Traduction

BHY

CR 2006/42 (translation)

CR 2006/42 (traduction)

Thursday 4 May 2006 at 3 p.m.

Jeudi 4 mai 2006 à 15 heures - 2 -

10 The PRESIDENT: Please be seated. Maître Fauveau-Ivanović, you have the floor.

FMU sVEAU-IVANOVI Ć: Thank you, Madam President.

III. Third strategic goal: elimination of the River Drina as a border

1. The third strategic goal proclaimed by the SerBiH Assembly was the establishment of the

Drina river valley corridor and the elimination of the border between Republika Srpska and the

Republic of Serbia. That goal was both a logical and a legitimate aim for the Bosnian Serbs.

2. The Bosnian Serbs and the SDS party, in power during the war, made no secret of their

aspiration to be in the same State as Serbia. Ini tially, this aspiration was expressed as a desire to

remain within Yugoslavia. At the outset, the Bosnian Serbs did not seek separation from anyone,

they just wanted to remain within the State in which they had lived, and that was Yugoslavia. Once

it became clear that it would not be possible to remain within Yugoslavia, the Bosnian Serbs

expressed their legitimate and constitutional wish to separate from the other peoples of Bosnia and

Herzegovina and join Serbia. The secession of peoples was provided for in the Yugoslav

constitution and, as such, was not illegal or criminal.

3. There is no direct link between subsequent events in Bosnia and Herzegovina, and in

particular in the Drina valley, and the implementation of the Bosnian Serbs’ third strategic goal.

4. Eastern Bosnia, the Drina valley, had, like Bosanska Krajina in the western part of Bosnia

and Herzegovina, been the scene of atrocious crimes during the Second World War. Fear arose and

grew rapidly as political tension in the former Yugoslavia increased. All of the ethnic groups

began to organize and arm themselves.

5. There was fear on all sides before the outbreak of the conflict. That fear, which the

Applicant has tried to downplay, was real. In its report, the Netherlands Institute for War

Documentation stated:

“In the autumn of 1990, Muslims hardly dared to travel through Kravica in the
same way that Serbs hardly dared to pass through Potocari between Bratunac and
11
Srebrenica. Barriers had been erected ac1 oss the road in both places where members
of the other ethnic group were checked.”

1
http://www.srebrenica.nl, Netherlands Institute for War Documentation on Sr ebrenica, Part 1, The Yugoslavian
Problem and the Role of the West 1991-1994, Chap. 10. - 3 -

The situation was the same throughout Eastern Bosnia. The Netherlands Institute noted thus:

“Despite acts of moderation on the part of the current community leaders in
Bratunac and Srebrenica, polarization occurred between these ethnic groups. Social

life was increasingly broken down in accordance with ethnic divisions. Anyone who
tried to continue efforts towards media tion received threats. Rumours began to
circulate amongst Muslims and Serbs that the other group was secretly arming itself.” 2

6. The Applicant has constantly denied that fear , it has tried to avoid it, but it existed. We

are not attempting to explain or to justify it, we just note that fear existed. Fear alone cannot

explain all of what occurred in Bosnia and He rzegovina, but it does show that the situation was

significantly different from the tolerant State wh ere the diverse communities lived with each other

peaceably which the Applicant has chosen to portray.

7. The Applicant claims that a specific pattern was followed in the takeover of municipalities

in Eastern Bosnia. According to the Applicant’s allegations, that pattern comprised the expulsion

of non-Serbs and the destruction of all indications of non-Serb life, identity and culture. In its

claims, the Applicant holds that that pattern was adopted in order to accomplish the third strategic

goal: the creation of a Drina river valley corridor and the elimination of the border that ran through

it. However, the Applicant’s allegations are unfounded.

(a) Events in the Drina valley in 1992

8. The Applicant made reference to various municipalities in the Drina valley in which the

Serbs took power long before 12 May 1992. The strategic goals were adopted on 12 May 1992 and

were published in 1993. The strategic goals simply did not exist at the time that combat broke out

in Eastern Bosnia.

9. The situation in Eastern Bosnia was cons iderably more complex than the Applicant has

cared to admit. Numerous paramilitary formations were in the region. Thus, with respect to the

situation in Zvornik, the protected witness for the Prosecution in the Milosevic case before the

12 Tribunal for the former Yugoslavia, witness B 1804, explained the organization of Muslim

paramilitary forces in the Zvornik region. The w itness stated that Muslim paramilitary units, the

Green Berets and the Patriotic League, existed a nd operated in the Zvornik region before the war 3.

2
Ibid.
3
ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Transcripts, p. 31856. - 4 -

He also confirmed the presence in the region of the Kobras and Mosque Doves paramilitary units,

the latter, led by Midhat Grahic, was well known for the devastation it left in its wake: dead

people, burnt houses and looted premises . 4

10. Moreover, according to witness B1804’s st atements, the reserve weapons of the police

5
were transferred only to the Muslim forces and Muslim police . The Territorial Defence blocked

the bridge between Zvornik and Mali Zvornik to stop the Serbs from crossing the River Drina into

6
Serbia, where Mali Zvornik is located .

11. Lastly, witness B1804 stated that the fighting in Kula Grad, a town next to Zvornik,

lasted several days and that the Muslims, from their positions in Kula Grad, fired on Zvornik and

7
also on Mali Zvornik, which is in Serbia .

12. Two prosecution witnesses, one in the Milosevic case and the other in the Krajisnik case,

confirmed that the outbreak of armed conflict in Z vornik was prompted by the murder of a Serb by

8
Bosnian Muslims. Izet Mehinagic, whose statement was cited by the Applicant , testified in the

Krajisnik case that on 5 April 1992, thus before the beginning of the armed conflict in Zvornik, the

Muslims opened fire in the village of Sapna, in Zvornik municipality, killing an army officer, a

9
certain Stanojevic, and wounding two other soldiers . That version was confirmed by witness

B 1804 in the Milosevic case, who confirmed that the conflict in Zvornik broke out with the murder

10
in Sapna and the construction of barricades which followed .

13 13. This description of events in Zvornik diffe rs from that provided by the Applicant.

Zvornik was not a calm place where diverse comm unities coexisted peacefully. Zvornik was a

place where fear and paramilitary formations prevailed, where criminal acts were committed:

looting, assaults and finally killi ngs. In any case, crimes were committed in Zvornik, by the

4Ibid., pp. 31857-31858.
5
Ibid., p. 31857.
6
Ibid., p. 31859.
7
Ibid., p. 31862.
8CR 2006/6, p. 16, para. 20.

9ICTY, Prosecutor v. Momcilo Krajisnik, case No. IT-00-39&40-T, Transcripts, p. 12692.
10
ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Transcripts, p. 31859. - 5 -

Muslims and by the Serbs, but there are no grounds for talking about genocidal intent on either

side.

14. A similar environment prevailed in all of the towns of Eastern Bosnia. With respect to

events in Foca, the CIA noted: “As elsewhere in the Drina valley, there had been trouble in Foca

11
for weeks before April 1992.”

15. Events in Visegrad were also incorrectly portrayed by the Applicant, who said: “the

Uzice Corps, a wholly Serb unit of the JNA, shelled the city of Visegrad and many of the Muslims,

12
Bosnian Muslims, fled the town” . The Applicant claims that this allegation comes from

paragraph42 of the Tribunal for the former Yugoslavia’s Judgement in the Visegrad case.

However, paragraph 42 does not contain any such statement. On the contrary, the Tribunal found:

“many civilians fearing for their lives fled from their villages. In early April 1992, a
Muslim citizen of Visegrad, Murat Saba novic, took control of the local dam and
threatened to release water. On about 13 April 1992, Sabanovic released some of the

water, damaging properties downstream. Th e following day, the Uzice Corps of the
Yugoslav National Army (“JNA”) interv ened, took over the dam and entered
Visegrad.” 13

16. Moreover, according to the Judgement in Vasiljevic case:

“the actual arrival of the Corps had... a calming effect. After securing the town,
JNA officers and Muslim leaders jointly led a media campaign to encourage people to
return to their homes . . . The JNA also set up negotiations between the two sides to
14
try to defuse ethnic tension.”

17. Thus the role played by the JNA was different from the one which the Applicant seeks to

attribute to it. That does not, of course, ex cuse the crimes committed in Visegrad after the

withdrawal of the JNA units. Those crimes were indeed committed, but genocide was not.

14 18. The Applicant has sought once again to establish the facts, those that occurred in

Visegrad in the present instance, on the basis of the judicial notice of adjudicated facts accorded by

15
a decision in the Krajisnik case . Judicial notice does not mean that the facts have been found, but

merely that they are presumed. The Applicant it self, moreover, recognized that, when it explained

11Balkan Battlegrounds, A Military History of the Yugoslav Conf lict, 1990-1995, Vol.2, Central Intelligence
Agency, Washington, 2005, p. 299.

12CR 2006/6, p. 17, para. 23.
13
ICTY, Prosecutor v. Mitar Vasiljevic, case No. IT-98-32-T, Judgement, 29 November 2002, para. 42.
14Ibid., para. 43.

15CR 2006/6, pp. 18-19. - 6 -

in its presentation of 28 February 2006 that: “by taking judicial notice of an adjudicated fact, a trial

chamber establishes a well-founded presumption of th e accuracy of that fact, which therefore does

not have to be proven again at trial”. The Applicant also admitted that “the adjudicated fact may,

subject to that presumption, be challenged at that trial” 1. We agree wholeheartedly with the

Applicant’s presentation of judicial notice of ad judicated facts, which demonstrates that such

showings are presumptions which can be challenged and shown to be unfounded.

19. Furthermore, the Applicant stated that paramilitary formations remained in Visegrad

after the departure of the JNA, indicating that th e atrocities were carried out by the paramilitary

unit known as the “White Eagles”. We do not quer y the fact that that paramilitary unit committed

crimes, what we dispute is that the Bosnian Serb forces and in particular the unit indicated, the

White Eagles, were under the command of Vinko Pandurevic, an officer of the Republika Srpska

army, as suggested by the Applicant in its oral argument of 2 March 2006 17.

20. The Applicant’s claim that Vinko Pandur evic was at that time in command of the

Bosnian Serb forces in the Visegrad region is supposedly based upon an indictment by the

Prosecutor of the Tribunal for the former Yugoslavi a. However, that indictment does not suggest

that Vinko Pandurevic was the commander of Bosnian Se rb forces in Visegrad in 1992 at all. The

indictment concerning Vinko Pandurevic alleges tha t: “[d]uring the time period relevant to the

events described in this Indictment, Vinko Pan durevic, was a Lieutenant Colonel in command of

the Zvornik Brigade of the Drina Corps of the VRS [army of Republika Srpska]” 18. The indictment

to which the Applicant refers con cerns the events at Srebrenica in July 1995 and covers the period

15 from 11 July to 1 November 1995 exclusively 19, during which time Vinko Pandurevic was indeed

the commander of the Zvornik Brigade. The Ap plicant correctly noted that the White Eagles

paramilitary unit was in Visegrad in 1992. The co mmander of that unit is known. The unit was

16CR 2006/3, p. 51, para. 66.
17
CR 2006/6, p. 18, para. 26.
18ICTY, Prosecutor v. Vinko Pandurevic , case No. IT-05-88-PT, Consolidated Amended Indictment,

11 November 2005, para. 13.
19Ibid., para. 26. - 7 -

under the command of Milan Lukic, a Bosnian Serb from the village of Ru jiste, located 15km

20
north of Visegrad .

21. The Applicant cited the example of Bijeljina, which the Serbs took over on

31March1992. Serbs formed the majority of Bijeljina’s population, since 60percent of its

inhabitants were Serbs. While Bosnia and He rzegovina had, at the time, proclaimed its

independence without regard for the will of the Serb population and in breach of the constitution, it

had not yet been recognized internationally and that independence was contested by the Bosnian

Serbs, who, at that time, certainly did not regard the Drina river as an international frontier. True,

international recognition is not a precondition for statehood, but in March 1992 Bosnia and

Herzegovina did not correspond to the generally accepted definition of a State as a political

21
community comprising a territory and a population subject to an organized authority .

22. True, the fact that the Drina river was not recognized by the Serbs as an international

frontier cannot excuse the crimes committed in Bije ljina. But those crimes cannot be viewed as

part of a plan aimed at eliminating the border alon g the River Drina. Moreover, the allegation that

the Serbs took control of Bijeljina is not entirel y accurate: they formed the majority of the

population there and had the same claim to control over the town as the Muslims. Bijeljina, like all

the other towns in Eastern Bosnia , belonged as much to the Bosnia n Serbs as it did to the Bosnian

Muslims.

23. In describing events in B ijeljina, the Applicant cited, on ce more, a decision pursuant to

Article 98bis in the Milosevic case, claiming that: “[t]he Milosević trial chamber, in their dismissal

16 of the defence motion for acquittal of the charge of genocide, concluded that they had heard

enough evidence for a trial chamber to find beyond reasonable doubt that a number of events had

22
occurred” . That statement was incorrect. First, the paragraph quoted of the decision did not

claim that the evidence was su fficient to establish the facts beyond reasonable doubt. Second,

according to the Tribunal’s Rules, decisions on motions for acquittal pursuant to Rule 98 bis cannot

establish facts beyond all reasonable doubt, since these decisions are made before the defence has

20
ICTY, Prosecutor v. Milan Lukic and Sredoje Lukic , case No. IT-98-32/1-PT, Second Amended Indictment,
1 February 2006.
21
A. Pellet, P. Dailler, Droit international public, LGDJ, 7th ed., 2002, p. 408.
2CR 2006/6, p. 12, para. 9. - 8 -

had the opportunity to submit evidence. Such decisions establish only the probability that evidence

presented by the Prosecutor might be sufficient to prove the alleged facts. As the Applicant

admitted in its oral argument of 28February2006, the test to apply to decisions pursuant to

Rule 98bis is: “not whether the trier of fact would actually arrive at a conviction beyond all

23
reasonable doubt on the prosecution evidence, but whether it could do so” .

24. The Applicant also quoted the statement of witness B129, the former secretary of the

Serb paramilitary Arkan, who testified before the Tribunal for the former Yugoslavia in the

24
Milosevic case . The Applicant cited only part of witn ess B 129’s testimony, without quoting the

part of her statement in which she says: “As far as Bijeljina is concerned, Arkan himself said he

had gone at the invitation of Biljana Plavsic to as sist the Serb people in Republika Srpska and that

their assignment was to disarm the Muslims . . .” 25 Moreover, the Applicant neglected to mention

that the statements of this witness concerning 1992 are no more than hearsay, since the witness had

no contact with Arkan before February 1993. In her testimony before the Tribunal for the former

Yugoslavia, the witness admitted that: “[w]henever I testified, the period from 1991 inclusive with

26
February 1993 . . . I always stated that these were the ⎯ what the people said” .

17 25. We do not dispute that crimes were committe d in Bijeljina. The atmosphere was tense,

people were armed, public order had ceased to ex ist as the State was not functioning. Bosnian

Muslim as well as Bosnian Serb paramilitary units were in Bijeljina and fighting broke out. The

United Nations Commission of Experts noted with respect to events in Bijeljina in its report: “The

battles engulfed the town for three days and nights . . . reportedly thousands of refugees fled from

27
Bijeljina into Serbia.” While we are not entirely convin ced of the credibility of the facts

mentioned by the Commission of Experts in refe rence to the crimes committed, this statement

regarding the general situation in Bijeljina could be correct and, at least, demonstrates that the

events in Bijeljina were not as simple as the Applicant would like to portray them.

23CR 2006/3, p. 48, para. 51.

24CR 2006/6, p. 13, para. 10.
25
ICTY, Prosecutor v. Slobodan Milosevic, case No. IT-02-54-T, Transcripts, p. 19424.
26Ibid., p. 19497

27Final Report of the United Nations Commission of Experts, 28 December 1994, Ann. III A, “Special Forces”. - 9 -

26. The Applicant claims that the takeover of Bijeljina involved discrimination against the

Bosnian Muslims and Croats . Nobody disputes the fact that there was a transfer of populations in

Bijeljina. The current composition of the populatio n of Bijeljina bears the marks of the departure

of the Muslim population and the arrival of Serb ian refugees from the territories controlled by the

Government of Bosnia and Herzegovina. Bijeljina has a population of 105,000 at present, whereas

it was 96,000 in 1991 29. However, according to the evid ence submitted by the Applicant, the

30
proportion of Croats in Bijeljina has increased , indicating that the total number of Croats living in

Bijeljina is now higher than in 1991. Of course, this does not mean that isolated incidents of

discrimination against Croats did not take place, but the Applicant has not provided evidence of

such discrimination, just as it has not provided evidence that the Croat population fell victim to

criminal acts in Bijeljina.

27. In all of the municipalities of Eastern Bosn ia, the demographic situation differs from that

described by the Applicant. T hus, the former municipality of Z vornik is now divided into two,

which was exactly what the Serbs sought befo re the war— a goal that could have been

18
accomplished peacefully. In 1997, the municipality of Zvornik, the part that remained inside

Republika Srpska, had a population that was 96.81 per cent Serb and 3.19 per cent non-Serb. The

31
Speaker of the Municipal Assembly, however, is a Bosnian Muslim, Mr. Vehid Kadric . Note, by

contrast, that the population of Sapna, the Muslim part of the former municipality of Zvornik,

located in the Muslim-Croat Federation, was 100 percent Muslim in 1997: no Serbs, no Croats,

just Bosnian Muslims 32.

28. The situation is very similar in Foca, wh ich is also now a municipality divided between

Republika Srpska and the Muslim-Cro at Federation. We do not deny that the Serbs represent the

majority in the Serb part of Foca. More preci sely, in 1997 the Serbs accounted for 96.21 per cent

of the population and the non-Serbs for 3.79percent. However, in the part belonging to the

28CR2006/6, p. 11, para. 8.
29
http://en.wikipedia.org/wiki/Bijeljina.
30CR2006/6, p. 23, para. 39.

31http://www.opstina-zvornik.org

32ICTY, Prosecutor v. Momcilo Krajisnik, case No. IT-00-39 and 40, Prosecution exhibit P 528, Ewa Tabeau —
Ethnic Composition and Displaced Persons and Refugees in 37 Muni cipalities of Bosnia and Herzegovina— 1991 and
1997 by Ewa Tabeau and Marcin Zoltkowski, p. 20. - 10 -

Muslim-Croat Federation, the population in 1997 was 100 per cent Muslim. Once again, no Serbs,

no Croats, no members of any other ethnic group; this part of the town is entirely populated by

Bosnian Muslims . 33

29. The Applicant claims that, after the war, the Muslims accounted for just 0.1percent of

the population of Bratunac. We do not deny that immediately after the war only a few Bosnian

Muslims lived in Bratunac. However, in 2002, Bosnian Muslims constituted 15.5percent of the

population of Bratunac and the current Chairman of the Municipal Council is a Bosnian Muslim,

Mr. Refik Begic 34.

30. As in Bratunac, the current Speaker of th e Municipal Assembly of Visegrad is a Bosnian

Muslim, Mr. Redzep Jelacic 35.

31. Moreover, the Croat population has not increased in Bijeljina alone, but across the whole

of Eastern Bosnia. According to the evidence pr esented by the Applicant, along with Bijeljina,

19 more Croats now live in the municipalities of Bratunac 36, Visegrad , Foca 38 and Vlasenica 39than

before the war. The Croat population of Eastern Bosnia was never particularly large, but the fact is

that it is now larger than in 1991. The number of Croats in Eastern Bosnia is certainly related to

the fact that the Serbs and the Croats were not at war in that part of Bosnia and Herzegovina, but

also to the fact that a part of the Croat popul ation expelled by the Muslims from Central Bosnia

during the war between the Muslims and the Croats took refuge with the Serbs of Eastern Bosnia.

(b) Srebrenica

32. Lastly, the Applicant seeks to show that the tragic events at Srebrenica in 1995 were the

logical consequence of the third Strategic Goal , implemented not only in accordance with the

Bosnian Serb plan, but also with an alleged Be lgrade plan, under which the Serbs were to be

guaranteed a territory extending 50km on either si de of the River Drina. Notwithstanding the

3Ibid., p. 19.

3http://www.bratunacopstina.com.
35
http://www.opstinavisegrad.org.
36
CR 2006/6, p. 23, para. 39.
3Ibid., p. 19, para. 28.

3Ibid., p. 15, para. 18.

3Ibid., p. 24, para. 43. - 11 -

causes of the events in Srebrenica, this episode is tragic, and without any doubt also criminal, but

cannot in any way be linked with the third Strategic Goal and even less so with an alleged Belgrade

plan.

33. Before embarking on an analysis of the picture of the events in Srebrenica presented by

the Applicant in the oral pleadings of 19 April 2006, we are bound to say that the chronology of

40
those events, as presented by the Applicant, and which was to be the ultimate proof of the plan , is

simply incorrect. Though we are certain that this error, serious as it is, was not deliberate, we must

correct it. The Applicant has presented a plan, a plan which never existed, since the last point in it,

supposed to be the final point, i.e., the implemen tation of the Strategic Goals, but also of Radovan

Karadzic’s Directive7 and Ra tko Mladic’s Directive 7.1 ⎯ the famous declaration by Colonel

Ognjenovic, commander of the Bratunac Brigade, and according to the Applicant made on

20 4 July 1995 ⎯ could not have been made on that date since Colonel Ognjenovic was then no

longer commander of that brigade. We do not deny that Colonel Ognjenovic’s declaration exists.

Yes, it exists, but it was made on 4 July 1994 41, long before Directives 7 and 7.1 ⎯ which

supposedly represented the links in the plan presented by the Applicant ⎯ had been written, and

could therefore in no way be the consequence or result of a plan allegedly elaborated in those

Directives. In order to establish a plan, which it cannot establish, no plan ever having existed, the

Applicant has presented an incorrect chronology of the events which preceded the taking of

Srebrenica. We are convinced the error was ina dvertent, but an error it is nonetheless, and the

events presented by the Applicant simply do not correspond to the facts. Also, GeneralDannatt,

the Applicant’s expert in this case, who was also the Prosecutor’s expert in the Krstic case, stated

before the Tribunal for the former Yugoslavia that Directive 7 was never sent to the Drina Corps 42.

Consequently, the units in the Drina Corps coul d not possibly have had knowledge of it and acted

on instructions supposedly included in it.

40
CR 2006/32, p. 41.
41ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, Judgement, 17January2005,

para. 103; Prosecutor v. Vujadin Popovic et al. , case No.IT-05-88-PT, Consolidated Amended Indictment,
11 November 2005, para. 23.
42ICTY, Prosecutor v. Radoslav Krstic, case No. IT-98-33-T, CR 25 July 2000, pp. 5689-5690. - 12 -

34. As regards the other elements whic h the Applicant endeavours to represent as a

well-established plan, we must first analyse the ev idence relating to the plan allegedly conceived

by Belgrade. The only evidence of this plan presented to the Court by the Applicant , and the only

evidence ever presented on the alleged plan to the Tribunal for the former Yugoslavia, is the

statement by MiroslavDeronjic to the effect that he had heard in Belgrade that a territory 50km

wide was to have been guaranteed on the left bank of the River Drina, in other words in Bosnia and

44
Herzegovina . This statement by MiroslavDeronjic has never been corroborated by other

evidence. We have previously analysed the credibility of MiroslavDeronjic. The various

Chambers of the Tribunal for the former Yugoslavi a, including the Appeals Chamber, rejected his

statements, as he could no longe r be considered a credible witn ess. The statement quoted by the

21 Applicant is particularly lacking in credibility sin ce it is the statement by Miroslav Deronjic in his

own case relating to the determination of sentence. The statement could not be duly examined, as

no one in those proceedings was particularly inte rested in an alleged Belgrade plan. The only

person interested was MiroslavDeronjic, who pe rhaps hoped that Belgrade’s involvement might

help the Prosecutor in other cases. Co-operation with the Prosecutor is regarded as an attenuating

circumstance by the Tribunal and it is highly probable that, by accommodating himself to the

Prosecutor’s wishes, Miroslav Deronjic hoped to obtain a lighter sentence.

35. However, fully aware that the Tribuna l for the former Yugoslavia had given limited

credence to MiroslavDeronjic’s statements, the Applicant cites this statement as sole evidence of

an alleged Belgrade plan concerning the territo ries in Bosnia and Herzegovina. The Applicant

even concludes that the third Strate gic Goal was a consequence of this ⎯ alleged but not

confirmed ⎯ Belgrade plan. No evidence has been pr esented indicating that the Strategic Goals

had been established on the basis of a prior Belgrade plan. Also, while the third Strategic Goal was

the elimination of the border on the RiverDrina, that Goal contained no reference to the alleged

50 km territory. On the other hand, while the elim ination of the border on the River Drina was one

of the Bosnian Serb claims, it was never supported by the Belgrade authorities.

43
CR 2006/4, p. 38, para. 8.
4ICTY, Prosecutor v. Miroslav Deronjic, case No.IT-02-61-S, Testimony of Miroslav Deronjic, transcripts of

27 January 2004. - 13 -

36. In this plan, alleged but not confirmed, the Applicant sees evidence of Belgrade’s Greater

Serbia project, aimed at the creation of a new Yugoslavia, in which all Serbs would live in the same

45
State . While this is merely what the Applicant alle ges, it is an allegation at odds with logic.

Yugoslavia was a multi-ethnic State, whose nature did not inherently correspond to the allegations

relating to a National Serb State. Furthermore, th e capturing of the territory extending 50 km west

of the River Drina would certainly not have enab led all Serbs to live in one State, since over a

million Serbs living in Bosanska Krajina, which is in western Bosnia, and in Republika Srpska

Krajina, which is in Croatia, would have remain ed outside that State. The Applicant seeks to

devise an impossible construct to link Belgrade wi th the goals of the Serb people in Bosnia and

22 Herzegovina, but that link does not exist and has ne ver existed. So all the Applicant can do is

make constructs which do not withstand serious, logical analysis.

37. Not content with making a construct linking the Belgrade plan ⎯ alleged but not

confirmed ⎯ with the Strategic Goals of the Bosnian Se rbs, the Applicant also endeavours to link

the tragic events at Srebrenica in July 1995 with the Bosnian Serb Strategic Goals, as well as with

the alleged Belgrade plan.

38. For example, citing the Blagojevic case heard by the Tribunal for the formal Yugoslavia,

the Applicant alleges that “the plan for the final attack on Srebrenica must have been prepared quite

46
some time before July1995” . This allegation is a distortion of the conclusions of the Trial

Chamber in the Blagojevic case, for paragraph 106, the only pa ragraph among those referred to by

the Applicant relating to military action in Sreb renica, does not mention the plan to attack

Srebrenica but the plan to separate the enclaves of Srebrenica and Zepa 47.

39. Also, in its oral pleading of 19April2006, the Applicant claimed that paragraph93 of

the Judgment delivered in the Krstic case does not support the thesis that the plan for the mass

48
murders at Srebrenica was not hatched until 12 July 1995 .

4CR 2006/4, p. 38, para. 10.
46
CR 2006/4, p. 48, para. 44, footnote 73.
4ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, Judgement, 17January2005,

para. 106.
4CR 2006/32, p. 62, para. 72. - 14 -

Madam President, Members of the Court, it has never been contended that the Appeals

Chamber found that the plan was conceived on 12 July 1995, despite the fact that in its Judgment

the Appeals Chamber reported the Prosecutor’s thesis that the plan had been formed on

12July1995. To be perfectly clear on this po int, we will once again c ite paragraph93 of the

Judgement of the Appeals Chamber in the Krstic case, according to which: “The Prosecution

argues that this evidence shows that a firm plan to kill the Muslim men of Srebrenica was formed

49
as early as 12July1995.” The Prosecutor’s argument here was confirmed by GeneralDannatt,

who stated in his testimony before the Tribunal for the former Yugoslavia that he: “believe[d] that

23 the decision to kill the men was a deci sion taken in the Potocari environment” 50. It has never been

disputed that the Bosnian Serbs did not enter Potocari until 11 July 1995.

40. The Applicant persists in its attempt to establish the plan and cites paragraph 106 of the

Judgement in the Blagojevic case, which reported the content of Directive7 issued by

RadovanKaradzic, President of Republika Srpska and Supreme Commander of the Bosnian Serb

forces, on 8 March 1995. This Directive contained a statement ⎯ certainly an unfortunate one ⎯

that the military operations were to create: “an unbearable situation of total insecurity with no hope

of further survival or life for the inhabitants of both enclaves” 51. The “inhabitants of both

enclaves” means the inhabitants of Srebrenica and Zepa. The Trial Chambe r then explained that

GeneralMladic issued Directive 7.1, based on Directive 7, on 31 March 1995 5. The Judgement

does not cite the text of Directive 7.1, but the text of that Directive is part of the file in the

Blagojeviccase, and it is not hard to see that the text of Directive 7.1 does not contain the

regrettable reference to the cond itions of life of the inhabitants of the enclaves, but specifies the

task of the Drina Corps in terms clearly showing that it was to separate th e enclaves of Srebrenica

and Zepa from one another 53.

49ICTY, Prosecutor v. Radoslav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 93.
50
ICTY, Prosecutor v. Radoslav Krstic, case No. IT-98-33-T, transcript of 25 July 2000, p. 5732.
51
ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, Judgement, 17January2005,
para. 106.
52Ibid.

53ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No. IT-02-60-T, exhibit P 402. - 15 -

41. In its oral pleading of 2 March last, the Applicant cited the text of Directive 7 and asked:

“What could be the more clear-cut intention of the genocidal intent to destroy on the part of the

54
authorities in Pale.” In the Krstic case, the judges in the Appeals Chamber of the Tribunal for the

former Yugoslavia examined this Directive and concluded: “Directives 7 and 7.1 are insufficiently

clear that there was a genocidal intent on the part of the members of the Main Staff who issued

them. Indeed the Trial Chamber did not even find that those who issued Directive7 and 7.1 had

55
genocidal intent.”

24 42. What seems so clear to the Applicant was obviously much less so to the judges at the

Tribunal for the former Yugoslavia, who did not fi nd that genocidal intent could be inferred from

the text of Directives 7 and 7.1 56.

43. Moreover, even the Prosecutor of the Tr ibunal for the former Yugoslavia has accepted

that the plan could only have been devised betw een 11 and 12 July 1995, as she states in the latest

indictment drawn up, in respect of the events at Srebrenica, against the eight Bosnian Serbs: “On

the evening hours of 11 July and morning of 12 July, at the same time the plan to forcibly transport

the Muslim population from Potocari was develope d, Ratko Mladic and members of his staff

57
developed a plan to murder the hundreds of able bodied men.” We are not quoting this

indictment with a view to establishing the facts alle ged therein, since an indictment merely sets out

the position of one of the parties; rather, we quote it because it shows that, after ten years of

investigation, the Prosecutor of the Tribunal for th e former Yugoslavia has been unable to find any

indication of a criminal plan in existence before 11 July 1995.

44. Thus, neither Directive 7, issued by the Supreme Commander, Radovan Karadzic, nor

Directive 7.1, issued by Ratko Mladic and ame nding the original text of Directive7, can be

considered a document from which genocidal intent can be inferred. These Directives, relating to

the Srebrenica and Zepa enclaves, entrusted the Dr ina Corps forces with a totally different task:

protecting the Serb population from the incessant attacks launched from the enclaves. The

54CR 2006/6, p. 37, para. 26.
55
ICTY, Prosecutor v. Radoslav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 90.
56ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 90.

57ICTY, Prosecutor v. Vujadin Popovic et al. , case No.IT-05-88-PT, Consolidated Amended Indictment,
11 November 2005, para. 27. - 16 -

Srebrenica enclave had never been demilitarized ev en though it was supposed to have been. The

28thDivision of the army of Bosnia and Herzegovi na maintained its headquarters in the city and

Bosnian Muslims belonging to the 28th Division were continually attacking Serb-inhabited

villages.

45. The Tribunal Prosecutor accepted as a fact that Srebrenica had never been demilitarized.

In its opening statement in the Blagojevic case the prosecution said:

“And then for two years we had Srebrenica and Zepa allegedly demilitarized but
in fact not so demilitarized. The UN w as able to take the heavy weapons of the
25 Serbs... but the Bosnian Army stayed in side the enclaves and were able to run

operations outside of the enclaves, attacking and terrorizing Serb villages and creating
general chaos.” 58

46. Accordingly, none of the crimes which took place in Srebrenica ⎯ and we do not deny

that crimes did take place in Srebrenica ⎯ can be linked to a pre-existing plan or to the Directive.

Those events are even less susc eptible of being tied to the Strategic Goals adopted in May 1992.

Furthermore, it should be recalled that, upon the adoption of the Strategic Goals on 12 May 1992,

RadovanKaradzic told the Assembly of the Serbia n People: “We and our strategic interests and

our living space are on both sides of the Drina. We now see possibility for some Muslim

municipalities to be set up along the Drina as enclaves in order for them to achieve their rights, but

59
it must basically belong to Serbian Bosnia and Herzegovina.”

47. Moreover, the Applicant does not accurately depict the events leading up to the fighting

in Srebrenica in July 1995. Thus, on 28 February, the Applicant stated: “The first days of July . . .

were used by the Serb side to get their troops ready for the attack. All troops in the wider area were

60
notified that the attack would begin on 6July1995.” The Applicant adduces no evidence in

support of this allegation, which in any event is untru e. In fact, the order was not given to all units

in the area but to some units of the Drina Corp s, as the Trial Chamber of the Tribunal for the

former Yugoslavia made clear in the Blagojevic case, when it found that: “the order included

specific orders to Drina Corps subordinate units: the Bratunac Brigade, the Zvornik Brigade, the

58
ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic , case No.IT-02-60-T, transcript of 14 May2003,
p. 307.
59
Transcript of the Sixteenth Sessionof the Assembly of the Serbian People in Bosnia and Herzegovina,
12 May 1992, Banja Luka, ICTY, Brdjanin case, case No. IT-99-36-T, Prosecution Exhibit P 50A, p. 14.
6CR 2006/4, p. 50, para. 53. - 17 -

61
Milici Brigade and parts of the Skelani Brigade” . The Tribunal also found in the Blagojevic case

that “[t]he stated objective of the attack on the Sr ebrenica enclave was to reduce ‘the enclave to its

urban area’” 62and then that “[a]s th e operation progressed its milita ry object changed from

‘reducing the enclave to the urban area’ to the ta king-over of Srebrenica town and the enclave as a

whole” 63.

26 48. What is more, in its opening statement in the Blagojevic case, the prosecution at the

Tribunal for the former Yugoslavia addressed the legality of the military tasks assigned to the

Drina Corps and stated: “Srebrenica and Zepa were illegally communicating and transferring

weapons and assisting each other in the attacks on Serbs. And this is the legitimate aim of the VRS

to stop this.” 64 A very similar position was adopted in the Krstic case by the Tribunal’s Trial

Chamber, which concluded: “the plan for Krivaja 95 certainly did not include a VRS scheme to

bus the Bosnian Muslim civilian population out of th e enclave, nor to execute all the military aged

Bosnian Muslim men, as ultimately happened following the take-over of Srebrenica” 65.

49. The military expert General Dannatt, called by the Applicant to appear before the Court,

testified before the Tribunal for the former Yugoslavia in the Krstic case and stated that there were

justifiable military motives for the military operation in Srebrenica. His words were as follows:

“the extent to which, therefore, the atta ck on Srebrenica was a legitimate military act,

according to general Geneva Convention norms, is my answer is yes, it is not
unreasonable for the Serbs to have attacked the enclave of Srebrenica in which there
were known to be Muslim military men” 66.

In his testimony before the Tribunal for the form er Yugoslavia, Richard Buttler, the prosecution’s

other military expert in the Krstic case, gave his opinion that civilians in Srebrenica were not the

67
target of the shelling .

61
ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, Judgement, 17 January 2005,
para. 120.
62
Ibid.
63
ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, Judgement, 17 January 2005,
para. 130.
64
ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, transcript of 14May2003,
p. 308.
65ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2 August 2001, para. 120.

66ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, transcript of 25 July 2000, p. 5695.

67Ibid., p. 5318. - 18 -

50. Accordingly, the Applicant’s assertion that the city was shelled during the fighting in

Srebrenica and that the civilian population was the target of that shelling 68cannot be accepted as

verified and generally accepted. The military att ack was militarily justified and the shelling was

most likely not directed against civilians but agai nst military targets situated in the centre of the

city, where, by the way, the 28th Division of the army of Bosnia and Herzegovina had its

headquarters.

27 51. It is a known fact that the 28th Division of the army of Bosnia and Herzegovina was in

the city of Srebrenica. The Division’s headquarters, staffed by several thousand military personnel,

was in the post office building in the city centre of Srebrenica. General Halilovic, a general in the

army of Bosnia and Herzegovina, stated in his testimony before the Tribunal for the former

Yugoslavia in the Krstic case that he had ordered his subordina tes not to turn over usable weapons

or ammunition to UNPROFOR. In accordance w ith his order, the only weapons surrendered to

UNPROFOR were non-functional, while those in go od condition and usable were retained by the

69
Muslim forces . Moreover, General Halilovic admitted that helicopters brought munitions to the

Muslims in Srebrenica in violation of the flight ban, acknowledging that he personally despatched

70
eight helicopters with munitions for the 28th Division . Thus, it is apparent that the initial

objective of the Srebrenica operation was a military one, the defeat of the army of Bosnia and

Herzegovina stationed at Srebrenica.

52. General Dannatt confirmed in his test imony before the Tribunal for the former

Yugoslavia in the Krstic case that:

“If the objective was to defeat the Muslim army in Srebrenica so that Srebrenica
as a military objective could be taken, th en the use of artillery against military
objectives in concert with infantry and arm oured attacks is a perfectly legitimate and
71
reasonable way to conduct an operation.”

53. What happened following the takeover of Srebrenica is not as clear-cut as the Applicant

describes it. No one denies the tragedy of Sreb renica, nobody denies the crimes committed in the

68CR 2006/4, p. 50, para. 53.
69
ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, transcript, p. 9466.
70
Ibid., transcript, pp. 9467-9468; Judgement, 2 August 2001, para. 24.
71ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, transcript of 25 July 2000, p. 5612. - 19 -

Srebrenica area after the Serbs entered the city. However, the position is much more complex than

the Applicant will admit.

54. The Applicant is asking the Court to make a judicial finding that the fact that “7,000 to

8,000 persons were put to death at Srebrenica in just a few days in July1995, and that many

thousands more were deported, is now so well known that it can no longer be contested” 72. The

number put forward by the Applicant is certainly generally accepted, but it cannot be established by

28 judicial finding. The reason why lies in a fact acknowledged by the Applicant: the cases before

this Court and before the Tribunal are identical neith er in nature nor as to the parties to them. The

number of victims in Srebrenica was never disputed before the Tribunal for the former Yugoslavia;

there was therefore no need for the Tribunal to ente r into a thorough analysis of the tragedy, which

did indeed occur.

55. Moreover, the Tribunal is not done with ev aluating the events at Srebrenica. The most

important trial on the subject of these events has ye t to begin and is planned to open at the end of

73
this summer . Furthermore, the Canadian General Lewis MacKenzie, former Commander of

UNPROFOR forces in Bosnia and Herzegovina, r ecently called into question the figure of

8,000persons killed. To be su re, this is merely an article, and we are not asking that it be

considered anything else, but it was written by a high-ranking soldier very familiar with the

situation in Bosnia and Herzegovina. In his article, “The Real Story Behind Srebrenica”,

General MacKenzie states:

“Evidence given at The Hague war crimes tribunal casts serious doubt on the
figure of ‘up to’ 8,000 Bosnian Muslims mass acred. That figure includes ‘up to’
5,000 who have been classified as mi ssing. More than 2,000 bodies have been

recovered in and around Srebrenica, and they include victims of the three years of
intense fighting in the area. The math just doesn’t support the scale of 8,000 killed.
NaserOric, the Bosnian Muslim military leader in Srebrenica, is currently on trial in

TheHague for war crimes committed during hi s ‘defence’ of the town. Evidence to
date suggests that he was responsible fo r killing as many Serb civilians outside
Srebrenica as the Bosnian Serb army was for massacring Bosnian Muslims inside the
town. ‘Two wrongs never made a right, but those moments in history that shame us

all because of our indifference should not be viewed in isolation without the context
that created them.’” 74

7CR 2006/3, p. 23, para. 2.
73
ICTY, Prosecutor v. Vujadin Popovic et al., case No. IT-05-88-PT.
7General Lewis MacKenzie, “The Real Story Behind Srebrenica”, The Globe and Mail, 14 July 2005, posted on
the website www.transnational.org/features/2005/MacKenzie_Srebrenica.html - 20 -

56. As we have said, we do not deny the crimes which were committed in Srebrenica, but we

ask that they be put in context. They must be placed in the context of the horrifying civil war

which lasted nearly four years in Bosnia and Herzegovina.

57. Many people were killed in the Srebrenica operation, but a great number were killed in

combat. General Dannatt testified before the Tribunal for the former Yugoslavia that:

29 “what we in fact saw happening on the ground in that period in July indicated that
combat operations were ongoing for really quite some time, and particularly the
combat operations against the Muslim column particularly made up of 28th Division

breaking out of Srebrenica. That posed a major threat to the security of the Drina
Corps, and I would have thought that operations against that column was undoubtedly
combat operations.” 75

In addition, General Enver Hadzihasanovic, a ge neral in the army of Bosnia and Herzegovina,

admitted in his testimony before the Tribunal for the former Yugoslavia that: “the head of the

column finally managed to break through to Bosnian Muslim-held territory on 16 July 1995.

ABiHforces attacking from the direction of Tuzla assisted by piercing a line of about

one-and-a-half kilometres for the emerging column.” 76 These statements, one by a senior officer

from Bosnia and Herzegovina and the other by an impartial source, confirm that fighting broke out

in the area after the Serbs entered Srebrenica.

58. As for the events in Srebrenica in July 1995, it was never denied before the Tribunal for

the former Yugoslavia that the men killed were of military age. However, no one knows and no

one has ever sought to determine the number of sold iers in the column which left Srebrenica. No

one knows and no one has ever sought to determ ine how many men were killed in combat. These

questions have to be answered before the act can be given legal characterization. The killing of

men in combat in wartime is not a criminal act; unfortunately, it is the legitimate aim of the

military operation. The killing of prisoners of war is a violation of the Geneva Conventions, it is a

violation of the laws and customs of war as well, it is a war crime, a very serious international

crime, but the issue is: can this crime, cl early a heinous one, be called genocide without

cheapening the notion of genocide? And it is pe rhaps also worth recalling the view expressed by

75
ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, transcript of 25 July 2000, pp. 5604-5605.
76
Ibid., Judgement, 2 August 2001, transcript, pp. 9529-9530, para. 65. - 21 -

the Applicant in its oral argument on 2 March 2006 to the effect that genocide is a crime aimed at

77
the civilian population .

59. As we have already said, the events at Sr ebrenica were tragic, but they were unplanned.

30 Srebrenica was declared a safe area and was supposed to be demilitarized. Bosnian Muslim forces

were present in Srebrenica throughout the whole war; they were organized in the 28th Division of

the army of Bosnia and Herzegovina and carried out attacks against the Serb population.

60. Thus, the military operation conceived in Directive 7.1 and ordered by the commander of

the Drina Corps on 2 July 1995 was legitimate. Fighting between Bosnian Serbs and members of

the 28th Division of the army of Bosnia and Herzeg ovina broke out after the Serbs entered the city

and it caused many deaths. Crimes ⎯ horrible, heinous crimes ⎯ were committed, but in a

context different from that described by the Applicant.

61. We must observe that the Applicant describes certain events without offering the

slightest evidence in support of its assertions. Th us it cites various statements by Dutch military

personnel without giving the sources 78. Such evidence cannot be accepted. The Applicant also

said, in its statement on 28 February 2006: “we know from the quotes that I have given earlier to

you that, indeed, the order was: kill them all” 79. Once again, the Applicant has not quoted

anything containing such an order. Obviously, th e Applicant is unable to offer any evidence to

support this allegation because no such evidence exis ts, no such order was ever given, it was never

formulated, it did not exist. The only order in ex istence as to the fate of the Muslim men of

Srebrenica is the order given by Lieutenant Colonel Vinko Pandurevic, Commander of the Zvornik

Brigade, a unit of the Drina Corps of the Republik a Srpska Army, who ordered that the column be

allowed to pass so that it could reach territory controlled by the Government of Bosnia and

Herzegovina. The Trial Chamber of the Tribuna l for the former Yugoslavia stated in the Krstic

case:

“On 16 July 1995, Lieutenant Colone l Vinko Pandurevic, the Commander of
the Zvornik Brigade, reported that, in view of the enormous pressure on his Brigade,

7CR 2006/7, p. 29, para. 90.
78
CR 2006/4, pp. 52 and 55.
7Ibid., p. 58, para. 73. - 22 -

he had taken a unilateral decision to open up a corridor to allo80about 5,000 unarmed
members of the Bosnian Muslim column to pass through.”

62. Similar reasoning may be applied to the vi deo showing the killing of six men in Trnovo.

31 The Applicant quotes an article from the New York Times and describes this incident as being part

of the crimes committed in Srebrenica and as the means by which Belgrade’s alleged plan to ensure

81
its control over a territory stretching 50 km west of the Drina was to be implemented .

63. Regrettably, the crime shown on the video did take place and two of the six victims were

from Srebrenica. However, there is no evidence th at the actions in Trnovo were part of the

Srebrenica operation and the crimes committed in th e Srebrenica area. Trnovo is a village situated

no less than 150km east of the Drina river. The village lies in the Sarajevo region and along the

Sarajevo front, where the major Muslim offensive took place in June and July 1995.

64. Two of the six people killed were from Srebrenica, but it is unknown where the other

82
four came from . Furthermore, it is a known fact that the front of the column of men from

Srebrenica, members of the 28th Division of the army of Bosnia and Herzegovina, succeeded in

reaching territory controlled by the Government of Bosnia and Herzegovina, specifically Tuzla,

where the 2nd Corps of the army of Bosnia and Herzegovina had its headquarters. The men who

made it to Tuzla were immediately integrated into other units of the army of Bosnia and

Herzegovina and were sent to other fronts in Bosn ia and Herzegovina, one of those fronts indeed

being that of Sarajevo. General Halilovic, a general in the army of Bosnia and Herzegovina,

confirmed before the Tribunal for the former Yugos lavia that: “military operations in the Sarajevo

83
area were given a higher priority at the critical time” .

65. Accordingly, there is a possibility whic h cannot be excluded that the six men whose

murder is shown on the video were captured on the Sarajevo front and then executed. This does

not excuse the execution of these men; that is a cr ime, a horrible crime, but a crime unrelated to

the events in Srebrenica and definitely unrelated to the Strategic Goals of the Serb people in Bosnia

and Herzegovina.

80ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2 August 2001, para. 65.
81
CR 2006/3, p. 28, para. 23.
82ICTY, Prosecutor v. Vujadin Popovic et al. , case No.IT-05-88-PT, Consolidated Amended Indictment,

11 November 2005, para. 33.16.
83ICTY, Prosecutor v. Radislav Krstic, transcript, pp. 9453 and 9492. - 23 -

66. Lastly, the Applicant itself has admitted th at the Trial Chamber of the Tribunal for the

former Yugoslavia recently ⎯ on 12 April 2006, to be precise ⎯ confirmed the charges against

32 Jovica Stanisic and Franko Simatovic in respect of the murders at Trnovo but also ordered the

prosecution to clarify the connection with Sr ebrenica because this was not clear from the

indictment . Moreover, Jovica Stanisic and Franko Simatovic, charged with the murders at

Trnovo, are not accused of genocide.

67. The Applicant constantly seeks to identify a connection between the crimes committed in

Srebrenica in 1995 and the Strategic Goals of the Serb people of Bosnia and Herzegovina

announced in 1992. No such connection can be f ound because none existed. No plan provided for

the takeover of Srebrenica let alone for the crimes committed. The tragedy of Srebrenica, which

was indeed a tragedy, even without account bein g taken of its magnitude, cannot be seen as the

result of a preconceived plan. The most which the prosecution at the Tribunal for the former

Yugoslavia was able to find was a plan which, if it existed at all, was formulated on 11 July 1995 at

the earliest.

68. The Applicant nevertheless puts forwar d certain facts occurring between 1991 and

1995 which, in its view, could serve as the connec tion between the Strategic Goals and the events

of July1995. The Applicant’s allegations are not hing but its own interpretation of the facts. A

different interpretation can be given to those f acts because the situation was different from that

described by the Applicant.

69. Thus the Applicant stated in its argument on 28 February 2006:

“the ICTY has, by now, dealt with various cases related to Srebrenica. In the case
against Blagojević, the Commander of the Bosnian Se rb Bratunac Brigade, the trial

chamber has, meticulously and thoroughly, first established all relevant facts, before it
began to consider and to appreciate the exact role of the accused. The facts
established by the trial chamber in its judgment of 17 January 2005, include the
85
1993 period, which I am describing to the Court just now.”

The Trial Chamber’s findings referred to by the Ap plicant concern events said to have taken place

in March 1993 . 86

84
ICTY, Prosecutor v. Jovica Stanisic and Franko Simatovic , case No.IT-03-69-PT, Decision on Defence
Motions Regarding Defects in the Form of the Second Amended Indictment, 12 April 2006.
85
CR 2006/4, p. 43, para. 25.
8ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, case No.IT-02-60-T, Judgement, 17 January 2005,
para. 98. - 24 -

70. The Tribunal must, of course, establish the facts before assessing the responsibility of the

accused, but the facts which are relevant in crimin al cases are those which reveal the role of the

defendants in the events forming the factual basis of the charges against them. Vidoje Blagojevic,

33 the accused in the case cited by the Ap plicant, was indicted solely in respect of events taking place

in Srebrenica between July and November 1995. The events alleged to have occurred in 1993

clearly lay beyond the scope of the indictment against Vidoje Blagojevic and, as they were not part

of the charges, the Trial Chamber assuredly neither heard nor weighed evidence concerning them.

71. If the Applicant had wished to describe events in Srebrenica in 1993, it should have cited

the Naser Oric case before the Tribunal for the former Yugoslavia, dealing with events having

87
taken place in Srebrenica in 1992 and 1993 . The Applicant finally did so, but in a peculiar

88
fashion, denying any and all responsibility on the part of Bosnian Muslims . Naser Oric was

however the Commander of the armed forces of Bosn ia and Herzegovina in the Srebrenica area.

The Tribunal has yet to hand down its judgment in this case, but the trial has concluded and the

record in the case paints a very different picture from the one offered by the Applicant.

72. The Applicant also refers repeatedly to the “Skelani” military action which took place in

January 1993. Thus, it asserted in its oral argument: “This is January 1993, this is the

Respondent’s army involved in the implementation of the 50 km plan, also known as strategic goal

No. 3.” 89 The description of the Yugosl av army’s involvement in these events is incorrect. What

happened on the border between Bosnia and Herze govina and Serbia cannot be explained without

the context in which the conflict occurred.

73. We do not deny that the Respondent’s ar my was involved in military operations in the

border area between Bosnia and Herzegovina and th e Republic of Serbia. In the course of those

operations, the Respondent’s army operated in territory of Bosnia and Herzegovina but the action

at Skelani in January 1993 was prompted by attack s by the army of Bosnia and Herzegovina in the

Republic of Serbia’s territory, in the territory of a foreign, sovereign and independent State.

74. These events were described as follows by the CIA:

8ICTY, Prosecutor v. Naser Oric (IT-03-68-T).
88
CR 2006/32, pp. 43–49.
8CR 2006/4, p. 41, para. 18. - 25 -

34 “Oric’s troops thrust along the Drina ri ver to where it touches Serbia to the
northeast and almost captured the Serbian border village of Skelani, some 25km to
the southeast of Srebrenica. For good meas ure, Oric’s men fired mortar rounds into
90
Serbia itself.”

The Netherlands Institute wrote in its report that, on 16 January 1993: “Bosnian government

offensive to cut Serb corridor between Serbia and Pale escalates tension when Bosnians fire across

91
border into town of Bajina Basta.” Bajina Basta is a city on the Serbian side of the Drina river,

on territory of the Republic of Serbia, territory of the Respondent. The action taken by the

Yugoslav army at the time was in response to the attack by the army of Bosnia and Herzegovina on

Yugoslav territory. Such actions are recognized unde r international law: the Charter of the United

Nations recognizes every State’s right of self-defence in the event of attack, that is to say the use of

92
armed force against its sovereignty, territorial integrity or independence .

75. We are not here to discuss the crimes committed by Bosnian Muslims during the war.

Those crimes cannot excuse the crimes committed by Bosnian Serbs, but the crimes of Bosnian

Serbs cannot be considered in isolation and out of th e general context of a bloody war. It is worth

quoting the Netherlands Institute on the subject of the situation in the Srebrenica area in 1992 on

the eve of the armed conflict:

“the Serbs remained on the defensive in th is region. Overall, Muslim fighters from
Srebrenica attacked 79Serbian places in the districts of Srebrenica and Bratunac.

They followed a certain pattern. Initially, Serbs were driven out of ethnically mixed
towns. Then Serbian hamlets surrounded by Muslim towns were attacked and finally

the remaining Serbian settlements were overr un. The residents were murdered, their
homes were plundered and burnt down or blown up. There was a preference to launch
these attacks on Serbian public holidays (tho se of Saint Joris, Saint Vitus and the

Blessed Peter, and Christmas Day), probabl y because least resistance was expected.
Yet it simultaneously contributed to the deve lopment of profound Serbian grievances.
Many of these attacks were bloody in nature . For example, the victims had their
93
throats slit, they were assaulted with pitchforks or they were set on fire . . .”

76. Today, ten years after the war in Srebrenica, which has remained on territory of

Republika Srpska, the President of the municipality is a Bosnian Muslim, Mr. Abdurahman Malkic,

90
Balkan Battlegrounds, A Military Histor y of the Yugoslav Conflict, 1990-1995 , Vol. 1, Central Intelligence
Agency, Washington, 2005, p. 184.
91
http://www.srebrenica.nl, Netherlands Institute for War Documentation on Srebrenica, Part 1, The Yugoslavian
Problem and the role of the West 1991-1994, chapter 10.
92A. Pellet, P. Dailler, Droit international public, LGDJ, 7th ed. 2002, pp. 941-944.

93http://www.srebrenica.nl, Netherlands Institute for War Documentation on Srebrenica, Part 1, The Yugoslavian
Problem and the role of the West 1991–1994, Chap. 10. - 26 -

35 while the Vice-President of the municipal assembly, Mr.SadikAhmetovic, is also a Bosnian

Muslim . 94

77. The Tribunal for the former Yugoslavi a has held that genocide was committed in

Srebrenica. Yet the judgments rendered in the cases concerning Srebrenica require careful legal

analysis. They contain certain contradictions which can cast doubt on the correctness of the legal

conclusions. Furthermore, the Ch ambers adopted a broad interpreta tion of genocide which is not

followed by the Tribunal’s other Chambers and wh ich is definitely not in accordance with the

Genocide Convention.

78. The Tribunal found no direct evidence proving genocidal intent. We are not referring to

95
General Krstic’s intent, because the Tribunal cl early found that he lacked genocidal intent . This

concerns the intent which somebody else, somebod y who was not tried in that case, might have

had. And the Trial Chamber inferred this inte nt from the facts, among which the fact, deemed

particularly significant, that the identity papers of the Bosnian Muslim men, who had first been set

apart, were destroyed. Thus, the Trial Chamber considered that: “the removal of their

96
identification could only be an ominous signal of atrocities to come” .

79. Nonetheless, while the Trial Chamber found, on the basis of the testimony, that “[l]ater,

after all of the Bosnian Muslim civilians had gone from Potocari, the piles of personal effects,

including identity cards, that had been taken fro m the Bosnian Muslim men and boys were set on

97
fire” , it also found, but on the basis of the forens ic evidence, that “[i]dentity documents and

belongings, found in most of the exhumed graves, suggest that the victims were linked with

Srebrenica. Among the items found were license cards and other papers with references to

98
Srebrenica.” The coexistence of these two paragraphs in the same judgment is disturbing because

nobody knows how destroyed, burnt-up papers ultima tely ended up together with their owners in

mass graves.

94http://www.srebrenica-opstina.org.

95ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2 August 2001, paras. 133-134.
96
Ibid., para. 160.
97Ibid., para. 160.

98Ibid., para. 145. - 27 -

36 80. This however is not the only unsettling element in the Krstic case. The Trial Chamber

found: “There is no evidence that the Drina Corps devised or instigated an y of the atrocities that

followed the take-over of Srebrenica in July 1995. The evidence strongly suggests that the criminal

99
activity was being directed by the VRS Main Staff under the direction of General Mladic.”

But the Appeals Chamber found:

“the ambit of the genocidal enterprise in this case was limited to the area of

Srebrenica. While the authority of the VRS Main Staff extended throughout Bosnia,
the authority of the Bosnian Serb forces charged with the takeover of Srebrenica did
not extend beyond the Central Podrinje region. From the perspective of the Bosnian

Serb forces alleged to have had genocidal intent in this case, the Muslims of
Srebrenica were the only part of the Bosnian Muslim group within their area of
control.”100

In its judgment the Trial Chamber concluded that me mbers of the main staff had genocidal intent.

The Appeals Chamber, without overturning the tria l court judgment, considered that the forces

whose control was limited to the Srebrenica area ha d genocidal intent. Hence, it definitely could

not have been the members of the headquarters staff of the army of Republika Srpska who had this

intent, because they controlled all of the territory of Republika Srpska. In addition, the Appeals

Chamber found that General Krstic, a member of the forces whose control was limited to the

Srebrenica area, did not have such intent. The existence of genocidal intent somewhere was held to

have been proved, but it was never made clear whose intent it was.

81. Moreover, the Trial Court concluded from the testimony that the Bosnian Muslims of

Srebrenica lived in a patriarchal society 101. The Appeals Chamber upheld this finding and

reiterated that the physical disappearance of th e Muslim population of Srebrenica was linked with

the patriarchal nature of Bosnian Muslim society 10. It is difficult to see how the Trial Chamber

could have come to such a conclusion without help from an expert capable of describing the

37 characteristics of a patriarchal society and evalua ting the characteristics of Muslim society in

Bosnia and Herzegovina. Yet what is most importa nt in respect of the characterization of Muslim

society in Bosnia and Herzegovina is that opinion on the matter is not undivided.

9ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2 August 2001, para. 290.

10ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 17.
101
ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2 August 2001, paras. 91 and 595.
10ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 28. - 28 -

82. In his statement before this Court the e xpert András Riedlmayer, a specialist in Balkan

history who has devoted his last ten years of work to the cultural history of Bosnia and

Herzegovina 10, confirmed that he had written in an article that Bosnian society was a modern,

104
industrialized, European society . It is not for us to pass judgment on the character of Bosnian

Muslim society, but it is assuredly impossible for a society to be both modern and patriarchal at the

same time.

83. The comments referred to above reveal factual contradictions on which the Tribunal

based its legal conclusions. It will never be know n whether the Tribunal might have characterized

the events at Srebrenica as genocide without thes e contradictions. Nevertheless, the factual

findings are not the only ones calling for special an alysis. The legal conclusions evidence a very

broad interpretation of genocide, an interp retation which clearly exceeds the bounds of the

Genocide Convention.

Madam President, would this be a suitable time for a break?

The PRESIDENT: We could take the break now, or you could go to the end of this section.

Which do you prefer?

FMU sVEAU-IVANOVI Ć: I would prefer to take a break now, if that would suit you.

The PRESIDENT: Yes, certainly. The Court will now rise.

The Court adjourned from 4.25 to 4.40 p.m.

The PRESIDENT: Please be seated. Maître Fauveau-Ivanović.
38

Ms FAUVEAU-IVANOVIC: Thank you, Madam President.

84. The Appeals Chamber of the Tribunal fo r the former Yugoslavia found General Krstic

guilty of aiding and abetting genocide. Aidi ng and abetting genocide does not correspond to

complicity in genocide as provided for in Ar ticleIII of the Genocide Convention. And

GeneralKrstic was effectively convicted on the b asis of Article7.1 of the Tribunal’s Statute, in

103
CR 2006/22, pp. 12-13.
104
Ibid., pp. 51-52. - 29 -

accordance with the general rules of criminal law applicable to aiding and abetting, which do not

require the evidence of specific intent necessary for the crime of genocide. The Appeals Chamber

held as follows:

“The Trial Chamber acknowledged, mo reover, that the evidence could not

establish that ‘Radislav Krstic himself ev er envisaged that the chosen method of
removing the Bosnian Muslims from the enclav e would be to systematically execute
part of the civilian population’ and that he ‘appeared as a reserved and serious career

officer who is unlikely to have ever instig ated a plan such as the one devised for the
mass execution of Bosnian Muslim men, following the take-over of Srebrenica in
July 1995’. The Trial Chamber found that ‘left to his own devices, it seems doubtful

that Krstic would have been associated with such a plan at all’. The Trial Chamber
also found that Radislav Krstic made effo rts to ensure the safety of the Bosnian
Muslim civilians transported out of Potocari.” 105

Nevertheless, this man, who had never envisaged that the removal of the population would become

the systematic execution of part of the civilian population and who made efforts to ensure the

safety of the Bosnian Muslim civilians, was sentenced to 35 years for aiding and abetting genocide.

But was it really genocide? How can we speak of genocide when, in the middle of a war, officers

of the Bosnian Serb army made efforts to ensure the safety of Muslim civilians?

85. The Appeals Chamber recognized that the literature suggests that accessories to genocide

should show specific intent to destroy, in whole or in part, the protected group as such, since it

found that: “Article 4 (2)’s requirement that a pe rpetrator of genocide possess the requisite ‘intent

to destroy’ a protected group applies to all of the prohibited acts enumerated in Article4(3),

106
39 including complicity in genocide.” And Trial Chamber I had noted that “[t]he same analysis

applies to the relationship between ArticleII of the Genocide Convention, which contains the

requirement of specific intent, and the Convention’ s ArticleIII, which lists the proscribed acts,

107
including that of complicity” .

8h6. travaux préparatoires for the Genocide Convention clearly show that the

108
Convention’s authors believed that accessories to genocide should possess genocidal intent .

G8eK.ratlic’s mens rea was not found, but that does not mean that genocide was not

committed. Although General Krstic’s intent do es not fall within the scope of the Convention,

10ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-A, Judgement, 19 April 2004, para. 132.

10Ibid., para. 142.
107
Ibid., para. 142, footnote 245.
10United Nations doc. A/C.6/236 & Corr.1; doc. A/C.6/SR.87. - 30 -

someone else’s intent might have. However, the Tribunal for the former Yugoslavia was unable to

establish such intent. The issue of the specific intent required for genocide was left unanswered.

88. Moreover, in all the trials linked to the events at Srebrenica, the Tribunal has extended

the meaning of the term destruction of a protected group.

89. In the Krstic case, Trial Chamber I found that: “the physical destruction of a group is the

most obvious method, but one may also conceive of destroying a group through the purposeful

eradication of its culture and identity resulting in the eventual extinction of the group as an entity

distinct from the remainder of the community” 10. And subsequently: “Several recent declarations

and decisions, however, have interpreted the inte nt to destroy clause in Article4 so as to

encompass evidence relating to acts that involved cultural and other non-physical forms of group

110
destruction.”

90. The Trial Chamber in the Blagojevic case went even further, adopting the partial

dissenting opinion of Judge Shahabuddeen in the Krstic case, according to which:

“It is the group which is protected. A group is constituted by characteristics —
often intangible— binding together a collection of people as a social unit. If those
characteristics have been destroyed in pursu ance of the intent with which a listed act
40
of a physical or biological nature was done, it is not convincing to say that the
destruction, though effectively obliterating the group, is not genocide because the
obliteration was not physical or biological.” 111

91. Such an analysis runs counter to the intentions of the authors of the Genocide

Convention. In the Draft Code of Crimes ag ainst the Peace and Security of Mankind, the

International Law Commission explained the meani ng of the words “physical destruction” in the

following terms:

“As clearly shown by the preparatory work for the Convention on the

Prevention and Punishment of the Crime of Genocide, the destruction in question is
the material destruction of a group either by physical or by biological means, not the
destruction of the national, linguistic, religious, cultural or other identity of a

particular group. The national or religious element and the racial or ethnic element are
not taken into consideration in the defin ition of the word ‘destruction’, which must
only be taken in its material sense.” 112

109
ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2 August 2001, para. 574.
110
Ibid., para. 577.
11ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic , case No. IT-02-60-T, Judgement, 17January 2005,
para. 659; Prosecutor v. Radislav Krstic, case No. IT-98-33-T, Judgement, 2Augus t 2001, partial dissenting opinion of

Judge Shahabuddeen, para. 48.
11Draft Code of Crimes against the Peace and Security of Mankind with commentaries, 1996, p. 46. - 31 -

92. In its reliance on the opinion of Judge Shahabuddeen, the Trial Chamber in the

Blagojevic case ruled that “‘mere displacement’ does not amount to genocide. However, he further

found that displacement can constitute genocide when the consequence is dissolution of the

group.” 113A completely different approach was adopted by the Trial Chamber in the Stakic case —

distinguishing between the destruction and the di ssolution of a group — which held: “It does not

suffice to deport a group or part of a group. A clear distinction must be drawn between physical

114
destruction and mere dissolution of a group.” The Trial Chamber’s Judgement in the Stakic case

and the acquittal of Milomir Stakic of genocide were upheld by the Appeals Chamber 11.

93. Finally, it becomes obvious that the findings of the Trial Chamber in the Blagojevic case

fall outside the scope of the Genocide Convention, since the Chamber held:

“While killing large numbers of a group may be the most direct means of

destroying a group, other acts or series of acts, can also lead to the destruction of the
group. A group is comprised of individuals, but also of its history, traditions, the
41 relationship between its members, the relati onship with other groups, the relationship

with the land. The Trial Chamber finds that the physical or biological destruction of
the group is the likely outcome of a forcib le transfer of the population when this
transfer is conducted in such a way that th e group can no longer reconstitute itself —

particularly when it involves the separation of its members. In such cases the Trial
Chamber finds that the forcible transfer of individuals could lead to the material
destruction of the group, since the group ceases to exist as a group, or at least as the

group it was. The Trial Chamber emphasizes that its reasoning and conclusion are not
an argument for the recognition of cultural ge nocide, but rather an attempt to clarify
the meaning of physical and biological destruction.” 116

94. This conclusion corresponds precisely to the definition of a crime against humanity, but

it does not correspond to the intentions of the au thors of the Genocide Convention and does not

come within the terms of the Convention. Genocid e, often regarded as the crime of crimes, must

be assessed carefully. Deportations, forced transfer s and the destruction of cultural monuments do

not constitute genocide.

113
ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic , case No. IT-02-60-T, Judgement, 17 January 2005,
para. 660.
114
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2005, para. 519.
115ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-A, Judgement, 22 March 2006.

116ICTY, Prosecutor v. Vidoje Blagojevic and Dragan Jokic , case No. IT-02-60-T, Judgement, 17 January 2005,
para. 666. - 32 -

IV. Fifth Strategic Goal: the situation at Sarajevo

1. I now come to the fifth Strategic Goal, wh ich was the division of Sarajevo. The text of

this goal was: “Divide the city of Sarajevo in to Serbian and Bosnian Muslim parts and establish

effective State authorities in both parts.” This Goal assigned part of the city to the Bosnian

Muslims. If the intention was to destroy the Mu slim people, the Bosnian Muslims would not have

needed their part of the city.

2. The division of the city, and moreover accord ing to ethnic criteria, would appear to be

contrary to human rights, signifying as it does the displacement of a population; and the Applicant

interprets it as ethnic cleansing. However, the idea of dividing Sarajevo did not imply either

population displacement or ethnic cleansing. It did not imply human rights violations. It was no

more than a proposal by the Bosnian Serbs, it was an expression of the desire of the Serbian people

for its own State, a legitimate desire of one of the constituent peoples of Bosnia and Herzegovina.

3. Also, Sarajevo was not the multi-ethnic, mu lticultural and multi-religious city portrayed

by the Applicant 117. When Bosnia and Herzegovina procla imed its independence in March 1992,

the city was not particularly friendly to minorities. The exodus of persons belonging to the national

42 minorities became a mass movement at the very star t of the conflict in Sarajevo. The bulk of the

Jewish minority left Sarajevo at the beginning of April 1992. General MacKenzie noted in his

journal on 11 April 1992: “I drove to the air port to confirm rumours of a mass exodus of the

118
Jewish community from Sarajevo. The reports were correct.” The Jewish people thus opted to

119
leave Sarajevo and depart en masse for Belgrade, for Serbia and Montenegro .

4. In its oral pleading of 28 February 2006, the Applicant showed the composition of the city

of Sarajevo as consisting of ten municipalities. Detailed examination of the demographic

composition of those municipalities shows that the population of Sarajevo was not truly mixed,

120
each of the municipalities, with three excepti ons, having a clear Serb or Muslim majority . In its

report, the CIA writes: “Although the city census showed a Muslim or Yugoslav majority, almost

117CR 2006/4, p. 22, para. 2.
118
Lewis MacKenzie, Peacekeeper: The Road to Sarajevo , Douglas and McIntyre, Vancouver/Toronto, 1993,
p. 145.
119
Ibid.
120CR 2006/4, pp. 22-23. - 33 -

120,000 Serbs were concentrated in five municipal districts of Sarajevo’s city centre and most of

these did not share the Sarajevo government’s perception of a multiethnic capital.” 121

5. The Netherlands Institute noted in its repor t that, even before the war, the peoples were

living in separate communities albeit in a small area. The report continues:

“decades before the outbreak of the war, so me observers felt that even in Sarajevo
there existed a parallel reality, ‘a deep and obvious separation between the ethnic

groups, a separation characterized by both mistrust and apprehension’. ‘Most of the
peace and quiet rests on hypocrisy and on not wanting to attract the regime’s
attention...’ As a Croat resident of Bosnia said later: ‘Yes, we lived in peace and

harmony. We lived in peace and harmony because every hundred yards there wa122
policeman who made sure that we were really nice to one another.’”

6. In fact, Sarajevo was not a multi-ethnic cap ital, the three communities living in the same

city, but side by side without mixing. The proposed Serb division of the city was not intended to

43 change life in Sarajevo but to guarantee each of the constituent peoples its own State. The proposal

did not even signify the displacement of the population, but was no more than a proposed

administrative division. That division in itself did not mean that the Serbs could not live in the part

governed by Bosnian Muslims or that the Bosnian Muslims could not live in the Serb part of the

city. It simply meant that the city would have two parts, one of which would have been governed

by the Muslims and the other by the Serbs.

7. The fifth Strategic Goal, the division of Sarajevo, does not confirm the intention to destroy

the Bosnian Muslims. On the contrary, it clearly sh ows that no such intention ever existed. After

the end of the war, Sarajevo was divided a nd that division was confirmed by the Dayton

Agreement. Now certain municipalities in Sarajevo are divided between Republika Srpska and the

Croat-Muslim Federation. The two parts are ethni cally homogenous, with Serbs living in the Serb

part of the city and Muslims living in the part of the city belonging to the Federation. However, the

123
Serb part is home to a larger percentage of national minorities than the Muslim part .

12Balkan Battlegrounds, A Military Histor y of the Yugoslav Conflict, 1990-1995 , Vol.1, Central Intelligence
Agency, Washington, 2005, p. 346.

12http://www.srebrenica.nl, Netherlands Institute for War Documentation on Srebrenica, Part 1, The Yugoslavian
Problem and the role of the West 1991-1994, Chap. 3.

12ICTY, Prosecutor v. Momcilo Krajisnik , cases Nos.IT-00-39 and 40, exhibitP528, EwaTabeau ⎯ Ethnic
Composition and Displaced Persons and Refugees in 37 Municipalities of Bosnia and Herzegovina ⎯ 1991 and 1997 by
Ewa Tabeau and Marcin Zoltkowski, p. 20. - 34 -

8. As in other regions of Bosnia and Herze govina, the situation in Sarajevo was completely

different from that presented by the Applicant. The Applicant’s allegations concerning the

beginning of the conflict in Sarajevo voiced in its oral pleading of 28 February 2006 are not

124
correct, and, moreover, the Applicant provided no evidence for those allegations . On the other

hand, the tensions between the Bosnian Muslims and the Serbs were palpable even before the

beginning of the conflict. The CIA wrote in its report:

“In Sarajevo as elsewhere in Bosnia one of the first tangible indications that
widespread communal violence was looming came immediately after the results of the
republic wide independence referendum we re announced on 3 March. Roadblocks,

barricades, and checkpoints sprang up all over Bosnia that day but the division of
Sarajevo city along ethnic lines was the largest and most pronounced confrontation in
the republic. And with four killed in clashes between roving rival ethnic lines was
125
also the bloodiest.”

44 9. The Bosnian Muslims in Sarajevo had been well armed and well organized since the start

of the conflict and were so long before it. In its report, the CIA noted: “Armed non-Serbs in

Sarajevo initially numbered perhaps 10,000” 126and also: “Not only did the Muslim-dominated

academy occupy a commanding post atop Vraca Hill overlooking the Serb majority Grbavica

127
neighbourhood, it was also stockpiled with guns and ammunition.”

10. The CIA was not alone in noticing that both parties were preparing for war and that both

parties had warlike intentions. General MacKen zie, who was present in Sarajevo at the time,

recorded in his journal on 10 April 1992 the events which had taken place a few days before, more

specifically on 7 April 1992: “Bosnia was now a country. But conditions were bordering on

anarchy and the thugs were coming out from woodw ork. A good deal of shooting and looting was

being carried out by criminal elements devoid of any political motives.” 128 On 10 April 1992,

General MacKenzie wrote in his journal: “The fighting had spread from the downtown area and

was now going on around our headquarters in the PTT building. JNA were on a hill one kilometre

129
south of us; the Presidency forces held the high ground directly north of us.”

124CR 2006/4, pp. 23-24, paras. 6-9.

125Op. cit., p. 345.
126
Op. cit., p. 347.
127
Ibid., p. 346.
128Op. cit., p. 141.

129Ibid., p. 144. - 35 -

11. Furthermore, General MacKenzie’s notes show that the Bosnian Muslims were not

armed in Sarajevo alone, but throughout Bosnia and Herzegovina. On 20 and 21 April, he noted in

his journal:

“The actions of the Bosnian Territo rial Defence Forces throughout the new
nation were beginning to have serious repercussions in Sarajevo. On or... 12April
they had been ordered to blockade the JN A barracks, occupy its weapons depots and
130
communications centres and attack JNA soldiers and their families . . .”

45 12. On 3 May 1992, General MacKenzie noted the withdrawal of the JNA from Bosnia and

Herzegovina: “All of the JNA weapons had been confiscated by the Territorial Defence Forces and

131
six to seven JNA officers had been killed in cold blood during the incident.”

13. All these descriptions show that in Bosnia and Herzegovina there were not the criminals

on one side and the innocent on the other; there was not one side which was well armed, prepared

and ready for war and another comprising innocent, unarmed, defenceless civilians. No, in Bosnia

and Herzegovina, there were popula tions which, for one reason or another, could not reach an

agreement on the organization of the State they shared. These peoples could not even find an

agreement on their peaceful separation. The Bo snian Serbs and Muslims, as well as the Croats,

chose to stick to their positions even if that meant war, and war — a bloody civil war — took place.

That fact is no longer at issue, as the Applicant recognized it in its second round of oral argument.

14. However, the Applicant still refuses to accept that there was no genocidal intent in

Bosnia and Herzegovina and that all sides in this war had the same goal: protecting the interests of

their ethnic group. It continues to claim that th e war was caused by an alleged Serb intent to

destroy the Muslim population. Thus the Applican t continues to claim that the Serbs were well

armed, well equipped and well prepared, whereas the Bosnian Muslims were unarmed, bereft of

military equipment and unprepared for war.

15. However, General MacKenzie noted in his diary for 14 May 1992:

“The Territorial Defence Forces launched a major assault at exactly 0500 hours

into the area just west of the Rainbow Hote l. The preparatory fire for the attack
started around 0300. Gradually the intensity of the shelling and the tank fire increased

130
Ibid., 1993, p. 156.
131
Ibid., p. 170. - 36 -

until it was impossible to sleep. The entire hotel was vibrating as two tanks took turns
132
firing from positions under our windows on the East side of the building.”

The Territorial Defence Forces were the Bosnian Muslim armed forces, subsequently to become

the Bosnia and Herzegovina army. On 14 May 1992, that is at the very beginning of the war, these

forces carried out an attack on the Bosnian Serbs, a major assault. The Bosnian Muslims were not

46
unarmed, they were armed just like the Serbs and the Croats. If they had not been, they would

certainly not have launched a major assault, they would not have gone to war. On the contrary, had

they been unarmed, they would have searched fo r a peaceful solution, they would have sought to

prolong negotiations. But the Bosnian Muslims sou ght to avoid negotiations, they sought to avoid

a political solution, they tried to provoke incidents and armed activity and they succeeded.

16. The fact that a civil war took place does not mean that crimes were not committed.

Crimes were committed and very serious offences at that: war crimes and crimes against humanity.

The war does not excuse such crimes, but it does put them into the context of a civil war in which

all sides concerned were fighting for territory in order to attain their political goals, which for the

Bosnian Muslims consisted of an independent Bo snia and Herzegovina, while for the Serbs it was

to remain in Yugoslavia or, if this was not possibl e, to create their own State. No side possessed

genocidal intent, no crime was committed with a view to destroying the other group.

17. The siege of Sarajevo lasted for years, th roughout the duration of the war. The siege of

Sarajevo was regarded as a military necessity by the Bosnian Serbs, as the city was never

demilitarized, even though it was designated a saf e area. We demonstrated in our first-round

arguments that tens of thousands of soldiers be longing to the Bosnia and Herzegovina army were

133
stationed in Sarajevo throughout the war .

18. We cannot deny that crimes were committe d during that siege, and nor would we want

to. The crimes committed during that siege could certainly be characterized as war crimes and

certain even as crimes against humanity. Neverthele ss, it is not possible to accept the Applicant’s

claim that those crimes systematically targeted the civilian population, much less that there was “a

strategy of aiming at civilians” 134. We cited in our first-round presentations, statements by

13Ibid., p. 185.
133
CR 2006/19, p. 11, para. 150.
13CR 2006/4, p. 29, para. 23. - 37 -

members of UNPROFOR stationed in Sarajevo during the war which confirmed the presence of a

large number of troops in Sarajevo. We also quoted statements indicating that the Bosnian

135
Muslims installed military equipment near to civilian buildings with a view to drawing Serb fire .

47 That was the reality of Sarajevo, the cruel and brut al reality of a civil war in which crimes were

committed, but genocide was not. The Serb people of Bosnia and Herzegovina and the State of

Serbia and Montenegro never had any intention to destroy the Bosnian Muslims and/or Croats.

The Bosnian Serbs did not want to live with the Bosn ian Muslims, but they did want to live next to

them, with each people having its own State and government.

19. The Applicant has attempted to demonstr ate the genocidal intent of the Serbs by

supposed attacks on Bosnia and Herzegovina’s cultu ral and historical heritage. That allegation

does not correspond to the reality. The cultural and historical heritage of Bosnia and Herzegovina

belongs to the Serbs as well. The Bosnian Serbs are one of the three peoples to have lived in

Bosnia and Herzegovina for centuries. Without its Serb component, the history and culture of

Bosnia and Herzegovina cannot exist. Howeve r, the Applicant appears to forget that.

Consequently, the Applicant portrays the assault on the culture of Bosnia and Herzegovina, the

attack on the National Library, as an act of genocide. Such a claim is incomprehensible, as it is not

clear whether the Applicant alleges an attack on the culture of Bosnia and Herzegovina or an attack

on the culture of Bosnia’s Muslims. Howeve r, the witness-expert, Mr.AndrásRiedlmayer,

confirmed that the National Library was “the repos itory of the entire country’s written heritage as

136
such” . As such, that library belonged to the Serbs as well. Mr. Riedlmayer also confirmed that

the library contained Serb and Croat works, which were also destroyed 137. Finally, Mr. Riedlmayer

admitted that the destruction of the library was more of a political act, concluding: “First of all the

National Library clearly was not the single property of any one of Bosnia’s national groups. It was

138
the common heritage of all the Bosnian peoples.”

13CR 2006/19, pp. 12-13, paras. 151-153.
136
CR 2006/19, pp. 12-13, paras. 151-153.
137
Ibid., p. 49.
13Ibid., p. 55. - 38 -

20. As a political act, representing the destruc tion of Serb culture as much as Muslim and

Croat culture, the destruction of the National Li brary can in no way be regarded as an act of

48 genocide. Moreover, it has never been established who destroyed the Sarajevo National Library.

21. The Tribunal for the former Yugoslavia tr ied General Galic, commander of the Sarajevo

Corps of the Republika Srpska Army, for the ev ents that took place in Sarajevo between

September 1992 and August 1994. General Galic was found guilty of crimes against humanity and

139
violations of the laws and customs of war . No allegations of genocide were ever made against

General Galic. The judgment concerning General Galic was, moreover not unanimous. One of the

judges ruled that the responsibility of the Bosnia n Serbs for a number of incidents had not been

established beyond all reasonable doubt, notably for the shelling of Markale market 14. The

Judgement in the Talic case is currently being appealed.

22. The Applicant would have us believe th at the Tribunal for the former Yugoslavia’s

Prosecutor and judges were not aware of the overall picture of events and did not seek to apprehend

it. While it is true that the task of the Tribunal is to establish individual responsibility, that does not

mean that the Tribunal does not take account of the context in which crimes were committed. In a

number of cases, the judges were obliged to consid er the context and the overall picture. For

example, in the Momcilo Krajisnik case the indictment concerns the whole of Bosnia and

Herzegovina. In the period covered by the indi ctment, Momcilo Krajisnik was President of the

Assembly of Serbian People in Bosnia and Her zegovina. In order to accuse Momcilo Krajisnik,

the Prosecutor would have needed to have a view of the overall situation and she certainly did.

Nevertheless, Momcilo Krajisnik has never been accused of genocide for the events in Sarajevo.

C ONCLUSION

1. Madam President, Members of the Court, in response to the Applicant’s claim that we

have considered acts constituting genocide in isolat ion, we have attempted to present an overall

picture of the events in Bosnia and Herzegovina during this cruel and bloody civil war. However,

genocide cannot be established, as it was not committed.

139
ICTY, Prosecutor v. Stanislav Galic, case No. IT-98-29-T, Judgement, 5 December 2003.
140
Ibid., partially dissenting opinion of Judge Nieto Navia, para. 71. - 39 -

49 2. We agree with the Applicant on the definiti on of the acts enumerated in ArticleII of the

Genocide Convention. We also agree that the list of those acts is exhaustive, but that each of them

individually, or in conjunction with the others, may constitute genocide only if it is committed with

genocidal intent, that is, with intent to destroy, in whole or in part, a national, ethnical, racial or

religious group.

3. Although we have reached agreement on the constituent elements of genocide, we do not

agree on the nature of the crimes committed in Bosn ia and Herzegovina. We do not agree that the

crimes committed in Bosnia and Herzegovina constitute genocide; they constitute common law

crimes, war crimes or crimes against humanity. Such crimes become genocide only if committed

with genocidal intent. War crimes and crimes against humanity are very serious crimes. These

international crimes, of an extremely serious natu re, were unfortunately committed in Bosnia and

Herzegovina, and the perpetrators must answer for their criminal acts, but genocide was not

committed. Genocide was not committed in Bosnia and Herzegovina, and consequently Serbia and

Montenegro cannot be held responsible for violations of the Genocide Convention.

4. The Applicant stated explicitly on several o ccasions that genocidal intent can be inferred

141
from the plan, the policy, the line of conduct . We accept that it is difficult to prove intent, but

when the issue is the crime of genocide, such in tent can in no case be presumed. As has been

clearly established by the jurisprudence of the ad hoc Tribunals: “The Trial Chamber notes that it

is generally accepted in the jurisprudence of the Tr ibunal and of the ICTR that, in the absence of

direct evidence, the specific intent for genocid e can be inferred from ‘the facts, the concrete

142
circumstances, or a “pattern of purposeful action”’.” However,ifaninferenceistobedrawn

from the circumstantial evidence and/or a line of co nduct, it must be the only reasonable inference

143
available from the evidence presented .

50 5. We showed in the first round of our oral argument, adopting an analytical approach and

assessing individual crimes on an ex-post-facto basis, that genocide was not committed. We have

now once again demonstrated, on the basis of a gl obal, consolidated approach, that genocide was

14CR 2006/7, p. 56.
142
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1September 2004, para. 704.
14Ibid., para. 353. - 40 -

not committed. Irrespective of the approach a dopted, genocide will never be found because it was

not committed in Bosnia and Herzegovina.

6. We have never denied that some acts capable of constituting one of the acts enumerated in

ArticleII of the Genocide Convention were committ ed in Bosnia and Herzegovina, but we have

said ⎯ and we now repeat ⎯ that these acts were not committed with genocidal intent. We have

shown that there was never any plan, any policy aimed at destroying the Bosnian Muslims. We

shall now show that the facts, the circumstances, the line of conduct do not permit an inference of

genocidal intent to be drawn, since such intent never existed. Genocide was not committed.

7. We reached agreement with the Applicant that 102,000 people were killed in Bosnia and

Herzegovina during the war, and this number is also accepted by the Tribunal for the former

144
Yugoslavia . However, it should be recalled that the A pplicant previously alleged, most notably

in its Memorial (para. 2.1.0.8), that 250,000 peopl e were killed. This number was alleged in 1994,

when the war was still going on and the killings were continuing. The Applicant put forward this

number as one that is generally accepted; and this number of 250,000 persons killed was generally

accepted. Even Mr.Jean-Paul Sardon, the witness -expert in demography, admitted that he had

written without any supporting evidence an article pu blished in a professional journal, in which he

affirmed that the war in Bosnia had produced 200,000 to 300,000 victims 14.

8. The number of 250,000 persons killed was widely and commonly accepted; it was

accepted by the demographic experts, it was accepted by the various committees which based their

reports on this figure, it was accepted by international agencies, including United Nations agencies,

51 the General Assembly and the Security Council, which adopted resolutions on the basis of this

figure and which condemned the Bosnian Serb forces, again on the basis of this same figure.

9. Madam President, Members of the Court, this number was incorrect. It did not correspond

to the facts, it did not correspond to the reality, it did not correspond to the truth. Now, we ask the

question: how can all these documents, these re ports, decisions and resolutions, all based on

erroneous facts, how can they constitute credib le evidence in these proceedings? They cannot,

because their starting point, the facts on which the entire argument was based, were false.

144
CR 2006/33, p. 48, para. 12.
145
CR 2006/26, pp. 53-54. - 41 -

Fortunately, the number of victims is much lo wer than the number alleged in all of these

documents.

10. One hundred and two thousand persons killed; it is an extremely disagreeable task to

seek to prove that 102,000 people were killed, and not 250,000 people. Those 102,000people

killed were not numbers, they were men, women and children. They were human beings, and none

of them should have been killed. Unfortunately, they were killed and unfortunately we are here

involved in proceedings in which Serbia and Mont enegro is accused of genocide, a genocide that

was not committed. Consequently, we are obliged to analyse these figures; it is not a game, as the

Applicant calls it, it is a necessity caused by th ese proceedings. A necessity accepted even by the

Applicant, who stated:

“To the extent that the demographics of genocide do matter, it is primarily
because, to demonstrate genocide, it is necess ary to demonstrate intent. And intent,
honourable Members of the Court, can be inferred from the magnitude of acts, from
the dimension of the acts and the pattern of their commission.” 146

11. Genocide does not require a specific number of victims, there is no numerical threshold

for genocide. However, the numbers are very impor tant when it is necessary to draw an inference

of genocidal intent. And the number initially alle ged by the Applicant, a very large number of

persons killed, have proved to be erroneous. Admittedly, it was a widely accepted number, but it

was wrong. In the end, the Applicant accepts the number of 102,000 persons killed, but this

number tells us nothing about the identity of the vi ctims. Were they all Bosnian Muslims? No,

they certainly were not; some of them were Cr oats, some were Serbs, and there were undoubtedly

52 persons of other nationalities among the victims. We do not know the nationality of these people

who were killed, but do we know if they were civilians or military combatants? Do we know

whether these people were victims in a war between the Muslims and the Serbs, or were they the

victims of the war between the Croats and the Musl ims, or again of the conflict between Muslims,

between the forces loyal to Fikret Abdic and tho se loyal to Alija Izetbegovic? We do not know.

We have no answers to all these questions. The Applicant should have provided these answers, but

failed to do so.

146
CR 2006/32, p. 16, para. 24. - 42 -

12. The situation regarding the number of k illings is not exceptional. The same assessment

can be made of the camps which were to be found in Bosnia and Herzegovina. The Applicant now

alleges that between 100,000 and 200,000 people we re detained in 520 camps run by the Bosnian

Serbs during the war 14. But is 520 the correct number of camps? In its Memorial, the Applicant

claimed that there were 170 camps, but a look at the list of those camps shows that the number of

detainees would have been 300,000 persons (Memorial, para. 2.2.0.1).

13. Thus, once again, the evidence presented by the Applicant has to be analysed carefully.

The first question that arises is whether 520 camps really existed on the territory of Republika

Srpska. In the Brdjanin case, Trial Chamber II found that some detention camps were in reality

places of interrogation rather than of confinement. The Tribunal also found that the regular transfer

148
of detainees between different camps might cause some distortion in their numbers .

14. The Tribunal also found in the Brdjanin case that 15,623 Bosnian Muslims and

Bosnian Croats were detained in the different camp s in the region of Bosanska Krajina, but it also

found that serious bodily and/or mental harm was in flicted on only some, not all of them. Finally,

53 the Tribunal concluded, on the basis of the ev idence presented, that women and children were

149
better treated than men .

15. Fifteen thousand six hundred and twenty three detained persons is a large number. This

number does not cover the whole of Bosnia and He rzegovina, but the region of Bosanska Krajina,

the region in which the worst camps were located, including Keraterm, Omarska and the camps to

which the Applicant frequently referred as Manjaca and Trnopolje. Most of the camps were in fact

situated in that region. We know that 15, 623 people were detained in the camps of

Bosanska Krajina, but we do not know who the de tainees were. What was the number of civilians

in those camps? What was the number of military combatants? We do not know. But we know

that the majority of the detainees were men of milita ry age, since this is the conclusion reached by

the Trial Chamber of the Tribunal for the former Yugoslavia in the Brdjanin case 150.

147CR 2006/5, p. 23, para. 6.
148
ICTY, Prosecutor v. Radoslav Brdjanin , case No.IT-99-36-T, Judgeme nt, 1 September 2004, para.974,
footnote 2448.
149
Ibid.
150Ibid., paras. 974, 979. - 43 -

16. The fact that men of military age comprised the majority of the detainees is not without

significance. Trial ChamberII in the Brdjanin case held that precisely this fact: “could militate

further against the conclusion that the existence of genocidal intent is the only reasonable inference

151
that may be drawn from the evidence” .

17. Consequently, it is extremely important to ascertain the identity of the detainees, but the

Applicant did not deem it necessary to provide pr oof of the identity of the detainees, it merely

alleged that people were held in detention. Yes, people were held in detention, we do not deny that

fact, we do not deny that the camps were terri ble places in which the conditions were extremely

poor, we do not deny that crimes were committed in those camps. However, these crimes, serious

as they may be, do not constitute genocide. They were not committed with intent to destroy, in

whole or in part, the Bosnian Muslim populati on and/or the Croat population. They were

committed because of fear, because of the total disorder that preva iled at the time in Bosnia and

Herzegovina, where the State was unable to establish order and authority.

54 18. We also agree with the Applicant that sexual violence, including rape, can constitute

genocide. We agree that rape can constitute ser ious bodily or mental harm, that rape can be

intended to subject a group to conditions of life calculated to bring about the physical destruction of

the group. We also agree that rape can constitute action aimed at preventing births and that it can

lead to the transfer of children from one group to the other. In the present case however, the only

one which concerns us, in Bosnia and Herzegovina the rapes were not genocidal acts.

19. We do not dispute that rape was comm itted in Bosnia and Herzegovina. We do not

dispute that, in certain cases, the rapes constituted inhumane acts and thus crimes against humanity.

Yet in no case did rape in Bosnia and Herzegovina constitute genocide.

20. The Applicant alleges that 12,000 rap es were recorded in the TadeuszMawoziecki

report152. No further evidence has been submitted. We have already explained how that report

153
arrived at the figure of 12,000 rapes . We have also confirmed that this number of rapes allegedly

15Ibid., para 979.
152
CR 2006/6, p. 52, para. 21.
15CR 2006/20, p. 25. - 44 -

committed includes all rapes allegedly committed in Bosnia and Herzegovina during the war,

regardless of the nationality of the victim and of the perpetrator of the crime 154.

21. The Applicant has cited judgments deliver ed by the Tribunal for the former Yugoslavia

155
which included rape and sexual violence . We do not dispute that. We acknowledge that the

rapes were committed, but they do not constitute ge nocide and none of those judgments found that

156
genocide had been committed. We do not, as claimed by the Applicant , consider rape as

collateral damage, we consider rape to be a serious crime, regardless of the circumstances in which

it has been committed. Yet the victims of the rapes are not necessarily victims of genocide.

55 Serious crimes were committed, including crimes against humanity, but genocide, the only crime

that concerns us here, was not committed.

22. The Applicant has also not provided any evidence in support of its completely unfounded

allegations that the rapes were used as procreative rapes or to prevent births. The Applicant merely

cited a decision delivered in 1996 by the Tribunal for the former Yugoslavia pursuant to Article 61

157
of the Rules of Procedure and Evidence in the Ratko Mladic and Radovan Karadzic case . The

decision cited concerned the confirmation of the indictment against Radovan Karadzic and Ratko

Mladic, a confirmation which contains no allega tions that genocide had been committed by

158
measures aimed at preventing births or by transferring children from one group to the other .

23. The principal evidence for these unfounded a llegations presented by the Applicant is the

patriarchal nature of Bosnian Muslim society, an allegation completely at odds with the statement

by Mr.Riedlmayer, the expert called upon by the Applicant and a specialist in the history of the

Balkans, who has described Bosnia and Her zegovina as a modern, industrialized European

159
society .

15Ibid., pp. 25-26.
155
CR 2006/33, pp. 17-18.
156
Ibid., p. 19.
15CR 2006/33, p. 24.

15ICTY, Prosecutor v. Ratko Mladic and Radovan Karadzic, cases Nos. IT-95-5 and 18, Indictment.

15CR 2006/22, pp. 51-52. - 45 -

24. As the Applicant was unable to deduce any intention from the facts capable of

constituting genocide, it turned to acts which, while certainly illegal, criminal and perhaps

constituting war crimes, are nevertheless excluded from the Genocide Convention.

25. We dispute that these acts can prove a genocidal intent which cannot be proved

otherwise, but we agree that these acts may contribu te to evidence of that intention. Yet in the

present case, the cultural destruction and disp lacement of the population was supposedly the

principal if not only evidence of the intention.

26. The Applicant has devoted lengthy oral plead ings to cultural destruction. It even called

160
on an expert who essentially repeated the facts pr esented by the Applicant in its oral pleadings .

56 However, in his testimony, this expert implicitly acknowledged that the cultural destruction in

Bosnia and Herzegovina could be linked to the military actions. Replying to the question whether

the cultural destruction was significant in Iraq, the expert replied: “Yes, although I believe that the

circumstances were fundamentally different from that in Bosnia.” Later, explaining the differences

between the situation in Bosnia and Herzegovina and in Iraq, the expert declared: “Actually I

believe that in Iraq the destruction to which I refer, which is of cultural institutions, had actually no

161
connection to military actions.” This comment is an admission that the cultural destruction in

Bosnia and Herzegovina was linked to the military actions. And as the Applicant admitted in its

oral pleading of 1 March 2006:

“Under the Hague Regulations and cust omary international law, institutions

dedicated to religion are protected. This protection is restated in both Additional
ProtocolsI and II to the Geneva Conventions . This protection can be lost if the
162
buildings are used for military purposes.”

27. It is not our intention to justify the cultural destruction which, in many cases, represented

a violation of the Geneva Conventions, but we are bound to note that the American public relations

agency, Ruder and Finn Global Public Affairs, wa s working and indeed still is for Bosnia and

Herzegovina precisely on the question of the cultural heritage 163. This agency wo rked for Bosnia

16CR 2006/22 (expert witness) and CR 2006/5, pp. 45-59.
161
CR 2006/22, p. 53.
162
CR 2006/5, p. 45, para. 4.
16http://www.ruderfinn.com. - 46 -

and Herzegovina during the war, its sole task, on the admission of its director, Mr.James Harff,

being to convince public opinion that the Bosnian Muslims were the victims of genocide 164.

28. The Applicant also refers to the displacement of the population, which it terms ethnic

cleansing. The Applicant has stated that it was scandalous to invoke the displacement of the

populations as a solution to the conflicts. However, that was not our own statement, it was the

finding of the Permanent Court of International Ju stice in its Advisory Opinion concerning the

Greco-Bulgarian Communities in the following terms:

“The general purpose of the instrument is thus, by as wide a measure of
reciprocal emigration as possible, to elimin ate or reduce in the Balkans the centres of
irredentist agitation which were shown by the history of the preceding periods to have
57
been so often the cause of lamentable incidents or serious conflicts, and to render
more effective than in the past the process of pacification in the countries of Eastern
Europe.” (Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J.,

Series B, No. 17, p. 19.)

29. The displacement of populations has occurred in many regions with a mixed population

and has always been in a sense discriminatory. The displacement referred to by the Permanent

Court of International Justice concerned the disp lacement of the Greek population of Bulgaria and

the displacement of the Bulgarian population of Greece. Like all displacements of populations, that

one was discriminatory, yet it was accepted, and accepted precisely to prevent “lamentable

incidents”.

30. In Bosnia and Herzegovina, the populati ons were displaced, certain people leaving

Bosnia and Herzegovina before the war for economic reasons, but also from fear, the fear which

the Applicant refuses to acknowledge. However, th e Trial Chamber of the Tribunal for the former

165
Yugoslavia found in the Stakic case that the population exodus started in 1991 precisely owing to

a growing feeling of insecurity and fear 166. Also in the Brdjanin case, the Tribunal reached a

similar conclusion, namely that: “Already before the outbreak of the armed conflict in Bosnia and

Herzegovina, Bosnian Muslims and Bosnian Croats living in the Bosnian Krajina were feeling

167
increasingly insecure and started leaving the region in convoys.”

16CR 2006/18, p. 29, para. 70.
165
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 692.
166
ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, para. 52.
16ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1September 2004, para. 116. - 47 -

31. Although the population had begun to leave Bosnia and Herzegovina before the war, we

do not dispute that people were expelled and forcib ly transferred. However, sometimes during the

war, people were also asking to leave. In its or al argument, the Applicant contended, on the basis

of a purely humanitarian decision, that the Serb policy was to displace its own population 168. In

reality, the minority peoples, regardless of their nationality, were seeking to leave territories under

the control of another ethnic group. The Serbs we re doing this, the Croats were doing it and the

58 Muslims too. In the Brdjanin case, the Trial Chamber reported the testimony of a witness of the

Prosecutor, Mr. Besim Islamovic, a Muslim from Sanski Most, who stated:

“In the municipality of Sanski Most Bosnian Muslim representatives met with

Bosnian Serb municipal authorities and representatives of the SDS on several
occasions between June and August 1992 duri ng which they requested that the

Bosnian Serb municipal a169orities organi se convoys so that Bosnian Muslims could
safely leave the area.”

The convoys requested by the Muslims were organized and escorted to the territories under Muslim

170
control by the Bosnian Serb police , which guaranteed the security of the convoys.

32. The Applicant also appears not to accept th e fact that a particularly bloody war had

broken out between Muslims and Croats in 1993, a wa r which lasted almost two years. That war

not only caused a large number of victims ⎯ of persons killed ⎯ it also triggered a huge exodus of

the Muslim population from territories under Bosnia n Croat control and also an exodus of Croats

from territories under Muslim control.

33. Furthermore, while the conflict between the Croats and Bosnian Muslims broke out in

full force in 1993, it began earlier. The Trial Ch amber of the Tribunal for the former Yugoslavia

found in the Neletilic and Martinovic case that the incidents started in 1992 17. The trial Chamber

in the Blaskic case was even more specific, finding that the tensions between the Muslims and

16CR 2006/33, p. 53.
169
ICTY, Prosecutor v. Radoslav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 560.
170
Ibid.
17ICTY, Prosecutor v. Mladen Naletilic and Vinko Martinovic , case NoI.T-98-34-T, Judgement,
31 March 2003, para. 24. - 48 -

172
Croats started in May 1992 and that those tensions subseque ntly erupted into a large-scale

conflict 173.

34. The Bosnian Muslims and the Croats were undoubtedly at war, but over and above this

fact, the Bosnian Croats’ objective was similar to th at of the Bosnian Serbs. The main objective of

the Bosnian Croats, as proclaimed at a meeting on 12November1991, was the following: “The

Croatian people in Bosnia and Herzegovina must finally embrace a determined and active policy

59 174
which will realize our eternal dream ⎯ a common Croatian State.” The objective of the

Croatian people of Bosnia and Her zegovina was similar to the first objective of the Serbian people

of Bosnia and Herzegovina, only the Bosnian Croats proclaimed their objective six months before

the Bosnian Serbs proclaimed their objectives.

35. The conflict between the Bosnian Muslims and the Bosnian Croats did indeed take place

and resulted in a large number of victims; people were killed, they were detained in camps, women

were raped, mosques were destroyed, peopl e were expelled and forcibly transferred 175. Ignoring

the war between the Bosnian Muslims and the Bo snian Croats, the Applicant ignores the crimes

committed during that war and considers it unnecessary to separate the victims of that war from the

victims of the war that took place between the Serbs and the Muslims. All victims are victims, but

the Bosnian Serbs are not and cannot be held resp onsible for victims of a conflict in which they

played no part.

36. The Applicant entered into a very compli cated analysis of figures and percentages in

176
order to demonstrate genocidal intent . In that analysis, it recognized that a substantial number of

Serb refugees arrived in Bosnia and He rzegovina from the Krajina region in Croatia 177. A large

number of Croatian Serbs did indeed come to Bosnia and Herzegovina. However, even if we count

17ICTY, Prosecutor v. Tihomir Blaskic, case No. IT-95-14-T, Judgement, 3 March 2000, para. 343.

17ICTY, Prosecutor v. Mladen Naletilic and Vinko Martinovic , case NoI.T-98-34-T, Judgement,
31 March 2003, para. 25.

17ICTY, Prosecutor v. Tihomir Blaskic, case No. IT-95-14-T, Judgement, 3 March 2000, para. 341.
175
ICTY, Prosecutor v. Tihomir Blaskic , case No.IT-95-14-T; Prosecutor v. Dario Kordic and MarioCerkez ,
case No.IT-95-14/2; Prosecutor v. Zoran Kupreskic et al., case No.IT-95-16; Prosecutor v. ZlatkoAleksovski , case
No. IT-95-14/1; Prosecutor v. Anto Furundzija, case No. IT-95-17/1; Prosecutor v. Miroslav Bralo, case No. IT-95-17;
Prosecutor v. Jadranko Prlic et al., case No.IT-04-74; Prosecutor v. Ivica Rajic , case No.IT-95-12;Prosecutor v.
Enver Hadzihasanovic and Amir Kubura, case No. IT-01-47.

17CR 2006/33, pp. 48-50.

17Ibid., p. 50. - 49 -

this large number of Serbian refugees who came to Bosnia and Herzegovina during the war, the

proportion of Serbian inhabitants and Muslim inhabitants remained the same. Before the war,

42.2percent of the population of Bosnia and Herzegovina were Bosnian Muslims and

32.5 per cent were Serbs. After the war, 45.5 per cent of the population of Bosnia and Herzegovina

are Bosnian Muslims and 35.3 per cent are Serbs. This is a fact, and the Applicant certainly cannot

change this fact. It is a fact which certainly does not permit of an inference of genocidal intent.

60 37. The Applicant frequently refers to ethnic cl eansing, which is not a legal term. The term

“ethnic cleansing” was coined by journalists and pub lic opinion. It is true that the United Nations

General Assembly has used this term in some of its resolutions, but the General Assembly is a

political organ of the United Nations, and its reso lutions certainly do not contain legal findings or

legal definitions. Moreover, as we said before, these resolutions were based on erroneous facts.

38. Genocide is a crime aimed at destroying, in whole or in part, a national, ethnical, racial

or religious group, as such. Forcible tran sfer was expressly excluded from the Genocide

Convention. Serbia and Montenegro is aware that certain Chambers of the Tribunal for the former

Yugoslavia, in the Srebrenica case, based their judgments on forcible population transfer.

However, these legal findings which, in any case, are not binding on this Court, are not in

conformity with the Genocide Convention. Instead of referring to those judgments, we shall refer

to the travaux préparatoires of the Sixth Committee, which ex pressly excluded forcible transfer

from the framework of the Genocide Convention; Syria proposed that the Genocide Convention

should include “imposing measures intended to oblige members of a group to abandon their homes

178
in order to escape the threat of subsequent ill-treatment” , but that proposal was expressly

rejected. Moreover, the Tribunal’s Chambers are not unanimous in their legal characterization of

population displacement. While in the Krstic case, the Tribunal inferred intent from the fact that

population displacement had taken place, it also found in the Stakic case that: “it does not suffice

to deport a group or a part of a group. A clear distinction must be drawn between physical

destruction and mere dissolution of a group.” 179

178
United Nations, Official Records of the General Assembl, Third Session, Sixth Committee, Summary
Records, 21 September-10 December 1948, pp. 176 and 186.
17ICTY, Prosecutor v. Milomir Stakic, case No. IT-97-24-T, Judgement, 1 September 2003, para. 519. - 50 -

39. Moreover, in his report, which is also a commentary on the Statute of the Tribunal for the

former Yugoslavia, the United Nations Secretary- General equated ethnic cleansing with crimes

against humanity. He wrote:

“Crimes against humanity refer to inhuma ne acts of a very serious nature, such
61 as wilful killing, torture or rape, committed as part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial or religious
grounds. In the conflict in the territory of the former Yugoslavia, such inhumane acts

have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic
rape and other forms of sexual assault, including enforced prostitution.” 180

40. The fact is that a population that has been deported, transferred and displaced is not a

population that has been destroyed. A further fact is that the Muslim population was frequently

transferred a few kilometres away from its habitual place of residence. The fact is that there was

no intention to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

41. All of the ethnic groups in Bosnia and Herzegovina endeavoured to establish

homogenous communities, and they succeeded. Th e Applicant has shown the ethnic composition

of certain municipalities in which the Bosnian Muslim s formed the majority before the war, and in

which they found themselves in a minority after the war. We do not deny these facts. However,

this was the common policy of all the communities and all the parties in this war, and it was

certainly not aimed at the destruction of a national, ethnical, racial or religious group.

42. The available information concerning th e composition of the population of Bosnia and

Herzegovina shows that all the parties su cceeded in establishing ethnically homogeneous

communities. It also shows that genocide w as not committed. We cannot look at all the

municipalities, but we shall refer to some repr esentative municipalities. Thus, we can cite the

example of the municipality of Sanski Most, one of the municipalities in which the Applicant

claims that genocide was committed. This municipality is currently on the territory of the

Croat-Muslim Federation, and Amnesty International reported that:

“Sanski Most’s pre-war population w as approximately 60,000, with 46 per cent
Bosniacs and approximately 42 per cent Bosn ian Serbs. In Sanski Most, the local
authorities have openly invited refugees and displaced people whose pre-war home

was not Sanski Most to settle there, regard less of the fact that the area changed hands
several times during the war and much of housing has been destroyed. As of

180
Report of the Secretary-General, doc. S/25704, 3 May 1993. - 51 -

December 1997, the population was estimated to be approximately 45,000, almost all
181
of whom are Bosniacs.”

62 43. The municipality of Sanski Most is not exceptional. The situation in the municipality of

Kljuc is identical. There, the Serbs formed th e majority before the war. According to the

information obtained in the 1991 population census, the municipality had 37,233 inhabitants,

47.58 per cent of whom were Muslims, while 49.52 per cent were Serbs. In 2003, the municipality

had 16, 020 inhabitants, 97 per cent of whom were Bosnian Muslims 182.

44. The UNHCR, in a report concerning the region of Sana-Una, which belongs to the

Croat-Muslim Federation and is composed of the municipalities of Bihac, Bosanska Krupa,

Bosanski Petrovac, Buzim, Kljuc and Sanski Mo st, wrote that the present-day population is

estimated at 273,251 inhabitants, the overwhelming majority of whom, 94percent, are Muslims.

183
Serbs account for 2 per cent of the population and Croats 3.5 per cent . Before the war, the Serbs

were in the majority in Kljuc, they accounted for more than 40 per cent of the population in Sanski

Most and more than 70percent in Bosanski Petrovac; today, in this region, they have been

reduced to 2 per cent. This is the reality of Bosnia and Herzegovina, a country in which three main

constituent peoples have lived together for centuries. They lived together under the authority of the

Ottoman Empire, under the Austro-Hungarian Monarc hy, under the former Yugoslavia, but they

have always lived beside each other, never with e ach other. They have never agreed to mix, they

have never agreed to create the nation of Bosn ia and Herzegovina, they have remained Bosnian

Muslims, Serbs and Croats, and each of them has wanted its own State.

45. The Bosnian Muslims, like the Croats, the Serbs and the people of any other nationality

that have lived in Bosnia and Herzegovina, were victims of the crimes committed during the war.

They were displaced, but they were not destroyed. None of these peoples attempted to destroy any

of the others, and none of these peoples harboured genocidal intent. Madam President, Members of

the Court, there was no plan, no policy aimed at destroying a national, ethnical, racial or religious

group. The facts presented in the course of th ese proceedings do not support an inference of

18http://web.amnesty.org.
182
http://en.wikipedia.org/wiki/Kljuc.
18http://www.unhcr.ba. - 52 -

genocidal intent, and they cannot do so because no such intent ever existed. Genocide was not

committed in Bosnia and Herzegovina.

63 Madam President, I apologize. I have finished somewhat ahead of schedule.

Le PRESIDENT: Je vous reme rcie, Madame Fauveau-Ivanovi ć. En pareilles occasions,

vous n’avez pas à présenter d’excuses.

M. le juge Simma va à présent poser une questi on et je donne maintenant la parole à M. le

juge Simma pour qu’il pose sa question.

Le juge SIMMA : Ma question est la suivante :

Les plaidoiries de la Serbie-et-Monténégro appr ochant de leur conclusion, je voudrais saisir

l’occasion pour poser la question de savoir si la Se rbie-et-Monténégro a quelque chose à ajouter au

sujet des documents caviardés du Conseil suprême serbe de la défense ?

Je vous remercie.

Le PRESIDENT : Le texte de la question du juge Simma sera communiqué pour information

à la Bosnie-Herzégovine et à la Serbie-et-Monténégro.

La Cour va se retirer à présent et les audiences reprendront le lundi 8 mai, à 10 heures.

L’audience est levée à 17 h 45

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