BHY
CR 2006/18 (translation)
CR 2006/18 (traduction)
Tuesday 14 March 2006 at 10 a.m.
Mardi 14 mars 2006 à 10 heures - 2 -
1 The PRESIDENT: Please be seated. Maître de Roux, you have the floor.
Mr. de ROUX: Thank you.
GENOCIDE
Introduction
1. Madam President, Members of the Court, it is a great honour for me to appear before you
as counsel for Serbia and Montenegro. But the ho nour of asking you to render justice is also a
heavy responsibility, as you are required to adj udicate upon a tragedy caused by the disintegration
of a European State: the State of Yugoslavia, whose frontiers were internationally recognized.
You are to adjudicate upon the disintegration of a great European State, that of the southern Slavs,
a State created by the Versailles Treaty precisel y for the purpose of preserving the stability of the
Balkans. However, the geopolitical collapse of Yugo slavia was not the result of an ethnic conflict,
since what we have here is the same population sp eaking the same language, even if there is a long
history of relations between the Croats of the Em pire and the Bosnians of the Ottoman Porte, as
they were called at the time. It is true that nationalism and nationalities have always been at work
in the Balkans, whose history, as Professor Stoja novic pointed out, has frequently been marked by
fury and chaos, but is it possible to speak of genoc ide in connection with this most recent conflict
which followed the dark years of the 1940s? Can it seriously be claimed that Belgrade devised,
planned and decided on the extermination of the Cr oats and the Bosnians? Can it at the same time
be claimed that the Croats and the Bosnians ha d decided to exterminate the Serbs, on the grounds
that there are no longer any Serbs living in CroatianKrajina or even in Zagreb, and that the Serb
districts of Sarajevo were emptied of their inhabitant s? This historical issu e is also a legal issue,
since genocide is the crime of crimes. But is it po ssible today to burden the history of the Balkans
with this ghastly crime ⎯ which, fortunately, was not committed ⎯ at the very time when tensions
in the region are to be defused, at the very time when your Court’s mission is to contribute to peace
and vengeance is to be excised from the memory of peoples? - 3 -
2. I wish to emphasize that the respondent State, Serbia and Montenegro, categorically
condemns acts of genocide, and is one with the en tire international community in considering that
the crime of genocide is the most serious of crimes against humanity.
21 3. In the present case, this Court, in its Judgment on Preliminary Objections of 11 July 1996,
without dealing with the question of the interpre tation of the Genocide Convention, held that its
only jurisdiction to entertain the case is on the basis of Article IX of the Convention (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996(II) , para.41). We shall therefore analyse the facts
alleged by the Applicant, in order to demonstrate that they do not in any way fall within the scope
of this Convention.
4. In our analysis of the alleged acts of genocide, we shall put forward the following
arguments:
first: genocide is an ambiguous term used with di fferent meanings in both the legal and the
political sphere: unfortunately, th is term is trivialized in ever y conflict by declarations of a
political nature;
second: in law, and under the terms of the Genocide Convention, only the acts enumerated
in Article II of the Convention can constitute genocide;
third: since the commission of genocide can take one of the forms mentioned in Article III
of the Convention, the Applicant should have stated expressly which form or forms it was referring
to;
fourth: the Applicant should have specifically indicated the group alleged to have been
subjected to genocide;
and last: since genocide can be perpetrated only by natural persons motivated by a specific
intent to destroy a national, ethnical, racial or religious group in whole or in part, that specific
intent must be established by the Applicant, a nd the natural persons alleged to have committed the
crime must be identified.
5. We are faced with a series of heinous, re volting and cruel acts recounted by the Applicant
throughout its written pleadings and reiterated in its oral pleadings. These acts, all these acts, are - 4 -
certainly criminal and we can only agree with the finding made by this honourable Court on
13 September 1993, when it held that:
“great suffering and loss of life has been sustained by the population of
Bosnia-Herzegovina in circumstances wh ich shock the conscience of mankind and
32 flagrantly conflict with moral law and th e spirit and aims of the United Nations”
(Application of the Convention on the P revention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional
Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 348, para. 52).
6. However, the fact that the population su ffered through an extremely cruel war with
substantial loss of human life is not sufficient to constitute genocide. The criminal acts which
generated losses and suffering were no doubt co mmitted on the territory of Bosnia and
Herzegovina, as no one can deny. However, these acts, which unfortunately are inextricably bound
up with the war, do not constitute genocide b ecause, no matter how unconscionable and criminal
they may be, they do not meet the material and mo ral requirements for them to be characterized as
the international crime of genocide.
7. Madam President, Members of the Court, as you know, the crime of genocide was defined
by reference to the destruction or attempted dest ruction of the Jewish people by the Nazi régime.
Although this has already been mentioned by Pr ofessorStojanovic, I should like to recall that
sixmillion Jews perished in the Second World War, that is to say an estimated 67percent of the
Jewish population of Europe. It is sufficient to refer to the size of the Bosnian Muslim population
to observe that, fortunately, such figures were never even remotely achieved. The events that took
place in Bosnia and Herzegovina at the end of the twentieth century, 50years after the Nazi
madness, certainly have distant roots in the Second World War, but we shall demonstrate without
difficulty that, despite the extreme horror of the war, no genocide was committed.
8. The Judgment rendered by the Nure mberg International Military Tribunal on
30September and 1October1946 was the firs t judgment for the purpose of punishing acts
perpetrated with the intention of destroying cer tain human groups. That judgment punished the
crimes committed during the Second World War which I have just mentioned. The existence of the
crime of genocide under international law was confirmed by the United Nations General Assembly.
Resolution 260 (III) A of 9 December 1948 on the adoption of the Convention on the Prevention
and Punishment of the Crime of Genocide (more commonly known as the “Genocide Convention”) - 5 -
established this crime in international law. Th e Convention entered into force on 12 January 1951
and has become one of the essential instruments for the protection of human rights throughout the
world.
13 9. Your honourable Court has already held, in the case concerning Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide , that the principles
underlying the Convention “are recognized by civilized nations as binding on States, even without
any conventional obligation”. According to this Court, the Ge nocide Convention is intended to be
a convention of universal scope; it has a “purel y humanitarian and civilizing purpose”, and the
“contracting States” have neither “individual adva ntages or disadvantages”, nor “any interests of
their own”, but a “common interest” (Reservations to the Conven tion on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951) . The same
reasoning was used in this case in the Court’s 1996 Judgment (Application of the Convention on the
Prevention and Punishment of the Crime of Genocid e, Preliminary Objections, Judgment, I.C.J.
Reports 1996 (II), paras. 22 and 31).
10. Today, the universal scope of the Genocide Convention is no longer in any doubt or
subject to any discussion. Numerous legal inst ruments have explicitly recognized this general
obligation on States.
11. At the time of the establishment of the In ternational Criminal Tribunal for the former
Yugoslavia, the Secretary-General wrote in his report of 3May 1993, drawn up pursuant to
paragraph2 of Security Council resolution808(19 93), that the Genocide Convention is part of
international humanitarian law which has beco me part of international customary law 1. And he
went on to explain:
“The 1948 Convention on the Prevention and Punishment of the Crime of
Genocide confirms that genocide, whether committed in time of peace or in time of
war, is a crime under international law fo r which individuals shall be tried and
punished. The Convention is today considered part of international customary law as
evidenced by the International Court of Justice in its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, 1951.” 2
1
Report of the Secretary-General of 3 May 1993, United Nations doc. S/25704, para. 35.
2
Id., para. 45. - 6 -
12. Moreover, the international tribunals set up by the United Nations in recent years have all
3
proclaimed genocide the crime of crimes . The International Criminal Tribunal for Rwanda also
44 noted that the crime of genocide is considered an integral part of international customary law and,
4
moreover, a norm of jus cogens .
I. The ambiguity of the concept of genocide
13. Thus, Madam President, Members of the Court, we are dealing with the crime of crimes.
It is only natural that it should be the subject of pa rticularly serious and painstaking consideration.
In fact, the “legal” definition of genocide frequently differs from the “ political” conception of the
term, widely used in the language of journalists, fo r example, in relation to serious events, and also
sometimes by the representatives of States in the work of international organizations or at meetings
held in connection with crises or conflicts.
14. Because this term is ill-defined in co mmon political usage, it describes all sorts of
heinous acts and atrocities. It underscores the massive scale of a crime and sometimes serves
propaganda purposes in order to rouse the international community and stir its conscience.
15. When the term genocide is used in this way, it obviously does not take account of the
legal requirements by which we here are bound; it merely describes the iniquity of a particular
form of conduct. The legal term, on the other ha nd, is an extremely precise concept, which is
rigorously defined in the relevant instruments.
16. This distinction between the political and legal use of the term genocide is an important
one, as the Applicant relies in fact on the use of the term genocide in various reports and in the
resolutions of various United Nations bodies with out differentiation. However, as regards these
texts ⎯ as you well know ⎯ a distinction must first be made between Security Council
resolutions, General Assembly resolutions and then the different reports cited by the Applicant,
including those by the Commission of Experts and the United Nations Special Rapporteur for
Human Rights. These resolutions and reports are, of course, a source of information. They are not
3ICTY, Prosecutor v. Stakic, case No.IT-97-24-T (“ Stakic case”), Trial ChamberII, Judgement, 31July2003,
para.502; ICTR, Prosecutor v. Kambanda, case No.ICTR-97-23-S (“ Kambanda case”), Trial Chamber, Judgement,
4 September 1998, para. 16.
4ICTR, Prosecutor v. Kayishema and Ruzindana , case No.ICTR-95-1-T (“ Kayishema case”), Trial Chamber,
Judgement, 21 May 1999, para. 88: and similarly, Prosecutor v. Rutaganda, case No. ICTR-96-3-T (“Rutaganda case”),
Judgement, 6 December 1999, para. 46. - 7 -
a source of law. Moreover, the credibility of such information still has to be established in these
proceedings and, in any case, such resolutions and reports cannot validly determine the legal
55
characterization of the acts described.
17. So then, among all the instruments which have been cited at length, the Security Council
resolutions obviously have the highest value in legal terms. Indeed, States are bound by the
resolutions of the Security Council. However, though binding on States, Security Council
resolutions are still political resolutions adopted by the political organ of the United Nations.
18. Moreover, it is important to emphasize th at Security Council resolutions with binding
force are adopted in the context of the mandate for the maintenance of international peace and
security conferred on the Security Council. In fact ⎯ and this is particularly true for the
Balkans ⎯ the objectives of the mandate for the main tenance of international peace and security
may coincide with the requirements of justice, but may also diverge therefrom. Consequently, the
Security Council, having limited legislative authority as the political organ of the United Nations, is
not empowered to undertake a legal characterization of the facts, but merely assesses their political
importance and significance in the context of its mandate for the maintenance of international
peace and security.
19. A legal characterization of the facts can only be undertaken by your Court in connection
with disputes between States, or by another natio nal or international judicial organ when the
establishment of individual responsibility is involved. The Security Council may, of course,
establish such international judicial bodies in orde r to deal with threats to international peace or
security.
20. By resolution 808 (1993) of 22 February 1993, the Security Council decided to establish
the International Criminal Tribunal for the former Yugoslavia, responsible precisely for the
prosecution of persons responsible for serious vi olations of humanitarian law committed in the
territory of the former Yugoslavia 5. In its resolution 827 (1993), the Security Council adopted the
Statute for the Tribunal, Article4 of which speci fically identifies the crime of genocide as one of
66 the crimes falling within the jurisdiction of the Tribunal. And Article4 of the Tribunal’s Statute
5
Security Council resolution 808 (1993), Art. 1. - 8 -
reproduces word for word, without changing a single comma, ArticlesII andIII of the Genocide
Convention.
21. What is interesting is the fact that the S ecurity Council appears to have been reluctant to
include the crime of genocide within the jurisdiction of the Tribunal, but that it did so eventually.
Indeed, a re-examination of resolutions 808 and 8 27 (1993) reveals no mention whatsoever of this
crime. The resolutions in question merely refer to the Geneva Conventions, which are central to
humanitarian law but not relevant to genocide, as they quite simply do not deal with that subject.
22. On the other hand, and contrary to the resolutions setting up the Tribunal for the former
Yugoslavia, genocide is specifically mentioned in resolution 955 (1994) by which the Security
Council established the International Criminal Tr ibunal for Rwanda. In that resolution, the
Security Council decided to establish an inte rnational tribunal for the purpose of prosecuting
6
persons responsible for genocide and other serious violations of international humanitarian law .
23. It is interesting to note the different language used by the Security Council when
adopting the resolutions establishing the two inte rnational tribunals. This difference clearly
demonstrates the reluctance of the Members of the Security Council to characterize the acts
committed on the territory of the former Yugoslavia as genocide.
F2i4.lly ⎯ and this is not without significance ⎯ even if the Security Council is not
qualified to undertake a legal characterization of th e facts and, hence, to establish the existence of
genocide, no resolution of the Security Council refers to genocide in the context of the conflict in
the former Yugoslavia. This is all the more im portant as the Security Council has adopted a large
number of resolutions on this conflict. On the other hand, the Security Council uses the term
genocide in its resolutions relating to the Rwanda n conflict, particularly resolutions 925, 935 and
7
955 (1994) . The Security Council has always been reluctant to use the term genocide in relation to
the situation in the former Yugoslavia, unlike in the Rwandan conflict, simply because the purpose
of the civil war in Bosnia and Herzegovina was cl early not the destruction of an ethnical, national,
6
Security Council resolution 955 (1994), Art. 1.
7Resolution 925 (1994) of 8 June 1994, resolution 9351994) of 1 July 1994 and resolution 955 (1994) of
8 November 1994. - 9 -
77 racial or religious group, and because the inten tion to commit genocide did not emerge as one of
the war aims in Bosnia and Herzegovina, whereas it was the key to the Rwandan conflict.
25. Turning now to the United Nations Gene ral Assembly, we find that it uses the term
genocide in certain resolutions, particular ly resolutions 47/121 and 47/147 (1992), but a
re-examination of these resolutions reveals, interes tingly, that the Assembly draws no conclusions.
The United Nations General Assembly merely calls fo r consideration to be given to the extent to
which the acts committed in Bosnia and Herzegovi na and in Croatia c onstitute genocide, in
accordance with the Convention. It is obvious that, if the General Assembly had been convinced of
the existence of genocide, it would have worded its resolution differently; it would not have
contented itself with merely raising the issue.
26. All the other subsequent resolutions a dopted by the United Nations General Assembly,
which could be considered to contain a re ference to genocide (resolutions 48/88 (1993),
48/143 (1993) and 48/153 (1993) of 20 December 1993 and 49/205 (1994) of 23 December 1994)
refer only to those first two resolutions . And while some of these resolutions 8 speak of the
prevention of the crime of genocide, none claims or maintains that genocide was committed in
Bosnia and Herzegovina. It cannot therefore be argued that the facts constituting the alleged crime
have been established, in relation to the situa tion in Bosnia and Herzegovina, by any General
Assembly resolution.
27. What is more, the General Assembly do es not have that power, and as the honourable
ProfessorPellet has said: “The Assembly is a political forum rather than a dispute settlement
body.” 9
28. We are convinced, therefore, that your Court cannot accept the Applicant’s assertion that
the United Nations General Assembly authoritativel y determined the existence of facts and the
legal classification of those facts (Memorial, para. 3.3.2.5), thereby depriving your Court of its role.
29. There is no doubt that numerous crimes we re committed during the Bosnian tragedy, as
they were throughout the territory of the former Yugoslavia. The Applicant, in its various written
8
General Assembly resolution A/RES/48/88, 20 December 1993, preamble.
Droit pénal international , Nguyen Quoc Dinh, Patrick Dallier Alain Pellet, 5th ed., Paris, LGDJ 1994,
p. 802, para. 528. - 10 -
88 pleadings, speaks of large-scale crimes, and on this point we can only agree, since the crimes were,
quite obviously, committed on a large scale. It is, mo reover, in this context that one must review
the resolutions of the United Nations General As sembly. Their purpose was to alert world opinion
and to put an end to the unlawful acts, irrespec tive of their precise legal characterization.
Moreover, this is not the first time that the Ge neral Assembly has made political use of the term
genocide. You will recall that it did so to describe the situation in Palestine in its resolution 37/123
of 16December1982, where it declared in much more explicit terms and without any ambiguity
that it:
“1. Condemns in the strongest terms the large-scal e massacre of Palestinian civilians
in the Sabra and Shatila refugee camps;
2. Resolves that the massacre was an act of genocide.”
30. However, no one has ever tried, on the basi s of this resolution, to bring to justice on
charges of genocide the authors of the crimes committed at Sabra and Shatila, although their
identities are known, no doubt because the concep tion of genocide expounded by the United
Nations General Assembly stood outside the le gal framework of the Genocide Convention and
went beyond the elements prescribed for the definition of an offence.
31. Concerning the reports of various committees, and without going into the veracity of the
facts alleged in those reports, as cited by the Applicant, to which my colleague Saša Obradović has
already referred, we can only say that those reports were written to raise public awareness and, in
the case of the Commission of Experts, to record testimony and safeguard the evidence of criminal
acts that had been committed.
32. The Commission of Experts establis hed on 6October1992 by Security Council
resolution 780 (1992) was set up initially to provid e the Secretary-General with its conclusions on
the evidence of grave breaches of the Geneva Conv entions and other violations of international
humanitarian law. Following the establishment of the Tribunal for the former Yugoslavia, all the
information collected by the Commission was transf erred to the Prosecutor of the Tribunal. In its
final report, the Commission does in fact acknow ledge the existence of grave breaches of the - 11 -
10
99 Geneva Conventions and of international humanitarian law in general . International humanitarian
law certainly encompasses breaches of the Geneva Conventions, of the laws and customs of war,
commonly known as war crimes, and crimes against humanity. Breaches of international
humanitarian law may also include genocide, but there is no indication that the Commission of
Experts intended such inclusion. Nothing in th e report provides a basis for the conclusion that the
Commission of Experts found evidence of genocide in the events in Bosnia and Herzegovina; the
report proves nothing. On the other hand, in referring the ma tter to the Prosecutor of the
International Criminal Tribunal, it simultaneously instructed that Prosecutor to review and
investigate allegations of the commission of genoc ide in Bosnia and Herzegovina in the course of
those events.
33. This brings us finally to what your Court will find most enlightening, namely the search
for truth by the International Criminal Tribunal for the former Yugoslavia. At the conclusion of its
numerous proceedings, that Tribunal, a judicial institution, seldom accepted the factual findings of
the various committees, including the Commission of Experts, cited by the Applicant. In most
instances, the judges on the Tribunal, in their judgments and sentences, established a factual
situation completely different from that described in the findings and reports of the committees.
34. The Genocide Convention is therefore the only international instrument which provides a
legal definition of the crime of genocide, the only definition of interest to us in these proceedings.
35. Let us review that definition, which is si mple and concise: Article II of the Convention
states that genocide is a crime committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group. In the absence of such intent to destroy a group, no act, however
reprehensible it may be, constitutes genocide.
36. It is true that genocide is an internati onal crime, defined by international law, but the
legal concept of genocide belongs to criminal law. And like any norm creating a criminal offence,
it precisely determines the elements of that criminal act, which are the following:
20 1. the material element comprising the different material acts potentially constituting the actus
reus of genocide; and
10
Final Report of the Commission of Experts estahed pursuant to Security Council resolution780 (1992),
S/1994/674, paras. 311 and 322. - 12 -
2. the moral element, that is to say the element of intent or mens rea.
37. It should be borne in mind that, although this is an international crime under international
law, it is governed primarily by a rule of criminal law, which, like any rule of criminal law and in
accordance with the principles of criminal law, must be interpreted rigorously and restrictively.
38. Of course, today’s proceedings are intended to determine the responsibility of a State, but
for a State to be responsible under the Genocide Convention, the facts must first be established. As
genocide is a crime, it can only be established in accordance with the rules of criminal law, under
which the first requirement to be met is that of individual responsibility. The State can incur
responsibility only when the existence of genoc ide has been established beyond all reasonable
doubt. In addition, it must then be shown that the person who committed the genocide can engage
the responsibility of the State or that the genocid e was committed in a territory where the State
should have exercised its authority in order to prevent genocide or to punish the perpetrator or
perpetrators, and failed to do so.
II. The material element of the crime of genocide
39. The material acts which constitute the crime of genocide are listed in Article II:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
40. The Applicant alleges that Serbia and Montenegro committed genocide, by way of the
acts indicated in the Article, as well as by other acts which, according to the Applicant, can also be
included within the definition of genocide.
210 41. Contrary to what the Applicant claims (R eply, Chap. 2, para. 40 and Chap. 6, para. 6), it
seems clear that the list in ArticleII of the Co nvention is exhaustive. The rules of criminal
procedure in all countries demand a strict interpreta tion of the relevant texts, according to the old
maxim nullum crimen sine lege, nulla poena sine lege (no crime can be committed and no - 13 -
punishment can be imposed without an existing law). The fact that international criminal law is to
be interpreted strictly is borne out by Article 22.2 of the recent Statute of the International Criminal
Court, which stipulates that “[t]he definition of a crime shall be strictly construed and shall not be
extended by analogy. In case of ambiguity, the de finition shall be interpreted in favour of the
person being investigated, prosecuted or convicted.”
42. And the jurisprudence of the Internationa l Criminal Tribunal for the former Yugoslavia
also indicates that genocide can only be constitute d by the acts mentioned by ArticleII of the
Convention, which are the same as those ⎯ as I said earlier ⎯ included in Article 4.2 of the ICTY
Statute, as it was copied directly from the Convention. Thus, in its judgment in Brdjanin case,
Trial Chamber II ruled that genocide is characterized by one or several of the acts (actus reus)
enumerated in Article 4.2 of the Tribunal’s Statute 11.
43. To engage the responsibility of a State, however, the conduct of an individual himself
capable of engaging the State must be shown to be criminal, as criminal law can only ascribe a
crime to a physical person.
44. In either case, only the acts listed in Ar ticle II of the Convention can constitute the actus
reus of the crime of genocide.
45. In its Reply (Chap.2, para.44), the A pplicant endeavoured to convince the Court that
there has been a development in the notion of ge nocide since the Convention was adopted and that
it should now be construed in a broader sense. And the Application refers to the Judgment of your
Court of 19 December 1978 (Reply, Chap. 2, para. 45), in an area far removed from criminal law,
since the case concerned was the Aegean Sea Continental Shelf case (Greece v. Turkey). The
Applicant sought on this basis to indicate that your Court had extended the way in which a treaty
may be applied: the meaning of an expression in a treaty is assumed to follow “the evolution of the
22 law and to correspond to the meaning attached to the expression by the law in force at any given
time”. However, the Applicant quotes only part of the sentence, which has, moreover, been
completely taken out of the context of the Judgment, to an extent where, I feel, it can be misleading
and deform the real meaning of the Judgment. In the Judgment concerned, the Court stressed the
11
ICTY, Prosecutor v. Radislav Brdjanin, case No. IT-99-39-T, Judgement, 1 September 2004, para. 681. - 14 -
difference between various international instrume nts, clearing establishing that, while certain
instruments are open to interpretation according to the law in force at any given time, others must
be strictly construed according to the meaning im plied by the language of the signatories at the
time when they were adopted ( Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J.
Reports 1978, para. 77).
46. And the Applicant forgets, once again, th at the Genocide Convention is not merely an
international treaty, but also an instrument of criminal law which defines the elements of the crime,
is directly applicable to individuals and applicab le in all States, so that a strict approach to
interpretation clearly prevails.
47. Nevertheless, I think that th is debate, like many others in this case, is highly theoretical
and of little significance, because the notion of ge nocide has not evolved since the Convention was
adopted. In this respect, it should be noted that the language of Article II has been literally copied
in full into the basic documents of all of the international judicial organs with jurisdiction in respect
of genocide, without the slightest comma being al tered. At the time when the Tribunal for the
former Yugoslavia was established, the Secretary- General expressly indicated in his report that
Article4.2 of the Tribunal’s Statute was a reproduc tion of the relevant measures contained in the
12
Genocide Convention and the same was true of Article 2.2. of the Statute of the International
Criminal Tribunal for Rwanda.
48. Since all the international instruments con cerned with genocide, of which the latest, the
Statute of the International Criminal Court, whic h came into force on 1 July 2002, use the terms of
the Genocide Convention word for word, it would a ppear difficult to argue that there has been a
change or evolution of any kind in the notion of ge nocide, which is now set in stone. In its written
submissions, the Applicant continually tried to enlarge the legal definition of genocide, as if that set
23 out by ArticleII of the Convention was insufficien t for it or hindered it in its approach to the
matter. The broad interpretation invoked by th e Applicant merely demonstrates its predicament
relative to the established notion and cannot really be seriously entertained.
12
Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993),
3 May 1993, doc. S/25704, para. 46. - 15 -
49. The acts which represent the material element of the crime of genocide are first of all
common law crimes. They can also constitute ot her international crimes, such as crimes against
humanity and war crimes. They cons titute genocide when they take place ⎯ and this is the
essential difference ⎯ as part of a precise scheme, with par ticular intent. In order to distinguish
between a murder under common law, a murder that is a war crime or crime against humanity, and
a murder constituting genocide, certain well-defined legal requirements must be met.
50. The jurisprudence of the two Internationa l Tribunals, for the former Yugoslavia and for
Rwanda, has explained in detail the grounds for prosecution under Ar ticleII of the Convention.
Those acts have also been detailed in a recent document establishing “Elements of Crimes”,
adopted by the Assembly of States Parties to the Rome Statute on 9 September 2002, to be used by
the International Criminal Court in order to interpret and apply the Articles of the Rome Statute 13.
51. Since the Applicant contends that th e genocide in Bosnia was constituted by the
perpetration of each of the acts set out in Artic leII of the Convention, we shall examine the
meaning of each of the clauses of ArticleII of th e Convention: (i)killing, (ii)causing serious
bodily or mental harm, (iii) deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part.
52. Measures intended to prevent births within the group and forcibly transferring children of
the group to another group will be examined together, as these two of the Applicant’s charges are
essentially based upon the allegations of rape, and I will let Ms Nataša Fauveau-Ivanovic deal with
that sensitive issue.
24 53. Before analysing the legal components of each of the physical acts constituting genocide,
I will briefly review the facts cited by the App licant in its successive written and oral pleadings,
which it regards as constituting genocide.
13
“Elements of Crimes”, doc. ICC=ASP/1/3, Introduction, para. 1. - 16 -
(Killings
(a) Acts presented by the Applicant as acts of genocide by killing
54. The Applicant alleges the killing of thousands of non-Serbs (Reply, Chap. 5, para. 10 and
Memorial, para. 2.2.2) ⎯ considering non-Serbs as a group ⎯ throughout Bosnia and Herzegovina
and indicates that killings of civilians took place in various towns throughout Bosnia and
Herzegovina, notably in Bosanski Brod, Derventa , Bijeljina, Kupres, Foca, Zvornik, Visegrad,
Bosanski Samac, Vlasenica, Brcko, Prijedor, Saraje vo, Mostar, Srebrenica, Zepa and Gorazde.
These killings were alleged to be the result of a campaign aimed at the destruction of a national,
ethnical, racial or religious group.
55. The Applicant does not provi de detailed allegations for all of these towns and villages.
Its presentation was limited to the Bosanska Kraj ina region of Western Bosnia and notably the
towns of Prijedor and Kljuc, and subsequently to Brcko, a town in northern Bosnia, Sarajevo and
western Bosnia (Bijeljina, Zvornik, Visegrad, Foca and Srebrenica).
56. We will therefore examine what occurred in these regions and municipalities mentioned
by the Applicant; to which must be added the k illings in the internment camps located in the
aforementioned regions and towns.
57. As I have already indicated, we do not deny that a great many people were killed in the
horrific civil war in Bosnia and Herzegovina, fue lled by centuries-old animosities, nor that killings
of civilians took place. Certain of these killings indeed occurred inside the camps, which showed
little respect for the laws and customs of war.
58. While the killing of civilians definitely represents a crime, in a civil war situation it is not
always possible to differentiate between military personnel, sometimes fighting without uniforms,
and civilians and this proved particularly difficult throughout this conflict.
59. Moreover, in its Reply (Chap.5, para.56) , the Applicant admits that 90percent of the
persons reported missing were men. Such a proportion clearly demonstrates that the majority of
25 the victims were engaged in some way in combat or represented a military threat to the other side.
While the killing of combatants can, in certain circumstances, constitute a war crime, the purpose
of any war is, unfortunately, to neutralize th e military force of the adversary through its
elimination. - 17 -
60. When discussing the military losses resulting from conflicts in general, and arbitrary
killings in particular, there is a tendency towa rds inflating these losses, which is as true in
Yugoslavia as elsewhere. Before undertaking an an alysis of the number of victims alleged by the
Applicant, I would like to emphasize just how diffi cult such a venture is. It is difficult because it
can appear obnoxious to compute victims and suffering. Each victim deserves compassion and
suffering should prompt remorse, but the elements themselves of the crime of genocide oblige us,
against our will, to engage in this morbid arithmetic in order to rebut the Applicant’s claims.
61. The Applicant claims, for example, that in the village of Hambarine, located in western
Bosnia in the Bosanska Krajina region, 1,000peopl e were killed in May 1992 (Reply, Chap.2,
para.22). The number of victims cited by the Applicant is based on a report by the Special
14
Rapporteur of the United Nations Commission on Human Rights, Mr. Tadeusz Mazowiecki . But
for the tragic circumstances, su ch a statement could be described as far-fetched, given that the
Tribunal for the former Yugoslavia in the Brdjanin case established the number of certain fatalities
in Hambarine during these events in May 1992 at three 15!
62. Similarly, with respect to the events in Kozarac, which is in the region of Prijedor, one of
the most contested regions, the Applicant indicates that 5,000people were killed (Memorial,
para. 2.2.2.11). The Applicant’s estimat e is again based on a United Nations report 1. The events
in Kozarac, as one would expect, have been extensively investigated by the Tribunal for the former
Yugoslavia and have given rise to a number of prosecutions and, therefore, several judgments.
26 63. In the Tadic case, the first on which the Tribunal ruled, the judges found that 800 people
17
had been killed in Kozarac . However, in the Brdjanin case, the latest with respect to the region
concerned to have come before the Tribunal, the judges found, in their judgment, that the number
18
of Bosnian Muslims killed in Kozarac was at least 80 , while the total number of people killed
14
Sixth periodic report submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human
Rights, A/47/6661, S/24809, 17 Nov. 1992, p. 8, para. 17 (c).
15
ICTY, Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 401.
16Special Rapporteur’s Report: Situati on of Human Rights in the Territory of the Former Yugoslavia, United
Nations doc. A/47:666, S/24809, 17 November 1992.
17ICTY, Prosecutor v. Dusko Tadic, case No. IT-94-1-T, sentencing Judgement, 7 May 1997, para. 565.
18ICTY, Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 403. - 18 -
(Bosnian Muslims and Croats) in Kozarac and its surroundings did not exceed 140 1. This is
certainly a horribly high number, but it is, nevertheless, a long way short of the figure of 5,000
claimed by the Applicant.
64. The worrying thing is that this figure of 140 is not only significantly below the figure
indicated in the report cited by the Applicant, but it is also very much lower than the one
established by the very same Tribunal in its judgment on the first case seven years earlier. It would
be logical for the number of victims to be highe r in the later cases than in the earlier ones, as
logically not all of the victims would have been recorded at the outset. In ICTY jurisprudence,
however, we can see the opposite, as the number of victims diminishes over time. This clearly
demonstrates that emotion and propaganda lead to a systematic overestimation of the number of
victims and with time, as a result of professionally conducted investigations, the number of victims,
high as it might be, proves to be significantly lower than the wartime estimates.
20
65. The Applicant alleges, based on a 1993 report by the Human Rights Committee , that
around 15,000people were killed, interned or oblig ed to perform forced labour in the region of
Kljuc (Memorial, para.2.2.2.3). As internme nt and forced labour do not constitute acts of
genocide, the Applicant should have indicated the number of people killed. Since the Applicant
did not indicate this number, we will, once again, refer to the judgment of the Tribunal for the
former Yugoslavia in the Brdjanin case, which found that in the whole of the Bosanska Krajina
region, in which the municipality of Kluc is located, and which also comprises the region of
27
Prijedor, the number of people killed in 1992, during the worst crimes in the region, totalled
21
1,669 . More specifically, in the municipality of Kljuc, the judgment refers to the villages
mentioned by the Applicant in its Memorial, th at is Velgici, Krasulje, Pudin Han and Gornja
22
Sanica, and concludes that 103 people were killed there, of which at least 98 were men .
66. With respect to all of the municipalities mentioned by the Applicant in its written and
oral presentations, the Tribunal for the former Y ugoslavia, which has exam ined these acts, these
19Ibid., para. 476.
20
Human Rights Committee Report, 27 April 1993; p. 13 (CCPR/C/89).
21
ICTY, Prosecutor v. Brdjanin, Judgement, 1 September 2004, para. 465.
22Ibid, para. 423-427: according to the Judgement three people were killed in Pudin-Har (para. 423), 33,
including two women, in Prhovo (para. 424 and 426) and 77 men in Velagici (para. 427). - 19 -
serious, dramatic events, has never characterized them as genocide according to Article4.2 of its
own Statute.
67. Let us now turn to events in Srebreni ca, which probably constituted the most dreadful
crime committed during this war. In the case of General Krstic, who was sentenced to 35years’
23
imprisonment, and to which we will return late r, the Tribunal estimated that 7,000-8,000 men of
combat age were executed. Other judgments are pending with a view to shedding light on what
actually happened in this enclave under the protection of international forces. In this respect, we
note again in our own morbid arithmetic divergences in the number of victims in the various cases
related to Srebrenica before the Tribunal. Thus , the widely accepted figure of 7,000-8,000 people
does not correspond to the number of victims indicat ed in the indictment of General Mladic, who
has yet to be arrested, in which the total num ber of victims of executions in Srebrenica ⎯ and this
is only the indictment ⎯ amounts to 5,390 people exactly 2. The figure of 8,000 has recently been
challenged by the Canadian General Lewis MacKenzie, the first commander of the UNPROFOR in
Bosnia and Herzegovina. General MacKenzie is of the opinion that the evidence presented to the
28 Tribunal in The Hague casts serious doubt upon the figure of 8,000 Muslims killed. In his article
“The Real Story Behind Srebrenica”, this number includes 5,000 people reported as missing and
the victims of three years of intense combat in the region. General MacKenzie logically concludes
25
that “[t]he math just doesn’t support the scale of 8,000 killed” . Once again, we are not denying
the reality of the appalling crime committed at Sreb renica, but in the present case we must keep to
the facts as they are. And these facts do not constitute genocide.
68. Finally, to provide an idea of the approxi mate nature of the Applicant’s allegations, we
can note that its Memorial devotes much space to th e story of Borislav Herak, a Bosnian Serb who
is supposed to have murdered a Bosnian Muslim man. This story, which accounts for so much
space, is entirely false, because Borislav Hera k simply did not kill anybody and his supposed
23
ICTY, Prosecutor v. Radislav Krstic, case No. IT-98-33-A, AppealsChamber Judgement, 19 April 2004,
para. 2.
2ICTY, Prosecutor v. Ratko Mladic, case No. IT-95-5/18, Amended Indi ctment, 8 November 2002, Annex B
(Murders 1995).
2General Lewis MacKenzie, “The Real Story Behind Srebrenica”, The Globe and Mail , 14 July 2005,
reproduced by www.transnational.org/features/2005/MacKenzie_Srebrenica.html. - 20 -
victim is still very much alive . The truth of Herak’s story was reported by Agence France Presse
on 28 February 1997; the story was also carried by The New York Times on 1 March 1997, the
Washington Post on 15 March 1997 and The Guardian on 26 March 1997. The story of
Borislav Herak provides no evidence of the torture which the Serbs are supposed to have used. The
whole story proved to be false and a complete invention.
69. But the Herak case, on which I will concen trate for a moment, is interesting because it
sheds light on the role of propaganda in this co nflict. Everybody knows that in modern warfare,
propaganda ⎯ disinformation ⎯ is a weapon as effective as a number of divisions; and Bosnia and
Herzegovina made frequent use of it in order to portray itself to international public opinion as an
innocent victim. Bosnia and Herzegovina very rapidly understood that the major stake in the
conflict was to appear as weak and innocent and confr onted by strength, that it had to attribute the
“good” and the “bad” roles right at the start of th e action, as it were. To this end, Bosnia and
Herzegovina engaged the services of a reputed Am erican public relations agency, Rudder & Finn
Global Public Affairs, whose mission was to co nvince international public opinion that the
29 Muslims of Bosnia and Herzegovina were in fact the victims of a genocide. However, people in
the public relations industry are talkative and, wh en they make such a good job of an assignment,
they find it difficult not to inform others about it.
70. In an interview in October 1993, Mr. James Harff, the director of this agency, confirmed
that Rudder & Finn Global Public Affairs was work ing for the Republic of Croatia, for Bosnia and
Herzegovina and for Kosovo. In the interview, Mr. Harff stated:
“by a single move we were able to present a simple story of good guys and bad guys,
which would hereafter play itself. We w on by targeting Jewish audience. Almost
immediately there was a clear change of la nguage in the press, with the use of words
with high emotional content, such as ‘ethnic cleansing’, ‘concentration camps’, etc.,
which evoked images of Nazi Germany a nd the gas chambers of Auschwitz. The
emotional charge was so powerful that nobody could go against it.”
And Mr. Harff continued:
“Our work is not to verify information. We are not equipped for that. Our work
is to accelerate the circulation of information favorable to us, to aim at judiciously
26AFP, wire story of 28 February 1997; “Jailed Sers, Victims Found Alive, Embarrassing Bosnia”, by
Chris Hedges, The New York Times , 1 March 1997; “Serb Convicted of Mu rders Demanding Retrail After 2 Victims
Found Alive”, by J onathan Randall, Washington Post, 15 March 1997; “War Crimes Put Justice in the Dock” by
Karen Coleman, The Guardian, 26 March 1997. - 21 -
chosen targets. We did not confirm the ex istence of death camps in Bosnia, we just
made it known that ‘Newsday’ affirmed it . . . We are professionals. We had a job to
27
do and we did it. We are not paid to be moral.”
71. The propaganda that Bosnia and Herzegovina engaged in bore fruit. It must be said that,
in this, the Sarajevo authorities and President Izet begovic proved particularly skilful, to the extent
that their own war aims were quickly forgotten. It is obvious that the Application made to this
Court is, to a large extent, part of this strate gy. The number of victims and the description of
events in the Herak case are evidence of this.
Madam President, I would like to ask for a break , if you would be so kind, before continuing
with my discussion of the legal definition of killing as a constituent act of genocide.
The PRESIDENT: Yes, Maître de Roux, we will take an early break now of 15 minutes.
The Court adjourned from 11.10 to 11.25 a.m.
The PRESIDENT: Please be seated. Maître de Roux.
30
Mr. de ROUX: Madam President, Members of the Court, I shall now return to the legal
definition of “killing”, material element of genocide.
(b) The legal definition of killing, material element of genocide
72. “Killing” as referred to in Article II (a) of the Genocide Convention calls for no special
comment. It falls within a legal category known to the law of all civilized countries. However, to
be a component of genocide, the act of killing must be accompanied by a pre-existing genocidal
intent. An examination of the preparatory work for the Genocide Convention clearly shows that
the crime of genocide, over and above its constituent physical acts, necessarily includes
premeditation.
Kill.ing per se, a crime generally covered by national law, including the criminal law of
the former Yugoslavia, can, under international crim inal law, also be a war crime, a crime against
humanity or an act of genocide, according to the manner in which it is characterized.
74. However, the specific requirements of genocide are not met in the present case.
27
Yohanan Ramati, “Stopping the Wa r in Yugoslavia”, published in Midstream ⎯ A Monthly Jewish Review ,
April 1994 ; htpp://www.balkanpeace.org./cib/bac/bac09.shtml. - 22 -
75. In its written pleadings the Applicant refers very frequently to the systematic nature of
the killings. Admittedly killings were carried out in the territory of Bosnia and Herzegovina during
the armed conflict involving the three ethnic, national and religious communities living in that
State. In this context it is doubtless possible to speak, as the Applicant does, of large-scale killings
in Bosnia and Herzegovina. However, that does not amount in law to genocide.
76. Of course, the systematic nature of the killings may constitute a crime against humanity.
Thus Article 3 of [the Statute of] the Internationa l Criminal Tribunal for Rwanda requires that, for
a murder to be characterizable as a crime against humanity, it must be committed as part of a
widespread or systematic attack against any civ ilian population on national, political, ethnic, racial
31
or religious grounds. The Secretary-General further stated in his report on the creation of the
Tribunal for the former Yugoslavia that “crim es against humanity” means “extremely serious
inhuman acts such as intentional homicide, tortur e or rape committed as part of a widespread or
systematic attack against a civilian population...” 28. Under Article7 of the Statute of the
International Criminal Court, “crime against humanity” means “any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack”. Thus it is their wi despread and systematic character that can make
killings a crime against humanity. On the other hand, that widespread and systematic character is
not enough per se to constitute the crime of genocide, the specific aim of which is to eradicate an
ethnical, national, racial or religious group.
77. To support its thesis of systematic killi ngs, the Applicant cites various documents from
the Tribunal for the former Yugoslavia (indictme nts, judges’ orders confirming indictments,
decisions pursuant to Rule61 of the Tribunal’s Rules of Procedure and Evidence, decisions on
motions for acquittal pursuant to Rule98 bis of the Tribunal Rules, Trial Chamber judgments and
Appeals Chamber decisions), as if all this ⎯ as if all these procedural or judicial decisions, of form
or of substance ⎯ could constitute proof. And that brings us, as I was saying to you just now, to
the question of the hierarchy of United Nations decisions. From a strict legal viewpoint there is
certainly work to be done on these citations in or der to determine what can constitute evidence and
28
Report of the Secretary-General of 3 May 1993, United Nations, doc. S/25704, para. 48. - 23 -
what cannot. And that is why I am going to look a little more closely with you at the procedures
and judgments of the International Criminal Tribunal.
78. The Applicant’s extensive references to i ndictments and to judicial decisions confirming
indictments cannot be taken as evidence of a crime or even of any offence at all. In no legal system
does an indictment prove the commission of the of fence charged, since it is simply an accusation,
32
which has to be proved. It is merely a claim by one party to the proceedings, which may be upheld
at the trial but may also be dismissed: that is the role of the court. That is why I will not spend
much time on analysing the indictments cited, some of which, and particularly those alleging
genocide, have been rejected in almost all cases by decisions of the Tribunal.
79. Lastly I should like to return to a point ofprocedure that is peculiar to the International
Criminal Tribunal for the former Yugoslavia: the decision of the court confirming the indictment.
Under the Tribunal’s Rules of Procedure and Evidence ⎯ a unique feature, applying to that
Tribunal only ⎯ the indictment must be confirmed by the Tribunal in order to have legal effect.
This is important, because it involves in particular th e issuing of the arrest warrant; Rule 47.H of
the Tribunal’s Rules provides:
“Upon confirmation of any or all counts in the indictment,
(i) the Judge may issue an arrest warrant . . ., and
(ii) the suspect shall have the status of an accused.”
In other words ⎯ and this is the case in almost all legal systems, whether common law or civil
law ⎯ here we have an accused who is the subject of an indictment. Thus confirmation merely
confers legal validity on the indict ment, which nevertheless stays what it is, i.e., a document that
has to be proved in law or disproved. Similarly, decisions pursuant to Rule61 of the Tribunal’s
Rules of Procedure and Evidence do not represent pr oof of the alleged offences. Those decisions
are based exclusively on evidence submitted by the Prosecutor and allow an international arrest
warrant to be issued. This again is a procedural act which cannot prejudge guilt.
80. Thus the Applicant is trying to confer probative value on decisions pursuant to
Rule 98bis of the Tribunal’s Rules of Procedure and Evidence on motions for acquittal submitted
33 by the defence. It is a feature of proceedings before this Tribunal that these motions are submitted
by the defence immediately after the Pr osecutor’s case has been presented, but before the defence - 24 -
has begun to present its own evidence. The wording of Rule98 bis of the Rules of Procedure
confirms that this is a request to the Tribunal for a decision that may put an end to the prosecution,
but if the Tribunal refuses this in no way prejudices the final decision, which can still be an
acquittal. Rule 98 of the Tribunal’s Rules provides:
“At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision
and after hearing the oral submissions of the parties [we are in oral, not in written
proceedings], enter a judgement of acquitta l on any count if there is no evidence
capable of supporting a conviction.”
What is actually involved at this stage? It is simply a matter of eliminating indictments, which
generally contain a very long list of charges; at this stage in the proceedings it is a matter of
eliminating charges unsupported by evidence, wh ich have simply been put forward in the
indictment but are without foundation. If, on the contrary, there is evidence capable of leading to a
conviction, the proceedings ⎯ i.e., the judicial debate ⎯ continue by examining the relevance of
this evidence. But, as we have seen, proceedings under Rule 98 bis of the Tribunal’s Rules, which
are oral, in no way prejudge the decision in the case!
81. So now we come to judgments ⎯ jurisprudence. Of course your Court is not bound by
that jurisprudence, but it is of interest, in that , in the course of its numerous investigations,
proceedings and judgments, the International Crim inal Tribunal dealt both with the period and
localities in question; as regards judgments, the Applicant frequently cites the first judgment in the
29
Tadic case , the first case tried before the Tribunal fo r the former Yugoslavia. The Applicant’s
reference to this case is understandable, becau se when the Parties were filing their written
pleadings the Tadic case was one of the rare cases to have been tried by the Tribunal. However, no
proof of genocide was established. This case, rather than supporting the thesis of genocide,
contradicts it, and does not help the Applicant’s case at all. In the Tadic case the Prosecutor did not
even accuse Dusko Tadic of genocide. He did not even allege that genocide had been committed in
34 the town, in a region that repeatedly figures in these proceedings: Prijedor, a locality at the
interface, as it were, of Bosnian and Serb areas of influence, and for which there was such bitter
fighting. So the Prosecutor in the Tadic case does not even allege that genocide was committed in
29
ICTY, Prosecutor v. Dusko Tadic, case No. IT-94-1, 15 July 1999 (“the Tadic case”). - 25 -
Prijedor. Dusko Tadic was accused of crimes against humanity and was convicted of those crimes.
Thus that case provides no evidence of genocide, contrary to what the Applicant claims.
82. Again, of course, your Court is not bound by that decision but will certainly take account
of the fact that the Tribunal’s Prosecutor, afte r an in-depth investiga tion, did not even accuse
Dusko Tadic of genocide. Yet, in accordance with his accusatorial role, the prosecutor includes all
possible charges in the indictment and, as you w ill see in the jurisprudence, he generally alleges
genocide in all cases in which there is even the slig htest suspicion of it. The jurisprudence of the
Tribunal allows cumulative charges. While th is may be a matter for debate among criminal
lawyers, it is nonetheless so; the Tribunal’s App eals Chamber has decided: “Cumulative charging
is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not
possible to determine to a certainty which of the charges brought against an accused will be
30
proven.” Much has been written on this particular matter: cumulative indictments, conflicting
characterization; but it has been settled by the Tr ibunal’s Appeals Chamber: it is not possible to
determine with certainty which of the charges br ought against an accused will be proven. So all
possible charges are always included. I stress, all possible charges. Thus the Prosecutor very
frequently charges genocide cumulatively with th e offence closest thereto: a crime against
humanity. And yet he did not do so in the Tadic case. Moreover, in three of the “Prijedor” cases in
which the Prosecutor brought charges of genocide ⎯ genocide charges in the notorious
municipality of Prijedor ⎯ the Sikirica, Brdjanin and Stakic cases, all three accused were acquitted
of genocide. They were convicted of crimes agai nst humanity, which is certainly a dreadful crime,
but it is not genocide.
35 83. If I may, we will briefly examine those th ree cases from that area, because they were
decided by the Tribunal after the Applicant’s written pleadings were filed. We are going to rely on
these three judgments in order to establish that genocide was not committed in Bosnia and
Herzegovina and to show that the Applicant has been unable to prove that it was.
30
ICTY, Prosecutor v. Mucic et al ., case No.IT-96-21-A, Appeals amber Judgement, 20February2001,
para. 400. - 26 -
(c) Can the acts committed in Bosnia and He rzegovina be characterised as “killing”, actus
reus of genocide?
84. Let us begin with the Sikirica case, which concerns the Keraterm prison camp. We shall
then take a look at the Stakic case, because Mr. Stakic was the elected mayor of Prijedor. Finally,
Brdjanin was President of the Crisis Staff of Bosansk a Krajina, that is to say of the entire region.
We therefore have a camp guard, the mayor of a town, a regional President. We have here
something very important: we have not only the military aspect, we have the political aspect. In
other words, we will examine a genocidal plan obvi ously conceived at the political level, since the
Mayor of Prijedor and the President of the Crisis Staff belonged to the same political party, the
SDS. Yet the Tribunal held that certain acts constituted crimes against humanity but that none
could be characterized as genocide 3.
85. And in the Stakic case, the case of the mayor, the Tribunal judges concluded that the
objective of the SDS, the Serbian Democratic Party, in the municipality of Prijedor was to establish
a Serbian municipality and that the evidence was insufficient to conclude that the goal was the
destruction of the Muslims; rather, the goal w as simply to eliminate any threats from Muslims
because the security of the Serbs and the protection of their rights appeared to be their paramount
32
interest . The Tribunal concluded that, on the basis of the evidence presented in the case, it was
not convinced that genocide had taken place in Prijedor 33.
86. In the judgment handed down in the Ke raterm camp case on the defence motion by the
34
36 defendant Sikirica to acquit of charges of genocide , the Trial Chamber concluded that the
evidence had not shown that the group as such had b een the target of the criminal acts. According
35
to this judgment, the criminal acts were directed against individual members of a group . The
Chamber found that, in so far as the mistreatment was proved, the relevant crime was a crime
against humanity, persecution, and not genocide. Accordingly, even if the evidence showed that
31
ICTY, Prosecutor v. Dusko Sikirica et al ., case No. IT-95-8 (the “Keraterm case”), Indictment,
30 August 1999; Prosecutor v. Milomir Stakic , case No. IT-97-24, Indictment, 10April2002; Prosecutor v.
Radoslav Brdjanin, case No. IT-99-36, Indictment, 9 December 2003.
32
ICTY, Prosecutor v. Stakic, case No. IT-97-24-T, Judgement, 31 July 2003, paras. 553 and 561.
3Id., para. 561.
3ICTY, Prosecutor v. Dusko Sikirica (Keraterm), case No. IT-95-8-T, Judge ment on defence motions to acquit,
3 September 2001.
3Id., para. 90. - 27 -
part of the Muslim or Croat population in Bosnia and Herzegovina had been targeted, the target had
not been the group as such, but individual members of the group. Consequently, the Chamber
concluded that, in respect of the Keraterm camp, no requisite element of the crime of genocide had
been proved.
87. Therefore, contrary to what the App licant has contended, we can say that the
jurisprudence of the Tribunal for the former Yugoslavia, at least in respect of the extensive Prijedor
region, completely contradicts the Applicant’s argument.
88. The Tribunal was unable to establish that genocide occurred in the region of Bosanska
Krajina (Western Bosnia), comprising 16 municipalities. And, in the Brdjanin case, the case of the
President of the Crisis Staff, the politician responsib le for that region, the Trial Chamber held that
genocide had not been proved 36.
89. It is clear from the judgments cited that the Bosnian Serbs and Bosnian Muslims in the
Prijedor area, and elsewhere in Bosanska Krajina, did indeed savagely fight each other for control
of territory. It is also clear from the Tribunal judgments that the objective pursued by the Serbs of
Bosnia was indeed to seize control over areas, to grab territory. It may moreover be added that the
other two parties to the conflict, the Croats a nd the Bosnian Muslims, had exactly the same war
objective. We saw this, for example, in Mostar, between the Croats and the Bosniaks, we also saw
it during Operation “Storm”, carried out by the Croa ts against the Serbs in Krajina, which also led
to the complete disappearance of the Serb popul ation from conquered Krajina. Thus, what the
Tribunal tells us is that no intent to destroy a na tional, ethnical, racial or religious group could be
established, no intent existed. But, under the Genocide Convention, the crime of genocide cannot
37 be committed unless there is intent to destroy a group, not to seize territories by force.
90. Exactly the same can be said in respect of other regions of Bosnia and Herzegovina. The
Applicant alleges that genocide took place in Sarajevo, Bosanski Samac, Brcko, Bratunac, Zvornik,
Gorazde, Foca, Mostar, Bihac, Visegrad and Sreb renica. The Tribunal for the former Yugoslavia
has been called upon to rule on many of these even ts. It has ruled on the events which took place
in Sarajevo, Brcko, Bratunac, Foca, Visegrad, Bosanski Samac, and Srebrenica and has never come
36
ICTY, Prosecutor v. Radislav Brdjanin, case No. IT-99-36-T, Judgement, 1 September 2004, para. 982. - 28 -
to the conclusion that the acts committed in Sara jevo, Brcko, Bosanski Samac, Foca, Visegrad or
Bratunac constituted genocide. There has been no conviction for genocide in these cases.
91. As for the references to the town of Mo star in the Applicant’s Memorial (Memorial,
para. 2.2.5.3), I would call them rather ridiculous if the events were not so tragic. Mostar lies in the
border region of Bosnia and Croatia. Twenty pe r cent of Mostar’s pre-war population was Serb; a
few Serbs remain today, making up perhaps 1 per cent of the population. From the beginning of
the war, Mostar was fought over by the Croats a nd Muslims, while all the Serbs were driven out
and are no longer to be found there.
92. The references to Bihac (Reply, Chap.5, para.34), are also highly tendentious. In the
town of Bihac, two Muslim forces born of the same party ⎯ this has to be stressed because it is
important ⎯ were present: the forces of Fikret Abdic, which were fighting against the government
forces of Alija Izetbegovic, who had deployed his fifth corps of the army of Bosnia and
Herzegovina to weaken Fikret Abdic’s defence forces and therefore th e defence of the Bihac
region. The two Muslim factions, which engaged in ferocious fighting in the town, were obviously
not acting in pursuit of a genocidal goal. They disagreed on the form which the Bosnian State
should take; they did not share a conception of the State to be created. Throughout the war the
Serbs of Bosnia, as well as the Serbs of Croatia, helped the side of Fikret Abdic, whose positions
seemed to the Serbs to be more moderate than tho se of President Izetbegovic, notably in respect of
the secularity of the future State. If the Serbs had harboured genocidal intent towards the Bosnian
38 Muslims as a group, as an ethnic group or as a religious group, it is clear that they would not have
helped the Muslims of Fikret Abdic because the war between the Bosnian Serbs and the Muslims
was not a war based on ethnic, national or religious differences. The war in Bosnia and
Herzegovina was a war triggered by political di fferences concerning the very conception of the
State of Bosnia and Herzegovina and of the balance of power among the various minorities making
up that State; I shall return to this question later on.
93. Let us now turn to Srebrenica ⎯ this is the only real issue. The Criminal Tribunal for
the former Yugoslavia did in fact decide that Ge neral Krstic, commander of the Drina Corps of the
army was guilty of complicity in genocide. Th is decision merits special analysis because the
conclusion that there was complicity in genocide is, at the very least, odd in the light of the facts - 29 -
accepted by the Tribunal. We have already said this , but the Srebrenica case is so tragic that we
undoubtedly need to repeat it: this was probably one of the worst episodes in the civil war in
Bosnia and Herzegovina.
94. Before the civil war broke out, Srebrenica was a municipality ⎯ in Serbia, there are
towns and villages, and municipalities encompassing their surrounding territory ⎯ of
37,000 inhabitants, well-endowed with natural resources, notably its mines. Serbs made up
roughly one quarter of the population of the municipality. The town itself counted
6,000 inhabitants, of which 1,700 were Serbs, who were quickly expelled, at the very beginning of
the war, by the Bosnian Muslim forces. Their commander, Naser Oric, indicted by the Tribunal for
the former Yugoslavia in 2003, quickly turned it into a fortified town from which military raids
were launched against Serb villages. These raid s, made with the objective of ridding the entire
municipality around Srebrenica of its Serb populat ion, produced several hundred victims among
Serb farmers.
95. In 1993, the United Nations first prev ented the town from being conquered by Serb
forces; I would remind you of the action of General Morillon, who went, practically alone, into the
town to promise the inhabitants that they wo uld be protected. The United Nations adopted
resolution 824 (1993) on 6 May 1993, then resolution 836 (1993) of 4 June 1993, authorizing
39 UNPROFOR, in response to violations of the safe areas, “to take the necessary measures, including
37
the use of force” . A Dutch army battalion (Dutchbat) was stationed there; it was there in July
1995 when General RadislavKrstic, commanding the Drina Corps of the army of Republika
Srpska, took possession of the enclave. Women, children and old men were allowed to flee
through a corridor to territory held by Bosnian Muslims, while men of fighting age and those who
had been in the military forces were executed.
theIn96. Blagojevic case, the Tribunal for the former Yugoslavia stated:
“As the situation in Srebrenica escalat ed towards crisis on the evening of
10July, word spread through the Bosnian Muslim community that the able-bodied
men should take to the woods, form a co lumn together with members of the
28thDivision of the ABIH [Army of Bo snia and Herzegovina] and attempt a
37
Security Council resolution 836 (1993), para. 9. - 30 -
breakthrough towards Bosnian Muslim held territory to the north of the Srebrenica
enclave.” 38
The Tribunal thus found that military-age men, toge ther with members of the 28th Division of the
Army of Bosnia and Herzegovina, which was holdi ng Srebrenica, received the order to leave the
enclave and attempt to break through the Serb lin es, leaving the civilian po pulation behind. This
was therefore a military retreat in the face of th e advance by the Republika Srpska forces. The
great majority of men killed or missing were in this group. The logical question to be asked is
whether these victims can all be considered ordinary civilians.
97. Madam President, Members of the Court, I find arguing over the legal characterisation of
this tragic event to be particularly disagreeable. It is difficult because Srebrenica is a tragedy and
the argument as to legal characterisation might seem cynical in the extreme. Nevertheless, we are
in proceedings before the Court, before the highest Court, in proceedings in which one State, Serbia
and Montenegro, has been accused of genocide. It fa lls to me to convince you that that State, that
the State of Serbia and Montenegro, harboured no genocidal intent whatsoev er in the Srebrenica
affair.
40 98. This enclave in eastern Bosnia and Herzegovina, whose Serb population, as I have
already told you, had been driven out by Muslim forces at the beginning of the conflict, was
obviously a strategic objective of Republika Srpska . The United Nations was well aware of this
situation and was supposed to protect the area through the deployment of international forces,
notably the Dutch battalion. The protected encl ave was however never de militarized; in addition
to the territorial defence forces of Bosnia a nd Herzegovina, the 28th Division of the Army of
Bosnia and Herzegovina, that is to say a military force of more than 5,000 men, was based there.
The military position of the enclave, under a ttack from Republika Srpska troops, became so
untenable for Bosnia and Herzegovina that UNHCR proposed, well before the tragedy which
occurred in July 1995, the evacuation of Srebrenica’s civilian population. The Tribunal’s judgment
in the Blagojevic case notes: “While large-scale evacuation of the endangered population had been
proposed as an alternative way to save the liv es of the people trapped in Srebrenica by the
38
ICTY, Prosecutor v. Vidoje Blagojevic, case No. IT-02-60-T, Trial Ch amber, Judgement, 17January2005,
para. 218. - 31 -
UNHCR, this course of action was rejected.” 39 The government in Sarajevo at that time argued
before the Security Council that such an evacuation would be tantamount to accepting ethnic
cleansing. Thus, these were the circumstances in which the order was given to the Muslim military
forces, that is to say practically all the men who could bear arms, to leave the enclave and attempt a
breakthrough and these are the circumstances in which prisoners were executed en masse by
Bosnian Serbs, while the civilian population, driven out of the city, children, women, old people,
reached the Tuzla region in the presence of the Dutch battalion from the United Nations, which was
on the spot.
99. The Tribunal found General Krstic and Colonel Blagojevic guilty of complicity in
genocide. The Trial Chamber’s conviction of Colone l Blagojevic has not yet become final. As for
the Judgment concerning General Krstic, the Tribun al found him guilty of complicity in genocide,
without however making clear whether he was the principal perpetrator of the crime and,
particularly, without establishing genocidal intent on the part of General Krstic personally. The
issue before the Tribunal was whether the execu tion of military-age men resulted from genocidal
411 intent or simply from the strictly military intent to weaken or destroy the potential of the army of
Bosnia and Herzegovina. In other words, were the Bosnian Muslims massacred because they were
Muslim or because they represented a military potential at a time when the belligerents were within
reach of carving up the territory of Bosnia and Herzegovina?
100. Admittedly, the massacre itself, whatever its cause and scope, is indubitably a tragedy,
and the lawyer’s concern to assign it its precise ch aracterization may appear inappropriate, but it is
one thing to eliminate prisoners of war in violatio n of the laws of war and another to exterminate a
people for no other reason than the nation, ethnic group, race or religion to which it belongs.
101. A number of commissions of enquiry, including a French parliamentary commission
and a Dutch commission, have looked into this traged y; those of the Dutch military in positions of
authority gave evidence, as did their counterparts in the French force, sin ce the international corps
was then under the command of General Janvier. Th e whole truth has never been brought to light.
Military operations were undoubtedly conducted by the Bosnian Muslims from the enclave against
39
Blagojevic case, Judgement, 21 January 2005, para. 101. - 32 -
neighbouring Serb villages; the Dutch battalion w as possibly held hostage by the Bosnian Muslim
as part of the plan for territorial division then under discussion. This area, where tension was
extreme, was the theatre of atrocities in the extreme.
102. Can it be said in all legal honesty that this crime constitutes, beyond all reasonable
doubt, genocide rather than the war crime consisti ng of the criminal elimination of the enemy
military force? I am well aware that this Court is not a court of appeal for the Tribunal for the
former Yugoslavia and it therefore would not seem necessary to enter into a discussion of the
decisions handed down by the Tribunal against the presumed perpetrators of the acts. The Court
will nevertheless note that the parties are not th e same and this difference in parties to the
proceedings justifies our viewing the decisions of the Tribunal for the former Yugoslavia in a
different light.
103. My honourable colleague Ian Brownlie sai d in clear terms that these acts, committed
during an internal civil war in Bosnia and Herzeg ovina, cannot be ascribed to the Government of
Serbia and Montenegro, which was not a party to the conflict, just as it was not a party to
General Krstic’s trial or to any ot her trial before the Tribunal. In respect of this matter, it must be
noted that the judgment in the Blagojevic case acknowledges that the war in Bosnia and
42 Herzegovina, at least in regard to the Srebreni ca episode, was an intern al civil war. This
conclusion follows ineluctably fro m paragraph599 of that judgment, dealing with the application
of the Geneva Conventions and concluding: “this Trial Chamber does not find any reason why this
general principle should not be applicable also to non-international conflicts” 40. The Tribunal thus
upheld the application of the Geneva Conventi ons to a conflict which it categorized as a
non-international one. If the conflict in Bosnia and Herzegovina, and specifically in Srebrenica,
had been international, the Chamber would not have been confronted with the issue of the
applicability of the Geneva Conventions and the hi story of the dissolution of Yugoslavia and later
of Bosnia and Herzegovina cannot be so regarded.
104. The judgment rendered on 19 April 2004 by the Appeals Chamber of the Tribunal for
the former Yugoslavia in GeneralKrstic’s case es tablished that women, children and old people
40
Blagojevic case, Judgement, 17 January 2005, para. 599. - 33 -
from Srebrenica were evacuated from the enclave through a corridor enabling them to reach
territory controlled by the Government of Bo snia and Herzegovina. The Tribunal’s Appeals
Chamber nevertheless found that this population tran sfer involved genocidal intent. In so finding,
the Tribunal did not seek to determine the main reason for the tragic evacuation from the enclave of
Srebrenica.
105. In 1995, the Dutch battalion, stationed in this region and part of the United Nations
peacekeeping forces, actively took part in the ev acuation of Srebrenica’s civilian population to
territories controlled by Bosnian Muslims. It activel y participated in this with a view not, it would
seem, to genocide but rather to protecting the ci vilian population. If UNHCR’s proposal had been
accepted a few months earlier, many lives would have been saved. But UNHCR’s proposal was
not accepted and its rejection was nothing other than the direct consequence of the struggle among
the warring parties for the conquest of territory.
106. True, a plan to carve up Bosnia and Herzegovina had just fallen through, but the attempt
to obtain territories with homogeneous populations in the newly created States continued. And
remember ⎯ at this point, which I find extremely important ⎯ the failure of that international plan
was against the wishes of Serbia and Montenegro , which did its utmost to achieve the plan’s
43 adoption. And from the time that the plan fa iled there was a complete break between Republika
Srpska and the Republic of Serbia and Montenegro, which was to take a number of retaliatory steps
against Republika Srpska. In particular, the Serb populations of Sarajevo and Tuzla served as
bargaining chips, as it were; these were ultima tely used, as moreover was the Serb population of
Republika Krijina, in Croatia, which was driven from its land. Paradoxically, it was Serbia and
Montenegro which accepted the greatest number of refugees, among whom were a high number of
Bosnian Muslims, notably from eastern Bosnia and in particular from Zepa, another Muslim
enclave captured by the Bosnian Se rbs after the Srebrenica operation. In the indictment in the
Tolimir et al . case, a case dealing with precisely Srebrenica and Zepa, the Prosecutor of the
Tribunal for the former Yugoslavia alleges: “The Muslim men fled to Serbia because they feared
they would be harmed or killed if they surrendered to the VRS.” 41 It logically follows that these
41
ICTY, Prosecutor v. Zdravko Tolimir et al., case No. IT-04-80, Indictment, para. 33. - 34 -
Bosnian Muslims were not afraid to go to Serbia and Montenegro, because that is where they found
refuge.
107. It is therefore patently illogical for Serb ia and Montenegro to have harboured genocidal
intent in this episode, in which it did not par ticipate and as a result of which it later took in a
significant number of refugees and survivors. In tr uth, a complete and impartial investigation into
the events at Srebrenica remains to be undertaken. Especially since recent history is rife with cases
of extermination en masse of pr isoners of war which have never been characterized as genocide.
The best known of these tragedies is certainly that of Katyn, where the Red Army executed all the
Polish officers it had at its mercy. That case has b een the object of much debate, but never of any
prosecution.
(ii) Serious bodily or mental harm
(a) The acts alleged to have constituted serious harm within the meaning of the Genocide
Convention
108. In order to demonstrate genocide involving inhuman acts, the Applicant generally cites
44 rape, torture and the detention camps, which it d escribes as concentration camps. For my part, I
shall concentrate on the detention camps and torture, while rape will be dealt with by my colleague,
Ms Nataša Fauveau-Ivanović.
109. The Applicant considers that genocide is re vealed in particular by the existence of the
camps, which it describes as concentration camps (Memorial, Sect. 2.2.1 and Reply, Chap.5,
Sect.5). However, a number of detention camps run by the Serbs in Bosnia were the subject of
investigation and trial in the Tri bunal for the former Yugoslavia. In no instance was an act
characterized as genocide, although genocide was alleged by the Prosecutor in certain cases.
110. The acts committed in the camps referred to most frequently by the Applicant, namely
Omarska, Keraterm, Trnopolje, Manjaca, the other camps in the region of Bosanska Krajina, and
the Luka camp at Brcko, the Susica camp and the camps at Foca, all featured in proceedings before
the Tribunal for the former Yugoslavia. No conviction for genocide was handed down on account
of any criminal acts committed in those camps.
111. Moreover, the Applicant, in its assessmen t of the camps, makes no effort to identify
those camps where criminal acts capable of constituting genocide were committed. It considers - 35 -
that the conditions in all the camps, without dis tinction, were such as to prove the existence of
genocide.
112. Naturally, we shall not deny that the ca mps in Bosnia and Herzegovina were in breach
of humanitarian law and, in most cases, in breach of the law of war. However, the conditions were
not of the kind described by the Applicant in all th e camps. Thus, in its Reply (Chap. 5, para. 382)
the Applicant alleges with respect to the Manjaca camp:
“The camp held a limited number of women. During their stay in Manjaca they
were raped repeatedly. One young girl was raped in front of her mother and died soon
afterwards. Muslim inmates were also coerced to rape female prisoners. A
14 year-old boy was, for example, forced to have sex with a 60 year-old woman.”
This allegation by the Applicant, reproduced from the report by the United Nations Commission of
Experts, is entirely false. The Manjaca camp, a military camp and a camp with a military tradition,
situated in Bosanska Krajina, never held women or children.
113. Moreover, on the subject of the Manjaca camp, Mr.PaddyAshdown, the High
Representative of the international community in Bosnia and Herzegovina, who in 1992 was the
45
Special Envoy of the United Nations Secretary-Ge neral, had the opportunity to visit Manjaca and
stated on leaving the camp, which is so often c ited by the Applicant for its allegedly genocidal
42
conditions, that the camp was being run correctly . This statement was, moreover, confirmed by
the testimony of a former detainee in the Manjaca camp, a Muslim detainee, who testified before
43
the Tribunal for the former Yugoslavia in the Brdjanin trial . It also emerges from the Brdjanin
trial, at which the Manjaca camp and the conditio ns there were assessed, that a delegation from
Merhamet, that is to say the Muslim humanitarian organization, was able to visit the camp in 1992
and found that “material conditions were poor, espec ially concerning hygiene. But there were no
44
signs of maltreatment or execution of prisoners.” This is the Merhamet report, which one would
expect to be objective at the very least.
114. Although we do not have enough time to expose all the falsehoods contained in the
Applicant’s written pleadings, we are obliged to denounce the allegation that, in 1995, 540 persons,
42
Transcripts in the Brdjanin and Talic case, No.IT-99-36-T, 25 February 2002, p.2226, 26February2002,
pp. 2270-2271; and 5 June 2002, pp. 6714 and 6715.
43
Transcript in the Brdjanin and Talic case, No. IT-99-36-T, 5 June 2002, pp. 6714 and 6715.
4Transcript in the Brdjanin and Talic case, No. IT-99-36-T, 5 June 2002, p. 6713. - 36 -
previously detained at Manjaca, were exhumed from mass graves in western Bosnia (Reply,
Chap.5, para.384). The Applicant would have us believe that, in citing this allegation, it is
reporting the conclusions of the Working Group on missing persons in the territory of the former
Yugoslavia, contained in United Nations document E/CN.4/1996/36. This document does indeed
report the fact that 540bodies were exhumed of persons presumed to have been previously
detained at Manjaca. Contrary to the Applicant’ s allegation, the report says noting definite about
the identity of those persons, their nationality, or the cause or date of their death. The Tribunal for
the former Yugoslavia, in its enquiries concerning this camp, never envisaged that such a high
number of prisoners could have been killed there, and established in the Brdjanin case that the
45
number of persons killed during that entire period was ten .
115. The prosecutor of the Tribunal for the fo rmer Yugoslavia tried to prove that genocide
46 had been carried out in the Keraterm camp. Howe ver, the judges on the Tribunal found that, in the
Prijedor region where the Keraterm camp was situat ed, the total number of victims falling within
the terms of Article4.2 (a), (b), and (c) of the Tribunal’s Statute amounted to approximately
1,000to 1,400Muslims of the 49,351Muslims in the municipality of Prijedor, that is to say
between 2 per cent and 2.5 per cent, and they conclu ded that this percentage would hardly qualify
46
as a “reasonably substantial” part of the Bosnian Muslim group in Prijedor . What is more, the
judges found that the number of Bosnian Muslims or Bosnian Croats detained elsewhere than in the
Keraterm camp, and who were victims within the m eaning of Article 4.2 of the Tribunal’s Statute,
was negligible, and they concluded that “it becomes cl ear that this is not a c ase in which the intent
47
to destroy a substantial number of Bosnian Muslims or Bosnian Croats can properly be inferred” .
116. Moreover, the alleged number of detain ees in these camps is highly exaggerated.
According to the list of camps cited by the Applican t in its Memorial (para.2.2.0.1), more than
300,000 persons are said to have been detained in ca mps by the Bosnian Serbs. This is an unlikely
figure. The fact that this figure is inaccurate is clear from the Applicant’s inconsistencies when it
refers to the number of detainees. In her oral argument on 1 March 2006, Ms Karagiannakis told
45Brdjanin case, No. IT-99-36-T, Judgement, 1 September 2004, para. 440.
46
ICTY, Prosecutor v. Dusko Sikirica (Keraterm) case, No. IT-95-8-T, Judgement on Defence Motions to Acquit,
3 September 2001, para. 72.
47Id., para. 75. - 37 -
you that the number of detainees had amounted to between 100,000 and 20 0,000. Of course,
although 100,000 is a frightening figure, it is s till three times less then 300,000. Moreover, the
mere fact that different figures appear in diffe rent written and oral pleadings by the Applicant
proves that it has not even sought to establish the true number of detainees, so that in actual fact the
figures cited in such a casual manner are highly approximate.
117. There are also considerable discrepan cies in the Applicant’s written pleadings as
regards the number of detainees in a single camp. For example, the number of detainees in the
Omarska camp during the same period (this camp was open from June to August 1992) ⎯ and it
must not be forgotten that these are camps which usually had a rather short lifespan ⎯ is variously
estimated, in the Applicant’s written pleadings , at between 3,000 and 11,000 (Memorial,
para. 2.2.1.4).
47 118. The Applicant alleges that 50 to 60 pe ople were killed every day in the Trnopolje camp
(Reply, Chap. 5, para. 330). Bearing in mind that this camp was open for four months, a simple
calculation would show that the number of persons killed there would be 6,000, a number which,
obviously, is in no way proven by the evidence a nd which, in any case, is extremely unlikely given
the number of prisoners.
119. According to the Applicant, between 1,200 and 2,000 persons were killed at the
Omarska camp in Prijedor, in the Bosanska Krajina region (Memorial, para.2.2.1.4). As the
Applicant is playing with figures, it has to be said that this number of between 1,200 and 2,000
persons is inconsistent with the allegation nevertheless made in th e same paragraph, that ten to
20people were killed every day. If that were true, the total number of persons killed in the
Omarska camp, which was open for three months, woul d be between 900 and 1,800. Finally, in its
Reply (Chap. 5, para.369), the Applicant estimat es the number of persons killed in the Omarska
camp at between 1,000 and 5,000. A reference to the judgment by the Tribunal for the former
Yugoslavia reveals very different estimates of the number of vic tims in the whole of the region
concerned, rather than in a single camp. In the trial of Brdjanin, the official in charge of the
Bosanska Krajina region, the Tribunal’s judgm ent estimates that a total of 1,669 persons 48 were
48
ICTY, Prosecutor v. Radoslav Brdjanin, Judgement, 1 September 2004, para. 465. - 38 -
killed in the entire region, including the camps. So, while the number of the victims of this conflict
is certainly very shocking, it cannot be allowe d to be inflated out of all proportion by the
propaganda of the belligerents.
120. Turning to the other camps, the Applican t claims that between 2,000 and 3,000 persons
were killed in the Luka camp in particular, in the region of Brcko (Memorial, para. 2.2.1.17). In its
Reply, the Applicant inflates the number of alleged victims and puts forward the number of three to
five thousand persons (Reply, Ch.5, para. 398). Although these figures are inaccurate, the
Applicant did not invent them. The Commission of Experts did in fact mention a figure of 2,000
persons killed, as attested by a witness, and concl uded that the final figure could be between 3,000
48
49
and 5,000 . The number of 3,000 killed was also put forward in one of the reports by the Special
50
Rapporteur, Mr. Tadeusz Mazowiecki . However, the judgment rendered on 14 December 1999 in
the Jelisic case puts the number of deaths proved be yond reasonable doubt at 66, while the
51
Prosecutor, for his part, put forward a figure in his indictment, of just over 100 victims . Once
again, the discrepancy in the fi gures demonstrates the unreliability of the different reports when it
comes to the establishment of the facts, because th ose reports were drawn up in the heat of the
moment, without the benefit of hindsight, and in the crossfire of propaganda from the different
belligerents. This discrepancy also demonstrates that the real number of victims was not the
number claimed by the Applicant. Indeed, if the Applicant had taken the trouble to examine one by
one the judgments of the Tribunal for the former Yugoslavia, he could have confirmed this
ghoulish arithmetic, as we ⎯ to our distress ⎯ have done, because the figures are there.
121. Finally, as regards the Luka camp, the Tribunal in the Jelisic case, the only case
concerning the Brcko region that was brought before it, held that the Prosecutor had not provided
sufficient evidence allowing it to be established beyond all reasonable doubt that there existed a
plan to destroy the Muslim group in Brcko or elsewhere, within which the murders committed by
49
Final Report of the United Nations Commission ofExperts, S/1994/674/Add. 2, Vol. I, 28December 1994,
Ann. III.A, Special Forces, p. 142, para. 396.
5Situation of human rights in the territory of the former Yugoslavia, Report submitted by
Mr.TadeuszMazowiecki, Special Rapporteur of the Commi ssion on Hugh Rights, E/CN.4 /1993/50, 10 February 1993,
Ann. II, p. 93, para. 749.
5ICTY, Prosecutor v. Goran Jelisic, Judgement, 14 December 1999, paras. 90-91. - 39 -
52
the accused would allegedly fit . Consequently, although in that case the Prosecutor attempted to
prove genocide, particularly in the Luka camp, his findings were not endorsed by the Tribunal. I
am not, of course, suggesting that you should follow the findings of the Tribunal for the former
Yugoslavia ⎯ you are not bound by its findings, you are not bound by its judgments ⎯ but who
has done a better job of throwing light on this ghastly war than the investigators of the Tribunal,
numerous, precise and meticulous as they are? I be lieve that the facts established by the Tribunal
should serve as a factual basis for the legal character ization of the facts. And the facts established
by the Tribunal concerning the Brcko camp differ substantially from those submitted by the
49
Applicant, and are not evidence of genocide.
122. With regard to the Foca camp, to which th e Applicant refers frequently (Reply, chap. 5,
paras.412-419), alleging particularly grisly cond itions, this camp was the focus of several cases,
53 54
particularly the Kunarac and Krnojelac cases, before the Tribunal for the former Yugoslavia.
But here again, in these cases the Prosecutor did not claim that genocide had been committed in
that camp. The Prosecutor did not bring an indictment for genocide in the Foca camp. It is
obvious that, a fortiori, no conviction for genocide was handed down in connection with the events
that took place in the Foca region.
123. The Applicant also refers to the campaign of terror and torture allegedly carried out in
northern Bosnia and Herzegovina, and cites the indictment issued by the Prosecutor of the Tribunal
for the former Yugoslavia in the Bosanski Samac case (Reply, chap. 5, para. 145). Once again, we
55
are forced to note that this case makes no reference to genocide, nor was genocide alleged by the
Prosecutor. Similarly, we can cite the criminal acts to which the Applicant refers and which were
56
allegedly committed by Dragan Nikolic (Reply , chap.5, para. 85) in the Susica camp , or by
57
DraganGagovic (Reply, chap.7, para.9) in the Foca camp , since no charge of genocide was
either upheld or alleged against those persons. It is, moreover, significant that no charge of
52Id., para. 98.
53
ICTY, Prosecutor v. Dragoljub Kunarac case, No. IT-96-23 and 23/1.
54
ICTY, Prosecutor v. Milorad Krnojelac case, No. IT-97-25.
55ICTY, Prosecutor v. Blagoje Simic et al case, No. IT-95-9.
56ICTY, Prosecutor v. Dragan Nikolic case, No. IT-94-2.
57ICTY, Prosecutor v. Dragan Gagovic case, No. IT-96-23. - 40 -
genocide was ever alleged on the basis of acts perp etrated in the Foca, Susica or Bosanski Samac
camps.
124. Moreover, in order to prove its allegations, the Applicant cites the testimony of former
detainees (Reply, chap.5, paras.84, 104, 108, 113 and 155), the same detainees who testified
before the Criminal Tribunal for the former Yugos lavia. The same detainees whose testimony did
not serve to satisfy that Tribunal that genocide had taken place. The Tribunal heard their testimony
in numerous proceedings. It recorded it, but it did not draw from it the same conclusions as the
Applicant.
(b)The legal definition of serious bodily or mental harm and its application in the
50
present case
125. Serious bodily or mental harm to a person is covered in many natio nal criminal codes.
When directed against a member of a group it may constitute a crime against humanity, and when it
is directed against a national, ethnical, racial or religious group and inflicted with intent to destroy
that group in whole or in part it may constitute genocide.
126. Serious bodily or mental harm has come before the courts, inter alia, in the celebrated
Eichmann case, in which the Jerusalem District Court stated in its judgment of 12 December 1961
that serious bodily or mental harm to member s of a group could be caused by enslavement,
deportation, persecution, detention in ghettos and camps in conditions designed to degrade them
and deprive them of human rights, to elimin ate them and cause suffering, and by torture 5.
However, these acts constitute genocide only if co mmitted with intent to exterminate a group, and
the Jerusalem court decided that all the acts pr eviously mentioned had been committed with the
precise intention of exterminating the Jewish pe ople. The court also decided that these acts
constitute crime against humanity when intent to exterminate a group is not established.
127. The Tribunal for Rwanda has taken the view, inter alia in the Akayesu case, that serious
bodily or mental harm, without limiting itself thereto, means acts of torture, be they bodily or
59
mental, inhumane or degrading treatment or persecution .
58
“Attorney-General of the Government of Israel v. dolph Eichmann”, Israel, Distri ct Court of Jerusalem,
12 December 1961, cited in International Law Reports, Vol. 36, 1968, p. 340.
59
ICTR, Prosecutor v. Akayesu, case No. IT-95-1-T, Trial Chamber, Judgement, para. 504. - 41 -
128. The Tribunal for the former Yugoslavia was even more specific, deciding in the Stakic
case that causing serious bodily or mental harm meant, inter alia, acts of torture, inhumane or
degrading treatment, sexual violence including rape, interrogations combined with beatings, threats
60
of death, and harm that damages health or causes disfigurement or injury .
51 129. Both the ad hoc Tribunals considered that the harm inflicted need not be permanent and
irremediable, but must be serious and long-lasting.
130. However, as the Jerusalem court pointed out when trying the Eichmann case, all these
acts, without the special intent required for genoc ide, constitute crimes against humanity. Only
acts committed with the particular intent to destro y a national, ethnical, religious or racial group in
whole or in part will constitute the crime of genocide.
131. It should be noted that the intent must be specifically directed towards the destruction of
the group; a mere discriminatory intent is not enough. Rapes, torture and other inhumane acts
committed with discriminatory intent would constit ute crimes against humanity, persecution. The
Trial Chamber of the Tribunal, Judge Antonio Cassese presiding, decided in the Kupreskic case
that persecution as a crime against humanity was the same kind of criminal act as genocide.
“Both persecution and genocide are crim es perpetrated against persons that
belong to a particular group and who are targeted because of such belonging…. To put
it differently, when persecution escalates to the extreme form of wilful and deliberate
acts designed to destroy a group or part of a group, it can be held that such persecution
amounts to genocide.” 61
This shows once more the difference of degree and the importance of genocidal intent, a genocidal
plan.
132. In the present case no one denies that gr eat suffering was inflicted on the civilian
population of Bosnia and Herzegovina. No one deni es, and above all we do not deny, that the acts
committed often amounted to serious bodily or mental harm to members of that population.
However, your Court cannot confine itself to recording the sufferings of the population, the acts of
torture, the rapes; it must establish that all these su fferings were inflicted with intent to destroy a
national, ethnical, racial or religious group. At this point in our proceedings this has not been
60
Stakic case, Judgement, 31 July 2003, para. 516.
6Prosecutor v. Zoran Kupreskic et al.case No. IT-95-16-T, Trial Cham ber, Judgement, 14January 2000,
para. 636. - 42 -
demonstrated. What has been demonstrated is the existence of serious crimes, committed in a
particularly complex situation, in a civil and fratricidal war. But without this genocidal intent there
is no crime of genocide.
52 (iii) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part
(a) Facts alleged by the Applicant to constitute conditions of life calculated to bring
about the physical destruction of the group in whole or in part
133. The Applicant maintains in its Reply (Chap. 5, para. 168) that all the atrocities suffered
by the Muslim population during that war can be put in the category of deliberately inflicting on
the group conditions of life calculated to bring abou t its physical destruction in whole or in part,
and it refers in particular to laying siege to to wns, bombarding the civilian population, deprivation
of food, deportation and expulsion.
134. However, most of these events took place in a context which is unfortunately a context
of war and which affected the entire population, wh atever its origin. We cannot but agree with the
Applicant when it states in its Reply (Chap. 5, para. 168) that it is obvious that in any armed
conflict the conditions of life of the civilian population deteriorate.
135. The civilian population suffers in any wa r. But proclaiming these sufferings is not
enough. The state of war itself must be examined.
(b) The context: the state of war
136. The alleged genocide was committed in the context of an armed conflict, in a war, and
in a civil war into the bargain. Of course, genocide can be committed both in a state of war and in
a context of peace. However, when we find ourselv es in a context of war, and of fratricidal war,
the realities of that state of war, and in particular the risks run by the civilian population, must be
taken into account. In this context, displaceme nt of a population is sometimes necessary, and the
Geneva Convention even makes such displacement s obligatory. Thus Article 17 of the Geneva
62
Convention relative to the Protection of Civilian Persons in Time of War provides:
62
Adopted by the Diplomatic Conference for the Establishment of International Conventions for the Protection of
Victims of War, held in Geneva from 21 April to 12 August, 1949, entry into force 21 October 1950. - 43 -
“The Parties to the conflict shall endeavour to conclude local agreements for the
removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons,
children and maternity cases, and for the pass age of ministers of all religions, medical
personnel and medical equipment on their way to such areas.”
53 This is what UNHCR had proposed for the Srebrenica region.
137. Without dwelling on the fact that this Article imposes a duty on all parties to the
conflict, and therefore on the Applicant also, we can see the logic of this provision, which
impliedly recognizes that the civilian population is inevitably in danger in an armed conflict.
Article 49.2 of the Convention provides that:
“the Occupying Power may undertake total or partial evacuation of a given area if the
security of the population or imperativ e military reasons do demand. Such
evacuations may not involve the displacement of protected persons outside the bounds
of the occupied territory ex cept when for material reasons it is impossible to avoid
such displacement. Persons thus evacuated shall be transferred back to their homes as
soon as hostilities in the area in question have ceased.”
138. In its Advisory Opinion in the case concerning the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory , given on 9 July 2004, this Court
observed that “the applicable international hum anitarian law contains provisions enabling account
to be taken of military exigenci es in certain circumstances” ( Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 135).
139. Finally, the Geneva Convention demonstrates that it is sometimes difficult in wartime to
make a distinction between the evacuation of th e population, which is obligatory, and forced
transfer, which is forbidden, because Article 49.3 lays down the conditions that most be respected
both in the event of transfer and in the event of evacuation. That Article provides:
“The Occupying Power undertaking such tr ansfers or evacuations shall ensure,
to the greatest practicable extent, that proper accommodation is provided to receive
the protected persons, that the removals ar e effected in satisfactory conditions of
hygiene, health, safety and nutrition, and that members of the same family are not
separated.”
140. It should also be recalled that displacement of populations has always been a way of
settling certain conflicts between opposing parties and that there have been many population
displacements in history following an armed conflict. Thus displacement of populations, far from
being a crime, is often the peaceful solution adopte d to settle a conflict or dispute between States,
as well as a way of preventing fresh conflicts. Af ter the Great War, and indeed in the Balkan
54 region, there were a number of international c onventions which contained clauses relating to the - 44 -
exchange of populations. To mention only those concerning the Balkans, there is the convention
for the exchange of Greek and Turkish populations concluded in Lausanne on 30 January 1923 and
the Convention between Greece and Bulgaria resp ecting Reciprocal Emigration, signed on the
basis of the Peace Treaty concluded between the Principal Allied and Associated Powers and
Bulgaria.
141. The Permanent Court of International Justi ce, predecessor of this Court, had to rule on
these two conventions. Thus the Permanent Court confirmed that the Convention between Greece
and Turkey was lawful, although it stressed that this practice ran counter to the generally
recognised rights of individuals. The Conventio n between Greece and Turkey provided for a
compulsory exchange, i.e., a forced transfer. Af ter four years of war the international community
took the view that it was better to displace the popula tions than to maintain what could become the
source of a subsequent conflict.
142. The Greco-Bulgarian Convention on Emigration was signed for the same purpose;
nevertheless, although signed on the basis of Ar ticle 56, paragraph 2, of the Peace Treaty
concluded between the Allied Powers and Bulgaria, it forms part of the provisions relating to the
protection of minorities. In its Advisory Opinion on this Convention, given on 31 July 1930, which
clearly refers to the dissolution of ethnic a nd religious communities, the Permanent Court of
International Justice ruled:
“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
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.” ( The Greco-Bulgarian communities, Ad visory Opinion, 1930, P.C.I.J.
Series B, No. 17, p. 17.)
143. This Advisory Opinion by the Permanent Court of International Justice affects our
region, and the dispute on which you are to rule af fects our region. Today, a century later, the
Advisory Opinion by the Permanent Court of International Justice has unfortunately lost none of its
topicality, and its use in the overall settlement of the Yugoslav conflict would probably have saved
many lives. - 45 -
144. Displacements of persons accompany all conflicts. Article XIII of the Potsdam
Protocol stemming from the Potsdam Conference held after the Second World War, from 17 July to
2August 1945, provided for the transfer of the German population from Poland and
55 Czechoslovakia. Other German population transf ers from the countries of Eastern Europe took
place after the Second World War. These transfers were carried out against the will of the German
people, but no-one has ever had the idea of describing these transfers as genocide. Equally those
who carried out the transfer of the German population, those who assisted it and those who
approved it certainly did not have the intention of destroying the German people, although this
transfer meant that in certain cases German people disappeared from certain regions.
This, Madam President, Members of the Court, is what I wanted to convince you of this
morning, and I thank you for your attention.
The PRESIDENT: Thank you, Maître de Roux. The Court now rises, and the hearings will
resume at 10 o’clock tomorrow.
The Court rose at 1 p.m.
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