Corrigé
Corrected
CR 2014/17
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Thursday 13 March 2014, at 10 a.m., at the Peace Palace,
President Tomka presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2014
Audience publique
tenue le jeudi 13 mars 2014, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Keith
Bennouna
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Keith
Bennouna
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of Law, University College Lo ndon, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Université de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. Damaška, profe sseur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning. Please be seated. The sitting is open. We will hear this
morning Serbia presenting its views on the counter -claim. For reasons explained to me,
Judges Abraham and Skotnikov are not able to sit this morning. Mr. Obradović, you have the
floor.
Mr. OBRADOVIĆ: Thank you, Mr. President.
O PERATION STORM : FACTS AND EVIDENCE
1. Allow me to continue today with the presentation of the facts and evidence in support of
the counter-claim, which is related to Operation Storm and genocide that the Croatian official
armed forces committed against the group of Serbs from the Krajina region.
1. Factual background of Operation Storm
1.1. Significance of the historical and political events
2. Mr. President, distinguished Members of the Court, Operation Storm was not an isolated
1
event. That was not a mere war incident. The operation was prepared well in advance as reported
by General Janko Bobetko in his book, and represented one of the key events in the deep tragedy of
the Yugoslav peoples at the breakdown of their country.
3. When the international criminal tribunal s judge upon massive crimes such as genocide or
crimes against humanity, it is common to start any discussion with a historical and political
background of those crimes. In that regard, the Respondent has provided the Court with a
2
significant number of do cuments. Without a due overview of that background , a court of law
cannot fully understand how a spiral of crimes between Croats and Serbs developed and kept going
on for such a long time in history, in spite of the decades of the seemingly peaceful soalist rule,
and how that spiral reached its peak in Operation Storm in 1995. If this Court did not know what
had occurred in Yugoslavia during World War II, in particular in the Independent State of Croatia,
it would not be able to understand those words of the young Croat soldier who, entering Knin on
5 August 1995, met witness Hill, the United Nations Military Police Commander of Sector South,
1See Croatian General J. Bobetko, All My Battles, p. 407; Ann. 50 to the Counter-Memorial of Serbia (CMS).
2
See CMS, paras. 397-420; CMS, Anns. 1-12. - 11 -
3
and told him that “he had been waiting for this since 1945” . Nor how it was possible that over two
million books were destroyed as “unsuitable” in the infamous Croatian 1990s process of librocide
because they were written by Serbian authors, or they were printed in Cyrillic alphabet, or simply
4
because they were about Yugoslavia .
4. Nor can the words of the Croat ian President on Brioni Island be rightly understood
without the knowledge of his ideological background, which is described as “proto- fascist” by
Mr. Efraim Zuroff, Director of the Simon Wiesenthal Center in Jerusalem, in his book “Operation
Last Chance” 5.
1.2. Massive crimes against Serbs in Croatia, 1991-1995
5. The situation of the Serb people in Croatia was deteriorating gradually ever since 1990. In
the Counter-Memorial, the Respondent reported about discrimination and systematic violation of
human rights of the Serbs in Croatia before and at the beginning of the armed conflict 6, as well as
7
about the massive crimes committed during Croatian military operations at Miljevci Plateau ,
Maslenica 8, Medak Pocket and Western Slavonia (Operation Flash) . The Applicant denied these
crimes in its Reply by a very general statement that no credible evidence had been produced. In
turn, Serbia produced, with the Rejoinder, overwhelming evidence about the crimes committed
against the Serbs from the beginning of conflict in 1991 to Operation Flash in May 1995 11. That
evidence contains (i) numerous witness statements given to domestic courts in Yugoslavia and
Bosnia-Herzegovina, in accordance with the procedural rules which then existed in the FRY,
Bosnia-Herzegovina and Croatia; (ii) two judgments against Croatian General Mirko Norac
Gotovina et. al, IT-060-90, Transcripts, 27 May 2008, p. 3751; Ann. 44 to the Rejoinder of Serbia (RS).
See Slavic Review , Vol. 72, No. 2, Summer 2013, Ante Le šaja: Uništavanje knjige u Hrvatskoj 1990-ih
(Destruction of the Book in Croatia in 1990s ), available in English on : http://www.jstor.org/discover/10.5612/
slavicreview.72.2.0361?uid=3738736&uid=2129&uid=2&uid=70&uid=4&sid=21102533799611 .
CMS, Ann. 9.
Paras. 538-559.
7
Para. 1120.
8
Paras. 1124-25.
Paras. 1130-1134.
1Paras. 1146-1154.
11
RS, paras. 609-631 (Crimes in 1991/92); paras. 639 & 643 (Maslenica); paras. 645- 650 (Medak Pocket);
paras. 651-665 (Flash). - 12 -
rendered by Croatian domestic courts, namely, the County Court in Rijeka and the County Court in
Zagreb; (iii) several United Nations documents; (iv) one OSCE report; and (v) other various
documents made at the critical time without any direct connection with this case.
6. Thus, Serbia has presented convincing evidence that:
12
(a) massive crimes were committed against Serbs throughout Croatia in 1991/1992 ;
(b) those massive crimes were committed by Croatian officials;
(c) the Croatian Government was fully aware of those crimes;
(d) the Croatian Government at that time did not properly investigate and prosecute those massive
crimes; quite to the contrary, those most responsib le for the crimes were later promoted to the
higher ranks in the State hierarchy;
(e) after the deployment of the United Nations Protection Forces (UNPROFOR), Croatian official
armed forces conducted ethnic cleansing of the Serbs; that occurred in the o perations
Maslenica, Medak Pocket and Flash.
7. I had been curious to hear what our colleagues from the Croatian legal team would
respond to this, but the response was disappointing and, indeed, symptomatic as to the way in
which Croatia approaches any assertion against its specific historical view: namely, we were
answered in the Additional Pleading, in 2012, that the new evidence concerning the massive crimes
against the Serbs in 1991 was “wholly outside the purview of the subject -matter of the
counter-claim and therefore simply not relevant” 1.
8. Mr. President, we have never said that the crimes committed against the Croatian Serbs in
1991 form the subject -matter of our counter -claim for the simple reason that the Court lacks
jurisdiction ratione temporis for any acts which occurred before 27 April 1992 and Croatia seems
to have implicitly accepted that when arguing that acts taking place before that date are “outside the
purview of the subject-matter of the counter-claim”.
9. Yet, those crimes, even w hen conducted before the critical date, provide for a factual
background of Operation Storm which is the subject-matter of our counter -claim, and that was
12Examples were given for the towns of Sisak, Karlovac, Šibenik, Zadar, Split, Zagreb, Gospić, Petrinja, Daruvar,
Virovitica, Osijek, Vukovar, as well as for the massacres that were committed in the villages of Mašićka Šagovina,
Marino Selo, Trnava, Merdare, Paulin Dvor, Borovo, and for the notorious detention camps as Lora and K erestinec.
13Additional Pleading of Croatia (APC), para. 2.7. - 13 -
clearly indicated in paragraph 608 of our Rejoinder. Seen in context, these facts are still relevant
for a full understanding of the main issue of this dispute: they reflect an escalating criminal intent
which will reach its peak in Operation Storm. The question here is only one: why do our Croatian
colleagues avoid admitting the massive crimes commit ted against the Serb population in Croatia in
1991 the crimes which are notorious and today well known to everyone who would really like to
face the past and the responsibility?
10. On the other hand, it can be said that Croatia in its Additional Plea ding did not deny the
descriptions of the crimes given in our Rejoinder. Moreover, in footnote 99 on page 22, the Court
can find a review of the Croatian domestic cases against several perpetrators of various massive
crimes mentioned by Serbia. This may be sufficient for the purpose of our presentation: at least,
the Court can conclude that the assertions made by the Respondent regarding the massive crimes
against the Serbs throughout the armed conflict are not false. Unfortunately, I am afraid that one
Croatian footnotemight not be enough for the reconciliation between our two peoples.
11. The situation is even worse vis -à-vis the response to our assertion on ethnic cleansing
committed in operations Maslenica, Medak Pocket and Flash. It seems even m ore painful for our
colleagues from the Croatian legal team to admit these massive crimes. In the response given to
the findings of the 1993 Report of the United Nations Special Rapporteur of the Commission on
Human Rights concerning the crimes committed in Medak Pocket, one can hardly find a point.
Namely, the Applicant quoted another finding given by the Final Report of the United Nations
Commission of Experts from 1994, which reported that no evidence had been found concerning the
responsibility of “any specific identifiable individual” in “any of these crimes” 14. Which crimes, I
am wondering, which crimes if the Applicant so strongly denies our assertions concerning the
ethnic cleansing and arbitrary executions committed in Medak Pocket as unsupported by evidence?
Our quote from the same Final Report, in the part which states that “[d]evastation was total”,
Croatia has not answered at all. However, in the next paragraph of the same Croatian written
pleading, the Court can find information about the conviction of the Croatian General Mirko Norac
before the domestic court for “violations of international humanitarian law” in relation to the events
1Reply of Croatia (RC), para. 10.59; also, APC, fn. 163 on p. 31. - 14 -
in the Medak Pocket . Which violations then? The misunderstanding might be solved if Croatia
would make an effort to inform the Court what General Norac was convicted for, if the Serbian
assertion to this Court is misleading, as claimed . The relevant excerpt from that Croatian domestic
16
judgment has been annexed to our Rejoinder , from which the Court can gain an overview how
severe the crimes committed against the Serbs in Medak Pocket were.
12. Apart from that uncertain response of the Applicant, the ethnic cleansing of Serbs in
operations Maslenica and Medak Pocket was admitted by President Tudjman at the meeting of the
Council for Defense and National Security of Croatia held on 25 November 1993. A relevant part
of the confidential transcript from that meeting was read in the public session of the ICTY on
22 January 2004, during cross -examination of the former Croatian Minister of Foreign Affairs
HrvojeŠarinić. At the session, the a ccused Slobodan Milošević, the former President of Serbia,
read Tudjman’s words from the transcript that that was difficult to override Serbian arguments that
Maslenica and Medak Pocket constituted a complete ethnic cleansing, when in Maslenica the entire
area had been cleansed up to a kitten (“do mačeta”, as it was originally recorded in Serbo-Croat) 17.
13. Operation Flash. The criminal intent continued escalating. Yet, Croatia denies that any
crime was committed in the operation by its official forces, let alone that ethnic cleansing of the
attacked territory was performed. The witness statements produced by our side 18were attacked by
unclear objections, as that those statements were not given in the context of “an actual legal
proceeding” 19. Mr. President, the statements in question were given between 1995 and 1998, well
before the Croatian Application was submitted to this Court a fact which, in our view, can only
fortify their credibility.
14. In the Additional Pleading from August 2012 the Applicant has adduced many
arguments that Operation Flash was planned and executed as a legitimate military action directed to
the liberation of the occupied territory and re -establishment of the legal order . However, the
15
RC, para. 10.60; also, APC, para. 2.30.
16See RS, Ann. 35.
17Milosevic, IT-02-54, Transcripts, pp. 31322-23
(http://www.icty.org/x/cases/slobodan_milosevic/trans/en/040122ED.htm).
18
CMS, Anns. 48 and 49; RS, Anns. 37–43.
19
APC, para. 2.41. - 15 -
Applicant has missed deliberately, I suppose to produce any answer to an important part of
our presentation concerning Operation Flash: the conversation among Croatian President
FranjoTudjman, Minister of Defense Gojko Šušak, and Minister of Interior Ivan Jarnjak, noted in
the confidential transcript of the session of Croatia’s Council for Defense and National Security
held on 30 April 1995, a day before Operation Flash commenced 20. The relevant parts of that
conversation which clarify the criminal intent of the Croatian leadership can be found in
paragraphs 661 and 662 of the Rejoinder . It would be appreciated if Croatia could give any
reasonable explanation for its silence vis-à-vis the unpleasant contents of this document.
15. Croatia has also adduced the argument that facts related to Operation Flash, as reported
21
by nine witnesses in their statements given to the investigative judges in Bosnia- Herzegovina , are
not relevant to this case, because Operation Flash preceded Operation S torm, which is the only
22
subject-matter of the Serbian counter -claim . Once again, we cannot agree with so simplified a
view. The context in which the meeting at the Brioni Island was held, and the words of
President Tudjman and his supporters at that meeting, which are very im portant for our case,
cannot be fully understood without knowledge on the events that took place only three months
earlier in Western Slavonia, in Operation Flash . The agreement made at Brioni on 31 July 1995
was significantly based on the assumption that Operation Flash was a military, political and
international success of the Croatian Government, in spite of: (a) a massive attack to columns of
23
refugees near the bridge on the Sava River ; (b) executions in several villages of those Serbs who
stayed behind 24; (c) torture of prisoners of war 25 the crimes for which no one has ever been
convicted. From the witness statements given between 1995 and 1998 before the c ourts in
Bosnia-Herzegovina, we know today the manner in which Operation Flash was really conducted.
President Tudjman also knew that when he talked to his generals at Brioni.
20
See RS, paras. 661 and662.
21CMS, Anns. 48-49 and RS, Anns. 37-43.
22APC, para. 2.41.
23
Periodic Report by Mr. Tadeusz Mazowiecki, Special Rappo rteur of the Commission on Human Rights,
14 July1995, UN d oc. A/50/287-S/1995/575, paras. 7, 8, 28 and 29; affidavits of Petar Božić (CMS, Ann. 48);
Savo Počuča (CMS, Ann. 49); Anđelko Đurić (RS, Ann. 37); Milena Milivojević (RS, Ann. 38); Dušan Bošnjak (RS,
Ann. 39); and Dušan Kovač (RS, Ann. 40).
24
Affidavit of Radojica Vuković (RS, Ann. 41).
25Affidavits of Branko Mudrinić (RS, Ann. 42) and Zoran Malinić (RS, Ann. 43). - 16 -
16. Finally, I have duly noted that our distinguished opponents in each and every discussion
on the crimes committed by Croatian official organs do not miss to mention the crimes previously
committed on the same territory against the Croatian civilians. Mr. President, allow me to assure
you that the regret I expressed in the beginning of our oral presentation is also related to these
Croat victims. Yet, that is not a pr oper defence by Croatia, if I may note, considering that that
cannot be a justification for the ethnic cleansing of Serbs . Two evils in sum do not give one good.
As we earlier discussed the crimes committed against the Croats, now we would like to discuss
freely the crimes in which, we believe, the Serbs were the victims.
1.3. Context of National, Ethnic and Religious Hatred
17. The national, ethnic and religious hatred towards Serbs in Croatia also represents the
context in which Operation Storm was conducted. I am fully aware that that hatred was provoked,
to some extent, by the crimes committed by Serbs in 1991. However, this fact does not mitigate
the circumstances of the public treatment of the Serbian ethnic group in Croatia during the armed
conflict. Croatian philosopher, P rofessor Žarko Puhovski, described this context clearly in his
statement recorded in the documentary “Storm over Krajina”. He said:
“We are talking here about a large number of incidents which were influenced
by motions. But these incidents, these motions had been prepared for years through
propaganda, from television to the president of the country and all public factors in
Croatia who convinced the Croatian population and especially the soldiers that the
26
Serbs are guilty as such and that they should be punished as such.”
18. In the following raw video material made by the Croatian soldiers of the 142nd HV
Brigade on 22 August 1992 during the arrest of one Serb soldier at the Miljevci Plateau, the Court
can see how this conclusion of the Croatian philosopher looked in practice . This video material
27
was broadcast on the Croatian National TV on 1 October 2001 . [Play video]
19. It is well known throughout history that the crime of genocide is not based only on the
motive for revenge, but also on a certain disparaging public attitude towards other racial, national,
ethnic or religious group s of people . As history taught us, a group which is intended to be
destroyed is usually treated as a group of people of smaller human v alues than a group to which
2Gotovina et al., Transcripts, 13 Feb. 2009, p. 15901.
2Latinica, directed by Denis Latin; available on http://www.youtube.com/watch?v=45DVwD2P8OI ; Judges’
folders, item No. 6. - 17 -
perpetrators belong. Distinguished Members of the Court, I am convinced that Serbs in Croatia in
1995 had such a treatment . My attitude originates from evidence produced in Annex 51 to the
Counter-Memorial; those are the stat ements which could provoke perpetrators to commit
genocide.
20. Thus, the Court can find how Šime Đodan, Special Envoy of the President of the
Republic of Croatia at a traditional folk festival, stated publicly that the Serbs had pointed heads
and probably also small brains 28, while President Tudjman himself stated for the national television
29
that he wa s happy because his wife was neither Serb nor Jew . In A ugust 1991, a Croatian
Parliamentarian Marjan Jurić, in his public statement in the Parliament , compared the Serbs with
30
vermin . Zvonimir Šekulin, a journalis t, repeated that comparison in the m agazine Globus in
1994, and also offended the orthodox Serb population by stating that a photo of Patriarch Pavle,
Head of the Serbian Orthodox Church, was “more pornographic than the photos of the biggest
whores” 31. Krešimir Dolenčić, Director of the Gavela T heater, in the m agazine Danas called the
Serbs “beasts from the East”, compared them with monkeys, stated that their culture is below the
primitive level and recommended that the Serbs “should either be held in captivity or destroyed” 32.
21. Mr. President, I think that the last statement that I quoted went beyond mere hat e speech.
That statement publicly and directly communicated the call to members of the general public at
large for destroying the Serbs. That was incitement to commit genocide. Nevertheless, neither one
of the mentioned persons has ever been called for responsibility for these discriminatory words
under any provision of the Croatian Criminal Code.
33
22. The Applicant did not deny that these speeches were made . Nonetheless, the
Applicant, for an unfortunate reason which cannot be quite understood, has tried to mitigate the
content of these statements by their context and timing factor . Tu quoque argument does not seem
appropriate here, because the Applicant, by invoking some evidence about the political propaganda
28RS, para. 634.
29
CMS, para. 431.
30CMS, para. 440.
31RS, para. 637.
32
RS, para. 635.
33APC, para. 2.12. - 18 -
of Slobodan Milošević unsuccessfully tried to equalize two patterns which have never been equal
in their intensity. In other words, we have not seen in this case the reliable evidence on the public
statement of any Serb by whi ch the Croatian people were treated like the Serbs in the statements I
have just quoted: as less than human.
2. Transcript of the Brioni Meeting as Evidence of Intent to Destroy the Group
of Krajina Serbs as such
23. Mr. President, allow me now to go i n medias res, to the key event of Operation Storm:
the meeting at the Brioni Island. The full transcript of the Brioni meeting has been produced to the
Court as Annex 52 to the Counter-Memorial. The relevant parts of the transcript have been quoted
both in the Counter-Memorial and the Rejoinder; the meaning of the words of Croatian President
35
has been explained, as well as their criminal consequences . Forty-four paragraphs of our written
pleadings have been dedicated to this meeting.
24. It is not dis puted that the Brioni meeting was a summit of “Croatia’s senior military
leadership” at which “the commander-in-chief of the armed forces . . . together with senior military
36
officials discussed the planning and launch of a military operation” known as Stor m . The
meeting was decisive for the conduct of Croatian troops in the upcoming days . At the very
beginning of the meeting, President Tudjman declared: “Gentlemen, I have called this meeting to
assess the current situation and to hear your views before I decide on what our next steps should be
in the forthcoming days” 37. The meeting was concluded with the following statement of
38
President Tudjman: “So agree in principle, in the spirit of what we have now discussed.”
25. The spirit of the meeting was expressed already in the introductory statement of
President Tudjman. He said: “Therefore we should leave the east [Eastern Slavonia, it means]
totally alone, and resolve the question of the south and north” , i.e., areas of Dalmatia and Lika
known as United Nations protected Sector South, and areas of Kordun and Banija known as United
Nations Sector North. “In which way do we resolve it? This is the subject of our discussion today .
34
See Memorial of Croatia (MC), paras. 2.62-2.66; RC, Ann. 106; APC, fn. 114.
35
CMS, paras. 1195-1204, 1414-1422; RS, paras. 692-717.
3RC, para. 11.41.
37
Brioni Minutes, p. 1; CMS, Ann. 52.
38
Ibid., p. 44. - 19 -
We have to inflict such blows that the Serbs will to all practical purpos es disappear”, and then he
added “that is to say, the areas we do not take at once must capitulate within a few days” . 39
26. At this point, the Applicant has raised the issue whether the words “to inflict such blows
that the Serbs will to all practical p urposes disappear” were related to the Serb forces that had to
“capitulate” or to the Serb population of U nited Nations Sectors North and South in general . The
Respondent has convincingly demonstrated that the words in question were not related merely to
the Serbian Army of Krajina. This is visible from the next statement of President Tudjman:
“[W]e must take those points in order to completely vanquish the enemy later
and force him to capitulate . But I’ve said, and we’ve said here, that they should be
given a way out here . . . Because it is important that those civilians set out, and then
the army will follow them, and when the columns set out, they will have a
psychological impact on each other.” 40
27. Thus, it cannot be taken that Tudjman was pres umably talking only about the Serbian
forces; he was talking here about the civilians and the army separately . Nevertheless, the
treatment of both was the same: the Serb army and the Serb civilians would be together in the
columns, they would have a psy chological impact on each other, and they both had to get out and
disappear. The Croatian President treated both the Serb forces and the civilians as the same enemy.
His language is clear and unambiguous.
28. This paragraph of the transcript does not s tand alone. As we presented in our written
pleadings, Tudjman was confident enough at the meeting to plan some psychological effects in
order to remove as many civilians as possible 4. That was confirmed by General Ante Gotovina,
Commander of the Split Mi litary District of the Croatian Army, who said that “civilians [were]
already evacuating Knin and heading towards Banja Luka and Belgrade” and “if [the Croatian
Army] continue this pressure”, there would not be so many civilians, “just those who have to st ay,
42
who have no possibility of leaving” .
29. Then, President Tudjman immediately expressed his concern whether an attack on Knin
was possible without hitting the U nited Nations Confidence Restoration Operation (UNCRO)
39
Brioni Minutes, p.2.
40Ibid., p. 15.
41RS, para. 705; Brioni Minutes, p. 23.
42
Brioni Minutes, p. 15. - 20 -
43
camp . By that statement, firstly, he showed how he understood the Gotovina’s term “to continue
pressure” on the civilians: by shelling . Secondly, his concern that the UNCRO camp could be
targeted wiped out all doubt, if any existed, that he talked exclusively about the legitimate militar y
targets. Not at all. Otherwise, he did not have a reason to warn his General that the UNCRO camp
had to be excluded from the shelling, because the UNCRO camp had never been a legitimate
military target. This part of the conversation was concluded by t he response of General Gotovina
who said: “At this moment, we can engage in extremely precise operations at Knin, systematically,
without aiming at the barracks in which UNCRO is located.” 44
30. Finally, Miroslav Tudjman, the President’s son, stated at the meeting that he expected
that when the Krajina Serb forces would be pulled out, the Governmental forces would “clear the
45
entire area” in ten days . Who would be cleansed then, when the Krajina forces had already been
pulled out?
31. Consequently, in our view, there is no doubt that Franjo Tudjman, his son Miroslav,
General Gotovina and others at the meeting were planning a forcible disappearance of the Serbs
from U nited Nations Protected Sectors South and North through the infliction of blows, the
continuing pressure, the vanquishing, no matter which words were used to express their intent. The
remaining question is whether these incriminatory words include the physical destruction of the
group, or merely its forcible expulsion. In other words, it is the question whether the plan for
ethnic cleansing envisaged at Brioni assumed also genocide as a tool to make Krajina ethnically
cleansed territory. Apart from the previous question, this one has not been raised by the Applicant,
for the reason that the Applicant denied any criminal characterization of Operation Storm, either as
genocide or the crimes against humanity . Nevertheless, our answer to this logical question is
positive: Tudjman and his subordinates assumed genocide, if necessary, as a tool o f the ethnic
cleansing planned at Brioni . That answer is confirmed by the words of the participants at the
meeting. Those were the statements vis- à-vis some specific actions, as the assault to the town of
Knin. Thus, President Tudjman speculated: “If we had enough [ammunition]”, he said, “then I too
43
Brioni Minutes, p. 15.
44Ibid.
45
Ibid., p. 19. - 21 -
46
would be in favour of destroying everything by shelling prior to advancing” . The words
“destroying everything” fully expressed his state of mind . If there was any doubt about the
meaning of the terms as “to inflict such blows”, “to all practical purposes disappear”, “to
completely vanquish the enemy” presuming that the Serb civilians also belonged to the
enemy that doubt now disappears.
32. The same intent was confirmed by General Gotovina who clearly expressed his readiness
to destroy Knin by the following statement: “Mr. President, at this moment we completely control
Knin with our hardware. That’s not a problem, if there is an order to strike at Knin we will destroy
it in its entirety in a few h ours . . .”7 This was an original interpretation of the meaning of
Tudjman’s words that the Serbs should to all practical purposes disappear by one of the key
participants of the Brioni meeting . This was how General Gotovina understood the words of his
commander-in-chief: as the destruction in its entirety.
33. On the basis of the previous statements, the Respondent believes that the Brioni
transcript is a direct evidence of the existence of intent to destroy the Krajina Serbs as such.
34. Yet, if any doubt still remains, I will continue to present the other circumstances of the
Brioni meeting and its consequences in order to convince the Court, on the alternative basis, that
there is only one possible conclusion that could be inferred from those circ umstances: Operation
Storm was planned and conducted with the intent to destroy the ethnic group of Krajina Serbs.
35. Firstly, in addition to the previous statements that, in our view, directly point out the
intent of the Croatian State and military le adership in Operation Storm to destroy Serbs from
Krajina, I would draw your attention to t he following words of President Tudjman at the Brioni
meeting by which he implicitly ordered a revenge toward the Serbs: “Accordingly, we should
provide for certain forces which will be directly engaged in the direction of Knin . And,
particularly, gentlemen, please remember how many Croatian villages and towns have been
48
destroyed, but that’s still not the situation in Knin today.”
46
Brioni Minutes, p. 22.
47Ibid., p.10.
48
Ibid. - 22 -
36. The revenge is a motive, not a proof for genocide per se . However, it is also an
important factor in the forming dolus specialis of the crime of genocide, in particular if it is
suggested by a Head of State and supreme commander of military forces during the war .
Immediately after these words, General Gotovina expressed his readiness to destroy Knin in its
entirety, as I have cited . These two complementary statements can be found on the same page of
the Brioni transc ript, namely on page No. 10. By his response, General Gotovina ac tually
confirmed what the meaning of the call for revenge should be in his mind, and what would be the
consequence, “if there is an order to strike at Knin” . I have not noticed that the Croatian President
denied this Gotovina’s understanding . Moreover, G otovina continued to speak: he described his
armed forces, with medium - and long-range missile systems, emphasizing that the forces heading
towards Knin were all from that area. He added: “They have reason to fight here and at this
49
moment it is difficul t to keep them on a leash.” This is clear: the understanding between the
supreme commander seeking revenge and his general was full and undisputed by any participant of
that meeting.
37. Secondly, the destiny of the Serb people of Krajina was further determine d by the
statement of President Tudjman that human rights should not be respected. Tudjman said:
“A leaflet of this sort general chaos, the victory of the Croatian Army
supported by the international community and so forth (Serbs, you are al ready
withdrawing, and so forth), and we are appealing to you not to withdraw, we
guarantee . . . This means giving them a way out, while pretending to guarantee civil
rights, etc.”50
38. “Pretending to guarantee civil rights” is one new expression from the wealthy arsenal of
the President’s attitudes on humanitarian law issues. Only someone very naive can leave the space
for doubt that the meaning of Tudjman’s words went to human rights such as, for example,
electoral rights, or freedom of movement of the Serb people in Croatia. The horrific circumstances
of that war clearly points out that his observation dealt primarily with human lives: “pretending to
guarantee civil rights” means a green light for the killing of those who decide to stay in the region.
39. All statements that I have quoted should also be evaluated taking into account the
position of the person making the statement, and that is my third additional argument. If the Head
4Brioni Minutes, p. 10.
5Ibid., p. 29. - 23 -
of State, who is also an undisputed national authority in Croa tia at the critical time, invited the
participants of the meeting, who were his subordinates, to remember what happened to their
kinfolks, to inflict such blows that the Serbs would to all practical purposes disappear, or to pretend
to protect rights of th e civilian population, those words were getting then its sharpest meaning .
This should take on a special importance.
40. Furthermore, if that Head of State was a promoter of the reconciliation with the Ustasha
movement, then it is not so strange that General Gotovina understood the President’s words
literally, in their blunt appearance . Gotovina got instructions from his commander-in-chief who
was well known in Croatia by his scientific book Wasteland of Historical Reality translated into
English as Horrors of War in which he tried to explain that genocide in history also had some
positive consequences as
“[bringing] about ethnic homogenization of some peoples, leading to more harmony in
the national composition of the population and state borders of individual countries,
thus also having possible positive impact on developments in the future, in the sense
of fewer reasons of fresh violence and pretexts for the outbreak of new conflicts and
51
international friction” .
41. Mr. President, according to my personal experience, whoever read this passage of
Tudjman’s book did it twice because a reasonable person cannot believe immediately in what is
written in his book . However, at the Brioni meeting, the participants knew very well who their
President was and what his ideology looked like.
42. The fourth additional argument may be the overall context in which the Brioni meeting
was held. That context was best described by Professor Puhovski, as I quoted earlier, the context in
which the majority on the Croatian side is convinced through the State propaganda that “the Serbs
are guilty as such and that they should be punished as such” 52. That was also the context of a
general prejudice that Operation Flash, which was conducted three months earlier, was a m ilitary,
political and international success of the Croatian Government , in spite of ethnic cleansing
committed during the offensive . “The kitten” from Maslenica that I mentioned at the beginning
53
should also be added to this context , as well as the promo tion of Mirko Norac, a Croatian war
51
Franjo Tudjman, Wastelands of Historical Reality , Nakladni zavod Matice Hrvatske, Zagreb, p. 163, in
Viktor Ivančić, Točka na U; CMS, Ann. 11.
52Gotovina et al., Transcripts, 13 Feb. 2009, p. 15901.
53
See para. 12 above. - 24 -
54
hero, but also the most responsible person for the war crimes in the Gospić area in 1991 and the
55
ethnic cleansing in the Medak Pocket in 1993 , to the rank of General and the Commander of the
Gospić Military District, which was directly engaged in Operation Storm.
43. Fifth, if one bears in mind this context of preparation for Operation Storm, the fact that
neither President Tudjman nor any other participant at the Brioni meeting called for respect for
international hum anitarian law is also significant for the weight that should be given to the
discriminatory statements in question.
44. Mr. President, I have so far dealt with the intent that is directly visible or at least that can
be convincingly inferred from the ver y text of the t ranscript from the Brioni meeting held on
31 July 1995. Furthermore, I will turn to the circumstances of Operation Storm and its aftermath.
Following a chronological order of my presentation, the Court will be provided with further facts
and evidence which will strongly confirm the meaning of the statements of the President of Croatia
at Brioni.
45. Thus, the intent to destroy the group of Krajina Serbs will be further confirmed by:
(a) the massive, widespread and systematic killing of Krajina Serbs by the Croatian g overnmental
forces during and after Operation Storm;
(b) statements of Croatian soldiers and officers;
(c) several statements by the Croatian high officials given ex post facto , which reflect their
criminal intent;
(d) legal measures imposed immediately after the operation to prevent the return of the Serb
refugees, which cannot be a proof of genocide per se, but can show, if taken in the context with
all other circumstances, that the target of Operation Storm was not on ly the Serbian Army of
Krajina or Krajina Police, but the Serb people as such, and accordingly, that the statements
given at Brioni could not relate exclusively to the Serb forces.
46. Mr. President, at this point I have a duty to emphasize that the ICTY , in Gotovina,
completely underestimated the meaning and significance of the Brioni meeting for the crimes
committed during and after the operation. The Government of the Republic of Serbia expects that
5See CMS, Ann. 41.
5See RS, Ann. 35. - 25 -
the principal Court of the United Nations finally finds a remedy for this untenable situation and
brings some sense of justice to the victims of Operation Storm and their families.
3. Geneva Negotiations
47. The Court has noted that in the written phase of these proceedings the Parties made some
efforts to explain what happened at the meeting in Geneva, held on 3 August 1995, three days after
the meeting at Brioni, and which side did not negotiate in good faith there: the Republic of Srpska
Krajina or the Republic of Croatia; Knin or Zagreb.
48. A key for understanding what happened in Geneva lays in the context of that event:
namely, that round of international negotiations was held after the meeting at Brioni Island, when
the criminal plan of President Tudjman had already been hammered. The Croatian President said
clearly at Brioni that the upcoming negotiations in Geneva would be only “a mask” for what he
prepared for the day after 56.
49. In light of his Brioni statement, there is no doubt that the conduct of the Croatian
Government at the Geneva negotiation s was in function of the fulfil ment of the criminal plan
known as Storm. It was Croatia who did not negotiate in good faith in Geneva . The next day, the
Government of Croatia commenced attack on the United Nations Protected Areas, contrary to
57
Security Council resolution 981 of 1995 and the peacekeeping régime established by it .
50. Significantly, the Applicant again has not made any comment, any single word, on the
quotation that Geneva would be merely “a mask” . Although, our colleagues from the other side
wrote many counter -arguments to show that the Krajina Serbs were not faithful negotiators and
even quoted a statement of Milan Martić, President of the Republic of Serbian Krajina, given on
58
2 August 1995 . Yes, it might be that Milan Marti ć was also not a faithful negotiator, but he did
not attack anyone on 4 August . He was attacked . Thus, we would be grateful to hear an official
position of Croatia towards the quoted statement of its former President in which he planned to
fraud the international community.
56
Brioni Minutes, pp. 2 and 32; CMS, Ann. 52.
57See Letter of the Secretary General to the President of the SecuriCouncil dated 7 Aug. 1995, UN doc.
S/1995/666; RC, Ann. 151.
58
RC, Ann. 161. - 26 -
4. Military Aspects of Operation Storm
59
51. Operation Storm began on 4 August 1995 at 5. 00 a.m. and was over by 8 August .
From the military point of view, the outcome of the operation was never in serious doubt . On the
one side were 150,000 soldiers 135,000 members of the Croatian a rmy and police, and 15,000
members of the army of Bosnia-Herzegovina while on the other were around 30,000 soldiers of
60
the Serbian army of Krajina . Accordin g to the public report of the United S tates Central
Intelligence Agency, available at the Peace Palace library, the battlef ield successes of the Croatian
army and the army of Bosnia-Herzegovina, who acted fully in accordance with the plan reached at
Brioni, were facilitated by structural weaknesses of the Serbian army of Krajina which did not have
enough combat formations to maintain the depth and mobility needed to contain a penetration of
61
the adversary .
52. The Croatian operation was conducted from four different directions . The attack from
62
the north went from Sisak and was aimed towards Petrinja and Kostajnica . The attack from
northwest went from Karlovci to Vojnić 63. The western attack moved from Gospić to Gračac,
64
Udbine and Plitvica lakes, supported by the army of Bosnia-Herzegovina on the east . Finally the
south direction of the attack started from the territory of Herzegovina and Dalmatia and was aimed
65
towards Knin and areas of Benkovac and Obrovac .
53. One of the ke y undertakings of the Croatian a rmy was immediate and co -ordinated air
strikes and sabotage missions by ground forces against the command and control facilities across
the Republic of Serbian Krajina . Another key event was the early capture of Knin, the capit al of
Krajina and a symbol of the Krajina Serbs’ rebellion agains t Zagreb, which was virtually
66
indefensible . According to the CIA Report, the previous Croatian army’s Operation, Summer 95,
59 Judges’ folders, item No. 7.
60
CMS, para. 1213.
61Central Intelligence Agency (CIA), Balkan Battlegrounds: A Military History of the Yugoslav Conflict
1990-1995 (Washington, 2002), Vol. I, p. 375; see more, pp. 367-376 (hereinafter “CIA Report”; available at the Peace
Palace Library).
62Judges’ folders, item No. 8a.
63Judges’ folders, item No. 8b.
64
Judges’ folders, item No. 8c.
65
Judges’ folders, item No. 8d. See also, CIA Report, pp. 368-370.
66Judges’ folders, item Nos. 9a & 9b. - 27 -
in which it took over the town of Grahovo in Western Herzegovina “effectively sealed Knin’s fate
before Storm got off the ground” 67. Knin was set under a heavy shelling from early morning on
4 August. The Krajina Government and the Army’s General Staff pulled out during the following
night to the village of Srb, some 35 km to the north- west 68. Knin fell in the morning of 5 August,
when the Croatian army came into the town which was almost empty of the population. That was
the key circumstance preventing the total destruction of the town, for which General Gotovina
69 70
clearly stated his readiness at Brioni . However, the fall of Gračac , a strategic point, on the same
71
day, formed part of the noose encircling the entire Serb military position .
54. Krajina Serbs were left with no other choice but to run before the Croat forces , leaving
virtually everything behind. As General Mile Mrkšić, Commander of the Serbian Army of Krajina,
testified before the ICTY, many Krajina soldiers left their units in order to assist their own families
72
leaving and as a result the units collapsed . The formation of columns in the areas that were most
in dang er from the Croatian forces quickly became a chaotic escape of the complete Serb
73
population of Krajina .
55. Croatian Defence Minister Gojko Šušak pronounced the operation complete as of 6 p.m.
on 7 August, when the Croatian Army reached its eastern borde rs with Bosnia -Herzegovina 74.
However, on 8 August Krajina’s General Bulat surrendered his forces that were remaining
encircled in the Banija region to the Croatian Army . The defeated soldiers and as many as
20,000 refugees from Kordun, the north- western part of Krajina, were allowed to depart Croatia,
escorted by the U nited Nations troops and the U nited States Ambassador Galbraith, as the CIA
reports: “driving overloaded cars, buses, trucks and tractors along a torturous route that ran
6CIA Report, pp. 374-75. See also, CMS, paras. 1184-85.
68
CIA Report, Vol. I, p. 371; judges’ folders, item No. 10.
6See Brioni Minutes, p.10.
7Judges’ folders, item No. 11.
7CIA Report, Vol. I, p. 371.
72
See Gotovina et al., Trial Judgement of 15 Apr. 2011, para. 1539.
7See CMS, paras. 1229-1236; RS, paras. 729-744.
7CIA Report, Vol. I, p. 374. - 28 -
through western and eastern Slavonia to the Federal Republic of Yugoslavia” 75. The images of
76
their desperate column became a symbol of the ethnic cleansing of Serbs from Croatia .
56. Mr. President, the Respondent noted that the Applicant stressed several times in these
proceedings in the written part of the proceedings the destiny of that last group of refugees,
77
in which only one person was murdered in the town of Sisak . In order to avoid any ambiguities,
I hereby declare that the Respondent does not consider that Cr oatian Army General Petar Stipetić,
who negotiated the surrender of the General Bulat’s 21st Corps of the Serbian Army of Krajina on
8 August, shared mens rea with President Tudjman and other generals who were at the Brioni
meeting. Firstly, General Stipetić did not participate in the discussion at Brioni, and secondly, it is
well known that he was brought into the battle subsequently with a task to reorganize the faltering
78
attack from the north . Indeed, the great majority of that last group of refugees reached Serbia
safely. However, the horrific destiny of those who were attacked in the previous days while being
in refugee columns in Sector North and Western Bosnia has never been seen by any world forum.
57. According to the Brioni Minutes, the Croatian leadership expected that the Government
of the Federal Republic of Yugoslavia, provoked by the attack to its kinfolk, order an assault to
Eastern Slavonia. The Krajina Serbs also expected a military protection from Belgrade . That did
not occur, and it was the main reason why some authors claimed that Knin fell in Belgrade. They
believe that Croatian g overnmental forces would never defeat them if the Yugoslav Army was
involved. On 5 August 1995, the FRY Supreme Defenc e Council held an urgent meeting . The
confidential minutes from that meeting, which in the meantime have been unsealed by the Tribunal
in the Perišić case, and also produced to this Court upon the request of the Applicant, reflect the
position of Belgrade at the critical time the position that the Federal Republic of Yugoslavia,
“under any circumstances”, should not have been “pushed into war” 79.
75
CIA Report, Vol. I, p. 374.
76Judges’ folders, item No. 12a.
77RC, para. 11.90; APC, para. 3.73.
78
CIA Report, Vol. I, p. 372.
79Note from the 40th enlarged session of the Supreme Defence Council held on 5 Aug. 1995, Strictly Confidential
No. 10-1, submitted to the Court by the letter of the Agent of Serbia dated 18 May 2011. - 29 -
5. Shelling
58. The killing of the members of the group of Krajina Serbs in Operation Storm
commenced in the dawn of 4 August 1995 by shelling Knin and other places . The Judge Agius’s
dissenting opinion in Gotovina notes that at least 900 projectiles fell on the town of Knin in just
one and a half days, in spite of the fact that there was no resistance coming from the town
itself . According to all eye -witnesses called by the ICTY Prosecutor to testify in Gotovina ,
the targets were both military and civilian.
59. In the Rejoinder, we used the subheading “Deliberate indiscriminate shelling of the
81
Krajina Serbs” on the basis of the findings of the ICTY Trial Chamber in Gotovina . Croatia
answered to this assertion in the Additional Pleading from the position of the General Gotovina’s
82
defence, rather than from the position of a State charged with genocide . The significance of the
shelling in this case should be evaluated in light of the existence of the intent to destroy the group
of Krajina Serbs as such, expressed at the Brioni meeting by President Tudjman and General
83
Gotovina, who pleaded for the total destruction of the Krajina Serbs . For such an analysis, which
is the sole discussion relevant for the subject -matter of this case, this shelling sh all be reviewed as
part of the widespread killing that occurred during Operation Storm . The shelling was part of the
plan to drive the civilians into columns with the military where they would be predictably attacked .
If we manage to demonstrate convinci ngly dolus specialis of the crime of genocide and we
believe that we do that pointing out the statements of the Croatian leadership at Brioni, as well as
the consequences of those words then, the Croatian arguments concerning the issues like the
legitimate military targets, artillery impacts or margin of errors, rewritten from the Gotovina’s
pleading before the United Nations Tribunal are in vain.
60. The Respondent noted without satisfaction that the majority of the Appeals Chamber of
the ICTY in its judgement of 16 November 2012 accepted the arguments of the Gotovina’s
84
Defence, reversed the Trial judgement of 15 April 2011 and released the Storm Generals . Yet,
80
Gotovina et al.; dissenting opinion of Judge Carmel Agius to the Appeal Judg ement of 16 Nov. 2012, para. 21.
81
See Gotovina et al., Trial Judgement of 15 Apr. 2011, paras. 1906-1911.
82APC, paras. 3.28-3.45.
83
See para. 32 (above).
84
Gotovina et al., Appeal Judgement of 16 Nov. 2012. - 30 -
that decision does not have a direct connection with the subject -matter of our case befor e this
Court. Nevertheless, it should be said that Serbia cannot agree with the opinion of the three judges
of the ICTY Appeals Chamber. It rather agrees with the opinion of the five ICTY judges (i.e., the
unanimous Trial Chamber plus the Appeals Chamber dissenting members) who believed that
Gotovina and Markač were liable for their roles in the joint criminal enterprise directed to the
forcible expulsion of the civilian population by the indiscriminate shelling of civilian targets.
61. I will quote onl y Mr. Andries Dreyer, U nited Nations Security Co-ordinator in Sector
South, one of the eye-witnesses who testified in Gotovina. He stated:
“On your question was anywhere in Knin safe at the time while I was driving
around for the duration of the 4th of August, my answer to your question would be no.
What I did over here is I was really trying to be as specific as I could . What I should
have done is I should have taken a big pen and drawn a circle right around Knin and
not specify and say: this is the area of impact. Because that was the area of impact .
Knin itself, in all directions where I traveled, at any given time during the 4th of
August, my life and the life of my staff members were at peril.” 85
The majority of the ICTY Appeals Chamber ignored this statement, as well as many others which
described the situation in Knin on 4 August in a similar way, but this Court can form its own view
on this issue, as far as it is necessary for the subject -matter of the case based on the Genocide
Convention. I will rather turn to the more important fact, to the consequences of the shelling, that
is to say, to the victims.
62. The ICTY witness Ms Mira Grubor, a civilian, stated that a refugee convoy was directly
hit by a bomb in the vicinity of the U nited Nations camp. She said: “When we nearly reached
UN camp, just as soon as we crossed [the] Krka River, I saw a bomb that fell onto a convoy of
vehicles and tractors where people were waiting obviously for the bombing to cease, to pass
through the town.” 86 Her statement was corroborated by the testimony of witness Hill 8. That was
the United Nations camp for which President Tudjman at Brioni expressed his concern, while
General Gotovina was calming him down stating that his units would be engaged in “ extremely
85
Gotovina et al., Transcripts, 17 Apr. 2008, pp. 1740-1741.
8Gotovina et al., Transcripts, 14 Apr. 2008, p. 1397.
87
Gotovina et al.,Transcripts, 27 May 2008, p. 3748; Rejoinder of Serbia (RS), Ann.44. - 31 -
precise operations at Knin, systematically, without aiming at the bar racks in which UNCRO is
88
located” . Hence, this is the proof that the refugee column was hit deliberately.
63. Canadian General Andrew Leslie, Chief of Staff of the U nited Nations Sector South,
testified in Gotovina that on 5 August he saw between 15 to 20 dead people along his route to the
Knin hospital, while “large quantities of dead, men, women and children, stacked in the hospital
89
corridors in a pile” . The witness clarified that t here were between 30 and 60 dead bodies and
around 25 patients in “absolutely critical condition” 90.
64. His statement was corroborated by the testimonies of witness Hill, the U nited Nations
Military Police Commander 91, and witness Dreyer, a security co -ordinator , who both saw the
corpses in the streets of Knin.
65. In its Additional Pleading, Croatia answered that the statements of M s Grubor, Mr. Hill
and General Leslie, were “clearly inaccurate”, because “the Trial Chamber’s judg ement in
Gotovina does not identify a single death or injury resulting from the shelling of Knin” 93.
66. The fact that the ICTY Trial Chamber did not identify a single death or injury resulting
from the shelling of Knin does not automatically mean that the statement of General Leslie is
inaccurate, let alone false, as the Applicant implied. This Court will have an opportunity to take its
own view in relation to his testimony, while I will only observe that neither the ICTY identified by
names and other personal data the victims of Srebrenica in the Krstić case nor this Court dealt with
such identification in the previous case of the Application of the Genocide Convention.
67. General Leslie, whose impartiality is not in doubt, was in a position to see many dead
people in Knin and to testify on that before the U nited Nations Tribunal. He could not identify
them. After all, he was under shelling. Does it really mean then, as Croatia implied, that there was
not a single victim? This would be a strange conclusion: unidentified victims are still the victims.
However, hard work through many years done by the Centre for Collecting Documents and
88Brioni Minutes, p. 15.
89
Gotovina et al.,Transcripts, 22 Apr. 2008, p. 1967.
90Ibid., p. 1968.
91Gotovina et al.,Transcripts, 27 May 2008, p. 3748; RS,Ann. 44.
92
Gotovina et al., Transcripts, 17 Apr. 2008, pp. 1739-1740.
93APC, para. 3.32 (i). - 32 -
Information Veritas scored in the identification of 70 victims who were killed just in the town of
Knin in Operation Storm (36 civilians, 31 soldiers and 3 pol icemen) , the majority of whom must
be the victims of shelling. Thus, these two statements, Leslie and Štrbac, appear as consistent and
complementary. They are also supported by the statements of the ICTY witnesses Grubor, Hill and
Dreyer, as well as by the ICTY protected witness 136, who was a U nited Nations interpreter at the
critical time. That witness gave an account of unidentified graves, row by row, within the Knin
95
cemetery .
68. Apart from these testimonies, it would be very interesting if the Applicant could clarify
how it comes to the allegation that the ICTY Trial Chamber calculated that 94.5 per cent of shells
were fired at legitimate military targets 96. We could not find such data in the Trial judgement. If
not for the subject -matter of th is dispute, that clarification would be important for the
understanding of the Applicant’s approach to the principle of bona fide presentation of the case
before the principal judicial organ of the United Nations.
69. Other places of the Republic of Serb ian Krajina were also exposed to heavy artillery
attacks. According to evidence presented in Gotovina at al. concerning United Nations Sector
South exclusively, those were the small towns of Benkovac, Obrovac, Gračac, Kistanje, Uzdolje,
Kovačić, Plavno, Polača, Buković, and many villages 97. The ICTY Trial Chamber in Gotovina
98
found that at least 150 projectiles fell on Benkovac and its immediate vicinity on 4 and 5 August
and that no fewer than 150 projectiles fell on Gračac and its immediate vicinity on
99
4 August 1995 . The Trial Chamber also made no finding of resistance coming from Benkovac,
Gračac and Obrovac 100.
94
Statement of expert witness Savo Štrbac submitted to the Court on 1 October 2013 (6.9).
95Gotovina et al., Transcripts, 13 Mar. 2008, p. 644; RS, Ann. 49.
96APC, paras. 3.32 (ii.) and 3.40.
97
Gotovina et al ., testimonies of witnesses Jovan Dopudj, 8 July 2008, Transcripts, pp. 5980– 5981, 6000-6001;
Sava Mirković, 25 Aug. 2008, Transcripts, p. 7417; Vida Gaćeša, 15 May 2008, Transcripts, pp. 2886 and 2898 –2899;
Herman Steenbergen, 30 June 2008, Transcripts, p. 5416; also see Reynaud Theunens, Expert report: Croatian Armed
Forces and Operation Storm, Part II, p. 188; CMS, Ann. 64.
98
Gotovina et al., Trial Judgement of 15 Apr. 2011, para. 1916; see more, paras. 1914-1945.
99
Ibid., para. 1928.
100Ibid., paras. 1914-1945. - 33 -
6. Attacks on refugee columns
70. The exodus of the Krajina population began with the indiscriminate shelling that forced
the civilians to run away from the line of fire that was gradually moving forward. According to the
Report of the Croatian Helsinki Committee for Human Rights, the Serb population left U nited
101
Nations Sector South almost entirely until the end of Saturday 5 August , while the inhabitants of
Sector North started to leave the area between 6 and 8 August 10. The maps that you can see on the
screen, prepared by Veritas, show the directions of the withdrawal of the refugee columns and their
gradual, daily movement towards the east 103.
71. How these columns were formed and how they were attacked it was described
authentically by witness Boris Martinović, who gave the statement in 1997 before the domestic
court in Banja Luka, Bosnia-Herzegovina. His statement was produced by Serbia as an affidavit 104
105
and cited in the Rejoinder . I would like once again to draw your attention, distinguished
Members of the Court, to its main points.
106
72. Witness Martinović reported that the attack of the Croatian Army on the town of Glina
in the region of Banija 107, United Nations Sector North, had been preceded by the heavy shelling of
the town and its surroundings, forcing the local population to leave their homes and seek shelter in
the direction of Dvor -upon-Una 108, at the border between Krajina and Bosn ia-Herzegovina. He
stated that the shelling had been very intense and even before the population left their homes, there
had been victims. The shelling had been an indication that the Croatian infantry would launch an
attack. That had been a reason why convoys of people fled the area . The witness emphasized that
the civilian population had not being fleeing; they had being actually retreating . They had used
passenger cars, freight vehicles, tractors and horse- drawn carts, while many of them had be en
101
Croatian Helsinki Committee for Human Rights, Military Operation Storm and It’s Aftermath (sic) , Zagreb,
2001, p. 20 (hereinafter “CHC Report”; available on http://icr.icty.org/LegalRef/CMSDocStore/Public/English/
Exhibit/NotIndexable/IT-06-90/ACE81106R0000326368.pdf).
102
Ibid.,p. 5.
103Judges’ folders, item No. 13 ((a), (b), (c), (d), (e), (f)).
104RS, Ann. 53, para. 733.
105Para. 733.
106
RS, Ann. 53.
107Judges’ folders, item No. 14 (a).
108Judges’ folders, item No. 14 (b). - 34 -
walking because they had no mean s of transport. Convoys of refugees fleeing Knin and Kordun
had joined them and the entire convoy had become very long. As the convoys moved on, Croatian
warplanes were fl ying over, causing panic on the ground. The convoy had been shelled by the
Croatian Army at Brezovo Polje, some 20 k m away from Glina. He had seen six bodies of killed
civilians there. The second shelling of the convoy had occurred when they had been close to the
109
place called Žirovac .
73. This statement does not stand alone . Many details about the numerous attacks on the
refugee columns in Banija, on the road between Glina and Dvor on 7 and 8 August can also be
found in other affidavits produced by the Respondent . Those are the statements of
110 111 112 113
Mirko Mrkobrad , Božo Ivanović , Dušanka Mraović , and another four witnesses , among
whom are those who were visited and interrogated by the Croatian Police in 2012 in relation to the
statements submitted by Serbia. These witnesses reported to the domestic courts infor mation
concerning the attacks on the refugee columns, as well as the executions conducted by the Croatian
Army and the Fifth Corps of the Army of Bosnia -Herzegovina. Their statements are vivid
first-hand accounts given one or two years after the horrific massacre they survived . Those
statements were taken fully in accordance with the domestic procedural rules, which were applied
at that time in the countries of the former Yugoslavia . I respectfully invite the Court to accept their
statements as credible and reliable. One of those witnesses, Mr. Mrkobrad, was called by Serbia to
be a witness in these hearings.
74. The attacks on the civilians and withdrawing soldiers on the road between Glina and
Dvor were also reported by the United Nations Humanitarian Crisis Cell Sitrep A Compilation
of Human Rights Reporting at the entries for 7 and 8 August 11, as well as by many
115
non-governmental organizations, including the Human Rights Watch .
109Judges’ folders, item No. 14 (c).
110
RS, Ann. 52.
111RS, Ann. 55.
112RS, Ann. 60.
113
RS, Anns. 54, 56, 58 and 59.
114CMS, Ann. 55.
115Human Rights Watch’ Report, Impunity for abuses committed during Operation Storm, and the denial of the
right of refugees to return to the Krajina , Aug. 1996, Vol. 8, No. 13 (D), pp. 11-12; available at:
www.hrw.org/legacy/reports/1996/Croatia.htm. - 35 -
75. The Croatian Helsinki Committee for Human Rights the CHC in its public report
“Military Operation Storm and Its Aftermath” published in Zagreb in 2001, reported as follows:
“A great number of victims were recorded in the refugee column in the region
of Banija, which was repeatedly cut off by shelling . . . From some parts of Kordun
inhabitants started to leave between August 6 and 8. Thus, in this territory the greatest
number of persons injured in a refugee column was recorded. Between August 6
and 9 1995 the column was the target of airplanes and tanks, as wel l as attacks from
some individuals from the Croatian Army and the Fifth Corps of BH Army . These
attacks killed and wounded great number of persons and individual executions of
civilians moving in the columns were also carried out.” 116
76. This organization reported four major attacks on the civilians that occurred within the
territory of United NationsSector North, near the places called Glina, Žirovac, Maje and Cetingrad.
The CHC members interviewed many survivors of these attacks. Their statements were included
into the report, and the Respondent was not hesitant to refer to these sources in the
Counter-Memorial 11. They support the other evidence, and together with the affidavits, give a
dramatic account on the criminal acts committed between Glina and Dvor.
77. According to the data collected by the NGO Veritas, at least 189 people were killed in
several attacks on the convoys on the road Glina -Dvor 118. Their names are recorded in the List of
the Victims of Operation Storm which is permanently available in English on the Veritas
website 11. Among these victims two thirds were civilians . In the place called Žirovac, 67 victims
have so far been recorded by Veritas, out of which there were 43 civilians, with 21 women among
them, 23 soldiers and one Krajina policeman . The mortal remains of only 17 victims of Žirovac
have so far been exhumed and identi fied by the Croatian authorities, while all others are still
120
registered as missing .
78. Distinguished Members of the Court not even one person has ever been convicted for
the massacre of the refugees on the road between Glina and Dvor, although it is w ell documented
11CHC Report, pp. 215-216.
117
CMS, paras. 1244-1246, 1248-1256.
11Statement of expert witness Savo Štrbac submitted to the Court on 1 Oct. 2013 (6.8).
11Http://www.veritas.org.rs/wp-content/uploads/2013/02/Oluja-spisak-direktnih-zr….
120
Statement of expert witness Savo Štrbac (6.8). - 36 -
who were the Croatian units operated in the area 121. The ICTY has never accused anyone for this
massacre.
79. The attacks to the refugee columns occurred systematically at the other places as well .
Witness Božo Šuša, the statement of whom also forms an integral part of the oral proceedings,
testified as an eye- witness on the execution of 15 refugees in the town of Knin near the local
catholic church on 5 August 1995. These old people lost their way and met the Croatian infantry
entering Knin. The execution was immediate and merciless 122.
80. Witness Sava Utržen gave her statement to the domestic court in Prijedor,
Bosnia-Herzegovina in 1997. She reported that she had seen Croatian soldiers intercept ing a
convoy of civilians fleeing Knin on the tractors on 5 August . Four tractor drivers were killed and
their bodies were thrown into the river. She also said that she had seen afterwards Croatian soldiers
bringing a group of Serb soldiers, brutally bea ten and taken to the barracks. Beside the barracks
she had seen many dead bodies of civilians 12.
81. Witness Marija Večerina testified in Gotovina that a group of refugees were attacked at
the place called Oćestovo in the Knin municipality on 5 August. After a short detention, her son
124
Stevo Večerina and other five men were executed . The names of these victims are recorded by
Veritas.
82. Another three ICTY witnesses in Gotovina Dusan Dragićević and protected witnesses
P-001 and P-013 testified that, on the same day, a group of at least 20 refugees from the village
of Polača were attacked by Croatian soldiers at the place called Kovačić. In this incident three
Serbs were killed and at least three wounded, while the others managed to run away into the nearby
forest 12. There is no one single conviction for any of these crimes.
83. The attacks to the refugee columns did not cease even after the refugees managed to pass
the Croatian border. The ICTY protected witness P-056 126, as well as two witnesses the statements
121Statement of expert witness Savo Štrbac (6.8).
122
Statement of witness Božo Šuša submitted to the Court on 1 Oct. 2013.
123RS, Ann. 61.
124Gotovina et al., Transcripts, 17 July 2008, pp. 6716-6722; RS, Ann.47.
125
Gotovina et al., Trial Judgement of 15 Apr. 2011, paras. 313 – 333.
126RS, Ann. 51. - 37 -
of whom Serbia produced to the Court as affidavits 12, testified about the airplane attack on the
refugee column near Petrovac in Bosnia- Herzegovina, at the place called Bravsko, in the area also
known as Medeno Polje. According to their statements and the data collected by Veritas, in this
air-attack nine Serbs were killed, among them four children, while tens were wounded. I will later
come back to the attacks on the refugee columns that the Croatian army conducted on the territory
of Bosnia-Herzegovina.
84. Mr. President, these massacres confirm the real meaning of the notorious words of
Croatian President at the Brioni Island: “ We have to inflict such blows that the Serbs will to all
practical purposes disappear.” There was no military need to attack the fleeing columns of hors de
combat and civilians. As we stated in the Rejoinder, the columns were attacked for a sole reason:
to destroy the ethnical group living in Krajina . These attacks sent a clear message to those
surviving that their return was not possible.
Mr. President, at this point I would kindly ask you for a short break.
Mr. PRESIDENT: Yes, I understand. You deserve a break even more than Members of the
Court, this morning, as you still have some 85 minutes to plead. The sitting is suspended for
15 minutes.
Mr. OBRADOVIĆ: Thank you, Mr. President.
The Court adjourned from 11.25 a.m. to 11.40 a.m
The PRESIDENT: Please be seated. The hearing is resumed; Mr. Obradović, you may
continue.
Mr. OBRADOVIĆ: Thank you, Mr. President.
7. Mass killing of Serbs who remained in Krajina
85. The fear of the people running away from Krajina was fully justified by the horrific
destiny of those who decided to stay be hind, waiting for the Croatian governmental troops. As the
12RS, Anns. 65 and 66. - 38 -
Report of the U nited Nations Secretary-General of 18 October 1995 states, the number of those
128
Krajina Serbs was extremely small . Most of them were elderly and disabled persons who could
not escape with the others. However, according to many sources of evidence, these people were
slaughtered by Croatian forces en masse.
86. When several Serbs from the village of Golubić near Knin decided to end fleeing and
return to their village, they stopped at a place called Radljevac to take some fuel. They were found
there by Croatian soldiers who opened fir e without any explanation and killed all seven of them .
This incident was recorded by the Croatian Helsinki Committee for Human Rights 129. The
executions continued next day at the same place. Veritas has recorded that on 4 and 5 August ten
civilians and three prisoners of war were executed in the village of Radljevac. Their names, as well
as the names of all other victims that I will further mention, are listed in the statement of the expert
witness, Savo Štrbac 130.
87. However, even if the victims from R adljevac managed to reach their village of Golubić,
the destiny for them would be the same . According to Veritas, the Croatian a rmy conducted
cleansing of that village on 6 August . At least 15 Serbs were killed in Golubić on that day, while
the 16th inhabitant committed suicide . Those were literally all who were found in the village by
the Croatian soldiers 131. This is how the Croatian Helsinki Committee for Human Rights described
the destiny of some of them in its 2001 report:
“Nikola Panić, born 1935, disabled, killed on August 6, 1995 in Golubić. His
head was found 50 meters away from the murder spot . Allegedly soldiers played
football with his head. The corpse of Marija Banjanin, 89 year old from Gračac, was
found with her head cut off . The head was found without eyes . NN(f), around
74 years, was found tied with a fishing net. The automobile tire was found around her
neck, which seemed burned. In the vicinity of Golubić, UN registered a dead man and
women. The man’s nose and ears were cut off.” 132
The ICTY Prosecutor did not deal with these incidents . No one has ever been convicted for these
crimes before the domestic courts in Croatia.
128
The situation in the occupied territories of Croatia , Repo rt of the Secretary-General, 18 Oct.1995,
UN doc. A/50/648, para. 27.
129
CHC Report, p. 53.
13Statement of expert witness Savo Štrbac submitted to the Court on 1 Oct. 2013 (6.11.7).
131
Ibid., (6.11.6).
132
CHC Report, p. 47. - 39 -
88. On the other side, three witnesses in Gotovina testified on the brutal executions of the
remaining inhabitants of the Uzdolje village on 6 August, also in the Knin municipality. The Trial
Chamber referred to their statements as reliable and trustworthy . According to these witnesses,
seven persons were killed and 200 houses were burnt by the soldiers of t he Croatian army. Two
eye-witnesses of this execution protectedwitness P-067 who was wounded in this massacre, and
witness Dragutin Junjga who managed to escape before the execution took place, found shelter in
the mountain area behind the village. All the victims of the Uzdolje massacre were elderly people,
133
who were found on the road. They did not resist Croatian soldiers in any way .
89. In the village of Mokro Polje near Knin, the Croatian soldiers also killed six Serbs on
134
6 August 1995: four refugees they met in the village, and two old women . Witness Ilija Babić,
for whom Croatia did not wish to cross-examine, survived the massacre, hidden in the compound
of his house. The Croat soldiers killed everyone who was found in the village . No one has ever
been accused of this massacre.
90. According to the Croatian Helsi nki Committee for Human Rights r eport, the massive
killings of the Krajina Serbs were also committed in the following Dalmatian villages:
Strmica (15 victims) 135; Oton (8 victims) ; 136 Vrbnik (9 victims) ; 137 Žagrović (16 victims) ; 138
139
Ivoševci (14 killed and 10 missing persons) ; and many others.
91. The Croatian a rmy applied the same pattern of conduct in the Lika region. On
4 August 1995, 14 inhabitants of the village of Kijani , near Gračac, decided to stay at their homes
waiting for the Croatian troops, while all others were leaving the village. The remaining villagers
were killed, all of them . The ICTY witness, Mile Sovilj, stated before the Trial Chamber in
Gotovina that his father , Vlade, did not wan t to leave the village because he had heard r adio
announcements of President Tudjman’s proclamation that people should not leave their homes as
13Gotovina et al., Trial Judgement of 15 Apr. 2011, paras. 489-505.
134
Statement of witness Ilija Babić submitted to the Court on 1 Oct. 2013. See, also, statement of expert witness
Savo Štrbac (6.11.8).
135
CHC Report, p. 38.
13Ibid., p. 40.
13Ibid.
138
Ibid., pp. 45-47.
13Ibid., pp. 45, 150-151. - 40 -
nothing would happen to them . Ten days later, his son , Mile Sovilj, reported to the Red Cross in
Serbia, UNPROFOR and Veritas, that his father had disappeared . The witness later heard that his
father was killed by Croatian forces on 8 August 1995, along with all the others who had remained
140
behind in Kijani .
92. According to a Croatian identification form, a completely burned body, numbered 302,
was recovered from Bruvno, Gračac municipality, on 12 August 1995, and buried in a local
cemetery in Gračac. Body G04/014B, exhumed with a metal tag marked “302” from a cemetery
near Gračac on 3 June 2002, had, among other injuries, a gunshot injury to the trunk, which was
found by a forensic pathologist to be the cause of death. In 2004, Croatian authorities in Zagreb
identified by DNA analysis body G04/014B, exhumed from Gračac cemetery, as Vlade Sovilj, born
141
in 1931 .
93. Although the ICTY Trial Chamber found that the evidence indicated that Vlade Sovilj
had been killed by a gunshot to his trunk on or arou nd 8 August 1995 in Gračac municipality, it
considered that the evidence was insufficient regarding the circumstances under which or by whom
Vlade Sovilj was killed . There was no survivor of the Kijani massacre, as was also the case in
many other Krajina places during Operation Storm . The Trial Chamber was unable to draw any
conclusion regarding the identity or affiliation of the perpetrator, and accord ingly it did not further
consider this incident in the course of t he indictment against Croatian g enerals 14. The killing of
another 13 inhabitants of Kijani was not even examined by the ICTY Prosecutor.
94. Does it mean that the massacre did not occur? I do not think that such a conclusion can
be inferred by anyone who is faithful and reasonable . Without information as to the affiliation of
the perpetrators, the Criminal Tribunal dealing with the accusation of one military officer
(Gotovina) and one police officer (Markač) could not come to any finding beyond reasonable doubt
concerning their personal liability for the specific criminal incident . Yet, this is not a case of the
individual criminal responsibility; the subject- matter of this case, distin guished Members of the
Court, is the State responsibility . There is no doubt that the crime was committed on Croatian
140
Gotovina et al., Trial Judgement of 15 Apr. 2011, para. 257. See, also, statement of witness Mile Sovilj and
statement of expert witness Savo Štrbac both submitted to the Court on 1 Oct. 2013.
14Gotovina et al., Trial Judgement of 15 Apr. 2011, para. 258.
142
Ibid., para. 259. - 41 -
territory after the fall of Krajina. There is no doubt that there was no military fighting on 8 August
and thereafter in the Lika region 143. The village of Kijane , at the critical time, was under effective
144
and exclusive control of the Croatian armed forces , nevertheless whether they were military or
police units. This leads us to the unavoidable conclusion that Croatia is responsible for this
violation of international humanitarian law that occurred in the village of Kijane.
95. On the other side, the execution of the remaining villagers of Oraovac in the municipality
of Donji Lapac by the Croatian a rmy was proved in Gotovina et al. beyond reasonable doubt .
When the Croatian army entered the village on 7 August, five out of six remaining inhabitants were
arrested. One of the arrested, Milan Ilić, managed to escape, while the other four, including his
brother Marko, were executed. Hidden in the bushes, witness Milan heard eight shots: two bullets
145
for each of the victims . The sixth inhabitant of Oraovac was an old immobile woman. Her name
also appears today on the Veritas list of victims of Operation Storm.
96. For the purpose of this case, I am fully aware that one can say that the number of victims
in the village of Oraovac was small: four or five. Yet, such an observation has only a rel ative
significance for our case . Firstly , if we take a deeper look to the events, we will see that the
killings in all villages that I have mentioned, as well as in many others, were committed on the
same route of the Croatian forces, in the same killing operation. That happened in the course of a
couple of days. Thus, these executions should not be observed as isolated incidents.
97. Secondly, there is no doubt that the perpetrators in Oraovac had intention to kill all
remaining Serbs in the village. They executed four victims, while the fifth, Milan Ili ć, skilfully
escaped from the executors. Does anyone have any reasonable doubt what would happen if
15 Serbs remained in the village? Or 115? Some technical questions of the execution must ha ve
been deliberate by the perpetrators in the last case, and w e cannot speculate how they would solve
the problem, but nonetheless, there is no doubt that the perpetrators from Oraovac, as well as from
many other slaughter places, clearly showed their intent to kill all Serbs found in the villages.
143
See para. 55 above.
14Gotovina et al., testimony of witness Peter W. Galbraith, Transcripts, 23 June 2008, p. 4947, lines 19-25.
145
Gotovina et al., Trial Judgement of 15 Apr. 2011, paras. 210-218. - 42 -
98. Nevertheless , the ICTY Appeals Chamber reversed the Trial judgement in
Gotovina et al.: no one has been convicted for the massacre of innocent civilians in Oraovac, as
well as no single perpetrator has ever been convicted for the massacre in Kijani.
99. A massive execution of civilians in the mountain village of Komić , in the municipality of
Titova Korenica, also in the Lika region, has never found its place in any international or domestic
indictment. Seven Serb peasants, who stayed peacefully at their homes, were brutally killed. Some
of them were burnt together with their houses . The others managed to escape to the hills around
the village 14. This is also a fact to which I have a duty to draw the attention of the Court . Krajina
has a specific topographic terr ain: it is a mountain area where many hamlets are difficult to be
approached, where the houses were not one nearby another. Shots in one hamlet were heard by the
inhabitants of the others who have enough time to escape to the hills and forests . These images of
the Krajina region 147 explain how the cleansing operation of the Croatian a rmy has not resulted in
more victims. Ms Jela Ugarković, one of the Komić survivors, gave her witness statement on that
horrific event in these oral proceedings.
100. All the same, although the municipality of Gračac was among the places recorded by
the ICTY indictment in Gotovina et al. as a scene of the systematic and massive murders, the
murder of four inhabitants of the village of Glogovo of that municipality was not exa mined by the
Prosecutor in the course of th e trial against three Croatian g enerals. When Boris Jakšić, on
7 August 1995, went from the mountain pasture down to the village, Croatian soldiers told him to
invite other shepherds to come downhill in order to obtain new identification documents . Those
who accepted this invitation and came later to Glogovo were killed . A witness of this event,
Dragica Petrović, the wife of the victim Rade Petrović, passed away in 2001. In the meantime, the
NGO Veritas had recorded her statement 148.
101. Veritas also reports that twelve civilians remained in the village of Doljani , in the
municipality of Vrhovine. Those were the old persons, many of whom were ill or disabled. During
146
Statement of witness Jela Ugarković submitted to the Court on 1 Oct . 2013. See, also, statement of expert
witness Savo Štrbac (6.11.2).
14Judges’ folders, item No. 15 (a), (b) and (c).
148
Statement of expert witness Savo Štrbac (6.11.3). - 43 -
August 1995, the Croatian a rmed forces killed them all in their houses or nearby . Many of them
149
were burnt with their houses .
102. All these crimes in the Lika region were also recorded in the 2001 Report of the
Croatian Helsinki Committee for Human Rights . In addition, CHC reported that eight Se rbs were
killed in the village of Zalužnice in August 1995 150. According to the Veritas data, another 12, old
Serbs, were executed in the village of Zrmanja, in the hamlets called Gudura, Nadvrelo and
Palanka 151. An average age of the Zrmanja victims was 71, while in the case of Doljani it was 67.
103. Mr. President, distinguished Members of the Court; in my presentation of the killing of
the Serbs who decided to stay in Krajina, I have been so far dealing with the destiny of the
remaining inhabitants of United Nations Sector South only. The map that you can see now on the
152
screen is made by the ICTY Prosecutor . It shows the places of killings red dots examined
153
in the Gotovina et al. trial. However, the following map, prepared by our legal team , shows the
places of executions that I have pointed out or I am going to point out today . The obvious
difference among these two maps can give you insight about the difference between the two cases.
104. As you can see on the second map, the killing of the inhabitants who stayed behind the
refugees’ columns was committed also in U nited Nations Sector North. Thus, the CHC 2001
report gives information, inter alia, about the executions of civilians between 4 and 6 August in the
Duga Resa municipality, the region of Kordun. On 5 Augus t, six members of the Croatian a rmy
killed five victims in the house of Nikola Dmitrović in the village of Donji Skrad. Four of those
victims were women. Another woman born in 1931, who escaped the massacre on 5 August, was
154
found next day by the Croatian soldiers . She was raped and thrown into a well where she died ,
while the sixth victim, a woman born in 1905 was also killed in Donji Skrad on 5 August 155.
CHC reports also about a murder of five civilians on 8 or 9 August in the village of Čremušnica, in
149Statement of expert witness Savo Štrbac (6.11.4).
150
CHC Report, p. 51.
151
Statement of expert witness Savo Štrbac, (6.11.4).
152Judges’ folders, item No. 16.
153Judges’ folders, item No. 17.
154
CHC Report, pp. 236–237.
155Ibid.; see, also, statement of expert witness Savo Štrbac(6.11.1). - 44 -
the m unicipality of Vrginmost, as well as of five burnt corpses found in the village of
Bijeli Klanac.
105. According to the Veritas list of victims, in the region of Banija, the Croatian a rmy
entered the village of Luščani near Petrinja o n 6 and 7 Aug ust 1995 and killed at least 11 Serbs,
everyone who were found there 15, while on 7 and 8 August, in Šaš, the municipality of Kostajnica,
157
six civilians who remained at home were killed .
106. The killing of the Serbs continued long after Operat ion Storm was finished. According
to the 1996Human Rights Watch report,
“[l]ocal human rights monitors report [ed] that an estimated eighty elderly Serb
civilians [had been] executed in the months from November 1995 to April 1996, long
after the Croatian government had asserted control over the region and promised it
158
would guarantee the safety of the Serbs living in the Krajina area” .
107. Some more light was dropped on these aftermath crimes, like the massacres perpetrated
159
in Sector South, in the vill ages of Grubori the hamlet of Plavno Gošići, and Varivode ,
primarily due to the free movement of the U nited Nations troops which was re -established from
160
9 August 1995 onwards, upon the pressure of the international community . Thus, the UNCRO
investigation teams could record some consequences of the subsequent crimes on their video tapes .
The United Nation video material found its place later in the documentary called “Storm over
Krajina”, which was admitted into evidence in Gotovina 161. Members of the Court, I would like to
kindly invite you to take your earphones. [Video on]
Transcript:
“We visited the Plavno valley yesterday, to meet with a group of residents in
one town there, and we observed that across the valley another town was apparently
on fire. There was huge plume of smoke, and so we visited that town in the afternoon,
156Statement of expert witness Savo Štrbac, (6.11.10).
157Ibid., (6.11.9).
158
Human Rights Watch Report, Croatia: Impunity for abuses committed during Operation Storm, and the denial
of the right of refugees to return to the Krajina, Aug . 1996, Vol. 8, No. 13 (d), p. 2, available at:
www.hrw.org/legacy/reports/1996/Croatia.htm .); CHC Report, pp. 166–169, also gives a list of 24 civilians killed in
Sector Sou th in period 1996- 1999, available at: http://icr.icty.o rg/LegalRef/CMSDocStore/Public/English/Exhibit/
NotIndexable/IT-06-90/ACE81106R0000326368.pdf.
159
See CMS, paras. 1281-1283.
160
See ICTY testimony of General Andrew Brook Leslie in Gotovina et al. , Transcripts, 22 Apr. 2008,
pp. 1972-1973.
161Judges’ folders, item No. 18. - 45 -
and we found out that in fact almost every structure in this hill side village was in the
flame.
On the evening the 25th, we went back to the village, and we found a couple of
more people there in addition to t he one we’d found. They were wailing and
[grief-stricken] because in the [interim] they found two dead bodies, people who had
been killed evidently early that day. And, we witnessed the bodies . . . the two people
had apparently . . . one person had been shot through the head. Another person
both of them were elderly men had had his throat slashed.” [Video off]
108. These executions were examined at the Gotovina trial, and several reliable witness
statements of the United Nations monitors were heard in the neighbouring Tribunal 16. Moreover,
a couple of criminal proceedings were opened in Croatia . Unfortunately, according to the attitude
of the majority of the ICTY Appeals Chamber, the impunity for these crimes prevailed. Neither the
Croatian domestic courts have convicted a single perpetrator for the massacres of the innocent old
people in Grubori, Gošići, and Varivode.
109. In the documentary, we could find a recorded statement of a lady from Varivode, her
name is Jelka, who said: “So, they went from house to house . As they found someone, thus they
killed him.” Then, the journalist asked her: “You weren’t there?”, and she answered: “No, we
weren’t. If we were, we would not be here now.” 163
110. Indeed, this statement, as well as the video itself, could not be of a great probative value
for the individual criminal responsibility . However, her statement raises a question who the
witnesses of the Storm killing are today . There are not so many of them who could be
eye-witnesses 19 years later. Mr. Babić and Ms Ugarković are the persons who managed to escape
the killing by hiding themselves . The ICTY witnesses Ilić and Junjga were skilful enough to run
away from the death squads. Mr. Šuša believes that he survived just because he was lucky to be
registered by the Red Cross in Knin before he was brought to the Croatian Military Police, while
Mr. Mrkobrad at his surrender at Glina faced the young Croatian soldier who did not have nerve to
kill him. Mirko Mrkobrad was lucky enough. Many others were not . These horrific facts are
something that, I think, should be taken into account by the Members of the Court in deliberation
of the counter-claim.
16See CMS, p. 411, fn. 1229.
16Božidar Knežević, Storm Over Krajina , documentary; the quoted dialogue is available on
https://www.youtube.com/watch?v=YJWGgb3YAp4. - 46 -
111. Finally, how hopeless was a destiny of the Serbs who rem ained in the Krajina after
Operation Storm can be understood from the statement of the ICTY witness Peter Marti, United
Nations official, who testified that he was very surprised when he had seen Serb Milan Marčetić
still alive at his home. According to his statement, Marti had even asked Marčetić how it had been
possible that he had still been alive in his village in Krajina. Soon afterwards, on 12 October 1995,
Milan Marčetić was reported as killed 16.
8. Overall data about victims killed during and after Operation Storm
112. A precise number of victims killed by the Croatian armed forces during and after
Operation Storm can never be determined. According to the ICTY witness Mr. Mladen Bajić, the
Croatian War Crimes Prosecutor, most of the bodies were buried in mass graves “without an
on-site investigation or criminal report being filed” 165. However, the Respondent does not consider
that its task is to prove the exact number of the Serbs killed in the operation . Rather, we present
fully conclusive evidence that the Croatian armed forces duri ng and immediately after Ope ration
Storm conducted the mass killing of the members of the group of Krajina Serbs with intent to
destroy that group as such. In our view, that is the relevant fact for the subject -matter of our case.
In that regard, I will refer to some sources.
113. First of them is the l ist of direct victims of Operation Storm made by Veritas 166, as an
extract from the overall list of the Serb victims on the territory of Croatia that was produced as
Annex 66 to the Counter-Memorial. According to Veritas, 1,719 Serbs were killed during and after
the operation. The list can be treated neither as complete nor final. Furthermore many mass graves
in Croatia have still been waiting for the exhumation, while many mortal remains wait for the
identification. However, Serbia considers the Veritas list as the most reliable one today.
114. Further, the mass killing of the Serbs was also confirmed by the Croatian Helsinki
Committee for Human Rights’ early research, published in its 2001 Report . According to that
164
See Gotovina et al., testimony of witness Peter Marti, 9 June 2008, Transcripts, p. 4628.
16See RS, para. 767.
166
Available on http://www.veritas.org.rs/wp-content/uploads/2013/02/Oluja-spisak-direk…. - 47 -
report 677 Serb civilians were murdered and went missing. In addition, CHC noted that indications
167
existed that a number of Serb soldiers were killed after having surrendered to Croat forces .
115. The third source concerning the killings is the Report of the Special Rapporteur of the
United Nations Commission on Human Rights, Ms Elisabeth Rehn, dated 7 November 1995. The
report was produced to the Court as A nnex 59 to the Counter -Memorial. According to
paragraph 24 of the Report “more than 120 bodies [had] been discovered by the United Nations . . .
168
[A] common murder method was shots in the back of the head.”
116. Finally, Croatia clearly and publicly admitted the massive killing in its document
published in February 1996, six months after the operation. It is the Report of the Government of
the Republic of Croatia on the Implementation of the Security Council resolution 1019 (1995),
which was circulated with the Note Verbale ref. No. PC/105/96 dated 9 February 1996 by the
Permanent Mission of the Republic of Croatia to the OSCE, Vienna, to the delegations to that
Organization 16. In the report, which was attached to the Note, Croatia officially stated that
“in the military activities during Operation Storm, the other side suffered the
following fatalities: 404 soldiers belonging to paramilitary units, 462 civilians, and
45 persons whose status, military or civilian, cannot be determined . A total of
911 persons were killed. This figure includes a relatively high proportion of civilian s
because the enemy military units, contrary to the provisions of international law,
intermixed with the civilian population, using them as a human shield.” 170
117. Croatia reported this at the time when there was not even an idea that the Croatian
Generals could be indicted by the ICTY, or that Serbia could file the claim to the International
Court of Justice based on the crimes committed in Operation Storm . The official statement of
February 1996 is contrary to the Applicant’s response in its written ple adings. Namely, the
Applicant neither admitted that such massive killing occurred during Operation Storm, nor claimed
that using civilians as a human shield was a cause of their deaths. Rather, Croatia stated in its
Reply that “some of these deaths were attributable to the acts of individual members of the
16See CMS, para. 1239.
16See RS, para. 762.
169
The Report was furnished to the Court on 8 August 2013.The document was also c onveyed to the diplomatic
missions accredited in the Republic of Croatia by the Note V erbale No. 385/96IP dated 8 February 1996, as well as to the
permanent missions to the United Nations in New York. The reference to this report can also be found in thnited
Nations Further Report on the Situation of Human Rights in Croatia pursuant to Security Council resolution 1019 (1995),
S/1996/109, dated 14 Feb. 1996, para. 7.
170
Report, p. 4. - 48 -
Croatian army and the Croatian police, and it may be that some of those amounted to the war crime
of murder” 171. In the same vein, Croatian President , H.E. Ivo Josipović, in his statement given to
Serbian television B92 on 7 December 2012 underestimated the number of civilian victims of
Operation Storm to the number “between 200 and 300” 172.
118. According to the Veritas research, the total number of persons killed between 4 and
12 August 1995, that is dur ing the first week of the operation, is 1,513 , including 887 civilians,
173
616 soldiers and 10 policemen . This figure demonstrates how intensive the attack on the Serb
ethnical group in the Republic of Serbian Krajina was.
119. As we have convincingly shown in these proceedings, the Storm killing was massive,
widespread and systematic. The group of Krajina Serbs was attacked as such . The number of the
executions was determined to a large exten t by the opportunity given to the perpetrators . In
determination of this important fact or, Members of the Court should take into account some
undisputed facts:
(a) the massiveness of those who decided to run away before facing the entry of the Croatian
forces; it was estimated that 200,000 Serbs left the area 174;
(b) the extremely small number of those who stayed behind the refugees, estimated to be 3,000 in
Sector North, and 2,000 in Sector South 175;
(c) the characteristic of the Krajina terrain which allowed many civilians to find shelter in the hills
and forests 176;
(d) the fact that a significant number of Serbs found shelter in the U nited Nations camps, or were
escorted by the U nited Nations staff under the control of the international observers and
17RC, para. 12.50.
17Available on: http://www.b92.net/info/vesti/index.php?yyyy=2012&mm=12&dd=07&nav_categ…;
nav_id=667053in Serbian; translation submitted to the Court on 8 August 2013.
173
Statement of expert witness Savo Štrbac (6.7).
174
The situation in the occupied territories of Croatia: Report of the Secretary-General, dated 18 Oct. 1995,
UN doc. A/50/648, para. 27.
17The situation in the occupied territories of Croatia: Report of the Secret-General, dated 18 October 1995,
UN doc. A/50/648, para. 27. See also RS, para. 729 and subsequent ft. 771.
17See para. 99 above. - 49 -
journalists, as was the case with the last group of soldiers and civilians who surrendered near
177
Topusko in Banija on 8 August .
Taking all these facts into account, one can conclude that the number of victims killed certainly
represents a high proportion of those who were under the power of the army and police that took
control over the region.
120. At the same time, these facts point out that the criminal case of Operation Storm cannot
be equated to any other operation or incident in which the Croatian victims were recorded,
including the Eastern S lavonia situation in 1991, taken as a whole. According to the Memorial,
that situation was described as numerous attacks to the Eastern Slavonian villages by the JNA and
paramilitary units, sometimes including serious battles, such as that one in Vukovar, after which
sporadic incidents of mass murders were recorded together with many cases of torture, humiliation
and general discrimination of the Croat civilians . However, the remaining Croat civilians,
according to the Applicant, were exiled from March to May 1992, about six months after the
takeover of their places 178. Should I say that all opportunities were in place during those six
months for their physical destruction, if such intent existed? Yet, that was proven not to be the
case.
9. Facts about killing confirm theintent to destroy the group
of Krajina Serbs as such
121. Mr. President, as I emphasized earlier today, the intent of the Croatian Government to
destroy the Krajina Serbs as an ethnic group is visible from the transcript of the Brioni meeting .
Yet, if it s contents are not convincing enough, I promise that the conduct of the Croatian troops
during and after the operation will confirm such intent . The killing is one of the actus reus of the
crime of genocide, but it can also point out, by its massiveness and persistence, what the intent of
the perpetrators was.
122. To summarize, firstly, I have already demonstrated how massive, systematic and
widespread the killing was. Secondly, I also offered a view to the limited opportunity available to
the perpetrators, which, however, was fully used. Thirdly, I have mentioned today many villages in
17See paras. 55 and56 above.
17See MC, paras. 4.30, 4.37, 4.46, 4.61, 4.80, 4.93. - 50 -
which all those who were found by the Croatian armed forces were executed. The conclusion is
unavoidable: the more Serbs decided to stay at home waiting for the Croat ian units, the more
would have been killed.
10. Causing serious bodily and mental harm to members of the group
of Krajina Serbs
123. There is no doubt that so massive and widespread attack on the members of the group
of Krajina Serbs had to cause serious bodily and mental harm to a huge number of both those who
managed to flee from Krajina and those who stayed in the region but somehow escaped the
execution.
124. Some examples that can confirm this conclusion could be found throughout our
submissions and evidence produced. For instance, witness Mirko Mrkobrad testified in 1997
before the District Court in Po žarevac, Serbia, that after his arest in Glina, he suffered a serious
torture in a collective centre in Sisak: he had lost six teeth; the guards had fractured two of his left
side ribs and broke the joints of his middle fingers on both hands 17.
125. Another witness, the statemen t of whom is submitted as Annex 54 to the Rejoinder,
testified how he had been interrogated at a prison in Glina.
“They took away all my papers and burnt them there. They punched me and
beat me with batons. They made me do push- ups even though I was wounded. They
stood on my fingers and put a muzzle into my mouth. I don’t know those who beat
me. They were all uniformed men.” 180
126. Witness Dušanka Mraović had a baby when Croatian soldiers arrested her in Dvor
where she had come in the refugee convoy. Two soldiers, Ivan and Zlatko, asked her where her
husband was, kicked her around her loins resulting later in urinating blood, and when she admitted
that her husband was in the army of adversary, they asked her whether she would be ready to eat
her child’s testicles if they cut them off. However, their mate Josip protected her and gave her
some food for the baby and a blanket. She was transported to the school “22 July” in Sisak.
“I spent 21 days in that camp”, she said, “where I was beaten like others, once
or twice a day. The beating mainly occurred at night. The camp guards who beat us
wore police uniforms. They beat us by ordering us to get up and put our hands behind
our necks and walk in circle crying out: ‘for homeland’! Some of the guards kicked
17RS, Ann. 52.
18RS, Ann. 54. - 51 -
us with their boots and the others hit us by batons all over our bodies or threw leather
181
balls at us all over.”
127. Some statements of the survivors were recorded also by Veritas and quoted in its report
in 1998, published bilingually, in Serbian and English and available in the Peace Palace Library .
Thus, Mr. Davor Radić described his arrest:
“Before entering the bus, we were handcuffed, two by two, and beaten with
clubs, fists, legs, whatever. We were also beaten on the bus; they changed when they
got tired. We were beaten to heads and backs. We had to sing the U stasha songs and
their hymn. After each song we had to say ‘we are Serbs, we are shit’. We had to kiss
the ground when we got to Zadar . While we were kneeling they beat us to chest and
stomach with their feet.” 182
128. The statement of Mr. Jovan Manojlo vić relates to the treatment that the detainees
suffered in Benkovac: “They beat us with stick, boots; they force[d] us to lick blood-stained floor;
they forced us to swallow some cigarettes; they forced us to take a handful of salt without giving
us any water.” 183
129. Mr. Mile Karapand ža describes his a rrest in the Brodjani area on 4 August, when he
was beaten with boots, fists and clubs, thus his two teeth were broken. Later he was imprisoned in
Karlovac where he had to fight against other prisoners i n the cell . He was also forced to put
women’s clothes on, in which he was fooled around the town 184.
130. Witness Božo Šuša reports about the torture he suffered by the Croatian soldiers at his
surrender in Knin: “They beat us with boots and baseball clubs . They broke a broom against my
head. They also put a bell on me and I had to imitate a sheep and a donkey . They took a photo of
me with a bell.” 185 Later, he was transferred to the prison in Katalini ć Brig, in Split, where he was
186
tortured by electricity during the interrogation .
131. Suffering physical and mental torture in the prison in Zadar, detainee Milan Jović
187
committed suicide on 4 September 1995 .
18RS, Ann. 60.
182
D.I.C. Veritas Report “Serb Krayina, August 1995 Exodus”, 1998, p. 33 (in English) and p. 95 (in Serbian),
available in the Peace Palace Library.
183
Ibid., p. 35 (in English) and p. 98 (in Serbian).
18Ibid., p. 41 (in English) and p. 104 (in Serbian).
18Ibid., p. 38 (in English) and p. 101 (in Serbian).
186
Statement of witness Bozo Šuša submitted to the Court on 1 Oct. 2013.
18Ibid. - 52 -
11. Conditions of life inflicted to the Serbs who remained in Krajina
132. The systematic killin g of Serbs were followed by other activities directed to the
destroying every possibility that Serbs who were not killed could live on the territory of Krajina. In
188
the Counter-Memorial , Serbia presented how massive and systematic the burning, destruction
and looting of the property of Krajina Serbs were after Operation Storm. I would kindly draw your
189
attention to those facts and evidence presented in the Counter-Memorial .
133. Thus, witness Andries Dreyer from South Africa who was a United Nations Security
Co-ordinator for Sector South, testified that, on 9 August 1995, he and his colleagues, apart from
tens of dead persons, observed that almost all cattle, dogs and pigs had also been shot in Knin and
190
surrounding area . Witness John Hill from Canada de scribed the same situation in Otri ć, where
he saw houses burning and “all of the animals, cows, pigs, sheep, whatever had been killed,
191
shot” .
134. Witness Jela Ugarković similarly testified about her eye -witness experience. She had
seen carcasses of dead livestock all over the village o f Komić, a lot of dead horses and poultry.
According to her testimony, the livestock farming was the source of income in the village; some
192
families had up to 20 cows .
135. The consequences of this conduct were explained in the best way by United Nations
General Forand, Commander of Sector South. His statement was recorded in the documentary
“Storm over Krajina” 193. I would like once again to kindly ask you to take your earphones. [Video
on]
Transcript:
“1. There was almost no damage done by the war itself, except the houses that
were, not houses but the villages that were near the zone of separation . Here in Knin
188Paras. 1312-1325.
189Gotovina et al ., Transcripts, 9 Apr. 2008, p. 1501 (witness Edward Flynn)15 April 2008, p. 1501 (witness
Ton Minkuielien); 16 Apr. 2008, pp. 1739-40 and 1760 (witness Roland Dangerfield); 2 June 2008, p. 4047 (witness
Edmond Vanderstyne); 3 June 2008, p. 4126 (witness Alain Robert Forand); 30 June 2008, pp. 5416, 5429 and 5431
(witness Herman Steenbergen); see also, CMS, Anns. 54, 55, 57 and 58; see also, CMS, paras. 1407 and 1408, and RS,
paras. 773 and 774.
190Gotovina et al., Transcripts, 17 Apr. 2008, p. 1740.
191Gotovina et al., Transcripts, 28 May 2008, p. 3776; RS, Ann. 44.
192
Statement of witness Jela Ugarković,para.13.
193Available at: https://www.youtube.com/watch?v=IulcmlI1DC0 ; judges’ folders, item No. 19. - 53 -
even to about two thousand grounds fell, there was minimum damage. The houses
that you see were mostly burnt and looted by the Croat forc es. It’s still ongoing today
almost a month, you know, after the war has ended, and it makes you w onder why
they’re doing it. At the same time the Croat Government is saying that this is not
happening, and then you can see it with your own eyes that this is happening, and we
have proved and we see it daily that it’s the Croat forces that are doing it.
2. We’re also finding bodies as we go to small villages on the daily basis and
people who had been shot or people that had been their head, you know, cut . So what
type of life can they expect by staying here?
3. It’s a form of ethnic cleansing, you know, it’s to ensure that the Serb people
that have flee[d] [this area] will not come back, and if they come back they will have
no more house, no more animal because they’re either been killed or stolen, and all the
crops have been burnt. So you come back to what, you know, nothing. So, I think it’s
a form to ensure that they will not come back.” [Video off]
136. At the end of September 1995, the European Community Monitoring Mission reported
that 73 per cent of Serb houses were burned and looted in 243 villages which were investigated 19.
The Report of the United Nations Military Observers from 4 November 1995 states that
17,270 houses were destroyed or damag ed after the commencement of Operation Storm in Sector
South 19.
12. Statements that expressed mens rea of the crime of genocide
137. In order to sweep out any doubt regarding the intent of the Croatian armed forces, if any
still remains, I will further re fer to some statements that expressed mens rea of the crime of
genocide.
138. First, I will refer to the statement of witness John Hill, United Nations Military Police
Commander in Sector South, who testified in Gotovina. During his first meeting with the Croatian
soldiers entering Knin on 5 August, he asked them what they were going to do. One soldier who
was on top of a tank answered him that they were going “to kill all the Serbs” 19.
139. Second when Captain Hill tried to release one United Nation s interpreter of Serb
ethnicity, one Croatian army officer who wanted to kill the interpreter told him that “any Serb men
of military age, 19 to 60, who [left] [the UN] camp would be shot” 197. Captain Hill managed to
19The situation in the occupied territories of Croatia: Report of the Secre-General, dated 18 Oct. 1995,
UN doc. A/50/648, para. 33.
195
CMS, Ann. 58.
19Gotovina et al., Transcripts, 27 May 2008, p. 3750-51; RS, Ann. 44.
197
Ibid., p. 3767. - 54 -
save the interpreter, but firmly believed that had he not gotten there that fast, the Croatian
Commander would order killing the man on the spot . In his statement recorded during the
interview with the ICTY investigator , Mr. Thomas Elfgren, on 28 and 29 May 1997, admitted into
evidence in Gotovina as exhibit No. P.00292 and produced by the Respondent to this Court on
14 January 2014, Hill stressed that if the members of the Croatian army caught a Chetnik, they shot
198
him. He was asked then by the investigator: “There’s no question about taking as prisoner?”
The answer was: “No. That was never discussed . It was either I was taking him or they were
199
going to shoot him.”
140. Third witness Božo Šuša stated that he had seen and heard a Croatian army officer
who on 5 August, entering Knin on the main road, had ordered his soldiers to “[s]hoot them all at
random”. The execution of the Serb refugees on two tractors was conducted immediately
200
thereafter .
141. This evidence is corroborated by a statement of one Croatian war veteran who was
interviewed by Croatian Daily “Jutarnji list” in 1998. He stated:
“The plan was to clean everything up as soon as possible. Some will get out
and we’ll waste the others . . . There were no civilians for us; they were simply all
enemies . . . It was an unwritten order that there were no prisoners of war to be taken
but, for the sake of saving our face before the world public opinion, a very small
201
number of prisoners of war were nonetheless left alive.”
142. Furthermore, several statements of the Croatian State Leadership given ex post facto
confirmed the intent they had during Operation Storm . In his euphoric speech in Knin on
26 August 1995 President Tudjman declared:
“[T]here can be no return to the past, to the times when they the Serbs were
spreading cancer in the heart of Croatia, cancer which was destroying the Croatian
national being and which did not allow the Croatian people to be the master in its own
house . . .” 202
198Gotovina et al ., exhibit No . P.00292, p. 00577677, submitted by the Respondent on 1Jan. 2014 upon the
invitation of the Court.
199Ibid.
200Statement of witness Božo Šuša.
201
RS, para. 720.
202BBC Summary of World Broadcasts, 28 Aug. 1995, Monday, Part 2 Central Europe, the Balkans; Former
Yugoslavia; Croatia; EE/D2393/C. Available at: http://emperors -clothes.com/docs/tudj.htm; video available at:
http://www.youtube.com/watch?v=OOqB4sQ5am4 . - 55 -
143. That statement of President Tudjman is quite similar to the statement of
Dr. Mladen Lorković, Minister of Foreign Affairs, who said:
“Croatian people must clean itself from all elements which are its misfortune;
which are foreign and strange to that people; which dissolute from one evil to another
through decades and centuries. Those are our Serbs and our Jews.”
The only difference between the two statements is that the last one was published in the newspaper
“Croatian People” 50 years ago, on 28 June 1941, at the beginning of the World War II genocide
against Serbs, Jews and Roma people in the Independent State of Croatia.
144. Thus, the Applicant’s Head of State considered that “the Serbs were spreading cancer in
the heart of Croatia” . The same metaphor was used by Croat ian Minister of Foreign Affairs,
HrvojeŠarinić, in his conversation with the United States Ambassador Mr. Peter Galbraith, when
they, after Operation Storm, discussed the opportunities for Serbs to come back to their homes in
Krajina. According to Galbraith, who testified in Gotovina, Šarinić said the following: “We
203
cannot accept them to come back. They are a cancer in the stomach of Croatia .” The difference
between the two statements can be found r ather in the location of Krajina in the Croatian national
body than in the attitudes of the two State officials towards the Serbs as such.
145. In our Rejoinder, Professor Schabas explained this choice of metaphor, its meaning and
204
poisonous language which direct to the elimination of the group of people .
146. It is quite difficult to advocate today that these attitudes of the Croatian President and
the Minister for Foreign Affairs appeared no earlier than Operation Storm was over . No,
Mr. President, there is no doubt that these statements given ex post facto reflected their attitudes
towards the Serbs from Croatia in general, the attitudes that existed at the time when the operation
was being planned at Brioni. The Respondent has noticed that the Applicant has so far not adduced
a single word to explain these statements of its State leadership. It speaks something for itself.
20Gotovina et al., Testimony of witness Peter Galbraith, 23 June 2008, Transcripts, p. 4939.
20RS, para. 786. - 56 -
13. Imposing legal barriers to the return of the Serb refugees
205
147. In the written phase of the proceedings , Serbia produced a number of reliable
documents containing the convincing evidence that the Government of Croatia immediately after
Operation Storm:
(a) had confiscated property which had belonged to the Krajina Serbs if the owners had not come
back in 30 days later, under pressure from the United States Government, prolonged to
206
90 days, but with the same effect) ;
(b) had taken measures to colonize Croats in the Serb land and houses which had not been
207
destroyed in the meantime ;
(c) had amended its electoral law in or der to reduce the number of the Serb representatives in the
208
Croatian Parliament .
148. We quoted the words of President Tudjman from his meeting with Minister Jure Radić
on 11 August 1995, a couple of days after the end of the operation, when the President of Croatia
confirmed his intent that “not even 10%” of Serbs be allowed to live in Croatia ever again 209.
These words are a direct reflection of Tudjman’s state of mind from the meeting at Brioni Island
three weeks earlier . Although his statement is not evidence for itself of the intent to destroy the
ethnic group of Serbs, it can confirm that the target of Operation Storm was the group as such, and
not only the Krajina’s armed forces . Tudjman’s instructions from the Brioni meeting ought to be
understood in that light.
149. Although the Applicant persisted on the position that “Croatia [had] not imposed any
legal barriers on the return of Serb refugees” 21, and even adduced some mitigating interpretations
of the meaning of the legal measures following Ope ration Storm, the Applicant has never denied
20CMS, paras. 1338-1346; RS, paras. 775-780.
206See “The situation in the occupied territories of Croatia: Report of the Secretary -General”, 18 Oct. 1995,
UN doc. A/50/648, para. 28; Report on the situation of human rights in the territory of the form er Yugoslavia submitted
by Ms Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, 7 Nov. 1995, UN doc. S/1995/933,
paras. 36-42, CMS, Ann. 59; Minutes of the session of the Presidency of the Croatian Democratic Union, 11 Aug. 1995,
RS, Ann. 67; Gotovina et al., Transcripts, testimony of H.E. Mr. Peter Galbraith, 25 June 2008, pp. 5115 & 5125.
207
See “Record of the meeting between the President of the Republic of Croatia Dr. Franjo Tudjman and Minister
Dr. Jure Radic”, 23 Aug. 1995; RS, Ann. 68.
208
“The situation in the occupied territories of Croatia: Report of the Secretary -General”, 18 Oct. 1995,
UN doc. A/50/648, para. 38.
209
RS, para. 778.
21APC, para. 3.89. - 57 -
Tudjman’s words and his state of mind regarding the r efugees quoted in the Rejoinder. That state
of mind is in the rough discordance with the interpretation of history that the Croatian legal team
would like to introduce in this case.
150. In addition, the Court might find very interesting the description of Tudjman’s attitudes
by the former United States Ambassador to Croatia, Mr. Peter Galbraith:
“According to Galbraith, Tudjman preferred a reasonably or basically
homogenous Croatia . He believed and stated that the Serbs in Croatia were too
numerous and constituted a strategic threat to the state . Tudjman spoke approvingly
of population transfers, and also believed that Croats should leave areas that he did not
think they could hold . He considered both Muslims and Serbs as part of a different
civilization than Croats. Tudjman believed in the idea of a ‘Greater Croatia’.
Tudjman informed Galbraith after the Krajina Serbs had left Croatia in
August 1995 that these Serbs could not return. According to a US Embassy cable
dated 11 December 1995, Tudjman had told a visiting US congressman that it would
be ‘impossible for these Serbs to return the place where their families lived for
centuries’. Galbraith stated that since this was Tudjman’s policy, it was also Croatia’s
policy.” 211
14. Krajina Serbs as a substantial part of the Serb national
and ethnic group in Croatia
151. Mr. President, I would now summarize some facts regarding the Krajina Serbs as pa rt
of a wider group of Serbs living in Croatia . It is not in dispute that Croatian Serbs constitute a
specific national or ethnical group, and that the Serb population living in Krajina represented a
substantial part of that national or ethnic group .12
152. The Respondent also claims that the Krajina Serb population was a distinct
geographically located community in an area which was of immense importance to Serbs from
Croatia. Krajina the same meaning as Ukraine was a specific centre of Serbian life in
213
Croatia for centuries as we demonstrated in the Counter -Memorial . The most prominent
member of that community was a famous American inventor from the first half of the twentieth
century Nikola Tesla, born in the Lika region of the Austro-Hungarian Empire.
153. During the armed conflict, Krajina was also an emblematic part of the overall group of
Serbs living in Croatia. As the Respondent presented in the Counter-Memorial, Krajina as a United
211
Gotovina et al., Trial Chamber Judgement of 15 Apr. 2011, paras. 1999-2000.
21RC, para. 12.2.
213
CMS, paras. 1381-1384. - 58 -
Nations protected area, as well as a State in statu nascendi, was of immense importance to Croatian
214
Serbs and their resistance to the Government of Croatia . According to General Gotovina, Knin
was “psychologically and politically vital for rebel Serbs” 21.
154. As I demonstrated today, Operation Storm was a n attack to the whole population of
Krajina. The Croatian armed forces used each and every opportunity to kill all Serbs present in that
limited area. Due to the timely withdrawal of the Serb population, that opportunity, fortunately,
was not so huge.
155. Today, the Krajina Serbs do not exist as such. They cannot be found anywhere as a
distinct group of Serbs from Croatia, including in Serbia, where the majority of Croatian refugees
found their shelter: they have been intermixed with other Serbs, whi le their unique and
recognizable culture and traditional characteristics have been lost.
156. Finally, if one compares the Croatian census from 1991 for the places I mentioned
216 217
today as sites of massive executions with the 2011 census , the following conclusion will be
unavoidable: the group of Krajina Serbs, as such, is physically destroyed.
15. Rebuttal to the counter-allegations
157. Mr. President, distinguished Members of the Court, if you allow me, I will further
respond to some specific factual allegations by which the Applicant challenges the counter-claim.
15.1. Alleged murders committed by the Bosnian Serbs’ army
158. Thus, Croatia reports that, according to a Slovenian newspaper dated 7 August 1995,
the army of Bosnian Serbs bombed a convoy of Serb soldiers and civilians retreating from Croatia .
218
It was allegedly conducted three times, killing 20 and injuring over 100 persons . This allegation,
which is in the same vein with the shameful thesis of sui-genocide as expressed in paragraph 2 of
the Application instituting proceedings, has not been supported by any evidence . The Croatian
214
CMS, paras. 1385-1389.
21Gotovina et al., Reynaud Theunens, expert report: Croatian Armed Forces and Operation Storm, Part II, p. 67;
CMS, Ann. 64.
21Donji Skrad, Komi ć, Glogovo, Doljani, Zrmanja, Nadvrelo, Palanka, Golubić, Radljevac, Mokro Polje, Šaš,
Luščani, and Kijani.
217
See statement of expert witness Savo Štrbac (6.11).
218
APC, para. 3.69; see, also, RC, para. 11.87. - 59 -
legal team is persistent in forgetting that the litigant seeking to establish a fact bears the burden of
proving it.
159. The same can be commented for the nex t implausible counter -allegation of the
Applicant, namely, that the Serb refugee columns “were on occasion caught in the crossfire” 219, or
220
that the tanks of the Serbian a rmy of Krajina were treading over the columns of refugees . No
evidence has been produced.
15.2. Objection concerning the killing committed by the army of Bosnia-Herzegovina
160. It seems that Croatia is more hesitant in this case to admit causing victims among the
Serb refugees than she was in its report from February 1996. Thus, Croatia adduced the objection
that “it cannot be held responsible for any casualties caused by the Bosnian Army’s 5th Corps
221
which was also involved in the fighting, or for any columns targeted in [Bosnia-Herzegovina]” .
161. Yet, the Bosnian 5 th Corps did not invade the Croatian territory o f its own will. The
Bosnian Army was invited by the Croatian Government to be involved in Operation Storm fighting
together against the joint enemy . Again and again, our distinguished adversary forgets the Brioni
transcript, in which President Tudjman discussed with his high military personnel the deployment
222
and military actions of the Bosnian Army’s 5th Corps . Their joint action was fully in accordance
with the Split Agreement of 22 July 1995, concl uded between Croatian P resident Tudjman,
Bosnian President Izetbegović and the representative of Bosnain Croats, Krešimir Zubak.
According to the CIA R eport, the consumate political objective of this agreem ent was the
destruction of the Republic of Serbian Krajina 22. On the other hand, neither Croatia challenges its
leadership over the operation in question, nor such objection can be found in any document related
to the relevant events, including the Croatian documents which celebrate the great national victory.
162. This objection of Croatia looks rather like an attempt to avoid the State responsibility
by pointing a finger to someone else who executed the Brioni plan, taking into account that the
21APC, para. 3.68.
220
Ibid., para. 3.69.
22Ibid., para. 3.68; also, RC, para. 11.87.
22Brioni Minutes, pp. 4, 9, 16-18.
223
CIA Report, Vol. I, p. 364. - 60 -
Respondent did not specify complicity as one of the forms of responsibility unde r Article III (e) of
the Genocide Convention. I hereby respectfully inform the Applicant that Serbia will use its right
to modify its final submissions in accordance with this objection, adding complicity as an
alternative mode of responsibility.
163. The crimes committed during and after the operation were a direct consequence of the
genocidal plan reached at the Brioni meeting . The Respondent provided the Court with three
affidavits in which the eye- witnesses had described how the Croatian and Bosnian troops attacked
224
the Serb refugee column on the road Glina -Dvor, each from one side of the road . In order to
avoid any misunderstanding, I would remind the Court that there are also several affidavits, in
which another four eye-witnesses had testified that their refugee columns had been attacked in the
225
same area by the Croatian units exclusively . One of those witnesses, Mr. Mrkobrad, was at the
Applicant’s disposal to be cross-examined, but the Applicant gave it up.
164. Finally, it should be noted that the Bosnian troops were not present at any of the places
of the mass executions in Dalmatia, Lika and Kordun which I mentioned today . The m ap No. 9
annexed to the Counter -Memorial contains the plan of Operation Storm as drawn by the CIA
experts. The green arrows mark the position and movements of the Bosnian 5th Corps in a very
limited border area 22. Hence, the plan from Brioni was executed by the Croatian armed forces,
with an assistance of the Bosnian army, requested by Croatia.
15.3. Objection concerning the killing committed on the territory of Bosnia-Herzegovina
165. Of course, I have not forgotten the second part of the Applicant’s problematic
statement, which actually contains another specific objection: that Croatia cannot be responsible
227
for the killing committed on the territory of Bosnia-Herzegovina, by unknown persons .
166. However, we know who conducted the killing of the Serbian refugees and hors de
combat in Bosnia: it was the Croatian a rmy. The entry of the 4 th Guards Brigade Operative
Logbook for 7 August 1995, used as the exhibit in the ICTY Gotovina et al. case, contains a report
224
RS, Anns. 53, 56 and 58.
22RS, Anns. 52, 54, 59 and 60.
22Judges’ folders, item No. 7.
227
APC, para. 3.68, and RC, para. 11.87. - 61 -
of a Croatian officer, who stated: “From 12:05 to 12:10 our artillery was hitting the column pulling
out from Petrovac to Grahovo; the score is excellen t: the Chetniks have many dead and
wounded . . .” 228 Petrovac and Grahovo are the towns in the territory of Bosnia.
167. Furthermore, on 8 August 2013, the Respondent produced to the Court an English
translation of the article “Operation Storm Actions of the Croatian Air Forces” by
Mr. Mario Werhas, published in the Croatian Magazine for Military History in August 2012. The
article contained a list of all actions of the Croatian a ir forces in Operation Storm . Under entries
Nos. 24 and 27 the Court can find data about the attacks on the columns at areas called
Medeno Polje and Svodna respectively . Both of these places are in the territory of
Bosnia-Herzegovina, as it was confirmed by the letter of the Croatian Agent sent to the Court on
10 September 2013.
168. The air force attack on Medeno Polje, at the hamlet called Bravs ko, between Petrovac
and Sanski Most, was conducted on 7 August . The Human Rights Watch Report, based on the
statements of the survivors of the attack, reads that the column of civil ians was hit by four
bombs 22. In the ICTY case Gotovina et al., protected witness P-056 testified about this attack and
230
confirmed that several civilian cars were hit in addition to two trucks that were burning . Nine
Serbs were killed, out of whom there w ere four children, while tens were wounded . This is also
confirmed by two statements contained in the affidavits annexed to the Rejoinder 23, as well as by
232
the statement of the expert witness Savo Štrbac . All statements are consistent and reliable.
169. Veritas also records that one soldier and two civilians were killed in the airplane attack
at the village of Svo dna, on 8 August 1995, around 6 p.m., while a number of civilians including
228Gotovina et al., Reynaud Theunens, Expert Report “Croatian Armed Forces and Opera tion Storm”,
18 Dec. 2007, p. 189; CMS, Ann. 64.
229Human Rights Watch Report, Impunity for abuses committed during Operation Storm, and the denial of the
right of refugees to return to the Krajina , Aug . 1996, Vol. 8, No. 13 (d), pp. 11-12, available at :
http://www.hrw.org/legacy/reports/1996/Croatia.htm
230Gotovina et al., testimony of witness 56, 23 May 2008, Transcript, p. 3546.
231
RS, Anns. 65 and 66.
232Statement of the expert witness Savo Štrbac(6.6.2). - 62 -
children were wounded 23. This was confirmed by Mr. Boris Martinović, an eye-witness of this
234
attack, who testified before the Court in Banja Luka .
170. Finally, I would like to emphasize that, according to the Veritas data, the number of the
Serbian victims killed on the territory of Bosnia -Herzegovina was not so high, at le ast not in light
of the subject -matter of this case: in total, ther e were 37 killed out of whom 14 soldiers and
235
23 civilians . Consequently, the simplified objection that Croatia cannot be held responsible for
the killing committed on the territory of Bosnia -Herzegovina missed the point: it could not be a
proper answer to the overwhelming evidence on mass killing presented in this case by Serbia.
15.4. The issue of evacuation
171. Another group of counter -allegations of the Applicant deals with th e question why the
Krajina Serbs left their homes in so huge a number. In the written phase of these proceedings,
Croatia made significant efforts to convince the Court that during Operation Storm 200,000 Serbs
236
fled from Krajina toward Bosnia -Herzegovina and Serbia for “a number of reasons including
difficult living conditions, poverty and general insecurity in the RSK [Republic of Serbian
237
Krajina]” .
172. Serbia explained in the Counter -Memorial why these people had not had a genuine
238
choice when they had decided to flee from Krajina . They had abandoned their homes out of fear
that they would be attacked and exterminated. The destiny of those who had decided to stay behind
shows that their fear had been reasonable. The Respondent also dealt with the A pplicant’s
counter-arguments in the Rejoinder demonstrating that Croatia had removed the Krajina Serbs by
239
force . The Respondent firmly remains at that position, leaving for the Court to conclude how
seriously the statements of some poor refugees who appl ied for safe return to their homes in the
233Statement of the expert witness Savo Štrbac(6.6.2).
234
RS, Ann. 53.
235Statement of the expert witness Savo Štrbac(6.6.1).
236The situation in the occupied territories of Croatia:Report of the UN Secretary -General, 18 Oct . 1995,
UN doc. A/50/648, para. 27.
237APC, para. 3.47.
238
CMS, paras. 1443-1447.
239RS, paras. 729-744. - 63 -
240
years following Operation Storm can be taken for the purposes of this case . This is a new
misleading argument adduced by the Applicant in its last written submission; however, the
reliability and probative weigh t of the statements of the refugees who had to plea to their State to
allow them to come back is of the same quality as the irrelevant argument that the ICTY in
Gotovina et al. “[did not] identify by name any Serb civilian who claimed to have fled due to fear
241
of shelling” .
173. A lack of full understanding of the subject -matter of this case leads the Applicant to
another pointless effort: Croatia relentlessly tr ies to prove the existence of evacuation plans in the
Republic of Serbian Krajina 24, as it could change anything. The Applicant forgets that this is not a
criminal case based on an account of forcible transfer of the civilian population, but an
international dispute in which the jurisdiction of the Court is established solely on the Genocide
Convention. The plans for evacuation existed in the Republic of Serbian Krajina. Yes, they did, as
243
well as they existed in all republics of the former Yugoslavia including Croatia . What should be
proven by this? The Krajina Supreme Defense Council issued a decision for evacuation in the
evening hours of 4 August 1995 ordering people from five south municipalities who were unfit for
combat to retreat to the towns of Srb and Lapac that were also within the territory controlled by the
Krajina Serbs. Yes, it did. What should the Supreme Defense Council do? To order people to stay
at home and wait to be killed? My previous presentation of the crimes committed during and after
Operation Storm demonstrates that the decision of the Krajina Government to evacuate w omen,
children and elderly people was fully justified. Had the more Serbs stayed behind, the more of
them would have been killed.
174. Then, it may be that the Applicant wants, by this objection, to imply that the Brioni plan
for destruction of the Krajina Serbs was not fulfilled due to the timely escape of the group. If it is a
case, the crime planned at Brioni would finish at the level of attempt, one of other forms of
responsibility under Article III (d) of the Genocide Convention. Nevertheless, the re is no escape
240
See APC, para. 3.51.
24Ibid., para. 3.53; emphasis added.
24Ibid., paras. 3.57-3.65.
243
See RS, para. 734. - 64 -
for the Applicant: we will add attempt in our final submissions as an alternative mode of
responsibility.
175. Yet, the plan from Brioni was completed. The tragedy of the Serb people from Krajina
could not be avoided. They were killed en masse, they were seriously harmed, and finally, they
were destroyed as a substantial and significant part of the wider group of Serbs from Croatia . In
our view, the issue of evacuation is relevant only for the consideration of the opportunity that was
available to the perpetrators to kill as many members of the group as possible.
176. Mr. President, this concludes my presentation of the facts and evidence in support of the
counter-claim submitted by Serbia. I am eager to hear the response of our lear ned opponents, with
sincere hope that the response will be properly directed to the facts relevant for mens rea and
actus reus of the crime of genocide, but not to the useless questions as the existence of the
evacuation plans, or the alleged economic reasons for the “sudden” departure of 200,000 Serbs, or
the irrelevant examination of the margins of shelling error, or the unsupported allegations that the
Serbs were attacked and killed in Bosnia by other Serbs or by unknown persons. I am grateful for
your kind attention.
The PRESIDENT: Thank you very much, Mr. Obradović. This concludes today’s sitting.
The Court will meet tomorrow at 10 a.m. for the conclusion of the first round of oral argument by
Serbia. The sitting is adjourned.
The Court rose at 12.55 p.m.
___________
Audience publique tenue le jeudi 13 mars 2014, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire relative à l’Application de la convention pour la prévention et la répression du crime de génocide (Croatie c. Serbie)