” and “no” sufficient, certainly
from the perspective of the Respondent the 30 hours that were available to them in their first round
would have been more than sufficient.
5. Given the fact that Serbia and Montenegro have, within the framework of these
proceedings, consistently taken the position that the Bosnian Serbs were the belligerents not the
1
Respondent , that the Respondent is not responsible for the acts committed by Republika Srpska ⎯
1CR 2006/19, p. 38, para. 246 (Mr. de Roux). - 17 -
this is what Mr.Cvetkovi ć told the Court on 15 March: he said that his “distinguished colleagues
[had] successfully demonstrated that . . . in any case, the actions of the Republika Srpska could not
be attributed to Serbia and Montenegro” 2⎯ and given the fact that Serbia and Montenegro have
taken the position that the Respondent, more specifically, is not responsible for the ethno-blitzkrieg
in Bosnia and Herzegovina, for which the preparations began as early as 1991 and which,
effectively, started on 31March1992 in Bijeljina , that the Respondent is not responsible for the
siege of Sarajevo, which began on 2May1992, that it is not responsible for the ethnic cleansing
and the connected takeover of 70 per cent, 70 per ce nt, of the territory of Bosnia and Herzegovina,
that it did live up to its other obligations under the Genocide Convention to prevent and punish,
given all of that, Madam President, two rounds of written pleadings and 30 hours of oral pleadings
certainly would have been more than enough to demonstrate precisely that position.
6. One would expect Serbia and Montenegro to have submitted minutes of meetings of the
FRY Government, minutes of meetings of the Gove rnment of Serbia, minutes of meetings of the
Government of Montenegro, which then would, from at least 19May1992 onwards, reflect how
appalled the Respondent’s Governments were ⎯ at the time ⎯ by the atrocities committed by their
Bosnian Serb brothers; minutes which would have reflected the numerous efforts that these
Governments undertook to stop the Bosnian Serbs doing so.
7. One would expect Serbia and Montenegro to have submitted copies of the numerous
cables, letters, courier messages, fax messages, that the Respondent would have sent to Pale and to
Banja Luka, from 19May1992 onwards, to tell them, to beg them, to advise them, to stop
committing “their” acts of genocide.
8. One would expect Serbia and Montenegro to have submitted copies of legislative
measures aimed at effectively se aling the border between the Fede ral Republic of Yugoslavia and
Bosnia and Herzegovina in order to prevent the transferral of any goods which would support the
commission of these acts in Bosnia.
CR 2006/20, p. 34, para. 2 (Mr. Cvetković). - 18 -
9. One would expect the FRY border author ities to have submitted copies of reports of
incidents demonstrating how these authorities eff ectively prohibited the transfer of any goods
which would support the commission of these crimes in Bosnia.
10. One would have expected copies of legisl ative regulations adopted in Belgrade declaring
illegal and punishable under law any war-related trade between the Federal Republic of Yugoslavia
and the Bosnian Serbs, be it trade against payment in kind or trade against any form of financial
payment.
11. One would have expected copies of minute s of meetings of the authorities of the Serbian
and Montenegrin Ministries of the Interior in which it would have been decided to stop the Special
Forces of these Ministries from crossing the Bosnian border.
12. One would have expected copies of orders from the authorities of these Ministries to
these Special Forces, instructing them to refrain from being involved in Bosnia and Herzegovina.
13. One would have expected copies of orders from the Chief of the General Staff of the
JNA to all commanders to refrain from even the slightest involvement in providing any sort of
assistance to the Bosnian Serbs, and also orders to refrain from any participation in armed activities
across the Bosnian border.
14. One would have expected copies of the same, originating from the Chief of the General
Staff of the VJ after the relabelling of the JNA in May 1992.
15. And one would have expected the presentation of court files, stretching back to 1992
showing the investigation, the prosecution of Yugoslav military and paramilitary personnel,
accused of committing, if not acts of genocide , war crimes across the border in Bosnia and
Herzegovina and/or accused of complicity in those acts.
16. Madam President, this list is certainly, quality-wise, not an exhaustive summing up of
what ⎯ in the context of a case before this Court ⎯ may have been expected from the Respondent
who has built its defence on the proposition, that it ⎯ apart from so-called humanitarian aid ⎯ did
not have anything to do with crimes committed against the non-Serbs in Bosnia and Herzegovina,
i.e., crimes committed by the Bosnian Serbs, let alone with genocide.
17. Moreover, one would have also expected th at of those minutes, decisions, orders and
other measures, repetitive series would have been available. When the Se curity Council clearly - 19 -
took the position that action from the FRY was required to stop the killing in Bosnia, this ⎯ as one
may expect ⎯ would have led to numerous documents of the sort just listed. It should also have
been the case after May 1992 when the Security Council demanded “that a ll forms of interference
from outside Bosnia-Herzegovina, including by un its of the Yugoslav People’s Army (JNA) as
well as elements of the Croatian Army, cease immediately” 3; and also after 30May1992, when
the Security Council condemned the FRY for failing to take effective measures to implement the
4
resolution and demanded that it would do that now ; shortly after 1993 when the Security Council
demanded that the FRY “immediately cease the supply of military arms, equipment and services to
5
the Bosnian Serb paramilitary units” in Bosnia and Herzegovina . And one may have expected the
same shortly after this Court’s Orders of 8April1993 and of 13September 1993 (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Provisional Measures, Order of 8April1993 I.C.J. Reports 1993 ,
p. 3; Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 13September1993,
I.C.J. Reports 1993, p. 325).
18. Nothing, Madam President, nothing of this kind has been produced by the Respondent ⎯
nothing.
The Court adjourned from 10.50 to 11.35 a.m.
The PRESIDENT: Please be seated. Mr. van den Biesen, we are sorry about this technical
interruption. Please now continue.
Mr. van den BIESEN: Madam President, I believe my last word was “nothing”. I’m sorry
about that but I will continue there.
19. One would have expected, Madam President, that the Respondent would have submitted
the unredacted versions of the shorthand notes of the meetings of the Supreme Defence Council
and its minutes, since the Agent of the Respondent made it so clear in the correspondence on this
3S/RES/752 (1992).
4
S/RES/757 (1992).
5
S/RES/819 (1993). - 20 -
issue with the Court that they would have nothing to fear from the contents thereof. Well, it is
exactly the SDC meetings ⎯ meetings of the leadership, the military and political leadership in
Belgrade ⎯ which would have provided the forum to discuss the orders which needed to be given
to the armed forces, orders of the sort listed just a minute ago. Also, these reports could have
perfectly backed up the position taken by the Respond ent with respect to the continued payment of
officers in the military of the Bosnian Serbs; it could have clarified this issue; it most likely would
have clarified the way the military dealt with th e paramilitaries; it would have clarified the FRY
position with respect to the best publicly known acts of genocide committed in Bosnia and
Herzegovina: like the breadline massacre, the Markale massacre, Srebrenica and so on. From what
we can read in the SDC minutes, there is no bac kup for the position of the Respondent. So it has
got to be in the redacted parts of it. We will get back to several of these episodes later on during
our pleadings. But, here again, nothing of this kind of material was provided by the Respondent to
this Court.
20. It is not entirely fair to say “nothing”, because the Respondent did submit one document
which could have been explained as the Responde nt’s protesting at the killings in Bosnia and
Herzegovina. Through his letter of 18 January of this year, the Agent of the Respondent sent a set
of new documents to the Court, among them a letter of 12 May 1992. This letter, sent to the FRY
military authorities by the Commander of JNA’s 1s t Military District, mentions many atrocities
committed against the Muslim population in the Drina area. It also mentions the participation of
various paramilitary groups, several of them coming from Belgrade. The letter ends as follows:
“We consider that it is absolutely necessary to intercede, through the authorities
of the Serb Republic of Bosnia, in order to prevent actions of th is kind from being
repeated, and not to permit large-scale inter-nationality conflicts to flare up. It is also
necessary that the MUP forces of the Republic of Serbia should take measures within
their competence to prevent the infiltration of armed groups into the territory of BiH.”
The Respondent has, however, never submitted any evidence that this recommendation ⎯ because
that is what it was ⎯ of General Stojanovi ć ever materialized into effective steps or measures.
Thus, the only thing this letter proves is that, indeed, at the beginning of May 1992:
“the Muslim villages of Lonjin, Mihaljevci and Plana located on the left bank of the
River Drina were set on fire. A part of th e population of these villages was killed and
a part of them were transported by buses in the direction of Tuzla, whereas yet another - 21 -
part of the population took refuge in the surrounding hills and is left without food or
water.” 6
It almost sounds like what happened in Srebrenica, but this is only in May1992. This letter also
establishes the responsibility of Arkan’s and other paramilitary groups from Serbia.
21. Apparently, and maybe understandably so, the Respondent itself did not think much of
this document and did not consider it worth the while of explicitly presenting it during the oral
pleadings.
22. Besides this one document of 12May 1992, which contained only an isolated
recommendation and not a general policy position, let alone clear and firm orders, the Respondent
did not submit any evidence on paper to the Cour t which would provide for any support for their
professed position, that ⎯ in short ⎯ Serbia and Montenegro opposed the Bosnian Serb position,
especially its genocidal actions and had, in any ev ent, nothing to do with the Bosnian Serb policy
and the Bosnian Serb actions.
23. The explanation for this is simple: the Federal Republic of Yugoslavia, now Serbia and
Montenegro, did not oppose what the Bosnian Serbs did and did not ever object to the Bosnian
Serb actions. Also, the Respondent, clearly, neve r instructed its authorities, its military armed
forces, or its other armed forces (be it paramilitary, secret police, police or any other) not to be
involved. The Respondent never effectively stoppe d the provision of men, equipment, arms and
ammunition to the Bosnian Serb military. On the contrary.
Fraud?
24. Obviously, we will elaborate on this duri ng the upcoming pleadings. For now it suffices
to say that the Respondent had a chance to make and to prove its case through its
Counter-Memorial, through its Rejoinder and thr ough its oral pleadings. Although we explicitly
pointed out, on 27 February 2006, that the Respondent’s defence should at the latest become visible
in their first round of the present oral pleadings 7and although the Respondent agreed with that ⎯
since on 16March2006 the Respondent’s Co-Agent, while analysing the role of the Respondent,
6Unpublic documents submitted by Serbia and Montenegro on 18 January 2006 (dated 5 January 2006),
document No. 3.
7
CR 2006/2, p. 21, para. 13. - 22 -
8
confirmed that “the role of the re spondent State is just to respond” ⎯ it has hardly used these
opportunities to do so, apart from repeating its mere denials. This is certainly not enough in
response to the abundance of facts and materials submitted by our side. The Court may draw its
inferences from this approach.
25. While the Respondent hardly submitted any real evidence in support of its position, it
did, while criticizing the quality of the sources we have used, refer back to some of the materials
which it submitted during the written pleadings. The Co-Agent referred to these materials as being
“strong confirmatory evidence” 9. He referred, inter alia , to a witness statement given “to the
investigating judge of the Zvornik court, Mr.Va soEric, in accordance with the rules of the
criminal procedure of the former Yugoslavia” 1.
26. Madam President, this brings me to a se rious matter, a matter which we initially decided
not to go into, since it relates to evidence su bmitted by the Respondent in relation to its
counter-claims and those counter-claims no longer form part of these proceedings, including the
evidence submitted in support of those. However, since the Co-Agent referred to precisely this
Judge Erić we are forced to tackle this unpleasant issue. It is an issue about good faith, it is an
issue about proper pleading, it is about trut hfulness and quality of evidence submitted by the
Respondent. In the case before the ICTY against the Bosnian Commander Naser Ori ć ⎯
11
Mr.deRoux referred to this case in his pleading ⎯ the Prosecutor used many documents
containing witness statements given to and signed by this same judge, Vaso Eri ć. Erić has retired
12
and he appeared as a witness before the ICTY to testify about the veracity of these statements .
During his testimony, Eri ć confessed that he, despite the fact that his signature appeared on those
statements, had not seen the witnesses involved, that he never talked to them, let alone that these
witnesses had given a statement to him in his capac ity as an investigative judge, let alone that this
8CR 2006/21, p. 32, para. 35 (Mr. Obradović).
9CR 2006/12, p. 26, para. 19 (Mr. Obradović).
10
Ibidem, para. 20.
11CR 2006/18, p. 38, para. 94.
12ICTY, Prosecutor v. Naser Ori ć, case No. IT-03-68, transcript pp. 4908-4977. Available at
www.un.org/icty/transe68/050210IT.htm. - 23 -
would have been done in accordance with the rules of criminal procedure of the former Yugoslavia.
We have included the relevant materials in the judges’ folder.
27. So what happened? Judge Eri ć explained what happened. He had, on various occasions,
received a stack of statements which were delivered to him by a clerk named Pavle Jelisav čić13.
This clerk came from Belgrade on behalf of a government-sponsored committee for gathering
information on war crimes 14; this committee is officially known as the Committee for the
Collection of Data on Crimes Committed agains t Humanity and International Law, and the
Respondent has confirmed in the Counter-Memorial that the witness statements submitted to the
15
Court were deposited with this Committee . Judge Eri ć stated that he, when confronted with the
pile of statements, phoned the Bosnian Serb Ministry of Justice, who assured him, the judge, the
President of the court in Zvornik, that there, in deed, existed some arrang ement with Belgrade and
that he, Erić, could trust this Pavle and that he could go ahead and sign that pile of statements in
16
confirmation that these were given to him in his capacity of investigative judge .
28. Fraud would be the proper word for this: misrepresentation and fraud.
29. Many of the witness statements which the Respondent submitted as annexes to its
Counter-Memorial and to its Rejoinder were given to precisely this investigative judge of the
Zvornik court. We have not made an in-depth study of all of these statements, since they are
connected to the counter-claims and since they are withdrawn. As we said before, we no longer
consider these to be part of the proceedings 17.
30. However, given the fact that the Co-Agent of the Respondent explicitly referred to one of
these statements, even labelling them as “strong confirmatory evidence”, we deemed it useful to
have a quick look at this issue and to inform the Court about our findings. After all, it is a
document that the Respondent is submitting.
13Ibid., p. 4938.
14
Ibid., p. 4935.
15
See letter dated 28 December 1994 from the Chargé d’affaires a.i. of the Permanent Mission of Yugoslavia to
the United Nations addressed to the Secretary-General, United Nations doc. A/50/56 and S/1994/1450, 29 December
1994. See also Counter-Memorial of 23 July 1997, p. 352, footnote.
16
ICTY, Prosecutor v. Orić, transcript, p. 4937.
17CR 2006/2, p. 27, paras. 32-33. - 24 -
31. We were able to identify at least two witness statements signed by Vaso Eri ć which
appeared in the ICTY case against Naser Ori ć and which, much earlier, were submitted by the
18
Respondent to this Court . Also, we noted that many of the “Eri ć statements” were co-signed by
another Zvornik court clerk, Gorica Trajkovi ć, of whom Eri ć ⎯ in his capacity as witness ⎯
testified that she “was a clerk who arrived with Pavle Jelisavcic... She came with him from
Belgrade.” 19 It means she came from the Respondent’s judicial institutions. Eri ć confirmed that
another clerk whose signature appeared, Ružica Jai ć, was not employed by the Zvornik court
either20. In the annexes to the Rejoinder, her name appears at least once as a court clerk in a
21
statement supposedly given at the District Court in Belgrade . And finally, PavleJelisav čić
himself also appears as a court clerk on a number of statements, supposedly taken at the District
22
Court in Belgrade .
32. We are not able to assess the validity of all of the witness statements, which were signed
by these individuals and which were submitted to this Court. The need for doing so is in itself not
very pressing, since these statements are not part of the file. However, all of this raises serious ⎯
and I mean serious ⎯ doubts about the quality and veracity of all of the materials submitted to this
Court by the Respondent.
33. In any event, we leave it to the Court as to how to appreciate the fact that the Respondent
submits this sort of fraudulent material under the heading “strong confirmatory evidence” to the
Court. For our purposes it is enough to establish that these types of materials are, if anything,
“strong confirmatory evidence” of the fact that th e Respondent apparently is not able to properly,
let alone effectively, disprove the accurateness of our positions.
18Annex RC 313 to the Rejoinder of 22 February 1999, Vol. 6, p. RC 2863. See ICTY, Prosecutor v. Orić,
transcript p. 4944. Annex RC 243 of the Rejoinder of 22 February 1999, Vol. 5, p. RC 2207. See ICTProsecutor v.
Orić, transcript pp. 4938, 4944, 4949.
19ICTY, Prosecutor v. Orić, transcript pp. 4948-4949.
20
Ibid.
21
See Annex RC54 to the Rejoinder of 22 February 1999, Vol. 2, p. RC 531.
22See e.g. Annexes RC 33 and RC 44 to the Rejoinder of 22 February 1999, Vol. 2, p. RC 279 and p. RC 293. - 25 -
The evidence submitted by the Respondent
34. This brings me to another topic related to the evidence submitted by the Respondent,
Madam President. I just noted that the Respondent had made no direct reference to one of the set
of “unpublic documents” which it submitted 18 January 2006. This was not an exception, since the
same applies to the six other “unpublic documents” which are part of that set of documents. Even
though some of them may have been presumed to address some of the points that the Respondent
has made during the first round, at no time di d the Respondent refer explicitly to one of these
documents in support of its arguments. Since we are not supposed to argue the case of our learned
opponents, we cannot be expected to guess what the purpose of these documents may have been in
order, then, to undo our own guessing. So, we would appreciate it to be put on record that these
documents no longer form part of the file, since we will not have an opportunity to rebut any
possible use the Respondent will make of these documents in their final round.
35. Madam President, the witnesses ⎯ I will get back to that later today ⎯ the witnesses
called by the Respondent did not help Serbia and Montenegro either. They either showed
themselves to be totally unreliable ⎯ Mr. Lukić and Popović are the examples of that ⎯ or mildly
unreliable ⎯ Mr. Mihajlovi ć, Mr. Mili ćević and Mr. Mi ćunović. In any event, all of these
witnesses were clearly pleading, they were pleading on behalf of Serbia and Montenegro and they
did not offer anything in addition to the various positions already taken by the Respondent.
Use of quotations
36. The Respondent has used surprisingly little evidence in support of its assertions.
Apparently the CIA report Balkan Battlegrounds was deemed useful, since it is used by the
23
Respondent no less than 19 times . The same appears to be true for the Report of the Netherlands
Institute for War Documentation on Srebrenica 24, to which reference was made five times, often
23CR 2006/15, p. 15, para. 133; p. 16, para. 135; p. 17, paras. 138-139; p. 19, para. 147; p. 20, para. 150; p. 20,
para.151; p. 21, paras. 153-156; p. 23, para. 159; p. 24, para. 162; pp. 29-30, paras. 173-176; p. 32, para. 181;
pp.34-35, paras. 185-186 (Prof. Stojanovi ć). CR 2006/16, pp. 10-11, paras. 4-5 (Prof. Brownlie). CR 2006/17, p. 36,
para. 277; p.38, para. 285; p. 44, para. 309 (Prof. Brownlie). CR 2006/21, p. 18, para. 5; pp. 18-19, para. 10; p. 19,
para. 14 (Prof. Brownlie).
24Netherlands Institute for War Documentation,Srebrenica ⎯ a “safe” area. Reconstruction, background,
consequences and analyses of the fall of a safe area (Boom Publishers, Amsterdam 2002). Available at
http://www.srebrenica.nl/en/a_index.htm - 26 -
extensively 2. However, the sections quoted from these reports, apparently selected by the
Respondent in order to convince the Court, at no time reflect the general message of these reports.
On the contrary, this general message usually he lps Bosnia and Herzegovina much more than it
does help Serbia and Montenegro. We will point this out in more detail during this week of
pleadings.
37. It is rather surprising when we talk abou t quoting, Madam President, that counsel of the
Respondent is several times extensively quoting himself, however without providing any reference
to go with it. On Monday 13 March 2006, our learned opponent Brownlie reread a substantial part
of his preliminary objections pleadings, which he had read to the Court ten years ago, on 29 April
1996, almost ten years ago to the day. Also, on many occasions, he reread most of Section 3.2.3 of
26
the Rejoinder which was submitted by the Respon dent seven years ago, on 22February 1999 .
We will get back to that later on.
A contrario reasoning
38. While the Respondent is not using a lot of evidence in support of its pleadings, it
endeavours to undo Bosnia’s position by sheer reasoning, by talk. In doing so, the Respondent has
usually not been very convincing, to say the least. On many occasions they entirely rely on
a contrario reasoning. For example, on the first day of their pleadings, counsel for the Respondent
stated that “the Respondent considers that the ICTY indictments can be used as argumentum
27
a contrario in a case when the Applicant’s a llegations are not contained in them” . According to
the Respondent’s logic, if the ICTY Trial Ch amber has convicted a certain individual for
28killings in Trnopolje, it follows that no mo re than 28 killings could have taken place in
Trnopolje 28. And if the Prosecutor of the ICTY has alleged that Arkan’s men killed 15Bosnian
Muslims and Bosnian Croats in Zvornik, no more than 15 Bosnian Muslims and Bosnian Croats in
25
CR 2006/16, p. 11, para. 7 (Prof. Brownlie). CR 2006/17, pp. 12-13, paras. 173-176; p. 29, para. 252; p. 34,
para. 269; p. 37, para. 283 (Prof. Brownlie).
26
See CR 1996/7, pp.8-21 (Prof. Brownlie) and CR 2006/16, pp.15-21. Also see CR 2006/16, pp.31-33,
paras.84-92 (Prof.Brownlie), and Rejoinder, pp. 577-579, paras. 3.2.3.1-3.2.3.9. Also: paras. 150-153, pp. 50-51 and
Rejoinder, paras. 3.2.3.14-3.2.3.18 (pp. 582-584). CR 2006/17, pp. 17-18, paras. 197-199 (Prof. Brownlie) repeat
Rejoinder, pp. 587-588, para. 3.2.3.29-3.2.3.31. Paras. 205-215, pp. 20-22 repeat Rejoinder, pp. 588-590,
paras. 3.2.3.33-3.2.3.40.
27
CR 2006/12, p. 31, para. 40 (Mr. Obradović).
28Ibid., p. 27, para. 22. - 27 -
29
Zvornik will have been killed . And, if the ICTY did not convict an individual of genocide, it
would be for sure, so says the Respondent, that genocide did not happen 30.
39. Madam President, litigators, in gene ral, are aware of th e shortcomings of a contrario
reasoning: if something is not black, the conclusion “then, it must be white” is only justified if it is
a given that there only is a choice between these two colours. In all other cases the answer “then, it
would be white” may only be correct by coincidence. This also seems to be the case with many of
the conclusions drawn by the Respondent: if they are correct at all, this is purely a matter of
coincidence. Certainly, this approach is not sufficient in a court case, let alone in a court case with
the stakes as high as those in this one.
40. In this perspective rock-bottom was touched with this way of reasoning when the
Respondent informed the Court about its assumed logic connected to the perpetration of genocide.
Mr. Cvetković, who argued that the Respondent was not guilty of genocide, explained ⎯ using the
holocaust and the Rwandan genocide as evidence for that ⎯ that a true genocide always begins
“next door”. And he said since many Muslims were living in Belgrade, untouched, and since many
Muslims lived in the Sandžak region, untouched, he argued, it is just not possible that Serbia and
31
Montenegro could have committed acts constituting genocide against Muslims living abroad .
Quite apart from the fact that, here, he ignored the fate of the Kosovo Muslims in 1998-1999 and
quite apart from the fact that he misrepresented the fate of the Sandžak Muslims, who did not
remain untouched ⎯ as was confirmed by the Humanitarian Law Centre in Belgrade and by
32
Amnesty International: they suffered from attacks, abductions, torture and ethnic cleansing ⎯,
there is no logic to this way of reasoning but it does have the appearance of perverting the issues at
stake. This sort of reasoning, Madam President, at no time can be seen as a serious rebuttal of our,
indeed, very serious allegations.
29
CR 2006/12, pp. 23-24, para. 10 (Mr. Obradović).
30
CR 2006/18, pp. 27-28, p. 90 (Mr. de Roux).
31CR 2006/20, pp. 55-56, paras. 66-71 (Mr. Cvetković).
32See: Bukovica (Humanitarian Law Centre, Belgrade), available at
www.hlc.org.yu/storage/docs/2b36abd4b25a6fd8d77214c2a37c2742.pdf; Amnesty International, “Still seeking justice in
the Sandzak”, EUR 70/005/2003, 1 February 2003, available at
www.web.amnesty.org/library/Index/ENGEUR700052003?open&of=ENG-YUG. - 28 -
41. During the upcoming sessions we will try our best to effectively contradict all that has
been stated by the Respondent in the first round of pleadings. In doing so, we will ⎯ if possible ⎯
try and limit reliance on sources which have not be en relied on already. At the same time,
whenever the Respondent’s position is best contradi cted by referring to sources which were not
mentioned earlier, we will most certainly do so.
SDC shorthand reports and SDC minutes
42. Now I come back, Madam President, to the issue of the Supreme Defence Council
reports. We will at times have to refer to the reports of the Supreme Defence Council. We will
especially refer to the shorthand notes of these meetings. We know that the Respondent in this case
has switched its initial tactic from launching a co unter-offensive into a hide-and-seek approach
aimed at preventing the Court from delivering a judg ment on the substance of the case. We also
know that the Respondent is hiding documents which are most relevant to this case by, first, seeing
to it that the ICTY would not disclose them in th eir entirety to the public and, secondly, by not
providing these documents to this Court. We have provided the Court, through our letter of
28December 2005, with sections of an in-depth media report, which revealed that the
Respondent’s reason for objecting to the ICTY’s making the contents of these documents public
was inspired by the interests of Serbia and Mo ntenegro in the present case. We know that
Mr. Djerić pleaded before the ICTY on behalf of the Respondent and that he must have referred to
this case as the reason ⎯ or at least one of the reasons ⎯ why the Respondent had overriding
objections against making them public. Now that the Respondent has not seen fit to submit the
documents to this Court, we challenge Mr.Djeri ć to either deny or to confirm his role and the
substance of his pleadings before the ICTY. His response, which we may reasonably expect in the
Respondent’s second round, will be public and therefore, eventually, verifiable.
43. Obviously, at this stage we are only able to refer to the unredacted sections of these
minutes. At this point, we really find ourselves in a fight in which one of the Parties, Bosnia and
Herzegovina, has its hands tied behind its back, while the other Party, Serbia and Montenegro, has
complete freedom of movement. - 29 -
44. In other words, Bosnia and Herzegovina is not able to appreciate the unredacted sections
in the wider context of the entire document, let alone in the wider context of the entire sequence the
nature of the SDC meetings. The Respondent does not have this handicap. On the contrary: the
Respondent has been in charge of the redactin g process. The Respondent, obviously, does possess
all of the SDC documents and the Respondent has ex plicitly been arguing before the ICTY that the
SDC minutes were not to be made public, since th at would hurt the Respondent’s case before the
International Court of Justice. Whatever conclusion s need to be inferred from this, it is clear that
Serbia and Montenegro should not be allowed to respond to the positions that we take based on our
reading of the partially unreadable, for partially redacted, SDC materials. That is, Serbia and
Montenegro, should not be allowed to respond to our quoting the redacted SDC reports if it does
not provide at the very same time the Applicant and the Court with copies of entirely unredacted
versions of all of the SDC shorthand records and of all of the minutes of the same. Otherwise,
Serbia and Montenegro would have an overriding advantage over Bosnia and Herzegovina with
respect to documents, which are apparently, and not in the last place in the Respondent’s eyes, of
direct relevance to winning or losing the present case. We explicitly, Madam President, request the
Court to instruct the Respondent accordingly.
Concluding remark
45. Madam President, Members of the Court, these oral pleadings come at the end of rather
prolonged proceedings. They are meant, as these proceedings usually do, to exclusively focus on
the merits of the case. However we are not closing our eyes to the fact that a debate on jurisdiction
has become inevitable and we will, obviously, provide the Court with our views with respect to that
very question. We will take it seriously, we will spend a considerable amount of time on
elaborating Bosnia’s position and on showing the Court that, whatever way one chooses to look at
it, this issue is not to be decisive for the fate of our case. We have planned to be pleading the
jurisdictional questions on Friday and on next Monday. The upcoming sessions we will further
devote to the substance of Bosnia’s case. - 30 -
46. Madam President, this concludes my first pleading in this session. I will now continue to
summarize our factual case to the Court, against the background of the Respondent’s first round of
pleading.
BOSNIA AND H ERZEGOVINA ’S FACTUAL CASE
1. Obviously, Madam President, during our written and oral pleadings we are presenting to
the Court the facts and the law as experienced, analysed, assessed and perceived by Bosnia and
Herzegovina. At the same time the Bosnian legal t eam was instructed to at all times go about this
job in the best possible balanced manner, which is another confirmation of Bosnia’s sincere wish to
indeed get the record straight with respect to the horror that came across Bosnia. This horror lasted
not only during the years 1992 to 1995, but the results of that have been present ever since and they
continue to be felt to this very day. Since the campaign of genocide led to a total disruption of the
very make-up of Bosnia and Herzegovina. this disruption is part of the damage done which damage
continues to be actively experienced each and every day.
2. We have gone to some lengths to try to present the facts in a pure, objective manner and
we have at all times avoided lawy ering with the facts let alone with the law. If we were not
100percent successful at all times in achieving this goal, we do apologize for hurting anyone’s
feelings if we did.
3. Also, we have tried, at all times, to su bmit the context of materials and documents from
which we only planned to use parts, sections or sp ecific quotes. The first reason for this really is
that we feel we owe it to justice to fight a legal battle in the open. The second reason for this
obviously was to provide the Respondent and the C ourt with a truly, a truly readily available
manner to verify the context of the materials we used.
4. We regret that this has not always been a ppreciated but we are even more troubled by the
cynicism shown by the Respondent with respect to video materials which we sent to the Court for
the very mentioned purposes. Mr.Obradovi ć informed the Court on 8March that, among other
things, he found it “easy to conclude that most of these materials are the author’s creations, that
they are often based on prejudices and above all a lot of video materials were made in order to
evoke public emotions”. This is not exactly a ve ry specific way of rebutting the substance of these - 31 -
videos. Moreover, Mr. Obradovi ć has apparently missed our point in submitting the entire videos
to the Court and to the Respondent.
5. Leaving all of this aside and focusing on the heart of the matter, it is relevant to note for
the record that the Respondent has not denied that all of the clippings which we showed here in
open court that all of these represent a true picture of precisely what was shown by us.
6. One exception was made by the Respondent and a very ugly exception indeed. This is
what Mr.Obradović told the Court with respect to the footage showing the beastly killing of six
Bosniak boys by the Scorpions ⎯ Scorpions, one of the paramilitary groups, acting under the
Respondent’s responsibility. He said “it is clear that the Appli cant addressed those scenes to the
Court for emotional reasons”. When I reread this sentence to you today ⎯ “it is clear that the
Applicant addressed those scenes to the Court for emotional reasons” ⎯ I am still, after having
already reread it many times over, troubled to gras p the enormity of this sentence. How does this
fit into Professor Stojanovi ć’s stipulation that “en aucun moment, nous ne voulons nier les
souffrances des victimes que nous ne pouvons et nous ne voulons pas oublier”? Is this not
precisely what the Respondent is doing? Denying which is undeniable and which should not be
denied? This denying is exactly one of the reason s why we are here, why we are here before this
Court asking for a judgment which would effectively put an end to this.
7. Now, as a response to Mr.Obradovi ć’s observation, we do not have pictures, let alone
video footage of all the other 7,000 to 8,000 Srebrenica killings. But we all know that all of the
other mass killings would have produced even mo re horrendous pictures, such as the killings on
13July 1995 at Bratunac at Jadar River and Nova Kasaba at Sandici Meadow. Or the killings on
13 July at Kravica warehouse, where 1,000 Bosniak men were executed; 16 July 1995 in Branjevo
where 1,200 Bosniak men were executed. Or the mass killings at Poto čari, CerskaValley,
Orahovac, Pekovci School, Tisca and the Piliča Cultural Centre.
8. We are not here to create special emotiona l effects, Madam President. We showed these
killings because they connected ⎯ those images connected ⎯ an image of the true nature of what
we had explained thus far only in words, and only on paper. Just to try and show the true reality.
We also showed them to illustrate the ultimate, deliberate, nature of these killings. We showed it
because of the comments made by the killers which, more than anything else, demonstrated that the - 32 -
boys were killed because they were Bosniaks. We showed it because the footage demonstrates that
it, apparently, was not part of the plan to arrest, to detain and possibly to prosecute the boys,
assuming that they committed a crime, for which assumption no evidence whatever is available.
9. Madam President, there are thousands of pictures available of exhumations from mass
graves all over Bosnia; and those who carried out the exhumations ⎯ the specialists ⎯ they make
a difference between so-called primary graves and secondary graves. The secondary ones being
graves where body remains from the primary graves are reburied. Why? They are reburied in
attempts to hide the existence of mass graves. Th ey are reburied in attempts to hide the traces of
genocide. And, in the course of this process, us ually the use of heavy machines led to the remains
of one body crudely being divided into pieces. Thus the remains of one person is often found in
two or three different secondary graves. Many of the available pictures of these remains show
victims with their hands tied behind their backs. Their remains and pictures show the shot traces,
more often than not they are in the back of the skull or in the back of the body. We are not
showing those because you have seen enough to envisage what we mean when, in this case, we talk
about mass killings.
10. Mr. Obradović concluded his unfortunate discourse on this video footage by flatly stating
that the Scorpion criminals “according to the docum entation available to our delegation were not
33
members of the Serbian police or any other body of Serbia and Montenegro” . A denial which is
only supported by the mere statement that the documentation available to the Respondent’s
representatives does not contain conclusive in formation as to the availability of relevant
documentation and it obviously is not to be considered as an effective denial; especially not when,
as in this particular case, the evidence in supp ort of the denied position is overwhelmingly clear
and the Respondent knows this full well, since the Respondent’s own prosecutor’s office has all the
relevant files.
11. The Respondent did not deny that several of the Scorpion military who stand trial in
Belgrade have pleaded guilty. It should be noted again that these soldiers were only prosecuted
after a worldwide uproar emerged after the showing of this video footage. The existence of this
3CR 2006/12, p. 42, para. 80 (Mr. Obradović). - 33 -
footage had been widely known in Belgrade already for many years, but apparently during all those
years the authorities did not see the need to prosecut e; and they also, to this very day, did not see
the need to include the commander of the Scorpions in these proceedings. One may only guess the
reasons why.
12. In any event, the Prosecutor at the ICTY found the evidence important enough to amend
the indictments against these two men, Jovica Stanišić and Franki Simatović, whose cases we have
discussed earlier. They were both high authorities within the Ministry of the Interior in Belgrade.
Although very recently the Trial Chamber ruled that it would not accept the part of the amendment
of this indictment with respect to the attacks on Srebrenica as such for reasons of proper criminal
proceedings; the Trial Chamber did confirm the amendment with respect to the Scorpions killing
34
of the six boys ⎯ which murders we witnessed on video in this Great Hall of Justice . The
indictment states:
“62. The Bosnian Serb forces then distributed the Bosnian Muslim prisoners to
different Serb and Serbian units for the purpose of murdering them. One bus full of
prisoners was taken to the base of the Sc orpions at Treskavica, from which about
15male prisoners were taken from the bus for execution by members of the
Scorpions. Members of the Scorpions took six of the prisoners by truck to a secluded
rural area several kilometres from th eir base. Under the command of Slobodan
Medic ⎯ (Bo ča) ⎯ the Scorpions murdered the prisoners by shooting them.
Slobodan Medic ⎯ also known as (Boča) ⎯ had these murders videotaped.” 35
13. Why am I telling the Court all of this? This issue represents this sense of denial of what
really is at stake in this case; and, even mo re importantly, a sense of denial of what really
happened to the Bosniaks and the Bosnian Croats of Bosnia and Herzegovina. A denial which, as
my colleague Alain Pellet mentioned in our first round, formed, less than a year ago, the centre of a
mass meeting of students ⎯ law students ⎯ gathering in the faculty of law in Belgrade 36. The
students at this meeting shouted “Karadzic, Karadz ic” and the participants “insisted that no crime
at all took place in Srebrenica and that the victims were soldiers of the ‘Muslim army sacrificed by
AlijaIzetbegovic...’”. Actually the position taken in this Court by Mr.deRoux when he
34Hague clears ex-Serbian security officials of Srrenica charges, FoNet News Agency (Belgrade), BBC
Monitoring Newsfile, 14 April 2006. See also “Ex-Geheim polizeichefs von Srebrenica-Anklagepunkt befreit” [Former
chief of Secret Police freed of Srebrenica charges], der Standard (Austria), 14 April 2006, available at
http://derstandard.at/?url=/?id=2415414.
35
ICTY, Prosecutor v. Jovica Stanisić and Franko Simatović, case No. IT-03-69, paras. 59 and 62.
36
CR 2006/11, p. 40, para. 28 (Prof. Pellet). - 34 -
discussed Srebrenica is as a matter of principle not any different from that of those students
37
gathering in Belgrade . Obviously we will get back to discus sing Srebrenica later on this week.
But the approach discussed here is exemplary for th e Respondent’s approach. This approach is in
many ways peculiar, it’s an unusual mix of, on th e one hand blunt and sweeping denials with, on
the other hand, an almost absolute absence of specifically denying specific facts.
14. It is an approach which includes storyt elling, storytelling rather than providing or
rebutting facts. It includes several mantras like “it was a civil war”, or “all sides were bad”, or “all
sides were victims”, or “the Bosnian Serbs did it, not us”; mantras which, as mantras do, aim to get
the message across by sheer repetition, not by arguing.
We will try and address these mantras and we w ill try and show the Court that the true facts
are reflected in our pleadings, and not in the pleadings of the Respondent.
History
15. When we provided the Court with some historic background to the events central to our
case, we did not envisage engaging in a course in history writing. We did, indeed, trace back the
38
Greater Serbia notion to Garasanin and his Nacertanije (Plan) of 1844 . We were not about to
study the precise context of his writing and we were not interested in the fact that the publication,
39
as Professor Stojanović explains , was only read in a small circle (w hich is in itself not surprising
in the second half of the nineteenth century). It was only read apparently in a small circle until a
somewhat wider publication 100 years ago. Our point has been that the Greater Serbia rhetoric was
key to the events in the second half of the 1980s and in the 1990s, which led to the ethnic cleansing
of, in the first instance, 70 per cent of the territory of Bosnia and Herzegovina. An ethnic cleansing
campaign which, as we are arguing in our case, squarely meets the criteria of the Genocide
Convention.
16. Seen from this perspective, our perspective, the extensive narrative presented by
Professor Stojanović covering the first six hours of the Respondent’s pleadings on the merits did
not meet the point that we are making. Besides that, this narrative was scarcely referenced and
37CR 2006/18, p. 27, para. 67 (Mr. de Roux).
38
Application instituting proceedings, 20 March 1993, para. 24.
39
CR 2006/14, p. 12, para. 5 (Prof. Stojanović). - 35 -
clearly hardly supported by verifiable sources. Th e lack of those combined with several important
mistakes have led us to the conclusion that weshould not spend much time in rebutting this.
17. We have never stated that Miloševi ć or the other Serbian leaders have based their
propaganda on a correct version of the history of Serbia and its heroes. We have only listened to
what they said and we have made an analysis similar to the one made by Richard Holbrooke in his
book 4, by Warren Zimmermann in his book 4, by Norman Cigar 42, by Tim Judah 4, by Adam
44 45
LeBor , and Ed Vulliamy , among many others. And precisely this same analysis was made by
46
the ICTY in its very first substantial judgment, in the Tadić case . These writers all agree that the
end of the communist era in the former Yugoslavia not only created the conditions for its
dissolution, but also moved the Serbian leadership in Belgrade to try and save their political,
territorial and economic authority by playing the ethnic/nationalist card in the most extreme way.
18. And so it happened that the Serbian Prince Lazar was revived 600 years after he lost his
great battle against “the Ottomans”, which battle was fought in Kosovo. And so the notion of
“revenge” on “the Turks” was revived. So th e notion of Serbian victimhood was recultivated.
And, thus, the impression was raised that the Serbs were about to, again, become victims of
47
genocide. We did provide this analysis in our wr itten pleadings and, again, in our oral pleadings .
This analysis as such, including the detailed re ferences to the relevant sources, has not been
rebutted by the other side.
19. Rather the contrary has been the case. Several times Mr.de Roux gave as the
Respondent’s position that the Respondent found it understandable that the Serbs in Bosnia and
40
Richard Holbrooke, To end a war (Random House, New York 1998), pp. 22-24.
41
Warren Zimmerman, Origins of a catastrophe (Random House 1996), pp. 10-13, 120.
42Norman Cigar, Genocide in Bosnia: the policy of “ethnic cleansing” (Texas A&M University Press 1995),
pp. 22-37.
43Tim Judah, The Serbs: history, myth & the destruction of Yugoslavia (Yale University Press, New Haven and
London 1997), notably pp. 158-160 and 308-310.
44Adam LeBor, Milosevic: a biography (Bloomsbury 2002), pp. 75-87.
45Ed Vulliamy, Seasons in hell: understanding Bosnia’s war (St. Martin’s Press 1994), pp. 42-55.
46ICTY, Prosecutor v. Duško Tadić, case No. IT-94-1, Trial Chamber Opinion and Judgement, 7 May 1997,
paras. 72, 83, 88, 89, 94.
47CR 2006/2, pp. 29-30, paras. 3-8 (Mr. van den Biesen). - 36 -
Herzegovina felt threatened and he referred to their experience in recent history. For example,
about the hate speech of the likes of Radoslav Brđanin, Mr. de Roux said:
“Ces discours des Serbes de Bosnie étaient prononcés dans une situation de
conflit qui fut d’abord politique avant d’être m ilitaire. Oh certes, ils sont souvent très
excessifs! Mais ils reflètent malheureusem ent la situation qui existait à l’époque en
Bosnie-Herzégovine . . . Et je voudrais simp lement rappeler que Brdjanin n’avait rien
à voir avec la Serbie-et-Monténégro, il était un Serbe de Bosnie, né en Bosnie, dont les
parents d’ailleurs avaient été tués lors de la deuxième guerre mondiale, justement par
les forces croates. Brdjanin est donc bien un pur ressortissant de Bosnie-Herzégovine,
plongé dans la malheureuse histoire de ce pays.” 48
And he continued: ”
“Dès lors, les Serbes, peut-être à tort d’ ailleurs, pouvaient se sentir en danger
s’ils devaient constituer une simple minorité dans la nouvelle république, d’autant que
les épurations ethniques brutales dans les Balkans étaient une longue tradition ayant
culminé durant la deuxième guerre mondiale, laissant aux Serbes de Croatie et de
49
Bosnie un goût amer . . .”
And the Agent spoke in the same way when he said:
“Cette attitude des Serbes (l’attitude qui consistait à s’opposer à la séparation de
la Bosnie-Herzégovine), accompagnée de la peur, les poussait à accepter les armes de
toute provenance... Il faut mentionner le fait qu’en Bosnie-Herzégovine, après la
deuxième guerre mondiale, la plupart des ma isons avaient des armes de trophée de la
deuxième guerre mondiale. Cette tendance a été sans doute motivée par l’expérience
de la deuxième guerre mondiale dans laque lle les Serbes non armés étaient une proie
facile des O[ustacha].” 50
And, even more telling, he says:
“Il était clair que la pression internationa le était très forte et que la Yougoslavie
devrait retirer l’armée nationale yougoslave de Bosnie-Herzégovine51Le risque que ce
retrait représentait pour les Serbes de Bosnie était évident.”
20. It is, Madam President, disturbing to see in these very proceedings, conducted by lawyers
who informed the Court about their personal positions in the relevant period of time and who claim
to have all along opposed Milosevic’s policies, that this propaganda, which led to the extensive use
of genocidal armed force, seems to be repeated, or at least justified. This becomes even more clear
when we hear Mr.de Roux speak about the unde rstandable repugnance of the Bosnian Serbs
against becoming a minority in Bosnia and Herzegovina. To give just two examples:
48
CR 2006/19, pp. 38-39, para. 246 (Mr. de Roux).
49Ibidem, p. 42, para. 255.
50
CR 2006/15, p. 18, paras. 143-144 (Prof. Stojanović).
51
Ibidem, p. 19, para. 148. - 37 -
⎯ On 10 March, the Agent of the Respondent stated:
“Après la reconnaissance de la Bosnie-Herzégovine, le peuple serbe vivant dans
ce pays a été réduit au statut d’une minor ité nationale dans son propre pays dans
lequel il existait et vivait depuis des siècles en tant que l’un des trois peuples
constitutifs. .. Il est difficile d’imaginer la situation dans laquelle un peuple devient
une minorité nationale dans son propre Etat . Et pourtant c’est le destin du peuple
serbe en Bosnie-Herzégovine. Raisonnablement, l’on ne peut nier que dans ce cas-là
ce peuple ait eu le sentiment d’une grande déception et d’un échec historique. Cet
échec aurait pu être accepté, mais son acceptation aurait signifié la disparition du
peuple serbe en Bosnie-Herzégovine... Le changement du statut des Serbes, du
peuple constitutif, en une minorité nationale signifiait pour eux la perte de leur identité
collective.”52
⎯ And Mr.de Roux said on 15 March: “L’on pouvait craindre qu’il en soit de même en
Bosnie-Herzégovine [qu’en Croatie] si les Serbes étaient réduits à être une simple minorité.”
Here, Madam President, the Respondent is, agai n, just repeating the earlier propaganda. Who was
threatening the Serbs? Who was in a position to threaten the Serbs? Well, in any event not the
Bosniaks, who ⎯ as MrK . aradzic had pointed out so explicitly in the Assembly of
15 October 1991 ⎯ would be “annihilated”. Why? Karadzic explains: since they would have no
53
way to defend themselves . Simply, the facts do not support the Respondent’s pure speculation
about the feelings of the Bosnian Serbs, which sp eculation is only presented to the Court as a
matter of justification. In effect, this is what this reasoning leads to. The reasoning goes: the
Bosnian Serbs feared a status of minority and this explains their being provided by Belgrade with
an entire army in order to cleanse 70percent of Bo snia’s territory and turn it into a purified Serb
land, which then could be merged with the rest of Serbia. What sort of reasoning is this?
21. The relevant facts are as follows: first, in Bosnia and Herzegovina all “nations” were
minorities, not one of them formed the absolute majority. As we mentioned before, the 1991
census showed the make up of Bosnia’s population:
⎯ a little over 43 per cent Bosnian Muslims,
⎯ 31 per cent Bosnian Serbs,
⎯ 17 per cent Bosnian Croats, and
54
⎯ almost 8 per cent Others .
5CR 2006/15, p. 12, paras. 120-122 (Prof. Stojanović).
5CR 2006/2, p. 34, para. 18 (Mr. van den Biesen).
54
CR 2006/2, p. 31, par. 9 (Mr. van den Biesen). - 38 -
Besides that, and more importantly so, as Professor Stojanovi ć acknowledged 5, Bosnia and
Herzegovina was a truly ethnically mixed society with the highest percentage of mixed marriages.
In other words, ethnicity was not, given the make up of Bosnia, a divisive issue. The notion of the
Serbs becoming a minority really was somethin g that was introduced into the Bosnian public
debate from outside of Bosnia and Herzegovina.
22. In this context the Respondent stated that the Serbs would have lost its status of
56
constituent nation in Bosnia due to Bosnia’s becoming an independent State . This is just not true.
The successive constitutions of the Republic of Bosnia and Herzegovina since the Second World
War recognized three “constituent nations”: Muslims, Croats and Serbs.
23. The Serbs’ recognition as a “constituent nation” remained intact until March 1994 when
it was superseded by the Constitution of the Federa tion of Bosnia and Herzegovina. During that
time, the Presidency of Bosnia and Herzegovina continued to have two Bo snian Serb members.
After the SDS members Nikola Koljevi ć and Biljana Plavši ć resigned on 7April 1992, the two
Serbs who were next on the list of votes received in the election, Mirko Pejanovi ć and
Nenad Kecmanović, were appointed in their place. Thes e were, of course, members of other
political parties, but the Respondent seems to coun t as “Serbs” only those who were leaders of the
SDS.
24. The Serbs’ status as a “constituent natio n” was not included in the Constitution of the
Federation of Bosnia and Herzegovina that was prepared by United States government attorneys as
part of the Washington Agreements of March 1994, but it was restored in Annex 4 of the Dayton
57
Peace Agreement signed in December 1995 . The Constitution, however, of Republika Srpska
continued to recognize only Serbs as a cons tituent nation, and also the Constitution of the
Federation recognized only Croats and Bo sniaks. In 1998, it was Alija Izetbegovi ć ⎯ who is, by
the Respondent, based on his earlier writing, positioned here as a proponent of an Islamic State but
whose record in public office only provides for the contrary and prove him to be a wholeheartedly
defender of a multi-ethnic, democratic Bosnian State ⎯ who appealed to th e Constitutional Court
5CR 2006/14, p. 39, para. 90 (Prof. Stojanović).
5CR 2006/15, p. 12, para. 122 (Prof. Stojanović).
57
Annex 4 to General Framework Agreement for Peace in Bosnia and Herzegovina (“Dayton Agreement”),
21 November 1995, United Nations docs. A/50/790 and S/1995/999, 30 November 1995, preamble, p. 59. - 39 -
of Bosnia to compel the application of the “thr ee constituent nations” formula in all Constitutions
58
of the country. And in July, the co urt decided in favour of that request , and since then all
Constitutions have been revised to include language reflecting the equal rights of all constituent
nations in Bosnia and Herzegovina.
25. At the time, there was no reason whatsoever for the Serbs to fear the non-Serbs of Bosnia
and Herzegovina and, it should be added, the Respondent has failed to produce any evidence to the
contrary. The justification implied in the Respondent’s pleadings is, therefore, totally misplaced.
26. We should remember that it was Milošević who said:
“As far as the Serbian people are concerned, they want to live in one State,
hence divisions into several States, which will separate Serbian people and force them
to live in different sovereign States is, fr om our point of view, unacceptable. That is,
let me specify, out of the question.” 59
We should remember that it was Karadžić who threatened the Muslims of Bosnia and Herzegovina
with annihilation. History shows ⎯ it is the centre of this case ⎯ that these threats were deadly
serious. And, indeed, they were taken seriously by the non-Serbs. It was exactly against the
background of these threats that Izetbegović, who did not especially want Bosnia and Herzegovina
to become an independent State, stated in the fall of 1991 that Bosnia would not have a choice but
to become independent if Slovenia and Croatia woul d leave the SFRY. In that case, the Bosniaks
would, indeed, become a minority in the new Yugoslavia as envisaged by Miloševi ć and his party
men: in a Yugoslavia consisting of Serbia and Montenegro and Bosnia and Herzegovina,
according to the 1991 census, the total population would have been almost 12.5million people.
60
According to that same census, only 17.3percent of this population would have been Muslim .
Now the real world provided for evidence what that would imply: since Serbia, i.e., Milošević, had
already ⎯ through illegal pro ceedings in the Serbian parliament ⎯ taken away the relative
autonomy of Vojvodina and of Kosovo and Miloševi ć had already clearly threatened the Muslims
in Kosovo. That is what the real world told the Muslims in Bosnia. The Vukovar massacre,
58
Constitutional Court of Bosnia and Herzegovina, case U 05 -98, Partial Decision III of 1 July 2000. Available in
English at www.ccbh.ba/?lang=en&page=decisions/byyear/2000.
59
CR 2006/23, p. 21 (testimony of General Sir Richard Dannatt).
60For BH: Census figures of 1991.For Serbia: the Statistical Yearbook of Serbia, 2005, available at
http://webrzs.statserb.sr.gov.yu/axd/en/god.htm; for Montenegro: Statistical Office of Montenegro at
http://www.monstat.cg.yu/EngMeniGodisnjiPodaci.htm. - 40 -
conducted in a combined operation of the JNA and paramilitaries from Belgrade, also had already
taken place, which again clearly showed that the th reats were to be taken seriously. Moreover, the
arming of the Bosnian Serbs by both the JNA and th e Serbian Ministry of the Interior in Belgrade
did not go unnoticed and formed another reason to take these threats seriously.
27. So, the facts do not provide for any serious reason for the Serbs to feel threatened. And,
again, to suggest this as part of a defence in the current case is totally misplaced.
Civil war
28. One of the mantras of the Respondent cl early comes down to “it was a civil war” and
certainly, Madam President, as years went by, civil war features came to be visible. Apparently, in
the Respondent’s view, this civil war is to serve as an explanation and as a justification of the
armed violence of the period 1992-1995. It clearly is not only meant to serve as justification but
also as a denial of the existence of genocidal intent. The “civil war” label is also meant to ⎯
apparently as a matter of automaticity ⎯ exclude that the Federal Republic of Yugoslavia could
possibly have anything to do with it, let alone that any violations could be attributed to it. Finally,
the “civil war” denomination is used to argue that it is not possible to make a difference between
military and civilians. All of these approaches will not be able to help the Respondent since the
“civil war” label does not take away the substance or the focus of our case.
29. Even if the Respondent were correct in us ing “civil war” as the ov erall label, the label
has no relevance for our case. Indeed, in a civil war situation it is perfectly possible that the parties
become engaged in violating the Genocide Convention, regardless of the civil war label. Indeed, in
a civil war situation it is perfec tly possible that only one of the warring parties violates the
Genocide Convention, again, regardless of the civil war label.
30. Our position is that, regardless of the labe l one chooses, it has been the Serb side, with
the Respondent in a dominant position, which has consistently acted in violation of the Genocide
Convention while implementing its Greater Serbia policy. This policy was not just a political ideal
or an idealistic dream. Would it have been just that, then no true democrat could have had any
objections to the dreaming of that dream, or to a political campaign aimed at winning votes to
support that dream. But we are not talking about a dream in our case. The Greater Serbia policy - 41 -
happened to be a road map leading towards “the New Yugoslavia” given the inevitable and, indeed,
anticipated secession of Slovenia and Croatia. A road map which, from the very beginning
onwards, implied the explicitly foreseen use of armed force. A road map which soon revealed,
beginning in Croatia ⎯ in Vukovar ⎯, that it implied ethnic cleansing of non-Serbs who would
stand in the way of achieving the Greater Serbia goal. A road map which in Bosnia and
Herzegovina translated into the Six Strategic Go als, which mentioned the separation of ethnically
defined “nations” as its number one objective 61.
31. The non-Serb sections of the Bosnian population never had this type of policy or this
type of picture of what the future of Bosnia and Herzegovina would look like. The Government of
Bosnia and Herzegovina has never had a policy calling for the separation of the mixed population,
let alone that it ever implemented such a policy with clearly genocidal means.
32. So, the civil war approach is in any event not relevant to our case. At the same time
using “civil war” in the way the Respondent does is certainly not supported by the facts. For this
would imply a readiness on all sides involved to take up arms against the other side. As far as the
“sides” are concerned, the Respondent prefers to de fine the “sides” in ethnic terms, which is in
itself telling, but ⎯ as we will see later ⎯ just flat wrong.
33. The Respondent points at the emergence of “nationalistic” political parties in Bosnia and
62
Herzegovina and seems to imply that this in itself was leading up to a civil war . What is the basis
for that assertion? Of course, the Respondent does not provide the basis for that, simply because it
is non-existent. In any event, the Respondent here ignores the fact that Bosnia and Herzegovina, at
the time, was a new developing democracy. The firm reign of the Communist Party had only
recently lost its grip and it is not unusual at all in new democracies that new political parties are
created based on religious designations. It is, on the other hand, totally unusual that this would lead
to civil war, let alone that it would be usual that this would lead to genocide.
34. It is noteworthy, however, that Karadži ć had from the very beginning onwards a close
relationship with Slobodan Miloševi ć. As we have pointed out, this partnership included Milan
61CR 2006/4, pp. 18-19, paras. 36-37 (Ms Karagiannakis).
62
CR2006/14, p. 15, para. 14; pp. 39-40, paras. 91-92 (Prof. Stojanovć); CR2006/15, p. 18, para. 143;
pp. 42-43, para. 207 (Prof. Stojanović). - 42 -
Babić, the leader of the Serbian Democratic Part y in Croatia (SDS), the political party which
organized the Serbs in Croatian Krajina.
35. We have referred the Court to a meeting in Belgrade between Miloševi ć, Karadžić and
63
Babić . In the ICTY case against Miloševi ć, this meeting was revealed through the testimony of
Mr. Babić himself. In the judgment of the Trial Chamber in the Milošević case with respect to the
Motion for Acquittal, we are able to read the findings of the judges:
“In July 1991, Mr. Babi ć, Radovan Karadžić, and the Accused [Miloševi ć] had
a conversation during which Radovan Karadži ć stated that he would chase the
Muslims into the river valleys in order to link up all Serb territories in Bosnia and
Herzegovina. The Accused warned Mr. Babić not to ‘stand in Radovan’s way’.” 64
Mr.Brownlie has given the Court his opinion on this part of the judgment and he calls it “a very
prejudicial summary of a long series of excha nges from the transcript of the testimony of
Mr. Babić” 65. And he blames my colleague, Professor Franck, for using this judgment. To prove
to the court that he, Mr. Brownlie, is right, he ha s produced in the judges’ folder a couple of pages
from the Babi ć transcript and he has suggested that th e Court should itself find out why he is
correct ⎯ why he is correct in his opinion that the judges of the Tribunal were “prejudicial”.
Madam President, this is a peculiar way of litig ating and it becomes even more peculiar if one
looks at the documents produced by the Respondent. This is what the witness said:
“Karadzic said the following: that he held Alija Izetbegovic in his pocket, that
he could settle accounts with him at any time , but the time was not ripe for it so that
the Serbs should not be blamed for things, that it would be better to wait for
Izetbegovic to first make the wrong political move and that is when accounts would be
settled, and the Muslims would be expelled or crammed into the river valleys and that
he [Karadzic] would link up all Serb territo ries in Bosnia-Herzegovina, but he said
that he wasn’t sure whether he would take Zenica from them.”
And then the Prosecutor asked Babić what the reaction of Milošević was to this remark. And Babić
then said: “He said that I shouldn’t be stub born and stand in the way of Radovan, stand in
Radovan’s way.” 66 Apparently Miloševi ć did not respond by objecting to Karadži ć’s threat to
expel “the Muslims” or to cram them into the river valleys. Apparently Milošević did not object to
63CR 2006/3, p. 36 (Prof. Franck).
64ICTY, Prosecutor v. Slobodan Milošević, case No. IT-02-54, Trial Chamber Decision on Motion for Judgement
of Acquittal, 16 June 2004, para. 253.
65
CR 2006/17, p. 40, para. 291 (Prof. Brownlie).
66
Page 4 in judges’ folder of 13 March 2006. - 43 -
his planning to link up all Serb territories in Bosnia. All of this did actually happen ⎯ all of what
Karadžić had promised that would happen did actually happen ⎯ and it became known to us as
“ethnic cleansing”. Of course Miloševi ć did not object to this, because this was his own policy, a
policy which during this meeting in July 1991 was central to questions not of principle but only of
implementation.
36. So, the emergence of political parties does not support the “civil war” approach
professed by the Respondent. At the same time the close relationship between the three Serb
parties certainly was crucial, certainly was rele vant for the joint operation aimed at realizing
Greater Serbia.
37. We have demonstrated that Miloševi ć sent his Deputy Minister of the Interior,
67
MihaljKertes, from Belgrade to Bosnia to see to it that arms were distributed to the Serbs . We
68
have demonstrated how the JNA did the same and used the Bosnian Serb party, SDS, to this end .
The Respondent did not deny this, although these facts undermine its “civil war” approach, but the
Respondent did respond. It just shifted to anot her mantra: it shifted to the mantra “all sides did
69
the same” and pointed out that “the Muslim side” had their Patriotic League .
38. Well, the formation of the Patriotic League indeed took place, but only in response to the
arming of the Bosnian Serbs, which began, as we have seen, at the latest in April 1991. The
Patriotic League had ⎯ as did the SDA ⎯ a programme aiming at the preservation of Bosnia and
Herzegovina. It stated, among other things:
“Bosnia and Herzegovina is homeland of the Muslims, Serbs and Croats and all
citizens living therein, and is not severable because of its ethnical mix, and for the
centuries they have been living together and thus the division would be paid by
thousands of lives. Thus we call all Muslim s, all Serbs and all Croats and all citizens
70
of Bosnia and Herzegovina to defend their homeland Bosnia and Herzegovina.”
So, the programme was, indeed, patriotic ⎯ that is what it was ⎯ and it sought to include all of
Bosnia’s “nations”.
67CR 2006/2, p. 32, para. 13 (Mr. van den Biesen).
68
CR 2006/4, pp. 12-14, paras. 10-17 (Ms Karagiannakis).
69
CR 2006/15, pp. 21-23, paras. 153-163 (Prof. Stojanović). CR 2006/19, pp. 45-46, para. 267 (Mr. de Roux).
70Vahid Karavelic, Agresija na Bosnu i Hercegovinu, Sjeveroistocna Bosna 1991-1992 [The Aggression on
Bosnia and Herzegovina, North-East Bosnia 1991-1992] (Institut za istrazi vanje zlocina protiv covjecnosti i
medjunarodnog prava, Sarajevo 2004), pp. 195-196. - 44 -
39. The Patriotic League was not very successfu l military-wise, which showed that it is just
not true that “all sides” were the same here. The Bosniaks did not have the JNA to back them up or
to provide them with arms. The Bosniaks did no t have the MUP in Belgrade in charge of arms
distribution to them. This was confirmed by the ICTY Trial Chamber in the Brđanin trial
judgment:
“However, the Bosnian Muslims’ efforts to procure and distribute weapons
were nowhere near as successful as those of the Bosnian Serbs, both in terms of the
number and the quality of the obtained weapons. This was due in part to the fact that
Bosnian Muslims mainly procured their we apons on an individual basis. Some
obtained their weapons by buying them from Bosnian Serbs returning from the front
line in Croatia. On a number of occasions, Bosnian Muslims purchasing weapons in
this way were identified and later arrested [for it]. Equally, the Bosnian Croat
population’s endeavours to arm themselves fell far short of the arming efforts
conducted by the Bosnian Serbs.” 71
Pistols and old rifles and only occasionally modern weapons formed the armament of the Patriotic
League. It all appeared totally useless against the abundant and up-to-date equipment of the JNA.
40. Another reason for the lack of arms of th e Patriotic League was the fact that non-Serbs
were disarmed ⎯ they were disarmed ⎯ ahead of time in all the municipalities where Serbs
formed a majority. And this has also been confirmed as a fact by the ICTY in various judgments:
“Before the actual outbreak of the conf lict... The Serb population had been
receiving arms and equipment from the JNA throughout 1991, whereas in areas where
Muslims and Croats predominated, local TOunits were downsized and disarmed by
72
the JNA.”
And:
“Then in the second half of 1991 military units were formed [by the JNA] in
Serb-populated villages in Bosnia and Herzegovina and supplied with weapons and
with uniforms... Those TOunits in predominantly Muslim and Croat areas of
Bosnia and Herzegovina were at the same time largely disbanded by the JNA.
General Kadijević in his book describes how ‘naturally we used the territorial defence
(the TO) of Serb regions in Croatia and Bo snia and Herzegovina in tandem with the
JNA’ to paralyse territorial defence wher e it might provide a basis for creating the
armies of secessionist republics.”
“The TO of Bosnia and Herzegovina had in any event been to a degree
neutralised by the action taken by the JNA to disarm it. Traditionally all TO weapons
were stored locally, within each municipality, but in late 1991 and early 1992 the JNA
removed all local stocks of weapons from TO control, at least in Muslim-populated
7ICTY, Prosecutor v. Radoslav Brđanin, case No. IT-99-36, Trial Chamber Judgement of 1September2004,
para. 89.
72
ICTY, Prosecutor v. Zejnil Delali ć, Zdravko Muci ć, Hazim Deli ć and Ezad Landžo ( Čelebići),
case No. IT-96-21, Trial Chamber Judgement of 16 November 1998, para. 109. - 45 -
areas. This left those local TO units vi rtually disarmed whereas units which were
drawn from Serb-populated areas, and only those, were substantially re-equipped.” 73
These facts have been established by the Trial Cham ber of the ICTY. All of this shows, beyond
any reasonable doubt, that the “all sides did the same” mantra does not have a basis in the factual
situation on the ground.
41. We have demonstrated that the Bosnian Se rbs created parallel stru ctures in Bosnia and
Herzegovina: the “Autonomous Regions”, the para llel Serb Municipal Assemblies and the local
“crisis staffs”. The JNA, at all times, participated in those crisis staffs 74. The Respondent has not
denied that.
42. The so-called “other sides” did not create those parallel structures and most certainly the
JNA did not participate in any sort of “crisis staff” of the Bosniaks, which crisis staffs did not even
exist in the first place. So, no even-handedness here. We have demonstrated that the JNA actually
began using armed violence, in cl ose harmony with paramilitaries fr om Belgrade, in Bijeljina and
that this event marked the beginning of the ethnic cleansing campaign in Bosnia. The other side
has only weakly denied this by saying that the numbers we provided for the victims in Bijeljina are
too high, but that killings did happen 75. At one other point, the Respondent noted that it would
examine what happened in a number of regions and municipalities including Bijeljina, but it never
returned to that subject 7.
43. Madam President, this Court recalled in its Judgment on Preliminary Objections of
11July1996 that Bosnia and Herzegovina b ecame an independent State on 6March1992 ( I.C.J.
Reports 1996(II) , p.612, para.23). The Respondent agrees with that 77. So, clearly, in Bijeljina
the JNA, which only took orders from Belgrade, was acting as an aggressor. As we just noted, the
other side only weakly denied this. Also, the other side did not deny that the JNA did refuse to take
78
orders from the newly formed Bosnian Government .
73ICTY, Prosecutor v. Duško Tadi ć, caseNo.IT-94-1, Trial Chamber Opinion and Judgement, 7May1997,
paras. 106, 107.
74Ibidem, pp. 17-18, para. 32.
75
CR 2006/12, p. 43, para. 83 (Mr. Obradović).
76
CR 2006/18, p. 16, para. 56 (Mr. de Roux).
77CR 2006/16, p. 32, para. 86 (Prof. Brownlie).
78CR 2006/4, p. 25, para. 11 (Mr. van den Biesen). - 46 -
44. It is important to note that from the day of Bosnia’s independence, 6March1992,
onwards the Bosnian Government was the Government of an independent State. We know that the
Serb side refused to recognize that at the time. But it is telling, and disturbing, that the Respondent
in these proceedings, until this very day, continues to do so.
45. The Dayton Peace Agreement, to which the Respondent is also a party, established the
new Constitution for Bosnia and Herzegovina. Arti cle1, paragraph1, of this Constitution reads
under the heading “Continuation” as follows:
“The Republic of Bosnia and Herzegovina, the official name of which shall
henceforth be ‘Bosnia and Herzegovina’, shall continue its legal existence under
international law as a state with its internal structure modified as provided herein and
with its present internationally recognized borders.” 79
In other words, here it is acknowledged that, un der international law, Bosnia and Herzegovina,
indeed was an independent State as of the day on which the Republic of Bosnia and Herzegovina
was constituted, i.e., 6 March 1992. Artic le 5 of the General Framework Agreement ⎯ and again,
the Respondent is a party to this provision as well ⎯ reads:
“The Parties welcome and endorse the arrangements that have been made
concerning the Constitution of Bosnia and Herzegovina, as set forth in Annex 4. The
80
Parties shall fully respect and promote fulfilment of the commitments made therein.”
It is exceptional, to say the least, and it is in any event not correct, that the Respondent today
entirely ignores these legal realities to which it has committed itself as a party to the Dayton Peace
Agreement.
46. The Respondent ignores all that and prefers to present its civil-war mantra. It talks about
a three-sided civil war. Professor Stojanovi ć talked about “une guerre civile menée entre les
citoyens de la Bosnie-Herzégovine appartenant aux ethnies différentes afin de prendre les
81
territoires et établir les frontières de leurs entités” . Professor Brownlie stated that a “three-sided
civil war emerged within Bosnia . . . The three sides were the Muslims, the Croats and the Serbs of
82
Bosnia.” Mr.de Roux speaks about “une guerre civile qui éclate dans cette Bosnie, reconnue
79Annex4 to General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement),
21 November 1995, United Nations doc. A/50/790 and S/1995/999, 30 November 1995, p. 60.
80
General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement),
21 November 1995, United Nations doc. A/50/790 and S/1995/999, 30 November 1995, p. 3.
81
CR 2006/15, p. 29, para. 171 (Prof. Stojanović).
82CR 2006/16, p. 32, para. 86 (Prof. Brownlie). - 47 -
certes par la communauté internationale, mais qui contient trois peuples ne souhaitant plus partager
un destin commun” 83. MsFaveau-Ivanovi ć also described the conflict as a civil war 84, while
Professor Varady stated that “[t]he actual conflict we are facing was an ethnic conflict, the dividing
lines between the warring parties were ethnic dividing lines” 8.
47. Further the Respondent specifies the par ties and talks about three wars: “a war of
‘Muslims against Serbs’, a war of ‘Muslims against Croats’ and a war of ‘Muslims against
86
Muslims’” . This, however, is a straightforward denial of the existence of an independent Bosnia
and Herzegovina and also a straightforward denial of the existence of its Government. At the same
time, it shows that the Respondent’s mindset is, also today, preoccupied ⎯ if not obsessed ⎯ by an
approach defined in ethnic terms only.
48. The truth of the matter is that the Bo snian Government and the Bosnian army have
during the entire 1992-1995 period endeavoured to protect the threatened, if not killed, wounded,
raped or chased from their homes and families, population of Bosnia and kept endeavouring to
move the Serb side from illegally obtained control over a large part of Bosnia’s legitimate territory.
This is not exactly in line with Mr. de Roux’ unfounded assertion “une guerre civile qui éclate dans
cette Bosnie, reconnue certes par la communauté in ternationale, mais qui contient trois peuples ne
souhaitant plus partager un destin commun”. The facts show that this not wishing to share a
common fate was only true for the Serb side.
49. Given the fact that the JNA was a well trai ned armed force combined with the fact that
87
the BH army was virtually non-existent, the Serb side who was ⎯ as General Rose confirmed ⎯
the aggressor, succeeded to overtake one municipality after the other in a well-organized and
well-planned manner.
50. We need to remember that Karadži ć defined in his Directive of December 1991 entitled
“Instructions for the organization and activity of organs of the Serbian people in Bosnia and
8CR 2006/19, p. 43, para. 261 (Mr. de Roux).
8CR 2006/20, p. 23, para. 2 (Ms Faveau-Ivanović).
85
CR 2006/12, p. 48, para. 1.13 (Prof. Varady).
86
CR 2006/15, pp. 29-36, paras. 173-188 (Prof. Stojanović).
8CR 2006/26, pp. 29-30 (testimony of Sir Michael Rose). - 48 -
88
Herzegovina in extraordinary circumstances” , that he did define municipalities with substantial
Serb inhabitants in “Variant A” and “Variant B” municipalities, being municipalities with a Serb
majority and municipalities with a Serb minority, respectively. The document mapped out
precisely how these should be taken over by the Bo snian Serbs. We also must remember that this
directive provided for the activa tion of the parallel structures an d the crisis staff, which were
created in anticipation of precisely this moment. We also need to remember that the JNA was
represented in each and every crisis staff. So , the JNA did participate in the planning, it did
participate in the implementation of the planning. They were all in it together, and it has been like
that ever since. None of this has effectively been denied by the Respondent.
51. For the Serb side nothing really changed on 19 May 1992, the day on which, as the
Respondent claims, the withdrawal of the JNA would have been completed. Also, nothing changed
with respect to the participation of paramilita ries from Belgrade, wh ich operated under the
responsibility of either the JNA or the Serbian Ministry of the Interior.
52. We provided the pattern of this overtaking of one municipality after the other, and we did
89
so several times during the written and oral pleadings . The pattern as such has not been contested
by the Respondent. The only response has been “all sides did the same”, which ⎯ if true ⎯ does
in any event not amount to an effective denial, but which also is not true, while the Respondent has
not even tried to prove its assertions. Besides th is mantra “all sides did the same”, the Respondent
in this context also engaged in a numbers game. And we will get back to that later this week.
53. “Overtaking” of one municipality after an other actually is not the proper word for it,
because the aim was not to bring the population unde r a new régime. Not at all, this was not an
average war of territorial conquest. The true aim turned out to include a genocidal intent and
became visible as soon as the combined Serb forces controlled the municipalities.
54. The aim became visible when in Prijedor the non-Serb elite ⎯ Bosnian Croats and
Bosniaks alike ⎯ were arrested and transported to camps where they were beaten continuously, not
seldom beaten to death. They were transported to camps where the women were raped, camps
8CR 2006/2, p. 33, para. 15 (Mr. van den Biesen).
89
Ibidem, pp. 42-44, paras. 45-55. CR2006/6, pp. 10-26 (Ms Dauban). Reply of 23 July 1998, pp.68-76,
paras. 19-39 and Chap. 5. - 49 -
where people through lack of food turned into living skeletons in three or fourmonths time. The
aim became visible when in Prijedor one non-Serb home after the other wa s set to flames, while
Serb houses were carefully protected.
55. The aim became visible in Bijeljina, when Arkan’s paramilitaries from Belgrade took
over the town, arrested the prom inent Bosniak citizens, who su bsequently disappeared, and
proceeded to seize the property of Bosniak civilians. This escalated into arbitrary beatings, killings
and detentions. Up to 2,000 people were detained in the Batkovi ć camp, where many atrocities
90
were committed, and as many as 100 people died . The aim became visible in Zvornik, when
paramilitaries from Serbia, supported by JNA artillery fire from the Serbian side of the River Drina
and supported by JNA ground troops in Bosnia and Herzegovina, took over the town. Civilians
were killed, their blood soaked the street so much that United Nations High Commissioner for
Refugees jeep skidded on the blood on the streets. There were lorries fu ll of corpses of women,
91
children and old people .
56. The aim became clear when paramilitarie s from Serbia forcibly took seven unarmed
Muslim men from Visegrad to the edge of the Drina River, lined them up along the banks and
proceeded to shoot them in cold blood 92. The aim became clear in the Mahala area of Visegrad
town where a group of over 70 Muslim women, ch ildren and elderly men were taken to a house,
stripped of their valuables and barricaded in a room. The house was then set on fire and those that
93
tried to leave the house were fired upon . The aim became clear in Kori ćanske Stijene when a
group of over 200 male prisoners from Trnopolje Camp were taken; they were taken to a cliff and
they were told that they were going to be exchanged ⎯ the dead for the dead and the living for the
living. They were ordered to kneel down where they cried and begged for their lives before the
shooting started. If the corpses did not fall into the abyss they were pushed, and the soldiers threw
grenades into the gorge to make sure there were no survivors 94. The aim became clear in Glogova
90CR 2006/6, pp. 12-14, paras. 7-9 (Ms Dauban).
91CR 2006/6, pp. 15-16, paras. 15-16 (Ms Dauban).
92
CR 2006/6, p. 18, para. 25 (Ms Dauban).
93
CR 2006/6, p. 18, para. 25 (Ms Dauban).
94ICTY, Prosecutor v. Radoslav Br đanin, case No. IT-99-36, Trial Chamber Judgement, 1 September 2004,
paras. 459-460. - 50 -
when a group of unarmed Muslim residents were gr ouped together and shot. Other residents were
ordered to dump their corpses into the river and were then lined up by the river and shot: a total of
95
64 civilians were killed . The aim became clear in Sarajevo wh en at least 16 civilians were killed
by a mortar as they queued for bread in the centre of the city in May 1992.
57. All of this was the aim, all of this wa s not accidental: it was the intent. This was
precisely the intent which the drafters of th e Genocide Convention had in mind when they
concluded Article II of the Convention.
58. To call this, Madam President, “a terr itorial war” as the representatives of the
Respondent continue to do, goes beyond any sort of “newspeak”. Using “territorial war” to
describe a clearly intended, clearly genocidal campaign of killing, causing bodily and mental
wounding, raping, forcibly transferring, ethnic cleansing of an ethnically and religiously defined
group, goes beyond reasonable and dignified pleading and clearly enters the domain of
undertakings aimed at misleading this Court.
59. In this case we are not discussing a territorial war, we are not discussing a civil war, we
are not discussing even-handedness. We are discussing a clearly organized campaign of
destruction, a campaign aimed at the non-Serbs of Bosnia, destruction through the use of
overwhelming armed force; a campaign which meets the criteria of the Genocide Convention.
60. If anyone would still be in doubt about the true aim of the Serb side, about their true
intent, then there is still the issue of the destructio n of, what is generally referred to as, the cultural
heritage of the Bosnian Croats and the Bosniaks. Mr.Riedlmayer has provided the Court with a
compelling and lucid picture of the unimaginable si ze of this clearly well- planned destruction and
of its widespread character 96. Moreover, he has effectively de monstrated that this destruction
occurred entirely unrelated to any kind of warfare. The aim of this destruction was totally clear, it
was explicitly intended to erase the soul and the spirit of the non-Serbs ⎯ i.e., of the Bosnian
Croats and of the Bosniaks ⎯ from the land which by then was indeed cleansed and purified.
9ICTY, Prosecutor v. Miroslav Deronjić, case No. IT-02-61, Trial Chamber Judgement, 30 March 2004,
paras. 93-97.
96
CR 2006/22 (testimony of Mr. Riedlmayer). - 51 -
61. Purified into Serb, pure Serb, territory, which territory, then, was to be kept eternally.
This trying to defend and keep th is territory, indeed, provided for the characteristics of a territorial
war. A war about territory, where all traces of ethnically defined Bosnian Croat and Bosniak
groups were deliberately, entirely and in a cl early organized and pre-planned manner erased
through acts listed in ArticleII of the Genocide Co nvention. A territorial war fought by the Serb
side with the clear intention to make sure that the Bosnian Croats and the Bosniaks would not ever
be able to re-begin living in the places which had been their homes and their places of birth for
centuries.
Financial unity
62. The final point I want to address, Madam President, before I conclude is the financial
unity as was discussed by our colleague Morten Torkildsen in the first round. He has demonstrated
to the Court how the Republika Srpska project was exactly financed. He showed and he explained
how the backbone of the Bosnian Serb military forc es, the officers, remained employed, remained
paid and promoted by the Yugoslav army. Until November 1993, this was apparently done in a
continuation of the situation which existed be fore the so-called withdrawal of the JNA on
19May1992. From November 1993 onwards this was organized through the 30th Personnel
Centre of the Yugoslav army. Likewise Belgrade paid for the officers of the Krajina Serb army
through the 40th Personnel Centre 97. The Respondent only superficially responded to this, but did
not effectively deny it.
63. Mr.Torkildsen also showed and demonstr ated, based on available evidence, how more
than 90percent of the Republika Srpska budget was covered through payments by and so-called
98
credits from the Belgrade monetary authorities and institutions . The Respondent did not deny
this.
64. Further, we have shown and demonstrated to the Court how the so-called National Bank
of Republika Srpska ⎯ and likewise the National Bank of Republika Srpska Krajina ⎯ functioned
in subordination to the National Bank of Yugoslavia (NBY), how it was to submit its yearly
9CR 2006/9, pp. 25-27, paras. 7-13 (Mr. Torkildsen).
98
CR 2006/9, pp. 30-31, para. 20 (Mr. Torkildsen). - 52 -
balance to the National Bank of Yugoslavia in order for the same to integrate it in its own
“consolidated” balance, and how the governors of both the Republika Srpska and Republika Srpska
Krajina banks were under an obligation to attend the meetings of the National Bank of Yugoslavia
authorities. All of this was agreed in a document made up by all three parties, to which document
99
we referred explicitly . The Respondent, again, did not deny. However, Mr. Brownlie suggested
100
that all of this would be perfectly normal .
65. Certainly, all of this cannot be considered perfectly “normal”, especially not given the
particular circumstances of an ethnic cleansing ca mpaign going on in Bosnia and Herzegovina and
given the continued denials of Belgrade being involve d. We will get back to the issue of financial
unity between the three Serb entities (FRY, Republika Srpska, Republika Srpska Krajina) later on
during our pleadings.
Concluding remarks
66. Madam President, Members of the Court, dur ing the rest of this week’s pleading we will
elaborate on the facts while further rebutting pos itions assumed by the Respondent. We will try
and focus your attention on the fa cts that matter and we will not use mantras aimed at blurring the
true picture. We will follow exactly the same approach with respect to the legal questions relevant
to put the facts in their proper perspective. Thank you very much, Madam President.
The PRESIDENT: Thank you very much, Mr. van den Biesen. Just to clarify where we are
after the unexpected events of this morning, is the Court to understand that your pleadings for the
day are concluded, Mr. van den Biesen?
Mr. van den BIESEN: Well, you may see me back in the afternoon, but first Professor Pellet
will take the floor and after him I have another topi c to cover and, if time allows for that, then
Professor Brigitte Stern will be speaking.
99CR 2006/9, pp. 44-48, paras. 48-59 (Mr. Torkildsen).
100
CR 2006/17, pp. 27-28, paras. 245-247 (Prof. Brownlie). - 53 -
The PRESIDENT: I see. Thank you very much indeed. The Court will resume at 3 o’clock
this afternoon.
The Court rose at 1.20 p.m.
___________
Compte rendu 2006/30 - Audience publique tenue le mardi 18 avril 2006, à 10 h 15, au Palais de la Paix, sous la présidence de Mme Higgins, président