Corrigé
Corrected
CR 2014/23
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Friday 28 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 vendredi28 mars 2014, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
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, Universi ty College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning, please be seated. The sitting is now open. The Court
meets this morning in order for Serbia to continue its second round of oral argument and I shall
now give the floor to Mr. Jordash. You have the floor.
Mr. JORDASH:
INTRODUCTION
1. Mr. President, Members of the Court, I am grateful for the opportuni ty once more to
address the Court. As outlined yesterday, having asserted that the Respondent does not advance a
positive case, the Applicant went onto advance what it termed its positive case, namely a “pattern
1
of purposeful action” .
2. Taking these 17 factors as its starting -point, the Applicant then identified and addressed
three critical issues: (i) context; (ii) patterns of behaviour; and (iii) opportunity 2.
3. I would like to now respond to the Applicant on these issues. As I will demonstr ate, the
Applicant refuses to address the totality of the evidence on these issues in order to bolster a
demonstrably flawed case.
Context
4. Turning to c ontext, the Applicant claims that each of the first four factors, and then all
17 taken together, provide the overwhelming inference that there was genocidal intent .
5. As far as the Applicant is concerned, the critical factors are the first four. They are as
follows:
(i) The political doctrine of Serbian expansionism which created the climate for g enocidal
policies aimed at destroying the Croatian population living in areas earmarked to become
part of “Greater Serbia”;
(ii) The statements of public officials, including demonization of Croats and systematic
incitement on the part of State-controlled media; and
1CR 2014/6, p. 30, para. 64 (Starmer).
2CR 2014/12, p. 21, para. 31 (Starmer); CR 2014/20, p. 45, para. 1 (Starmer); and CR 2014/19, p. 26, para. 26,
(Sands).
3
CR 2014/12, p. 19, para. 27 (Starmer)CR 2014/20, p. 46 , para. 3, (Starmer) and CR 2014/19, p. 26, para. 26,
(Sands). - 11 -
(iii) The fact that the pattern of attacks on groups of Croats far exceeded any legitimate
military objective necessary to secure control of the regions concerned; and finally,
(iv) Contemporaneous video footage evidencing the genocidal intent of those carrying out the
attacks; (by which I imagine the Applicant means evidence of the ferocity of the military
attacks and/or the threat of attack).
6. According to the Applicant’s thesis these factors were the cause, or the result, of a singular
chain of events that establishes a textbook case of “milestones on the journey towards genocide” .
We are told that the identification of the target group became the “the first stage in genocide, as
5
Raphael Lemkin observed back in 1944” .
7. Thereafter, this process continued to legitimatize the idea of a Greater Serbia, fuelled by
hate speech, and so on, and so forth.
8. We are told that, “those involved in the atrocities . . . might . . . have stopped at the simple
removal of the target group from “Greater Serbia” but the political forces in play were too powerful
6
to stop at that . . .”.
9. Of course, if there was no other factor or explanation for the excesses of violence and the
terrible crimes; if it was as they allege the unleashing of such a pl an on an unsuspecting and
peace-loving Croatian Government then perhaps they might have a point.
10. At least in these four factors, they could, perhaps, demonstrate something of cause and
effect, even if such a case is flawed from the outset by a number of obvious factors.
11. However, as the Respondent has consistently argued, this one- dimensional perspective is
demonstrably false. It is a caricatured tale of the dissolution of the former Yugoslavia and the
genesis of the violence that begins with a James Bond villain in the guise of Milošević, surrounded
by his henchmen, Šešelj and others, stoking the fires of extremist Serbian nationalism with terrible
genocidal consequences.
12. The problem, of course, with this account is that the Applicant removes every trace of
Tuđman’s poisonous régime from this convenient pastiche.
4
CR 2014/12, p. 22, para. 35 (Starmer).
5Ibid., p. 22, para. 35 (Starmer).
6
Ibid., para. 36 (Starmer). - 12 -
13. Compare this with the candour and realism of the Respondent, who has admitted that the
Serbian régime at that time was undemocratic and nationalism was a leading political idea. But
also asks the Court to accept that “all of them [in power in each Republic] contributed, to a greater
7
or lesser extent, to the incitement of inter-ethnic hatred and the dissolution of Yugoslavia” .
14. No doubt, as accepted by the Respondent, all of the people in the former Yugosla via
were ill served by their leaders. However, this is not what you will hear from the Applicant.
15. You will hear nothing but a deafening silence about Tuđman’s express support for the
8
fascist Independent State of Croatia or his rumination on “ genocidal changes” designed to bring
“harmony to the national composition” 9. A wilful blindness to the Minister of Defence, Spegelj’s
10
well-publicized threat in 1991 to “slaughter” the Serbs in the Krajina . Nothing about President
Tuđman’s hate-filled administration or how it must have been received by the ordinary folk of the
Krajina and how it must have impacted upon the nature and degree of the violence that fanned out
across the region.
16. In the Applicant’s neat genocid al package, we are asked to disregard how Tuđman and
his régime escalated the violence and f uelled the fires of ethnic hatred, and how they encouraged
the Croatian forces to persecute the Serbian civilians in order to achieve his misconceived ambition
and a place in Croatian history.
17. As Graham Blewitt, a senior prosecutor at the ICTY, noted in November 2010, the Court
11
would have indicted the then late President Tuđman had he still been alive . Who, but the
Applicant, having listened to the evidence in this case would disagree with such an assessment?
18. As explained in the Respondent’s written pleadings and again during the first round of
oral pleadings, from 1990, the Serbs in Croatia were exposed to an atmosphere in which the
Independent State of Croatia and the Ustasha Movement was constantly evoked.
7
Counter-Memorial of Serbia (CMS), para. 423.
8CMS, paras. 417 and 431.
9CMS, Ann. 51, citing to Dr. Franjo Tuđman, Wastelands of Historical Reality, Nakladni zavod Matice Hrvatske,
Zagreb, p. 416.
10
Used with Witness Paula Milić (CR 2014/9).
11“Military to be slashed by one-fifth…”. Radio Free Europe Radio Liberty, 10 Nov . 2000. Available at:
http://www.rferl.org/content/article/1142280.html - 13 -
19. Not least through changes in the Constitution, the adoption of a flag and coat of arms
reminiscent of the Ustasha régime, tangible discrimination, dismissal from employment, a build-up
of military forces, and an adoption of persecutory tactics during combat.
20. The Respondent will not reiterate this evidence, but it is relevant and probative and
cannot sensibly be ignored. Instead, the Respondent will address two questions that arise from this
evidence that are critical to a proper understanding of the context and the claim:
(i) the claim that the Croat population were unarmed and the helpless victims of the Serbian
military; and
(ii) the claim that the Croats were not responsible for a myriad of similar crimes.
21. Despite the Applicant’s protests, the ICTY and non- ICTY evidence provides clear
answers to these questions.
The Applicant’s claim that the Croat population was unarmed and the helpless victims of the
Serbian military
22. The Stanišić and Simatović and Perišić findings at the ICTY established ferocious
combat on both sides. Despite the claim that all that existed by way of military support for the
Croats were lightly -armed “civilian defenders” 12, the evidence of well -armed and well -motivated
Croatian militaryformations is crystal clear.
23. Even if the Applicant’s claim was true, it is plain that the relative size of military forces
is only a part of the relevant context. History is littered with examples of guerrilla forces
withstanding and sometimes defea ting much larger and more conventional forces. From the
Mujahidin who fought the Russian army in Afghanistan between 1979- 1989, the Revolutionary
United Front in Sierra Leone, to the present -day Taliban in Afghanistan who for ten years have
withstood the might of the largest and most powerful military force that has ever existed. Indeed, it
is guerilla forces, lacking an equality of conventional arms, which fall back on terror and
persecution as a means of achieving their objectives.
1CR 2014/20, p. 57, para. 41 (Starmer). - 14 -
24. As found by the Martić Trial Chamber, at the same time as the Krajina Serbs were
creating the TO and police forces, the Croatian army was, inter alia , forming a special military
unit, the ZNG, which was employed in the hostilities . 13
25. In January 1991 a Federal Secretary Report reached the SFRY Presidency, reporting that
in Croatia arrests had been made for organi zing and arming illegal paramilitary formations and
14
preparing “an armed revolt” . Croatian police were training for combat. Members of the illegal
HDZ militar y organization were transferred to reserve police structures at an accelerated pace.
Anti-Serbian propaganda was “being radicalized to an extreme”. The Serbian populace was
subjected to provocations. The resultant fear and uncertainty meant that “the Se rbian population
15
[felt] directly threatened, and people . . . [were] already beginning to flee” .
26. As Jović, President of the Presidency of the SFRY, confirmed in his “Last days of SFRY,
Diary excerpts” the criteria for selecting paramilitaries’ includ ed, “national affiliation (Croat); an
orientation toward Croatian statehood and toward denying Yugoslavia and the willingness to
16
follow orders unconditionally” .
27. As was also confirmed, members of the Croatian G overnment were involved in
distributing weaponry and ammunition across Croatian territory to Croat nationals who were
confirmed HDZ activists. As the diary noted: “[T]ens of thousands of [people] have been armed
and provided with up to 150 rounds of ammunition each.” 17
28. The diary also noted that on 18 January, Jovićhad a confrontation with Mesić, the then
Croatian President. Jović tried to convince him that the Croats should surrender their weapons, lest
the JNA take them by force. In response Mesić threatened to cripple the SFRY, threatening that
13
ICTY, Martić, Judgement, para. 344.
14
Jović Borisav: “Last days of SFRY, Diary excerpts”, p. 13; CMS Ann. 29; Memorial of Croatia (MC), Vol. 5,
App. 4.3. Also available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP…
Page=10 (IT-95-11 Jović Borisav: Last Days of SFRY, Diary, Excerpts, Exhibit: 00476).
15Jović Borisav: “Last days of SFRY, Diary excerpts”, p. 13; CMS Ann. 29; MC, Vol. 5, App. 4.3, p. 217. Also
available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP… (IT-95-11
Jović Borisav: Last Days of SFRY, Diary, Excerpts Exhibit: 00476).
16Jović Borisav: “Last days of SFRY, Diary excerpts”, p.13; CMS Ann. 29; MC, Vol. 5, App. 4.3; als o
available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP… (IT-95-11
Jović Borisav: Last Days of SFRY, Diary, Excerpts Exhibit: 00476).
17Jović Borisav: “Last days of SFRY, Diary excerpts”, p.13; CMS Ann. 29; MC, Vol. 5, App. 4.3; also
available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP… (IT-95-11
Jović Borisav: Last Days of SFRY, Diary, Excerpts Exhibit: 00476). - 15 -
the Croats would “immediately withdraw all their people from federal institutions, they will call on
all Croats, Slovenes, and Albanians to desert the army and oppose it, and . . . they will force a
18
direct showdown with the army” .
29. After further argument, Mesić agreed to surrender 20,000 weapons 19. On the subsequent
failure to do what he had agreed, Mesić later claimed that the weapons had been gathered up “to
the greatest possible extent” 20.
30. There is no dispute in this case, that befor e the JNA became actively involved in the
21
conflict, Croatian forces successfully blocked the JNA barracks in various parts of Croatia .
According to the Mrkšić Judgement, from 9 May until 4 August 1991, 340 attacks were carried out
22
against the JNA and staff in Croatia .
31. As found by the Mrkšić Trial Chamber, by the end of September 1991, the JNA barracks
in the city of Vukovar had been “blocked” by Croatian forces for an extended period of time. On
30 September 1991, a JNA unit was deployed from Bel grade on a mission, inter alia , to de-block
the barracks and relieve the JNA soldiers inside. A unit from Sremska Mitrovica had previously
23
been unsuccessful in a similar attempt .
32. As found by the Mrkšić Trial Chamber, on 2 October 1991 the JNA unit w as able to
24
de-block the barracks , but its more extensive offensive in Vukovar was halted by strong
resistance from Croatian forces. Within a few hours, 67 JNA men were wounded and one was
killed. The JNA requested that Croatian forces put down their wea pons and end the fighting but
this request was denied and fighting continued. As we know, t he battle for Vukovar between the
JNA and other Serb forces , and Croat forces on the other, then continued until
1Jović Borisav: “Last days of SFRY, Diary” excerpts, p. 13; CMS Ann. 29; MC, Vol. 5, App. 4.3, p. 227. Also
available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP… (IT-95-11
Jović Borisav: Last Days of SFRY, Diary, Excerpts Exhibit: 00476).
1Jović Borisav: “Last days of SFRY, Diary excerpts”, p. 13, CMS Ann. 29, MC, Vol. 5, App. 4.3, p. 227. Also
available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP… (IT-95-11
Jović Borisav: Last Days of SFRY, Diary, Excerpts Exhibit: 00476).
2Jović Borisav: “Last days of SFRY, Diary excerpts”, p. 13, CMS Ann. 29, MC, Vol. 5, App. 4.3, p. 229. Also
available at: http://icr.icty.org/frmResultSet.aspx?e=ch5vkz55q2eyhsfvfbivj2ye&StartP… (IT-95-11
Jović Borisav: Last Days of SFRY, Diary, Excerpts Exhibit: 00476).
2CR 2014/15 (Lukić), cite to Rejoinder of Serbia (RS), para. 23.
22
Mrkšić et al., Trial Chamber Judgement, para. 26.
2Mrkšić et al.,Trial Chamber Judgement, p. 16, para. 44.
2Mrkšić et al., Judgement,p. 16, para. 44. - 16 -
18 November 1991 . I will return to this subject later in the morning when considering the
patterns of violence.
33. The Stanišić and Simatović case also made relevant contextual findings. As discussed
yesterday, the Chamber made many findings consistent with widespread combat involving Croat
forces 26. The Trial Chamber accepted as adjudicated facts that there were several ongoing clashes
between Croatian armed forces and formations and the forces of the SAO Krajina from the spring
of 1991, including in Hrvatska Dubica and Hrvatska Kostajnica, where there was intensive fighting
27
during August and September 1991, which lasted until the beginning of October 1991 . In other
words, the Chamber took notice that this combat was not subject to reasonable dispute.
34. The Trial Chamber took the same approach w ith regard to combat between Croatian
armed forces and formations and the forces of the SAO Krajina from the spring of 1991 28 in other
locations. The Trial Chamber found that in March 1991, there were armed clashes between the
Croatian MUP special forces and the police of the SAO Krajina in Pakrac in Western Slavonia and
in Plitvice between Titova Korenica and Saborsko. In both of these clashes, the JNA intervened to
separate the two sides 29.
35. As found by the Stanišić and Simatović Judgement, the attack on the Glina police station
in early summer 1991 began as a result of a Croatian police attack. Thereafter, fierce fighting for
control over the area around the Glina MUP station and the surrounding fortificati ons ensued 30.
The Applicant’s witness who appeared in this courtroom and testified to these events was not
prepared to admit this, although she did admit that Serbian women and children were running from
their subjective fear of the Croatian police. The Stanišić Trial Chamber found objective facts that
explain that fear.
36. I could go on, but the Court may be relieved to know that I will not. Where do we find
commentary on these issues in the Applicant’s case? Instead, we get the continued insistence, that
25Mrkšić et al., Judgement,p. 17, para. 44.
26
Stanišić and Simatović, Judgement, para. 1001.
27Stanišić and Simatović, Judgement, para. 189.
28Stanišić and Simatović, Judgement,p. 97, para. 231.
29
Ibid.
30Ibid., para. 173. - 17 -
all that existed were hapless civilians desperately defending their homesteads, and a rather curious
claim that all combatants should be regarded as civilians.
37. Whilst this may have been true on occasion, and it may have been true that for some time
the Serb forces outgunned the Croat forces, this is a claim designed for no other reason than to
convince the Court that all military action by the Serb forces is evidence of a genocidal plan. Such
a claim is not supported by the ICTY or non-ICTY evidence.
38. Moreover, the proposition advanced by the Applicant last week to the effect that the
Court should regard those with weapons in precisely the same way as those without is a dangerous
submission in the context of basic tenets of international humanitarian law. The Applicant seeks,
not only to blur the distinction between civilians and combatants, but also to render opaque basic
questions of proportionality.
39. This submission risks creating the very “protection gaps” that the Applicant claims t o
want to avoid. The clarity of the principles of distinction and proportionality is critical, not only as
a protective measure for those not taking part in combat, but also in determining who is legally
authorized to take part in hostilities (and who is not), as well as to allow assessments to be made
concerning which unlawful conduct gives rise to criminal responsibility. Guantanamo Bay perhaps
tells us something about these latter points.
40. The characteristics of the person at whom a particular mili tary action is directed is
relevant to the assessment of the mens rea of genocide, or any alleged breach of international
humanitarian law. Any weapons are evidence of the intentions of those in possession of them, and
patently, of those who administer an attack.
41. The claim that thousands of Croats with hunting rifles, grenades, rocket launchers,
anti-tank weapons, armoured vehicles and the like, no doubt infused with the same aims and
objectives as Tuđman and his cohorts, should be regarded as civilians, really does risk undermining
important principles.
The claim that the Croat forces were not responsible for a myriad of similar crimes
42. As the Respondent has arg ued in its Counter -Memorial, there were a multitude of
discriminatory and persecutory crimes committed against the Krajina Serbs by the Croat forces, - 18 -
ranging from killings, disappearances, detentions, torture, forcible transfer, destruction and plunder.
I will not repeat the evidence at this closing stage.
43. However, it is worth turning to the fifth periodic report on the situation of human rights
in the territory of the former Yugoslavia submitted by Mr. Mazowiecki, Special Rapporteur of the
31
Commission on Human Rights, dated 17 November 1993 . Commenting on the displacements of
both Serbian and Croatian populations between 1991 and 1993, the report notes:
“The present report addresses the main areas of concern of the Special
Rapporteur with respect to the situation of human rights in the Republic of Croatia,
including the territories under the de facto control of the so- called ‘Republic of
Serbian Krajina ’. The violations of international human rights standards and
humanitarian law have been primarily employed as a means for ‘ethnic cleansing’. [I
pause here to say intriguing that the expert on the ground did not define it then as
genocide.] An important indication of the scale of this practice is the massive
displacement of persons primarily from areas where they constitute a minority.
According to UNHCR statistics, as of October 1993 there was a total of
247,000 Croatian and other non- Serbian displaced persons coming from areas under
the control of the so- called ‘Republic of Serbian Krajina ’ and 254,000 Serbian
displaced persons and refugees from the rest of Croatia, an estimated 87,000 of which
were situated in the United Nations Protected Areas. [I pause again here to note
Operation Storm was an attack on refugees.] The situation of the refugees [noted the
Rapporteur] and displaced persons has created serious humanitarian problems and
constitutes a major burden for society.” 32
44. No doubt, as the Martić Judgement found, many other offences were committed along
the way and were a foreseeable consequence of these criminal enterprises. Mr. President, Members
of the Court, who transferred the quarter of a million Serbian civilians? The “civilian defenders”
defending their homesteads?
Conclusion on context
45. So t o conclude the question of context . Mr. President, Members of the Court, the
Respondent has just laid out a sprinkling of the relevant context that the Applicant hopes you will
disregard.
3Fifth periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by
Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of
Commission resolution 1993/7 of 23 Feb. 1993, 17 Nov. 1993, UN doc. E/CN.4/1994/47.
3Ibid., para. 99. - 19 -
46. Disturbingly, there is cogent evidence from a number of sources, including Tuđman
himself, which confirms that Tuđman wanted and provoked this terrible ethnic war. It was his way
33
of ensuring the independent Croatia that he so desperately sought .
47. Tuđman’s Minister of Internal Affairs in 1991, Josip Boljkovac, confirmed this in his
testimony in 2009 at t he trial of former Osijek Mayor Glavaš, who was tried for crimes against
local Serbs.
48. He stated, inter alia, “[b]ack then in 1991, Serbs and Yugoslavia was under attack, not
Croatia” and Tuđman ‘wanted the war at any cost’”.
49. And further: “The war was not a necessity it was an intention. According to
Tuđman’s concept, Serbs had to disappear from Croatia.” 34
50. Tuđman it appears got the war he wished for and his legacy is stained with the blood of
his own and that of the Serbian people.
51. Of course, as the ICTY and non- ICTY evidence confirm s, he was not the only
irresponsible or hate-filled leader. Irresponsible leaders on both sides p ersuaded the citizenry that
they could not live together anymore and fuelled a brutal war for territory and survival, full of
violent excesses and persecutory crimes designed to punish and drive the people apart. To now
claim that this was not, in part, due to the offensive military and civilian policies of Tuđman and
his Government, does a disservice to logic, common sense and the truth. This is the context and it
cannot be ignored.
52. And so the Respondent suggests that the Court, instead of only looking at the Applicant’s
first four factors, looks at them with at least four more in mind. At a minimum, the following
needs to be taken into account:
(i) the political doctrine of Croatian expansionism and an ethnically homogenous Croatia;
(ii) the statements of public officials, including demonization of the Serbs and systematic
incitement by the Croat leadership which created the climate for war, persecutory crimes,
forcible transfer and deportation;
33Stanišić, Trial Judg ement, JF -40, P951, p. 114. Available at: http://www.youtube.com/
watch?v=xwQDoKxJVJ8.
34
“Tudjman’s Police Minister Admits Croatia Started the War by Attacking Serbs ”, available at:
http://de-construct.net/e-zine/?p=4869 - 20 -
(iii) the arming of the Croat population throughout Croatia; and
(iv) the use of the Croatian military forces to intimidate, discriminate and drive a quarter of a
million Serbs from their homes in Croatia between 1991 and 1993.
53. Each alone constitutes a strand that is essential to a more balanced account of the sources
and patterns of violence that provide a better understanding of intention. Together they constitute a
powerful repudiation of the Applicant’s claim to be the innocent victim of a genocidal campaign.
Patterns of behaviour
54. Let me now turn to the issue of patterns of behaviour. According to the Applicant, what
makes the “case so powerful” is the “interrelationship of ICTY findings and the body of witness
evidence” with regard to patterns.
55. However, as a further examination of the Mrkšić and Martić cases on these issues
demonstrates, this claim is without merit. There is nothing in the patterns of conduct identified in
the cases that provides support for the Applicant’s case.
56. Relying upon Mrkšic and secondarily, Martić, the Applicant asserts that the pattern was
as follows: (screen on)
[“(a) tension, confusion and fear is built up by a military presence around a village (or
bigger community) and provocative behaviour; (b) there is then artillery or mortar
shelling for several days, mostly aimed at Croatian parts of the village; in this stage
churches are often hit and destroyed; (c) in nearly all cases JNA ultimata are issued to
the people of a village demanding the collection and the delivery to the JNA of all
weapons; village delegations are formed but their consultations with the JNA do not
lead, with the exception of Ilok, to peaceful arrangements; with or without waiting for
the results of the ultimata a military attack is carried out; and (d) at the same time, or
shortly after the attack, Serb paramilitaries enter the village; 35at then follows varies
from murder, killing, burning and looting, to discrimination.” ]
I am going to just leave it on the screen for a moment but I will not read it; Mr. President,
Members of the Court, you are familiar with the pattern as laid out by the Mrkšic Judgement.
(Screen off)
3CR 2014/12, p. 24, para. 44 (Starmer), citing to para.43 of Mrkšić. - 21 -
57. The Applicant focuses upon phases (b) and (d): (b) that is the artillery shelling for
several days; and (d) the last stage where the paramilitaries w ent in. The Applicant claims that the
artillery attacks were so “grossly disproportionate as to refute any notion of a military operation” . 36
58. They also claim that the artillery and the subsequent infantry attack were inconsistent
with a plan to forcib ly transfer or deport and, if the plan was so limited , the forces would have
37
waited for the results of the ultimata .
59. The problem with the Applicant’s genocide case on these issue s is that this is not what
the judgements state nor may these conclusion s be reasonably inferred from them. Moreover, as
we will see in a moment, the Applicant provided the Court with only half of the picture and failed
to remedy this partial portrait in the second round.
60. First, and perhaps the most obvious point, the A pplicant claims that the patterns in
Mrkšić and Martić are somehow inconsistent with an intention to commit forcible transfer or
deportation, but this inference is precisely what was drawn in both cases. However widespread,
stark or horrendous the crime base found, this is the inference the judgements found or implied.
61. And, as the Respondent argued yesterday, the inference that the Applicant suggests is
irresistible, namel y that the Krajina and Serbian G overnments intended the acts that might
reasonably constitute the actus reus of genocide murder, physical and mental harm was not
found established in Martić, even beyond a reasonable doubt.
62. Second, if we might return to the patterns identified in Mrkšić and corroborated by
Martić. Looking at paragraph 43 of the Mrkšić Judgement that sets out the pattern of attacks that
we have just seen on the screen . The Trial Chamber supports the finding with one most relevant
report: a report by Ambassador Kypr of the European Community Monitoring Mission (ECMM).
It is this evidence the Chamber relied upon to find the pattern.
63. It is instructive to view this report. As the Court will see, the ECMM had conducted a
four-day investigation consisting of numerous interviews. It concluded I think that might be
difficult to read but I will read the relevant bit:
3CR 2014/12, pp. 25–26 (Starmer).
3Ibid. - 22 -
The PRESIDENT: Please, I just wish to tell you. Read because in the verbatim records only
what you read is reflected, not what you put on the screen. So, it is up to you.
Mr. JORDASH: Mr. President, thank you.
“The Monitor Mission is of the opinion that the JNA frequently in close
cooperation with Chetniks, (called reservists or territorial troops by the JNA) [and this
is the point] tried to displace as many Croats as possible by creating destruction and/
or panic. This view was also supported by a written report from anotherarea.
The JNA sc enario save the one for Ilok, often evolved along the following
lines.” (Emphasis added.)
64. And thereafter, as you will see, the ECMM details the pattern s that they had often
observed and upon which the Applicant now curiously relies to establish that this pattern had
nothing to do with mere dissolution.
65. Of course this report and any four -day investigation has its limitations and we ought to
be careful not to draw definitive conclusions from what happens “often”. There is nothing in this
report or nothing in the Mrkšić case to rebut the Stanišić and Simatović inference that the remainder
of the time, lawful combat was taking place.
66. But the point remains that the Mrkšić pattern was a pattern of ethnic cleansing, not crime
without a purpose, a nd not genocide. Once more, experts on the ground at the time failed to
observe genocide. As the Applicant admits, this pattern is corroborated by findings in the Martić
Judgement.
67. As found by the Martić Trial Chamber, paragraph 427, the pattern of the attacks led the
Chamber to conclude beyond a reasonable doubt that the “ primary objective” was the removal of
the population. Whilst Martić had not been charged with genocide, there was nothing to prevent
the Trial Chamber from concluding that the pa ttern was indicative of an intent to persecute or to
exterminate or worse.
68. Moreover, the Chamber went further than the Mrkšić Chamber in identifying a pattern.
It noted, inter alia, that,
“In some instances the police and the TO of the SAO Krajina organised
transport for the non-Serb population in order to remove it from SAO Krajina territory
to locations under Croatian control. Moreover, members of the non -Serb population - 23 -
would be rounded up and taken away to detention facilities, including in ce ntral Knin,
38
and eventually exchanged and transported to areas under Croatian control.”
69. The Chamber concluded the following, that “[b]ased on the substantial evidence referred
to above, the Trial Chamber finds that due to the coercive atmosphere in th e RSK from 1992
through 1995, almost the entire non- Serb population was forcibly removed to territories under the
control of Croatia” 39.
70. As I discussed at the beginning, this was mirrored on the Croatian side with an equal
number of Serbs being removed from the Croatian areas. Indeed, as the Applicant’s Memorial
confirms at numerous paragraphs 4, to a large extent one such removal led to another with civilians
moving into their counterpart’s houses, as happened for example with Serbs who had been
removed from Western Slavonia 41in 1992 who subsequently fled to Eastern Slavonia and removed
Croats from their houses. A terrible process of tit for tat.
71. As with the independent ECMM investigation, had the Martić Chamber found that the
“primary objective” of the pattern was something other than forcible transfer, there was nothing to
prevent them from saying so. It would not have prevented them or the independent ECMM, which
was not restrained by an indictment, from finding that the accused intended something more.
72. Indeed, we saw a little of these types of additional findings in the Mrkšić Judgement.
The Trial Chamber identified a pattern that demonstrated that the overall effect of the evidence was
to “demonstrate that the city and civilian population of and around Vukovar were being
punished” 42. As we can see, identifying multiple intentions, or alternative motives, does not
prevent convictions from being entered on the basis of the indictment.
73. Indeed, the Chamber, arguably, has a duty to do so, to ensure that the a ccused’s
culpability is properly described and that sentencing proceeds on the right footing.
74. The Applicant’s case is not to be found in the patterns.
38
Martić, Judgement, para. 427.
39
Martić, Judgement, para. 431.
40MC, paras. 4.30, 4.93, 4.46, 4.37, 4.65, 4.132, 4.61, 4.112, 4.106, 4.80.
41
CIA, Balkan Battlegrounds, p. 102.
42
Mrkšić, Judgement, para. 471. - 24 -
Vukovar
75. It is worthwhile examining the chronology of the Vukovar case to assess why the Trial
Chamber in Mrkšić did not arrive at the conclusion that the Serb forces were seeking destruction. It
is worthwhile dividing the Vukovar operations into two phases: the f irst was the fight to take the
city and the second was the evacuation and crimes upon the Croat forces that took place after the
surrender. I will look at the second phase in my concluding remarks. For the moment my focus is
on the three months siege or battle prior to the surrender.
76. The following chronology, taken from the MrkšićJudgement,is instructive:
(i) by the end of September 1991: the JNA barracks in the city of Vukovar had been
“blocked” by Croatian forces for an extended period of time 43. The JNA soldiers were
unable to leave. They had no access to water and electricity and were subject to weapons
fire44;
(ii) 30 September 1991: as I have described, a unit was sent from Belgrade to de -block the
barracks 45;
46
(iii) 2 October 1991: the brigadede-blocked the barracks ;
(iv) from 2 October until 18 November 1991: the JNA was engaged in attack operations in
and around the city of Vukovar. This is the beginning of the point. There was strong
resistance from the Croatian forces that included the Territorial Defence, members of the
Ministry of the Internal Affairs (MUP), the National Guard (ZNG) and a small number of
a newly created Croatian defence forces. By the height of the siege of Vukovar, the
47
number of Croat combatants may have reached 1,700 to 1,800 . While ceasefire
agreements were reached from time to time, both sides violated them 48;
43Mrkšić, Judgement, para. 44, citing to Miodrag Panić, T 14268.
44
Mrkšić, Judgement, para. 44, citing to Miodrag Panić, T 14268; Božidar Forca, T 13259.
45Ibid., para. 44.
46Mrkšić, Judgement, para. 44, citing to Miodrag Panić, T 14268.
47
Mrkšić, Judgement, para. 40, citing to Exhibit 391, pp. 207-208.
48Mrkšić, Judgement, para. 52, citing to Exhibit 88; Exhibit 401, p. 16; Exhibit 798, p. 59 and Exhibit 868, p. 37. - 25 -
(v) by 8 October, according to the Mrkšić Judgement: all villa ges Arengrad, Bapska,
Mohovo, Tovarnik and Ilica had been attacked by the JNA, except Ilok. Most of the
population was concentrated in Ilok ; 49
(vi) 17 October 1991: around 8,000 of the people, mainly Croats who were centred in Ilok,
50
were forced by the circumstances to leave ;
(vii) by 12 and 13 November: there was street fighting close to the centre of Vukovar 51; and
52
(viii) as we know, on 17 November: negotiations for surrender began .
77. So a number of brief points if I may. This chronology of findings explains the facts that
explain why the Chamber did not find an intention to destroy but only to punish, but it also further
undermines the Applicant’s case with regard to what this operation involved. It is this chronology
that led the Chamber to make the following two pivotal findings with regard to this first phase.
First,
“What occurred was not , in the finding of the Chamber, merely an armed
conflict between a milita ry force and an opposing force in the course of which
civilians became casualties and some property was damaged. The events, when
viewed overall, disclose an attack by comparatively massive Serb forces, well armed,
equipped and organised, which slowly and systematically destroyed a city and its
civilian and military occupants to the point where there was a complete surrender of
53
those that remained.”
And,
“It is in this setting that the Chamber finds that, at the time relevant to the
Indictment, there was in fact, not only a military operation against the Croat forces in
and around Vukovar, but also a widespread and systematic attack by the JNA and
other Serb forces directed against the Croat and other non- Serb civilian population in
the wider Vukovar ar ea . . . It was an unlawful attack. Indeed it was also directed in
part deliberately against the civilian population.” 54
And the emphasis is mine.
78. Plainly, this does not paint the Serb forces in flattering colours, but once again it does
expose the Applicant’s rhetoric. Contrary to their claim, the Chamber did not find that there was
49Mrkšić, Judgement, para. 46, citing to Exhibit 305, p. 2.
50
Mrkšić, Judgement, para. 46, citing to Exhibit 308, p. 1 and Exhibit 383.
51
Mrkšić, Judgement, para. 50, citing to Aernout van Lynden, T 3107 -3109.
52Mrkšić, Judgement, para. 145.
53
Mrkšić, Judgment, para. 470; emphasis added.
54
Mrkšić, Judgement, para. 472; emphasis added. - 26 -
no legitimate combat, only that the military operation against the Croat forces in and around
Vukovar was made unlawful because part of it consisted of an attack on the civilian population,
designed to punish them for refusing to surrender.
79. The finding of legitimate combat is entirely consistent with Croatian sources. Two
examples will suffice. First, the views expressed by Davor Marjan, one of the leading Croati an
55
historians on the war in Croatia . He stated that, by the beginning of September1991, the number
of Croatian forces in the Vukovar, and neighbouring towns of Vinkovci and Ž upanja,
56
reached 5,000 . Battles, important for the seizure of Vukovar, raged along the
Vukovar-Bogdanovci-Vinkovci line. By 1 October 1991, Bogdanovci was at the centre of the
57
conflict. It was completely encircled by the JNA but defended heavily by the Croatian forces .
80. Just as a brief aside. The Applicant’s own historians appear to disagree with the
Applicant’s case and the witness, Marija Katić, who testified that the crimes in Bogdanovci were
unrelated to combat 58. Undoubtedly horrible crimes were committed in that town, but, once again,
the pattern is combat and excesses arising therein.
81. The second source, the Croatian Homeland War Memorial and Documentation Centre in
59
2001 corroborated the views of Davor Marjan. It cites to sources that suggest that a minimum of
1,200 JNA soldiers and 879 Croatian army soldiers were killed and the Croatian forces destroyed
as many as 300 to 500 armoured vehicles, including up to 200 tanks and between 20 to 25 planes 60.
82. Is the Applicant really suggest ing that those who downed planes, stopped tanks, and
killed hundreds, if not thousands, of JNA soldiers, should be accorded civilian status? Is this the
protection gap that the Applicant urges upon the Court in its quest to find genocide where none
exists?
55
See Davor Marijan, “Bitka za Vukovar 1991” (The battle of Vukovar 1991), Scrinia Slavonica, Vol. 2, No. 1
Listopad 2002. Available at: http://hrcak.srce.hr/11352
56
Ibid. p. 371.
57Ibid., pp. 374-395.
58CR 2014/8, pp. 18-19, paras. 42-43 (Ní Ghrálaigh).
59
See Anica Marić & Ante Nazor, Greater-Serbian Aggression against Croatia in the 1990s, Croatian Homeland
War Memorial and Documentation Centre, Zagreb, 2011. Available at: http://centardomovinskograta.hr/pdf/izdanja2/1-
244-Vukovar-engl-FINAL-03-04-11-opt.pdf.
60Ibid., pp. 68-72. - 27 -
83. Another point arises from the Vukovar chronology. As is plain from the chronology, by
8 October 1991, the Cham ber found that all the villages had been attacked by the JNA and I
listed the five a moment ago except Ilok. Most of the population o f these villages was
concentrated in Ilok 61, as found by the Mrkšić Chamber. As confirmed by the Applicant in their
written pleadings , Ilok was the “initial site of refuge for Croats banished from other parts of
Eastern Slavonia” 6.
84. What happened next will assist the Court in determining whether the intent of the Serb
forces in Eastern Slavonia was genocidal or something else?
85. As found by the Mrkšić Trial Chamber, on the 17 October 1991: around 8,000 of the
63
people, mainly Croats, were forced by the circumstances to leave Ilok . Interestingly, the
Applicant claims that the number who left equalled 15,000 64. Whether it was 8,000 or 15,000,
there is no dispute that the number consisted of civilian refugees who had escaped or,
according to the Applicant, banished from neighbouring villages. There is no dispute either
that the departure of this group was one of the largest single incident of departure of civilians from
Eastern Slavonia.
86. As found by the majority in the Staniši ć and Simatović Trial Chamber, those who left
Ilok did so after a referendum was held and that the citizens expressed a wish to leave for
Croatia-held territory, as the JNA had issued an ultimatum to the armed formations in Ilok to
surrender and disarm and the citizens and had heard of the conditions in the surrounding villages.
The Trial Chamber, having considered the evidence, that included detailed evidence relating to the
surrounding villages, the majority I should have said “the majority”, not the “Trial Chamber”
found that there was insufficient evidence to conclude that the environment was such that the
inhabitants had no choice to leave and declined to enter convictions on the charges 6. Rather than
genocide, or even forcible transfer, the major ity found that the combat that led to their departure
from their homes, and eventually from Ilok, was in essence lawful.
61Mrkšić, Trial Chamber Judgement, para. 46, citing to Exhibit 305, p. 2.
62
MC, para. 4.62.
63ICTY, Mrkšić, Judgement, para. 46, citing to exhibit 308, p. 1 and exhibit 383.
64MC, para. 4.62.
65
ICTY, Stanišić and Simatović, Judgement, paras. 1047-1048. - 28 -
87. To conclude on the patterns, there is no easy answer, but genocide is not one of the many
answers. From beginning to end, the Applicant’s case fails to address the complexity of the ICTY
and non-ICTY evidence that shows a multitude of patterns giving rise to inferences of combat
and/or forcible transfer and/or punishment, and many others things besides besides genocide,
that is.
88. No one at the time we have seen that in the reports no serious commentator
concluded genocide was taking place.
Opportunity
89. Let me now turn finally to opportunity. The Applicant stated last week that, “Serbia now
accepts the evidence of genocidal intent is to be determined in part by reference to the opportunity
66
that presents itself” .
90. This is only partly correct. Serbia accepts that opportunity might play a role in the
assessment of genocidal intent. However, the Applicant’s approach to th is issue undermines the
Court’s reasoning in the Bosnia case and risks depriving the Court of any practical means of
concretely determining the existence or non-existence of genocidal intent.
91. The subject of opportunity arose in the Bosni a case in one very specific circumstance,
namely whether and , if so, how intent to destroy a part of a group might be inferred if an attack
took place in a “geographically limited area”. What the Court meant by geographically limited
area needs to be explained. And I will do so. However, the point is that i t is important to hold on
to the questions that we have been asked by the Court.
92. In the Bosnia case, the Court observed that it is
“widely accepted that genocide may be found to have been committ ed where the
intent is to destroy the group within a geographically limited area. In the words of the
ILC, ‘it is not necessary to intend to achieve the complete annihilation of a group from
every corner of the globe’. The area of the perpetrator’s activity and control are to be
67
considered.”
“The area of the perpetrator’s activity and control are to be considered.”
6CR 2014/12, p. 51, para. 19 (Starmer).
6Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) , Judgment, I.C.J. Reports 2007 (I), (hereafter Bosnia),126, para. 199;
emphasis added. - 29 -
93. As must be immediately obvious, this is of little relevance to the Applicant’s case, which
is premised on an attack throughout thousands of square kilometres of Croatia and without the
glimmer of a restriction on the opportunities to destroy. This is the Applicant’s case and I will
return to it in a moment.
94. The Court went on to say in the Bosnia case:
“As the ICTY Appeals Chamb er [in Krstić ] has said, and indeed as the
Respondent accepts, the opportunity available to the perpetrators is significant . This
criterion of opportunity must however be weighed against the first and essential factor
of substantiality. It may be that th e opportunity available to the alleged perpetrator is
so limited that the substantiality criterion is not met. The Court observes that the
ICTY Trial Chamber [in Stakić ] has indeed indicated the68eed for caution, lest this
approach might distort the definition of genocide.”
95. So, we see, t he Applicant seeks to rest its case on the Court’s comments concerning
opportunity, whilst disregarding the focus of the Court’s discussion, namely how the opportunity is
relevant to the “essential factor of substant iality” and the question of intent when the perpetrator ’s
control is limited.
96. Why has the Applicant removed substantiality and control from the equation? Because
Croatia knows that on any sensible assessment of their claim, the substantiality criteria has not been
satisfied.
97. On their case, it cannot be argued that there was the type of geographical or any other
type of limitation envisaged in Bosnia . Indeed, only last week the Applicant derided the
geographical scope of Operation Storm, arguing that it compared unfavourably to Croatia’s bigger
claim, which “concerns events occurring in six different regions of Croatia, over one -third of its
entire territory”69.
98. The Applicant’s claim is premised on the argument that every single action by every
Serb military unit or individual across the whole of Dalmatia, and Western and Eastern Slavonia
for a period of five years was in furtherance of genocide. And that this overwhelming military
force dwarfed the Croatian territory and the civilian p opulation. Where, one might ask, was the
opportunity limited?
68Bosnia, pp. 126-127, para. 199, citing Krstić, Judgement, 19 April 2004, para. 13 and St́, Judgement,
31 July2003, para. 523; emphasis added.
69CR 2014/19, p. 58, para. 10 (Sands). - 30 -
99. The Applicant cannot have it both ways. As they argue, the opportunity was as extensive
as it could be.
100. However, what is limited on their case, is any coherent pattern of destruction that might
reasonably give rise to an inference, whether beyond a reasonable doubt or any other threshold, that
the intent was designed to destroy a substantial part of the group. The figures do not add up, and
the Applicant knows it.
101. In five years of war, across this vast area, with purportedly overwhelming military
might, most of the Croatian civilians were not harmed, leaving aside and I say this with due
respect forcible transfer and deportation. Most were allowed to leave and most did . Nothing I
say is designed to justify the horrendous crimes, but the statistics and the way the Applicant deals
with them speak for themselves.
102. During the second round, the Applicant purported to clarify that 12,000 civilians were
killed in the alleged genocide throughout the war in Croatia 7. However, what the Applicant failed
to also state is that this same source found that 50 per cent of this total were civilians and the rest
were not 7.
103. Moreover, it is safe to assume and the burden of course is on the Applicant to prove
otherwise that not all of these were killed unlawfully. They may have been the victims of
lawful combat.
104. Further, even this figure is thrown into doubt when one considers other sources.
According to Mr. Zivic, the leading Croatian demographic expert, 8,147 Croatian soldiers died
during the war. If this is correct and contrasted with the other, or with the Applicant’s source, this
would reduce the number of Croatian civilians killed in the whole five years of wa r to
approximately 4,000 horrendous for sure, but a small portion of the whole.
105. Of course the Applicant does not only rely only upon killings, and the actus reus of
genocide is satisfied by other Article II acts provided they are committed with g enocidal intent.
However, the figures of 4,000-6,000 civilians or less killed across five years of war and throughout
7CR 2012/20, p. 34, para. 21 (Ní Ghrálaigh).
7See Anica Marić & Ante Nazor, Greater-Serbian Aggression against Cro atia in the 1990s Croatian
Homeland War Memorial and Documentation Centre, Zagreb, 2011, p. 368. Available at: Erreur ! Référence de lien
hypertexte non valide.. - 31 -
vast amounts of territory with such extensive opportunity, especially when compared with th ose
who left or were removed, speaks eloquently to a lack of demonstrable genocidal intent.
106. As an aside, it is important to note that the figures proffered by the Applicant in relation
to the Vukovar operation and the numbers given therein appear to be an attempt to remedy this
numerical problem. Even though the Applicant claimed that the number of civilians killed in
Phase 4 — the Applicant’s phase 4, the Vukovar siege — was 2,000, scrutiny of the pleadings will
show that there is absolutely no basis for this assertion 72. The Respondent will ret urn to this issue
this afternoon.
107. Having realized this gaping lacuna in their case, the Applicant has sought to shift the
law. First, we heard how “substantiality” has never been part of the law. And now this, an attempt
to distort the Bosnia holding with regard to the significance of “opportunity”.
108. And where has the Applicant ended up? In the middle of Professor Sand’s “hamlet”
thesis, wherein he argued that the intention to destroy the group or a substantial part of the group
might be discerned from an attack on a “state, or a region, or a town, or a village, or a hamlet, or
73
even something smaller” .
109. Further, the Applicant also distorts the Respondent’s submissions on the issue by
asserting that the Serbia agrees with this attempt to re move the substantiality requirement because
the Respondent “told the Court that the intent to commit genocide can be found where only a ‘few
Article II attacks occurred’” 7.
110. The Applicant appears to suffer from a bout of wishful thinking, which may ea sily be
cured. This is not what the Respondent said , nor did this Court in the Bosnia case. On the
contrary, the Court (and the ICTY) ruled that geographically limited areas may well present a
problem with regard to inferring such intent: “ . . . lest this approach might distort the definition of
genocide.” 75
72
CR 2014/12, p. 11 (Starmer). No footnote for this claim.
73CR 2014/6, p. 22, para. 31 (Sands).
74CR 2014/20, p. 11, para. 4 (Sands).
75
Bosnia, Judgement, para. 199, p. 127, citing Stakić, Judgement, 31 July 2003, para. 523. - 32 -
111. Of course, this is a question of evidence and not strictly a question of the substantive
law: how to infer intent to destroy in whole or in part from deeds done. The substantiality factor
is critical to this assessment. How else is the Court to distinguish Article II acts from Article II acts
committed with the required intent?
112. How can an attack on a hamlet that kills or physically harms four people for wholly
personal reasons devoid of genocidal intent be distinguished from an attack that results in the
same, but committed with genocidal intent? That is the fundamental problem with
Professor Sand’s “Hamlet thesis”: to be or not to be genocide? That is the unanswerable question.
113. Let me take a down to earth example: one of the men from the gang called Š iltovi, who
Ms Milić testified to terrorizing her village, breaks into her neighbour’s house and steals all the
valuable items. In order to destroy any evidence of their crime, t hey kill every member of the
Croat family and burn the house to the ground. They have taken every conceivable opportunity to
destroy.
114. On the Applicant’s interpretation of the law, they are more likely to have genocidal
intent because they took every opportunity available to them at that time to destroy. Of course, this
does not follow. They no more have genocidal intent, than if they had crept in quietly in the night,
and left without anyone noticing.
115. Opportunity when viewed on its own may lead us down a seductive, but wholly
erroneous, path, which is where the Applicant wants to take the Court.
116. Contrary to the impression the Applicant wants to convey, removing the substantiality
requirement and replacing it with opportunity does not strengthen the Convention. It renders its
protections illusory and undermines its utility. Everything and nothing looks like genocide.
117. Substantiality provides the Court with a practical means of determining the question of
intent. In this circumstance, the question of overall opportunity may tell us something about intent
with regard to the whole or part of the targeted group. It speaks to whether the perpetrator’s
destruction would have gone further, but for manifest limitations of control.
118. As the Parties have agreed elsewhere, the question of intent to destroy in whole or in
part is to be inferred from a range of factors. I will not rehearse them here, I am sure the Court has
them in mind. As this Court ruled in the Bosnia case, the specific intent to destroy the group in - 33 -
whole or in part, “has to be convincingly shown by reference to particular circumstances, unless a
general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to
be accepted as evidence of its existence, it would have to be such that it could only point to the
76
existence of such intent” .
119. In circumstances where there is a general plan to that end only a “few Article II ac ts”
may be required. Back to the Š iltovi gang example I gave a moment ago . If that gang had
destroyed the one house and the Croat family, but had written down a plan explaining that they
intended to keep going until they had destroyed every Croat in the area, but were arrested prior to
the execution of this plan, then it still might be possible to infer an intent to destroy a substantial
part of the group from, what the Respondent stated previously, the plan and relatively “few
Article II acts”.
120. The Applicant’s overall claim that whenever “the advancing Ser bs were presented with
an opportunity either to move their hapless bombarded victims on, to expel them, or to destroy
them. The result was the same in almost every case. They took their opportunity and they
destroyed them” 77. This is obviously not made out on the evidence.
121. Having appreciated this, the Applicant falls back on carefully selecting the worst
examples of criminal events (Vukovar, Sarbosko, Lovas, and Skabrnja) arguing that the
perpetrators took every opportunity to destroy in these loca tions. The Applicant hopes that the
Court does not cast its eye across the whole territory, the whole range of patterns and the totality of
the available control.
122. So to conclude the question of opportunity. The Applicant has offered no explanation
as to why an army of this purported size and capability, hell-bent on destruction, would only launch
an infantry attack or allegedly send in the paramilitaries after days or weeks of the shelling of the
location, the issuance of an ultimata and consultations with the local authorities?
123. The question of whether an attack took place “with or without waiting for the results of
the ultimata” does not circumvent the need to answer this question.
76Bosnia, Judgement, p. 197, para. 373.
77CR 2014/12, pp. 27-28, para. 55 (Starmer). - 34 -
124. The Applicant has offered no meaningful argument on the Martić finding that the
overwhelming number of civilians were permitted or allowed or forced to leave the region . 78
125. The Respondent takes no issue with the Applicant’s submissions that the actus reus for
genocide, can be constituted by acts other than killing. Serious bodily and mental harm, for
79
example, are obviously sufficient if committed with genocidal intent” and obviously an
80
assessment of intent, does not require that “the whole group was physically killed” .
126. However, the Applicant still n eeds to explain why when considering the overall
geographical level of control, the majority of the civilians were not killed or subject to acts that
might give rise to the inference that this was the prevailing intent, whether in the immediate or the
longer term.
C ONCLUDING REMARKS
127. Moving to my concluding remarks. I want to try to pull all these threads together. The
Applicant fails to fairly address the issues that are critical to its claim. As is clear, the real point in
this case is not whethe r the Serb forces did or did not commit crimes, but whether the overall
pattern of crimes shows that genocide was taking place. Despite the horrors of widespread crimes,
the answer to this question is abundantly clear.
128. Whilst purporting to examine the context, patterns of behaviour and opportunity, the
Applicant twists and turns to escape the obvious conclusion.
129. The Applicant’s approach to the killings at Ov čara surely the high point of their
claim is emblematic of this approach. The Applicant’s critique of Mr. Obradović’s reliance
upon two examples of how civilians were evacuated from Eastern Slavonia, including Vukovar , is
an example of the alarmingly reductionist approach that the Applicant seeks to adopt.
130. We are being led to believe that because some of the Serb forces committed crimes at
Velepromet and Ovčara and took the opportunities to do so, ipso facto, genocide is established 81.
78
Martić, Judgement, para. 431.
7CR 2014/20, p. 54, para. 30 (Starmer).
8Ibid.
81
CR 2014/10, pp. 51-56, paras. 19-36 (Starmer). - 35 -
131. The Applicant falls back on this easy critique because an examination of the causes of
this incident, situated in the war and the protagonists, the patterns, and a holistic approach to
opportunity, exposes the lack of merit in the claim.
132. When one looks at the second phase of the Vukovar operations , the Respondent’s
second phase when the town had surrendered, and when one looks at it through a less myopic lens,
it looks like an evacuation that was overwhelmingly successful , with a small element that went
wrong. Very, very, wrong, and I do not mean to demean the personal tragedy. But, nevertheless, a
lawful evacuation negotiated between the JNA, the Croatian leadership, and the international
community in which an excess of violence led to the commission of crimes by the few
directed at a very small fraction of the whole and directed at those who had been in the Croatian
forces.
133. The violence cannot be explained as a simple case of planned destruction for
destruction sake. This was the case effectively rejected by Mrkšić, not only in the finding that there
was lawful combat, but also in the reminder of the specific findings.
134. A brief look will suffice. As found by the Trial Chamber, the JNA, the three accused
and no one else beside s were not a part of a joint criminal enterprise to kill or harm any of the
civilians or the prisoners of war. The subsequent violence in Ovčara was not found to be the result
of a plan, whether a plan to kill or punish, let alone one that might look like genocide82.
135. Indeed, the Chamber found that on 20 November 1991, the JNA did delay the ECMM
83
monitors and the ICRC representative s but that was in order to advance a lawful plan . The
Chamber found that the plan and this action, the delay was in furtherance of the evacuation
of the civilians; and to separate the combatants, where they would be investigated for involvement
in the war and war crimes. This was perfectly lawful, even if it did not go according to thatplan.
136. The Chamber held that the
“purpose of the selection and removal of not less than 200 member s of the Croat
forces from the Vukovar hospital was for them to be taken into JNA custody,
transferred to a prisoners of war facility, perhaps at least in some cases for questioning
8Mrksić, Judgement,para. 608.
8Ibid., para. 211. - 36 -
as war crimes suspects and trial and subject to that, for a prisoner of war exchange at a
later time” .4
137. The Mrkšić Chamber found that:
“Security measures put in place at times in the afternoon at Ovčara by JNA
military police, albeit temporarily and insufficiently, prevented effect being given to
any common purpose as alleged, which tends to contradict the pr oposition that there
was any common purpose, as alleged, involving JNA troops under the command of
any of the Accused.” 85
It is worth repeating. The Chamber found that the JNA was not part of any plan to kill the men and
there was no common criminal purpose at all.
138. When the Applicant talks of a moment to test the true intent of the Serb forces, perhaps
we need to look no further. As found by the Trial Chamber, on 18 to 20 November 1991, a system
was put in place that was intended and did lead to th e evacuation of the vast majority of the
civilians, around 4,000 in all, to either Croatia or Serbia. The evacuation was assisted by the
86
JNA .
139. At the very least, this pattern of evacuation sits uneasily with the claim that the Serb
forces were hell bent on destruction. As the Applicant noted, the city was on its knees, a brutal
battle was over, the opportunity for destruction was optimal, yet the pattern was clear: they were
almost to a man, woman, and child transferred to Serbia and Croatia.
140. The number of those who were killed was horrendous, but it was a tiny fraction of the
whole. It was a personal tragedy for the individuals and their loved ones, but not something that
was aimed at or capable of undermining the physical existence or biology of the group.
141. There is also no dispute that the perpetrators of the 194 killings at Ov čara acted in the
understanding that their acts were directed against members of the Croatian forces. It was not an
attack against the civilian populations as such. That is what the Trial Chamber found and that is
why the Trial Chamber declined, in parag raph 481 of the Judg ement, to conclude that it was a
87
crime against humanity .
84
Mrksić, Judgement, para. 579.
85Ibid., para. 596.
86Ibid., para. 157.
87
Mrksić, Judgement, para. 481. - 37 -
142. The Applicant argues that Mr. Obradović’s example of the evacuation of 250 women
and children and others on 20 November 1991 is misleading because this evacuation was “heav ily
monitored” by the ECMM and the ICRC and that this has to be contrasted with what happened at
Velepromet and Ovcara 88.
143. However, this analysis, whilst seductive, does not address any of the aforementioned
context or patterns. It does not explain why the Mrkšić Chamber found that throughout the
evacuation the Serb forces distinguished between the civilians and the fighting forces and why all
of the civilians and the overwhelming vast majority of the armed forces were all evacuated, with or
without monitoring 89.
144. It does not address why the pattern of evacuation looks a little like the Mrkšić or Martić
pattern, or even more like the pattern found by the Stanišić Trial Chamber, of lawful evacuations in
Ilok in July 1991. The Applicant prefers to focus on the highlights of the abuse, as if this is
sufficient to demonstrate genocidal intent.
145. The Applicant takes a similar approach to the Agent of Serbia’s second example,
namely the fact that 2,786 Croats, including more than 1,000 men imprisoned with Mr. Kožul at
Stajićevo, were released, not killed 90. The Applicant appears to accept that these men were not
intentionally killed, and that the ICRC was given access to the camp, but argues that those detained
were “mainly civilians” and that the Serb forces t ook the opportunity to commit other genocidal
91
acts .
146. The Applicant makes a valid point, which I have repeated several times, about the need
to look beyond the crimes of murder because the actus reus of genocide is satisfied by other
92
Article II acts committed with specific intent . However, once more , the Applicant falls back on
opportunities taken and the highlights of the abuse, rather than the context, the patterns and other
salient issues that might illuminate intent.
88CR 2014/20, pp. 51-54 (Starmer).
89
Mrksić, Judgement, paras. 167, 168, 201, 207 and 474.
90CR 2014/13, p. 67, para. 48 (Obradović).
91CR 2014/20, p. 57, paras. 40-44 (Starmer).
92
CR 2014/20, p. 54, para. 30 (Starmer). - 38 -
147. First, the Applicant a sserts that those detained were mainly civilians, but fails to
establish this fact. As found by the Mrkšić Trial Chamber, there was a clear pattern throughout the
evacuation of distinguishing civilians from those suspected of being involved in combat. The men
were detained as prisoners of war.
148. As confirmed by Mr. Kožul, the men were separated from the women, children and the
93
elderly and released . True, Mr. Kožul claimed that the men he was detained with were “mostly
civilians”, but immediately co ntradicted this claim by admitting that the first major release of
94
detainees was 110 Croatian police . During his testimony, he further contradicted himself by
admitting that he did “not know the num ber of civilians or soldiers in . . . the two stables” 95. The
Mrkšić Judgement makes it very clear.
149. Moreover, the men were all questioned by the military intelligence, clearly to establish
whether they had participated in combat. Mr. Kožul was eventually exchanged as a member of the
96
Croatian army .
150. Therefore, it is plain , we say, that the violence, although inexcusable, is also
explainable in context. While there is no need to establish that the group is killed, there is a
need to examine the prevailing circumstances to ascertain whether there are other explanations for
the violence. Whether we focus on the beatings, or the handful of killings that resulted, it was
plainly the result of excesses during, what would otherwise have been a lawful military action,
evacuation, interrogation and release.
151. These circumstances were not about creating or making use of opportunities for
destruction, they were about identifying combatants or war criminals . And an excess of violence
that did not and was not capable of leading to death or destruction of the group does not change
that fact. Upon examination of the issues in context , Mr. Obradović’s submission is plainly
correct.
93
CR 2014/7, p. 16.
94MC, Ann. 154, p. 3.
95CR 2014/7, p. 17.
96
MC, Ann. 154, p. 4. - 39 -
152. And so to conclude.Looking carefully at the ICTY j udgements and the non- ICTY
evidence, the context and patterns are clear. When looking at the overall opportunity available to
the Serb forces and the numbers of those killed or injured, it is clear. When looking at the nature of
the crimes, it is clear.
153. It is all pretty horrendous and tragic, no doubt. This is what happens when irresponsible
vainglorious men use and abuse their own populations to pursue personal ambitions to make their
mark on history.
154. However, it is not genocide. The facts do not fit and the law does not fit. No one then,
and no one now, not even the Applicant, really believethey do. Mr. President, Members of
the Court, thank you for the time. I will, with the Court’s leave, hand over toSchabassor
who will deal with further issues in relation to the Applicant’s claim.
The PRESIDENT: Thank you very much, Mr. Jordash. I now call on Professor Schabas. He
can start and perhaps after 15- 20 minutes, at an appropriate place in his pleading, he can pause.
You have the floor, Professor Schabas.
Mr. SCHABAS:
RESPONSE TO THE APPLICANT ’SS ECOND R OUND OF O RAL P LEADINGS A LLEGING
THE C OMMISSION OF GENOCIDE
Introduction
1. Thank you very much, Mr. President, Members of the Court. This morning, in response to
the Applicant’s oral pleadings of last week concerning its claim, I would like to draw the attention
of the Court to a number of issues. First I will discuss the actus reus of the crime of genocide and
the interpretation of Article 2 of the Convention. I will then address the relevance of the issue of
missing persons to the crime of genocide. Next,I will turn to the standard of proof be
contemplated in light of theJudgement in the Bosnia case and relevant case law of other
international tribunals, in particular, the regional human rights courts (notably the European and the
Inter-American Courts of Human Rights), as well as the ICTY, bearing in mind the questi on from - 40 -
Judge Cançado Trindade. And I will conclude my presentation with remarks on the ICTY Tolimir
case.
The actus reus and the interpretation of Article 2 of the Genocide Convention
2. There are differences of opinion between Croatia and Serbia about the construction that is
to be given to Article 2 of the Convention. One of the se concerns the notion of actus reus. On
several occasions, reference has been made to the actus reus, generally in the context of remarks
such as “the actus reus is not in dispute ” or “ the actus reus has been admitted ”. By this, the
implication seems to be that one of the punishable acts listed in the five paragraphs of Article 2 of
the Convention has been committed. Last week, Croatia spoke to the issue and contended that
Serbia had admitted that the actus reus of genocide had been committed because it “made no effort
to argue that there was no killing, no causing of serious bodily or mental harm to members of the
97
group” . Croatia went on to state: “ It is not necessary, for the actus reus of genocide to be
established, for there to be an aggregation of different acts. Individual acts on their own are
sufficient to constitute genocide. ” 98 Indeed, in answer to Serbia’s propositions on the subject
concerning the importance of the scale of the crime, Croatia answers “ [t]hat is not what the
Convention says” 99, as if a purely literal reading of the words of Article 2 is really going to provide
us with clarity about its interpretation . The consequence of the interpretation proposed by Croatia
seems to be that once the Court determines that there has been a killing of a member of the
group presumably two would be enough, given the plural form of “members” in Article 2,
paragraph (a) or an act causing serious bodily or mental harm, the Court is then to move
immediately to identification of the mental element that may be associated with this punishable act.
3. Mr. President, Members of the Court, t his seems to be a very simplistic and profoundly
unworkable approach to Article 2. There must be more to the actus reus of genocide than
satisfactory proof that one of the acts listed in Article 2 has been perpetrated. Can it really have
been the intent of those who drafted the Genocide Convention to view it as an act capable of bei ng
perpetrated by one individual who kills I note that the Convention does not even use the word
97
CR 2014/20, p. 13, para. 6 (Sands).
9CR 2014/20, p. 14, para. 7 (Sands).
99
Ibid. - 41 -
“murder” two or more members of a group? Or, for that matter, who perpetrates an act that
causes mental harm to two or more members of a group? Such an a pproach reduces the crime of
genocide to an absurdity, and makes the distinction with ordinary crimes almost impossible to
discern. The Genocide Convention, let us not forget, was adopted in the context of and largely in
reaction to the murder of six mill ion people. This was the nature of the evil that the drafters
intended to address. This context of the adoption of the Convention is surely not without relevance
to its interpretation.
4. The problem with reducing the actus reus of the crime of genocide to a single act
involving only a few individuals becomes manifest when the analysis then shifts, as it must do, to
locating the mens rea. Because the actus reus is presented as a single act, or perhaps two acts, with
a few victims, there is the implicati on that it may be perpetrated by a single individual . The
question then arises whether the individual had the intent to perpetrate the crime . And, if so,
according to this thesis, the terms of Article 2 are fulfilled. And one consequence of such an
interpretation is that it unlocks the door to the International Court of Justice pursuant to A rticle 9,
to the extent that the acts of a single individual involving a few victims can be attributed to the
State through the rules on State responsibility.
5. With great respect, this does not make much sense. Last Friday, Professor Crawford
wisely reminded us of the role of the International Law Commission, saying it was to “ rationalize
the law and to expose its underlying structure and values for international s crutiny” 100. If that is
true for the Commission, then surely it is all the more true for the Court. The text of the Genocide
Convention was an innovative document, as a legal instrument, and those who drafted it had little
experience in the preparation of a treaty codifying an international crime intended to apply both to
individuals and to States it is the first time really it had been done. The process of negotiation
was cumbersome, with frequent votes and constant amendments as it was concluded line b y line,
sometimes word by word. This is a method of adopting treaties that has since been forsaken in
most international negotiations because of the unpredictable results; we now generally prefer to
conclude such texts using the technique of general agre ement or consensus, all of this so as to
10CR 2014/21, p. 28, para. 56 (Crawford). - 42 -
secure a more logical and coherent result . May I point out that when the Convention was being
drafted, no reference was ever made in the debates or in the preparatory documents to the terms
“actus reus” and “mens rea” . They do not appear.
6. Admittedly, there is some support for the view that genocide can be committed by a single
person, acting alone, with his or her own perverse genocidal intent . It is an interpretation of
Article 2 that I do not share but I ca nnot deny, and I did not deny when I spoke earlier on this, that
there is some authority for it. During my first presentation to the Court, on 10 March, I referred to
some statements of the International Criminal Tribunal for the former Yugoslavia (ICTY) to this
effect, and the references appear in the transcript. In practice, Mr. President, Members of the
Court, the ICTY has never convicted a single person, acting alone but with genocidal intent, for the
crime. So, the statements of the Tribunal enterta ining this possibility are quite theoretical . They
are obiter dicta. But the ICTY has nevertheless made such pronouncements, the leading case being
Prosecutor v. Jelisić.
7. When I addressed this issue in the first round of oral pleadings, I highlighte d a real
divergence in the law of the ICTY and the law being applied by the International Criminal Court
(ICC), where the theory of the single perpetrator and the small number of victims appears to be
excluded. This is a consequence both of the text of th e Elements of Crimes and the decision of the
majority of Pre-Trial Chamber in the Bashir arrest warrant case. The Elements of Crimes of the
Rome Statute, adopted by consensus by the Preparatory Commission of the Statute, where all
States that attended the Rome Conference were invited to participate, require that genocidal
conduct “took place in the context of a manifest pattern of similar conduct directed against that
group or was conduct that could itself effect such destruction”. This is clearly about the actus reus
of the crime. It is contrary to the view that genocide can be committed by a single individual with
a small number of victims. As I pointed out in my remarks on 10 March, these words did not
appear in the initial drafts of the Elements of C rimes. They were added to the draft a few weeks
after the ICTY Trial Chamber advanced its theory of the single perpetrator . They were added as a
reaction to the Jelisić decision.
10See Hirad Abtahi and Philippa Webb, The Genocide Covnention, The Travaux préparatoires , Leiden and
Boston; Martinus Nijhoff, 2008.The terms did not appear in a keyword search of the pversion. The terms do not
appear in the general index prepared by the authors. - 43 -
8. Croatia’s focus on the argument that genocide may amount to killing or even causing
serious bodily harm on a very small scale, an argument to which it returned in the second round
and where it joined issue, so to speak, with Serbia, is probably driven by its own discomfort with
the evidence it has presented in this case. Its sensitivity on the issue suggests its own
understanding that this is the weakest link in its Application.
9. Indeed, Mr. President, Members of the Court, it may be on this point where we find one of
the significant contrasts b etween the Application and the c ounter-claim. The c ounter-claim
presents strong and compelling evidence that the attack on the Krajina Serbs was masterminded at
the highest levels of the Croatian State, that it manifested the personal policies of
President Tudjman to eliminate the Serbs in the Krajina and to repopulate the entire region with
Croats, that it reflected racist views regarding Serbs and others that he held , and that the scheme
was prepared at a recorded meeting, the “famous ” 102 and, yet at the same time, infamous Brioni
conference. Croatia, on the other hand, has little in the way of such similar evidence and so it relies
on an accumulation of relatively small and isolated acts that it says together lead to an inference of
genocidal intent. It is true, as counsel for Cro atia pointed out, that “there is no need for a Wannsee
conference” 103 I’m relieved to see that I’m not the only person to refer to the Wannsee
conference on this point . Nevertheless, can there be any quarrel with the proposition that direct
evidence of genocidal intent is, as a general rule, stronger and more compelling than “inferences”?
Mr. President, two or three more minutes on missing persons? And then I will propose…
The PRESIDENT: Please proceed.
Mr. SCHABAS:
The issue of missing persons
10. The issue of missing persons has always figured prominently in Croatia’s submissions
and there is a significant part of its conclusions address to this important issue. However, I do not
believe that the Applicant has ever been heard to claim that disapp earance itself was an act of
10CR 2014/19, p. 22, para. 37 (Crnić-Grotić).
10CR 2014/21, p. 29, para. 60 (Crawford). - 44 -
104
genocide until its submissions last week . I think i t seems a bit clumsy to suggest that cases of
missing persons are necessarily equivalent to the crime against humanity of enforced
disappearance, which has its own body of so phisticated legal principles . For the purposes of the
discussion, let me remind the Court t hat “enforced disappearance” is defined in the recently
adopted United Nations convention where it refers to “abduction or any other form of deprivation
of liberty by agents of the State” and then “followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the disappeared person” 105. This definition
does not apply to all persons who are missing in the course of an a rmed conflict. Enforced
disappearance is not the correct term for all persons missing in war. That would be an
unreasonable application of its terms, and one inconsistent with State practice.
11. It is of course quite true that international human right s courts have confirmed that
enforced disappearance may be a continuing violation. But of what? Not a violation of the right to
life, with which the acts in Article 2 of the Convention bear an analogy. The case law of the
Inter-American Court of Human R ights and the European Court bear this out. The reason why it
may be a continuing violation of human rights is that the family of th e victim is subject to ongoing
“mental harm ”, and this bring s into play the prohibition of “ ill treatment” or because of th e
procedural obligation to investigate the crime. This is what the case law of the human rights
tribunals shows us.
12. We are not talking about the procedural dimension of a human rights obligation here, but
rather about a crime, where continuing proof of intent is required. If the crime continues today, as
Croatia seemed to suggest last week, then so must the intent . Is Croatia arguing that the genocidal
intent still exists? The Applicant has not previously made such an allegation . And it does not offer
an iota of proof in support of such a claim. The continuing violation argument appears to be an
ill-conceived debating ploy, cooked up over breakfast as a last -minute addition to Croatia’s case,
because I cannot believe that the Applicant is seriou sly contending that Serbia today, in 2014, is
perpetrating a continuous violation an act contemplated by Article 2 of the Convention with
104
CR 2014/20, pp. 15-16, paras. 9-10 (Sands); CR 2014/21, pp. 23-24, paras. 45-47 (Crawford).
10International Convention for the Protection of All Persons from Enforced Dis appearance, 20 Dec. 2006, United
Nations, Treaty Series (UNTS), Vol. 2715, doc. A/61/448, Art. 2. - 45 -
the intent to destroy the Croats as a group. Mr. President, Members of the Court, t he issue of the
missing may ormay not be a violation of the European Convention on Human Rights but Croatia is
in error to attempt to force this issue into the frame of Article 2 of the Genocide Convention,
essentially so that it can bolster its argument on temporal jurisdiction . It is an important issue, but
it does not belong here , it might belong in Strasbourg, but certainly not in The Hague.
Mr. President, this would be a convenient time to take a break.
The PRESIDENT: Thank you, Professor Schabas. The Court now takes a 15- minute break.
The hearing is suspended for 15 minutes.
The Court adjourned from 11.30 a.m. to 11.50 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and you can continue,
Professor Schabas. You have the floor.
Mr. SCHABAS: Thank you very much, Mr. President, Members of the Court.
Standard of proof
13. In Croatia’s oral submissions last week, great emp hasis was placed on paragraph 373 of
this Court’s decision in the Bosnia case. That is where the Court said that for a pattern of conduct
to be accepted as evidence of the existence of the specific intent to commit genocide, it would have
to be such that it could only point to the existence of such intent . And Croatia is particularly
disturbed by the word “only”. The statement is similar in i mport to the general rule applied by
106
criminal tribunals with respect to circumstantial evidence . It is also entirely consistent with the
rule applied by international criminal tribunals requiring proof beyond a reasonable doubt . May I
refer the Court to an early formulation concerning the burden of proof necessary for a conviction
that comes from the Appeals Chamber of the ICTY, and you should see it on your screen:
“It is not sufficient that it is a reasonable conclusion available from [the]
evidence. It must be the only reasonable conclusion available. If there is another
10For example: Prosecutor v. Stakić (IT-97-24-A), Judgement, 22 Mar. 2006, para. 219; Prosecutor v. Delalić,
Mucić et al. (IT-96-21-A), Judgement, 20 Feb. 2001, para. 458; Prosecutor v. Gotovina et al. (IT-06-90-T), Judgement,
15 Apr. 2011, para. 303; Prosecutor v. Vujadin Popović et al. (IT-05-88-T), Judgement, 10 June 2010, para. 12. - 46 -
conclusion which is also reasonably open from that evidence, and which is consistent
107
with the innocence of the accused, he must be acquitted.”
And the word “only” is in the original. It has been italicized by the Appeals Chamber.
14. Croatia urged the Court to revise its ruling and to remove the word “only” from
paragraph 373 of its statement in the Bosnia case. Counsel for Croatia warned the Court that its
interpretation would risk “ consigning the Convention to irrelevance ” 10. Croatia said the Court
“will come to be seen as irrelevant in relation to the prevention and punishment of the crime of
genocide, at a time when the Court is needed more than ever ” 109. And it warned that “ the Court
110
might well find itself in a judicial wilderness” . Croatia warned of
“a situation in respect of the necessary proof to infer intent, which will likely be a key
issue in any genocide case in which there is one law on genocide as applied, on the
one hand, by national courts, by international human rights courts and international
criminal tribunals and perhaps by other international courts, and there is another law
111
of genocide as applied by this Court” .
And it added rhetorically: “Is that really where the International Court of Justice wants to be? ” 112
113
Croatia spoke of a “dead convention” .
15. These harsh and extravagant statements, as I shall now show, are based on a completely
inaccurate and incorrect reading of the authorities . Croatia has m isrepresented the decisions of
major international courts that have ruled in genocide-related cases since 2007.
16. M r. President, Members of the Court, m y presentation on 10 March reviewing
developments in the interpretation of Article 2 of the Convention since the 2007 Judgement,
attempted to show how this Court’s approach has been very generally accepted . Far from
suggesting the irrelevance of the Court, its marginalization to the judicial wilderness, the case law
of international tribunals since the 2007 Judgement confirms that the Court accomplished precisely
what it is supposed to do. It provided clarity and stability to the interpretation and application of
Article 2. It provided direction and leadership to other courts.
107Prosecutor v. Delalić et al. (IT-96-21-A), Judgement, 20 Feb. 2001, para. 458 (emphasis in the original).
108CR 2014/20, p. 19, para. 19 (Sands).
109
Ibid.
110Ibid.
111CR 2014/20, p. 24, para. 27 (Sands).
112
Ibid.
113CR 2014/20, p. 25, para. 30 (Sands). - 47 -
17. Croatia reviewed the same authorities that were discussed on 10 March in my overview
of the evolution of the case law. First, Croatia turned to the Jorgić decision of the European Court
of Human Rights, as Serbia had done. Croatia said it was referring to Jorgić
“to point out that the approach of the German courts to issues of proof related to intent
on inferred evidence departed significantly from that of this Court, and that the
European Court of Human Rights was content not to interfer114ith that approach,
which it saw as fully consonant with international law” .
This is simply wrong. The issue before the German courts was not about inference of intent . The
issue before the European Court of Human Rights was not about inference of intent . There were
three issues before the European Court. The first concerned Articles 5 and 6 of the Convention and
the claim that the German courts had not complied with that provision because they were acting on
the basis of universal jurisdiction . That debate had nothing whatsoever to do with inference of
intent. The second point considered by the European Court concerned the fairness of the
proceedings and, likewise, it had nothing whatsoever to do with inference of intent . The third
concerned Article 7 of the European Convention, which is the principle of legality and Jorgić had
argued that the German courts had applied a broad definition of genocide, extending it to
destruction falling short of physical destruction, and he said that this was inconsistent with
Article 2 of the Conven tion and with customary law . It was in this context , of course, that the
Judgment of the ICJ arose . That explains why the European Court cited paragraph 190 of the
Bosnia Judgement, where the distinction with ethnic cleansing is discussed, and not paragr aph 373,
with which Croatia seems to be obsessed . I repeat, the Jorgić case had nothing whatsoever to do
with inference of intent, contrary to what Croatia told the Court last week.
18. Counsel for Croatia then turned to the decisions of the ICTY in the Karadžić case that I
presented to the Court on 10 March in some detail. It is obvious enough from reading the excerpt
of the Appeals Chamber decision produced by Croatia last week that, while the issue concerned the
nature of the evidence that might establish genocidal intent, the ruling had nothing to do with the
standard of proof required to sustain a conviction. That issue simply does not arise at that stage of
the proceedings, in the context of a motion to dismiss charges pursuant to Rule 98 bis of the Rules
of Procedure and Evidence. The only issue before the Tribunal at that stage is whether there is any
11CR 2014/20, p. 20, para. 21 (Sands). - 48 -
evidence that, were it to be believed, could sustain a conviction. At such a stage in the proceedings,
the court is never concerned whether an inference is the only inference and n othing in the ruling of
the Appeals Chamber disputes wha t this Court said in paragraph 373 of the 2007 Judgement.
Nothing in the ruling is inconsistent with what this Court said.
19. It was with regard to the Karadžić proceedings that I had made a reference to res
judicata in my earlier submissions 115. In its oral submissions, Croatia had attached significance to
the fact that the Appeals Chamber in Karadžić had reinstated charges concerning genocide
committed against Croats in Bosnia and Herzegovina. In reply, I made the point that this Court has
already ruled on the issue and had rejected such an allegation in 2007. Of course , I took care
and it is clear from the transcript not to say there was res judicata in the strict sense and that is
because the technical requirements obviously were not met . I invited Croatia to address the
substantive issue, but it chose to mock the suggestion with a childish point about pregnancy rather
than speak to the substantive issue.
20. Mr. President, Members of the Court, counsel for Croatia then turned to the International
Criminal Court (ICC). I had made a number of points that I thought would be helpful to the Court
about the law of genocide before the ICC and I note th at Croatia has not really taken issue with the
vast majority of them . Among them is the ongoing debate about the need for the act to be
committed pursuant to a manifest pattern and capable of ensuring completion. That is surely an
issue of some significance here, given Croatia’s theory about mini- or micro-genocides. It is a pity
that Croatia did not speak to that issue so that I could then use this precious time in the second
round to respond to its views and clarify the differences between the Parties to the extent that there
are any. Instead, Croatia suggested that the Bashir arrest warrant decisions there are three of
them in some way bolster the theory Croa tia has adopted about paragraph 373 in t he
2007 Judgement.
21. And once again, Croatia has simply misread the authorities . The ICC did not speak to
the issue of the evidentiary standard for proof of genocide. That was not an issue before the ICC at
that stage of proceedings. The Bashir case concerned the evidentiary standard for issuance o f an
11CR 2014/20, pp, 22-23, para. 24 (Sands). - 49 -
arrest warrant . It is a matter governed by A rticle 58 of the Rome Statute, where the words
“reasonable grounds” are used. True, the ICC was considering the stand ard of proof applicable at
that procedural stage, that is, the evidentiary threshold for the issuance of an arrest warrant, but not
the standard of proof for a conviction. And once again, as in Jorgić and Karadžić the issue as to
whether an inference is the only inference never presents itself.
22. Croatia concluded its brief survey, in w hich it considered the same cases that I had
reviewed on 10 March, with the following: “In short, Mr. President, it appears that no international
court or tribunal has applied or followed the language adopted by this Court seven years ago.
There are numerous instances of a lower standard being applied . . .” 116
23. Numerous instances? Did counsel for Croatia really say that “ [t]here are numerous
instances of a lower standard being applied ”? Well what are they? Because Croatia did not cite
any, unless th e reference is to its careless misreading and m isrepresentation of Jorgić at the
European Court of Human Rights, Bashirat the ICC and Karadžić at the ICTY.
24. Moreover, counsel for Croatia said “ some of these courts and tribunals have gone out of
their way to make clear that they do not consider themselves to be bound by the approach that is
said to be followed by this Court in 2007 ”. But again I did not find any examples , any references
to this in the Applicant’s submissions. Which courts and tribunals are we speaking about? Where
have these unnamed courts and tribunals gone out of their way to make clear that they are not
bound by the Court in 2007? I suppose Croatia is being strategic, saving up these cases to spring
them on the Court on the final day , next Tuesday, when it is too late for Serbia to reply . I wish I
could anticipate what it will be citing . I am anxious to read the list of all of these cases that have
eluded my best efforts at legal research. I have no idea what Croatia is talking about.
25. Mr. President, Members of the Court, Croatia has gone from one proposition that no
court has applied the evidentiary standard of the ICJ in Bosnia to another one, which does not
follow logically namely that many courts have rejected its evidentiary standard . That is to say,
Croatia’s rather insulting statements about the Court being irrelevant and being stuck in a judicial
wilderness rest on a manifestly incorrect assessment of international case law.
11CR 2014/20, p. 24, para. 26 (Sands). - 50 -
26. Mr. President, Members of the Court, the reason I delivered what Croatia dismissed as a
“meandering” speech about the legal developments on the crime of genocide since the
2007 Judgement was because the Agent for Serbia had asked me to do this, insisting that it should
be as neutral, impartial and scholarly as possible. And t hat is what I attempted to do. Croatia
suggests that the standard this Court adopted was rejected by other national and international courts
and tribunals. I did not enumerate any examples of this because I do not know of them. Croatia
was quite free to provide such a list in its response, in its oral submissions last week and it has not
done so.
27. Mr. President, Members of the Court, e arly in the proceedings, Judge Cançado Trindade
asked a question about evidentiary standards and the contribution that may be made by
international human rights courts and I promised to address this and although it is rather late in the
day I have not forgotten the question.
28. Courts in the international human rights system do not normally pronounce themselves
on State responsibility for international crimes . Nevertheless, they do deal with charges of
exceptional gravity and they often consider issues of individual criminality . If there have been
individual prosecutions at the national level, where the reasonable doubt standard should apply as a
corollary of the presumption of innocence, the international human rights courts will not normally
attempt to reconsider the evidentiary issues. These are matters for national courts ; international
human rights tribunals do not assume the role of courts of fourth instance 11.
29. The human rights tribunals have not, to my knowledge, suggested that there should be a
different and more demanding evidentiary standard with respect to what this Court has described as
“charges of exceptional gravity”. In the case law of the Court, this idea goes right back to Corfu
Channel.
30. At the European Court of Human Rights, when evidentiary issues arise , the standard of
proof is described as being t hat of beyond reasonable doubt , the criminal standard. Let me quote
from the recent Varnava case of the Grand Chamber of the European Court, incidentally a case to
which counsel for Croatia referredin the context of the missing persons:
11Edwards v. the United Kingdom, 16 Dec. 1992, § 34, Series A, No. 247-B; Klaas v. Germany, 22 Sept. 1993,
§ 29, Series A, No. 269. - 51 -
“In response t o the respondent Government’s argument about the burden of
proof, [it is on the screen] the Court would concur that the standard of proof generally
applicable in individual applications is that of beyond reasonable doubt though this
also applies equally in inter-State cases.” 118
31. And, Mr. President, authority for this goes right back to the “Greek case” before the
European Commission on Human Rights 11. In one of the most celebrated inter -State cases heard
by the European Court, Ireland v. the United Kingdom , the Applicant urged the Court not to set
such a high standard of proof . But the Court followed the Commission and adopted the “ beyond
reasonable doubt ” standard, adding that “ such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of
fact” 12.
32. The Inter-American Court of Human Rights has taken a somewhat different approach to
this issue. In early cases, it insisted upon a distinction between the standard of proof applied to
individuals in a criminal law prosecution and the standard applicable in human rights litigation
directed where States are the respondent.
33. More recently, the Court has spoken directly to the issue of the standard of proof . In the
case of Gu tierrez and Family v. Argentina, decided in November 2013, the Court referred to
121
evidence that was “able to create the conviction of the truth of the alleged facts”.
34. It should be borne in mind when comparing these two different approaches that the
international human rights tribunals are not assessing responsibility for an international crime, and
the statements seem to be intended to apply to all types of human rights violation . Nevertheless,
the cases cited concern serious allegations, generally involving the norms prohibiting torture or ill
treatment.
118Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90,
16071/90, 16072/90 and 16073/90, § 148, ECHR 2009.
119
The Greek Case, Report of 5 November 1968, Yearbook XII (1969), p. 186, para. 30.
120
Ireland v. the United Kingdom, 18 Jan. 1978, § 161, Series A , No. 25. Followed: Cyprus v. Turkey [GC],
No. 25781/94, § 112, ECHR2001-IV.
121Gutierrez and Family v. Argentina, Judgement, 25 Nov . 2013, Series C, No. 271, § 79. Also: J. c. Peru,
Judgement, 27 Nov. 2013, Series C, No. 275, §305 (internal references omitted):
“La Corte debe aplicar una valoración de la prueba que tenga en cuenta la gravedad de la
atribución de responsabilidad internacional a un Estado y que, sin perjuicio de ello, sea capaz de crear la
convicción de la verdad de los hechos alegados. Para establecer que se ha producido una violación de los
derechos consagrados en la Convención no es necesario que se pruebe la responsabilidad del Estado más
allá de toda duda razonable ni que se identifique individualmente a los agentes a los cuales se atribuyen
los hechos violatorios.” - 52 -
35. This Court’s relevant pronouncements have not concerned State responsibility in general
but rather allegations that amount to a charge of State criminality . The high standard is justified by
the terrible stigma associated with a finding of responsibility . It is also rationally connected to the
fact that an assessment of State responsibility under the Genocide Convention may take place in
parallel with determinations of individual criminal liabi lity, where the high standard of proof
beyond reasonable doubt must be applied.
36. I note in passing , Mr. President, that although Croatia has taken issue with the Court’s
approach to inferences of genocidal intent, it has itself chosen to formulate the Court’s evidentiary
122
standard in a genocide case as one of proof beyond a reasonable doubt .
The Tolimir case
37. Mr. President, Members of the Court, Croatia was quite right to note that in my very
brief review of the Tolimir case at the ICTY I did not sp eak to the charge of genocide with respect
to the town of Žepa . A considerable amount of my material in the written speech actually did
address this. In my concern about finishing on time and perhaps this is just my inexperience in
appearing before the Court I had to jettison some paragraphs at the end of m y speech. And so I
am very grateful to Croatia for raising the issue as it provides me with the opportunity to discuss
the ICTY Judgement in Tolimir in greater depth. I would refer the Court to my earlier remarks on
123
this case , which I will not repeat, but which I will complete, responding to Croatia’s observations
of last week.
39. Let me speak to two issues that may be of interest to the Court. First, the ICTY Trial
Chamber in Tolimir actually addressed the issue of evidentiary inferences. Given Croa tia’s
particular interest in the issue of evidentiary inferences, and its unhappiness with paragraph 373 of
the 2007 Judgement in the Bosnia case, it might have been expected that counsel for Croatia would
have drawn the Court’s attention to the relevant passage in the Tolimir decision. The Applicant
overlooked the point, however, and you will see why when I cite the text in Tolimir . The Trial
Chamber in Tolimir entitled a section of its judgement “Genocidal intent”. It specifically addressed
12CR 2014/20, p. 50, para. 17 (Starmer).
12CR 2014/13, pp. 49-50, para. 69 (Schabas). - 53 -
the issue of inference of such intent. And here is what it said: “Indications of such intent are rarely
overt, however, and thus it is permissible to infer the existence of genocidal intent based on ‘all of
the evidence, taken together’, as long as this inference is ‘the only reasonable [one] available on the
evidence’” 124. The Trial Chamber went on to discuss a number of elements of evidence. It
concluded that acts were calculated to lead to the physical destruction of the group. This was a
finding of genocidal intent based upon circumstantial evidence. The majority of the Trial Chamber
said it was “the only reasonable inference to draw from the evidence” 125.
40. Mr. President, Members of the Court, m ay I linge r on the word “ only” that precedes
“reasonable inference” in both of these statements . The Trial Chamber did not cite the relevant
statement by the ICJ, notably paragraph 373 of the 2007 Judgement, but it might well have done so.
Perhaps it did not because the judges in Tolimir were not big fans of the Bosnia case, subscribing,
as they did, to a much broader conception of genocide that includes ethnic cleansing and cultural
genocide. But on the issue of inference of genocidal intent, they seem to be singing from the very
same hymn sheet as this honourable Court.
41. As I mentioned before, counsel for Croatia did not draw your attention to the passages in
the Tolimir Trial Chamber decision where the issues of drawing inferences of genocidal intent were
discussed. Croatia confined itself to stating: “The Trial Chamber did not apply the ICJ standard on
126
patterns of activity and inference.” As you can see from the excerpts I have cited, Croatia did
not provided the Court with an accurate description of the Tolimir Judgement on this point.
42. Mr. President, Members of the Court, although the Tolimir Trial Chamber did not cite the
ICJ on the inference of genocidal intent, it did not claim to have cut from whole cloth the notion
that genocidal intent must be the “only inference ”. It cited a 2004 Judgement of another Trial
Chamber of the ICTY, where it is stated that “ [w]here an inference needs to be drawn, it has to be
the only reasonable inference available on the evidence” 127. And these words are italicized in the
original.
124
Prosecutor v. Tolimir (IT-05-88/2-T), Judgement, 12 Dec. 2012, para. 745 (references omitted).
125Ibid., para. 766. See, also, paras. 786, 791, 1166, 1172.
126CR 2014/20, p. 26, para. 33 (Sands).
127
Prosecutor v. Brdjanin (IT-99-36-T), Judgement, 1 Sep. 2004, para. 970 (emphasis in the original). - 54 -
43. As counsel for the Applicant poi nted out on 19 March, the Tolimir case concerned not
only Srebrenica but also the attacks in Žepa, which followed in late July 1995. It seems that there
were no mass killings in Žepa. Nevertheless, three community leaders were murdered by Bosnian
Serb forces. Holding that there was genocidal intent associated with the attacks on Žepa , the
majority of the Trial Chamber said that
“to ensure that the Bosnian Muslim population of this enclave would not be able to
reconstitute itself, it was sufficient in the case of Žepa to remove its civilian
populatio128destroy their homes and their mosque, a nd murder its most prominent
leaders” .
In this respect, it endorsed an interpretative approach whereby the words “ in whole or in part ” in
Article 2 refer not only to a “ substantial part” but, in the alternative, to a “ significant part”. It
concluded: “The Majority has no doubt that the murder of Hajrić, Palić and Imamović was a case
of deliberate destruction of a limited number of persons selected for the impact that their
disappearance would have on the survival of the group as such .” 129 The legal finding by the Trial
Chamber on this point is innovative but questionable. The inference that the murder of three
community leaders constitutes the mens rea and the actus reus of genocide because of the alleged
impact this may have on the survival of the group is a rather large interpretative step that broadens
significantly the scope of the crime.
44. Be that as it may, regardless of the questionable correctness of the findings of the Trial
Chamber with respect to Žepa, they do not provide support to the claim of Croatia, contrary to what
was said last week. The Applicant relied upon Tolimir to make the point that genocide could be
committed even when there were very low numbers of victims. But Tolimir is not an authority for
that proposition, at least stated in such a bald and simplistic manner. Tolimir is based on the theory
that the words “in part” may refer to a “significant ” part of the group and not just a “ substantial”
part of the group. The part of the gr oup is “significant” because of the role that the victims play
within the community. And it is presented as an alternative to the criterion of substantiality.
45. Because of its quite dramatic departure from the precedents of the Appeals Chamber o f
the ICTY, not to mention the J udgement of this Court in Bosnia, I would suggest that the Tolimir
12Prosecutor v. Tolimir (IT-05-88/2-T), Judgement, 12 Dec. 2012, para. 781 (emphasis added).
12Ibid., para. 782. - 55 -
Trial Chamber decision be handled with great caution. I note that even Croatia is rather qualified
in its reliance upon Tolimir, acknowledging that it is on appeal, and that one of three Trial Chamber
judges voted for a full acquittal 13.
Conclusions
46. Mr. President, Members of the Court, a fter reviewing the recent case law on the subject
of genocide and the interpretation of Article 2 of the Convention subsequent to the
2007 Judgement, Croatia said: “ The jurisprudence in relation to the Convention has broadened,
131
and it has deepened. ” It claimed that “ circumstances have changed since 2007 ” but without
telling the Court what those circumstances were. It said: “ This Court’s role continues to be an
important one, but new courts and new tribunals continue to spring up, charged with interpreting
and applying the essential elements of the crime of genocide . . .” The implication was that the
views of the ICJ on Artic le 2 of the Convention have been increasingly forsaken, at both the
national and the international level. But again, Croatia did not mention these “ new courts and new
tribunals”, it did not cite their decisions, and it did not make any reference to decisi ons of national
courts.
47. Mr. President, Members of the Court, Croatia’s assessment could not be more inaccurate.
I do not believe its submissions in this area have been helpful to the Court . The point of Serbia’s
review of the case law , post 2007, was that the Court’s approach to Article 2 has, on the whole,
been followed and respected . There are exceptions. It is not unanimous . But by and large the
Court’s interpretation of the scope of Article 2 has been sustained and confirmed. The Court has
defined the case law, not isolated itself.
48. Mr. President, Members of the Court, this concludes my remarks on Croatia’s
Application. May I ask you, please, to give the floor to Mr. Lukić.
The PRESIDENT: Thank you, Professor Schabas. I give the floor to Mr. Novak Lukić.
You have the floor, Sir.
13CR 2014/20, pp. 26-27, para. 34 (Sands).
13Ibid., para. 36 (Sands). - 56 -
Mr. LUKIĆ:
SERBIA CANNOT BE RESPONSIBLE FOR THE ACTS OF THE JNA
Introduction
1. Mr. President, Members of the Court, allow me to continue with the presentation of the
Respondent’s arguments . I will concentrate on the issues concerning the rules of State
responsibility, which were invoked by the Applicant seeking to attribute the acts of the JNA to the
Respondent. In their written as well as oral arguments, the Parties have shown complete agreement
on one matter. Both P arties are calling upon the same principles of establishing the status of the
entities alleged to have committed crimes and their relationship with a State . Both Parties quoted
the same paragraphs of the Judgements of this Court in cases of Bosnia 132and Nicaragua . 133
2. However, that is the point where the agreement between the Parties ceases to exist. Is it in
misunderstanding of the principles stated in the mentioned paragraphs, or is it in the Applicant’s
intentional distancing from the application of the test established by the Court in the named cases?
3. In this last addressing to the Court in regard to the question of State responsibility, the
Respondent will precisely show that the Applicant has omitted to apply the standards invoked by
itself to the alleged facts and presented evidence in this case. Also, the Respondent will show that
the Applicant has omitted to engage in making an argument in regard to the written and oral
submissions of the Respondent.
The Applicant has not shown that the JNA wasa de factoorgan of the Respondent
4. Mr. President, Members of the Court, the Parties are in the agreement that the conditions
for attribution of acts of a de facto organ to the State and attribution of acts on the basis of
instruction or direction or control are completely different. The sole and exclusive test for
establishing the status of a de facto organ of a State is the one of “complete dependence”, and i t
does not have any correlation with conditions for attribution on the basis of direction and control 134.
13CR 2014/21, p. 29, para. 60 (Crawford); CR 2014/15, p. 38, para. 22 (Lukić).
13CMS, p. 324, para. 1024; RC, p. 322, para. 9.61.
134
Application of the Convention on the Prevention and Punishment of the Crime of nocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I) (hereinafter Bosnia), p. 207, para. 397. - 57 -
For that reason, the conditions for two different modes of attribution must not be mixed. In their
arguments on a de facto organ, the Applicant is act ually calling upon either the effective control
test , or the findings on existence of joint criminal enterprise 13. However, the Applicant does not
make any effort to explain or to prove that the JNA was completely dependent upon Serbian
leadership. The s ole sentence of Professor Crawford where he did mention the “complete
dependence” test was when he called upon the common purpose of the joint criminal enterprise and
stated that “JNA was the army of that movement [that is the movement allegedly led by the Serbian
leadership], in complete dependence on it”. However, there was no reference to this conclusion.
Not even a single authority.
5. Then, Professor Crawford once again called upon a quotation from General Kadijević’s
book, which was previously alre ady presented to the Court 137. Mr. President, Members of the
Court, let us look at it again:
“The Serb and Montenegrin people considered the JNA as their army, in the
same way that they considered the Yugoslav state their country. In accordance with
this, the JNA’s responsibility was to secure for th(is) new Yugoslavia and the entire
Serb population its own army.”
6. Obviously, for the Applicant this is an important evidence, bearing in mind that it was
quoted two times in only a few days. However, how do these words of General Kadijević show
that the JNA was completely dependent upon Serbian leadership? Mr. President, Members of the
Court, you did not get an answer. As it is the case with other allegations of the Applicant
concerning the status of the JNA as a de facto organ of the Respondent, you were denied any
evidence which supports these allegations. Both Parties actually do agree that the status of a
de facto organ of a State is reserved for exceptional situations only, as well as that, in order to
establish such status of an entity or person, it has to be shown that the degree of dependence does
not exist in any other quantity, but complete.
7. Contrary to the Applicant, the Respondent has approached the analysis of the evidence in
relation to the “complete dependence” test by considering factors referred to by this Court in the
135
CR 2014/21, p. 31, para. 63 (Crawford).
13Ibid., p. 29, para. 60 (Crawford).
137
Ibid., p. 30, para. 60 (Crawford); CR 2014/10, p. 37, para. 11 (Crawford). - 58 -
Bosnia case . Although these are not the sole factors of existence of the complete dependence of
the JNA upon the Respondent, in the absence of any arguments of the Appl icant in this regard, it
remains for the said factors, as determined by this Court, to be applied in the present case.
8. For the analysis at hand, it is necessary to determine the period in which the alleged acts
of genocide took place, as well as what status in relation to the State concerned had the entity for
whose acts the attribution to the State is requested. In general, the Applicant seeks to stretch the
period of the alleged genocidal acts from 1991 to 1995. However, when presenting its oral
arguments the Applicant finally specified when the key acts, of actus reus of genocide meaning
murders were committed. Professor Lapaš by presenting the murders in chronological order,
specified that the critical period concerned “[o] ver the six months of its [meaning the JNA’s]
139 140
campaign” , and further he analysed the period from August 1991 to December 1991 .
9. As I already said in the beginning of my presentation, the Respondent wishes to be
concrete and to convince the Court that the allegations that Serbia did not answer the arguments of
the Applicant, simply are not true 141. By applying the “complete dependence” test, the Respondent
claims that the Applicant has not shown that the JNA was financially dependent exclusively upon
the Respondent. The Respondent’s claim that during the critical period, as well as during the
whole period of existence of the federal State and federal g overnment, the JNA was funded from
142
the existing federal budget, and not from Serbia, was not challenged in any way .
10. Furthermore, the Applicant failed to provide any evidence to the Court in regard to many
important aspects necessary to apply the “complete dependence” test. Thus, firstly , the Applicant
did not offer any evidence that the JNA was dependent upon Serbia during any period of time, in
regard to logistics or in regard to weapons and military equipment.
11. Second, the Applicant did not offer any evidence that the JNA’s personnel policy was
dependent in any way upon the Serbian leadership, in regard to select ion, appointment and
dismissal of personnel in the critical period.
138
Bosnia, pp. 205-206, para. 394.
139
CR 2014/10, p. 18, para. 38 (Lapaš).
140Ibid., paras. 8-38 (Lapaš).
141
CR 2014/21, p. 28, para. 57 (Crawford).
142
CR 2014/15, p. 40, para. 29 (Lukić). - 59 -
12. Finally, no evidence was offered which would show a certain degree of influence on
other factors, and certainly not to the degree of control which was defined by this Court in the
Nicaragua case, and I will paraphrase, so the degree of control must be exercised in all fields as to
143
justify treating JNA as acting on behalf of Serbia .
13. Professor Crawford claims that the Applicant is not required to offer any evidence on the
144
direct or ders issued by the Respondent to the JNA . But that was not the reason why the
Respondent invoked the issue of the alleged direct orders 145. The claim that the JNA was acting
under the direct orders of Serbia was submitted by the Applicant itself, and it c an be found in its
Memorial 146. However, Mr. President, Members of the Court, once again such a strong statement
is not based on any single piece of evidence.
14. Professor Crawford claims that “[b]y late 1991 the JNA . . . was already a de facto organ
147
of the emergent Serbian State” . He referred to the Theunens report, stating that the JNA ceased
148
to operate as the Yugoslav army and de facto served Serbian goals . The language used in the
report specially referring to the link made by the Applicant with the concept of “ de facto
organ” can wrongly be identified as that concept in the sense of Article 4 of the ILC Articles.
However, by carefully reading the Theunens report, and specially his testimony in the Milošević
case before the ICTY, this statemen t cannot be of any help in regard to issues of State
responsibility. His conclusion is based solely on the books written by Jović and Kadijević, and
furthermore the report itself was made before, and t hus without taking into account Kadijević’s
interview in 2007. According to Theunens’ claims, his expertise was focused solely on military
structure of the JNA and Serb forces, and in accordance with the task given to him by his
employer the OTP, Office of the Prosecutor of the ICTY 149. He did not provide an “original
143Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, (hereinafter Nicaragua), p. 62, para. 109.
144
CR 2014/21, p. 29, para. 60 (Crawford).
145
CR 2014/15, p. 39, para. 26 (Lukić).
146Memorial of Croatia (MC), p. 397, para. 8.47.
147CR 2014/21, p. 31, para. 63 (Crawford).
148
CR 2014/5, p. 45, para. 8 (Crawford); Reply, p. 112, para. 4.52.
149Prosecutor v. Milošević, IT-02-54-T, 27 Jan. 2004, T 31542. - 60 -
analysis of the conflict itself” 150. Also, he confirmed that the “analysis of the creation of armed
forces in Croatia was not part of [his] task and that’s why it has not been discussed in this
report” 151. Further, he confirmed that the “report di d not include an analysis of the I think over
100 100 Security Council resolutions that were adopted between the end of 1991 and mid-1995
related to the conflict” 152. Finally, Theunens in his testimony stated: “So I assume there’s also
responsibility for the political leadership on that level. And I’m not a political analyst, I’m
employed here as a military analyst.” 153 The extent of Theunens’s conclusions on the legal
matters concerning de facto organ, specially in the light of the test amounting to S tate
responsibility exceeds his competence, his expertise and his reasoning. Perhaps that was the
reason why the ICTY in its findings in the Martić and Mrkšić Judgements did not include this
conclusion from his report.
The Applicant has not shown that the JNA was under direction
and control of the Respondent
15. Mr. President, Members of the Court, allow me now to turn to the question of the alleged
instruction, direction or control of the Respondent over the JNA. Last Friday, Professor Crawford
said that “ Croatia also suggests that conduct by the JNA may be attributable to Serbia under
Article 8, on direction and control[, b]ut the primary ground on which we [that is Croatia] say it is
154
attributable is Article 4.” As already stated, Croatia was previously trying to apply the same test
to both modes of attribution, by making simple reference to the alleged control, and such strange
155
approach can be found in the Applicant’s Memorial and Reply .
16. However, as said, thanks to Professor Crawford’s clarification, it appears now that there
is an agreement between the Parties on the test that should be applied to the issue of de facto organ.
Consequently, the Applicant acknowledges that the issue of control represents a distinct question,
itself not be capable of establishing “complete dependence”. So, what test should be applied to the
150Prosecutor v. Milošević, IT-02-54-T, 27 Jan. 2004, T 31542.
151
Ibid., T 31540.
152Prosecutor v. Milošević, IT-02-54-T, 28 Jan. 2004, T 31686.
153Ibid., T 31698.
154
CR 2014/21, p. 29, para. 59 (Crawford); emphasis added.
155MC, p. 397, para. 8.47; RC, p. 325, para. 9.67. - 61 -
question of attribution under Article 8 of the ILC Articles? The Respondent’s position is that the
well-established effective control test should be applied in this case as well, meaning that it has to
be shown that the perpetrator was acting under instructions or directions or control of the State for
every single incident or operation that is being examined, as it is well established in the practice of
156 157
this Court . And the Applicant actually acknowledges that approach in its Reply . However it
is the Respondent’s view that the Applicant’s claim is constructed in such manner that it rather asks
the Court to abandon its well -established practice and rules concerning the effective control test,
which will be discussed in turn.
17. Mr. President, Members of the Court, before moving to examination of the Applicant’ s
approach in detail, attention also has to be dedicated to the developments made in this case during
both the written and the oral phases. As said, the Respondent is of the view that the effective
control test is applicable. Accordingly, the degree of control over the entity or person concerned
here the JNA has to be proved for and in every single incident . In accordance with that
approach, the Respondent kindly invited the Applicant to provide any evidence that Serbia
158
exercised control over the JNA in particular incidents . Moreover, such invitation was repeated
159
by the Respondent during the oral phase of these proceedings . However, last Friday
Professor Crawford did not even make any effort to mention the issue of control in particular
incidents. The Applicant can argue many things, but Mr. President, Members of the Court, this is a
fact the Applicant never made any attempt to provide any evidence that Serbia exercised control
over the JNA in particular incidents. The reason is very simple the Applicant has no such
evidence.
18. In the absence of any concrete evidence, the Applicant took an approach which, in the
view of the Respondent, is simply wrong. In many occasions the Applicant invoked the Martić
Judgement and the joint criminal enterprise which was found in that case. According to the
Applicant, the existence of joint criminal enterprise, as found in Martić , “is sufficient to establish
156
Bosnia, p. 208, para. 400.
15RC, p. 323, para. 9.61.
15Rejoinder of Serbia (RS), p. 176,para. 470.
159
CR 2014/15, p. 44, para. 42 (Lukić). - 62 -
that the JNA was at the relevant time, operating under the command and control of the FRY
160
leadership” . This approach goes wrong on two basis. First, it is very interesting that the
Applicant uses the concept of join criminal enterprise in almost all occasions, however without any
effort to explain its lega l relevance. Such explanation is most needed when the question of
attribution is concerned. And indeed, the question is: What is the relevance of joint criminal
enterprise for the question of State responsibility? Or more precisely: Can mere existence of joint
criminal enterprise establish control of one of its members over another? Can it establish effective
control? Can it do so in regard to every single incident? Of course not. The joint criminal
enterprise is irrelevant. As is probably known t o our learned colleagues, the concept of control
itself underlines not only high dependence, but also the relation of giving directions by one side to
161
the other . How is it possible to conclude that if two persons share a common intent one is
automatically dependent, directed or controlled by the other? In whose favour does the
presumption of direction or control go? Mr. President, Members of the Court, the question of joint
criminal enterprise for the issue of attribution is without merit. It is very interesting that the
opposing Party is actually using the concept of joint criminal enterprise for the question of State
responsibility, although they opposed the concept itself even for the question of individual criminal
responsibility 16, as already noticed 163.
19. The second point of concern is the Applicant’s attempt to convince the Court to abandon
the effective control test and its well-established practice, and to apply something more likely to be
the overall control test. The Respondent is aware tha t this test was explicitly rejected by this Court
in the Bosnia case. However, our learned colleagues have a different view. The Applicant invokes
the Martić Judgement and aims to prove that the Respondent had control , merely by arguing that
the JNA took part in the attacks 164. Mr. President, Members of the Court, this is a clear argument
in favour of overturning the effective control test. As already mentioned, the Applicant neither has,
nor has provided, any evidence that Serbia had control over the JNA in particular incidents.
160
RC, p. 325, para. 9.67.
161
Nicaragua, pp. 64-65, para. 115.
162RS, pp. 181-182, para. 422.
163
CR 2014/15, pp. 48-49, paras. 58-60 (Lukić).
164
RC, pp. 325-326, paras. 9.67-70. - 63 -
However, this is not the problem of lack of evidence. This is a problem in the Applicant’s
approach. The Applicant expects f rom this Court to find that Serbia directed and controlled the
JNA during the critical period, basing its reasoning on the presumption that the JNA was active or
“co-operated” in some attacks. Let us be clear here, in the Respondent’ s view the alleged act s
cannot amount to any kind of control, neither overall, nor effective. However, the Applicant is
actually trying to convince the Court to apply the overall control test, by making its own conclusion
that “the judgements of the ICTY leave no room for doub t that the Serb leadership had effective
control over all of the military operations which are the subject of the Applicant’s complaint under
the Genocide Convention, and over the acts and conduct of all of the perpetrators” 16. Yes, the
Applicant might use the word “effective” but their approach rather leads to different test, the one
166
rejected by this Court in the Bosnia case , and you will have the opportunity to hear more on this
issue from Mr. Ignjatović. Thus, the mere approach taken by the Applicant is problematic and
cannot be supported in any way.
Conclusion
20. Mr. President, Members of the Court, allow me to conclude. The Respondent remains at
its previous claims. Although the Applicant rightly concluded that the test of “complete
dependence” should be applied in respect to attribution in accordance with Article 4 of the ILC
Articles, it did not call upon any facts or evidence which would be capable of proving that the JNA
was a de facto organ of the Respondent. Furthermore, the Applicant did not even make any effort
to convince the Court that the effective control test could be satisf ied for the purposes of Article 8
of the ILC Articles. Rather, it tried to rely on inappropriate legal standards, some even already
rejected by this Court. It seems that even Croatia itself does not have great expectations of its
argument, bearing in mind the extent of the argument itself and the effort it made to advance it.
Accordingly,the Croatian claims should be dismissed. Thank you, Mr. President. I kindly ask you
now to give the floor to Mr. Ignjatović.
16RC, p. 323, para. 9.62.
16Bosnia, pp. 209-210, paras. 402-406. - 64 -
The PRESIDENT: Thank you, Mr. Lukić and I call on Mr. Ignjatović. Mr. Ignjatović, you
have the floor.
Mr. IGNJATOVIĆ:
THE QUESTION OF S TATE RESPONSIBILITY IN LIGHT OF THE ACTS OF DIFFERENT
PARTICIPANTS IN THE CONFLICT
Mr. President, distinguished Members of the Court, allow me to proceed with presenting
arguments related to the question of attribution of responsibility for the alleged misdeeds of other
participants in the conflict Krajina Serb forces and volunteer or paramilitary formations.
The ICTY indirect findings and their probative value in these proceedings
1. Last week the Applicant claimed that the Respondent “seeks to deny ICTY judg ements
167
and findings” . With all due respect, the Applicant’s claim is misleading. The Respondent is not
seeking to deny any of the ICTY judgements, but it is rather of the view that some of the ICTY’s
findings cannot be taken for granted.
2. It is obvious that the P arties to these proceedings cannot agree on the weight that should
be given to indirect findings of the ICTY judg ements. To clarify, the Respondent considers direct
findings to be those which relate to key points in criminal proceedings, namely whether the alleged
crime, or crimes, occurred and whether the defendant can be held responsible for what had
happened. Contrary to that, we consider indirect findings to be covering other issues. The
Respondent’s position remains the same in respect of the latter category such findings should be
viewed with great caution.
3. A number of such indirect ICTY findings were explicitly or implicitly altered in
subsequent ICTY judgements, while others were undermined by the later developments. A very
good example of this and, at the same time, a clear poi nt of contention, is the ICTY finding
regarding the joint criminal enterprise (“JCE”) in Martić . Mr. Jordash has already presented the
Respondent’s position on that issue.
16CR 2014/19, p. 16, para. 18 (Crnić Grotić). - 65 -
4. The other point of contention between the P arties before the Court is disagreement over
the findings in Mrkšić that “in the Serb Military operations in Croatia was the complete command
and full control by the JNA of all military operations” 168. Professor Crawford stated that the
Respondent has presented some of the evidence that led the ICTY to a conclusion that the JNA had
full control over all Serb military operations in Croatia 169. The term “some of the evidence” is
inaccurate since the Respondent has provided the Court with all the evidence that the ICTY relied
on in reaching the above-mentioned finding. And the totality of the evidence are in fact only two
documents Circular dated 12 October 1991 issued by General Adžić and Order dated
15 October 1991 issued by General Panić. Therefore, although criticized by the Applicant’s
counsel, the Respondent’s position remains intact on this issue. The ICTY Trial Chamber finding
that the JNA had full control over all milita ry operations in Croatia is at the same time far-fetching,
misleading, and I would say quite unusual and rather too ambitious. In the first round of our oral
arguments we elaborated our position on this issue in great detail and we believe that there is n o
170
need to repeat it .
5. Last Thursday Ms Ní Ghrálaigh stated that the Respondent is attempting to reinterpret the
JNA documents and “to turn them on their head, such that they might evidence the opposite of
171
what they in fact say” . She continued to argue that the Respondent is asking the Court to
speculate that the orders were issued in order to “fix” problems of “lack of discipline and lack of
control” amongst various Serb forces and concluded that “this is not what the orders say
expressly” 172.
6. [Scre en on] It seems that counsel for Croatia did not read the Order dated
15 October 1991. As the Order 173 itself says, it was issued “due to the emerging problems, with a
goal of regulating life, work, order and discipline”. The Respondent did not invent these words and
did not ask the Court to speculate. [Screen off]
168Prosecutor v. Mrkšić et al., IT-95-13, Trial Chamber Judgement, 27 Sep. 2007, para. 89.
169
CR 2014/21, para. 65 (Crawford).
170CR 2014/15, paras. 44-56 (Ignjatović).
171CR 2014/20, para. 44 (Ní Ghrálaigh).
172
Ibid.
173Command of the 1st Military District, Strictly Confidential No. 1614-82 27, 15 Oct. 1991; RC, Ann. 67. - 66 -
7. The Applicant is trying to persuade the Court that the responsibility for actions taken by
other forces in 1991- 1992 period can be attributed to the Respondent on the basis of a single
paragraph of the ICTY judgement. It is trying to present the paragraph in question as the ultimate
truth, and any attempt to analyse its merits a heresy and consequently the denial of the truth.
174
8. The Applicant, however, remains silent regarding the ICTY findings in Martić . The
ICTY Trial Chamber, among manythings, found the existence of “operational cooperation between
the JNA and the armed forces of . . . Krajina” 175. On some occasions the TO and MUP units of
Krajina were subordinated to the JNA, but t his required prior approval of an authori zed TO
commander or the SAO Krajina Minister of Interior, respectively . This clearly shows not only that
on various situations Krajina Armed Forces fought in co- operation and not under the command of
the JNA, but also that in some situations they fought against Croatian forces without support of the
JNA.
9. It seems that the ICTY findings in Martić are obviously contradictory to the above
discussed findings in Mrkšić since either the JNA had full control ov er other forces throughout
1991-1992 period or such command of the JNA over Krajina Serb forces was being instituted on a
case-by-case basis. Both Mrkšić et al . Judgement and Martić Judgement were rendered in 2007
and both were confirmed by the ICTY Appeals C hambers. In order to decide which of the two
findings should be accepted, one has to look closely at the substance and supporting evidence for
each.
10. For the above reasons, the Respondent is not denying any ICTY j udgements and
findings, as claimed by the Applicant. On the contrary, it is our position that questions and issues
raised in the above -mentioned cases are relevant for the case before this Court and should be
thoroughly analysed and assessed.
The Criteria set in Article 8 of the ILC Articles was not met the actions of other
participants to the conflict cannot be attributed to the Respondent
11. Last week Professor Crawford clarified that the Applicant no longer “maintain[s] that the
other Serb forces were themselves organs of the emergent Serbian State” but rather takes the
17Prosecutor v. Milan Martić, IT-95-11, Judgement, 12 June 2007, paras. 135 and 142.
17Prosecutor v. Milan Martić, IT-95-11, Judgement, 12 June 2007, para. 142. - 67 -
position that “the conduct of other Serbian forces is attributable to Serbia under Article 8, since
they operated under the instructions, direction or control of the JNA” 17. However, the Applicant
did not provide any reliable evidence in support of its claim that the JNA controlled or instructed
and directed the Krajina Serb forces and paramilitaries.
12. This Court will also have to decide whether this ICTY finding of full control over all
177
military operations corresponds to the standard of effective control applied by this Court in
Nicaragua and Bosnia cases. It seems that the Applicant is taking f or granted that the response is
positive. The Respondent, however, disagrees.
13. Mr. President, Members of the Court, in the Bosnia case you clearly stated that it must be
shown
“that this ‘effective control’ was exercised, or that the State’s instructions were given,
in respect of each operation in which the alleged violations occurred, not generally in
respect of the overall actions taken by the person or groups of persons having
178
committed the violations” .
Can the ICTY full control finding in Mrkšić, based on vague and scarce evidence, therefore really
be equated with a finding of effective control that has to be established in respect to each individual
operation? Or is the “full control” finding much more akin to a finding of overall control in respect
to all actions taken? Or it is perhaps even broader than that?
14. One of the Applicant’s hopes for success in this respect would be with the replacement of
the effective control test with the overall control test. The Respondent tried to get an answer from
the Applicant during the first round of oral arguments on whether it is pursuing this track, but the
Applicant remained silent on the issue. The Respondent’s position remains the same the overall
control test was rejected by this Court in th e 2007 Bosnia Judgment and there is no reason for the
Court to take a different approach now.
15. A second option for the Applicant would be to manage to shift the burden of proof to the
Respondent and this is obviously a goal that the Applicant is trying to achieve. In specific
instances, this would mean that the Respondent would need to prove negative facts, for example
176
CR 2014/21, para. 64 (Crawford).
17Prosecutor v. Mrkšić et al., IT-95-13, Trial Chamber Judgement, 27 Sep. 2007, para. 89.
178
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 208, para. 400; emphasis added. - 68 -
that the JNA did not have control over other participants to the conflict, as opposed to the general
rule whereby it would be on the pl aintiff, that is, the Applicant, to prove positive facts, or in this
case that the Respondent controlled or directed or instructed other participants to the conflict in
each specific situation. There is no basis to justify the shift of the burden of proof from the
Applicant to the Respondent in these proceedings.
16. Failure to provide relevant evidence on the issues of JNA control over other participants
in specific situations can only lead to one inevitable outcome a finding that the Applicant did
not prove that the conditions set by Article 8 have been met. This is an obvious weak point of the
Applicant’s case and an obstacle that the Applicant cannot overcome.
Mr. President, distinguished Members of the Court, I will now discuss the Applicant’s
claims with the respect to the Serbian Volunteer Guard.
Genocide case as presented by the Applicant example of the
Serbian Volunteer Guard (SDG)
17. Sir Keir Starmer asked the Court “if you [the Court] accept Croatia’s case that genocidal
179
acts were committed by Arkan’s Tigers in Vukovar . . .” . This very sentence speaks a lot about
the Applicant’s position in this case.
18. The paramilitary unit that the Applicant refers to so many times in its written
submissions and oral arguments is the Serbian Volu nteer Guard (SDG), also known as Arkan’s
Tigers. The Applicant’s position is that the SDG committed genocide in Vukovar in 1991. As
proof for this allegation the Applicant provides the r eport of the JNA officer Colonel Djoković
dated 13 October 1991 18. To remind the Court in the r eport it is stated that Arkan’s troops were
committing an uncontrolled genocide in the greater area of Vukovar.
19. The Applicant is going further with this point by trying to argue that the same applies to
all other volunteer/paramilitary units, i.e., that they were all involved in the perpetration of
genocide. The Applicant is accordingly suggesting that all paramilitary units, known or unknown,
which participated in the armed conflict were of crim inal character with no exception and
were not only committing crimes, but were also involved in committing genocide in Croatia in
17CR 2014/20, para. 47 (Starmer)
18Report of Col. Djoković, 13 Oct. 1991; RC, Ann. 63. - 69 -
1991. The foundation for such a conclusion is rather vague since the Applicant does not provide
any evidence for it.
20. From there, the Applicant builds on its conclusion that since all paramilitary units and
units of Krajina TO and MUP Krajina were under full control of the JNA, as claimed in Mrkšić, the
Respondent must be responsible under Article 8 of the ILC Articles on State R esponsibility for all
of their misdeeds.
21. The Applicant’s approach is obviously far -reaching and it faces significant difficulties
which the Respondent proceeds to outline.
22. The Respondent believes that the standards from Article 8 were not met by the
Applicant. The Applicant relies on the ICTY finding in Mrkšić that the JNA had full control over
Krajina Serb forces and volunteer/paramilitary units. As previously demonstrated, that finding is
merely a vague conclusion. It is however the only hope for the Applicant since it has not provided
any relevant and reliable evidence of specific instances where other participants to the conflict,
including the Serbian Volunteer Guard, were under the control of the JNA.
23. [Screen on] If we look closely at the document produced by Colonel Djoković, we can
see that the document is marked and contains numbers. I refer to the BCS and ENG marks and
numbers that you can see on the screen. These marks are a sign of ICTY evidence. This shows,
among other things, that: (a) the ICTY Office of the Prosecutor was in possession of the document
in question, and (b) that the Applicant obtained the Djoković’s report from the ICTY. [Screen off]
It is also evident that despite the fact that the ICTY O ffice of the Prosecutor was in possession of
the 13 October report it did not accept the qualification of genocide conta ined therein since it did
not charge Arkan nor anyone else with genocide for events which took place in Eastern Slavonia,
or anywhere else in Croatia. Arkan was indicted by the ICTY O ffice of the Prosecutor, but not in
relation to any of the events in Croatia 18.
24. Presently, the former President of the Republika Srpska Krajina , Goran Hadžić, is
182
standing trial before the ICTY . He is charged with crimes against humanity and violations of the
laws or customs of war. He has not been charged with gen ocide. For some counts of the
18Prosecutor v. Željko Ražnatović Arkan, case No. IT-97-27.
18Prosecutor v. Goran Hadžić, case No. IT-04-75-PT, Indictment. - 70 -
indictment the O ffice of the Prosecutor is alleging the in volvement of “Arkan’s men” in crimes
committed not in Vukovar, but exclusively in the towns of Erdut and Dalj from September 1991 to
June 1992. No evidence was presented that “Arkan’s men ” were involved in any of the crimes
committed in the city of Vukova r, that is, crime committed at Ovčara or any other crime in any
other site in the city of Vukovar. The perpetrators were tried and convicted before Serbian
courts 18. No member of the Serbian Volunteer Guard was among individuals tried for crimes
184
committed in the city of Vukovar .
25. Crimes listed in the Hadžić indictment committed with alleged participation of “Arkan’s
men” pertain to nine incidents which occurred at Erdut and Dalj in the period of ten months
from September 1991 to June 1992 in which 74 persons were allegedly killed. At least eight of
those allegedly killed were not of Croatian origin. Even if we presume that the O ffice of the
Prosecutor has a strong case, that is, that it can undoubtedly prove that “Arkan’s men” took part in
the murders and that 74 persons were killed, it is still obvious that those crimes could not possibly
be qualified as genocide. The O ffice of the Prosecutor must have come to the same conclusion
after analysing the evidence in its possession since it did not indict Hadžić for genocide.
26. The assessment made by the ICTY O ffice of the Prosecutor in this respect is especially
relevant since it is well known th at the OTP analysed thousands of documents related to the
1991 events. To remind the Court, there was not a single document that the OTP requested from
Serbia that Serbia failed to provide. There is not a single document or any other piece of evidence
that can show: (a) the involvement of the Serbian Volunteer Guard in combat which took place in
the city of Vukovar in 1991; (b) the involvement of the S erbian Volunteer Guard in crimes
committed in Ovčara nor anywhere else in the city of Vukovar; (c) the alleged control of the
Respondent over the S erbian Volunteer Guard; and (d) that the crimes allegedly or really
committed by the S erbian Volunteer Guard could be qualified as genocide. This is why the
18Three criminal cases were brought for the crime at Ovčara before the Serbian courts and 17 perpetuators were
convicted and sentenced. Source: the Office of the War Crimes Prosecutor of the Republic of Serbia, available at:
http://www.tuzilastvorz.org.rs/html_trz/predmeti_eng.htm
184
Mrkšić et al., IT-95-13, Trial Chamber Judg ement, 27 Sep. 2007; data provided by the Office of the War
Crimes Prosecutor of the Republic of Serbia see supra fn. 183. - 71 -
Applicant is still heavily relying on a single document, the r eport dated 13 October 1991, even
though the documents collected by the ICTY were obviously at the Applicant’s disposal.
27. The Respondent’s position is further supported by the fact that on 30 May 2013 the
ICTY acquitted two officials of the Serbian State Security Service of all charges, including
allegations that they or the Serbian State Security Service had directed the involvement of the
185
Serbian Volunteer Guard in Slavonia, Baranja and Western Srem . The Respondent did not
control the S erbian Volunteer Guard and therefore the responsibility for the S erbian Volunteer
Guard’s alleged or true misdeeds cannot be attributed to the Respondent.
28. Returning back to Sir Keir’s question “if you [the Court] accept Croatia’s case that
genocidal acts were committed by Arkan’s Tigers in Vukovar . . .”, the Respondent can only say
that it would be exceptionally difficult for the Court to accept the Croatian case given its i nherent
shortcomings. There is no evidence that shows that Arkan’s Tigers participated in the combat in
the city of Vukovar, nor that they were even present in the city of Vukovar. It would be very hard
to accept the argument that they committed acts of genocide in the location that they were not even
in. No member of the SDG was indicted for crimes committed at Ov čara or for any other crime
allegedly committed elsewhere in Vukovar, during or after the battle for Vukovar. Furthermore, it
has been well established that Arkan’s Tigers did not commit genocide anywhere else in Eastern
Slavonia orthe other parts of Croatia.
29. The above analysis leads us to the conclusion that the Applicant’s presumption on which
it has based its case that is, since Arkan’s paramilitary unit was committing “uncontrolled
genocide” in Vukovar all other paramilitary units were also committing genocide is simply null
and void. The same obviously applies to the claim that all actions of all other participants to the
conflict are attributable to the Respondent.
30. Mr. President, distinguished Members of the Court, instead of a concl usion, I will repeat
Professor Crawford’s words: “[t]he Court lives in the real world” 186and, if I may add, the Court
lives in the real world and it applies existing and strict rules of international law. The Respondent
believes that the just application of those rules does not lend support to the Applicant’s case.
18Prosecutor v. Stanišić and Simatović, IT-03-69, Judgement, 30 May 2013, para. 1789.
18CR 2014/21, para. 65 (Crawford). - 72 -
Mr. President, Members of the Court, this concludes my presentation. I would like to thank
the Court once again for its patience.
The PRESIDENT: Thank you, Mr. Ignjatović. This indeed concludes this morning’s sitting.
The Court will meet again this afternoon from 3 p.m. to 6 p.m. to hear the conclusion of Serbia’s
second round of oral argument. Thank you.
The Court is adjourned.
The Court rose at 1 p.m.
___________
Audience publique tenue le vendredi 28 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)