Corrigé
Corrected
CR 2014/22
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Thursday 27 March 2014, at 3 p.m., at the Peace Palace,
President Tomka presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2014
Audience publique
tenue le jeudi 27 mars 2014, à 15 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of Law, Universi ty College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good afternoon. Please be seated. The sitting is now open. The Court
meets this afternoon to hear Serbia begin its second round of oral argument. Judge Gaja, for
reasons that have been explained to me is unable to sit today and tomorrow. I shall now give the
floor to the Agent of Serbia, Mr. Obradović. You have the floor, Sir.
Mr. OBRADOVIĆ: Thank you, Mr. President.
INTRODUCTION TO THE SECOND ROUND OF ORAL ARGUMENTS
OF THE R EPUBLIC OF SERBIA
1. Mr. President, distinguished Members of the Court, I am honoured to open the second
round of oral arguments of the Republic of Serbia. I have a task to address you in relation to three
short points before I respectfully ask you to give the floor to our counsel and advocates. The
schedule of our presentation is, first, my topics; a general view to the Applicant’s case,econd;
and, the issue of evidence, in brief, the last one.
Schedule of presentation
2. Following my introductory words, Professors Zimmermann and Tams will re -address the
issue of relevance of the events pre- dating 27 April 1992 for the Applicant’s claim in light of the
arguments advanced by Professor Crawford last week, as well as the issues concerning the
obligations to prevent and punish the crime of genocide. Mr. Jordash will continue our oral
arguments today and tomorrow morning with regard to the factual and legal rebuttal to the Croatian
claim. Professor Schabas will deal with some specific legal arguments, as the interpretation of the
Genocide Convention in light of the 2007 Judgment of this Court and the question of standard of
proof raised by t he Applicant in the second round, including the first question of
Judge Cançado Trindade. Mr. Lukić and Mr. Ignjatović will briefly address the rest of the issues of
attribution concerning the JNA and paramilitaries. Tomorrow afternoon, Professor Schabas and
Mr. Jordash will rebut the Croatian arguments concerning the Serbian counter -claim. The question
of Judge Bhandari will be also answered during that sitting. I will finish our presentation with
some closing remarks about victims, including the respo nse to the question of
Judge Cançado Trindade, concerning the missing persons. - 11 -
Reconciliation based on historical facts
3. Mr. President, the first round of these hearings was concluded with some remarkable
words of the Croatian Agent,Professor Crnić-Grotić, who pleaded for reconciliation that, however,
“must be based on historical facts” 1. We could not agree more. That could be a leitmotif of my
further presentation.
4. Thus, I would commence with recalling the statement of the fo rmer Agent of Croatia,
Professor Šimonović, that this case was submitted to your jurisdiction in 1999 as an attempt to
“paralyze cases against Croatians at the ICTY” 2. It is a historical fact that was not denied by our
distinguished opponents. And how could it be?
5. In doing so, Croatia in this case had to demonize Serbs as I explained in the first
round their policy in the 1990s and to blow up allegations on individual crimes that were
certainly committed against the Croat civilians. The allegatio ns are not enough; at a court of law,
they must be based on evidence. Some help was found in the documents fabricated by the Croatian
3
police during the war . And when we place on record different views, the Applicant’s side offends
us as genocidal deniers, and accuses us for “a revisionist history”, “a false historical narrative” and
“factual manipulations”. However, if we say something that sounds acceptable to our opponents,
they quickly approach the roster stating “This is an admission” “That is a concession” as
if we were in a childish game rather than before the principal judicial organ of the United Nations.
6. Indeed, what is the “game” played by the Applicant in this case? At the very beginning of
4
the first round the Applicant establishe d a mantra: “Genocide is not a numbers game” . In that
sense, Professor Sands “improves” the theory of substantiality requirement by the following
statement:
“The intention [as the element of the crime of genocide ] is connected to the
location of an a rea, to the group that is there located, and to the opportunity. The
location can be a state, or a region, or a town, or a village, or a hamlet, or even
something smaller.” 5
1
CR 2014/19, p. 17, para. 20 (Crnić-Grotić).
2
CR 2014/14, p. 11, para. 10 (Zimmermann).
3CR 2014/17, pp. 61 and 62, paras. 23-27 (Obradović).
4
CR 2014/5, p. 18, para. 8 (Crnić-Grotić); CR 2014/8, p. 49, para. 4 (Seršić).
5
CR 2014/6, p. 22, para. 31(Sands). - 12 -
How much smaller? It is not quite clear; but anyway, his offer for so broad an interpretation of the
Genocide Convention is a very inventive approach which would undoubtedly, if accepted by the
Court, push many State clients to knock on the door of the skilful barristers.
7. However, when I thought that I understood what the Appli cant’s approach to this case
was, Professor Sands all of a sudden departed from the thesis of genocide limited to a hamlet or
something smaller, claiming that “a large number of genocidal acts” were committed in the
occupied regions, which were “very large regions by any standard” 6. So, no hamlets, no limited
areas. “The intention was plain and simple”, he said, “to destroy the Croat communities in their
entirety, and this was largely achieved” 7. The allegations became more and more serious. “Town
after town” he claimed “Serb forces sought out, identified and then executed Croat civilians
8
who hid from the carnage just because they were Croats” . The other counsel for Croatia continued
in the same manner: “Croats were starved, beaten, hanged, stabbe d, mutilated, castrated and
9
hacked to death with axes, because they were Croats” .
8. Was it really the case? How many of them were hanged, mutilated and castrated? This
sort of rhetorical exaggeration blurs the real suffering of many individual victims of that war,
Croats and Serbs, those who necessarily are forgotten in this false genocide narrative.
9. Sir Keir Starmer said: “[T]he men were separated from the women and children [in
Vukovar], and most were transported to the torture and death camps in other places, particularly in
10
Serbia.” This is untrue. There was not a single camp in Serbia designated for killing. At its
highest, one domestic indictment in Croatia contained the allegation of 12 murders of Croatian
11
prisoners of war committed in the whole territory of Serbia , which is incomparable with the
Holocaust definition of death camps, the examples of which are Auschwitz -Birkenau in Poland or
12
Jasenovac in Croatia . But Serbia, as I said, had to be demonized. That was the 1999 vision of
6CR 2014/6, p. 54, para. 1 (Sands).
7
Ibid., p. 56, para. 10 (Sands); emphasis added.
8
Ibid., p. 64, para. 37 (Sands).
9CR 2014/8, p. 25, para. 67 (Ní Ghrálaigh).
10Ibid., p. 35, para. 26, (Starmer); emphasis added.
11
Indictment of the County State Attorney in Osijek, No. K-DO-51/08 dated 11April 2011.
12http://en.wikipedia.org/wiki/List_of_Nazi_concentration_camps. - 13 -
President Tudjman whose hostages seem to be our colleagues from the other side of the Bar still
today. Professor Lapaš so added: “There are too many incidents about which the Respondent still
refuses to divulge information, especially those that took plac e in prison camps within Serbia.” 13
This is a very severe accusation of Serbia’s current Government. On the other hand, it seems like
an excuse for the lack of serious evidence in support to the Applicant’s allegations. However, I am
in doubt whether this would be the best approach to the “reconciliation based on historical facts”.
Issue of evidence in light of the question posed by Judge Greenwood
10. Mr. President, in the first round of oral arguments, I prepared a sample analysis of the
14
shortcomings of evidence on which the speech of Professor Sands was based . Another speech of
the Croatian Agent containing the terrible allegations on rapes, torture and imprisonment was the
15
subject of a new review that I submit to your attention today in the form of the judges’ folders .
The complete analysis can be found in the Counter-Memorial and Rejoinder 16.
11. In answering the question posed by Judge Greenwood concerning the admissibility of
unsigned statements before the domestic Croatian courts, Professor Crnić-Grotić apparently was
17
not quite comprehensible . Although she admitted that the police statements by the way, the
question was about unsigned statements that the police statements were not themselves
admissible in the court proceedings in Croatia, she tried to give some mitigating explanations
blurring the core issue. Members of the Court, there has never been such a thing as “police witness
18
statements” in Croatia, as Madam Agent stated. Those were simple police reports containing
information collected by the police. Those police reports signed or unsigned could not be
admitted into evidence before the courts in Croatia, as I have already explained in the first round of
our oral pleadings 19. It is now confirmed by the Croatian Agent. Accord ing to the Croatian
13CR 2014/10, p. 12, para. 7 (Lapaš).
14
Judges’ folders of 10 Mar . 2014: A sample review of the quotes and their sources vis-à-vis CR 2014/6,
pp. 56-62, paras. 13-30 (Sands; The ethnic purpose of the Respondent’s campaign).
15Judges’ folders of 27 Mar. 2014: A sample review of the sources of evidence vis-à-vis CR 2014/10, pp. 20-32
(Crnić-Grotić; Rapes, torture, imprisonment and deportations with intent to destroy ).
16Counter-Memorial of Serbia (CMS), paras. 153-158; see also, Rejoinder of Serbia (RS), paras. 245-263.
17CR 2014/21, pp. 33-34 (Crnić-Grotić).
18
In Croatian, Službena zabilješka, The OfficialRecord.
19CR 2014/13, p. 62, para. 27 (Obradović). - 14 -
Criminal Procedure Code, the police authority may not examine citizens as witnesses 20. It is a
procedural safeguard. Moreover, any information given by the citizens to the police shall be
excluded from the Court’s file by the investiga ting judge 21. However, it seems that for the
Applicant in this case, the police authority is still the supreme fact finder. The Croatian counsel
thus reminds us that 188 witnesses allegedly confirmed authenticity of their unsigned statements
22
“in the presence of a police officer” . Why do we not go then to that police officer to solve our
dispute? Why are we before the United Nations Court? Mr. President, we remain at our position
that documents prepared by the Party, especially for the case of so except ional gravity, is
inappropriate to be taken as convincing evidence 23.
12. Furthermore, the Applicant has ignored my argument from the first round t hat witnesses
like Ms Marija Katić cannot give the probative weight to all other witness statements 24. And after
all, should it be the case with witness Marija Katić? With great respect, it seems that the Applicant
forgot the question of Judge Greenwood to that witness, as well as many new details that appeared
in her live testimony compared with the unsigned written statement given by three persons
altogether. This is not a convincing example that such police statements should be of any
assistance to the Court.
13. However, the Agent of Croatia did not answer the question concerning the admissibility
of unsigned statements, whoever produced them. Let me be brief and clear: if a party appears
before the court in Croatia, or elsewhere in the former Yugo slavia, with a piece of paper claiming
that it is an out-of-court witness statement, which is unsigned, and request the court to admit it into
evidence without calling witness for live testimony, any judge in Croatia, or elsewhere in the
former Yugoslavia, would dismiss that request finding that the statement in that form is prima facie
without any probative weight. For that reason, it is inadmissible.
20
Criminal Procedure Code of the Republic of Croatia, Art. 208 (4); trans lation into English available at:
legislationline.org/.../id/.../Croatia_Criminal_proc_code_am2009_en.pdf.
21Ibid., Art. 86 (3).
22CR 2014/20, p. 30, para. 10 (Ní Ghrálaigh).
23
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 201, para. 61.
24CR 2014/13, p. 59, para. 18 (Obradović); CR 2014/20, p. 30, para. 12 (Ní Ghrálaigh). - 15 -
14. If these Croatian unsigned statements, either from police or from unknown sources, were
really the “basis” for the decisions of domestic judges to open investigations, as Madam Agent
suggests, Croatia would furnish those statements from the Court’s files, as it did in several cases
that were not disputed by the Respondent. But only in several cases.
15. From the other point of view, if these Croatian unsigned statements were really
25
confirmed by evidence accepted by the ICTY, as claimed , Croatia would submit that ICTY
evidence. Indeed, where are the witness statements given before the ICTY that conta in the
testimonies as “all Ustasha would be killed” or that Serb units were ordered to “kill and slay every
living creature of Croat origin”? 26 We cannot see such ICTY witness statements or findings in
these proceedings. Please do not tell me that our Cro atian colleagues have forgotten to produce
them, as they “forgot” to ask their “witnesses” whether they feel “a genuine security risk” when
they were asking the Court to protect their names from publication in these proceedings. Excuse
me, but I could not believe them.
Allegation that Serbs killed the Serbs
16. Demonization of the Serbian side in the conflict is presented also by arguing that Serbs
commonly killed other Serbs. While Croatia admits only that “individual crimes were committed
27
in the cours e of Operation Storm” , it claims that Serbs were those who committed the most
horrific crimes including those in the Croatian final operation. Thus, Ms Singh has stated with
confidence that “a representative of the Croatian Helsinki Committee relied on so heavily by the
Respondent testified at the Gotovina trial that 100 Serb civilians were run over by Serbian tanks
fleeing Sector North” 28.
17. That representative was no one else but Professor Žarko Puhovski, the statement of
whom was indeed quoted by our side. But did he really say it? The relevant part of his testimony
before the ICTY is now on your screen. I quote:
25
Only four examples have been shown: see CR 2014/20, p. 31, para. 13, fn. 63 (Ní Ghrálaigh).
26See judges’ folders of Serbia dated 10 Mar. 2014.
27CR 2014/19, p. 17, para. 21 (Crnić-Grotić); emphasis added.
28
Ibid., p. 33, para. 35 (Singh). - 16 -
“Mr. Mišetić [defence counsel for accused Gotovina]
Question. Now, Mr. Puhovski, do you have, first of all, any information about
the number of people that may have been run over there in that column of refugees?
Answer. I cannot tell you anything with any degree of certainty. I seem to
recall the figure of 82 from the report of the RS Helsinki Committee. However, I saw
that report a number of years ago, and I don’t know whether it is correct. What I am
certain though that it was 100. I couldn’t verify it any further.”
18. Hence, the original information comes from “the RS Helsinki Committee”. RS can be
the Republic of Sr pska, but its Helsinki Committee was established in 1996, one year after
Operation Storm. RS can also be the Republic of Serbia, in which case the organization would be
that one led by Ms Sonja Biserko. However, Professor Puhovski did not confirm that information
as correct, nor has the ICTY ever come to a finding on this, nor does any serious report contain that
finding. The Court deserves an apology by the Applicant for the incorrect and obviously
misleading reference to the ICTY statement of Mr. Puhovski.
19. Mr. President, it happens rarely that you have before you so divided parties as is the case
now. Solving this dispute, the Court will meet the very substance of its main objective.
I would kindly ask you now to give the floor to Professor Andr eas Zimmermann, who will
address another important preliminary issue.
The PRESIDENT: Thank you very much, Mr. Obradović. I call on Professor Zimmermann.
You have the floor, Sir.
Mr. ZIMMERMANN:
PART 1
I. Introduction
1. Mr. President, Members of the Court, last week you heard Prof essor Crawford tell you a
fairy tale a fairy tale about two law professors appearing in two ICJ cases, one of them not even
charging fees which in itself shows that it could have been nothing but a fairy tale anyhow.
29Gotovina et al., Trial Transcript, p. 15975; emphasis added. - 17 -
2. Yet that was nothing but a fairy tale not the reality of international law. Instead of
coming up with a mock case, counsel for Croatia should have rather referred you to a real decision
that was rendered only 100 met res away from here in the Small Hall of Justice. H e should have
referred you to this real case decided by the Eritrean -Ethiopian Claims Commission because it has
so much in common with the proceedings at hand 30.
3. For one the case involved two States, one of which, Eritrea, had come into existence as the
result of the fight of an insurrectional movement against the territorial State. A real insurrectional
movement and a successful one.
4. What is more is that the case relates, just like the case at hand, to an ethnically -driven
armed conflict involving serious violations of international humanitarian law. And it relates to
alleged violations of, inter alia, the Geneva Conventions , which, as you have confirmed in your
Wall Opinion, have as much an erga omnes character as the Genocide Convention 3.
5. Furthermore, just as in the present case, the temporal scope of the treaty, the Geneva
Conventions, was in dispute. Ethiopia had been bound by the Geneva Convention s since 1969.
Eritrea, however, had only become bound by the Conventions as late as August 2000, several years
after it had come into existence.
6. Unlike in your Georgia v. Russia case, automatic succession to the Geneva Conventions
was pleaded by the parties but the Claims Commission rejected it.
7. Obviously, in both cases the relevant treaties the Geneva Conventions in
Ethiopia-Eritrea and the Genocide Convention in our case had previously been applicable to the
respective predecessor States before the successor States, Eritrea and Serbia, came into existence.
And the Geneva Conventions had, just like the Genocide Convention, been applicable throughout
the entire territory of E thiopia prior to Eritrea’s secession. Nevertheless, the Claims Commission
still found that there was no continuity of treaty obligations. Indeed, it even found that Eritrea
unlike Serbia had only become bound several years after its independence. To use Croatia’s
30Prisoners of War Eritrea’s Claim 17 (The State of Eritrea v. The Federal Democratic Republic of Ethiopia),
Partial Award, 1 July 2003, Eritrea-Ethiopia Claims Commission; available at: http://www.pca-
cpa.org/showpage.asp?pag_id=1151.
31
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territ, Advisory Opinion,
I.C.J. Reports 2004 (I), p. 199, para. 155. - 18 -
terminology, the Claims Commission did thus accept a huge gap in the applicability of the Geneva
Conventions, which in cases of armed conflicts are, I submit, as important as the Genocide
Convention.
8. The result reached by the Claims Commission then, in turn, raised the obvious question of
a possible retroactive application of the Geneva Convention s. Despite what Croatia would
certainly call a customary law mooring of the Geneva Conventions, and despite their obvious
humanitarian and erga omnes character, the Claims Commission still found that the Geneva
32
Conventions did not apply retroactively . Again, no continuity of treaty obligations.
9. What is, however, fundamental, even if Professor Crawford might probably again call it
33
banal , is this: unlike in our case , Ethiopia and Eritrea had also empowered the Claims
Commission to determine possible violations of customary law . Under these circumstances, the
Claims Commission in Ethiopia and Eritrea could then make findings on violations of customary
law violations of customary law that had occurred prior to the entry into force of the relevant
treaty34.
10. So, it is customary international law that provides for continuous legal protection even
where the treaty is not yet in force. And nothing precludes international courts and tribunals to
pronounce on violations of customary law if they have jurisdiction to do so.
11. In our case, too, the customary law prohibition of genocide continuously applied. The
only difference is that in our case the Court’s jurisdiction is limited to making findings as to
violations of the Genocide Convention. But would really the Ethiopian Eritrean Claims
Commission have been able to pronounce on violations of the Geneva Conventions if the parties
had limited its jurisdiction to breaches of treaties of course not. The Geneva Conventions were
not applicable. So perhaps our case is not as sui generis as Professor Crawford wants it to be.
32Prisoners of War Eritrea’s Claim 17 (The State of Eritrev. The Federal Democratic Republic of Ethiopia) ,
Partial Award, 1 July 2003, Eritrea-Ethiopia Claims Commission, p. 9, para. 38, as well as pp. 10-11, para. 42, available
at: http://www.pca-cpa.org/showpage.asp?pag_id=1151 .
33CR 2014/21, p. 17, para. 31 (Crawford).
34
Prisoners of War Eritrea’s Claim 17 (The State of Eritrev. The Federal Democratic Republic of Ethiopia) ,
Partial Award,1 July 2003, Eritrea-Ethiopia Claims Commission, p. 9, para. 38, as wel l as p. 9, para. 38, available at:
http://www.pca-cpa.org/showpage.asp?pag_id=1151 . - 19 -
12. Mr. President, this is the reality of international law, argu ed and decided just 100 metres
from here in the Small Hall of Justice rather than the fairy tale you heard last week in this Great
Hall of Justice.
13. And it is this reality that forced Croatia to request the Court to overrule itself on issues of
temporal jurisdiction and on standing developed in Georgia v. Russia and Belgium v. Senegal. In
the last round of Croatia’s oral pleadings there was however a novelty. A n unveiled attempt by
Professor Sands, and by Professor Crawford, to threaten the Court. Bo th told you that the Court
would become “ irrelevant” 35, or that it would be “ sidelined” 36 should it not follow Croatia’s
arguments in this case. Yet, as the saying has it, fear is a bad adviser.
14. What is more , Croatia attempted to threaten the Court in a case that has been brought
with a very peculiar form of dolus specialis, namely the intent to instrumentalize this Court to
paralyse ICTY cases against Croatian State officials.
15. Members of the Court, after a week of oral pleadings, Croatia now formally claims that it
can also prove acts of genocide occurring after 27 April 1992. Obviously, events after that date
come within the Court’s temporal jurisdiction just as the crimes committed by Croatia during
37
Operation Storm in 1995. Still, as acknowle dged by Croatia’s former Agent himself , Croatia’s
case largely depends on acts pre-dating the critical date. Serbia is fully convinced that no genocide
at all was committed in Croatia in 1991 and 1992. Still it insists that the Court must, first and
foremost, determine the scope of its jurisdiction and the admissibility of Croatia’s case, before then
dealing with the merits of Croatia’scase.
II. Croatia’s disregard for its own behaviour
16. Mr. President, while 27 April 1992 constitutes a watershed for the Court’s jurisdiction in
this case, there is complete continuity in these proceedings on one respect: this is Croatia’s
complete disregard for its own prior behaviour. Croatia itself has for years and indeed
successfully rejected the very idea of continuity of treaty oblig ations when it came to the
FRY/Serbia, and it did so specifically concerning human rights treaties.
35
CR 2014/20, p. 19, para. 19 (Sands).
36CR 2014/21, p. 17, para. 30 (Crawford).
37
See CR 2014/14, p. 10, para. 3 (Zimmermann). - 20 -
17. Let me give you but some examples, i nter alia, in 1994, in a letter addressed to the
Secretary-General of the United Nations, Croatia stated that it would only accept the FRY/Serbia as
a party to treaties of the former SFRY provided that a notification of succession was eventually
forthcoming and it would only accept the FRY as a party with effect of 27 April 1992. Croatia,
obviously, was then not concerned with the continuity of treaty obligations as it now seems to be
for the purpose of this case, and for this purpose only. As Croatia then put it in 1994 and as you
will see: [Slide on]
“[i]f the Federal Republic of Yugo slavia (Serbia and Montenegro) expressed its
intention to be considered . . . a party, by virtue of succession to the Socialist Federal
Republic of Yugoslavia, to treaties of the predecessor State with effect from
27 April 1992, the date on which the Feder al Republic of Yugoslavia (Serbia and
Montenegro) as a new State, assumed responsibility for its international relati38s, the
Republic of Croatia would fully respect that notification of succession”. [Slide off]
18. To provide you with a further illustr ation of the Croatian position on the matter, let me
mention an aide-memoire of January 1994 in which the Permanent Mission of Croatia to the United
Nations stressed:
“Since the . . . ‘Federal Republic of Yugoslavia ’ (Serbia and Montenegro) has
not notified the Secretary-General of its succession to the International Convention on
the Elimination of all Forms of Racial Discrimination as one of the successor States of
the former SFRY, it cannot be considered as one of the parties to the said
Convention.” 39
That was 1994, Croatia considered the FRY not to be a party of CERD.
19. Again, no sign of claimed continuity of treaty obligations, even with regard to most
fundamental human rights treaties such as CERD.
20. As a result of Croatia’s in sistence, th e FRY /Serbia, was frequently barred from
participating in meetings of contracting parties of human rights treaties 4. It seems Croatia was
38
Letter dated 16 February 1994 from the permanent representative of Croatia to the United Nations addressed to
the Secretary-General, UN doc. S/1994/198, p. 3; see also, Preliminary Objections of Yugoslavia (POY), Ann. 9;
emphasis added.
39Note Verbale dated 14 January 1994 from the Permanent Mission of the Republic of Croatia to the United
Nations addressed to the Secretary General, UN doc. CERD/SP/51, p. 3; see also, POY, Ann. 15; emphasis added.
40
Ibid., p. 8. - 21 -
then not so much concerned with time gaps in protection. In a letter dated 30 January 1995, again
from the Permanent Representative of Croatia to the United Nations , Croatia again stated:
“[t]he representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro)
have been p revented from participating in . . . conferences of State parties to
multilateral treaties . . . (i.e., . . . Convention on the Right s of the Child, International
Convention on Elimination of All Forms of Racial Discrimination, International
Covenant on Civil and Political rights, etc.) as the Federal Republic of Yugoslavia
(Serbia and Montenegro) had . . . tried to participate in international forums as a State
party without having notified its succession . . .”
21. Again, no claim of continuity quite to the contrary: Croatia always insisted on
discontinuity. What is however most telling, is how Croatia then perceived the legal effect of any
eventual succession, by the Respondent, to human rights treaties such as the Genocide Convention.
As Croatia stated it: [slide on]
“Should the Federal Republic of Yugoslavia (Serbia and Mont enegro) express
its intention to be considered a party, by virtue of succession, to the multilateral
treaties of the predecessor State with effect as of 27 April 1992, the date on which the
Federal Republic of Yugoslavia (Serbia and Montenegro), as a new State, assumed
responsibility for its international relations , the Republic of Croatia would take note
of that notification of succession.” 42 [Slide off]
22. Mr. President, Members of the Court, Croatia consistently took the position that the FRY
would only become bound by the date you have by now heard so often and I apologize for that,
namely 27 April 1992. And where was Croatia’s claim for continuity then when, as
Professor Crawford put it, it was needed most? And does Croatia’s insistence on continuit y now,
when it is serves its purposes in this case, not ring a little hollow?
III. Position taken by third States and the Court
23. As shown, Croatia’s position as then taken was shared by all relevant stakeholders,
43
including the Arbitration Commission of the Peace Conference of the Former Yugoslavia .
24. Let me just give you one more example : it relates to the reaction of Bosnia and
Herzegovina to Serbia’s attempt to accede to the Genocide Convention in 2001.
Bosnia-Herzegovina stated that the “Agreement on Succession Issues” of 2001 concluded by the
41
Letter dated 30 Jan. 1995 from the Permanent Representative of Croatia to the United Nations , addressed to the
Secretary-General, UN doc. A/50/75-E/1995/10, 31 Jan. 1995; see also, POY, Ann. 10; emphasis added.
42Ibid.; emphasis added.
43
See CR 2014/14, p. 14, para. 28 (Zimmermann). - 22 -
successor States of the former Yugoslavia which obviouslyCroatia, as a contracting party to
and Bosnia stated, that agreement:
“implies that the Federal Republic of Yugoslavia has effectively succeeded the former
Socialist Federal Republic of Yugoslavia as of 27 April 1992 as a Party to the
Genocide Convention“. 44
Bosnia then went on and stated: [slide on] “27 April 1992 [is] the day on which FRY [sic!] became
bound to [sic!] the Genocide Convention . . .” 45 [Slide off]
25. Mr. President, l et me now consider what this Court , what you said on the matter.
Professor Crawford claimed that your 2008 J udgment was irrelevant, quoting its paragraph 129 46.
Let us see what you stated there. You confirmed that 27 April 1992 is to be considered and you
will see it on the screen: [slide on] “27 April 1992 is the date on which the FRY came into
47
existence as a separate State, capable of being a party in its own right to the Convention” . [Slide
off]
26. The sole question, according to the Court, that remained was the “question of the
applicability of the obligations under the Genocide Convention to the FRY before 27 April
48
1992” .
27. But if the Respondent State as you put it, as the 2008 Judgment put it had not even
been capable of being a party to the Genocide Convention before the date , this question can then
only be an issue of the retroactive application of the treaty.
IV. No gap in protection
28. Mr. President, Croatia has argued that if one wer e to follow Serbia’s argument on issues
of jurisdiction, States would enjoy impunity when genocide is committed in times of transition 49.
44
Communication of Bosnia-Herzegovina to the Secretary-General dated 27 Dec. 2001 regarding the accession of
Yugoslavia to the Genocide Convention, Endnote 14 of the Convention, available at: https://treaties.un.org/
pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en.
4Ibid.
4Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 460, para. 129.
4Ibid.
48
Ibid.
4CR 2014/21, p. 22, para. 43 (Crawford). - 23 -
5051
29. What, however, Croatia disregards is that, as this Court has stressed time and again , a
lack of jurisdiction does not mean that States are freed from their obligations under either
customary law or under the Genocide Convention.
30. Croatia also disregards the possibility of enforcing obligations through other States rather
than through the Court, especially when we deal with obligations erga omnes.
31. Croatia also disregards the fact that the Security Council, can take enforcement action
when genocide is being committed. Indeed, the Security Council has done so in the past on several
occasions, including concerning the conflicts in Bosnia, Rwanda and Sudan.
32. Croatia similarly disregards the possibility of invoking the crimina l responsibility of
individuals, in particular, in situations of transition. This is confirmed by the very creation of the
ICTY by the Council and by the Libyan and the Sudanese ICC referrals.
33. Finally, Croatia also disregards the possibility of the Court exercising ju risdiction other
than under Article IX of the Genocide Convention on the basis of jurisdictional title s covering not
just treaty breaches. And t he Ethiopian-Eritrean example I mentioned in the beginning illustrates
this very point.
34. On the whole, the so-called time gap argument simply does not apply if one was willing
to look beyond the walls of this Great Hall of Justice, or even if one was willing to take a simple
look beyond the Genocide Convention . I nternational law constitutes a multi- layer, multi- actor
legal régime. While the Court is important, is not the only mechanism to enforce the prohibition of
genocide, and the Genocide Convention is not the only source of the prohibition of genocide.
35. Mr. President, this is confirmed by the practice of reservations to the Genocide
Convention. States as diverse as, inter alia, Algeria, China, India, Morocco, the United States and
Venezuela, all have made reservations as to Art icle IX. They are thereby preventing the Court
from exercising jurisdiction under Article IX. The Court has, on several occasions, confirmed the
52
validity of such reservations , including in cases brought by Serbia itself . The Court has thus
50
See e.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p p. 52-53, para. 127.
51CR 2014/14, p. 56, para. 38 (Zimmermann).
52
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006 , pp. 32-33, paras. 66 ff.; Legality of Use of
Force (Yugoslavia v. Spain), Provisional Measures, Order, I.C.J. Reports 1999, p. 772, paras. 32-33. - 24 -
accepted what Croatia would probably call a permanent and unlimited time gap in the protection
under Article IX and the Court accepted it. If Croatia was right , the Court would have certainly
nullified such Article IX reservations but you never did.
36. Besides, Croatia itself has frequently accepted such Article IX reservations 53. It seems
that Croatia, outside this courtroom, is not concerned with any gap it now alleges. Croatia did not
even object when, in 2006, Montenegro confirmed the Art icle IX reservation Serbia and
54
Montenegro had made in 2001 .
37. Summarizing, if one takes a holistic and realistic approach to the matter, it becomes
obvious that Croatia’s time gap argument ignores the very reality of international law.
V. The 27 April 1992 declaration
38. Mr. President, let me now move on to the 27 April 1992 declaration. I have four points
to make. My arguments relate
first, to the alleged binding force of the declaration,
second, the content of it, as interpreted by the Court,
third, Croatia’s behavior on the matter,
and, finally,
fourth, the relevance of the declaration within the context of your 2008 Judgment.
39. As to the alleged binding effect of the declaration , Serbia has dealt with this in detail in
55
its written and oral arguments . Croatia has thought it proper not to deal with these arguments in
its second round of oral argument.
40. Second, the Court itself limited the effect of the declaration, as “having had the effects of
a notification of succession to treaties” 56. The Court did so in light of the very limited formal
requirements for such notifications set out in Article 2 (g) of the 1978 Vienna Convention on State
53
The following States have acceded respectively succeeded to the Genocide Convention after Croatia had
become a party with an Art. IX reservation without Croa tia lodging an objection: Bangladesh, Malaysia, Singapore and
Montenegro.
54See for further details CR 2008/12, p.41-42, paras. 39-45 (Zimmermann).
55See e.g. CR 2014/14, p. 60 et seq., paras. 58 ff. (Zimmermann).
56
Croatia, p. 451, para. 111. - 25 -
57
Succession to Treaties . Besides, the Court took its position in light of what you called the
“essentially confirmatory”character of such notifications of succession 58.
41. Assuming State responsibility for each and every violation of international law allegedly
committed by one’s predecessor State, is however of a completely different magnitude. It can not
be subject to a similarly low standard of formality . It is for this very reason that the Court limited
59
the effect of the declaration as amounting, at most, to a notification of succession with an effect
ad futurum only.
42. Third, Croatia again completely disregards its own previous behaviour: it has in the past ,
as shown, simply rejected any legal effect of the declaration whatsoever 60; it was only in 2010 that
it finally referred to the declaration a s having had the effect of a binding unilateral declaration.
There was accordingly no reliance whatsoever by Croatia. Counsel for Croatia had nothing to say
on that either.
43. Finally, fourth , the interpretation of the declaration as constituting an ac ceptance for
State responsibility for acts pre -dating 27 April 1992 is not compatible with your 2008 J udgment.
As you will recall, the Court in 2008 found that it needed further information and further arguments
to determine whether it has temporal jurisdiction, and whether the R espondent can be held
accountable for acts before the critical date. It is for that reason that the Court in 2008 joined
Serbia’s preliminary objection ratione temporis to the merits.
44. Mr. President, if Croatia was right, and if the declaration was indeed meant to assume
responsibility, the Court in 2008 would have simply rejected Serbia’s third preliminary objection.
It would have sufficed to state that the Respondent had, by virtue of its declaration and its
subsequent behaviour, already in 1992, accepted State responsibility for acts pre-dating that date, as
well as the applicability of the Genocide Convention for that very period. Joining Serbia’s
temporal preliminary objection to the merits would have been simply redundant and nonsensical.
The simple fact that the Court joined Serbia’s third preliminary objection to the merits constitutes,
57
Croatia, p. 450, para. 109.
58Ibid.
59Ibid., p. 451, para. 111.
60
Ibid. - 26 -
therefore, unequivocal evidence that Croatia’s approach is simply wrong and plainly incompatible
with what you decided in 2008.
45. Mr. President, that brings me to the issue of succession to responsibility.
VI. Succession to responsibility
46. Last Friday at precisely 10.35 a.m., i.e. less than half an hour before concluding its case,
Croatia, for the first time ever since it submitted its A pplication in 1999, raised the question of a
possible succession, by Serbia, to the obligations incurred by its predecessor State, the SFRY for
having allegedly committed genocide prior to its dissolution. That behaviour by the Applicant
raises various issues, including those of the proper administration of international justice before this
Court.
47. First, Croatia has, at this late stage of the proceedings, introduced a new claim, based on
the concept of State succession to responsibility. Yet, as you have confirmed in your
jurisprudence, in order to bring such a new claim not already contained in the Application, it must
61
have either, as a matter of substance, been included in the original claim , or must arise directly
out of the question which is the subject-matter of the Application 62. That is not the case.
48. Second, as again confirmed in your jurisprudence, the very timing of such a new claim
raises serious doubts as to its admissibility as such 63.
49. Third, Croatia had never previously raised the matter with Serbia, and accordingly no
dispute had arisen as between the P arties at the relevant date, as required by the compromissory
clause under which the case has been brought.
50. Fourth, even if there has been a dispute as to the possibl e succession, by Serbia, to the
obligations of the SFRY at the relevant time, it is not one covered by Art icle IX of the Genocide
Convention since it does not relate to a dispute as to the application, interpretation or fulfilment of
the Genocide Convention by the Parties, as you have confirmed, Mr. President 64.
61
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, pp. 240 ff.; p. 266, para. 67.
62Ibid.
63See mutatis mutandis, Legality of Use of Force (Serbia and Montenegro v. Belgium), Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999 (I), pp.138-139, paras. 42-44.
64
Croatia; separate opinion of Judge Tomka, p. 520, para. 13. - 27 -
51. Fifth, the question whether or not one or more of the successor States of the SFRY might
have succeeded to the delictual obligations of the SFRY does not only concern Serbia, but all
successor States of the SFRY. Those include Montenegro which, at the relevant date of succession,
27 April 1992, still formed part of the Respondent. Those other successor States are thus to be
considered necessary third parties within the meaning of your Monetary Gold jurisprudence 65.
52. Six, as already previously mentioned, both Croatia and Serbia are parties to the
2001 “Agreement on Succession Issue” 66 which in Article 2 of its Annex F provides that and
you have it in front of you: [ slide on] “All claims ag ainst the SFRY which are not otherwise
covered by this Agreement shall be considered by the Standing Joint Committee established under
67
Article 4 of this Agreement.” [Slide off]
53. This provision, according to the former Special Negotiator, the late Sir Arthur Watts,
68
governs claims arising out of succession to international responsibility directed against the SFRY .
It precludes the submission of the claim in the current proceedings, or, at the very least,
presupposes that prior to bringing the matter before the C ourt, Croatia ought to have seis ed the
Committee set up by the Agreement. Yet, Croatia has so far never done so.
54. Finally, seventh , and on the substance of Croatia’s belated claim, as rightly put by the
69
latest edition of Brownlie’s Principles of Public International Law , the better arguments suggest
that new States do not succeed to responsibility. In the Lighthouse Arbitration, to which counsel
70
for Croatia referred , the tribunal specifically referred to the fact that it was dealing with the
violation of a private contract 71. As a matter of fact, France as the applicant State in those
proceedings, itself had advocated the principle of non- succession and had proposed a limited
exception only for cases of concessions, and it is in light of these considerations that the award has
to be seen.
65Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern
Ireland and United States of America), Judgment, I.C.J. Reports 1954, p. 32.
66
Agreement on Succession Issues, adopted 29 June 2001, United Nations, Treaty Series ( UNTS), Vol. 2262,
p. 251.
67
Ibid., p. 293.
68See P. Dunberry, State Succession to International Responsibility (2007), p. 212, fn. 294.
69J. Crawford, Brownlies’s Principles of International Law (8th ed., 2012), p. 442.
70
CR 2014/21, p. 21, para. 41 (Crawford).
71Lighthouses Arbitration (France v. Greece), Decision No. 23, International Law Reports (ILR), pp. 81, 92. - 28 -
55. Mr. President, this brings me to the end of the first part of my presentation of today. I
would now kindly request you to call on ProfessorTams to the Bar. Thank you.
The PRESIDENT: Thank you very much, Mr. Zimmermann. It is now your turn,
Professor Tams, to address the Court. You have the floor.
Mr. TAMS: Thank you, Mr. President.
INTRODUCTION
1. Mr. President, Members of the Court, last week after years of assertion you finally
heard Croatia engage with the temporal scope of the Convention. My purpose today is to respond
to the arguments we have now heard . I will also revert to Article 10, paragraph 2, of the ILC
Articles on State Responsibility . After my presentation, Professor Zimmermann will conclude
Serbia’s argument in so far as it relates to events predating 27 April 1992.
R ETROACTIVITY OF THE G ENOCIDE CONVENTION AND ITS A RTICLE IX
2. Mr. President, Members of the Court, Professor Crawford last week distinguished between
the temporal scope of the Convention as such and thatof its jurisdictional clause, Article IX.
The temporal scope of the Convention
3. On the first point, he faithfully reiterated Croatia’s mantra that there was no need to
72
discuss retroactivity. All that was required, he said, was the continuous application of the
Convention. So, continuity is the new watchword. Professor Crawford further sought to alleviate
concerns by saying that Croatia did not argue for what he called “full retroactivity ”, and he
73
understood that to mean the application of the Genocide Convention to events pre -dating 1951 ,
when it first entered into force. So the terms of the debate have changed slightly: “retroactivity not
properly so- called” has now become “continuity”; and “retroactivity proper” is now “ full
retroactivity”4. But, Mr. President, the substance of Croatia ’s argument the substance has
not changed one iota: a s before, Croatia ’s argument depends on an effect that is described in
72
CR 2014/20, p. 67, para. 11 (Crawford).
73CR 2014/20, p. 66, paras. 9-10 (Crawford).
74
Cf. RC, para. 7.13. - 29 -
Article 28 of the Vienna Convention : Croatia wants to “bind . . . [Serbia] in relation to acts or
facts . . . which took place before the date of the entry into force of the treaty [the Genocide
Convention] with respect to that party [Serbia]” . 75
76
4. Now, Croatia may call this “retroactivity not properly so -called” , or lesser retroactivity,
77
or even “continuity” . But international law uses a different term : international law calls this
retroactivity. As I have said in the first round : Article 28 defines retroactivity . Its approach is
deliberately formal, it is not formalistic , it is formal. Article 28 looks at the State party whose
conduct is assessed that is Serbia. It does not look to predecessor States. It leaves that question
to the rules on State succession. Article 28 asks when that State party became bound, which for the
case of Serbia the international community says was on 27 April 1992. Mr. President, note that the
date on which the treaty as such first ent ered into force 1951 in our case, the Genocide
Convention that date does not feature in Article 28; for the purposes of retroactivity in the way
international law defines it not Croatia, but international law for the purposes of retroactivity
the critical date is the date when the treaty entered into for ce for a particular party, not when it
entered into force for the first time . Legal effects preceding that date are called retroactivity,
whether they go back to before 1951 or not.
5. And a ll this is deliberate because the international community wants clarity when
identifying the temporal scope of treaty obligations . Customary international law , as
Professor Zimmermann has shown, helps avoid the time gaps about which Croatia now, suddenly,
is so worried. Rules on State identity and State succession d eal with changes in the legal
personality of a State party. But treaty law matters here and as far as treaty law is concerned,
Article 28 is clear : it identifies the critical date ; and it formulates a presumption and two
exceptions.
6. Now, Mr. Presid ent, Croatia has said nothing on the two exceptions set out in
Article 28 express and implied retroactivity . Last week, you were told again that the
75
Article 28 of the Vienna Convention on the Law of Treaties ( VCLT).
76RC, para. 7.13.
77CR 2014/20, p. 67, para. 11 (Crawford). - 30 -
78
Convention was declaratory and again, we agree. But we maintain that nothing in the text of
the treaty, nor in its very nature, mandates the application of the Genocide Convention to acts and
facts that pre-date its entry into force for any given State party . And this is the test, Mr. President,
this is the test that Croatia’s argument simply does not a ddress. As Croatia has now begun to
79
emphasize the duty of prevention which featured prominently in the second round
pleadings perhaps I may briefly recall my discussion of the temporal scope of that particular
obligation. And I can be brief because I have made the point two weeks ago: can we plausibly say
that States, when joining the Convention régime and I gave the examples of the United States or
Nigeria, which ratified late in the day did they plausibly thereby agreed to a duty to have
stopped atrocities decades earlier ? Most certainly not. If Article 28 is taken seriously, which we
say it must, it is clear that the Convention does not apply to events pre-dating 27 April 1992.
The temporal scope of Article IX
7. Mr. President, Members of the Court, Croatia ’s main argument I think it is fair to
say focuses not on the Convention as such, but on one of its provisions, Article IX. Last Friday,
Professor Crawford defended the view that jurisdictional clauses, like Article IX, follow a separate
temporal logic, and he continued to refer to this as the Mavrommatis principle 80. He seemed to
accept that this Judgment Mavrommatis depended on the terms of the specific clause. But
81
the principle, he said, “is well established and is not unique to Mavrommatis” .
8. Now, Mr. President, before assessing the evidence put forward in support of that
statement, perhaps I can invite you to reflect on a preliminary matter? Assume Croatia were
correct. Assume the principle existed. Where would we expect this “well-established” principle to
be reflected? We are talking about a treaty clause, so I suggest we would look to Article 28 and its
customary equivalent. The specific provision that the international community has agreed upon to
determine the temporal scope of treaty provisions. Article 28 governs inter -State treaties
irrespective of their nature , and irrespective of their character . It applies to the provisions of a
78
See e.g., CR 2014/21, p. 19, para. 36 (Crawford).
79See e.g., CR 2014/20, p. 10, para. 2 (Sands); p. 58, para. 46 (Starmer).
80CR 2014/21, pp. 13-14, para. 22 (Crawford).
81
CR 2014/21, p. 13, para. 22 (Crawford). - 31 -
treaty, without exception. It sets out a flexible system , a presumption and two exceptions. It was
drafted by ILC members and by State delegates with ample experience in treaty making and in
international litigation.
9. Mr. President, Members of the Court, when these experts drafted Article 28 of the Vienna
Convention, why did they not include a special rule for compromissory clauses ? It would have
been so easy. [Slide on] On the screen, you can see two versions of Article 28: the real Article 28,
below, and a hypothetical version one based on Croatia’s argument. If Cro atia were right, if
jurisdictional clauses were special, Article 28 would presumably have been drafted as follows
and it is on the screen: “unless a different intention appears from the treaty or is otherwise
established, [its] substantive provisions . . . do not bind a party in relation to [ any] acts [or] facts
[which took place, or any situation which ceased to exist before the date into entry into force of the
treaty with respect to that party] ”. That would have been a rather straightforward way
perhaps even an elegant one , if I may say so to give effect to what Croatia calls the
“Mavrommatis principle”.
10. But a quick look at the real Article 28 makes clear that the reference is not to the
substantive provisions, it is to “its provisions” “les dispositions d’un traité” in French all of
them. Now, do jurisdictional clauses not count among “the provisions of a treaty” ? What
happened to Croatia ’s “well -established Mavrommatis principle”? It seems to have got lost
somewhere on the way on the way from Mr. Mavrommatis’ concessions in Palestine to the
Vienna Diplomatic Conference perhaps it was lost on the Balkans, on the way? It does not
feature in the ILC commentary either. Perhaps the drafters just forget about jurisdictional, perhaps
this was an oversight? [Slide off]
11. Well, Mr. President, Members of the Court, of course it was not an oversight. Of course,
the drafters were aware of treaty-based compromissory clauses. Of course, compromissory clauses
are “provisions of a treaty ” in the sense of Article 28 . And of course the Vienna Convention
régime applies . Nothing in the text, or the context, of Article 28 points to a special rule for
compromissory clauses. Nothing supports Croatia ’s distinction between substantive and
jurisdictional clauses of a treaty. Both are subject to the same régime of retroactivity the régime
reflected in Article 28. So unless Croatia can show that , as Article 28 puts it , “a different - 32 -
interpretation appears from the treaty or is otherwise established ”, which it does not even try to do.
Unless this can be shown, Article IX cannot apply to acts and facts pre-dating 27 April 1992.
12. Mr. President, Members of the Court, when discussing the temporal scope of Article IX,
Croatia ignores Article 28. But it points us to two cases, Mavrommatis and Phosphates in
Morocco. The first, as I discussed in the first round, does not support any general proposition. But
Professor Crawford was quick to move from Mavrommatis to Phosphates from Palestine to
Morocco, as it were 82. So does the Phosphates case help Croatia in establishing a legal principle of
general application? For three reasons, we submit it provides even less support than Mavrommatis.
13. First, Phosphates in Morocco was really all about upho lding temporal limitations, not
about overcoming them: France the Respondent in that case had been clear, the PCIJ should
only have jurisdiction over “ disputes which may arise after the ratification of the present
83
declaration with [respect] to situations or facts subsequent to this ratification ” . And the Court
upheld that restriction. It gave a fact to a restrictive clause. A special clause. It did not overcome
restrictions, it upheld them.
14. Second, contrary to Croatia ’s assertion, the Court in the Phosphates case if
anything contemplated that generallythere should be a restrictive reading of jurisdictional titles.
It made clear that and I quote, and you see it on the screen [slide on]: “[J]urisdiction only exists
within the limits within which it has been accepted. [Now of course, and the quote continues.] In
this case, the terms on which the objection ratione temporis submitted by the French Government
84
is founded, are perfectly clear.”
15. And so, because the terms were clear, g eneral principle supporting a restrictive
interpretation did not have to be relied on. But, general principles were referred to. The PCIJ
spoke of the “restrictive interpretation ” and that too is on the screen the “restrictive
interpretation that, in case of doubt, might be advisable in regard to a clause which must on no
85
account be interpreted in such a way as to exceed the intention of the States that subscribed to it” .
82CR 2014/21, p. 13, para. 22 (Crawford).
83
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 22.
84Ibid., p. 23.
85
Ibid., pp. 23-24. - 33 -
16. Now, on no account must such a clause “exceed the intention of States”, in subscribing to
it or in conferring jurisdiction. That was the PCIJ’s concern in the Phosphates case and that is
86
the same concern that this Court shown time and again, for example, in the Certain Property case
and that is the same concern that we say, should guide you in the present proceedings. [Slide off]
17. Mr. President, Members of the Court, Croatia’s attempt to derive a general principle
governing compromissory clauses from Phosphates in Morocco suffers from a third weakness, and
this is perhaps the most obvious one. The Phosphates in Morocco case simply was not based on a
compromissory clause. The case was based on an Optional Clause declaration: Article 36,
paragraph 2, not Article 36, paragraph1; a different jurisdictional title. Now , both compromissory
clauses and Optional Clauses of course are titles of jurisdiction, but beyond that, a nd you made that
87
clear in the Certain Property case, they cannot simply be equated .
18. An Optional Clause declaration is a unilateral act, it is not a treaty commitment. An
Optional Clause declaration is self -standing, it is not integrated into a treaty. For treaty -based
compromissory clauses, we have the clear rule of Article 28 of the Vienna Convention on the Law
of Treaties (VCLT). For treaty -based compromissory clauses, we have the guidance you provided
88
in many cases, including the Georgia v. Russia case . For Optional Clause declarations there is no
equivalent. So whatever you make of the Phosphates case in which, I repeat, the PCIJ looked to
the terms of the particular jurisdictional title and of which the PCIJ was mindful not to stretch
jurisdiction beyond the parties’ intentions whatever you make of the Phophates case, it
concerned Article 36, paragraph2, Optional Clauses, not Article 36 (1) compromissory clauses. It
does not support Croatia’s claim that treaty -based compromissory clauses should apply
retroactively.
19. Mr. President, Members of the Court, a brief reprise, as it were, on Georgia v. Russia.
Last Friday, Professor Crawford said I had read too much into your Judgment and he correctly
noted that you could leave open Russia’s third preliminary objection in that case which had
86
Certain Property (Liechtensteinv. Germany), Preliminary Objections, Judgment, I.C.J.Reports 2005, p. 6.
87Ibid., p. 24, para. 43.
88
Application of the International Convention on the Elimination of All Forms of Racial Discrim ination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 70. - 34 -
expressly addressed questions ratione temporis . But , Mr. President, judgments can make points
even without addressing them under a dedicated heading. And, with that in mind, permit me to
have a second look at Georgiav. Russia.
20. You began your analysis by looking at “Documents and Statements from the Period
89
before CERD Entered into Force bet ween the Parties on 2 July 1999” . Why did you do this?
You did so with a view to finding whether there was a dispute between the parties, Georgia and
Russia, that came within the jurisdictional clause, Article 22 CERD and Russia had disputed
that poin t; that was its first preliminary objection 90. You then reviewed a whole range of
statements and documents which Georgia felt proved the existence of a long -standing dispute,
going back to before 1999; but you held “ that none of the documents or statements provides any
basis for a finding that there was such a dispute by July 1999” 91when the Treaty entered into force
between the Parties. And this, in turn, meant and now we come to paragraph 64 which I relied
on in my first round pleading that Georgia had not been able to establish “its contention that ‘the
92
dispute with Russia over ethnic cleansing is [a] long-standing and legitimate [dispute]’” . And
then you added, still at paragraph 64, that
“even if this were the case, such dispute, though about racial discrimination, could not
have been a dispute with respect to the interpretation or application of CERD, the only
kind of dispute in respect of which the Court is given jurisdiction by Article 22 of that
93
Convention” .
21. Mr. President, Members of the Court, even if Georgia had been able to point to a dispute
about racial discrimination at a time before the Convention entered into force for the parties this
“could not have been a dispute with respect to the interpretation or application of CERD”. How are
we to read this if not that only disputes arising at a time when both parties are bound are
disputes coming within the scope of the jurisdictional clause? Y ou did not need to decide about
Russia’s third preliminary objection; you made a much more fundamental point: there was no
dispute in the sense of the jurisdictional clause, and there could not have been one before the
89Application of the International Convention on the Elimination of All Forms of Racial Discrim ination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 94, para. 50.
90
Ibid., p. 81, para. 23.
91Ibid., p. 100, para. 63.
92Ibid., p. 100, para. 64.
93
Ibid., p. 100, para. 64. - 35 -
Convention was in force between the parties. That is the relevance of your Judgment in the
Georgia v. Russia case.
22. Mr. President, Members of the Court, if we take stock, what remains of Croatia’s
“well-established [Mavrommatis] principle” 94, the principle that says that compromissory clauses
generally apply to prior acts and facts? What evidence is there to suggest su ch clauses should not
be governed by the principles set out in Article 28? What evidence is there to refute your holding
in the Georgia v. Russia case? Mavrommatis was exceptional and it depended on the special terms
of the jurisdictional title. The Pho sphates Judgment concerned a different jurisdictional title, an
optional clause not a compromissory clause and, again, it was narrowly reasoned. Mr. President,
Members of the Court, through two rounds of written and oral pleadings Croatia has not been abl e
to come up with any evidence supporting its claim that compromissory clauses are special. Serbia
submits that this is indicative. Article IX does not introduce retroactivity through the back door.
C ROATIA ’S ARGUMENTS RELATING TO A RTICLE 10 (2) ILCA RTICLES
23. Mr. President, M embers of the Court, this brings me to my second point, and that is
Croatia’s attempt to clutch at the straw that is Article 10 (2) of the ILC Articles.
Issues clarified during the first round of oral argument
24. On this I can be relatively brief, because Croatia has said so very little to our arguments.
In fact, judging from Croatia’ s response, the P arties now seem agreed on three basic points and I
will quickly go through them.
25. The first is that Article 10 (2) of the ILC Articles was drafted to cover insurrectional
movements and nationa l liberation movements. Draft A rticle 15 (2) from the first reading and
Professor Crawford’s first report from 1998 faithfully reflect this. That was the drafters intention
26. Second, the addition in 1998 of the words “and other” before movements, so there would
be insurrectional and other movements, was a “generic addition”. It meant no substantive change,
it ensured that the draft could be acceptable to those feeling that national lieration movements
94CR 2014/21, p. 13, para. 22 (Crawford). - 36 -
were separate from insurrectional movements no substantive change intended. We have not
heard anything from Croatia to dispute this reading.
27. Third, there is no practice on “other movements”. Again, that is, the application of the
purported rule to movements that are neither insurrectional nor liberation movements there is no
practice whatsoever: Croatia was encouraged to point us to examples, but we have heard nothing.
Instead, Professor Crawford referred to cases, he called t hem within “the same general
95
configuration” . So a general configuration, some sort of general principle rather than
Article 10 (2) now seems to matter and perhaps that is convenient because that general principle
may come with lesser implications, with lesser conditions. If you argue to a principle you need not
establish the wording of a clause. Serbia of course does not accept that such a general principle
exists and wonders where it comes from. But that is a separate matter. What Croatia’s
argument last week suggests is that , unless there is such a general principle, extending beyond
Article 10 (2), then Croatia’s claim must fail.
28. Mr. President, M embers of this Court, these are important interpretative convergences,
which we hope will facilit ate the Court’s task. But m any questions of interpretation continue to
divide the Parties and in the remainder of my time, I will deal with two of them.
Attribution of conduct allegedly directed or controlled by the movement
29. The first , Mr. President, is fairly discrete but it is important . It concerns the scope of
attribution under Article 10 (2) of the ILC Articles: whose conduct is covered by the reference to
the “conduct of a movement” that Article 10 (2) speaks of? Addressing that point briefly last week,
Professor Crawford likened movements to States, they were just the same. Just like a State could
be responsible for conduct of its organs Articles 4 and 5 and, exceptionally, for conducts of
non-organs, of others, for example under Article 8 so could a movement . And, he said : “The
96
usual principles of attribution apply” . Serbia respectfully disagrees. We submit that a movement
can only be responsible for acts of its organs, not for acts of non-organs. In the exceptional setting
9CR 2014/21, p. 27, para. 55 (Crawford).
9CR 2014/21, p. 25, para. 50 (Crawford). - 37 -
of Ar ticle 10 (2), which is unusual, not usual , there is no room to apply another exception,
Article 8, by analogy.
30. And, Mr. President, the drafting history, is in fact, quite clear on this. The ILC had to
address this matter, as so many insurrectional s truggles are waged by alliances of factions or
alliances of movements, it is not always clear -cut think of PLO and Hamas to take a recent
example. So it was important for the ILC to clarify whose conduct would be transferred to the new
State, once emerg ed: only that of the core movement, or also that of groups making up the
penumbra, if you want, if directed andcontrolled?
31. Now this is what the ILC said in paragraph 6 of its Commentary, and you see it on the
screen [Slide 4 on]:
“The attribution to the new State of the acts of the organs of the insurrectional
movement which preceded it, and of such acts only , is . . . justified by virtue of the
continuity between the organization of the insurrectional movement and the
97
organization of the State to which it has given rise.”
32. Mr. President, “acts of the organs of the movement . . . and such acts only” the core
movement, not the penumbra. This was no accident, this was deliberate: the notion of “organs of
the movement” is used throughout the ILC Commentary , and of course Professor Crawford used
99
it in his first report in 1998 . The draft provision he put forward refers to “ Organs of the
movement”: t hat terminology was chosen at a time when the basic framework of the rules of
attribution distinguishing between responsibility for acts of organ s, Article 4 (5) and
exceptionally responsibly for acts of others, non-organs as it were was agreed. And faced with
this dichotomy organs versus non-organs the ILC opted to formulate Article 10 (2) as a rule
covering conduct of its organs only. It made clear thereby, by implication, that t here was to be no
attribution outside the core structures, no attribution of conduct by “non -organs” such as
paramilitary groups. No analogy withArticle 8. [Slide 4 off]
33. Mr. President, Members of the Court, tomorrow my colleagues will demonstrate that the
alleged Greater Serbia “ movement” never controlled or directed paramilitaries in the sense of
97
Yearbook of the International Law Commission (YILC) , 1975 Vol. II, p. 101, para. 6.
9See, e.g., YILC, 1975, Vol. II, pp. 100-101, e.g., at paras. 1, 3, 4 ( “ruling organization of the insurrectional
movement”), 5 (“organs of the organization which grew up during the insurrection” ).
99
YILC, 1998, Vol. II (1), 57. - 38 -
Article 8. My point is separate. Ev en if it had, and even if Article 10 (2) applied which, we
submit, are two fairly substantial “ifs” those groups at no time were organs of the movement.
Their conduct, for that reason alone, cannot form the basis of a judgment against Serbia.
Article 10 (2) as a rule of attribution, not of responsibility
34. Mr. President, Members of the Court, this leaves one final point in my discussion of
Article 10 (2). It is by far the most fundamental disagreement dividing the P arties, and it concerns
the legal effects of the pr ovision. As Professor Zimmermann showed in the first round,
Article 10 (2) is a rule of attribution not a provision creating new treaty rules, and certainly not a
provision retroactively extending jurisdictional title s. What has been Croatia’s response?
35. Curiously, Croatia has remained almost completely silent . To be fair,
Professor Crawford did repeat Croatia ’s claim that “Article 10 (2) is not limited to substantive
100
obligations that apply specifically to movements” . But this is not the same as to say that a State,
before it came into existence, was bound by the Genocide Convention and that questions of
compliance with this treaty could be litigated before this Court . So does Article 10 (2) really
perhaps establish a new way for would -be State s to become bound by a treaty, alongside
ratification, succession and accession, is it perhaps a retroactivity clause in disguise whose
retroactive effect so far no one has grasped, that escaped the ILC during decades of debate? To call
this far-fetched would be a bit of an understatement.
36. And, in fact, even Croatia’s own evidence contradict s such far-fetched constructions.
Searching for comparable cases, on Friday, Professor Crawford referred you to the emerging S tate
of Poland (after World War I ) and to Algeria (prior to and after 1962). Once established, Poland
101
and Algeria, he said, had been held responsible for conduct of insurrectional movements . But
being held responsible is not enough, even if this were right. If Croatia wants these cases to
support its claim it needs to ask two further questions. Were Poland and Algeria held responsible
for treaty breaches and did international courts have jurisdiction to deal with claims against them?
And on both questions, we submit, the answer is “No”. Of course not. In the Polish Upper Silesia
10CR 2014/21, p. 24, para. 49, (Crawford).
10Ibid., pp. 26-27, paras. 53-54 (Crawford). - 39 -
case, the PCIJ was distinctly hostile to the idea that the Polish National Committee (or indeed the
nascent State of Poland) should have enjoyed any treaty-based rights or duties 10. As regards
Algeria: it is difficult to make much of French court decisions which, as Croatia notes, “did not
103
[usually] make findings against Algeria” . But to the best of our knowledge they certainly have
made no findings based on treaty breaches. And, as regards jurisdictional titles, I note in passing
that Algeria joined the Genocide Convention in 1963, and it made a reservation to Article 9.
France of course had been bound before, without a reservation. Under Croatia’s approach Algeria
could be held responsible before this Court for acts of the FLN and, incidentally, Croatia could
bring such a claim, because nothing depended on its independence in October 1991. But all this is
far-fetched.
37. So Mr. President, Members of the Court, after two rounds of written and oral pl eadings
on Article 10 (2) the provision which Professor Crawford says will now become famous
Croatia has still not been able to tell us how the principle could apply in the present instance in
which responsibility can only be invoked for treaty breache s. If Algeria and Poland are Croatia’s
best examples of what Professor Crawford referred to as “situation[s] of the same general
104
configuration” , if these are the best examples, then, with due respect, all they do is betray the
weakness of Croatia’s claim.
38. Mr. President, Members of the Court, all this explains Serbia’s scepticism with respect to
Article 10 (2) of the ILC Articles. Croatia overstretches a narrow provision; it seems now to have
stopped caring about its wording ; and it has from the beginning, right until the end, ignored the
very specific function of Article 10 (2) as a rule of attribution only.
39. Mr. President, Members of the Court, in the Parties’ pleadings directed to the merits of
this case you have heard a lot about patterns . I have not used that term so far but, in concluding, it
seems to me that there may be a certain pattern to Croatia’s argument on jurisdiction and
admissibility too. Throughout Croatia has postulated general principles that suited its case. The
Mavrommatis principle, the principle of continuity, the statu nascendi principle, so that, in some
102
German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 28.
10CR 2014/21, p. 27, para. 54 (Crawford) (in relation to the Perriquet case).
104
Ibid., p. 27, para. 55 (Crawford). - 40 -
ways, seems to have been a pattern. Now these principles sound nice, they may even sound fancy,
but there is a c ertain Potemkin quality to them. Like Potemkin’s villages, the façade is perhaps
impressive, but there is so little behind that façade. And so, as far as jurisdiction and admissibility
are concerned, Serbia respectfully asks this Court to look beyond the façade of Croatia’s Potemkin
principles. If you do that, you will find what one tends to find behind Potemkin façades: nothing.
This, Mr. President, Members of the Court, concludes my presentation today . I am grateful for
your kind attention.
The PRESIDENT: Thank you, Professor Tams. Now I call on P rofessor Zimmerman, if his
pleading is not longer than some 15, 20 minutes.
Mr. ZIMMERMANN: Fifteen minutes maybe, Mr. President.
The PRESIDENT: OK. Please, you have the floor.
Mr. ZIMMERMANN:
PART 2
1. Thank you, Mr. President, Members of the Court. Let me now move on to the issue of the
obligation to punish and prevent, while my colleague, Professor Schabas, will deal tomorrow with
the issue of missing persons.
I. Obligation to punish genocide
2. As to the obligation to punish, I apologize to the Court to revert to the matter. This is only
due to the fact that Croatia itself thought it proper to come back to it in its second round of
pleading 10. It seems counsel for Croatia have still not read para. 442 of your Judgment in the
Bosnia case. It simply and unequivocally states: [Start slide]
“Art. VI [of the Genocide Convention] only obliges the Contracting Parties to
institute and exercise territorial jurisdiction.”6 [End slide]
10CR 2014/21, p. 23, para. 45 (Crawford).
106
Application of the Conventioon the Prevention and Punishment of the Crime of Genocid(Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports, 2007 (I), p. 226, para.442; emphasis added. - 41 -
3. Mr. President, Croatia’s allegations almost exclusively relate to events in Croatia. To that
extent, Serbia’s territorial jurisdiction is simply not implicated and I believe no more comment is
needed on the matter. That brings me to the issue of prevention.
II. Obligation to prevent genocide
4. For one, let me reit erate that, as confirmed in your Bosnia Judgment, the obligation to
107
prevent genocide does not constitute a continuous violation . Any determination on the matter
does accordingly presuppose that the Court’s temporal jurisdiction extends to the relevant ti me.
This in turn, as shown, excludes any alleged violation of the obligation to prevent genocide
pre-dating 27 April 1992.
5. In order to eventually make a finding on the matter, “which calls for an assessment in
108
concreto” as he put it, the Court would have to first determine that in a specific location and at a
specific time genocide had indeed been committed 10. The Court would then have to consider the
specificities of the situation prevailing so as to eventually make a finding on Serbia’s obligation t o
prevent genocide. It is only if it could be proven that Serbia had manifestly, as you put it, failed to
110
take appropriate measures , when faced with a concrete danger of imminent genocide, in a
specific situation, that the Court could then make a finding on a violation of the obligation to
prevent.
6. Moreover, in your 2007 Bosnia Judgment you considered it to be particularly pertinent
that the respondent had, at the relevant time, been subject to a provisional measures order of the
Court which had spe cifically required the FRY to exercise its influence vis- à-vis non- State
111
actors . In the case at hand, which was brought more than five years after the end of the armed
conflict, there simply and obviously was no such order by the Court. Put otherwise, for Croatia the
matter seems not to have been one of urgency when the acts, which it now claims were genocidal
107
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports, 2007 (I), pp. 221-222, para. 431.
108
Ibid., p. 221, para. 430.
109Ibid., pp. 221-222, para. 431.
110
Ibid., p. 422, para. 430.
111
Ibid., pp. 223-224, para. 435. - 42 -
in character, were about to take place. Otherwise they would have asked for a provisional
measures order.
7. Besides, in the Bosnia case, you also stressed that Serbia, with regard to the genocide in
Srebrenica, had been formally put on notice by the international community of the serious risk of
112
the crime to be eventually committed . Again, the situation concerning the armed conflict in
Croatia was different in that the international community never warned the Respondent of an
imminent genocide and it did not simply because there was none.
8. Mr. President, the differences between the situation in Srebrenica in 1995, and the one in
Croatia in 1991-1992, are striking and Serbia therefore rejects Croatia’s claim as to the alleged
violation of the obligation to prevent genocide.
III. Croatia’s lack of standing as to events prior to 8 October 1991
9. Mr. President, let me now move on to the issue of Croatia’s standing related to events
pre-dating 8 October 1991 in light of your Belgium v. Senegal Judgment. It is first worth noting
that the Court’s Judgment in that case was based on the finding that the obligations arising under
the Torture Convention, just like those under the Genocide Convention, are obligations erga omnes
113
partes. This included the obligations under Articles 6 (2) and 7 (1) , which the Judgment
perceived as part and parcel of, as you put it, a “single conventional mechanism” 114. So there was
no distinction drawn a “single conventional mechanism”. And, in the Court’s view, this
necessarily implied “the entitlement of each State party to the Convention to make a claim
concerning the cessation of an alleged breach by another State party” 115.
10. But notwithstanding this erga omnes partes character of the obligations arising under the
Torture Convention, the Judgment still and nevertheless limited the standing of a State to facts
“with effect from” “à compter du” the date at which it becomes a State party. In our case this
is, as far as Croatia is concerned, 8 October 1991.
112
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports, 2007 (I), p. 224, paras. 436–437.
113Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), p. 450, para. 69.
114Ibid., p. 455, para. 91.
115
Ibid., p. 450, para. 69. - 43 -
11. Professor Crawford claimed 116 that your Belgium v. Senegal Judgment, in its
paragraph 104, did refer to an entitlement of Belgium, and I quote Professor Crawford “from the
date it became party to the Convention” (emphasis added). But that is not what the Judgment said.
The Judgment did not use the phrase that Belgium has standing “from 25 July à partir du
25 juillet 1999”. That is not what you said. Ins tead, you stated that Belgium has standing “with
117
effect of à compter du 25 juillet 1999” and this obviously implies that it is irrelevant when the
claim is made. But what is relevant is the time the alleged treaty violations have been committed.
12. Let me also note again that this case is about treaty violations only. Accordingly, the
Court is not dealing with the obligation not to commit genocide as such which is owed to the
international community governed by Article 48, paragraph 1 (b), of the ILC Articles. Rather,
given the jurisdictional basis under which this case has been brought, the only question that arises
are obligations erga omnes parte s, governed by Article 48, paragraph 1 (a), of the ILC Articles.
Yet, prior to October 1991 Croatia was not a party to the Genocide Convention. Accordingly, to
118
use the words of the ILC Commentary on Article 48 , Croatia was, at the relevant time, not a
member of the group to which the treaty-based obligation was owed. And it is for that reason that
it lacks standing it this regard.
119
13. This brings me to the reference by Professor Crawford to the Nauru case . I am afraid
to say that this reference is nothing but a red herring. Apart from the case not having reached the
merits stage, one cannot but not e that Nauru itself had claimed violations of obligations applicable
specifically in a pre -independence context vis -à-vis a not -yet-existing State such as, inter alia,
120
violations of Article 76 of the [United Nations] Charter , violations of the principle o f
self-determination 121, and violations of obligations of a predecessor State owed specifically towards
122
a future successor State . Those were the claims of Nauru and those are exceptional entitlements
116CR 2014/21, p. 18, para. 32 (Crawford).
117
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), p. 458, para. 104.
118Yearbook of the International Law Commission (YILC) , 2001, Vol.II, Part II, p. 126, para. 6.
119CR 2014/21, p. 13, para. 21 (Crawford).
120
Certain Phosphate Lands in Nauru (Nauru v. Australia), Application, 19 May 1989, p. 30, para. 43, available
at: http://www.icj-cij.org/docket/files/80/6653.pdf.
121
Ibid., p. 30, para. 45.
122Ibid., p. 30, para. 48. - 44 -
that do not depend on statehood. In contrast, Mr. Presi dent, Croatia invokes rights arising under a
treaty that is open to States only and Croatia was not a State at the relevant date.
14. Members of the Court, let us not be mistaken where Croatia’s argument on standing
would lead us to. Notwithstanding Croa tia having become bound by the Genocide Convention as
late as October 1991, or Bolivia having become a party in 2005 only, both States could, for
example, bring before this Court alleged violations of the Genocide Convention having been
committed during the colonial wars in the 1950s and the 1960s.
15. Mr. President, this is precisely what the late Sir Gerald Fitzmaurice had in mind in his
separate opinion in Northern Cameroons to which I have made reference 12.
IV. Concluding remarks
16. Mr. President, Members of the Court, the allegation that genocide has been committed is
a most serious one. It calls for utmost scrutiny, not only on the merits but also when it comes to the
Court’s jurisdiction and the admissibility of the claim.
17. Croatia, in order to come up with at least an arguable claim that the Court may consider
the merits of Croatia’s case when it comes to events predating 27 April 1992, requests the Court to
ignore not only its own prior behaviou r, which I have shown but to also disregard long -standing
and firmly established rules of the law of treaties. What is more, Croatia also wants the Court to
endorse a novel and almost unlimited rule on attribution, Article 10 (2) of the ILC Articles, which
in 1991-1992 had not even addressed the behavi our of so-called “other movements”, and Croatia
wants it to be combined with other broad rules such as Article 8 of the ILC Articles. Finally, it
wants you to also stretch the Court’s jurisdiction arising under Article IX of the Genocide
Convention not only ratione temporis, but also ratione materiae.
18. Croatia does so based on two strands of arguments. For one, it says that in a case where
genocide is being alleged, specific considerations should apply when it comes to issues of
jurisdiction and admis sibility, given the seriousness of the crimes, so as to avoid what it calls
impunity.
12CR 2014/14, p. 69, para. 109 (Zimmermann). - 45 -
19. Second, Croatia argues that this case constitutes a case sui generis, unique in its setting,
which will not have repercussions beyond this very case. Let me address these two propositions,
fundamentally underlying Croatia’s case, one by one.
20. As to the first argument, let me first note that it cuts both ways. It is not only most
serious for a State to bring a case of genocide, but even more serious to be the Res pondent,
allegedly being responsible for genocide. I therefore submit to you that there is a bona fide
expectation that a State should only be requested to answer such a charge on its merits, once it is
beyond doubt that indeed such State has accepted your jurisdiction on the matter.
21. What is more is that Croatia has implied, throughout its pleadings, that there are several
layers of erga omnes and jus cogens obligations, the prohibition of genocide being unique among
them. What should one then tell t he victims of apartheid and racial discrimination , given that the
Charter of the United Nations itself, ever since 1945, had the fight against racial discrimination at
its core? Are they victims of jus cogens violations not properly so called? And can i t really be
124
argued, as Croatia does , that as late as 1966, when the Convention on the Elimination of all
Forms of Racial Discrimination ( CERD) was adopted, racial discrimination, including practices of
apartheid, was still lawful under international law?
125
22. That brings me to the second issue, the so called sui generis character of this case .
Counsel for both sides agree on one proposi tion, namely that, as Professor Crawford put it mildly,
the various cases dealing with the former Yugoslavia were “a sou rce of some difficulty for the
126
Court” . Still, Croatia invites you to devise yet another sui generis solution. Yet, already your
“tantalizing brief” paragraph 34 of the 1996 J udgment “tantalizing brief”, that is what
127
Sir Michael Wood called it your “tantalizing brief” paragraph 34 left it to use the words of
Sir Michael Wood “unclear how this finding relates to the normal rules of the temporal application
of treaties”. And Sir Michael Wood found that its implications should be considered to be
12CR 2014/21, p. 19, para. 36 (Crawford).
125
CR 2014/20, p. 63, para.1 (Crawford).
12CR 2014/21, p. 22, para. 43 (Crawford).
127
M. Wood, Participation of former Yugoslav states in the United Nations and in multilateral treaties ,
Max Planck Yearbook of UnitedNations Law (YB of UN Law), 1997, Vol. 1, p. 231 (253). - 46 -
128
“potentially far -reaching” . In your 2008 J udgment you have, as shown, in the meantime
obviously confined the legal effects of your previous holding 129, but what the example shows is that
sui generis answers to alleged sui generis situations are prone to eventually cause unforeseen, and
indeed unforeseeable, consequences for the larger fabric of international law.
23. It is against this background that Serbia , unlike Croatia, is basing its case on jurisdiction
and admissibility on generally accepted and generally applicable rules of international law.
24. Serbia therefore respectfully submits that the Court should stay true to your
well-established jurisprudence on matters such as the Court ’s temporal jurisdiction and obligations
erga omnes.
25. Serbia further submits that the Court should also stay true to its 2007 J udgment in the
Bosnia case and its 2008 Judgment in the present case. The Court should not unnecessarily reopen
once again old questions relating to statehood, identity and treaty membership in this hopefully last
case relating to the dissolution of the former Yugoslavia. Instead this case provides the Court with
an opportunity to confirm the considered approach of the international community at large to treat
Serbia as a new State that came into existence on and it is probably the last time that I use the
date: 27 April 1992 a solution Serbia, unlike Croatia which itself had fought for this solution
for so long, has come to accept. Serbia has accepted this solution and Croatia had done previously,
but not for purposes of these proceedings.
26. What Croatia wants you is to turn a blind eye on this larger picture and on the possible
consequences of its approach not only when it comes to the Court ’s jurisdiction and the law of
treaties and the law of State responsibility, but also as to the very concept of genocide.
27. Mr. President, there is one fact that is indeed specific in this case: it is that the Applicant
has not come before the Court with clean hands, neither on jurisdiction, nor on the merits. I
suppose there is no need to once again remind the Court of Croatia ’s underlying motivation to
130
bring this case in the first place . Yet, what the Court must ask itself is whether it should then
heed the request made by Croatia to stretch the general rules on the temporal application of treaties,
128
M. Wood, Participation of former Yugoslav states in the United Nations and in multilateral treaties ,
Max Planck Yearbook of United Nations Law (YB of UN Law), 1997, Vol. 1, p. 231 (253).
12Croatia, p. 458, para. 123.
130
See CR 2014/14, p. 11, para. 10 (Zimmermann). - 47 -
on attribution and, maybe most importantly, on the Court ’s jurisdiction so as to accommodate the
wish of Croatia to approach what constituted an armed conflict governed by international
humanitarian law from the angle of the Genocide Convention an armed conflict in which there
have been innocent victims on both sides.
28. Thank you, Mr. President, Members of the Court.
The PRESIDENT: Thank you, Professor Zimmermann. It is now time for a 15- minute
break. The hearing is suspended for 15 minutes.
The Court adjourned from 4.25 p.m. to 4.40 p.m.
The PRESIDENT: The hearing is resumed and I give the floor to Mr. Jordash. You have
the floor, Sir.
Mr. JORDASH: Mr. President, Members of the Court, it is an honour to address the Court
once more.
R ESPONSE TO THE A PPLICANT ’S CLAIM IN LIGHT OF THE ICTY JUDGMENTS
Introduction
1. The Applicant asserts that in contrast to the Respondent, it has advanced a positive factual
131
case, namely the description of a “pattern of purposeful action” . This positive case rests on the
ICTY findings that allegedly provide “the platform upon which this case proceeds”, which along
with the remaining evidence proves 17 enumerated factors. According to the Applicant, each of
the four on their own, the first four, and then all 17 taken together, give rise to an overwhelming
inference that there was genocidal intent 132. From these 17 factors, the Applicant focused on
identifying three issues assessed as critical to this question : (i) context; (ii) patterns of behaviour;
133
and (iii) opportunity .
131
CR 2014/6, p. 63, para. 52 (Starmer).
132CR 2014/7, p. 19, para. 27 (Starmer).
133
CR 2014/7, p. 21, para. 31 (Starmer). - 48 -
2. In order to advance these submissions, the Applicant claims that Serbia has failed to
advance a positive case. According to the Applicant: “It is all very well [Serbia] distancing its elf,
it is all very well saying the JNA is not our entity, it is all very well saying the JNA does not direct
or control the paramilitaries; but if we are wrong about that, what does Serbia say was the true
134
intent behind these atrocities?”
3. As the Respondent will demonstrate once more, despite these bold claims, what we saw
last week is more of the same: assertion devoid of real engagement with the law or with the facts
with regard to the issue of intent. The Applicant correctly concludes that patter ns, context and
opportunity are important to a proper understanding of intent and genocide usually occurs when a
series of features or factors come together to form an “explosive cocktail” 135and yet does its best to
avoid the facts. If Professor Tams is correct, and he surely is, that the Applicant is frightened of
retroactivity, then they run even faster from a proper examination of intent.
4. In the next two speeches, today and tomorrow, I would like to address these questions and
reiterate once more the problems with the so-called positive case on both the ICTY findings and the
non-ICTY evidence and crystalize, if that was needed, what the Respondent’s position is
concerning intent.
5. Of course, logic and good old fashioned common sense dictates that an armed conflict that
spanned over five years, thousands of square kilomet res, a multitude of actors and actions, and
terrible crimes on both sides, cannot be summed up by the Applicant’s neatly packaged theory.
6. It is important that we avoid the type of blunt assessments and generalities that taint the
Applicant’s case. It may serve the Applicant to continue to squeeze years of war and ethnic strife
into one globalized shape, but this is not the same as a positive case.
The Applicant’s proposed methodology: ICTY and non-ICTY evidence
7. Let me address the Applicant’s proposed methodology with regard to ICTY and
non-ICTY evidence. The Applicant asserts that the combined probative value of the ICTY findings
13CR 2014/6, p. 61, para. 45 (Starmer).
13CR 2014/19, pp. 23-24, para. 40 (Starmer). - 49 -
from Martić, Mrksić and Babić and the non- ICTY evidence demonstrates the actus reus of
genocide and provides the requisite material for a finding of intent . 136
8. They argue that the ICTY evidence provides a “robust platform” that is “highly
persuasive” with regard to the question of intent.
9. Despite Professor Schabas, and particularly Mr. Ignjatović, raising concerns about the
ICTY judgements last week, the Applicant failed to address the issue in their second round. As I
will today demonstrate, analysis of the ICTY jurisprudence does not provide a platform for the
Applicant, robust or otherwise. In fact, it supports the Respondent’s case.
10. Moreover, whilst the non -ICTY evidence may be similar, even strikingly similar, to the
ICTY findings, this does not assist the Applicant. The Applicant takes a selective approach to each
and fails to miss the overall congruence revealing a multitude of contexts and patterns that
demonstrates a number of intents, none of them, resembling anything close to genocide.
ICTY jurisprudence
11. Before I begin looking at the ICTY jurisprudence, I would like to raise a preliminary
137
issue. Last week, the Applicant accused the Respondent of being a “ denier” . We were told that
Serbia’s denial of “the criminal nature of the joint criminal enterprise of the Serb leaders known as
the ‘RSK’, despite clear, unequivocal ICTY findings, was an affront to the victims of its crimes,
138
who are to be counted in the thousands” .
12. Of course, that was an unfortunate submission and nothing could be further from the
truth. But for the avoidance of doubt, nothing I say about the law or the facts is intended to make
light of the suffering of the victims. Each death or injury is a personal tragedy . However, that
should not prevent a search f or reasonable legal and factual assessment. On the contrary, as mere
lawyers, this may be the only way we might contribute in some small way to the healing process.
This ought to go without saying. Now turning to the law.
13. As I understand the Appli cant’s case, they rest their ICTY case on the following three
propositions, namely:
136
CR 2014/18, p. 50, paras. 6 and 13 (Starmer).
13Ibid., p. 16, para. 19 (Crnić-Grotić).
138
Ibid., p. 17, para. 20 (Crnić-Grotić). - 50 -
(i) that the ICTY JCE judg ements are inconsistent with any suggestion of legitimate armed
conflict or excesses in an otherwise legitimate armed conflict 139;
(ii) that the JCE found in the Martić judgement provides a platform for a finding that there
existed a criminal enterprise between the Krajina Serbs Martić, Babić and others
and the Belgrade Serbs Milošević, the JNA and others that involved an agreement to
destroy 140; and
(iii) that the Mrkšić judgement finding that all of the forces participating in the military
operations in Croatia operated under the effective command and control of the JNA is
fully convincing evidence with respect to each operation during which the allege d
violations occurred 141.
14. The Applicant proceeds on the basis that the ICTY jurisprudence supports their case and
should be automatically accepted as “highly persuasive”. Of course, as we know this Court found
at paragraph 223 of the Bosnia case, that the ICTY case law should “ in principle” be accepted as
highly persuasive. However, accepting them at the outset as having this value, obviously does not
determine where we finally end up. Of course, this is trite law and I will not labour the point.
15. Bearing this in mind, I turn to the Applicant’s first proposition.
142
The ICTY JCE judgements are inconsistent with legitimate armed conflict?
16. According to the Applicant the JCE findings are “ only consistent with the unlawful
143
targeting of civilians ” . According to the Applicant, where the question of legitimate armed
conflict was raised in the ICTY, it was not accepted 14.
17. We returned to the same theme last week. We were told that there was “ no legitimate
armed conflict in the areas in question, in 1991 and 1992” 145. According to the Applicant, there
139
CR 2014/18, p. 50 (Starmer); CR 2014/20, p. 56, paras. 37 -45 (Starmer).
140
CR 2014/6, p. 50, para. 8 (Starmer).
14CR 2014/12, p. 35, para. 85 (Starmer), citing to Mrkšić, Trial Judg ement, para. 89, para. 400;CR 2014/6,
p. 50, para. 9 (Starmer).
14CR 2014/18, p. 50. (Starmer); CR 2014/20, pp. 56, paras. 37- 45, (Starmer).
143
Ibid., p. 50, para. 36 (Starmer).
144
Ibid., p. 50, para. 38 (Starmer).
14CR 2014/20, p. 57, para. 41 (Starmer). - 51 -
was no war, only attacks by the Serb forces. The Croats had no military forces, only civilians and
“civilian defenders” . 146
18. We were told, that all violence against civilians and these so -called civilian defenders
should be regarded as unlawful : to hold otherwise, we are told, would create a protection gap
whereby “members of the group who attempted, however ineffectively, to defend their group
against perpetrators of genocide could not be victims o f genocide and would have no protection,
legally, against it” 14.
19. Mr. President, Members of the Court, this is a seductive but ill -founded submission. For
two reasons. First, the ICTY jurisprudence says precisely the opposite. It confirms that there was
lawful combat. Where the ICTY has directly accused members of the Serb Government from
Belgrade of responsibility for the unlawful violence in Croatia, they have been acquitted.
20. Second, the Applicant’s attempt to support their case by blurring the distinction between
combatants and civilians is in fact the most efficient way to create the “ protection gap” that the
Applicant claims to wish to avoid. The Respondent will address the first issue today and the
second tomorrow when I return to the issue of context.
21. First, the Applicant’ s submission that the jurisprudence excludes a finding that the
Belgrade Serbs were engaged in legitimate warfare rests upon a selective reading of the least
probative cases of the ICTY, namely Martić , Mrkšić and Babić, and a perfunctory analysis of the
most relevant, namely Stanišić and Simatović, as well as Perišić 148.
22. As the Court will see, Martić, Mrkšić and Babić focused on individuals who were either,
as in the case of Martić and Babić, regional leaders from Croatia or, as in the case of Mrkšić et al.,
relatively low -level commander s, engaged on a specific military operation in a small part of
Croatia.
23. None of these three cases involved a close examination of the precise role of members of
the Serbian Government from Belgrade. Given the narrow focus on the criminal activities in these
146
CR 2014/20, p. 56, paras. 37-45 (Starmer).
147Ibid., p. 56, paras. 39-45 (Starmer).
148
Ibid., p. 57, para. 41 (Starmer). - 52 -
localized activities, nor did they have the same focus on the question of whether any of the
objectives were legitimate or any aspect of the warfare lawful.
24. Conversely, the Simatović and Stanišić and Perišić trial cases respectively examined the
role of members of the Serbian Government. They examined the policies of Milošević’s
Government and the role of his inner circle. As the ICTY Prosecutor has stated with regard to the
Stanišić and Simatović case, “[t]his case is the first case to come to judgement at the Tribunal
which examines the culpability of individuals who were at the heart of the common purpose
through which crimes were systematically committed against non -Serbs in both Bosnia and
Herzegovina and Croatia over a span of five years” 14.
25. For most of the five -year indictment period 1991-1995 Stanišić, a Serbian from
Belgrade, was the Chief of the Serbian State security service. He was alleged by the ICTY
Prosecutor to be Milošević’ s right hand man 15. Simatović was alleged to be his immediate
151
subordinate .
26. Stanišić and Simatović were charged as participants in a joint criminal enterprise that
according to the indictment came into existence no later than April 1991 and continued until at
least 31 December 1995. Milošević was alleged to be at the apex of the alleged joint criminal
enterprise, whose common criminal purpose was the forcible and permanent removal of the
majority of non-Serbs, principally Croats, Bosnian Muslims, and Bosnian Croats from large areas
of Croatia and Bosnia-Herzegovina. According to the indictment, this involved the commission of
crimes against humanity under Article 5 of the Statute and violations of the laws or customs of war
under Article 3 of the Statute, namely persecutions, murder, deportations, and inhumane acts
forcible transfers. Not genocide.
27. In addition to the charges of individual criminal responsibility under Article 7 (1) for
committing crimes as part of a jo int criminal enterprise, the indictment charged each accused with
149
Stanišić, Prosecution Appeal, para. 12.
15Stanišić; Prosecution’s Pre-Trial Brief, para. 53.
151
Ibid., para. 54. - 53 -
having planned, ordered, and/or otherwise aided and abetted in the planning, preparation, and/or
execution of the crimes described in the indictment 152.
28. It was alleged that, on behalf of Milošević, Stanišić and Simatović commanded, directed,
financed, supplied and otherwise facilitated, both State and non-State paramilitary groups, from the
Special Purpose Unit of the Ministry of the Interior of Serbia, the Serbian Volunteer Guard, that is,
Arkan’s Tigers, to other formations, such as, inter alia , members of the JNA; the Serb TO in the
Krajina, the special police and police forces of the Krajina and other Croatian Serb paramilitary and
153
volunteer formations .
29. During the Trial the Prosecution relied upon Babić’s plea agreement and the evidence he
gave in the Milošević and Martić cases, to the effect that Stanišić was “the central figure” in
command of a “parallel structure of power and authority” allegedly formed and used by Milošević
to control the JNA, Martić’s police, and paramilitary groups in the Krajina. It was alleged that this
parallel structure, with Milošević at the apex, was the primary vehicle for implementing the JCE
that intended the crimes, persecutions, murder, deportations, and inhumane ac ts (forcible
154
transfer) .
30. Both Stanišić and Simatović were acquitted of all charges. The majority found that the
Accused had not shared the intent to further the common criminal purpose of forcibly and
155
permanently removing the majority of non-Serbs from Croatia , or committed any acts that might
be a stepping-stone towards destroying the group.
31. The precise terms of the acquittals provide an insight into why the Applicant, throughout
its arguments, including last week, have avoided examining the se cases, preferring instead to rest
their case on the much less relevant cases of regional leaders from the Krajina, such as Martić and
Babić, or lower ranking officials such as Mrkšić.
32. Stanišić and Simatović’s acquittal was not based on non- involvement in the war or
non-interaction with Mar tić or Babić or others found to be involved in crimes. On the contrary.
152
Stanišić Indictment, para. 10.
153Ibid., para. 5.
154CR 2014/16, p. 20, paras. 99-101 (Ignjatović).
155
Stanišić and Simatović Judgement, paras. 2309, 2311-2312, 2314-2336, 2340-2354, 2362-2363. - 54 -
They were found to have had a significant involvement in the war: supplying men, weapons,
ammunition, and logistics in large quantities. However, they were found to be acting in pu rsuance
of lawful military objectives.
33. As illustrations only. The Trial Chamber found that they directed and organized the
156
formation of Martić’s police in close co-operation with Martić ; they oversaw the delivery of
arms and ammunition to the Krajina police 157; they helped to set up a training camp for Martić and
158
Babić where military training was provided to TO units and members of the police ; they used
159
this camp to set up an anti-terrorist unit that participated in military operations in Croatia . None
of the findings showed that this assistance was provided with the intent to further any crimes 160.
34. The majority found that a reasonable interpretation of Stanišić and Simatović’s conduct
was that they had directed their military assistance to military operations “on territory not yet under
the exclusive control of the SAO Krajina and SAO SBWS authorities [that is, Eastern Slavonia
authorities] and armed forces” 161 and that they only intended to assist the Krajina authorities in
162
establishing and ma intaining Serb control over large areas of Croatia . These were lawful
objectives.
35. In sum, the m ajority rejected the Prosecution’s (and the Applicant’s case in this Court)
that all military activity by the Belgrade Serb leadership in Croatia was in furtherance of crime and
that there was no legitimate military objectives 163. As Presiding Judge Orie accurately noted in his
separate but concurring opinion, “[h]olding positions of broad influence, and being omnipresent in
a war situation, does not necess arily mean that one shares the intent to commit the crimes” a
164
view that, in light of the burden and standard of proof, and the facts, is undeniably correct .
15Stanišić and Simatović Judgement,paras. 2159, 2331. See also paras. 2137 (citing AFIII-9), 2147.
157
Ibid., para. 2154.
158
Ibid., paras. 1365-1366, 2197, 2327.
15Ibid., para. 2325.
16Ibid., paras. 402, 1426, 2341.
16Ibid., paras. 2325.
162
Ibid., paras. 2326 and 2332.
16Stanišić Trial Brief, paras. 234, 243, 247, 256, 997, 1005.
16Stanišić and Simatović Judgement, para. 2418. - 55 -
36. These findings are corroborated by those enunciated by the Appeals Chamber in Perišić .
Starting on 26 August 1993 and through to November 1995, Perišić served as Chief of the
Yugoslav Army (“VJ”) General Staff. He was the VJ’s most senior officer 16. Mr. President,
Members of the Court, you may well have heard about this controvers ial case and its finding that
“specific direction” is an element of aiding and abetting. No doubt this customary law debate will
rumble on. However, we do not need to concern ourselves with this debate. I rely upon the case
for other purposes.
37. Perišić was charged with aiding and abetting crimes in the Bosnian towns of Sarajevo
and Srebrenica for his role in facilitating the provision of military and logistical assistance from the
VJ to the Army of the Republika Srpska (“VRS”). He was charged with a number of crimes
arising from these charges, from the facts. He was also charged, more importantly for this case,
with charges arising from his alleged effective control over the Krajina army 16.
38. Having reviewed the evidence on the record, the Appeal s Chamber acquitted Perišić.
The factual basis upon which he was acquitted is of persuasive value for this case. The Appeals
Chamber found that the Bosnian Serb army was not an organi zation whose actions were criminal
167
per se; instead, it was an army fig hting a war . More relevantly and more critically t he Trial
Chamber found that he was involved in the war in Croatia but was not responsible for any crimes.
39. To summarize, we need to avoid the Applicant’s broad- brush analysis. The three cases
that examined the question of whether Milošević’s government was engaged in legitimate warfare
in Croatia, and which delivered Judgements, came to the same answer. The three individuals have
not been found to be part of any criminal agreement with the Krajina leadership and not found to
have any intent to commit crimes.
40. Therefore, contrary to the Applicant’s claim, the ICTY has not consistently rejected the
proposition that the Serbian leadership from Belgrade were engaged in lawful or legitimate
conflict, it has consistently accepted it. The findings are consistent with the suggestion of
165
Stanišić and Simatović Judgement,para. 2418.
16Perišić, Appeal Judgement, para. 3.
167
Perišić, Appeal Judgement, para. 53. - 56 -
legitimate armed conflict designed to establish control of territory through fighting the Croat
military forces that the Applicant claims did not exist.
41. This, Mr. President, Members of the Court, is the “robust platform” on which the
Applicant’s case and the non-ICTY evidence must rest and ultimately flounder. As I will address
in due course, the patterns of violence in this case shows that much of the unforgivable violence
against civilians is explainable from this perspective. Whether I am correct about this or not, the
starting-point cannot be the presumption urged upon the Court that all violence was unconnected to
military activities.
42. A close examination of the Applicant’s favourite cases Martić, Babić, and Mrkšić
only reinforces the ICTY’s findings in Stanišić and Simatović, and Perišić. Not only is the
168
phantom of Greater Serbia that has haunted this Court a total non- issue in these cases , they also
fail to establish the Applicant’s second proposition and to that I now turn.
That the JCE found in the Martić judgement provides a platform for a finding that there
existed a criminal enterprise between the Krajina Serbs (Martić, Babić and others) and
the Belgrade Serbs (Milošević, the JNA and others) that involved an agreement to
destroy? 169
Martić
43. The Applicant submits that the JCE found in the Martić Judgement provides a platform
for a finding that there existed a criminal enterprise between the Krajinc Serbs and the Belgrade
Serbs that involved an agreement to destroy. Let me turn to Martić to examine this proposition.
According to the Applicant, the Martić Judgement, at paragraph 446, established that at all relevant
times there was in existence a joint criminal enterprise amo ngst the Serb political and military
leadership “whose purpose was to destroy the Croat civilian population by killing and removing
them from approximately one third of the territory of Croatia”. This “is the first major finding that
170
the Applicant relies on” . However, we need to be careful. This is not what Martić found. In
fact it found the opposite.
168
Martic, Judgement, paras. 266 and 403;Stanisic and Simatovic, Judgment, paras. 342, 348, 1250Perisic,
Judgment, para. 1340.
16CR 2014/6, p. 50, para. 8 (Starmer).
170
CR 2014/12, p. 51, para. 8 (Starmer). - 57 -
44. In order to examine this proposition, it is necessary to say a few words about joint
criminal enterprise (JCE). Please forgive me for stating the obvious, but it is necessary to keep a
hold on what the fi ndings actually mean and what the liability actually does and says. Joint
criminal enterprise is a mechanism for assigning individual l iability to those charged with
“committing” crimes. The ICTY jurisp rudence establishes three forms: JCE I, the basic f orm,
171
JCE II, the systemic form, and the extended form, JCE III . All the ICTY cases relevant to this
case concerned JCE I and JCE III. We can leave JCE II to the side.
45. In essence, to prove liability pursuant to JCE I, the prosecution must establish the
following three objective elements beyond reasonable doubt:
172
(i) the existence of a common plan to commit a crime provided for in the Statute ;
(ii) a group of persons acting together in pursuit of this plan to commit a crime 173; and
174
(iii) that the accused significantly contributed to the common plan .
46. In addition to establishing these objective elements, a prosecutor must also prove that the
accused possessed the requisite mens rea for the crimes charged and the overall criminal plan.
47. There is a fun damental difference between JCE I and JCE III liability. Convictions
pursuant to JCE I require a different mens rea than convictions pursuant to JCE III. JCE I liability
attaches when the accused (together with the other members of the JCE) in tended the commission
of a crime or crimes in pursuit of the jointly agreed criminal plan 175. Under JCE I, the trier of fact
must be satisfied that the criminal intention of the accused is identical to the other JCE
participants 17.
48. JCE III is an extension of JCE I. It is further liability that arises when additional crimes
occur beyond the scope of the agreed common plan. Courts assess liability for these additional
crimes pursuant to a different mens rea. For JCE I liability to attach, additional crimes outside the
common criminal plan need not be intended by the a ccused. It is sufficient that they were carried
171Martic, Judgement, para. 190.
172
Martić, Judgement, para. 190; Tadić, Appeals Chamber, para. 227.
173Martić, Judgement, para. 190; Prosecutor v. Krajišnik, Judgement, Trial Chamber, 27 Sept. 2006, para. 884.
174Martić, Judgement, para. 190; Prosecutor v. Krajišnik, Judgement, Trial Chambe r, 27 Sept. 2006, para. 884;
Brđanin, Judgement, Appeals Chamber, 3 April 2007, para. 430 (internal citations omitted)
175
Brđanin , paras. 365, 430-431; Judgement, Vasiljević, Appeals Chamber, 25 Feb. 2004, para. 101.
176Tadić, Appeals Chamber, para.196. - 58 -
out in furtherance of the intended common plan, and were the reasonably foreseeable consequence
of that common plan . 177
49. Thus, JCE I liability arises from a plan to commit the crime intention; JCE III arises
from crimes that were a reasonably foreseeable consequence of that plan.
50. Holding these thoughts at the forefront, let me turn back to Martić . At paragraph445,
the Martić Trial Chamber found that the common purpose of the JCE was the establishment of an
ethnically Serb territory through the displace ment of the Croat and other non- Serb population
178
through the crimes of deportation and forcible transfer . They intended deportation and forcible
transfer.
51. The shared intent the criminal agreement found was not to destroy or even to
commit any of the Article II acts, without genocidal intent . The 11 JCE members were not found
to have agreed or intended to commit murder, or acts of physical or mental harm. They were found
179
responsible pursuant to JCE I for agreeing to deportation and forcible transfer . The other acts,
the murder, the physical and mental harm, were deemed to be foreseeable from the plan that was
intended.
52. Therefore, even if, as a general proposition, JCE findings could be used to establish the
type of “effective control” we are concerned with here, which in many cases is legally and factually
untenable, or even if the Martić Judgement specifically could stand, as the Applicant claimed last
week, as evidence of “irrefutable proof of the bonds of allegiance and control that existed between
the Serbian leadership in Belgrade and the forces of the ‘SAO Krajina’ and ‘RSK’” 180, it is proof of
nothing more than a shared intention to forcibly transfer or deport. Nothing else.
53. The Trial Chamber found that the JCE members from Belgrade and the Krajina intended
persecution but the constituent acts were forcible transfer and depor tation. None of the other acts
of persecution, murder, torture, inhumane acts, cruel treatment, wanton destruction of villages ,
177
Tadić, Appeals Chamber, para. 204.
17Martić, Judgement, paras. 452–455, 518.
17Ibid., paras. 445–446.
180
CR 2014/7, pp. 49-50, para. 14 (Starmer). - 59 -
wilful damage to institutions , plunder, etc., were found to have been perpetrated and intended or
181
agreed to by the members of the JCE .
54. Put simply: neither Martić nor any member of the criminal enterprise found intended to
commit the crimes that are the constituent foundation of the Applicant’s claim. The Trial Chamber
182
found them responsible for these types of crimes on the basis of foreseeability only .
55. Further, even on this extremely low and controversial foreseeability threshold, that is,
imputing crimes, even crimes of specific intent, such as persecution, on the basis of foreseeability,
and without a showing of shared intent, the Tr ial Chamber ruled that none, I repeat none, of the
JCE members, neither Martić, the leaders of the JNA or Milošević, intended to commit
extermination, nor was it foreseeable, nor had it in fact occurred.
183
56. As to the last point, as Professor Schabas highlighted in the first round , the Trial
Chamber found that the evidence did not support a finding that the actus reus of extermination was
established. The Trial Chamber ruled that the killings that had been foreseeable, but not intended,
did not occur on a “large scale” or “an accumulated basis” 18.
57. The Applicant’s claim therefore that the JCE found in the Martić Judgement that there
existed a criminal enterprise between the Krajina Serbs (Martić, Babić and others) and the Belgrade
Serbs (Milošević, the JNA and others) that involved an agreement that might be equated or give
185
rise to an inference of destructi on is wrong. Not only was there no intention to destroy, there
was not even an intent to commit Article II acts without genocidal intent.
58. Therefore we find ourselves in the unusual position of agreeing with the Applicant on an
issue, namely that th e Martić Judgement is highly persuasive. However, not for the reasons
advanced by the Applicant. In fact, the Martić Judgement has answered one of the precise question
that this Court has been called upon to address.
59. One question, the first question, perhaps: were Article II acts committed? The second
perhaps is the one asked and answered by the Martić Judgement: did the Belgrade Government
181
Martić, Judgement, paras. 454-455.
182
Martić, Judgment, para. 454.
183CR 2014/15, para. 36, p.23
184
Martić, Judgment, para. 404.
185
CR 2014/6, p. 50, para. 8 (Starmer). - 60 -
intend the commission of the Article II acts? This gateway question has been answered with a
resounding “No”.
60. The Applicant faces an additional problem with Martić, not quite as devastating as that
but, nonetheless, still significant. The problem with the Martić finding implicating the Belgrade
Serbs is that there are manifest flaws in the judgement with regard to the membership of the JCE
found, and there is little within or external to the judgement to corroborate the findings. First, I
will deal with the problems and then I will move to the lack of corroboration.
The PRESIDENT: Excuse me. Can we hav e it a little bit more slowly please. It will
facilitate the interpretation into French.
Mr. JORDASH: I beg your pardon.
61. As discussed earlier, to prove liability under JCE I, the existence of a common plan to
commit a crime; a group of persons acti ng together in purs uit of the crime; and that the a ccused
significantly contributed to the common plan, must be established beyond a reasonable doubt.
62. Of course, the degree of certainty of proof that might be established on each element is,
as of nece ssity, variable. Often in a case, areas that are non -contentious are not given the same
“airplay” as others and certain findings are based on evidence that has not been subject to the same
degree of challenge or scrutiny. One such area is the identificat ion of JCE members and the
establishment of their conduct.
63. Why does the Respondent say this? In any JCE trial involving individuals alleged to be
part of an agreement to commit crime, the accused tends not to focus on proving that there was no
criminal agreement or that certain individuals were not part of it, but, instead, focuses on seeking to
show that he was not part of it.
64. As a consequence, the Trial Chamber is optimally assisted with regard to resolving this
contentious issue, and less so with regard to others. The Trial Chamber gets all sides of this issue,
sees witnesses challenged, and makes their mind up accordingly. The Trial is about his guilt or
innocence, not the others.
65. The accused, frankly, does not care one way or anothe r about the external issues. All he
cares about is showing the court that he was not part of the criminal enterprise and that his - 61 -
contribution to the crimes was not significant. If he succeeds on these issues, he will be acquitted
of responsibility pursuant to the JCE.
66. No doubt the Applicant will deride such an analysis, claiming that it is only speculative.
Another attempt by the Respondent to wriggle out of the JCE judgements?
67. However, as recognized by this Court in the Bosnia case, ICTY ju dgements may be
highly persuasive, in part because the accused has the right to examine witnesses against them.
Thus, the Court recognizes that the presence or absence of cross- examination is a valuable
186
indicator of reliability and weight . Therefore, if you come to the conclusion that the Respondent
is right with regard to the lack of cross- examination or challenge on the membership of the JCE,
and for those of you involved in these types of trials, I am confident you will agree with my
proposition, then it follows. So less an attempt to wriggle, more a corollary of this Court’s
findings.
68. Moreover, this is not just theory. The frailties of the Martićjudgement with regard to the
findings on the involvement of members of the Serbian government in a criminal agreement with
the Krajina Serbs are manifest. This is clear from the findings with regard to Stanišić and
Simatović.
69. As this Court knows, as I have addressed you upon, these men were alleged to have been
at the core of the JCE. Their acquittal sits completely at odds with the Martić trial judgement that
found them to be members of the 11- man group engaged in pursuing a criminal enterpr ise 187. So
which decision, I pause to ask, does the Applicant claim is “highly persuasive”? The one that
examined Stanišić and Simatović’s alleged criminal liability at close hand, or the one that almost
certainly only addresses one side of the story.
70. If this is not sufficient to raise serious concerns with regard to placing too much weight
on the findings that appear to implicate the Belgrade Government, it is worthwhile examining the
Trial Chamber’s reasoning with regard to why it found that the Be lgrade Serbs shared the intent to
commit forcible transfer and deportation. Whilst brevity of legal reasoning may be considered a
18Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro, Judgment, I.C.J. Reports 2007 (I) (hereafter Bosnia), p. 133, para. 220.
18Martić, Judgement, paras. 445-446. - 62 -
virtue, the Trial Chamber’s reasoning on this critical aspect is almost absent. The Trial Chamber’s
factual and legal findin gs concerning the existence of a joint criminal enterprise was analysed in
13 paragraphs of a 520-paragraph judgement . 188
71. As an examination of these 13 paragraphs shows, there is little that explains why the
Chamber was persuaded beyond a reasonable dou bt that the co -operation of the Krajina and
Belgrade political and military leadership was actually in pursuit of a crime. This lack of reasoning
is important. As noted in the Bosnia case at paragraph 221, one of the reasons ICTY judgements
start out as highly persuasive is that reasons are given in writing. In this instance, they were not.
72. Of particular concern, is the one paragraph finding that the members of the joint criminal
189
enterprise consisted of “at least” 11 individuals . Whilst this find ing was globally referenced to
the Factual Findings in Section III of the judgement, the Trial Chamber failed to specify which
particular findings, or paragraphs, were relevant and how it reasoned from the factual findings to
the legal finding that a particular JCE member’s conduct demonstrated his shared criminal intent
at the core of the JCE. There is nothing in the paragraph to show that the Trial Chamber’s grappled
with the central question.
73. An examination of the Factual Findings in Section III provides an insight, but only just,
190 191 192
into four members of the JCE Babić , Adžić , Kadijević and Milošević. In relation to
others, as Mr.Ignjatović outlined during the first round 193, and the Applicant ignored in the second,
the analysis is weak to say the least.
74. Let me take one example. The Trial Chamber fou nd, purportedly beyond a reasonable
doubt, that Šešelj was one of the 11 and acting in furtherance of the criminal enterprise and
intended the crimes of forcible transfer and deportation.
75. However, as discussed, the paragraph that made the finding of the 11 contained no
reasoning. More importantly for this discussion, the remainder of the judgement Section III,
188
Martić, Judgement, paras. 442-455.
189
Ibid., paras. 445-446.
190Ibid., para. 333.
191Ibid., para. 331.
192
Ibid., para. 330.
193CR 2014/16, pp. 15-16, paras. 79-81 (Ignjatović). - 63 -
Factual Findings made only one factual finding in relation to Šešelj, namely that he visited a
hospital which was being used as detention centre in Knin 194 on one occasion and insulted the
195
non-Serb detainees . His shared intent for the criminal enterprise was established on the basis of
this single factual finding.
76. Is this an example of the Martić judgement’s persuasive value, showing “irrefutable
proof of the bonds of allegiance and control that existed between the Serbian leadership in
Belgrade and the forces of the ‘SAO Krajina’ and ‘RSK’ . . .”? 196
77. Moving to corroboration, this can be dealt with simply, as it was by Mr. Ignjatović
during the first round. The Applicant failed to respond in the second round, but the points cannot
be so easily ignored.
78. Of the 11 JCE members, only eight Adžić, Bogdanović, Kadijević, Milošević, Mladić,
Šešelj, Stanišić, and Simatović were alleged to be part of the Serbian leadership. The remainder
were part of the local leadership. It is useful to examine what happened at the ICTY with regard to
the whole 11, but with particular focus on the eight. As we can see:
(i) Adžić, Chief of Staff until May 1992: not indicted by the ICTY Prosecutor;
(ii) Bogdanović, Minister of Interior of Serbia until March 1991: not indicted by the ICTY
Prosecutor;
(iii) Kadijević, SFRY Federal Secretary for Defence until January 1992: not indicted by the
ICTY Prosecutor;
(iv) Milošević, President of Serbia: died before the trial was completed;
(v) Mladić, Commander of the 9th Corps of the JNA in Knin in 1991: on trial at the ICTY,
but not for events in Croatia;
(vi) Šešelj, Deputy Prime Minister of Serbia later in March 1998 until October 2000: on trial
at the ICTY;
(vii) Simatović: acquitted by the ICTY;
194
Martić, Judgement, para. 288.
19Ibid., paras. 288, 416.
196
CR 2014/7, pp. 49-50, para. 14 (Starmer). - 64 -
(viii) Stanišić: acquitted by the ICTY and that is the eight that we are really concerned with
in this submission;
(ix) Babić, President of the RSK and other leadership roles in the Krajina: pleaded guilty to a
JCE. I will come back to that in a moment. Although he pleaded guilty to a JCE, it was
not the same as that found by Martić;
(x) Karadžić, Bosnian Serb President: on trial at the ICTY, but not for Croatia;
(xi) Vasiljković 19, alleged paramilitary leader: not indicted by the ICTY Prosecutor.
In other words, none of the eight dealt with in Martić have been convicted and most have not even
been tried.
79. And so again I a sk, does the Martić finding, when looked at in the totality of the
circumstances, really provide “irrefutable proof” of the guilt of the Serbian leadership even
when looked at through the narrow lens of forcible transfer or deportation? It looks more li ke
highly persuasive evidence that the Milošević government was not involved in any criminal way
with the events in Croatia.
80. And so we are left with the Babić case, another of the Applicant’s favourite cases.
Unfortunately for the Applicant, this pl ea agreement only muddies their waters even further. The
Applicant claims that this judgement corroborates the findings in Martić of the existence of a joint
criminal enterprise that involved an agreement between the Krajina Serb and the Belgrade
leadership. However, it does not.
81. While the Respondent accepts this Court’s finding in the Bosnia case, that plea
agreements and the associated sentencing judgements, where relevant, start with a certain
weight 198, the question, of course remains, what that weight will finally accrue.
82. An examination of the Babić plea agreement and judgement, alongside the other ICTY
cases, especially Martić and Stanišić and Simatović really does raise more questions than it answers
and shows, if more evidence was needed, the dangers in the Applicant’s approach to the ICTY
jurisprudence and the shifting sand upon which they have built their house.
19Martić, Judgement, paras. 445-446.
19Bosnia Judgment, para. 224. - 65 -
83. On 22 January 2004, Babić pleaded guilty to being a co-perpetrator of a joint criminal
enterprise . However, the joint criminal enterprise he pleaded guilty to did not place h im into the
same criminal plan as that found in Martić.
84. First, Babić’s JCE consisted of an agreement to commit persecutions as a crime against
200
humanity . He alleged and admitted that his criminal agreement, which purportedly involved
Martić and others as we will see in a moment, involved not only persecution constituted from acts
of transfer and deportation, like the Martić finding, but also “[t]he extermination or murder of
201
hundreds of Croat and other non- Serb civilians . . . . Obviously different to the findings in
Martić.
85. Second, as part of his plea agreement, Babić and the Prosecutor, and this is expressed in
the agreement, agreed that the evidence showed beyond a reasonable doubt that,
“From August 1990, a parallel structure started emer ging in the Krajina
comprised of members of the Ministry of Interior of Serbia, the State Security service
of Serbia, the SDS in Croatia and policemen in the Serbian municipalities in Croatia
which ultimately answered directly and exclusively to Slobodan M ilošević. The
central figures of this parallel structure in Serbia, aside from Milošević himself, were
Jovica Stanišić from the Serbian DB and his subordinate Franko ‘Frenki’ Simatović.
In the Krajina, the central figures were Milan Martić and Dragan Vasiljković, aka
Captain Dragan.” 202
Obviously, this is not what was shown in the Stanišić and Simatović case, nor is it consistent with
the ICTY Prosecutor’s decision not to indict Vasiljković.
86. Several points therefore arise that are relevant to the Appl icant’s case and which they
continue to avoid. The first one is one of principle: in light of the fact that Babić was a
self-confessed criminal, how much probative weight can properly be given to those aspects of his
plea agreement that implicate others?
87. International criminal law takes a common sense approach to this issue. Any evidence
that emerges from such accomplices and implicates others, requires cogent corroboration from a
199
Babić, Plea Agreement, para. 3.
20Babić, Indictment, para. 16.
20Babić, Appeals Judgement on Sentencing, para. 3.
202
Babić, Factual Statement to the Plea, paras. 16 and 17. - 66 -
203
reliable source . In the Martić Trial, the Chamber went one step f urther with Babić’s plea and
took into account the fact that Babić had testified pursuant to a plea agreement and that some of the
204
charges were dropped against him as a result of that plea agreement .
88. Whether it was due to these admonishments that his evidence was rejected, in both
Martić and Stanišić and Simatović, is not immediately apparent, but rejected it was. Babić’s plea
agreement, and his allegations against others, stands in splendid isolation to the remainder of the
relevant ICTY findings.
89. In relation to the benefit that Babić obtained from advancing these allegations, it is
worthwhile returning to the Martić case. Whether they are directly comparable is a complex
question. However, Babić was the President of the RSK and Martić was, at least de jure, Babić’s
subordinate. Martić was convicted and received a sentence of 35 years. Babić’s arrangements led
to a sentence of only 13.
90. Therefore, the problem of the reliability of his allegations against others is, perhaps, an
obvious one. As part of Babić’s plea agreement, he had to co-operate with the prosecutor and
testify against the Serb leadership. He had to be useful. Only then would he receive his reduced
sentence. There can be no surprise that his allegations turned out to be overblown and found to be
in large part false. Be that as it may, they cannot corroborate the finding in Martić. Martić stands
alone as highly persuasive evidence against the Applicant.
91. I will now turn to the Applicant’s third remaining proposit ion, that the Mrkšić
Judgement’s finding that all of the forces participating in the military operations in Croatia
operated under the effective command and control of the JNA and that this is fully convincing
evidence in respect to each operation during which the alleged violations occurred 205.
203Accomplice evidence needs to be approached with caution, see Lukić and Lukić, Appeal Judgement, para. 128;
Krajišnik, Appeal Judgement, para. 146; Blagojević, Appeal Judgement, para.82; Haradinaj et al., Appeal Judgement
(retrial), para. 145; Blagojević and Jokić,Appeal Judgement, para. 82.
204Martić, Judgement,para. 34.
205
CR 2014/12, p. 44, para. 22 (Ignjatović), citing to Mrkšić, Trial Judgement, para. 89; CR 2014/6, p. 50, para. 9
(Starmer). - 67 -
Mrkšić
92. I will make a number of observations that I hope will assist this Court in deciding what
weight to place on theMrkšić finding.
93. Of course, we know why the Applicant places such overweening weight u pon a single
paragraph paragraph 89. As Mr. Ignjatović correctly noted, “[t]he Applicant is trying to use one
sentence from paragraph 89 of the Mrkšić et al. Judgment as a vehicle to overcome the
requirements of Article 8 of the ILC Articles on State Responsibility” 206.
94. The Applicant’s attempt must be rejected. According to this Court’s jurisprudence,
effective control is required and needs to be established and proven in every individual and
concrete situation. The Applicant must meet very high standards. But the Court must be presented
with fully convincing evidence in respect to each operation during which the alleged violations
occurred, and not generally, in respect of all the actions taken by persons or groups who allegedly
committed such violations 20.
95. Therefore in a case full of astonishing claims, the Applicant’s reliance on paragraph 89
of the Mrkšić Judgement must be vying for the top spot. It must be the most overused and
shamelessly abused paragraph of any judgment ever written at the ICTY. I almost feel
embarrassed putting its contents back on the screen. However, in order to lay this argument to bed
once and for all, put it back, I must.
96. Paragraph 89, consists of three elements:
“(i) that the Court had found that “the de facto reality” was that not only in the zone of
operations of OG South, but, generally, in the Serb military operations in Croatia, the JNA
had complete command and full control of all military operations;
(ii) that the circular of the Chief of the Gener al Staff of 12 October 1991 and the order of the
command of the First Military District (1 MD) of 15 October 1991, confirmed this to be
correct; and,
20CR 2014/15, p. 62, para. 56 (Ignjatović).
20CR 2014/15, para. 42, p. 43 (Lukić), citing to Bosnia Judgment, p. 129, para. 209; p. 208, para. 400. - 68 -
(iii) that the JNA had the military might to enforce its will, even though it may well have been
reluctant to be too heavy handed in doing so, upon the TO and volunteer or paramilitary
units fighting in the Serb cause.”
97. As a preliminary matter, I would adopt, once again, Sir Keir Starmer’s words, let us have
a reality check. The proposition that a s ingle judgment, let alone a single paragraph, could bear
such a heavy probative load is asking perhaps a little too much. That the Applicant takes this
approach, speaks eloquently to the frailty of its case.
98. Even if the Mrkšić Judgement actually inv olved a detailed consideration of each and
every corner of Croatia, which it plainly does not, the proposition that the de facto reality of this
armed conflict could be neatly analysed and summed up in a single paragraph is curious to say the
least.
99. Leaving State responsibility aside as an examination of international criminal law
jurisprudence shows, command ability requires a careful examination of actual concrete
circumstances and an examination of the de facto reality of fluctuating war. Such questions cannot
be subordinated to singular considerations of how large or how well resourced a military
organization might be in relation to putative subordinates.
100. As the jurisprudence of the ICTY and ICTR ad hoc tells us, and common sense dictates,
an analysis of “de facto control” or “effective command” is a complex business that cannot be
reduced to such generalities.
101. Given the Applicant’s refusal to follow the operation -by-operation methodology of
assessing effective control outlined in the Nicaragua case, it may not be necessary in this case to
fully resolve the precise applicability of the international criminal law threshold for “effective
control” underpinning superior responsibility. Nonetheless, similar questions are addressed in
international criminal law, such as whether alleged subordinates were acting “on the instructions”,
or “under the direction” or “under the control” of alleged superiors. International criminal law’s
careful approach to examining on a case- by-case basis these questions, sits in stark contrast to the
approach urged by the Respondent in this case with regard to State responsibility. - 69 -
102. In international criminal law distinctions are drawn between de jure status and de facto
reality. Substantial influence must be distinguished from effective control 208. A trier of fact must
209
examine indices of effective control or authority . Factors to be considered in determining
authority and effective control include, inter alia, the official position held by the alleged
commanders; the capacity to issue orders; the procedure for appointment; the position of the
accused within the military or political structure; and the actual tasks performed 210 21.
103. Factors considered to determine whether particular units are under th e effective control
of the regular army include, inter alia, any compliance or non- compliance with army orders or
procedures; the precise participation in combat with the regular army; the access of the army to
premises and prisoners; the recruitment of civilians and soldiers; mutual assistance; reporting
procedures; the ability to investigate and punish unit members; the appointment of the members of
212
the unit; and the disbanding of units .
104. The fact that a unit fought alongside a unit of the r egular Army is insufficient to
213
establish de facto control over that unit . Merely being tasked with co -ordination does not
214
necessarily mean command and control . Mere participation in joint combat operations is not
sufficient to find that commanders of d ifferent units exercise effective control over all participants
215
in a battle . And so it goes on.
105. The Applicant wants to discard all these types of de facto considerations on the basis of
a single paragraph in a judgement that was plainly not focused on this issue.
106. Which brings me to the question of what the finding of Mrkšić is based on. Last week
we were told by the Applicant that the Tribunal’s findings in Mrkšić about “the JNA’s command
208
Prosecutor v. Delalic, Judgement, 20 Feb. 2001, paras. 266, 300; Prosecutor v. Blagojevic & Jokic,
Judgement, 17 Jan. 2005, para. 791; Prosecutor v. Halilovic, Judgement, 16 Nov. 2005, para. 59; Prosecutor v. Limaj et
al., Judgment, 27 Sept . 2007, para. 273 ; Prosecutor v. Blagojevic & Jokic, Judgment, 17 Jan. 2005, para. 791;
Prosecutor v. Oric, Judgment, 30 June 2006, paras. 309 and 311.
209
Prosecutor v. Hadzihasanovic & Kubura, Judgement, 22 April 2008, para. 199.
21Prosecutor v. Halilovic, Judgement, 16 Nov. 2005, para. 58.
21Prosecutor v. Hadzihasanovic & Kubura, Judgement, 15 March 2006, para. 83.
212
Prosecutor v. Delic, Judgement, 15 Sept. 2008, para. 368.
213
Prosecutor v. Delic, Judgement, 15 Sept. 2008, para. 345; Prosecutor v. Hadzihasanovic & Kubura,
Judgement, 22 April 2008, para. 209.
21Prosecutor v. Oric, Judgement, 30 June 2006, para. 311.
21Prosecutor v. Hadzihasanovic & Kubura, Judgement, 15 March 2006, para. 84. - 70 -
216
over Serb paramilitaries [in the whole of Croatia throughout 1991] were unequivocal” and that
by casting doubt over it the Respondent was seeking to invite the Court to “assume the role of
217
unofficial Appeal Chamber for ICTY findings unhelpful to the Respondent’s case” .
Professor Crawford told us that this finding of fact should be accepted: “the Court lives in the real
218
world” .
107. And yet the Respondent does not dispute that this finding is based upon only two
documents. It cannot dispute this, because despite the Court’s finding, neither the subject-matter of
the trial, the submissions of the parties, the contentious issues t hat required resolution, or the cases
of the accused, involved evidence that directly addressed the issue of the wider command
responsibilities throughout Croatia.
108. And so we are left with the Applicant clinging desperately to two documents. That a
finding of this breadth and import could conceivably be based on two documents is an astonishing
proposition. The Applicant’s continued reliance upon it is as ambitious a legal submission as we
are likely to find in any international court.
109. Even if this was slightly plausible, these documents do not even come close to
possessing that definitive character. On the contrary, as observed by Mr. Ignjatović, they are
aspirational documents, and do not purport to describe a given moment or situation in time. This is
not to “turn them on their head” or to “speculate that the orders were issued in order to ‘fix’
problems of ‘lack of discipline and [a] lack of control’”, as the Applicant claimed 219, but merely to
read the plain words on the page.
110. The circular of the Chief of the General Staff of 12 October 1991 is largely irrelevant to
the issue of command. Other than stating:
“All armed units, be they JNA, TO or voluntary units, must act under the single
command of the JNA. They should behave and act according to the rules that apply in
the army, showing full respect for military discipline hierarchy, military laws and
regulations, in all circumstances of life, work and combat activities. These positions
should [and this is the critical bit] immediat ely be communicated to the JNA officers,
216
CR 2014/20, p. 39, para. 40 (Ní Ghrálaigh).
217CR 2014/20, p. 40, para. 40 (Ní Ghrálaigh).
218CR2014/21, p. 32, para. 65 (Crawford).
219
CR2014/20, para. 46, p. 41 (Ní Ghrálaigh); CR 2014/15, p. 59, para. 47 (Ignjatović). - 71 -
and subsequently, in the most suitable manner, to soldiers220d civilians [subsequently
they shall be communicated to soldiers and civilians].”
111. The 15 October 1991 order of the command of the First Military Di strict (1 MD) of
15 October 1991 the second document does not take the Applicant’s case any further. It
shows that the command of the first military district observed that “[p]ursuant to recent problems in
the zones of combat activities” they now orde r that the JNA should “[e]stablish full control in the
[area of responsibility] of the units”; order that “[a]ll paramilitary compositions and the voluntary
detachments which refuse to put themselves under the command of the JNA units are to be
removed from the territory”. It ordered that the JNA should establish full control, not that the JNA
had full control.
112. Plainly, the documents do not purport to describe an existing de facto situation in the
whole of Croatia. They are orders for the future nothing more, nothing less. Is the Applicant
really saying that these two orders prove the de facto reality for each and every operation in
Croatia? Are they really saying that this Trial Chamber, asked to examine events that occurred in
Vukovar over a restricted period, heard evidence of command from all over Croatia? And, if so,
where is this evidence? Why does it not appear in the judgement? How are we to know whether it
was correct? How do we test its reliability? With the greatest of respect to the Trial Chamber, it is
assertion devoid of evidence other than to aspirational documents.
113. Moreover, as Mr. Ignjatović pointed out in the first round, nothing in the remaining
221
ICTY jurisprudence supports this assertion . Where the situation was concretely examined in
Martić and Stanišić and Simatović, the Trial Chambers disagreed with the Mrkšić judgement, yet
offered detailed and logical reasoning in support. As noted at paragraph 142 of the Martić
judgement, there:
“is evidence that beginning of the summer of 1991, the SAO Krajina TO was
subordinated to the JNA. There is also evidence of operational cooperation between
the JNA and the armed forces of the SAO Krajina. Any resubordination of MUP units
to the JNA for temporary assignment required prior approval of the Minister of
Interior of the SAO Krajina. When resubordinated, the MUP unit would be a cting in
cooperation or [in] concert with the JNA unit, it would remain under the command of
the MUP commander.”
114. Subordination as such did not even equate to subordination proper. And more:
22Federal Secretariat for National Defence, Order 12 October 1991, p. 2.
22CR 2014/15, p. 55, para. 31 (Ignjatović). - 72 -
“For the purpose of combat operations, TO units could also be resubordinated to
JNA units. When resubordinating, the largest unit of either the TO or the JNA would
command, which would normally be the JNA unit in a given area.”
These show the fluctuating nature of subordination. That is why examination of concr ete
operations is essential.
115. The Stanišić Trial Chamber agreed with these findings. The Stanišić Trial Chamber
found that any “resubordination of MUP units to the JNA for temporary assignment required prior
222
approval of the Minister of Interior of the SAO Krajina” . In other words, the de jure superior, at
least, was not the JNA. The MUP units were expected to act “on the instructions”, or “under the
direction” or “under the control” of the Ministry of the Interior which was Martić.
116. Finally, the Applicant alleges that the Respondent’s claim that the Tribunal’s finding
of command and control in reality relates only to the circumstances that prevailed at Ovčara is
“meritless” 22. Strong words, but plainly two Trial Chambers who descended to reasoning do not
agree.
117. True, as the Applicant pointed out, the Mrkšić Chamber did state, that it is, “misleading
to view the events in Vukovar in isolation or to imagine they were only governed by local factors.
224
They were but part of a much wider political and military struggle.” As pointed out also by the
Applicant, the Chamber also made some limited findings contained in two paragraphs of the
225
existence of military attacks in five named towns in Eastern Slavonia .
118. However, there is nothing in these meagre descriptions to suggest that the Chamber had
examined the narrative of the attacks, let alone examined the nature of the command. The only
other reference to military operations by the JNA in other locations in Croatia is a wholly
unsupported single sentence: “At the same time mili tary operations by the JNA were occurring
elsewhere in Croatia.” 226 No footnote, no evidence, no support.
119. The Applicant avoids addressing these issues.
222
Stanišić, Judgement, para. 2162.
223
CR 2014/20, p. 41, para. 46 (Ní Ghrálaigh).
224CR 2014/20, p. 41, para. 47 (Ní Ghrálaigh), citing to Mrkšić, para. 19.
225
Mrkšić, Judgement, paras. 34-35.
226
Mrkšić, Judgement, para. 34. - 73 -
Conclusion: the Applicant’s “robust platform”
120. So to conclude, the Applicant’s robust platf orm with regard to the ICTY evidence and
the three propositions.
Proposition one
121. That the ICTY jurisprudence excludes the possibility of lawful combat or excludes the
possibility that the Serbian leadership or in fact any of the Serb leadership from the Krajina or any
Serb individual was engaged in lawful combat has been roundly rejected by the ICTY.
Proposition two
122. The Applicant claims that the JCE found in the Martić Judgement provides a platform
for finding that there existed a criminal ente rprise between the Krajina Serbs (Martić, Babić and
others) and the Belgrade Serbs (Milošević, the JNA and others) that involved an agreement to
227
destroy .
123. The Applicant only gets home with this argument, by ignoring the plain terms of the
Martić findings and how it sits with the other salient judgements.
124. As I have shown, the Martić Judgement assessed the gateway question for the
Applicant’s genocide claim and rejected it. It asked the question “did the Belgrade Serbian and
Krajina leadership share an intention to commit murder or serious physical and mental harm”, and
answered that it did not.
125. Where the Martić Judgement might have proffered some support for the Applicant’s
case, inasmuch as it offered some support for the proposition that the Belgrade leadership formed
an agreement to commit the crime of forcible transfer or deportation, it can be shown to be
unreliable at best, wholly contradicted by the Stanišić and Simatović and Babić cases.
Proposition three
126. That the Mrkšić Judgement’s finding can be relied upon 22.
127. The Applicant proffers nothing in support of this proposition other than two documents.
22CR 2014/6, p. 50, para. 8 (Starmer).
228
CR 2014/12, p. 35, para. 85 (Starmer), citing to Mrk, Trial Judgement, para. 89, pa ra. 400; CR 2014/6,
p. 50, para. 9 (Starmer). - 74 -
128. This is the platform that the Applicant’s case rests upon: it is no platform at all.
129. And so, having addressed the foundation of the Applicant’s case, tomorrow, I will turn
to the remainder of the evidence and address the intent, through the prism of the context, the
patterns and the issue of opportunity.
130. As the Respondent has constantly asserted, we do n ot suggest there is one easy answer,
and certainly not the one that the Applicant attempts to dish up to this Court. This was a complex
war, with a multitude of actors and a myriad of intentions. None of them looking very much or at
all like genocide. If the Applicant expects a one dimensional or singular theory on intent, then they
will be disappointed. The Respondent lives in the real world. Thank you, Mr. President.
The PRESIDENT: Thank you, Mr. Jordash. This completes today’s hearing. The Cour t
will meet again tomorrow morning at 10 a.m. to hear the continuation of the second round of oral
argument by Serbia. Thank you, the Court is adjourned.
The Court rose at 6.00 p.m.
___________
Public sitting held on Thursday 27 March 2014, at 3 p.m., at the Peace Palace, President Tomka presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)