INTERNATIONALCOURTOF JUSTICE
CASE CONCERNINGAPPLICATIOOFTHE CONVENTION OTHE
PREVENTIONAND PUNISHMENTOF THECRIMEOF GENOCIDE
(BosniaandHerzegovinav. Yugoslavia(SerbiaandMontenegro))
MEMORIAL
OF THE GOVERNMENT OF
'THE REPUBLIC OF
BOSNIAAND HERZEGOVINA
15Ap1994 TABLEOF CONTENTS
PART 1 INTRODUCTION ........................... 1
CHAPTER 1.1 THE LEGAL ISSUESAT STAKEARE OF TRANSCENDENT
IMPORTANCE ............................... 1
CHAPTEX 1.2 SHARPENING THE FOCUS ...................... 4
THE WRONGS ALLEGED ....................... 6
CHAPTER 1.3
CHAPTER 1.4 PLANOFMEMORIAL .......................... 9
PART 2 THE FACTS .............................. il
CHAPTER 2.1 INTRODLTCTION ............................. 11
CHAPTER 2.2 THE ACTS WHICH SHOCKTHE CONSCIENCEOF
MANKIND ................................. 17
Section2.2.1 Concentration camps........................... 17
(a)Prjedor. (Omarska NorthemBosnia) .............. 22
(b)Prijedor(Keraten.NorthemBosnia) .............. 25
(c)Brcko(Zuka .NortheasteBosnia) ................ 27
Section2.2.2 Killing .................................... 30
Section2.2.3 Torture .................................... 37
Section2.2.4 Rape ..................................... 42
Section2.2.5 Expellingof people and destruction of pro.......... 48
Section2.2.6 The creation of destructive livingconditions....... 54
CHAPTER 2.3 THE CONTEXTOF THE ACTS ................... 59
Section2.3.1 The Ideologyof Greater Serbia................... 59
Section2.3.2 War in Sloveniaand Croatia...................... 62
Section2.3.3 The YugoslavPeople'sArmy ...................... 64
Section2.3.4 RAM ..................................... 66
Section2.3.5 The War inBosniaand Herzegovina................. 71 Section2.3.6 JNA's continued presencin the Republic of Bosnia and
Henegovina ................................. 77
Section2.3.7 Yugoslavia'scontinuinginvolvement................ 81
Section2.3.8 Yugoslavia(Serbia and Montenegro)'~public confimations of its
involvement................................. 85
Section2.3.9 Conclusion ................................. 94
PART 3 AUTHORITATIVEIN'IERNATIONAL ORGANS
CONFIRM THE EXISTENCEOF A CAMPAIGNOF
GENOCIDEUNDERTAKENBY THE FEDERAL
REPUBLIC OF YUGOSLAVIA(SERBIAAND
MONTENEGRO) ........................... 95
THE LEGAL RELEVANCEOF THE PRONOUNCEMENTSOF
UNITEDNATIONS ORGANS ..................... 95
CHAPTER 3.2 THE UNITEDNATIONSSECURITYCOUNCIL ........ 97
CHAPTER 3.3 CONFIRMATIONBY OTHER AUTHORITATWE ORGANS
THAT THE ACTS COMMlTTED AMOUNTTO GENOCIDE110
Section3.3.1 The GenocideConventionispha facia epplicable...... 110
Section3.3.2 The United NationsGeneral Assembly............... 111
Section3.3.3 The UN Commission on Human Rightsand its
Sub-Commission ............................. 116
Section3.3.4 The SpecialRapporteur on Human Right n Former
Yugoslavia................................. 119
Section3.3.5 The United NationsCommissionof Experts ........... 121
Section3.3.6 The Vie~a World Conference on Human Rights ........ 123
Section3.3.7 The Committeeon Human Rights .................. 124
Section3.3.8 The Committeeon the Elimination of Racial Discrimina.io125
CHAPTER 3.4 INTERIM CONCLUSION ...................... 125 PART 4 JURISDICTION AND ADMISSIBIL~ . .. . ... . 129
CHAFTER 4.1 INTRODUCTION ..... .. . .. .. . ... . . ... . . . . . .129
CHAPTER4.2 JURISDICTIONOF THE COURT . .. . .... . .. . .. . . .133
Section4.2.1 BosniaandHerzegovina isboundby the GenocideConvention134
The internutionalstatus of Bosniaand Henegovina .. . .. ... 134
a. Thealle,gedabsenceof statehood of Bosniaand Henegovina 134
b. The alleged "illegitirnacy"of the Govenunent of Bosnia and
Henegovina ... .. ... . .. . . ... . . . .... . . . .... . .137
Bosnia and Henegovina has succeededthe S.F.R.Y. to the Genocide
Convention: . . . .. . . . . . . . . . .. . . ... . .. . . . . 142
Bosnia and Henegovina is a successorState .. . . . . . . .. .142
146
Bosnia and Henegovina is a Party to the Genocide Convention
Section4.2.2 Yugoslavia(Serbia andMontenegro) isboundby the Genocide
Convention .. . . . . . .. . . ... .. . . . . . . . . . . . .54
Yugoslavia (Serbiaand Montenegro) has acceptedthe Court's
jurisdictior~on the basis of ArticIX of the Genocide Conventi . 154
Yugoslavia (Serbiaand Montenegro) has succeededthe S.F.R.Y. to
the Genocîde Convem'on .. . . . . . .. .... . .... . . . . . 159
Yugoslavia:(Serbiaand Montenegro) isa successor State to the
former S.F.R.Y. . .. .. .. . . . ..... .. . . .. . . . . .. . .160
Yugoslavia(Serbiaand Montenegro)is aparty to the Genocide
Convention . . .... . .. . . . ..... . ...... . .. .. .. . .163
Yugoslaviw(Serbiaand Montenegro)is bound by the Genocide
Conventionas a successor to theformer S.F.R.Y. ..... . . . . 163
Yugoslavia (Serbiaand Montenegro)would also be bound by the
Genocide Convention vit were considered as a "continuator"of the
f0rmerS.F.R.Y. . ... . .. . . . . . .. ... . .. . ........ 166 Section4.2.3 Yugoslavia(Serbiaand Montenegro)'~status with regard to the
Court's Statute............................. 168
Membership totheStatuteis rwtrelevantin respectf rticleIXof
theGenocide Convention ........................ 169
Yugoslavia(Serbiand Montenegroi )s. in anyevena.Partyto the
Court'sStatute.............................. 170
Section4.2.4 The scope of the jurisdiction of the CrationemQteriue. . 176
CRAIYI'ER 4.3 ADMISSIBILITYOF THE APPLICATION ........... 183
Section4.3.1 Irrelevance of the activitiesof other U.N. organs in respect of the
present case................................ 184
Section4.3.2 The aliegedllinternalllcharacter of the dis......... 186
CHAPTER 4.4 CONCLUSIONS ............................. 188
PART 5 THE ACTS PERPETRATED CONSTITUTE
GENOCIDE ANDITS COROLLARIES ........ 191
CHAPTER 5.1 THE CONVENTION'S ANTECEDENTS AND SPIRIT .... 191
Section5.1.1 An offencejus gentium......................... 191
Section5.1.2 Purposes and principles of the GenocideConventio...... 193
CHAPTER 5.2 THE CONVENTION'SCOVERAGE ............... 195
Section5.2.1 What the 1948 Conventionprohibits (Offences......... 195
Section5.2.2 Who the drafters intended to make responsible....... 200
Section5.2.3 What responsibilitythe Conventionimposes onState Parties 204
CHAPTER 5.3 EVIDENCEANDINFERENCE:MODESOF PROOF UNDER
THE CONVENTION .......................... 208
Section5.3.1 The facts and the Law......................... 208
Section5.3.2 Civil or criminal action?...................... 209
Section5.3.3 Onus of proof and inferencesin civilactio........... 213
Section5.3.4 The requisite standard: I1todestroy in wholeor in pa... 218
Section5.3.5 What is meant in Article II by llinten............. 222CHAPTER 5.4 PROHIBITED ACTS OTHER THANGENOCIDE ...... 231
Section5.4.1 Conspiracy ................................ 231
Section5.4.2 Incitement ................................. 232
Section5.4.3 Attempt ................................... 233
Section5.4.4 Complicity ................................. 233
CHAPTER 5.5 PROGRESSIVE DEVELOPMENTOF THE DEFINITION AND
PROHIBI'ïION OF GENOCIDE .................. 235
Section5.5.1 Developmentsprior to the Convention'scominginto force .. 235
Section5.5.2 Further definition: I.L.C. draft articles on state responsibility 236
Section5.5.3 Further definition: Conventionon theon-applicability of
statutory limitationsto war crimes and crimes against
humanity ................................. 237
Section5.5.4 Further definition: I.L.C. Draft Code ofencesagainst the
Peace and Security of Mankind ................... 238
Section5.5.5 Further definition: I.L.C. Draft Statute of an International
Criminal Tribunal ............................ 239
Section5.5.6 Further definition: thegoslavWar Crimes Tribunal .... 240
PART 6 THE GENOCIDE ANDITS COROLLARlES ARE
ATïRlBUTABLETO YUGOSLAVIA(SERBIAAND
MONTENEGRO) .......................... 243
CHAPTER 6.1 INTRODIJCTION ............................ 243
CHAPTER 6.2 THE ORGANSOF YUWSLAVIA (SERBIAAND
MONTENEGRO)HAVEPARTICIPATEDDIRECTLY IN THE
ACTS OF'GENOCIDE ........................ 246
Section6.2.1 Reminder of the relevant fact.................... 246
Before May 1992 ............................. 247
AcferMay 1992 .............................. 248
Section6.2.2 Recognitionof these facts by the international cornmun. .250 Withinthe UnitedNations....................... 251
Outsidethe UnitedNations...................... 254
Section6.2.3 Legal consequences........................... 256
CHAPTER 6.3 THE AGENTS. SURROGATES AND OTHER PERSONS
ACTING ON BEHALFOF YUGOSLAVIAHAVE
PARTICIPATED IN THE GENOCIDE .............. 258
Section6.3.1 The applicable law........................... 259
Section6.3.2 Reminder of the relevant facts................. 260
Theconductof theso-called "SrpsRepublika"entailsYugoslavia
(SerbiaandMontenegro)'sresponsibili.............. 263
Section6.3.3 Legal consequences........................... 265
CH- 6.4 YUGOSLAVIA(SERBIA AND MONTENEGRO)HAS AIDED
AND ABETTEDGROUPS AND INDIVIDUALS IN THE ACTS
OFGENOCIDE ............................. 268
Section6.4.1 The applicable law........................... 270
Section6.4.2 Reminder of the relevant facts................. 273
Section6.4.3 Recognition ofhese facts by the international commu. .y276
Section6.4.4 Recognitionof these facbyYugoslavia(Serbia and Montenegro)
itself.................................... 279
Section6.4.5 Legal consequences........................... 282
CHAPTER 6.5 YUGOSLAVIA(SERBIA AND MONTENEGR0)'S FAILURE
TO PREVENT AND PUNISHGENOCIDE ........... 283
Section6.5.1 The applicable law........................... 283
Section6.5.2 Yugoslavia(Serbia andMontenegro)'~failure to a(L. to
prevent and to punish)........................ 284
CHAPTER 6.6 CONCLUSION ............................. 291
PART 7 SuB~SIONs ........................... 293 PART 1
INTRODUCTION
CHAITER 1.1
THELEGU ISSUESAT STAKEARE OF TRANSCENDENT
IMPORTANCE
1.1.0.1 By Applicationfded in the Registryof the Court on 20 March 1993, the
Republic ofBosnia andHerzegovina institutedproceedingsagainstthe
Federal Republilcof Yugoslavia(Serbiaand Montenegro),invokingthe
jurisdiction of the Court by referenceto Articlethe Conventionon
the Preventionand Punishmentof the Crimeof Genocide,adoptedby the
GeneralAssemk~lyof the United Nationson 9 December 1948 [enteredinto
force Jan. 12, 1961.78U.N.T.S.77.
1.1.0.2 In its Applicatic, osniaand Herzegovinaindicatedwhat it regarded as its
causes ofaction, for whichitughtmeasuresof interim relief [Application
of theConventioonthePrevention andPunishmeno tf the Crimeof
Genocide,Prov,isional emures,Orderof 8 April1993, I.C.J. Reports
1993,p. 3;d. Orderof 13 September1993, I.C.J. Reports1993,p. 3251.
1.1.0.3 In its Applicationof 20 March 1993,Bosniaand Herzegovinaaverred as
follows: "Notisincethe end ofthe SecondWorld War andthe revelations
of the horrors of Nazi Germany's'Final Solution'has Europe witnessedthe
utter destructionof a People, for no other reason than that theybelong to a
particular national, ethnical,racial and religiousgroup as such. Theabominable crimestakingplace in the Republicof Bosniaand Herzegovina
at this timecanbe calledby only one name: genocide." It warned of "the
destructionof the BosnianPeople" and asserted that the "People and State
of Bosnia andHerzegovinahave suffered andare now sufferingfrom the
effects of genocideimposedupon them by Yugoslavia(Serbiaand
Montenegro)" [Application, 20 March 1993,pp. 1-21.This remains the
heartand sou1of the case as presented to this Courtby the Applicant.
Althoughthe Court, by Order of 8 April 1993, ordered that provisional
measuresbe taken by the Federal Republicof Yugoslavia(Serbiaand
Montenegro) to deter and stopacts of genocide, these acts have notceased.
Although the Order of 8 April 1993indicated thatthe "Governrnentof the
Federal Republic of Yugoslavia(Serbiaand Montenegro) should
immediately, in pursuanceof its undertakingin the Conventionon the
Prevention and Punishmentof the Crime of Genocideof 9 December 1948,
take al1measureswithin its power to prevent commissionof the crime of
genocide" these measureshave not been taken, [op. cit., para. 521.
Althoughthe Court, in this same Order, also indicated thatthe
"Governmentof the Federal Republicof Yugoslavia(Serbiaand
Montenegro) shouldin particular ensure that any military, paramilitary or
irregular armed units which may be directedor supportedby it, as well as
any organizationsand persons which maybe subjectto its control, direction
or influence, do not commitany acts of genocide, of conspiracyto commit
genocide, of direct and public incitementto commit genocide,or of
complicityto incite genocide,whether directed againstthe Muslim
populationof Bosniaand Herzegovinaor any other national, ethnical, racial or religious group. . ."these acts, which were then being committed,
continued unabated,to the horror of the entire world[id.,para 521.
1.1.0.6 A second request for provisionalmeasureswas füed by the Applicantwith
the Registry of the Court on 27 July 1993.Althoughthe Court, in an Order
of 13 September 1993,reafhed and strengthenedthese indications of
provisional measures[op. cit.,para. 611,they continuedto be flouted by
the Governmentof the FederalRepublicof Yugoslavia(Serbiaand
Montenegro) andby persons and organizationson whose behalf that
Government inciirslegal liability.
Bosnia and Herzegovinathus now presents its written pleadings to the
Court in circumstancesasegregiousasthese that provoked its Application
of 20 March 1993.The recital of factsin Chapter 2 will demonstratethe
continuous, unmodifiedcourse of genocideon which the Federal Republic
of Yugoslavia (Serbiaand Montenegro) has embarkedand from which it
hasnot been deterred: not by world public opinion, not by the horrific
reports of impartialobservers, not by the overwhelmingmajoritiesthat
have supportedresolutionsin United Nationsorgans and their subsidiary
bodies and not even by two Orders of this Court.
1.1.0.8 It is with an al1too well-foundedsenseof despair that Bosnia and
Herzegovina retums once more tothe bar of the Court to plead its case for
relief and redress.Such despair, however, is mingledwith hope, for it is
evident that thisCourt itselfnow standswith the parties to thiscase before
the bar of history. It is called upon to respondto an historic challenge.
This will be the:World Court's first opportunityto infuse the force of lifeinto the black-lettertext of the Genocide Convention andto deploy it, as
intended, againstthoseresurgent tidesof inhumanitywhich, until recently,
had been thought to haverecededforever. This litigationcan have but one
redeemingaspect.It is withinthe powerof the Court tolift the Genocide
Conventionfrom the dusty abstractionof law libraries and pious museums
and deployit as an effectiveshieldfor present andfuture generati0ns.B~
demonstratingunequivocallythat the Conventionhas apowerful
contemporary meaningand an evident, unshakableintent this Court cannot
revive the approximately200,000 to 250,000 humanbeings whoalready
have died; but it may help to stop the killingof others, now and in the
future.
The horrors of the pastwo years are capturedin the concludingwords of
Matthew Arnold's 1867poem,Dover Beach:
And we are here as on a darklingplain
Sweptwith confusedalarms of struggleand flight
Where ignorantarmiesclash by night.
But, uniquely, the I.C.J. has the moral authority andcompetenceto send
out a blazing signalbearn: bright enoughto illumine thatdarkling plain,
reveal the shadowsof its culpable actors acrossthe carnage they have
wrought and showto al1decenthumanitythe still-standing standardof the
law to which al1may yet repair.
CHAITER 1.2
SHARPENINGTHEFOCUS
This Court made clearin its Order of 13September 1993, that"great
suffering and loss of life has beensustainedby the populationof Bosniaand Herzegovinain circumstanceswhich shockthe conscienceof mankind"
[op. cit. p. 348, para. 52].It noted "thepersistenceof conflictson the
territory of Bosniaand Herzegovinaand the commissionof heinous acts in
the course of those conflicts" [id. para. 531.The Court also has said that
the "heinousactsi"that "shock the conscienceof mankind"are of such a
nature "as might form the subject-matterof a judgment of the Court in the
exercise of itsjurisdictionunder ArticleIX of [the Genocide]Convention. .
. ." [id.p. 344, para. 344l.Giventhe urgent need for a judicial rendering
of a decision as to this central issue, Bosnia andHerzegovina has
determined, in its writtenpleadings, to focus exclusivelyon the issues
arising out of the Convention.It thereby seeksto assist the Court by
clearing away other issuesthat rnightobscure themain task.
In adopting this course of pleadings, Bosnia andHerzegovinain no way
relinquishes its xightto pursue in appropriate forumsany other legal issues
and remedies arising out of the events in the former Yugoslavia.This
caveatapplies also to severalissuesraisedin the preceding applicationsfor
provisional measures.For the purposesof this case, however,Bosnia and
Herzegovina respondswith alacrity to the opportunityto demonstrateto the
satisfactionof this Court thatthe eventsthat formthe subjectmatter of this
action constitutegenocide,conspiracyand incitement tocommit genocide,
complicityin genocideand a failureto preventand punish genocide, that
is, violations of Articles1, II and III of the Convention,over which the
Court undisputalblyhasjurisdictionby operationof Article IX. CHAPTER1.3
THEWRONGSALLEGED
1.3.0.1 The Federal Republic ofYugoslavia(Serbia and Montenegro)is bound by
the internationallegal obligations setforth in the Genocide Convention,by
specificallyhavingaccepted the obligationspreviously incurred bythe
SocialistFederal Republicof Yugoslavia[seebelow, Part 41. This is
further confirmedby its recognitionof ArticleIX as a basis ofjurisdiction
and asserted counter-applicationby the Federal Republic of Yugoslavia
(Serbia and Montenegro) inthe Provisional Measures phase of this case.
The acts which constitute genocideare setout in ArticleI of the Genocide
Convention. Article1 establishes the obligation to prevent and punish
genocide. ArticleIII further definescorollary acts whichare also prohibited
under the Convention.These acts haveoccurredand continueto occur in
violation of their explicit prohibitionin international law.This violation
constitutesthe substantivecauseof the action being broughtby Bosnia and
Herzegovina.
That these acts of genocide have occurred,as well as conspiracy,
incitement and complicity, willbe demonstratedby a preponderance of
evidence, as is appropriate ina civil actionainsta Statebefore this Court
under Article IX of the Convention.The travauxof ArticleIX make clear
that the drafters intended this Articleto give rise to a civil actionsuch as is
herein brought.
As the Genocide Conventionrequires a showingof "intent"to commit
genocide, this,too, will bedemonstratedby a preponderanceof
evidence.However, the authoritiesof States, like natural persons, must be presumed to intend the natural consequencesof their acts, particularly
when, these consequenceshavingaiready occurred, those acts are then
repeated.It is not necessary todemonstratethe stateof mind ofeach
perpetrator of each of the provableacts in order to establish necessary
intent.
1.3.0.4 Bosniaand Hemgovina will demonstratethat the savageacts of murder,
mairning,rape, torture and forcibleremovalof persons was not the random
detntus of warfare but that specificpersons were targetedprecisely on
account of their adherenceto an ethnicalor religiousgroup and that attacks
on these groups was preciselya meansto attain the end of clearing entire
areas of their Muslimpopulation.
1.3.0.5 Bosnia and Heuegovina will demonstratethat, while a proportion of these
acts were committedby BosnianSerbs, many of suchpersons or groups
were acting under the authority, guidanceor influenceand with the
assistanceof the authoritiesof the Federal Republicof Yugoslavia (Serbia
and Montenegro)and that these authoritiesmay be held inlaw to have
tolerated or aided and abettedthese acts specificallyprohibited in Article
III of the Convention.Indeed, some or most ofthe persons referred to as
Bosnian Serbs are persons whoseorigins are not at ail in the temtory of
Bosnia and Herzegovinabut have entered the conflictto fight for a Greater
Serbia.
1.3.0.6 Bosnia and Herzegovinawill also demonstratethat other acts of genocide
were committed.by persons and groups directly under thejurisdiction or
authority of the Federal Republicof Yugoslavia(Serbiaand Montenegro).
To this end, the:publishedor reported evidenceof witnesses, officiaisorrepresentativesof intergovemmentaland non-govemmentalorganizations
and the accountsof reputablemediawill be presented tothe Court.
Since most ofthese events occurredin a periodand place of intense
military and paramilitaryconflict, the rules guidingthis presentationof
evidence are those establishedby this Court.Specifically,Bosnia and
Herzegovina willrely pnmarily on the rules set out in the Corfu Channel
case [Co@ Channel, Merits,Judgment, I.C.J. Reports 1949,p. 41and the
Nicaragua case [Militaryand Parmilitary Activitiesin and against
Nicaragua (Nicaragua v. U.S.A.), Merits, Judgment, 1.C .J. Reports 1986,
p. 141to guide its presentation of the best available evidenceas well as to
apprise the Federal Republicof Yugoslavia(Serbiaand Montenegro)of its
duty to present suchrelevant evidenceas is pnmarily accessibleto its
authorities.
The Federal Republicof Yugoslavia(Serbiaand Montenegro)is bound by
the prohibition of acts of genocideset forth in Article II of the Convention,
as well as the corollary acts enumeratedin Article III.But it is also bound
by Article 1,which requires States "to prevent and to punish" persons
within theirjurisdiction who committhe prohibitedacts, whether or not the
State or its organs participatedin or aided their comrnission.Yet,there are
no reports of any Serbs within thejurisdictionof Yugoslavia(Serbiaand
Montenegro) havingbeen convictedunder the Yugoslav lawgiving
domestic effect to Articles IIand IIIof the Convention,despite the
extraordinarily high incidenceof commissionof these prohibited acts in
areas under the de factojurisdiction, control or exclusiveinfluenceof the
Federal authorities.Fromthis, Bosniaand Herzegovina willinvite the Court
to infer that the obligationassumedunder Article1to "prevent or punish" has notben canied out with bomfide diligenceby the authoritiesof the
Federal Republic:of Yugoslavia (Serbiaand Montenegro).
1.3.0.9 In sum, Bosnia andHerzegovinasubmits thatit has been the victim of
genocideand corollary acts, that these acts are prohibited ininternational
law, that theywere committedby andlor are attributableto the Federal
Republic of Yugoslavia(Serbiaand Montenegro)and thatthis State is
bound by the conventionallaw on genocideto cease and desist from such
acts, compensate:its victims and makerestitutionfor suchinjuries as the
Republic of Bosniaand Herzegovinahas incurred as a consequenceof these
illegal acts.
CHAITEX 1.4
PLANOFMEMORIAL
1.4.0.1 The present Mernorialwill begin,Par t , with a recital of the facts and
of the supportingevidence. Thispriority is dictatedby the centrality of the
facts to the pleadingsin this caPar tthere followsa survey of the
confirmationof the existenceof a campaignof genocideby authoritative
internationalorgans.
1.4.0.2 Part4 will demonstrate that this Courthasjurisdiction to hear and to
determine this case under Article IX of the GenocideConventionand that
the substanceof the dispute meetsthe applicabletest of admissibility.
1.4.0.3 Next,Par t of the Memorialwill seetodemonstratethat the facts proven
by the evidencepresented Par t meet the legal standards establishedin the Convention's definitionof prohibited acts. This will bedone by
recourse to the Convention'stext, its travaux, and the penumbra of other
multilateralinstrumentsor draft treaties which deal in part with genocide
and corollary prohibited acts, or with other matters relevantto the
definition and prohibitionof these acts.
1.4.0.4 InPart 6,the Memorialwill demonstratethat these acts are attributable to
the Federal Republicof Yugoslavia(Serbiaand Montenegro). This will be
done by recourse to the evolvinglaw of state responsibility, including
relevant case and customarylaw, by reference to theconclusionsof U.N.
organs, subsidiary bodiesand experts. These have determinedthat acts of
genocide and corollary actsoccumng in Bosnia andHerzegovinaare
attributable to the Govemmentof theFederal Republicof Yugoslavia
(Serbia and Montenegro).
InPart 7, Bosnia and Herzegovinawill state its submissionsand state the
1.4.0.5
remedies it seeks, in darnages,restitutionand declaratoryrelief. PART 2
THE FACTS
CHAPTER2.1
INTRODUCTION
Since late 1991, Bosniaand Herzegovinahas been the scene for acts of
violence and destruction, the evil bnitality of which has beencalculatedand
aimed by Serbs .toeliminate thelives, liberty, dignity, religion and culture
of the Muslim and Croat peopleof Bosniaand Herzegovina.
The people and culture of Bosniaand Herzegovinahave beena living
exampleof the ideal of ethnic and religioustolerance and CO-existence.
Indeed, during the Spanishinquisitionaround 1492, manyJews escaped
persecution and were granted safehaven by the OttomanEmperors in
Bosnia and Herr~govina,ultimately enabling thema thriving
communitytherein.
2.1.0.3 Furthermore, w:hilstthe statistics(producedby a populationcensus in 1991)
show that thepulationof Bosnia andHerzegovinaconsistsof %1.3
Serbs, 43.% Muslims, 17.% Croats and 7.7% Yugoslavs(ie nationally
undeclared), eth.nicdiversityis arnplydisplayedby the fact that around
30% of maniages in Bosnia and Herzegovinatake place betweendifferent
ethnic groups.
2.1.0.4 However, the clunningpicture painted by Yugoslavia(Serbiaand
Montenegro)is of a Bosniaand Herzegovinawhich is, and always has been AUSTRIA
VOJVODINA ROMANlA
CROATIA
MACEDONIA
PROVINCES,HISTORIC diseased by terminal ethnicand religioushatred and division. This is used
to conceal and disguiseits naked territorial and nationalisticambitions.
The collapseof c;ommunismduring the late 1980'sbrought with it a desire
2.1.0.5
on the part of many of the republicsof the SocialistFederal Republic of
Yugoslaviato seek nationhood [seemap on page 121of former SFRY with
its former constituentrepublics]. Serbia, traditionallythe strongest of the
Republics, sougtitto rnilitarilycrush these desires unsuccessfullyin
Sloveniain June 1991,partially in Croatia during that year (whereJNA
(YugoslavianNational Army) andSerbpararnilitaryforces seized almost
30% of the territory in ferociousand destructivefighting),and most
violently in Bosriiaand Herzegovina fromlate 1991until the present.
2.1.0.6 This Mernorialcannothope to catalogue thefull extent of sufferingand
destruction inflictedpon the people, territory and culture of Bosnia and
Herzegovinaby Yugoslavian (Serbian andMontenegran),JNA, Bosnian
Serb, Serbianparamilitaryand other Serb(ian)forces, (hereinafter
collectivelyrefend to as the "Serbforces"), which are or were at ail
material times under the commandand control, or were supplied,
supported, encouragedandlor aided and abettedby the leaders of
YugoslaviaJSerbiaand Montenegro("the leaders"), who could have
prevented or curtailedthe actionsof such forces.
2.1.0.7 Instead of genuinelyseekingto prevent or punish suchacts, the leaders
effectively choseto adopt or acquiescein them, whilst sometimesseeking
at the sarnetime to officiallydistancethemselves fromthe brutality being
perpetrated to serve their ends, by publicly statingthat the acts were the
results of acivil war, and centuriesold ethnic tensions.2.1.0.8 This Memonal canbut seek do justice to the memoryof the victims of the
horrors perpetrated in the name of Serbianethnicpunty and for the sake of
a Greater Serbia. However, figures whichare widely accepted indicate that
the total numberof people killed, mainlyMuslim but also Croat is around a
quarter of a million, of a total populationof around 4.5 million. This takes
into account the factthat the bodiesof manyvictimsare still undiscovered.
Documented figures compiledby the Bosniaand Herzegovina Institute for
Public Health in February 1994 (fromApnl 1992),and others shed some
light upon theextent of sufferingcausedby the acts of the Serb forces:
142,334deaths (of whom 16,510were children)
161,755wounded (of whom 33,734 were children)
72,282 seriouslywounded (ofwhom 18,056were children)
20,000 rapes at least
2.6 million refugeesat least
500 Mosquesdestroyedat least.
These data are compiled from61 municipalitiesand represent
approximately65 % of the total.
2.1.0.9 Although Croats have sufferedat the hands of the Serb forces, the vast
majority of the victimshave beenMuslims, who have been subjectedto a
systematicand terrifying campaignof killing, rape,torture and destruction.
In their desire to "cleanse" strategicallyimportantareas of Bosnia and
Herzegovina to create an ethnicallypure Serbianterritory, the Serb forces
have used meansand methodssuch as systematicrapeand concentration
camps.
2.1.0.10 Whilst it is acknowledged thatthis Memorialcannot comprehensively
catalogue and deal with the full extent of the acts committedby the Serb forces, the Court'sattentionis drawn to the fact that such acts have ben
shownday after day on televisionworldwide, and extensivelyreported in
newspapersthroiighoutthe world.
Furthermore, as a consequenceof suchacts, Serb forces occupy around
2.1.0.11
70% of the tenitory of Bosniaand Henegovina. Most of the worst acts
were perpetrated upon suchterritory, particularlyin North, Northwestern,
and Eastern Bosi~ia,commencing aroundthe borders with Serbia and
Montenegro. The rapid and plannednature of the occupation of tenitory by
Serb forces canbe illustratedby the map onpage 16of this Memorial
which show the areas which havebeen occupiedas a result of their acts.
Access to suchareas is extremelydifficultif not impossibledue to the
unwillingessof the Serb forcesto allow outsideobservers, and obtaining
information therefrommore so.
2.1.0.12 This part of the Memorialwill draw upon sourceswhich have been able to
cany out investigations,suchas the SpecialRapporteur to the United
Nations Human Rights Commission,the United StatesDepartment of State,
respected Non CiovernmentalOrganisationssuchas AmnestyInternational
and Helsinki Watch, and respected media sources.
2.1.0.13 In Chapter 2.2 below, specificacts will be referred to by way ofexample.
At Chapter 2.3, the contextfor suchacts will be outlined. BOSNIAAND HERZEGOVINAFRONTLINES
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@ o)CR Qf5ce of th Specinl Etrvoy for former Yugoslnvia - Extemal Relations Utbit @ CHAPTER2.2
THE ACTSWHICHSHOCKTHECONSCIENCE OFMANKIND
Part 5 of the Mernorialdeals with the interpretation,applicationand effect
of theGenocideConvention 1948("The Convention")to the acts of the
Serb forces. Hereinbelow,examplesof the following categories ofacts
committedby Serb forces, mainlybut not exclusively directedagainst the
Muslim populationof BosniaHerzegovinaare referred to:
Section2.2.1 The Use of Concentration Camps
Section2.2.2 Killing
Section 2.2.3 Torture
Section 2.2.4Rape
Section 2.2.5 Expellingof people and destructionof property, homes,
places of worshipand cultural objects
Section2.2.6 The creationof destructive livingonditions- shelling,
starvationand intimidationof the population.
Section2.2.1
Concentration camps
From early 1992onwards, the Serb forcesextensivelyused concentration
camps within which theycarried out multiplekillings, rapes, torture and
starvation, predorninantlyagainstMuslimBosnians. At least 170 of such
camps were identifiedin whichtens of thousandsof Bosnians, mainly
Muslims, were:imprisoned.The namesand locationsof the identified
camps are shown onthe map and tablesbelow. Concentration Camp .s. and Prisons on the
Territo -r-y of Bosnia and Hercegovina
*
Leeend '
O Sarajew.Munlcipallty
O Number ofconcantratloncamps
andprisonsinthe Munidpallty
121-125 Number ofcamp on thekey List of Concentration Camps and Prisons onthe
Territory of Bosnia and Hercegovina with A~oroximate
. .
Numbers ofPrisoners and Detainees
Number of Numkr ofprisoners/
NO. Location of carnplprison prhneddetainees Numhr ofprisoners/
detaines kiim detainees (Cet '92)
l I 11 I III l N I v
i. 1 Saraic-.,-KPD 'aurnir' -hula 1 2O.COO 1 nrckoé~~ I SCO-SjJ
1. ; Sar~ievo - Voine kas~rneu L:uavtn 1 l
. I Sar~ievo - orostoriie MZ Vraa 1 oreko 27.000 1 oreko SCO I
1. ! Saraievo - Grbawu (Leniinova 8) I l I 25
5. i Sar~ievo - viie earatt i oodruma n3 Grbavici 1 I ! 303
6. I Sernizomc - Voina kasarna 1 7.000 I i W
y. I Semizovac - Beronski bunker 1 oreko 50 1 I 30
S. i Semizovac -Svrake lorivatna ku&) 1 1 1
9. 1 VocoS6 - Ucostitetiski obiekac 'Kod Sonif:' 1 I nrcko 100 1
10. 1 VocoJb - Beronski ounkcr 1 I 1 620
11. I VocoS6 -Soonski ccnrar 1 l I 1.750
12. I VoeoS6 -Tuncl Krivociavci I l 1 950
13. 1 VocoSCa -labritke hale 1 l 1
!4. 1 VoeoSb -ooiedine cirivatnekuee 1 1 I
15. i VocoSta -ooarumske orostoriie Stanice miiiciie I 1 I
16. ! VoeoS6 -Vulk3nizenka radnia na voeoS&;nskoinc:lii I I I
17. I llidfa-Stan zorada Dona zdravlia 1 oreko 500 1 1'520
[S. 1 llidta-Scania miliciie I I 1 150
19. i Ilidfa-Soorrsko rckrutivni ccntar 1 oreko 50.000 I 1
:O. 1 Ilidfa-Kamo 'Lufani' I l 650.
21. i Ilidfa-zorada Crvenoe knta I I I iM3'
27 i ilidfa -sktadi3te Ene:eoinvesra u 3laZuiu , I 1 1.100
'3. 1 Ilidfa-Kasindo l l I
1:. ! Raiio~c -Kasama Voinoe ae:odroma l I !
25. 1 Railovac -Dis:ributivni centar l 1 I 2200
7_5. i Railovac-Kasrna Butile I ! orcxo 1CO i 730
27. l Railovac-SkladSte eoriw E~ereooetrol I I 740
18. . HadtiCi- Kulturno swnski cenrar 1 nreko j;X3 1 I L5CO
29. 1 Iliia-Osnovna Lkola'27. iuli' I I 1 450
M. l Iiiia-Industriiska Jkola ! l
31. 1 Ili;& -Stara zonda ZrliezniCke sranice I ! i
32. l Iliia-SUadiSte [ne ! IO00
jj. i IiiiaJ-Stara vecl iama u Podlueovirna i
llijd-Sarah srare OS 'Vlado.Vukokit' u / 750
! OkO lm
j4- Iodlueovima I I
3.5. I Iliia-Hala woona MIK 3 Podlucovirna 1
36. Ilija-Setonski bucker ur rijeKu Stavnju u
Podluqovima i l
57. 1.?ale-Soortska dvorana 1 oreïo 2O.CCO I 12500
38. 1 Pale - Kinosala I ! I
39. I Pale- Dom kuliure I I I 1
40. I Pale-Koran l l
41. 1Sokolac -Prostoriic Psihiiairiiske bolnicc l 1 1
J2 ISokoiac - Fiskulturna uh I I
43. 1Sokolac -Punk1zirnskcslutbe u Podramaniii l 1 l
EI. I Sokolac -Poeoni KTK 'Visoko' u Knctini l 1 I
45. (Zmrnik - Karakai Mrnica qtinicel 1 3.CCO 1 nrckodw 1 1.503
66. 1 Zvornik - Karakai (Tehnitki ceniar) l ÎCO 1 400 I
J7. I Zvoinik -Siadion Divit I 1 am
4. I Zmrnik -Seoski dom u Gloocku I I 1
49. I Zmrnik -Seto Piiiçc 1 I I
50. 1 Kalaiia -SeloOsmanci l I I
51. 1 Braiunac -Sradion FK 'Brautvo' I 7.CCX-8.W 1 preko 2.W 1
5.2 1 Bntunac -Smrrska dvorana O$ 'Vuk Ka~idtie' 1 l ( 910 .
53. 1 Viasenia - hcor SuSici 1 O~O 3.m 1 D?C~O 1.000 1 1.2m
54. 1 Vlaxnia -Osnovna <kola I I 1
55. 1Srcbrenia -Nova Kasabn , 1 1
56. 1 ViSeerad- Smnia rniliciie I I
57. I ViJezrad - So<irrskiccniar 1 rircto1.000 1 1.630 1
5s. I Vikcrad-hotcl '8ikdvdc 1 1 1
59. 1 ViJeznd-hoic! 'Vilina vlas'-vdcrndska btnirt 1 I
6).I ViSccrad-OhiekaiHidruccnir~lc I 137. Kotor VaroS -Maslovare
13s. Stara GradiZka-Kaznenopopravnidom ( 1.500
139. BihaC- Voina.kasarna u RipCu preko 200 1
140. BihaC- Selo RaCiCi .
141. BihaC- Otoka kod RipEa preko 100 1 1
142.1 BihaC- Osnovna Skola uOraScu
133.1 BihaC- Traktonka stanica u Ri~f- preko 140
141.1 Sioovo-Staro S~OOM 1.500
115.I BaniaLuka
146.I Bania Luka -Kazneno ~o~ravnidom 'Tiniica' 9SO
147.1 GlamoE - Stadion
1 14s.1 Donii Vakuf- Maeacin'Vrbasprornet' 860
1 149.I Donii Vakuf- MaeacinskeprosioriieSlab?'O 440
1 750.1Trebinie -Voinizatvor 1.490
f 15 1I Nevesinie-Tvornicaalata'TX I
( 152.1 Gacko -Avrovac oko 1.W .
I 153.1 Gacko -FaziaqiCakula
154.1 Gacko -Podrumski prostoriTermoelckrranc 'Gacko"
155.l Bile& -Voina kasarna 2.600
156.I Kalinovik-Baruini maeacin 34 oko 120
' 157.1 Kalinovik-OsnovnaSkola u Jelafcu oko 300 240
15%I Koniic -BoraCkoiezero
159.1 ZavidoviC- SeloMilieviCi 1
~ist of Concentration Camps and Prisons on the
Territory of Serbia and Montenegro in which Citizens
of Bosnia and Hercegovina are held
No. Location of camplprisoni Number of Number of prisonerdi Nurnber of prisoners1
phnerddetaintes detainees kilkd detaineo (OC: '92)
1 l II 111 TV v
1. Loznica -Sporrskorekreaiivni centar 1.380
2. Beocrad -Baiainica 2.200
3. Beoerad -Kasarna '4.iuli' 2.500
4. Ni3 -Voini loeor 1.540
5. Suhotic3- Sabirnicentar 5.000
6. Alcksinac- Zatvoreni rudnik O ko2.M)O 1ZOO0
7. 1 Sabac- 'Zorka' 1.460
1 Bor -BorskiRudnik 2.500
Srcmska Mitrovica-FruSkaGora
Il.1 Mokra Gora -u bliziniUfica 3.000
1450
(350
14. 1 NiWiC2.2.1.2 Of al1these camps, at least 14of whichwere in Serbiaproper, some of the
most notoriouswere at Manjaca (BanjaLuka - Northern Bosnia), Pnjedor
(Keraterm - Northern Bosnia),Prijedor (Omarska -Northern Bosnia),
Prijedor (Trnopolje - Northern Bosnia) andBrcko (Luka - Northern
Bosnia).
2.2.1.3 In al1these and other camps, Bosnianpeople were treated in a manner
which is so shockingas to almostdefy description. Someexarnplesare
described below.
(a)Prijedor - (Omarska -NorthemBosnia)
In thiscamp operatedby Serb forces (which hadpreviouslybeen an open
ore mine) [HelsinkiWatch - WarCrimes in BosniaHercegovina (Apnl
1993)VolumeII p. 87, para. 11,during a three monthperiod after April
1992, between 10 to20 people were killed every day. The victims were
buried in open pits, disused mines, or their bodies dumpedin a nearby lake
[UnitedStatesDepartmentof StateDispatch [16 November1992, p. 8041.
In total, it is estimatedthat around 11,000civilanswere held at this camp
without any lawfuljustification,of whom between 1200and 2000 were
killed in a three monthperiod [TheSecondSubmission to theSecuris,
Councilmadeby Canada, 30 June 1993, p. 15 (SI26016)].
On one night in July 1992,a total of 200people werekilled [Submission
from thePermanentRepresentative ofAustriato the UnitedNations SecretaryGenerul,5 March 1993,based upon testimonies gatheredby the
Austrian authorities, esp. at pp. 16to 22 (S125377)l.
2.2.1.6 A witness who wasapprehendedby Serb forces in Prijedo and imprisoned
in the camp has describedhow he was forced to carry the bodies of dead
prisoners. He estimatedthat he helped to transport or bury 10to 20
persons each day, and that during a 9 week period of imprisonment,he was
forced to participate in the burial of between700-800bodies [TheThird
Submissionof the Govenunentof the UnitedStatesofAmericato the United
NationsSecretaryGeneral attachedto a letter dated 5 November 1992
("Third US Submission ")p.6 (SI2479l)].
2.2.1.7 Muslim intellectuals,professionalsand clergymenor leaders were
especially targeted for execution[The Reportonthesituationof human
rightsin the territoryofformer Yugoslaviu prepared by Mr.Tadeusz
Mazowiecki,SpecialRapporteurof the CommissiononHumanRights("The
Rapporteur") 17November 1992,p. 13, para. 31 (A1471666 -S124809)l.
A 30 year old Muslimmale who wasimprisonedfor 9 weeks in this camp
described someof the sceneshe witnessedat the camp during his captivity;
"Guards frequentlybeat people with thick electrical cables,
often so badly that they could not standafterwards; in
adminiskring these beatings, guards would hit prisoners in
specificplaces on their bodies, oftenthe kidneys, in an effort
to rupture importantintemal organs.
Prisoners were forcedto run across broken glass in their
bare feet; when theyfell, guards wouldbeat them with
nightsticksand iron bars. As a punishmentadministered infront of a group of
prisoners, a guard cut off the testiclesof a prisoner with a
hife; one prisoner was forced, under threat of being
executed, to bite off the testiclesof another prisonerwith his
teeth.
The only water thatpnsoners had to drink was from a river
contaminatedby dischargesfrom an iron mine; the water
was yellow, the prisoners urineran rd." [US Departmentof
State DispatchBureau ofPublic Affairs, 16November 1992,
p. 829 Col. 33.
2.2.1.9 Physical torture, mutilation, starvationand sexualabuse were common
place in this and other camps. A 52 year old Muslimcleric described how
he was interned at the camp for 75 days:
"during which time he was beatenregularly until he bled.
The cleric witnessedseveralpublic beatingsand sexual
torture in the camp. He said that severalmen had been
forced to have intercoursewith eachother, and that guards
cut off someprisoner's handsand penises as a punishment
and to frighten the other men." [SecondUS Submission, p.
10, para. 1 (Sl24705)l.
The Human Rights Organisation,Helsinki Watch,has identifiedand narned
the individualsfrom the Serb forceswho were in commandof this camp
melsinki Watch -Prosecute Now, 1August 1993 (Issue 12), p. 151.When
pressure was appliedby the World communityupon the Serb forces to
close this camp, they purported to do so in August 1992, but inreality
transferred the pnsoners to other camps suchas the one located in Majaca
[Third US Submission,10November 1992,p. 4, para. 4 (SI2479l)]. (b)Prijedor(Keraterm - NorthemBosnia)
2.2.1.11 This Serb operated camp was on the site of a cerarnicsfactory, outside the
city of Prijedor. In the case of this, as in other concentrationcamps, a
story of torture, starvation, mutilationand killingis told by eye witnesses.
The camp was o,peratedfrom aroundMay 1992until August 1992, when
media attention forced the Serbs to close it.
2.2.1.12 In realit, again the Serbsforces merely transferred around 1500
individualswho were being heldhere to the camp at Trnopolje before the
arrival of the Red Cross. [SixthUSSubmission,10 March 1993p. 5
(Sl25393)l.
2.2.1.13 One witness, a 38 year old male resident of Harnbarinedescribed the scene
when he arrived at the campby bus after being detainedby Serb soldiers
on 20th July 1992:
"Al1the men in the bus gotout, and we had to put Ourhands
up in the air. One by one, we went to the porter. They took
al1Ourbelongings,and we were taken to a larger room,
which already housedprisoners. There were about 300 of us
in there. More buses keptarriving. We were able to see
through the windows, which had bars on them. Pallets were
on the flloor,and a thin metal sheet of corrugated steel was
on the walls. The room appearedto have beensometype of
warehouse. We already were crowding against thewalls, but
they kept putthg more men inside. By the afternoon, an
additiond one hundred men came. We were givenno food or
water. Eventually, four hundred men crowded into a room of
about one hundred square meters". melsinki Watch, "War
Crimes j.nBosnia-Herzegovina" ,April 1993, VolumeII, p.
1223.2.2.1.14 Another witness,Haris, a 56 year old painter from the village of
Hambarine described beatingshe suffered,and sceneshe witnessed:
"Every night, guardswould read ten to fifteennames from a
list. These men were then taken from the room andretumed
later in awful condition.They were bloody, their bones were
broken and theywere falling down, vomitingblood and
fainting. By morning, somewouldbe dead..very few
survived [thebeatings]...Theybeat us with ..one-and-a-half
meter long iron bars..From time to time, we were forced to
line up and to lie on the ground with our faces in the blood
and dirt. The soldierswouldthen walk betweenus with
sticks and bars, beatingpeople.1 had lost a lot of weight in
Keraterm, and my ribs were protrudingthrough my skin.
One soldierpulled me up by the hair, reached over, grabbed
my rib and snappedit." [id., pp. 123to 1241.
One particularly homfic mass executiontookplace in the early hours of 25
July 1992. A 38 year old witness fromHambarine (identifiedas AH in his
statement) describedthe scene:
"On priday July 24thl...at about8.ûûpm, while we were
drinking the water, they took out about20 or thirty people.
The worst beatingstookplace then. People came back with
broken heads and ribs. Peoplecried and screamed. Somein
the room tried to save them and cried for water. Some were
already hailucinatingfrom the heat, and a ruckus ensued.
The guards started screarning thatthey would shoot us.A
general panic gripped theroom. The door was large and
made ofthin aluminumsheet. Then they started shooting
from the other side of the door with machineguns and
automatic weapons. People started tofall to the floor. The
shots were fired atrandomand theypierced the door. 1lost
c~n~ciou~nest~ hen."
He was wounded, and showedhis woundsto the HelsinkiWatch
representative. He went onto describethe aftermath:
"In the moming, 1awokeand saw dead bodies on the
concrete floor. There were so manybodies that you hadto
walk over them. A few stayedalivebut most of themwere killed or wounded. People were moaningand the guards
broke down the door ..They said that theywere looking for
the leaders of the riot..About twenty men were taken out..1
heard shots and screams. 1also heard trucks pulling up
outside...I would guess that there were about140dead and
about forty or fifty wounded..
Then those of us who remainedin the room were taken
outside. We had to keep our handsup in the air.. .We stayed
there unti.1the "SerbianArmy" and police officers came and
started to beat us, one by one with the butts of their guns. 1
couldn'tlookup.. but 1 heard gunshotsoccasionally.. .
During this timethe temperaturewas increasing outside. We
were on the concrete al1day andsomeasked for water. They
then plugged in a fireman'shose and hosed us down for
about thirty minutes. Sincethen 1have had problems with
my hearing.. .We figuredthat aboutthirty or forty had been
killed on the concrete. They took us backto the same room,
but they had taken out the woodenpallets. They [probably]
took them out to wash the blood off and when we got there
we had n.opallets. 1think they gave us water and some bread
then but 1can't really remember."
This account has been confmed by other witnesses [Helsinki Watchid.,
pp. 124 to 126, the accountof the witnessnamed Haris; also Second US
Submission, 23 October 1992,p. 5, para. 3 (Sl24705); Third US
Submission, 10:November1992,pp. 4-6 -the accounts ofthree different
witnesses (SI2479l)] .
(cl Brcko (Luka -Nonheastern Bosnia)
2.2.1.16 The camp was operated betweenMay and July 1992by Serbian forces who
had earlier taken control of the are[see TheGuardian, Ian Traynor 5 May
1992; Third US Submission, 10 November1992,p. 7 (S/2479l)]. Torture, starvationand killingswere commonplaceat this camp, whichwas housed
in a warehouseand brick factory[id., see aiso TheRapporteur'sReport 10
February 1993, p. 15, para. 63 (E/CN.4/1993/50)].
2.2.1.17 During its period of operation,around2,000 to 3,000 Muslim men, women
and children weremurdered [SecondUSSubnission,23 October 1992,p. 6
(S/24705)].Most of the killingwas carriedout by Serbpararnilitaryforces
led by SelijkoRaznjatovic(Arkan)and VojislavSeklj, who are both
leading politiciansin Yugoslavia (Serbiaand Montenegro). phe United
States Departmentof StatesDispatchof the Bureau ofPublic Affairs ("The
Dispatch"), 2 November 1992, p. 8031.
2.2.1.18 The bodies of the victimswere disposedof invariousways. Some were
buried in a massgrave. Otherswere throwninto the Savariver, having
been dismemberedin somecases. [SeventhUSSubmission,9 April 1993,
p. 30 (S/25586)].Somewere aiso destroyedat a meatprocessingplant, and
others were bumed in nearbyfactoryfumaces [ThirdSubmission ,p. 7
para. 4 and p. 9; SeventhUSSubmissionp ,. 16, para. 3 (S/24791)].
2.2.2.19 The Third US Subrnissionrefers to witness testimonyof treatmentand
conditionsat the camp:
"Oneexamplewas an individualwho had his ears cut off
with a knifeby a Specijalcisoldier. As he grabbed for his
ears in pain, a youngwomancut off his genitaliawith an
instrumentcaileda "spoon". As he fell forwardand lay on
the ground, he was shotin the head by a guard. In other
instances,ears and noses were cut off and eyes gougedout.
Kniveswere used to cut into the skinof intemees al1the way
to the bone; somefingerswere cut off entirely. Al1was done
in front of other intemees. Beatingswith clubs were common. A Specialjisoldier used a
woodenclub with metalprotrudingfrom it to kill severai
people. He forcedinterneesto lick the blood from the metal
studs.
Approximately10to 15Chetniks, YugoslavFederai
Specijalci,and Serbianpolice were involvedduring the daily
occurrences,but some participatedon a more regular basis.. .
There wa.salso a torture room at Luka-Brckocamp. Those
tortured were eitherkilled immediatelyafter being tortured
or were left tobleed and, if theydid not die in two to four
days on their own, were shot to death.They were left lying
in their own blood inthe livingareas and other internees
were not allowedto help in any way .." [p. 8 (SI2479l)].
Women were also broughtto the camp andraped by the Serb soldiers,
some girls being as young as 12years old [ïltird USSubmission,p. 9,
para. 2; also SeventhUSSubmission,p. 7, para. 2, and p. 21, para. 3; The
Rapporteur's Repon, 10February 1993,p. 15, para. 63
(E/CN.4/1993/50)].
2.2.1.21 These camps and the others which were operatedby the Serb forces served
one purpose -tcidestroy thelife, will, dignity, and existence of the Muslim
people of BosniaHerzegovina.The systematic nature inwhich the Muslim
victims wereapprehendedafter Serb forcestook control of a particular
areaa ,nd their subsequenttreatmentpoint to a specificpolicy to achieve
their destruction. Section 2.2.2
Killing
The destruction of mainlyMuslimlife is a necessarypart of the military
and ethnocentric strategyof the Serb forces.The scale in which this took
place, and is still takingplace, is suchthat an estimatedquarter of a million
of Muslimsin Bosniaand Herzegovinahave becomeits deathly victims.
At the beginning of April 1992, morethan 1,000Muslimcivilians were
killed by Serb paramilitaryforcesin Bijeljina. [Reportto the United
Nations submitted by thePermanentRepresentativeof Cana., 10March
1993, p. 14 (Sl25392)l.
Around 15,000Muslims fromthe villagesin the region of Gornja Sanica,
Bijeljina, Budelj, Velagici, Pudin Han, Krasuljaand Hrikovac (who
compnsed 95% of the total populationin this region) were either killed,
incarcerated or forced to workin the fields [HwnanRightsCommittee
Report, 27 April 1993,p. 13(CCPR/C/89)].
The Rapporteur, refend to the systematic eliminationof the Muslim
population by Serb forces:
"There used to be six mountainvillagescalledHambarine,
Rizvanovic, Rakovcani,Sredice, Carakovoand Bisceninear
Kozarac in north-westBosniaand Herzegovina.When
Serbian forces took thesevillagesaroundMay 1992three
quarters of the 4,500 inhabitantsare reported to have been
executed. ..A boy aged 16..[together]with a
neighbour..witnessedthe death of his uncle, 61 years old,
and a neighbouraged 58: "They made them puncheach
other's head before hanging themfrom a bridge" 110
Febniary 1993,E/CN.411993150,para. 391.2.2.2.5 The deliberate shelling of civilianswas often resorted to by the Serb forces.
Whilst this took place wherever Serb forceswere present, the most widely
reported examplesare the destructionof Srebenica, Gorazde and the
relentless bombardmentof the bastionof Bosnianculture and tolerance,
Sarajevo.
2.2.2.6
Before the Serb forces began their attackon Bosniaand Herzegovina,
Srebrenica had apopulationof 7,000. By early March 1993, this had
become around tj0,0 0 0th the influx of Muslims whohad been driven
from their homes in the surrounding villages.Of this population, 20 to 30
persons were dyingeach day of starvationalone, as the Serb forces
surrounding Srebrenica refusedto allow any foodor medical suppliesto go
through. [ThePeriodic Report of the Rapporteur, 5 May 1993, p. 8, para.
30 to 40 (E/CN..4/1994/3)].
Moreover, the wretchedexistenceof the peopletrappedinside Srebrenica
was made even moredoomriddenby the continuedshellingby Serb forces,
some being fired from across the borderin Serbia [SeventhUSSubmission,
p. 25 (Sl25586)J.
2.2.2.7 During one particular incidenton 12April 1993,at least 15children were
killed whilst playing footballin a schoolyard, with a six year old boy
being instantly decapitated.One UNHCR whowitnessedthe shelling stated;
"1will never be ableto conveythe sheer horror of the
atrocity1witnessed..Sufficeit to say that 1did not look
forward to closingmy eyes at night for fear th1twould
relive the imagesof a nightmarethat was not a drearn."
2.2.2.8 With the water and electricitysupplies havingbeen cut off by the Serb
forces, Srebren:icawas describedin April 1993by members of United Nations Security CouncilMission visitingthe besieged town as "an open
jail"where Serbianforces were planning "slowmotiongenocide" . [Eighth
USSubmission, 16June 1993,pp. 25and 29(S/25969)].
Elsewhere, the picture was the sarne. On 16May 1992, at least 83 Muslim
civilians, includingelevenchildrenand sixteenelderly persons were
executedby Serbian paramilitaryforces. melsinki Watch, War Crimesin
Bosnia-Hercegovina,August 1992p. 71.
On 21 May 1992,a mass murder of Muslimpatients at the Zvomik
Medical Centre took place to make way for woundedSerbian soldiers. A
former employee recountedhow he watched36 adult patients being forced
outside and shoton the hospitalgrounds. As for the children:
"Shortly thereafter, uniformedand non-uniformedSerbian
soldiers movedthrough the pediatriccentre breaking the
necks and bones of the 27 remainingMuslimchildren, the
only childrenleft as patients atthe hospital.Twosoldiers
forced him to watch for about 15minutes, during which time
about 10or 15of the children were slaughtered. Some were
infants. The oldestwere about five years old. The witness
said that a Serbiansurgeon, who also stoodby helpless, later
went insane." [Third USSubmission,5 November 1992,p.
10 (S/24791)].
2.2.2.11 On or around 25 May 1992, Serbian artillerybegan to shellthe town of
Kozarac, followedby an attackby tanksand infantry. The town was
virtually destroyed and of the populationof 15,000, around 5,000 are
estimatedto have been executedby the Serb forces. [TheRapporteur's
Report, 17November 1992,p. 8 para. (d) (S/24809)];also Fourth US
Submission, 8 December 1992,p. 9, para. 4 (A/47/666 S124809);see also Ian TRAYNOR "How theywipedout Kozarac" Re Guardian 17 October
1992, p. 231.
2.2.2.12 The Rapporteur alsorefers to events in Pri'jedor:
"(e) The night of 29 May tanksand infantry took up
position aroundPrijedor...Whenthe attackbegan, Serbs
from the villageguided the tanks tothe homesof certain
Muslims, and the inhabitantswere asked tocome out and
show their identitydocuments.Many of those who did were
summarilyexecuted. According towitnesses, some200
residents of a single street (PartisanSt.) were executed, and
a hundrai homes were destroyed.During the attack the local
radio continuedto cal1for the surrender of arms, yet notone
shot had beenfired by the Muslims.
(f) Ulien the artillerybarrage stoppedaround noon,
groups oiFextremists, probably underthe control of ARKAN,
began exlecutingpeople, taking their victimsto the street and
slitting their throats, according to witnesses.The bodies of
the dead were carried awayby trucks, whichleft a trailof
blood..In.the aftermath, houseswhich had beentoo badly
damaged were bulldozed,and their foundationscovered with
fresh earth.Five mosqueswere destroyed,and the Muslim
cemetry was razed.. .
(i) IniSeptemberthe lastremainingmosquein Pnjedor,
and the Catholic church, weredestroyedby explosions 10
minutesapart.."[Report, 17November 1992, p. 9
(S/24809)].
[seeaiso Secona!USSubmission,22 October 1992,p. 8 para. 3, where it is
estimatedby wiinesses that about3,000 to 5,000 people were buried in a
mass grave around the town of Pnjedor (S/24705)].2.2.2.13 A 21 year old Serbianfighterhas given hisown accountof the killings
committedby him, describinghow heshot dead 10 members of a Muslim
family in late June in Ahatovic:
"It was taken for grantedamongus that they shouldbe
killed. So when somebodysaid "Shoot", 1swungaround and
pulled the trigger, three times on automaticfire. 1remember
the little girl with the red dress hidingbehind her granny"
This fighter also describedhow he rapedand killed Muslimwomen, and
how inJuly 1992,he had seen30 men from Donja Biocabeing shot and
loaded, in some cases whilststill alive, into a furnaceat a steelplant at
Iiijas, a town north of Vogosca. me United States Departmentof State
Dispatch Bureauof Public Affairs, 28December 1992,p. 919, 2nd
Column; also TheGuardian"Slaughterin the narneof Serbia", 23
December 19921.
Amnesty Internationalinvestigatedeventsin and around the Serb controlied
town of BosanskiPetrovacbetweenApril and November 1992. By
September 1992, theMuslimpopulation (atleast 20% of the total)had
gone from this town. FromApril 1992onwards, the Serb forces had begun
killing Muslims deliberatelyand arbitrarily:
"Althoughthe scaleand chronologyof abuses has varied in
differentareas, AmnestyInternational considersthat the
events in BosankiPetrovacare broadly representativeof the
patterns of gross abuses committedacross Bosnia-
Herzegovinain the process of the forcible expulsionof
thousandsof Muslims fromtheir homes." [Amnesty
International,Bosnia-Herzegovina - a Wound to the Soul,
January 1993,p. 2, para. 21.2.2.2.15 The Serb forces were mercilessin the implementationof their policies.
Even Serbs who refused to cooperatewith themwere not spared. The
Rapporteur referred to executionsof suchpeople:
"..for exaunplein Teslic on 2 June 1992when three Serbs
were reportedly killed for refusinto co-operatewith the
YugoslavNationalPeoples'Amy (JNA) and Serbian
..militia in persecutingMuslimsand Croats. It has alsobeen
reported that the Serbian Neskovicfamily, accusedof hiding
Muslims, as well as a commanderof the Serbianpolice were
killedbecausethey opposedthe killingof Muslimsin
Bratunacand the surroundingarea."[Report, 10February
1993, para. 22 (E/CN.4/1993/50)].
2.2.2.16 On 5 May 1992, a 41 year old Muslim womanwitnessedthe execution of a
Serbian civilian by Serbian soldierswearing the insigniasof the Chetniks
[Serb paramilitaries]and the Yugoslavarmy in the are. near Sarajevo
airport. Al1residents were ordered out of their homes, and Serbs and
Muslims were told to standin separatelines:
"One Serb, a 50 year-oldmanknown as "Ljubo", refused to
be separatedfrom his Muslimneighbours...the Serbian
soldiers..dragged him to theground, and five or six of them
bat him until he was dead." [FourthUSSubmission7 ,
December 1992,p. 10, para. 3 (SI24918)].
The Serbian intent againstthe Muslimpeople was also evidencedin their
eliminationof mosques,libraries and other Muslim religious sites.They
were alsp oarticiilarlybrutal with Muslimclerics. In the SecondUS
Subrnission, referenceis made to the killingof ImamMustafa Mojkanovic
of Bratunac. He was
"tortured before thousandsof Muslimwomen, childrenand
elderly aitthe town's soccer stadium,accordingto Imam
Efardi Espahicof Tuzla. Serbguards ordered thecleric to cross himself. When [he]refused, they beat him, stuffedhis
mouth with sawdustand beer, and then slit his throat.
The Muslim mufti of Zagreb, SevkoOmarbasic, has said
that by the end of July [1992]the Serbshad executed37
imams."[Second USSubmission,23 October 1992,p. 8
(Sl24705)l.
A 48 year old Muslim from SanicaDonja, near Kljuc described how he
saw the decapitationof about 100men by JNA forces in early July 1992,
after they had occupiedthat town:
"regular [JNA] troops again re-entered [Sanica
Donja]..Startingat one end ofthe villageand going from
house to house, they took al1the men hostageand used them
as a human screenas they went throughthe village.
The witnessbelievesthat theseJNA forces were fromthe
SixthKrajina Brigadeheadquarteredat Palanka.. .
The roughly 32 men were ...loadedinto a canvas-covered
truck.. [which]stoppedat the Ojedinostovoschoolin
Tornina...Maleprisoners were brought outof the school
three at a time and were walkedover to three other soldiers
near the trucks. These soldierslaid the prisoners down and
cut off their heads with a curved knifeabout 30 centimeters
long. Four men in civilianclothes, apparentlyprisoners, then
loaded the heads onto one truc and the decapitatedcorpses
into the other." [SixthUSSubmission, 10 March1993p. 10
(Sl25393)l.
In Banja Luka, a Serb controlledareain Northern Bosnia, Serb forces are
stillkiiling, woundingand intimidatingMuslimsand Croats. The
Rapporteur recently stated thatthe Serb authonties in BanjaLuka had
removed physical traces of the presenceof the Muslim communitywith the
dernolition ofal1of the municipality's202 mosques.On 15December
1993, the remains of the 16th centuryFerhadpasinamosqueand four other mosques/mausoleumswere rd, and the site of the mosqueis presently
being used as a car park [6thRepon, 21 February 1994, p. 5, para. 13
(E/CN.4/1994/1 :[O)].
Even thoughthe majorityof the populationof Muslims has been
systematidly driven out of BanjaLuka and its environs, the killing, rape
and intimidationof those few who remained hascontinuedunabated at the
hands of the Serb forces who control the area.Commentingupon the ever
present threat to Muslimsand Croats in BanjaLuka, Joran Bjallerstedt, the
UN High Commissionerfor Refugees'chief protection officer for
Yugoslaviaand its former republicsstatedin early 1994;
"We are seeinga pattern of atrocities, and it is getting
worse..our only solutionin this case is to move people out of
the area.Hundreds of people's livesare at stake."
[Intemational Herald Tribune,28 March 1994.1.
2.2.2.21 The above examplesare a very smaii selectionof the many thousandsof
testimonieswhich have been collected, and the many reports which have
been produced. 'Yetthey al1point toa policy of killing being implemented
by the Serb forcespredominantlyagainst the Muslimpeople, but also
against the Croats and anyone else who dared to standin their way.
Section2.2.3
Torture
2.2.3.1 Starvation, humiliation,sexualassaultsincludingrapeand buggery,
physical violenceand pyschologid attack againstmainlyMuslims but also
Croats were al1itoocommonin areas where Serbforces had control. The
concentrationcampswere not the only scenesof such dculated barbarity.Around 30 May 1992, thetown of Prijedor havingbeen attackedby Serb
forces, a number of Muslim men were taken to the offices of the
Secretariat of Internai Affairs (SUP),where they were detained, beaten,
tortured and some were killed. One manrelated hisordeal:
"In SUP Serb soldierspierced my skull with the gun breech.
We were ail mercilesslybeaten; Serbs ordered us to face the
wall so that we could not see who was beating us.There
were about onehundred Serb soldiersin the room
"interrogating"and beatingus". [TheSecondSubmission of
the Governent of Canadato the UnitedNations, 29June
1993,p. 16para. 2.13 (SJ26016)I.
On 20 July 1992, Serb soldiersrounded up the Muslim men living in the
village of Biscani:
"They were forced tolie down in the center of town on
asphalt. Serb soldiersbeat them with iron bars, and forced
them to singpatriotic Serbiansongs."
"The most prominentwomenin the village, about 100, were
brought together.As the womenwere told to disperse, they
were shot in theback. The bodiesof the womenlay in the
road for four daysuntil Serb trucks cameto collect them."
me United States Departmentof State Dispatch Bureauof
Public Affairs, 2 November 1992, p. 8031.
A 20 year old Muslimwho hadearlier fled fromHambarineafter it had
been attackedby Serb forcesfell victim tothem later. He described how on
July 20, Serbs came to arrest al1men over the age of 15 from Biscani,
where he had been stayingin his uncleshouse:
"Judgingby their accentsand the styleof caps which they
wore, the witnessbelieves that hiscaptors were
Montenegrins. ..the soldiersordered theeight men, who hadlined up in
pairs, to beginbeating the mannext to them inthe line. The
witness was on the end of the line and standingnext to his
father, so he was being ordered to beginbeating his father..
Afkr a short while, the manin the pair next tothe witness
refused thesoldiers'exhortationsto beat his son more
fiercely. One of the soldiersthen marched the man off the
road and jmtothe ditch where he shot him.
By the end of the ordeal, six of the men either refused or
were unat~leto continuebeating theirkin ,nd were
executed. The witnessand the youngestin the group
managediiopersuade thesoldiersto spare them by lying and
pleading that they were only 18 years old. The soldiers,
however, did beat the two boysbadly, and the witnesslost a
tooth."[SixthUSSubmission,10March 1993,page 3, para.
4 (Sl25393)l.
In the SeventhUS Subrnission,the testimonyof threeMuslim men from
Bileca aged 33, 35 and 39 is related. They witnessedthe rounding up of
the entire Muslinipopulationof their village, placementof the men in
detention centers, and the final "ethniccleansing" of Bileca by local
Serbian authorities:
"The 35 yearold witnessdescribed how 50 men were
singledoiit for physicalabuse at the detentioncenter in
Bilica. each nightthe police would enter the camp and
conduct "telephone"torture. This methodconsisted of
delivering;40 volt electrical shocksthrough a telephone wire
affixed to their fingers. Each time the phonewas dialed, the
prisoners received massiveelectric shocks." [SeventhUS
Submission, 12 April 1993, p. 15 (Sl25586)l.
Hospitals were also used as torture campsby the Serbforces. Muslim
survivors of an earlier massacreby Serb forces at Vlasica wereinterned inthe Paprikovac OpticalHospitalon the outskirts of BanjaLuka, which was
being used at the time by Serb forcesin theegion:
"The four subjectshad beenfoundwandering separatelyin
the woods severaldays after the mass murder at Vlasica..
[and were] tumed overto Serbianmilitary forces..
Nightly, woundedSerbiansoldiersfrom elsewherein the
hospital, aswell as guards,bat them with cable wires and
police batons [every day..
The prisoners receiveda sliceof bread a day, with some
broth. They were given almostno pure water to drink, but
they were forcedto drink urine regularly.Al1four had
hospital dischargepapers that claimedthat they hadbeen
treated for intemal injuriesand chronic heart disease. The
prisoners, however, saidthat they had never received even
so much as anaspirin...
A 16 year oldMuslim student ...onbeing checkedinto the
"hospital", was beaten20 timeson his kidneysby the
rnilitarypolice..During his month[there] he wasfed one
slice of breadeach day, was rarely given pure water to
drink, and dropped in weightfrom 68 to only 50
kilogrammes. Every morningand evening, the guards forced
the pnsoners to drink a glass of urin"[Thi rdS
Submission,5 november 1992,pp. 11and 12 (SI2479l)].
On 11thJune 1992a 24 year old Muslimagriculturaltechnician from
Kotor Varos was arrested by Serbiansoldierswho were wearing uniforms
bearing white eagles:
"At the Koza Proletaria] furfactory, a guard put a rifle in
the witness' mouthand lifted him off the floor. Another
guard pulled out two of his upper teeth with pliers. He said
he and 100 other men were beaten for eight days and forced
to perform sexualacts on each other..
His room measured onlyabout 2.5 by 3.5 metres, yet
sometimes as manyas 70 menwere crammedinto it. Serbian
guards played loudmusicas theybeat prisoners in the
adjoiningrooms and in the yard. The room was filthy .They ate spoiled, mouldyfood, and had no access to toilet
facilities. Ten to 15men had diarrhoeaat any one time. The
prisoners" skin tumed yellow fromjaundice. He spent over
three monthsin suchconditionswithoutever taking a bath or
washing his clothes.
On 10 ûctober, the witnessand two other Muslimswere
exchangedfor one Serb. Three Serbianguards, whom he
recognised, brought him to the courthouseyard where they
beat him viciously, they tied hisarms and legs togetherlike
a sheep and forcedhirn to baa. Later they tied him to a Land
Roverjeep and drove to the hospital, with the witness
ruming behind the vehicle. Upon arrival, they forced him to
crawl, baa andeat grass, and then they toldhim to throw up
the grass becauseit was Serbiangrass.
One guard brought somevery acidic gun-cleaningoil and
made the witnessdrink half a litre of it. He began to have
stomachcmnvulsionsimmediately.A secondpulled up his
sleeve and extinguishedeight cigaretteson his m. Soon
afterward he was released toMuslim forces in the village of
Vecic. " [Fourth USSubmission,8 December 1992,p. 12,
para. 5 (Sl24918)l.
2.2.3.8 The Rapporteur also referred to reports of torture of hundreds of Muslirns
who hadben detainedby Serb forces in Bratunac, EasternBosnia on 9th
May 1992:
"500 to 600 men were detainedin the hall of an elementary
schoolthere. Those who could not fit inside were reportedly
shot with automaticweaponsin front of the hall. Beatings
were reportedly canied out accordiig to lists narningthose
most influentialin the community.Between30 and 50 people
reportedly died fromtheir injuries the first night whilene
others suffocatedin the crush as the 500-600detainees
struggledto escape thebeatings. An imam was allegedly
beaten arid stabbedto death in front of the 500-600prisoners
after refusing to take the Christian faithand raise three
fingers in the Serb manner. After threedays of beatingsthe
group was transferredto Pale, where ill-treatment continued until they were exchanged.It is alleged that before they left
Paie, the detaineeswere tied in groups of 10 and hadto pass
betweenlines of soldierswhobeat them withcables, clubs
and iron batons." [Repon, 10February 1993,p. 15, para.
65, (E/CN.4/1993/50)].
The sheer scale and systematic natureof the campaignof torture
perpetrated by Serb forces againstMuslimswas designedto subjugate, and
ultimatelyeiiminatethem as a people inthoseareas where Serb forces
exercised control.
Section2.2.4
RAPE
The depths of depravityto which the Serb forcesplunged in their desire for
an "ethnicallypure" Serb are. involvedthe rapeof girls as young as 7, and
women as old as 70 [see, inter alia,The United StatesDepartment of State
Dispatch Bureau of Public Affairs, Report on WarCrimes -former
Yugoslavia; Maggie0'Ka.e "ForgottenWomenof Serb rape camps", î%e
Guardian, 19December 1992;"A Pattern of Rape",Newsweek4 January
19931.
Amnesty Internationalin itsReport"Bosnia -Herzegovina Rape and
sexualabuse by armed forceswdatedJanuary 1993referred to some
incidents of rape. At page 12, detailsof the accountof a 17yearold rape
victim are given. Shewas takenby Serbs wearingJNA uniforms and held
for three months togetherwith around 100women. During her detention, she and the others were repeatedlyrapedand toldthat theywould bear
Serbian children.
2.2.4.3 The Sixth US Submissionrefers to the testimonyof a 32 year old Muslim
woman from the Teslic area.She soughtrefuge in a SerbianRed Cross
refugee camp, but was taken from there and repeatedlyrapedby armed
Serbian soldiers .whoseuniforms borethe initial "SMP" upon them. She
saw soldiers comingnearly every day to take away women in the evenings.
[SixthUS Submission,9 March 1993,p. 23 (Sl25393)l
Further, the accountof a 15year old Muslimrapevictim is given. After
her town (Teslic)was capturedby Serb forces, she was taken by Serb
soldiers to a small motelcomplexdong with other women:
"The whc~le motel complexperimeter was fenced off with
barbed wire. Hundreds of men, women andchildren were
prisoners ...
..the witness..said that the soldiers "rapedus every night".
Most nights, 20 soldierscame to the motel. The female
prisoners were forcedto strip, then to cook for the soldiers
and to serve them. Each girl or young womanwas rapedby
several soldiers, with severalvictimsin one room at a time.
The witness experiencedand saw so manyrapes that she
could notgive an estimateof the number.." [id., p. 17.
2.2.4.4 In its submissionto the SecurityCouncil,Austria also refend to rapes of
women in the concentrationcampat Prijedor: Tmopolje [6March 1993, p.
39 and p. 42 (Sl24377)l.
2.2.4.5 Serbian soldiers brutally raped40 Muslimwomenfrom BrezovoPolje,
north of Sarajevoduring the courseof a busjoumey to Caparde [see
United States Departmentof StateDispatch - Bureauof Public Affairs, 2November 1992,p. 804; also see the Dispatchof 16November 1992, for
an account where oneof the victims told a reporter inlate Augustthat her
Serbian abductorsaid he was under orders to rape].
The fact that rapewas being used as a weaponby the Serbs, consciousof
the stigmathat this would create for a Muslimwoman, is confirmedby the
account of a 21 year old Serb fighter, BorislavHerak. He stated thathe:
"had madevisits every three or four days to a motel and
restaurant complex outsideVogosca,located seven miles
north of Sarajevo, knownas Sonja Cafe, which hadbeen
convertedinto a prison for Muslim women.He identifiedthe
"prison commander",who he said had establisheda "system"
for the Serbian fighterstorapeand kill the women interned
there. He and his companions wereencouragedto go to the
Sonja Cafe by militarycommandersbecause raping Muslim
women was "goodfor raising the fighters' morale".They
were further told by the prison commander:
"You can do with the women whatyou like. You cantake them
away fromhere - we don't have enough foodfor them anyway -and
don't bnng them back. "" [Fourth USSubmission8 December 1992
at p.7, para. 6 (Sl24918);also TheGuardian, 3 December 19921.
Two Serb deserters also statedthat they had ben ordered to rape and
murder women [Newsweek,4 January 1993,p. 28, Column 4, para. 31.
The Serb tacticsalso involvedimprisoningrapedwomen until they had
reached an advanced stageof pregancy:
"[in September 19921At least 150 Muslimwomen and teen-
age girls- someas youngas 14 -who have crossedinto
BosnianGovernmentheld areas of Sarajevoare in advanced
stagesof pregnancy, reportedly after being raped by Serbian
nationalistfightersand afterbeing imprisonedfor months
afterward in an attemptto keep them from terminatingtheir
pregnancies. A 15year old Muslimgirl told the BBCthat she had been
seizedby Serbianfightersin May in the Serb-held Sarajevo
district of Grbavica. She said she had been heldin a small
room witli about 20 other girls where they were ordered to
undress:
"We refused, then they beat us and tore our clothes off.
They pushed us on the floor. Two of the men held me down
while twolothers raped me. 1 shoutedat them and tried to
fight back:but it was no use. As they raped me theysaid
they'd make sure 1gave birth to a Serbianbaby, and they
kept repeatingthat during the rest of the time that they kept
me there. "[Third USSubmission,5 November 1992
(SI2479111.
2.2.4.8 AmnestyInternationalfound that
"[whileothers had been abused]: Muslim women have been
the chief victims and the mainperpetrators havebeen
membersof Serbianarrned forces. Theavailableevidence
indicates thatin some cases therape of womenhas been
carried out in an organisedor systematicway, with the
deliberate:detentionof womenfor the purpose of rape and
sexual abuse. Incidents involving the sexualabuse of women
appear to fit into a wider pattern of warfare, characterisedby
intimidationand abusesagainstMuslimsand Croats which
have led thousandsto fleeor tobe compliantwhen expelled
from their home areasout of fearof further violations".
[Report, Bosnia-HerzegovinaRapeand sexualabuse by
armed forces, January 1993,p. 11.
Maggie O' Kane:referred to interviewswith rapevictims who had managed
2.2.4.1
to reach refugee campsat Zenica. She describes onerape victim's ordeal
which had ben held at Trnoljpe, where around 2,500 to 3,000 women had
been taken to be:raped between mid-May andJune 1992:
"SejmaAlukicwas a machinist,aged 34, who worked in the
sawmillsnear Foca.She was keptin the campat Tmopolje and was one of five womenin the camp who told the same
story of mass rape by Serbiansoldiers.
She has long blonde hair and wavesher handsas she speaks
in an agitated, urgent tone:
"The soldiers came in [to the room inthe camp] atabout 10,
after the electricityhad been switchedoff, and shonethe
torches in the girls' faces to find the ones they wanted. Then
they tookthem out. Nobody resistedor struggled, as they
told us they would puta bullet in our head."
During the monthsSejmawas kept at Trnopoljecamp, about
five girls and womenwere taken nightly fromeach of the 30
classroomsin the primary schoolwhere they wereheld and
brought to the "Dip Jela" sawmill aboutthree miles from the
camp. The womenwere rapedin the 17officesattached to
the sawmill:
"There were more than 100of us taken every night. It got
worse when theylost a battle - then they came wanting
more.." [MaggieO' Kane, "ForgottenWomen of the Serb
Rape Camps", The Guardian,December 19921.
[See also United StatesDepartmentof StateDispatch, 8 February 1993, p.
76 for the accountof a doctor who witnessedthe raping and beating of
Muslim women by Serb forcesat the Trnopoljeconcentrationcamp].
The Report of aninvestigativemissioninto the treatmentof Muslim women
in Bosnia and Herzegovinawas submittedto the European Community
Foreign Ministers by Dame AnneWarburton .It stated:
"9...mat Muslimwomenform the vast majonty of the
victims of rapeis explicablein terms of the intensityand
pattern of the conflict. Thethrust of ..Serb attacks have
concentratedon areas with a large Muslimpopulationsuch
as the Brcko region (44per cent Muslim), the Drina valley
(Zvornik - 60per cent, Bratunac -64per cent, Srebenica -
74 per cent, Visegrad -63 per cent, Gorazde - 70 per cent
and Foca - 51per cent)and the Prijedor area(44per centMuslim) :inan effort to carve out ethnicallyhomogenous
temtory betweenSerbiaand the Serbianareas of occupied
Bosnia and Herzegovinaand Croatia.. ..[refers to fact that
others were mistreatedto a far lesser extent]
10. ... Approximately70 per cent of Bosniaand
Herzegoviniantemtory is in Serbiancontrol and it is
extremely difficult for the international agenciesto work in
these areas. UNHCR estimatesthat over 2.6 millionpersons
were displacedby November 1992.. .
13....On the basis of its investigations themissionis satisfied
that the r,apeof Muslimwomenhas been -and perhaps still
is -peqxtrated on a wide scaleand in such a way as to be
part of a clearly recognizablepattern, sufficientto form an
importani:elementof war strategy.
14...The most reasoned estimates suggested to the mission
place the numberof victims ataround 20,000...[and]
suggestedl a possiblefigure of 1,000pregnancies.. .
19. Throughoutits work,. ..the delegationfrequentlyheard
..that a repeated feature of Serbianattacks on Muslim towns
and villages was the use of rape,often in public, or the
threat of rape,as a weaponof war to force the populationto
lave their homes..accompaniedor followedby the
destruction ofhomes, mosquesand churches. The mission
saw examplesof statementsand documentsfrom Serbian
sourceswhich very clearly put suchactions in the context of
an expansioniststrategy.." [see Letter dated 3 February1993
from the PermanentRepresentativeof Denmark to the United
Nations (:S/25240)]. Section2.2.5
Expellingof peopleanddestructionof property
The strategy of Serb forcesnot only involveddirect violence to Muslims
and aiso Croats. Rather, it was oftenpreceded by severe shellingof a town
or village, the indiscriminateillingand devastationbeing designedto
cause maximumdisruption, suchthat peoplewere forced to leave their
homes. Upon doing so, traces of Muslimand also Croat presence, in the
form of churches and mosqueswere obliterated.If luclq, the fleeing
population escapedwith their lives. More often, they encounteredthe Serb
forces, and were intimidated, imprisoned,raped, tortured or killed by
them.
The use of sucha clinicalterm as "ethniccleansing"to describe such
intense brutality and inhumanityserves to demonstrate the depravityof the
Serb forces, their complete disregardfor humanlife, liberty and the values
which underpin al1forms of civilisedbehaviour [seeICCPR Human Rights
Committee, 27 April 1993, p. 13, para. 37, p. 14, para. 51 (CCPRlCI89)l.
In late April and early May 1992, Serbforces attackedthe city of Mostar,
destroyingat least 13mosques,and causingthe civilian populationto flee.
In one particular incident, thejoint operationtechniqueof the JNA and
Serb paramilitary forces is arnplyborne out:
".on May 1 [1992], a JNA unit approachedtwo apartment
houses belongingto the cigarettefactory and located on its
grounds. They openedfire with machineguns. A resident
called the United Nationsand Red Cross offices locatedin
the "HIT"departmentstore; shortlyafter, one JNA Speciai
Forces soldierwearinga camouflageuniformwith a black
scarftied around his head and two Airborne Military policemeriarrived. The witnessjudged by their accent that
they were fromMontenegro.The SpecialForces soldier
kicked in an apartmentdoor and, threateningthe occupants,
asked about the phone cal1to the UN representative. A short
time later, a group of JNA soldiersarrived and beganto tear
apart the apartmentsearchingfor weapons.
The followingevening, a group of Serbiancivilians wearing
paramilitaryuniforms cameto the two apartmentbuildings
and took (away10 men. A seniorparamilitaryofficer told his
men they could chooseany women theywanted for their
entertainment.Many apartmentsin both buildings were set
on fire by tracer roundsfiredby tanks of the unit." [Sixth US
Submission,9 March 1993,p. 28, (S/25393)].
[Seealso HelsinkiWatch - WarCrimes In Bosnia-Hercegovina (August
1992)p. 35 et sciq.].
In the take over of Visegrad (EasternBosnia),JNA forces from Serbia
played a pivotal role. Massive movementsof troops and equipment from
Serbia intoBosn:iaand Herzegovina werewitnessedby many independent
observers [see; Ian Traynor, TheGuardian 14, 15 and 16 April 1992;
BlaineHarden, '17te WmhingtonPost 15 and 16April 1992.
Shortly after they had taken over the town, theSerb forces embarked upon
their al1too farniliarorgy of death and destruction.The Rapporteur
referred to the accountof a Muslimpensioner who in mid-April 1992:
"watchedfor 36 hours from the window ofher house as Serb
forces exiecutedgroups of people on the old Visegrad bridge.
Victimswere either pushed off the bridge and shot in the
water, or shot and then pushed. Groupsof people were
reportedkypicked up and killed on the bridge every 30-60
minutes. The witness managedto leave the town but had to
cross the bridge to do so. She vividlydescnbes walking
through the remains of victims as shecrossed it. The Special Rapporteur has been informed that, due to the many
atrocities which havetaken place dong its banks as it winds
its way through Foca, Bratunacand Bijeljinain central and
Eastern Bosnia, the river is locallyknown as the river of
death." [Repon, 10February 1993, p. 10, para. 35
(E/CN.4/1993/50)].
In June 1992large scalekilling, expulsionand mistreatmentof the Muslim
and Croat populationof Kozluk, near Zvornik tookplace by Serb forces.
Before the town was captured Serb forcescarried out executionsof
civilians, and heavybombardmenttook place fromthe Gucevomountains
across the border in Serbia.[SeventhUSSubmission,22 September 1992,
p. 31, para. 6 (S/24583)];see also F@h USSubmission,26 January 1993,
p. 6 (S/25171), which refers to someof the events which took place during
this time].
Local Serb forces were re-enforcedby regular tank and infantry units
which came from Valjevo, Sabac, Loznica, Novi Sad, and Titovo Uzice in
Serbia. When the Serb forcestook the town, the mistreatmentensued
[Fourth USSubmission,7 December 1992, 9-10;SeventhUSSubmission ,
12 April1993p. 31 (Sl25586)l.l
In the Eighth US Submissionthe accountof events witnessedon 8 April
1992by a 64 year old Muslimman from Zvoniik is relayed:
"The "chetniks" [nationalistSerbs] bumedabout 200 houses.
As people were forced outof their houses, they were
directed to stay in a group in front of a large house. Two
Muslim men...were killed in their homes, after which the
corpses were broughtout and burned. In dl, about 76 people
were killed, mostly intheir basements...
After a few days, ...the Serbianforces began to use a
bulldozer to dig large pits in the Muslimcemetries southwest of Zvornik proper. Thewitness saw buses andtrucks
dumping an undetermined numberof bodies into these pits
up to three times a day." [Eighth USSubmission,16June
1993,p. 20 para. 5 [S/25969].
2.2.5.9 Those who were not killed were expelledby the Serb forces and the
Yugoslav authorities, as the Rapporteurrelated:
"The towns were sealedby Serb forces. Muslim families
were told.thatthey had six hours to packtheir belongings
and to go to a certain gathering point.In the case of
Zvornik, it was a farmyard. At these gatheringpoints, the
names of the deporteeswere put on a list, and everyone was
individually orderedto sign this list. They were informed
that by tlieir signature,they"voluntarily"gave up al1their
belongings.The deporteeswere then ordered, someat
gunpoint,,to board buses and trucks and later trains until they
arrived at Palic (Vojvodina)where theywere put up at the
local camp site.Althoughthe deportees apparentlydid not so
request, they were providedwith Yugoslavpassports after
photographerscame to thecampsite for this purpose. For
some deportees, theissuingauthonty of their Yugoslav
passport was "MUP(Ministryof Internal Affairs) of the
Republicof Serbia, Secretariatin Subotica". Deportees
reported that between26 June and 1July 1992there were
about 1,1!00persons from Kozlukand another 1,800 from
Zvomik ;atthe Palic campsite. After being takento the
border, these persons were admitted toHungary as
refugees"'.[Repon 10February1993, p. 22, para. 99
(E/CN.4/1993/50)].
2.2.5.10 The vilage of Ripac, near Bihacwas also the sceneof destruction. After
having mainlycleared the areaof its Muslimpopulation, Serb forces
imposed strict controlson the movementsof those remaining:
"[the Serbforces had] issuedspecialpasses,..introducingthe
so-called "newpolice registers"..I BnosanskaOtoka, where
thecorpses of dead civilanvictims still lie in the streets, the aggressor has plunderedand destroyedthe apartmenthouses
of the Muslim refugees. Accordingto witnessesheld as
hostagesby [Serb forces]...Muslimhousesnow house
Serbian families, while the cadastrefiles are being altered as
far as the owners are concemed." [ICCPRHumanRights
Cornmittee,27 Apnl 1993,p. 12, para. 43 (CCPR/C/89)].
2.2.5.11 In May 1992, the villageof Borajnoin the Cajnicedistrict was emptiedof
its Muslim population, as witnessedby a 60 year old Muslim who
described the events:
"On May 10, Serbian forcesfrom Plejvlja, across the border
in Montenegro, cameto Boranjoaskingeveryone to
surrender their weapons. On May 14, the soldiersordered
the Muslims tomove to theother side of the village, at
which time the Serbs bombedthe empty houses. The next
moming, the soldiersbegan shootingin the air and, by
3:00pm, the commanderof one of the local Serbian units
ordered the Muslito leavethe village.
The villagers ran into the woods. Immediatelythereafter, the
Serbianforces startedbombingthe woods from the
mountains.The witnesswas able to retum to Borajnoon
May 18, but he foundthe villagedeserted." [EighthUS
Submission, 18June 1993,p. 34 (S/25969)].
2.2.5.12 On 25 May 1992,the town of SanskiMost (40km west of Banja Luka) was
surrounded by Serb forceswith tanksand armoured vehicles.The whole of
the next day, the town was bombedand houseswere systematically
destroyed. An ultimatumwas given for the populationto surrender,
requiring that Muslimsand Croats should marktheir houses by affixing
white sheetsto the roof. After someof the populationhad surrendered the
marked properties were shelled,lootedand bumed by Serb forces includingJNA troops. [SecondCanadian Submission,30 June 1993,p. 17 (S126016);
also SeventhUSSubmission,12 April 1993, p. 33(S125586)l.
In BosanskaDubica, the Muslim andCroat populationwas intirnidated,and
subject torandornattack by Serb forceswhich controlled thearea. The
intmidationwas effective in forcingMuslim andCroats to leave. However,
they were only permitted to leave if they took their entire familywith
them. Moreover:
"Before fhosewillingto leave were permitted to do so, they
were forc:edto sign documentsstatingthat theywould never
come back. No reference was ever made in those documents
to their possessionsin the village, theirhouses in particular.
The witness stated thatthey couldeither sell them at a
ridiculousprice or give the keysto the municipalityfor the
duration of their absence which,after they had signedthe
..documents, was supposedlyfor ever.. " [TheRapporteur's
Report, 28 August 1992(ElCN.411992lS-1/9)].
In and around the villageof Crska, near KonjevicePolje, on 2 March
1993, Serbian forces from the VJ (Yugoslav Army)advancedto take the
village, obstnicting the evacuationof Muslimwomen, children, the elderly
and approximately 1,500 wounded, causingthem to flee to the woods.
They subsequently wereexposedto deepsnowand lack of food, causing
many to perish. [TheRapponeur 'sReport, 5 May 1993, p. 4, para. 8, to
p. 6, para. 17; also the SeventhUSSubmission,2 April 1993,26
(S125586)l. Ont:witnesswatchingfrom the mountainswhere he had fled
reported:
"Serb forces entered Cerska villagewith infantry, then tanks
and then armouredvehicles: "The houseshad alrady been
destroyed by shelling,but even ifa piece of a roof was intact
the Serbs would set it on fire so that everyoneelse could
see" [Rapporteur's Repon, id,p. 15, para. 151.2.2.5.15 In Bijeljinaon March 1993,in a pattern which wasrepeated in every area
where the Serb forcesexercisedtheir bmtai control, allsix mosqueswere
blown up and completely destroyed.BBCTV were able to filmthe
aftermathof the devastation.[EighthUSSubmission,16June 1993,p. 32,
para. 6 (S/25969)].
2.2.5.16 The systematicand barbaricnatureof al1the acts whichhave been carried
out by the Serb forcesagainstthe Muslimand Croat population,their
homes and religionshavebut one objective, narnelythe creation ofan
ethnicallypure Serb areawiththe exclusionof Muslimsand Croats.
Section2.2.6
Thecreationof destructivelivingconditions
In their desire to createethnicallypure Serbianareas, and toredise their
nationalisticand territorialambitions, the Serb forcesused TV, Radio and
Newspapers extensivelyto vilifyMuslimsand Croats. This in turn resulted
in an atmospherein whichhatredinitiallyled to discrimination inmany
areasincludingemployment.Inevitably,this turned to violenceagainst
Muslims and Croats.For example,in BanjaLuka (whichhad a population
of 30,000 Muslims), a localleaderof Serb forces statedon TV that there
was room for only 1,000Muslims,and that the other 29,000 would haveto
leave, "oneway or another" [Second USSubmission,22 October 1992,p.
16, para.5 (Sl24705)l.2.2.6.2 Also, recently, tlie Rapporteurdrew attentionto the ever increasing use of
the mediaby the authoritiesin Serbiato project racial and religious
intolerance:
"124. A primary areaof concem for [The Rapporteur] is
the incitexnentto national andreligioushatred in public life
and in the media. In public life leadingpolitical figures make
inflammatoryand threatening statementsagainst minority
groups oria regular basis...
125. The prevailing climateof ethnic and religious hatred
is also encouraged throughmisinformation, censorshipand
indoctrinationby the media (seeElCN.411994147,paras.
176-179). In particular, the coverageof atrocities committed
in...Bos~iiaand Herzegovinais selectiveand one-sided. the
media denigratesMuslimsand Islam throughsensationalist
and distoirtedaccountsof historicaland existing "crimes"
which the:yhave committed"againstthe Serbian people"
while grave violations perpetrated against Muslimsare either
rarely re~mrtedor discountedas maliciousaccusations
formingpart of an "anti-Serbianconspiracy. " The
prograrnnningof State-controlledTV Belgraderegularly
involves'thedemonizationof certain ethnicand religious
groups..." [SixthReport, 21 February 1994,p. 21, paras.
124and 125 (E/CN.4/1994/110)].
2.2.6.2 It is little surprise therefore, that the killingand persecution of Muslims has
also been takingplace in Yugoslavia(Serbiaand Montenegro)proper since
at least early 1992,when the Stateactivelyblesses, encouragesand gives
effect to religious hatred [seeHelsinkiWatch - War Crimes in Bosnia
Hercegovina, (August 1992),pp. 81 to 89; also the Sixthperiodic Report of
the Rapporteur, 21 February 1993,pp. 24 to 261.The areas in which
Muslims and Croats have been especiallytargettedare Sandzak, Kosovo
and Vojvodina.2.2.6.3 Where the Serbs were unableto ruthlesslyexterminate Muslimsand
Croats, they embarkedupon destructionof these groups by attrition, as
weil as by intimidation.Those Muslims who livedin and still live in Serb
dominated areas were forced to surrendertheir property, or lost theirjobs.
They were also subjectedto gross violationsof their freedomof movement.
2.2.6.4 In the case of BanjaLuka and other places, the Rapporteur repeatedlydrew
attentionto the extremedifficultiesbeing facedby the Muslim population,
subjectto attack from the Serbs in control:
"8. An escalationin the rate of "ethniccleansing"has
been observed in Banja Lukasincelate November 1993and
there has been a sharp rise in repossessionsof apartments,
whereby Muslimand Croat tenantsare summarilyevicted in
violationof the [law]. .Indeedit has been reported that a
form of housingagency has beenestablishedin the
municipality,which chooses accomodationfor incomingSerb
displaced persons, evictsMuslimor Croat residentsand
reputedly receivespaymentfor its servicesin the form of
possessions leftbehind by thosewho havebeen evicted.. ..
9. Almostall non Serbs have now lost theirjobs ..and it
is estimated that only 3 per cent of nonSerbs continueto
hold employment.. ..Dismissalis often withouta legitimate
reason, but frequentlyis "draftevasion" ..Entire familiesof
persons who have permanentlysettledin other countries can
suffer in this way, as suchemigrantsmaybe deemedto be
draft evaders...".[Report,21February 1993,p. 5, paras. 8
to 9 (E/CN.4/1994/100)].
2.2.6.5 Where the Serbs had succeededin drivingMuslimsand Croats into one
particular area,their terrified victimswouldbe shelled andsubjectto sniper
attack. On countless occassions,food and medicalaid was denied to such
people by the Serb forces, who deliberatelyblocked, and in somecases destroyed internationalaid suppliesto prevent them from reaching those
whom they had trapped so wretchedly:
"They [theauthoritiesof Yugoslavia(Serbiaand
Montenegro)]have, for instance, insistedthat fuel deliveries
to Sarajevoand Tuzla onlytake place provided that the Serb
authoritiesreceive equal amounts, regardlessof need
(UNHCR refused tocomply withthis request). Also, on 10
Decembei:1993, the Governmentof [Yugoslavia](Serbiaand
Montenegro) refused toallow across its frontier a convoy
with "wiriterization"equipment to[besieged]Goraze across
itsfr0ntie.r." [SixthPeriodicRepon, 21 February 1994, p.
13, para. 69 (ElCN.4/1994/110)].
2.2.6.6 Instances of these and other attemptsto create destructive conditionsto
prevent the continuedexistenceof Muslimsand Croats are to be found in
part of BosniaaridHerzegovinawhere the Serbs have not beenable to
eliminate the Muslimand Croat population.
2.2.6.7 For exarnple, hm the beginningof April 1992until the present, Serb
forces have effectivelykept a strangleholdupon Sarajevo, the capital of
Bosnia andHerzegovina.They have bombardedhospitals, schools,
mosques, churchesand civilianbuildingsin a deliberate manner [Fourth US
Submission,7 December 1992,p. 14 (SI24918)].
2.2.6.8 The Rapporteur commentedupon the seige of Sarajevoby Serb forces:
"17. ..'fie seige is another tactic used to force Muslims
and ethnic Croatians to flee.. .Sarajevo..is shelledon a
regular basis, inwhat appears to be a deliberateattempt to
spread terror amongthe population. Snipers shoot innocent
civilians..The mission ..wasable to see the damagedone to
the hospitalitself, whichhas been deliberatelyshelledon
several occasions,despitethe proper displayof.. the Red
Cross syinbol. Cultural centres havealso been targeted, leading some observersto the belief thatthe attacking forces
are determined to"kill" the city itself, and the traditions of
toleranceand inter-ethnicharmony whichit represents.
18. The civilianpopulationlives in a constant state of
anxiety, leaving their homesor shelters onlywhen necessary.
Any movementout of doors is hazardous, and manypersons
and familiesspendlong periods in isolation. The public
systemsfor distributionof electricalpower and water no
longer function.Food and other basic necessitiesare scarce,
and dependon the airlift organisedby UNHCR andprotected
by UNPROFOR. UNPROFORbarracks and headquarters, as
well as the airport itself, have beenamongthe principal
targets of the shellin...Deliveryof suchhumanitarian
supplies asdo arrive is problematic. Al1inhabitantsof the
city are seriouslyaffectedby the fightingand the siege.."
[Repon,28 August 1992,p. 4, para. 17 (E/CN.4/1992/S-
1/9)].
Yet, even thoughconditionsdeterioratedconsiderablyafter the Rapporteurs
report, and even though peopleare still being killed by Serb snipers, the
spirit of tolerance has not beenbroken. Eventoday, Serbs, Croats, Jew and
Muslims live together as onein this city,as in other areas where the
culture of Bosniaand Herzegovinahas not been woundedby the destructive
and divisiveacts of the Serb forces.
2.2.6.10 The brief factsreferred to above showthe appallingnature of the policy of
the Serb forces. Not onlydid theyseek to eliminateMuslims, and aiso
Croats, but were brutal with anyonewho stoodagainsttheir racist and
brutalideals. In short they sought toeliminatethose who live for, and in
some cases died for the right to exist as a Muslim, and also as a Croat
within a Bosniaand Herzegovina whoselife blood is tolerance and co-
existence. The future of Bosniaand Herzegovinawill bearwitness to the fact that, thoughthe Serb forcestried to drain Bosniansof this life blood, it
still runs deep.nia and Herzegovinais, and always willbe a beacon of
tolerance, piercing through thedark mist ofed and intolerancewhich
seeks toextinguishit.
CHAPTER 2.3
THE CONTEXT OF THE ACTS
Section2.3.1
The Ideology ofGreater Serbia
2.3.1.1 The war in the Kepublicof Bosniaand Herzegovinapartly originates from
the breakdownof the communistregimesin Eastern Europe at the end of
the 1980s. The breakdownof communismbrought with it a desire on the
part of manyof the republicsof the SocialistFederal Republicof
Yugoslavia toseeknationhood.Serbia, traditionallythe strongestof the
Republics, soughtto crush these desires militarily. To mobilisepublic
opinion and tojustifj its militarycampaignsthe Serbian leadershiphas
frequently used inationalistrhetoric of the so-calledGreater Serbian
ideology. Thercmtsof this Greater Serbian ideologygo back to the early
nineteenthcentur.
2.3.1.2 The first formulationof the GreaterSerbianidea is generallyattributed to
Ilija Garasanin, Minister of Interna1Affairsof Serbia in the government of
Prince AleksanderKaradjordjevic. In 1844 Garasaninpublished a pamphletentitled The Outline (TheProgram of Serbianforeign and national policy at
the end of 1844). In this pamphlet hestated, inter alia:
"...a plan mustbe constructedwhichdoes not limit Serbia
to her presentborders, but endeavours toabsorb al1the
Serbian peoples aroundher."
and
"Not only mustthe fundamentalconstitutionallaws of Serbia
be extendedto Bosniaand Herzegovina,dong with the
administrativesystem ofthe Principalityof Serbia, but a
number of youngBosniansshould beacceptedinto the
Serbian officialdomto train them as political, financial,and
legal specialists.Later these peoplewould apply what they
had learned in Serbiain their own countries, and put into
practice the knowledgewhich they have gained. Here it must
be observed that these youngpeople shouldbe specially
supervisedand educatedin their work so that the redeeming
idea of a general unificationprevailsand remains uppermost.
This requisite cannotbe sufficiently emphasised"[M.
VUCKOVIC,Program spoljnepolitike ZlijaGarasina na
koncu 1844godine, Belgrado,De10XXXVIII, 1906,pp.
321-3361.
After World War II the GreaterSerbian sentiments weresuccessfully
suppressedby Tito's policy of divide and rule. After Tito's death however,
the ideologyof Greater Serbia startedits revival. In 1986 the Serbian
Academy of Arts and Sciences publisheda document,commonly referred
to as the "1986 Memorandum".This memorandum, signedby
approximately 200prominent Belgradeintellectuals,focusedpublic
attention on the situationin Kosovoand accusedthe Albanianmajority of
genocide against the Serbs livingin this Serbian province. Furthermore, it
called for a Greater Serbia. The mainpromotors of the Greater Serbian
revival, both membersof the Serbian Academy,were Dobrica Cosic,
current President of Yugoslavia (Serbiaand Montenegro), and Jovan Raskovic, former leader of the SerbianDemocraticParty (SDS),as such
predecessor of RadovanKaradzic, currently self-styledPresident the so-
called "SrpskaRepublica"in the Republicof Bosniaand Herzegovina.
Karadzic'sallegianceto Greater Serbianideals is unquestioned.On 16
March 1992, he remarked:
"...that the Serbs cannever be pacified unless their
centuries-.oldaspirationsto live in one stateare fulfilled.
Whether right now, or whetherit will take a few years, 1do
not know, but they willbe fulfillednone the less." [Tanjug,
1001gmt:,16March 1992; source:BBC Summaryof World
Broadcasts] .
2.3.1.4 The 1986Memorandumprepared the ideologicalground for Slobodan
Milosevic'sgrab,for power in September 1987.On a wave of nationalist
sentimentMi1osc:vic assumedthe leadershipof the Serbian Communist
Party. SinceMilosevic's take-over , the ideology of Greater Serbia proved
to be a useful tool to mobilise Serbianpublic opinionand to strengthen the
power base of the Serbian dominatedgovernmentin Belgrade. On 15
January 1991for example, on a sessionof the Federal Presidency,
Milosevic show4 his familiaritywith Greater Serbianideas:
"...we holdthat each nation has the qua1 right to decide
freely aboutits destiny. Sucha right canbe constrained
solelyby the sarne,qua1 right of other nations. As far as
the Serbianpeople are concerned, they want to live in one
state. Hence, divisionsinto severalstates which would
seperate Serbianpeopleand force them to live in different
sovereigristatesis, from Ourpoint of view, unacceptable,
that is -let me specify-out of the question." [Tanjug, 1939
gmt, 15January 1991; source:BBCSummaryof World
Broadcasts] . Section2.3.2
War in Slovenia and Croatia
On 25 June 1991,after a prolonged periodof fruitless negotiations,
Sloveniaand Croatia declaredtheir independence fromthe SocialistFederal
Republic Yugoslavia.On 27 June 1991thewar in the former Yugoslavia
started.In a finalattemptto prevent the secessionof Slovenia, which hasa
rather homogeneous populationand nosignificant Serbminority, the
YugoslavPeople's Army (JNA) experienceda humiliatingdefeat in a war
which lasted only ten days. On 7 July 1991,an agreementbrokered by the
European Community,the Brioni Accord, led to thewithdrawalof the JNA
from Sloveniantemtory. Contrary to whatlater happenedin the Republic
of Bosnia and Herzegovina,the JNA took al1of their rnilitaryequipmenton
their retreat
When the Brioni Accord wassignedthe war in Croatia had already begun.
Paramilitary forces from inside Serbiahad been arming the local population
in the predominantly Serb areas in Croatia, in an attemptto provoke
fighting and provide the JNA with an excuseto intervenedirectly on the
side of the Serbianpararnilitary.The consequencesof the armed
interventionby the JNA were disastrous. In August 1991JNA, artillery
started to shellthe city of Vukovarand by Novemberthe city was
completely destroyed.At the same time, the JNA launcheda large tank
offensive from Bosniaand Herzegovina againsttargets in Croatia. With the
help of the JNA, Serbianforcesrapidly tookcontrol of 30 percent of the
temtory of Croatia. Aftera number of failed ceasefireinitiatives, the
Vance Peace Plan finallysuccded in puttingan end to the hostilitiesin
December 1991.The areas occupiedby Serbian forces were designated as United NationsYrotectedAreas (UNPA's)and 14000peacekeepingtroops
were deployedto guard the frontlines.
With the complete destructionof Vukovar andthe siege of Dubrovnik as
examples, the Croatian war for the first time clearly showed thefull extent
of Belgrade's nationalisticand expansivepolicies.By now, the political and
military elite in :Belgradehad fullyrealisedit could not persuadethe
Croatian government tostayin a Yugoslav Federation. James GOW, a
leading defenceanalystand research fellowat the Centre for Defence
Studies at King'!sCollege, Universityof London, has studiedthe situation
in the former Yugoslaviaextensively.On this point, GOW observedthe
following ina recent analysis:
"The leaders in Belgradeseemedto have reacheda tuming
point, adoptinga new goal, the establishment ofthe borders
of a "mirii-Yugoslavia",comprisingthe key strategic
infrastruc:tureof the old Yugoslavstate and areas and
"reliable" populations;that is, Serb-dominatedcommunities.
The Siegeof Dubrovnik,beginningin late September 1991,
left no doubt-if there had ben any earlier- about the shift in
Serbianplicy and the Serbian leadership's intention of
establishinga new state". [JamesGOW, "One Year of War
in Bosniaiand Herzegovina" ,RFE/RLResearchReport, Vol.
2, No. 2:3,4 June 1993,p. 6; Annex24.
2.3.2.4. The JNA carnpaignfocusedon points of strategicimportance, such as the
Konavli region in southem Dalmatia,near Dubrovnik. Asthere had been
no fighting inthese areas betweenSerbianparamilitary groups and Croatian
forces, there wasno need to interveneon behalf of the local Serb
population. The area,however, wasof vital importanceto the JNA, as the
coastal regions tmntrolthe entranceto the navalbase at Kotor in
Montenegro. Becauseof internationalpressureto stop the fightinginCroatia, which ultimately resultedin the VancePace Plan, the Serbian
forces "failedto achieveal1aims". This was admittedby Colonel General
Zivota Panic, shortlybefore he replaced ColonelGeneral Blagoje Adzic as
chief of staff of the JNA[VojnoDe10(YugoslavAmy theoreticalJournal),
Nos 1-2, January-April 1992,pp. 222-2231.Notably, the JNA did not
succeedin establishinga comdor between WesternSlavonija, Banija,
Kordun, Lika and KninskaKrajina on the one hand and Baranja and
Eastern Slavonia onthe other hand. Later, the establishmentof a corridor
to the Serb areas in Western Croatia wouldprove to be one of the
objectivesof the Serbian offensivein Bosniaand Herzegovina.
Section2.3.3
The YugoslavPeople'sAmy
The course of the war in Sloveniaand Croatia showedthat the interests and
views of the rnilitary leadershipof the JNA andthose of the Serbian leaders
in Belgrade almost entirely coincided.On this symbioticrelationship James
GOW remarked the following:
"Throughoutthe war [in Croatia], the JNA came increasingly
and more overtly under the controlof the Serbianpolitical
leadership. This gradual Serbiantakeoverwas accomplished
in two ways. The first involvedelementsat various levels
withinthe military, who consciouslyshapedthe army's role.
These elementshad already been activelyfomentingunrest:
for example, providingarms as well as supportand cover to
local Serbian rebelsin Croatia. At the head of this movement
was Major GeneralBozidar Stevanovic,who hadbeen due to
retire but who had beenpersuadedby "someonewho wasnot
no one" to withdrawhis applicationfor retirement and
remain on activeduty. It seemslikely that that "someone"
was Serbian PresidentMilosevic. The second way in whichMilosevicexercisedinfluence on
the JNA Iwasthrough the fourrepresentativesof the Serbian
camp in the collective federal Presidency,especiallythrough
federai Vice PresidentBrankoKosticand the representative
of the Serbian Republicin the collective federalPresidency,
BorisavJovic. Certainly, Kosticwas key in influencing the
political direction of the JNA actionsin the conflictin
Sloveniaand Croatia and during the fust weeks of the war in
Bosnia aridHerzegovina. The extentof his influencebecarne
apparent during the trial of former Yugoslavintelligence
chief Colonel GeneralAndrijaVasiljevic, when former
federal Defense MinisterGeneral VeljkoKadijevictestified
that Vasi:ljevicwas being prosecutedfor having executed
orders that had come from Kostic. " [James GOW,op. cit.,
pp. 3-41.
On 30 December 1991,after the VancePeacePlan had put an end to the
fighting in Croatia, the SerbiandominatedFederai Presidency in Belgrade
ordered a major reorganisationof the JNA. This reorganisation is described
by Dr. Milan VEGOin Jane'sIntelligenceReview,widely regarded as the
world's most authoritativejournal on militaryaffairs [Milan VEGO,Jane's
IntelligenceReview,October 1992,p. 445; Annex2-11].Milan VEGO
teaches East Europeanhistory and politicsas well as naval operationalart
in the United Statesof America.
One of the mairiaims of the reorganisationof the Federai Amy was to
secure Belgrade'sgrip on Bosnia andHerzegovina. In order to do so the
Federal Presidency reestablished the 4th Military District with headquarters
in Sarajevo. The newly created MilitaryDistrict was designatedthe largest
part of Bosnia auidHerzegovina, whilethe remainingparts of Bosnia and
Herzegovina were assignedto the 1st Military Districtand the 2nd Military
District.With the reorganisationof the JNA the number of troops in Bosnia
and Herzegovinarose to 60 000. To ensure the loyaltyand reliability of thetroops, the GeneralStaff consciously appointedonly Serbs and
Montenegrensto crucial positionsin the 4th and 2nd Military District.
illustrative exampleof the GeneralStaffs determinationto put the JNA
under Serbian controlis its decisionto put the 37th Corps, based inMostar
(capitalof Herzegovina), under the cornrnandof the4th Military District in
Sarajevo. This Corps, whichwas entirely mannedby Serbian and
Montenegrinreservists, wouldlater be responsablefor the shelling of
Mostar. In this sarneperiod additionai federal troops weremoved into
Bosnia andHerzegovina. Durig the early part of April 1992, massive
movementsof troops and equipment fromSerbia intoBosnia and
Herzegovina were witnessedby independentobservers [see 2.2.5.41.
Consequently,JNA-presencein Bosniaand Herzegovina totalled
approximately95 000 troops, when the Republicof Bosnia and
Herzegovina declaredits independencein April 1992.
Section2.3.4
RAM
While the JNA concentratedits troopsin Bosniaand Herzegovina, an
enormous covert operationwas takingplace. This operation, known by the
acronym RAM,was organised from Belgradeby Mihaij Kertes, who in
1990was DeputyFederai Minister of the Interior and head of the Yugoslav
Secret Service. Kertes organised hisoperationsin close cooperationwith
JovicaStanisic, the Head of the SecretServiceof the Serbian Ministryof
the Interior.
"D'aprèsles rélévations d'uofficier, analystestratégiqueen
serviceà 1'Etat-majorde l'armée fédérallee, plan RAM a
étéélaboréen février1991. "Tandisque les quatre plans Bedem1définissaientla répartition desfoces arméessur les
territoires de la Bosnie-Herzégovineet de la Croate, le plan
RAM prévoit l'élargissemen ett le netoyagede cet espace de
l'intérieur't la connexion desenclavesserbes dans cet
espace". ]Le plan a étéconçuaprès lesconsulationsentre les
chefs de 1'Etat-majoret Milosevic.Son butfinal est la
réalisatioride la Grande Serbieou de l'Union des Etats
serbes.Le plan prévoitle déploiementdes réservistesserbes
de l'arméefédérale en Herzégovinesous le prétextede la
"défense(despopulations serbesnon arméesde l'Herzégovine
orientale (àmajoritéserbe)contre les attaques provenant des
extrémistes del'Herzégovine occidentale (àminoritéserbe)".
Des unitésde tchetnikset la milicelocale serbe provoqueront
des troubles, l'arméeoccupera despositions stratégiques sous
le prétextede défendrela populationdes bandes de pillards
ivres (organisées préalablement pa l'rarméeelle-même) et
prendra le contrôlede la Dalmatie méridionale, avec
Dubrovnik et les îles.D'aprèsle plan RAM, des grave
désordreset des conflitsinterethniques provoqués parles
milices serbes avecl'aide de l'arméeempêcheronl ta
proclamationde la souverainetéde la Bosnie-Herzégovineet,
aprèsla c:réatiode cinq régions serbesautonomes, finiront
pas disloquer cette république.Les divers corps d'armée
ferontjonction, relierontla Krajinà l'Herzégovineet
assurer0n.tl'occupationdes villes croatesde la côte. [Le
nettoyageethnique: Documents historiquessuruneidéologie
serbe, Mirko GRMEK,Marc GJIDARA,Neven SIMAC
(eds.),Ruis, 1993,pp. 299-3001.
2.3.4.2 In order to reach its objectives,RAM entailedthe supply of arms and
ammunitionto Serb communitiesin strategicparts of both Croatia and
Bosnia and Herxegovina.To distributethese arms, which partly originated
from stores of various police and JNA reserves, Kertes used an extensive
network compose. of membersof the SerbianDemocraticParty (SDS) and
'Bedemwas anothersecretmilitaryprogram,elaboratedin 1990. It was disclosedin I'Evenementdu Jeudi, 4
July 1991. Itwas usedafter theSloveiiianandCroatianindependence inJune1991.JNA officers. With the help of the Chief of the Directorate of Material
Reserves (DMR), Dusan Mitevic, formerhead of BelgradeTelevision,
several hundred thousandweaponswere sent toBosanskaKrajina, eastem
Herzegovina and Ramaniya, the mountainousareaeast of Sarajevo. The
distribution of arms among Serb populationsin Bosnia andHerzegovinais
confirmed by Misha GLENNY, Central Europeancorrespondentof the
BBC, in his widely acclaimedbook on the war in the former Yugoslavia
wisha GLENNY, TheFull ofYugoslavia,London, 1993,p. 150;Annex
2-III].
In February 1992, the Zagreb newspaperVjesnikpublishedan article in
which JNA officers admitted thatthey hadarmed the Serbian populationof
several villages in Bosnia.
"At the demandof the Partyof DemocraticAction and the
Croatian DemocraticCommunity,the news conferencein the
ZavidoviciCommunalAssemblydiscussedthe arming of the
Serbian people inthe local communityof Dolac on 28
January. They were armed by the YugoslavPeople's Amy
from the "4 July" barracks in Doboj. It was establishedthat
the Amy has admittedarrningthe so-calledSerbian
volunteers. Thishas been documentedby the minutes, as
well as by the eye-witnesstestimoniesof the Zavidovici
Public Security Station employees.It was pointed out tha...
the Serbianpopulationin the localcommunityof Gostavic
was recently armedin a sirnilarfashion. The represenîatives
of the ZavidoviciCommunal Assemblyvisited Doboj and
held talks with the commanderof the barracks Lieutenant
Hadzic, and withMajor Corluk, who confirmedthat they
had handed the arms overto the Serbian populationof Dolac
in order to 'fillthranks of its volunteer squad'. The
volunteers from Dolac did notgo to the barracks, but kept
the arms at home. " [Vjesnik,1 February 1992,p.7; source:
Foreign BroadcastInformation Service(FBIS)] .2.3.4.4 In August 1991, the FederalPrime Minister, Ante Markovic, revealed the
existence of RAM. At the sarnetime, Markovicreleased a tape of a
recorded telephoneconversation betweenSlobodanMilosevic, in Belgrade,
and RadovanKaradzic, in BanjaLuka. In this telephoneconversation,
Milosevic infomed Karadzic that a supply ofarms would be put at the
disposalof local Serbsthrough GeneralNikola Uzelac, commanderof the
JNA in Banja Luka. Moreover, Milosevicreassured Karadzic,by saying
that, if necessary, Uzelaccould also come to Karadzic'said with air strikes
[see Misha GLENNY, op. cit.,pp. 151;StipeMESIC (translatedas) How
wegot rid of Yugoslavia,Zagreb 1992,p. 2361.
2.3.4.5 Kertes and Stanisicdid not limit their covert operationsto the arrning of
Serb communities.RAMalso envisagedthe creationof paramilitary units,
which would serve to create the conditionsin Croatia and Bosniaand
Herzegovina necessarytojustify the armed interventionof the JNA. Those
units would also be used to terrorise Croatianand Muslim populationsinto
fleeing from aras of strategicimportance.The first paramilitary group set
up by Kertes was the SerbianVolunteerGuard, or 'SerbianTigers', led by
Zeljko Raznjatovic,also knownby his nom de guerre 'Arkan'. In addition,
Kertes was instnimentalin the creationof two other pararnilitarygroups,
the 'WhiteEagles' (Beli Orlovi),headedby Mirko Jovic, founder and
leader of the Serbian NationalRenewel(SNO), an extremist Serbian
nationalist partyof little politicalnificance,and the 'Chetnik
Movement', under the command ofVojslavSeselj, leader of the Serbian
Radical Party (SRS). Seselj'sSRShas beenof crucial importanceto
Milosevic. After the 1992elections,Milosevic'sSPS remainedin power
thanks to the supportof the Serbian RadicalParty.It is these paramilitarygroups, mostlybased in Serbia or Montenegro
proper and acting under orders from Kertes, Stanisicand the Yugoslav
Secret Service [see Misha GLENNY, op. cit. p.,1501,which are
responsible for many of the atrocitieswhich have been committedby the
Serbs in the Republicof Bosniaand Herzegovina [seee.g. 2.2.1.17;
2.2.2.2; 2.2.2.16; 2.2.5.3;2.2.5.81. This is a fact which is widely
acknowledged,even in the Federal Republicof Yugoslavia(Serbia and
Montenegro) .In December 1992,in the weekspreceding the parliamentary
elections in Serbia, SerbianPresidentSlobodanMilosevicaccused Vojslav
Seselj and other membersof the SRSof being criminals. In response to
these accusations however,SeseljemphasisedMilosevic's responsibility:
"Seselj...greeted Milosevic'saccusationswith his own
countercharges. Whileprotestingthat hewas no criminal,
Seseljnoted that "the time has come to expose the chief
mafiosoof Serbia, and his nameis SlobodanMilosevic ...
Nothing could havebeen committedin this country without
the president'shavingknownabout it". Seseljadded that
althoughhe had committedno war atrocities, he would
comply withany formal request toappear before an
internationalwar crimes tribunalin The Hague to answer
ailegations. At the sarnetime he suggested thatMilosevic
was the real war criminal, adding, "1cannot see how 1
would go [to The Hague] without SlobodanMilosevic" [Prof.
Stan MARKOTICH,"SerbiaPrepares for Elections" ,
RFE/RLReport, Vol. 2, No. 49, 10December 1993,p. 16;
Annex 2-IV].
At least some of these acts have been committed witharms suppliedby the
JNA, as has been admittedby Chetnik leaderVojslavSeselj in an interview
in August 1991[Der Spiegel,5 August 1991,pp. 124-1261.Up to now, the
paramilitary groups continueto freely recruit membersin Serbia and
Montenegro, as was alsorevealed by Seseljin the sarneinterview. In no way has the Yugoslavgovemment sought toprevent or restrict the
operationof the these forces. Quite the contrary, both Seseljand
Raznjatovicare inembersof the Serbianparliament. Moreover, without the
parliamentary supportof Seselj'sSRSMilosevicwould nothave been able
to remain in power after the 1992elections [Prof. Stan MARKOTICH, op.
cit. p. 151.
Section2.3.5
TheWarin Bosniaand Herzegovina
2.3.5.1 In November 1991, multi-partyelections wereheld in Bosniaand
Herzegovina. 011 28 February 1992, theday preceding the referendumon
the independenceof Bosniaand Herzegovina,the self styledleaders of
Serbs within Bosniaand Herzegovinaproclaimedthe creation of the so-
called "Serbian Republic ofBosnia andHerzegovina". In the referendum
itself, held on29 February 1992, themajorityof the electorate (despitethe
boycott of many Serbs)voted in favour of independence. Followingthe
result of the referendum, theRepublicof Bosnia andHerzegovina officially
declared its independencefrom the former SocialistFederal Republic of
Yugoslaviain the beginningof April of the same year. Between5 and 7
April 1992, the European Communityand the United Statesof America
recognisedthe Republicof Bosniaand Herzegovinaas an independent
State.
2.3.5.2 When the Republic of Bosniaand Herzegovinadeclared its independence,
the warwas already under way. In early March of the sarneyear, Karadzic
had threatenedof the consequencesif an independent Republicof Bosniaand Herzegovina was demanded: "Northem Ireland would be a holiday
resort in comparisonwith Bosnia-Hercegovina"[Tanjug,1019gmt, 2
March 1992, source: BBC Summaryof World Broadcasts].By that period,
the JNA had becomean instrument ofthe Serbianleadership, which had
gained complete controlof the Federal Presidency.The Federal Amy
closely cooperatedwith the pararnilitaryforces, set up and controlled by
Kertes:
"Irregular units, notablythe "Tigers", formallyknown as the
Serbian VolunteerGuardand ledby the notoriousZeljko
Raznjatovic(whosenom de guerre is Arkan), were also
involvedin preparationsfor the conflictin Bosnia and
Herzegovina. Membersof the guard, of whommany had
criminal backgrounds,becamethe highlyeffectiveshock
troops that entered Vukovarat the end of that siege,
providing thearmy with the "professional"all-volunteer
infantry previouslyunavailable to the conscript-based federal
Yugoslavarmy. They were also vitalto the blitzkrieg terror
campaignduring which the federal Yugoslavarmy seized
large parts of northern and eastern Bosnia andHerzegovina
in the spring of 1992.Between27 March and 8 April of that
year there were a numberof crucial flashpoints. Arkan's
"Tigers" in the northand the east and YPA [JNA]units in
the south, the west, and the northwestinitiatedattacks (in the
east these were from Serbia)to securethe main entry points
into Bosniaand Herzegovinaas well as major communication
and logisticslines at Foca, Visegrad, Zvornik,Bijelina,
Kupres, Bosanski,Brod and Derventa. In effect, this
offensive left the core of the newlyindependentBosnianstate
surroundedand under Serbianmilitarycontrol, much in the
sarne manner thatthe Bosniancapital Sarajevohad been
encircled by Serbiantroops deployedon the hills around the
city." [JamesGOW, op. cit.,p. 81.
The offensive carried outby the JNA and the irregular Serbian forces was
not a chaotic and uncontrolled explosionof ethnicviolence. On the contrary, it was a well plannedand thoroughlyexecutedmilitairy campaign
by one state againstanother. The speedand deadlyefficiencyof the
Serbian attacks in the early days of the war in Bosnia, withthe practically
simultaneouscommencementof hostilitiesboth in Sarajevoand in several
strategically importanttownsnear the border with the Republicsof Serbia
and Montenegro, shows that these militaryactions were well coordinated.
In other words, the eventsunfoldingin Bosniafrom April 1992indicate a
clear pattern of militaryactions. The arrival of irregular units from across
the Serbian and Montenegrinborder also fits in this pattern, which is not at
ailconsistentwith the notionof a civil war. The conviction, that a clear
patterncanbe distilledfrom the Serbian militaryactions, is shared by
GOW:
"Together withunits positionedthroughoutBosnia and
Herzegovina, the federal Yugoslavarmy engagedin a series
of attacks on townslocateddong the major communication
routes throughoutnorthem and eastern Bosniaand
Herzegovina. Dunng the two-monthperiodfrom the end of
March to the end of May 1992,the Serbianforces secured
large parts of Bosnia andHerzegovina, acceleratingits
prograrn of"ethniccleansing"and driving out through
carnpaignsof terror non-Serbsand "disloyal"Serbs in many
areas. The Serbian successwas attributableto surprise tactics
and toan overwhelmingsuperiorityof armed force. In view
of thesped with whichthey were implementedand the high
level of coordinationthey revealed, these operations clearly
had not been mountedspontaneously."[JamesGOW, op.
cit,p. 8:l.
2.3.5.4 In order to guaranteea free flow of personneland suppliesbetween the
Federal Republicof Yugoslavia (Serbiaand Montenegro)and the Serbian
communities in [Croatiaand Bosnia andHerzegovinathe establishmentof
secure comdors, defendedby the Serbianmilitary, is an absolute militaryimperitive. In its offensive theSerbianforces succeededin establishing two
corridors.
The offensivelinked the Serb held areas in Western Croatia to the Federal
Republic of Yugoslavia (Serbiaand Montenegro),an objectivewhich the
Serbian forces had failed to achievein the Croatianwar, and it established
an uninterruptedcorridor in the east and the south-eastof Bosnia and
Herzegovina. However, the Serbianforces failed to link the Bosnian
temtory occupiedin the south-eastwith the SerbianKrajina [see: Misha
GLENNY, op. cit., pp. 184-1851.
At least part of these corridors, of necessity,run through areas which, until
the beginningof the warwere inhabited by a Muslim majority. It is in
these areas that ethnic cleansingfirst occurred. In their desire to create an
ethnicallypure state, Serbianforces immediatelystarted eliminatingthe
predominant and large Muslim populationin these areas. In the Eastern
corridor for example, most of the Muslimpopulationof the areas around
Zvomik (with a muslim majorityof 59-60%), Bratunac(63-64%), Visegrad
(63-64%) and Foca (51%)was terrorised into fleeing [see 2.2.4.23. The
concentrationcamp of Brcko (Luka) [see2.2.1.16 et. seq.1, in which
between May and July 1992 around2,000 to 3,000 Muslims were killed,
was locatedin anarea of vital strategicalimportance.This areaaround
Brcko is the weakestpoint of the northern corridor. In order to remove al1
traces of the Muslimpopulation, theSerbianforces also demolishedmost
religious buildingsin these corridors [see2.2.5; see the map on page 75 of
this Memonal and see also theUNHCR-mapon page 161. 543 PRE-WARPOPULATION,
47% MUSLIM,7%CROAT,
42% SERB,4% OTHER.
30% MUSLIM,29%CROAT,
ZVORNIK REGION
1,295 PRE-WARPOPULATION
59% MUSLIMMAJORIN
,513 PRE-WARPOPULATION
% MUSLIMMAJORITY Section2.3.6
JNA's continuedpresencein the Republicof Bosnia andHenegovina
2.3.6.1 On 27 April 1992both the Presidencyand the Governmentof Bosnia and
Herzegovina orderedal1Federal Army troops to leave the temtory of the
Republic. On the:sarneday Serbiaand Montenegro adopteda new
Constitution,in which theydecided tocontinue theirlife in commonin
Yugoslavia, and to reorganisethe Socialist Federal Republicof Yugoslavia
into the Federal Republicof Yugoslavia,consistingof the two Republics.
On 4 May 1992, in apparent responseto the Bosnianorder, Belgrade
announcedthe withdrawalof al1JNA troops who were non-residentsof the
Republicof Bosniiaand Herzegovina.At that time, JNA forces in Bosnia
and Herzegovinatotalled around 95 000 troops. Contrary to the
announcement however, the Federal Presidencyin Belgrade consequently
withdrew onlypart of the 76 000 troops, who were non-residentof the
Republic. By the end ofMay only about 14 000 men had left Bosnian
territory tooin the YugoslavAmy (VJ),which in accordancewith the
new Constitutionhad succeededthe YugoslavPeople's Amy (JNA). The
remaining troops, numbering around 80 000, were transfe~~edto the so-
called Army of the SerbianRepublicof Bosniaand Herzegovina milan
VEGO, op. cit., p. 445). The fact thatalmost al1of the former JNA troops
remained on Bosnianterritory is confirmedby Serbian sourcesas well:
"The decisionof the Yugoslavfederalauthonties to
withdraw the YugoslavPeople'sArmy [JNA]from Bosnia-
Herzegovinais the beginningof the realizationof the Serb
nation'sdecisionon transferringthe JNA units to the Serb
territones, TomislavSipovic, member ofthe Governmentof
the Serb Republic, said today at a news conference at the
internationalpress center of the Serb Republicof Bosnia-
Herzegovina (atIlidza near Sarajevo).. Accordingto this
decision, the JNA officiallyis abolishedin Bosnia- Herzegovina...In ~ractice.the JNA is not movingout. but is
being transferred to Serbterritory. The Armv whiup to
now has been mainlvSerb. will remain". [BelgradeTanjug
Domstic Service, 1223gmt, 7 May 1992; source:Foreign
Broadcast InformationService(FBIS), emphasis added].
On 30 May 1992,that is almostfour weeks after the announcedwithdrawal
of the JNA troops, the newlyappointedcommanderof the Serb forces in
Bosnia andHerzegovinaRatkoMladic accusedCroatianarmedforces of
attacking Yugoslavsoldiers, citizensof the Federal Republicof Yugoslavia
(Serbia and Montenegro)on Bosniantemtory.
"The commanderof the army of Bosnia-HercegovinaSerbs
said that there mustbe no more attacks on YugoslavArmy
soldiers, such as the attackin Sarajevoof two weeks ago or
the recent massacreof aarmy columnin the Bosnian town
of Tuzla, where "of the 49 innocentsoldiersand officers,
citizensof the Federal Republicof Yugoslavia,six were shot
dead and the others killed with blunt implementaxes."
[Tanjug, 1540gmt, 30 May 1992; source:BBCSummaryof
World Broadcasts.
On 3 June 1992, in an interviewby VilmosV. Kovacs, Serbian Foreign
Minister Vladislav Jovanovic confirmed thatthe YugoslavArmy had
remained in the Republicof Bosnia andHerzegovina:
"[Kovacs]The federal armyis also in Bosnia-Herzegovina.
[Jovanovic]The YugoslavAmy stayedin the republic
becauseof the speedyrecognitionof the independenceof
Bosnia-Herzegovina.That is, becausethe recognition took
place before the completionof the Bosnia-Hercegovina
conference" [Hunganan Radio B,udapest 1630gmt, 3 June
1992; source: BBCSummaryof World Broadcasts].2.3.6.4 The new recruits of the SerbianAmy in the Republicof Bosniaand
Herzegovina werenot transferred emptyhanded.A large part of the former
JNA's militarypotentialwas left in the handsof General Ratko Mladic,
who had been appointedas commanderof the the SerbianArmy in Bosnia
and Herzegovinaon 9 May. GeneralMladic had ruthlessly distinguished
himself as commanderof the Knin Corps in the Serb controlledareaof
Croatia. In the war in Croatia, Mladic "becamenotoriousfor his barbaric
treatment of the Croatianciviliansand his threats to destroy the Croatian
coastal city of Sibenik" milan VEGO, op.cit., p. 4461.In a radio speech
given on 14July 1992for Radio BeogradNetworkin Belgrade, Federal
President Dobrica Cosic admittedand claimedfull responsabilityfor the
following in his lcapacityas supremecommanderof the VJ:
"The waxequipmentof the YugoslavPeople's Army has not
only remainedin the handsof the Army of the Serbian
Republicof Bosnia andHerzegovina. ..The army of the
Serbian &public of Bosnia-Herzegovinawas left with: 24
training-c.ombataircraft, 20 helicoptersand four artillery
battalions.They stayedat BanjaLuka airport because the
pilots anclother crew membersrefusedto move to the
temtory of the FederalRepublicof Yugoslavia,because they
are citizensof Bosnia-Herzegovina.Then, they were left
with 300 tanks, 231 artillerypieces of various caliber and a
large amount of infantry weaponsand ammunition."
["PresidentAdressesFederal Assemblyn,Radio Beograd
Network,0935gmt, 14July 1992;source: Foreign Broadcast
InformationService(FBIS)] .
2.3.6.5 On this rnilitaryequipment,the red star insignaof the JNA was, whenever
possible, exchangedfor Serbian symbolsand flags. The Serbian forces who
occupied Sarajevoairport throughoutthe monthof May, after the formal
withdrawalof theJNA on 19May 1992,used tanko sn which the old JNA
markingshad ben crudely repainted. Thiswas confirmedby MilosVASIC, editor of Vreme,a respectedweeklymagazinebased in Belgrade,
in his analysesof the war inthe former YugoslaviaWilos VASIC and
Aleksander CIRIC, "No Way Out: The JNA andthe YugoslavWars",
WarReport,January 19931.
Despite the partial withdrawalof the JNA andthe transfer of forces to the
Serbian Army in Bosniaand Herzegovina, thecommandstructure in the
former federalarmy has not changedradically since the summerof 1991:
"The operationalchainof command inthe federal army runs
from the Supreme DefenceCouncil(composedof the
President of the Federal Republicof Yugoslavia and
presidentsof the republicsof Serbiaand Montenegro)
through the General Staffin Belgradeto the commanderof:
1stMD (Belgrade),4th MD (Podgorica),the 'Armyof the
Serbian Republicof Bosniaand Herzegovina' , the Naval
District (Kumbor,Bay of Cattaro), Air Force and Air
Defence Units. Thecommanderof the 'Armyof the Serbian
Republicof Bosniaand Herzegovina is LieutenantGeneral
Ratko Mladic, the formercommanderof the 9th Corps in
Knin... His headquarters wererecently moved from Pale
(near Sarajevo)to moresecureHan Pijesak (some55 km
northeast of Sarajevo).This headquartersis locatedin an
underground bunkerproviding multichannel andsecure
communicationsto al1subordinatecorps commanders, the
General Staffin Belgradeas well as the president of the
Federal Republicof Yugoslavia."
and
"Currently, the GeneralStaff in Belgradeis obedientto
President Milosevic. The Belgraderegime not only plans the
actions of the Serbianforces in Bosnia andHerzegovinabut
also keeps these forces suppliedwith weapons, equipment,
and ammunition.The commandersof the Serbian forces in
that republicare assigned,promotedor dismissedfrom their
posts by the GeneralStaff in Belgrade, which intum gets its orders form PresidentMilosevic." [Milan VEGO, op. cit. ,
pp. 445-446,4481.
2.3.6.7 Belgrade'sinfluenceon the SerbianArmy in Bosnia and Herzegovinais
strïkingly exemplifiedby RatkoMladic'srnilitary promotion. On 9 May
1992, that is,welvedays after the adoptionof Yugoslavia'snew
Constitutionand ten daysafter Belgradehad explicitely renouncedany
connectionwith itheSerb forcesin Bosnia andHerzegovina, the Yugoslav
Presidency officiallyanouncedthat Mladic would be assurningthe
commandof the Army of the so-calledSerbian Republicof Bosnia and
Herzegovina sha GLENNY, op. cil. ,p. 2011.Belgrade'scontrol of the
Serb forces in Bosniaand Herzegovinawas confirmed by Serbian officers
in the Bosnianfield who claimedthat they could notceasefire until they
were told to do so by Belgrade. [TheDaily Telegraph, 15 March 19931.
Section2.3.7
Yugoslavia'scontinuinginvolvement
2.3.7.1 Contrary to Belgrade'srepeatedclaimsthat it has stoppedinterferring in
the Bosnianwar after the withdrawalof the federal troops in May 1992,
Belgrade's involvementin the war in the Republicof Bosniaand
Herzegovina stil:lcontinues. Since27 April 1992the Serb forces in Bosnia
and Herzegovinahave continuously receivedlogistical support from the
Federal Republicof Yugoslavia (Serbiaand Montenegro). This is
confirmed by Milan VEGOin Jane's IntelligenceReview:
"The Serbian forceshave morethan sufficient suppliesof
weaponsand ammunition tocontinuefighting at the current
level of intensity formorethan two years accordingto some reports. The Serbianforces have control of almost two-thirds
of the 250.000 tons ofammunitionin the possessionof the
former federal army. Yet, these forces are highlydependent
on other supplies,especiallyfuel for aircraft, tanksand
armoured vehicles,and specialequipmentwhich can only
come from Serbiaand Montenegro.Thus, the Serbian forces
are suppliedboth by the air and overland.Despite the UN
sanctions, there are reports thatterally hundredsof Serbian
tractor-trailers, includingoil tankers movedaily over the
roads from northwestern partof Serbia across theDrina
River to Beijeljinaand then to BanjaLuka and other cities in
western Bosnia. Otherroad communications tothe Serbian
forces also run across the Drina Riverat Loznica, Bralinac,
and Visegrad. Anotheroverlandsupplyused to supplythe
Serbian forces runs from ScepanPolje (Montenegro)to
Sarajevo." milan VEGO, op. cit. p.,4481.
On 16November 1992,RadomanBozovic,then Prime Minister of the
YugoslavRepublicof Serbia, confmed Yugoslavia'scontinuing
involvement. The Belgradebased Tanjugnews agencyreleased the
followingreport:
"Bozovicon Monday [16 November19921took part in a talk
show hostedby the Yugoslav newsagencyTanjug. Asked
about the announcedsteppingup of UnitedNations sanctions
against Yugoslavia, Bozovic underscored thap tressure. no
matter how strong. cannotforce Serbiato sto~sending
material and humanitarianaid to Serbs who are engagedin a
civil war inneighbouringBosnia-Hercegovina . [Tanjug,
1532gmt, 16November 1992; source:BBCSummaryof
World Broadcasts,emphasisadded] .
VEGO's observationsand Tanjug'sreport are completelyconsistentwith
two statementsmadeby Lord Owen, CO-chairman of the International
Conference on the former Yugoslavia.In early December 1992, he
remarked: "Serbiaand Montenegro supplythe oil and the spare parts. If
they cut this off, the Serbmilitaryoperationin Bosnia would
gnnd to a hai withina week" [TheGuardian, 5 December
19921.
In early 1993, he consequentlycalled for selectivebombingof road and
bridges into Bosnia toprevent theSerbiangovemment from continuingto
supply the Serb forces.
2.3.7.2 In addition to the logistical supportgiven tothe Serb forces in Bosnia and
Herzegovina, VJ'troops and aircraft regularly cross the border to support
the Serbian war effort in the Republicof Bosniaand Herzegovina. Since
the withdrawalof the JNA, up to 20 000 VJ troops have on occasion been
deployed on Bosniantenitory [James GOW,op. cit. , p. 21. Yugoslavair
forcejets were widely used in supportof the BosnianSerbs on the ground.
These aircraftused air bases atBatajnica(near Belgrade), Nis, Ponikve
(near Uzice), Pristina, and Podgoricafor combat missionsover the
Republic of Bosnia andHerzegovina. Despitethe United Nations ban on
flights, MiG-23 fighterbombers were used to bomb targets in Bosnia from
their bases in Serbia wilan VEGO, op. cit., p. 4461.
2.3.7.3 In May 1992, Serbian forcesfrom across the border in Montenegro
emptied the village of Borajnoin the Cajnicedistrict of its Muslim
population [see:2.2.63].On 2 March 1993, VJ troops completely destroyed
the village of Crska, near KojnevicePolje [see2.2.5.141. Yugoslavtroops
operate from Serb-controlledtenitory in Bosnia, most notablythe special
forces commandos fromthe 63rd Airbome Brigade [TheGzuzrdian,28
January 19941.:EarlyFebruary 1994,westernofficiais confirmed reports
that Yugoslavundercoverunits had been routinelyengagedin Bosnia [The
Guardian, 2 February 19941.In a number of cases, the VJ has deployedtank snd artillery, located in
the Federal Republicof Yugoslavia(Seriaand Montenegro), to support or
cover Serb forces in Bosniaand Herzegovina.On 25 January 1993, the
YugoslavArmy from the right bank of the river Drina, that is on Yugoslav
territory, shelledpositionsof the Bosnianarmy across the river. On this
occasion, Lieutenant-GeneralNikola Mandaric, commanderof the First
Army ofthe YugoslavArmy gave an interviewto Politika. In his
authoritativebook on Yugoslavia,Misha GLENNYdescribesPolitiku as
one of the "hollowvesselswhich Milosevic'sbureaucracyfilled with
seductivenonsense" [MishaGLENNY, op. cit., p. 44). In this interview
Mandaric declared the following:
"By the decreeof the presidentof the republicand the
Supreme DefenseCouncil, the YugoslavArmy is deploying
a part of its forceson the right bank ofthe River Drina to
give assistanceto the Amy of the Serbianrepublic in the
protectionof the Serbianpopulationfrom genocide.. .For the
time being the assistance consistsof a certain supportof the
Army ofthe Serbianrepublic and of preventing sabotage-
terrorist groups from penetratinginto the territory of Serbia
and Yugoslavia,whichis their intention, as we have learnt
from the experiencefrom Rudo and Visegrad. As for the
desires of the Muslim andUstashaforces to conquer this
region on the left bank ofthe River Drina and populateit
with Muslims, well, that wiil not work, and ifwe receive the
orders we will crossthe river to help the Serbian people."
[Politika, 26 January 1993,p. 8; source: ForeignBroadcast
Information Service].
In Serbia, officialsof the YugoslavArmy havebeen involvedin the forced
conscriptionof BosnianSerb refugees for the purpose of fightingwith the
Serb forces in Bosniaand Herzegovina:
"Accordingto UNHCR officials, at least 26 BosnianSerb
malesof fighting age wererounded up at a refugee collection centrein :Kosovorecently. They were reportedlydriven to
the Bosnianborder where they were handed over to Bosnian
Serb authorities" [TheIndependent, London, 21 January
19941.
The forced consc:riptionwas later confirmedby other sources:
"In another effort to bolster the BosnianSerbs, the Yugoslav
authoritieshavebeen summoningrefuges into the
breakawqyarmy. Men ofmilitaryage who have fled the
fighting to refugeecampsare being toldto report to local
Yugoslav militarydistricts, accordingto the UN High
Commissi.onerfor Refugees. At the Yugoslavmilitary
offices, tlieyare handeda form, stampedby the Bosnian
Serbs' ministryof defence, headed: "The Fatherland is
calling you". The noticeorders the refugee to report to
military centresin Serbiafor duty in the BosnianSerb army,
adding that serviceis obligatoryand that failure to appear
will result in prosecution" [TheGuardian, 28 January 19941.
Section2.3.8
Yugoslavia (Serbia andMontenegro)'~ publicconfirmationsof its
involvement
2.3.8.1 On several occasions, SerbianPresidentSlobodanMilosevicadmittedthe
Federal Republicof Yugoslavia (Serbiaand Montenegro) continuedgiving
extensive support to the Serb forcesin Bosniaand Herzegovina, after the
formal withdrawalof the YugoslavPeople's Amy (JNA) in May 1992. On
9 October 1992,BelgradeTelevion broadcasteda recorded interview given
to Milorad Vucelic, Director-Generalof SerbianRadio andTelevision, by
the Serbian President:
"[Vucelic]Mr President, itsometimes seems thatone of the
conditionsto overcomethe sanctions thatrnightbe worth
complyinigwith and that some superpowersperhaps want is to stop helping -naturally, in a humanitarian and anyother
manner, 1 mean, taking care of that which is our
constitutional duty- that is. to stoplookingafter the Serbs in
Krajina and the Serbs in Bosnia-Hercegovina.1ssucha
politicaltumaboutpossiblein Serbiawhile you are President
of the Republicand while the current governmentis running
Serbia?
milosevic] This is absolutelv outof the question.They have
nobodv else to relv on but us. If we had even reduced the
aid to them thev wouldhave foundthemselvesin a very
difficult situation.We do not have the right to do sucha
thing. These m~le are a Dart of our nationwhom we are
absolutelyobligedto helg. Al1these storiesthat some
individualsare teiling, namelythat we canlive well and
happily and what concem of ours is it what is happening
over there - well, if a nation is destroyed, then there is no
freedom, prosperityor anythingelse for an individualeither.
Al1in dl, we knowto which individualsfreedom, prosperity
and other benefitsmight haveapplied, whilethey used to
apply to the nations thatwere being destroyedor a subjectof
aggression, and they found an excusefor the aggressionand
for not offeringresistanceand for treason - not to use this
overtly exploitedword ofour politicalvocabulary -
therefore, 1really do not see how this could be possiblefor
Serbia. 1 believethat not a singlegovemmentin Serbia
should even thinkabout it if it has even thesli~htestidea
about stateand nationalinterests." [Belgrade TV, 2054 gmt,
9 October 1992; source:BBCSummaryof World
Broadcasts, emphasis added].
In early May 1993, theRepublicof Serbiaand the Federal Republic of
Yugoslavia (Serbiaand Montenegro)releasedthe followingofficial
communiques followinga meetingof the self-styled"parliament"of the so-
called "Srpska Republika". The text of these communiqueswas subrnitted
earlier within the request for the indicationof provisionalmeasures
[Requestfor the indicationof ProvisionalMeauresof Protectionsubmittedby the Govemmentof the Republicof Bosnia and Herzegovina, 27 July
"Communiqueissued after the sessionof the Governmentof
the Republicof Serbia
The Governmentof the Republicof Serbia discussedthe
report, prepared by prime minister N. Sainovic,on the
results of the negotiationsprocess for peacein former Bosnia
and Herzegovina, and of the sessionof the Serb Republic
parliamen t.
The Governmentreached the followingconclusions:
Firmlv believingthat a just battle for freedom and the
equalitv of the Serbianpeople is being conductedin the Serb
Raublic. the Re~ublicof Serbiahas beenunreservedlvand
generouslv hel~ingthe SerbRe~ublic.in s~iteof the
enormous~robiemsit had to face due to the sanctions
introduceda~ainstit bv the un SecuritvCouncil.
At the sarnetime, theRepublicof Serbia greatly contributeci
to the peace withinthe UN efforts, with the intentionof
securinginternationalguaranteesfor ajust and honorable
peace, ensuring the security, the temtones and the
constituent statusof the Serbian peoplein Bosnia and
Herzegovina.
The goveinmentbelieves thatsuch conditions havebeen met
after the enhancementof the Vance-OwenPlan at the Athens
meeting.
Taking part in the sessionof the Serb Republic parliament S.
Milosevic, Presidentof the Republicof Serbia, N. Sainovic,
Prime Minister of Serbiaand Z. Lilic, President of the
Serbian parliament, presented numerouselementand facts, in
order to help the deputiesof the Serb Republic parliament
approve the Vance-OwenPlan, not as a final solution, but
certainly as a good basis for preventing, withinthe peace
process, the loss of lives, aseil as to ensure a lating peace
and thejust objectivesof the Serbianpeople.
The Govemmentreached the conclusion thatthe decision of
the Serb Republicparliament, i.e. to transfer the final
decision regarding the Vance-OwenPlan to the people,
represents;an irresponsibleact, sincethe people did not take part in the negotiations that lastedseveral months, andthey
should notbe used as a screenby the leaders faced with
critical decisions, since the leadersare obligedto make
decisionsand to consequently answer tothe people for their
actions.
Since the conditions forsmce have been met. the
Govemment alsoapreed. that anv further economicd-etion
of the Re~ublicof Serbiais now uniustifiedand
~ns~D~0rt.ble.and that future aid to the SerbRe~ublic
shouldbe limited tofoodand medicinesin such auantities as
the competentministries will determine. The Govemmentof
the Re~ublicof Serbia also believes that. asthe conditions
for establishingmce havebeen reached. anv further aid in
funds. fuel. raw materialsetc.. ~rovideduntil now with ~reat
sacrificesbv the Re~ublicof Serbiaitself. is not iustifiedanv
more.
The Republicof Serbia willalwaysunreservedlyoffer shelter
to the wounded, refugees, and al1threatenedpersons from
former Bosniaand Herzegovina,but it cannot tolerate that
certain officialsfrom thatare. live comfortablyand
immodestlyin Belgrade, while they offer only a harsh policy
of sacrificesandpoverty to the people of the Serb Republic.
The governmentof the Republicof Serbia underscoresits
deep appreciationfor the efforts, intendedto help thepeace
process in loco with politicalmeansand personal
engagement, madeby the Greek Govemment, and especially
by Prime MinisterMitzotackis."
and
"Federal Govemment -Communique
The Govemmentof the Federal Republicof Yugoslavia
reviewed today the consequencesresultingfrom the decision
of the assemblyof the Republicof Srpskaat Pale not to
accept the Vance-OwenPlan but to lave the final decisionto
the Serb peoplein Bosnia-Herzegovinato be taken at a
referendum.
In this connection,the Govemment expressedits indignation
and profound concem on accountof sucha decision and the
possiblecourse subsequentdevelopmentscould take as well as on accountof the failure of the assemblyof the Republic
of Srpska to acknowledge the undeniable arguments
advocatedon behalf ofthe F.R.Y. ByPresidents Cosic,
Milosevicand Bulatovic.
Bearin giri mindthe immediateadverseeffects of UN
Security Council Resolution820on the economicvower of
the F.R.Y. And the social~ositionof the maionty of its
citizens. the Federal Govemmentis forced to adiust al1
future aid to the Re~ublicof Srpskawith its oblective
economic~ossibilitiesand to reduce it exclusivelyto
contingentsof food and medicaments.
The Federal Govemmenthas instructed theappropriate
Ministerie:~to ensure the strictimplementationof this
decision" [emphasis added] .
2.3.8.3 In the first communique, theRepublicof Serbia proclaimedthat the war in
the Republic of Hosniaand Herzegovinais "ajust battle for freedom and
the equalityof Serbianpeople". In order to supportthis battle, the Republic
of Serbia "has ben unreservedlyand generouslyhelping" the Bosnian
Serbs. In the concludingpart of the first communique, the Republic
revealed the nature of this help. At the cost of its "economic depletion"the
Republic of Serbia has beenproviding "funds,fuel, raw materials etc. ".
In the second coinmunique,which wasprovidedas part of the sarne
documentin conjunctionwith each other, the Federal Republicof
Yugoslavia (Serbiaand Montenegro)also acknowledgedthat "aid" has been
provided to the Serbsin the Republicof Bosniaand Herzegovina. With
regard to this aidi,the communiquestatedthat "the Federal Govemment is
forced ...to reduce it exclusively tocontingentsof food andmedicaments".
This clearly impliesthat assistance, otherthan food andmedicaments,has
been given.On 11May 1993, Slobodan Milosevic releaseda statementto the President
of the Belgradebased Tanjugnews agency, SlobodanJovanovic, which is
completely consistentwith the two communiques:
"In the vast two vears. the Re~ublicof Serbia -bv assisting
Serbs outside Serbia -has forced its economyto make
massiveefforts and its citizensto make substantial sacrifices.
These efforts and these sacrificesare now reaching the limits
of endurance. Mostoftheassistance was senttopeopleand
JightersinBosnia-Hercegovina b, t a substantialamount of
aid was given to the 500,000refugeesin Serbia. At the same
time, becauseof its solidaritywith and assistanceto the
Serbs in Bosnia-Hercegovina,Serbiais subjectedto brutal
internationalsanctions. Todaythere canbe no comparison
betweenus and any other countryin the world, or very few
countries, in terms of the economicand general difficulties
we face. Clearlv.we were awarewe would face these
difficultieswhen decidingto provide assistanceto Serbs who
were at war.
Now conditionsfor peace in Bosniahave been created.
Followinga year of war and long-termpeace negotiations,
the Serbs have gainedtheir freedomand have regained the
equalitytaken from them whenthe war started. Most of the
temtorv in the formerBosnia-Herce~ovinabelongsnow to
Serb provinces. This is a sufficienteason to hait the war,
and to remove further misunderstandings through
negotiationsand by peaceful means.
The signingof the peace plan is an act of goodwill, which
ends the war and opensup peacefulnegotiationsbetween the
three warring sidesin Bosniaand the neighbouringrepublics
of former Yugoslavia andthe international community.This
is not an end to negotiations aboutrelations betweenSerbs,
Muslimsand Croats, but it is an end to the war. Hencewe
in Yugoslaviaand Serbiahave appealedto the Serbsin
Bosniato supportan end to the war and toembark on the
road topeace by signingthe plan. Serbs in Bosnia, as well
as Serbs and ail other citizensof Serbia, now really do need
peace.Serbia finds it difficultto sustainthe burden of the great
assistance:which goesto Bosnia, and of the sanctionswhich
have been imposedon Serbiabecauseof its solidaritywith
the Serbs outsideSerbia, and there is no reason for it to
sustainthe burden if the war in Bosnia stops. We haveof
course not excluded further humanitarianaid to the
populationof Bosnia-Hercerrovina,but the people there will
in peace-timebecomecapableof rebuildingtheir economy
and takingcare of their own lives.
Serbia urgentlyneedspeace in Bosnia. When the current
great sacrificesare over and the sanctionsare lifted, Serbia
will soon recover - tensions willease, the standardof living
will increase, the burden of uncertaintyand fear from war
and poverty will beremovedfrom the citizens. The interests
of 10rni1:lioncitizensof Serbia must now have priority.
These interestscannotbe madeuse of for the sake of some
other interests,especiallyif these interests of Serbia's
citizensare of vital importanceand are in extreme jeopardy.
Serbia has lent a great. greatdeal of assistanceto the Serbs
in Bosnia. Owingto that assistancethev have achievedmost
of what thevwanted. Now Serbia has to start taking care of
itself-concentratingprimarily on the revivaiand the
developmentof its industryand economy, increasingthe
living standardof its citizensand protectingthem from
violence and crime which are also a consequence of the war
and of thi:great and uncontrolled flowof people between the
two republics. 1 therefore believe that supportfor the peace
plan is rd supportfor peace which is of the greatest vital
importancefor Serbia, for its citizens, for every citizen of
Serbia. Only someone whois not movedby the interesîs of
Serbia and its people, but by someother personal or group
interests tmnot see and notaccept this. No one who
considersthe interestsof Serbia and its citizensas
subordinateto his own interestscancount on our
understan'dingand our support.
The decisionon the peace plan concems theinterests of
Yugoslavia, Serbiaand Montenegro,Krajina [in Croatia]and
the SerbianRepublic [in Bosnia-Hercegovina ]al1citizens
and the whole of the Serbiannation - not onlythe Assembly
and the citizensof the SerbianRepublic. 1 therefore believe that the decisionon this cannot be made
only by the citizensof the SerbianRepublic, butby al1the
people's representativeselected tothe parliamentsof
Yugoslavia, Serbia, Montenegro, Krajinaand the Serbian
Republic -equallyand with full respect for the interestsof
their citizensand the Serbiannationfor peace, freedom,
equality, and againstwar and violence." [Yugoslav Telegraph
Service, 1553gmt, 11May 1993; source:BBCSummaryof
WorldBroadcasts;emphasis added] .
In this official statement, Milosevicadmittedthat the Federal Republicof
Yugoslavia (Serbiaand Montenegro)has lent "a great, great deal of
assistance" to the Serbian "peopleand fighters" [emphasis added]in Bosnia
and Herzegovina. As Milosevic'sstatementalsoclearly indicates, this
"assistanceto Serbs who were at war" was not limited tohumanitarianaid:
"Thereis no reason for it pederal Republicof Yugoslavia
(Serbiaand Montenegro)] to sustainthe burden [of the
assistance]if the war inBosnia stops.We have of course not
excludedfurther humanitarianaid to the povulationof
Bosnia-Hercegovina"[emphasis added] .
This clearly impliesthat other, non-humanitarian, assistancehas also been
given to BosnianSerbs. In his statement, Milosevic moreover
acknowledgedthat this support givento the Serbian forces has ben a
decisive factor in the war in Bosniaand Herzegovina: "Owing to that
assistance they [theSerbs in Bosnia] haveachievedmost of what they
wanted", that is that "mostof the territory in the former Bosnia-
Hercegovina belongsnow to Serb provinces".The influenceof Greater
Serbian ideologyon Milosevic's politicalideas is clearly visiblein this
statement. Milosevicrefers severaltimes tothe commoninterests of "the
Serbian nation", which includes al1Serbs whether living in "Yugoslavia,
Serbia and Montenegro, Krajina [in Croatia]"or in "the Serbian Republic
[in Bosnia-Hercegovina]".In Milosevic'sview, an end to the war is acceptable, desirableand inthe interestsof "al1citizensand the wholeof
the Serbian nation", now that" most ofthe territory in the former Bosnia-
Hercegovina belongs ...to Serb provinces".
2.3.8.6 Very recently, on 16March 1994,in spiteof internationaloutrage over the
shelling of Sarajevo, the Federai Republicof Yugoslavia(Serbia and
Montenegro) publiclyand clearly interferedon behalf of the Serb forces
surrounding the Bosniancapital. In responseto NATO'sthreat dated 9
February 1994to shell Serbartillery outsideSarajevo, the Federal Republic
of Yugoslavia (Serbiaand Montenegro)submittedan official Applicationat
the InternationalCourt of Justice. In this Applicationagainst the Member
Statesof NATO, the FederaiRepublicof Yugoslavia(Serbia and
Montenegro) clai.medthat by "threateningto use force withoutthe
authorizationof the SecurityCounciland inthe form of anultimatum" the
Member States have violatedthe United NationsCharter [I.C.J. Press
CommuniqueY :ugoslavia applieto theInternational CourtofJusticeina
dispute withthe Member StatesofNATOinrespectof thethreatof useof
force by NATO,.No.94/11, 21 March 19941.By interfering on behalf of
the Serb forcesiinthe Republicof Bosnia andHerzegovina theFederal
Republic of Yugoslavia (Serbiaand Montenegro)acknowledgedthat it is
far from neutral in the conflict. On the contrary, it apparently considereda
threat against Serb forces in the Republicof Bosniaand Herzegovinaas a
threat against itself.
Moreover, Yugoslavia (Serbiaand Montenegro) condoned andapproved of
the systematic destructionof Sarajevo,an act which on numerous occasions
has been denouncedby the entire international community. Section2.3.9
Conclusion
The Yugoslavoffensivecarried out in the monthsfollowingthe declaration
of independenceby Bosniaand Herzegovinawas nota chaotic and
uncontrolled explosionof ethnicviolence. It was a well planned and
thoroughly executed(rnilitary)carnpaignaimed at the conquestand control
of as much strategicallyimportant territoryas possibleand at the same time
aimed at the destructionof the predominant Muslimpopulationof the
temtories involved.
The atrocities committedon the temtory of the Republic of Bosnia and
Herzegovinaare therefore neither the result of some centuries-oldhatred,
nor a tragic 'by-product'of an 'old-fashioned'territorial andlor civil war.
Quite the contrary, these atrocities are the ultimateand inevitableoutcome
of the Greater Serbianidealsas promotedby the Serbianleadership and
their desire to creatan ethnicallypure Serbianstate. PART 3
AUTHORITATIVEINTERNATIONAL ORGANS
CONEIRMTHEEXISTENCEOF A CAMPAIGNOF
GENOCIIDE UNDERTAKENBY THE FEDERAL
REPUBLICOF YUGOSLAVIA(SERBIAAND
MONTENEGRO)
CHAPTER3.1
THELEGAL RELEVANCE OF THE PRONOUNCEMENTS OF
UNITED NATIONS ORGANS
3.1.0.1 As wasdemonstmtedin the precedingPart, a comprehensivecampaign of
genocide has ben conductedand supportedby JNA troops operating on the
tenitory of the Kepublicof Bosnia andHerzegovina, and by other forces
directed and supportedby the Federal Republicof Yugoslavia(Serbia and
Montenegro). This Part describesthe international responseto these
activities, in particular by the organs of the United Nations.
Annexedto thismorialare the most important UN-documents,being the
relevant SecuritjrCouncil Resolutions[Annex3-TJand the relevant General
Assembly Resolutions[Annex3-1111.
3.1.0.2 Accordingto A~ticleVI11of the GenocideConvention: "[alny Contracting
Party mayal1upon the competentorgans of the United Nations to take
such action under the Charter of the United Nationsas they consider
appropriate for the preventionand suppressionof acts of genocide or any of the other acts enumeratedin ArticleIII." The Conventiontherefore places
the United Nations organsin a specialposition withrespect to the
application of the Genocide Convention,and the pronouncementsof these
organs are particularly persuasivewhen determining whetherthe provisions
of the Conventionare applicableto a certain situation, whether these
provisions have been violated, and if there has been a violation, which
entity is intemationally responsible.The Intemational Courtof Justice may
in turn wish to place particular emphasison the pronouncementsof the
United Nations, of whichit is the "principaljudicialorgan".
3.1.0.3 This Part first presents theresolutionsand decisionsof the United Nations
Security Council, the organwhichexercisesprimary responsibilityfor
internationalpeace and security. These resolutionsand decisions were
initially triggered by the armed actionsand acts of interventionof the
Federal Republicof Yugoslavia(Serbiaand Montenegro). It was within the
framework of this aggressivecarnpaign,of course, that the acts of genocide
have been committed, as is reflectedin the pronouncementsof the Council.
3.1.0.4 There then followsa presentationof authoritativedeterminations relatingto
the elementsof the carnpaignof genocide,which reveal, according to
objective international agencies,the systematicnature of the atrocities
which haveben committedand confirm that these acts amount to
genocide, in line with the provisionsof the GenocideConvention. These
pronouncementswere madeby the United NationsGenerd Assembly, the
United NationsCommissionon HumanRightsand its Sub-commissionand
Special Rapporteur, the HumanRights Committee andthe Vienna
Conferenceon HumanRights, al1of whichare also undoubtedly
"competent"in the senseof Article VI11of the Genocide Convention.3.1.0.5 It would be impossibleto relate thevast numberof statements concerning
genocide in the :Republicof Bosnia andHerzegovinathat were made by
United Nations member Statesin UN and other bodies. Instead, individual
submissionsof govemmentsto UnitedNationsorgans will only be quoted
or cited wherethey may assist the Courtin its understandingof the
resolution or decisionadoptedby the organ in question. A more detailed
analysis of these resolutionsand decisions willbe providePart6,
within the contextof the analysisof attribution, dong with further evidence
on this point emanating fromregionalorganizationsand agencies.
CHAPTER 3.2
THE UNITEDNATIONS SECURITY COUNCIL
Even before the Republicof Bosniaand Herzegovinawas admittedto UN
membership, the.United NationsSecurityCouncil respondedto the armed
actions which were launchedby the Federal Republicof Yugoslavia(Serbia
and Montenegro:)as part of the campaignof genocidethat was to ensue.
After having calïed for a case-fire on 13April 1992, which remained
unheeded, it adoptedaPresidential Statement,calling once more upon al1
"regular or irregular forces" to case militaryoperationsand demanding
that "al1forms of interferencefrom outsideBosnia-Herzegovinacase
immediately" [S1'23842,4 April 19921.The Council thus unanimously
confmed the existenceof the elementof extemal armed interventionin the
developing crisis. The statementhad been adopted withouta debate in the
Council, butseveral delegationsto the United Nations communicatedtheir
appreciationof the situation tothe Council.gary, for example,
wrote to the Council that "the aggressionagainstthe sovereignty andthetemtorial integrity of the Republicof Bosnia-Herzegovina,the violationsof
fundamental human nghts, including therights of ethnic and national
minorities, in the areas controlledby the 'Yugoslav'Army and Serbian
irregular forces, constitutea serious threat to peace and security in the
whole Central and South-eastemEuropeanregion." [S/23845, 26 April
19921.Venezuela complainedof "atrocities"whichamountedto "inhuman
acts of aggressionby one countryagainstanother" [S/24377, 4 August
19921.
On 12 May 1992, when reporting to the SecurityCouncil, the UN
Secretary-Generalreflected thewidely held viewthat "what is happeningis
a concerted effort by the Serbs of Bosnia-Herzegovina,with the
acquiescenceof, and at least some supportfrom, JNA, to create 'ethnically
pure regions' ...The techniquesused are the seizureand the intimidation
of the non-Serbpopulation"[S/23900,para. 5, 12May 19921.In addition
to arrest and intimidation,the Secretary-Generalsoon had to report on the
direct use of armedforce against civilians,includingthe besiegingof cities
as part of this strategy. He confirmedthat theJNA was in some cases
directly involvedin such activities, linkingit alreadyat that stage to the
directkilling of Muslimsand the creationof conditionsof life calculated to
bring about theirphysicaldestruction[S/24000,para. 6, 26 May 19921.
Perhaps to pre-empta strongresponseby the Security Councilto this
finding of the Secretary-General,the delegationof the Federal Republic of
Yugoslavia (Serbiaand Montenegro) assertedin a communicationto the
Council that it had, on 27 April, decidedto "reducethe Army of
Yugoslavia tothe temtory and citizensof Yugoslavia.As a result, al1the
citizens of the Federal Republicof Yugoslaviawho had been in the YPA (YugoslavPeople'sArmy) [JNA] troopswere withdrawnby 19 May 1992,
together with their shareof equipmentand armaments" [S/24007, 27 May
19921.The govemmentof the FederalRepublicof Yugoslavia(Serbia and
Montenegro) thus officiallyconfirmedthat, at a minimum, the JNA had
continuedto operate withinthe Republicof Bosniaand Herzegovina and
that it was equippingBosniancitizensof Serb ethnicitywith "their share"
of military equipment.As was indicatedin Part 2, this equipment included
heavy weapons, commandand control facilities, air-craft and other
materiel, that is, preciselythe instrumentsof warfare and terror which
were used in the campaignagainstmostly Muslimcivilians.
3.2.0.4 The fact that this transferof arms and ammunitionhad actually occurred
was confirmed by the United NationsSecretary-General13123844,para.
16, 24 April 19921.In a subsequentreport, the Secretary-General indicated
that the "share" of menand equipmentwhich wasbeing transferred
amounted tosome 80per cent of MA strength [S/23900, para. 24, 12 May
19921.In effect, therefore, itwas confirmed thatthe JNA simply changed
its designation,but remained, in terms of manpower, equipmentand
strategic direction, substantiallythe same instrumentin the campaign of
genocide that was being conductedby the Federal Republic ofYugoslavia
(Serbia and Montenegro)and those affiliatedwith it.
3.2.0.5 The Security Councilrespondedto the continuingparticipation of the
Federal Republic:of Yugoslavia (Serbiaand Montenegro) in the hostilities
by adoptingResolution 752 (1992)of 15May 1992.The Council formally
demanded that "dl forms of interferencefrom outsideBosnia-Herzegovina,
includingby units of the YugoslavPeople'sArmy (JNA) as well as
elementsof the CroatianAmy, ceaseimmediately,and thatBosnia-Herzegovina'sneighbourstake swift action toend such interference
and respect theterritorial integrityof Bosnia andHerzegovina". Hence, the
Council confirmed thatthe JNA troops which, it was asserted by the
Federal Republicof Yugoslavia(Serbiaand Montenegro), werenow
nominaliyunder local Serb command,continued tooperate, in fact, as
regular JNA forces. The Counciltherefore alsodemanded inResolution
752 (1992) thatthe units of the JNA within the Republicof Bosnia and
Herzegovina must either be withdrawn, or disbandedand disarmed with
their weaponsplaced under effectiveinternational monitoring.
In Resolution752 (1992) the Councilalso concerneditself with the
activities ofthese forces, calling for an end to forcibleexpulsionsof
persons from the areas where they live, and "any attempt to change the
ethnic compositionof the population".
Some two weeksafter the adoptionof Resolution752 (1992), the
Secretary-Generalhad to report to theCouncilthat the situationhad
deteriorated even further. Seriousviolationsof even the most basic
humanitarianrules for the protectionof the civilian populationin armed
conflict were being committed, he added. These acts had led to the
"displacementof the civilianpopulation fromits towns and villages ...on a
scale not seen in Europe since the Second WorldWar" [S/24000,para. 5,
26 May 19921.The Secretary-General continuedby statingthat there had
also been "a grievous deteriorationin the plightof civilianstrapped in the
cities besiegedby various irregular forces and in some cases alsoby the
YugoslavPeople's Army (JNA)," confirming once morethe existence of a
genocidalcampaignto destroythe mostlyMuslimpopulation, which was
still continuingwith the direct involvementof the JNA [id.,para. 61.3.2.0.8 On 30 May 1992, the Secretary-Generaionce more certified to the Council
that the requirement for a withdrawaiof the JNA and of non-intervention
had not been heeded [S/24049,paras. 5-9, 30 May 19921.The Security
Council responded with considerable decisiveness, imposingagainst the
Federal Republicof Yugoslavia(Serbiaand Montenegro), in Resolution
757 (1992)of 30 May 1992, comprehensiveeconomicsanctions. In fact,
the sanctions adopted airady at that stagewere on a par with, or even in
excess of, those imposedagainst Iraqin 1990, evidencing the gravitywith
which the Councilviewed the situation.
3.2.0.9 The Resolutionformallydeplored thefailure of the authoritiesin the
Federal Republicrof Yugoslavia(Serbiaand Montenegro)to complywith
the demands coritainedin Resolution752 (1992). The sanctions, adopted
under Chapter VI1 of the Charter, are to apply "until the Security Council
decides that the authoritiesin the FederalRepublicof Yugoslavia(Serbia
and Montenegro), includingthe YugoslavPeople's Amy (JNA), have
taken effectivemeasuresto fulfil the requirementof resolution 752(1992)",
that is, inter alia, the demandto withdrawJNA forces, to cease acts of
interventionand genocidalmeasuresresultingin the changeof the ethnic
compositionof the populationand tocease obstructing humanitarianaid
deliveries.
3.2.0.10 Resolution757 (1992)was adoptedby 13votes tonone, with two
abstentions(China and Zimbabwe). Zimbabwewas opposed to the concept
of economic sanctions asa matter of principle, but didnot dispute the view
held by the rest of the Council memberswith respect to acts ofarmed
interventionand grave and systematic violationsof humanitarianlaw
undertakenby tiie Federal Republicof Yugoslavia(Serbiaand Montenegro). China formallyconfirmedthat the requirementfor a
withdrawal of troops had not been compliedwith [S/PV.3082, 30 May
1992, p. 81.The other delegations werealso very forthright, several of
them explicitlylinkingthe acts of aggressionperpetratedby the Federal
Republic of Yugoslavia(Serbiaand Montenegro) to"the undisguisedefforts
to create so-callednation-States, incorporatingal1 people belonging tothe
same ethnic background, and the blatant use of force to achieve thisaim
through territorial conquest" [Hungary, id., p. 161.
3.2.0.11 It should benoted that the sanctions establishedin Resolution757 (1992)
are in force to this day, thus confirmingthat, in the view of the Security
Council, the FederalRepublicof Yugoslavia(Serbiaand Montenegro)
continues to be in violationof the demands containedwithin it. Indeed, in
Resolution 787(1992)of 16November 1992, the Security Council
confmed that any taking of territory by force or any practice of "ethnic
cleansing" is unlawfuland unacceptable,and once again demandedthat al1
forms of interference, including theinfiltrationof irregular units and
personnel, cease immediately.In consequenceof the continuingviolations,
the Council tightened sanctionsyet further in that resolution, and even
authorized the use of militaryforce for the implementationof its provisions
relating to maritimetraffic. In fact as late as 1993,the Secretary-General
confirmed that the requirementof a withdrawalof JNA troops "has still not
been fulfilled" [A/47/869, 18January 19931and, in the responseto these
and other continuing grave violationsof the rights of the Republicof
Bosnia and Herzegovina,the Councilwas constrainedto toughen sanctions
further still [Resolution 820(1993), 17Apnl 19931.In the summerof 1993,the Council proposedthe establishmentof a
monitoring presence, to prevent the infiltrationof miliîary forces and
equipmentand other supportfor the Serb forces in the Republicof Bosnia
and Herzegovina [Resolution838 (1993), 10June 19931.Significantly, the
Federal Republicof Yugoslavia(Serbiaand Montenegro), despite its earlier
indications that:it wouldcomply withsuch a request, rejected this plan,
thus displaying oncemore its unwillingnessto contemplatea disruption of
the continuedoperationsof its forces, and those supportedby it, in the
framework of the campaignof genocidein the Republicof Bosnia and
Herzegovina.
One element of this continuedparticipationrelates to air support given to
Bosnian Serb forces operatingwithinthe Republicof Bosnia and
Herzegovina. Chi9 October 1992,the Counciladopted Resolution 781
(1992), which, in responseto theuse of Federal Republicof Yugoslavia
(Serbia and Montenegro)air power, establisheda ban on miliîary flights in
the airspace of the Republicof Bosnia andHerzegovina. The UN
Secretary-Gened was requestedto report to the Council on compliance
with the ban. Through the use of sophisticatedsurveillance equipment,and
in collaboration with a regionaldefence agency,a very large number of
violationswas detected. Indeed, theSecretary-Generalwas constrained to
issue weekly reports detailingviolations,which are now too numerous even
to cite here. Most of the violationswere committedby aircraft operating in
conjunctionwith Serb forces. On 19 March 1993, the Secretary-General
reported that three planeshad attackedthe villagesin the vicinity of
Srebrenica, where civilianshad been trappedby encircling forces, dropping
bombs. The p1an.e~ were observedto retreat towards the territory of the
Federal Republic:of Yugoslavia(Serbiaand Montenegro) after having completedtheir attack CSJ25444,19 March 19931.The Council strongly
condemnedthis furtherviolation (at thetime 465 violationshad been
reported), and demandedfrom theBosnianSerbs an immediate explanation
of the aforementioned violationsand particularlyof the aerial
bombardment. It also requested theSecretary-Generalto ensure that an
investigationbe made of the reported possibleuse of the temtory of the
Federai Republicof Yugoslavia(Serbiaand Montenegro) tolaunch air
attacks against the temtory of the Republicof Bosnia andHerzegovina
[S/25426, 17March 19931.The severitywith whichthe Councilviewed the
air support given by the Federal Republicof Yugoslavia(Serbia and
Montenegro) was underlinedwhenit authorizedUN member States to use
force, under its authority, to ensure cornpliancewith the flightban
~esolution 816 (1993), 25 March 19931.
3.2.0.14 The Councilalso addressed specificallya number of individual elementsof
the campaignof genocide. In Resolution798 (1992)of 21 December 1993,
it strongly condemned themassive, organizedand systematic detentionand
rape of wornen, in particular Muslimwomen, in Bosniaand Herzegovina.
The Councilalso expressed deep concemat reports of abuses against
civilians imprisonedin camps, prisons and detentioncentres and demanded
unimpededand continuous accessto al1camps, prisons and detention
centres to be granted immediatelyto humanitarianorganizations, and
humane treatment for detainees, including adequatefood, shelter and
medical care. In so doing, as is evidencedin the relevant Council debates
accompanying the adoptionof the respectiveresolutionsand decisions, it
confirmed the existenceof, and condemned, thepractice of establishing
concentrationcampsat which torture and arbitrary killings were conducted,
mainly againstMuslim civilians [e.g.,PresidentialStatementSJ24378,4 August 1992;Resolution 770(1992), 13August 1992;Resolution 771
(1992), 13August 1993; PresidentialStatementS126437, 14 September
19931.
The Council alsoaddressed what is perhaps the most direct manifestationof
the policy of genocide:the militaryattacks directed againstcivilians,
including the bombardmentand shellingof civilian centres and even
concentrationsof displacedpersons, and the preclusion of humanitarian aid
deliveries as a nieansof warfare againstcivilians. In August 1992, the
Council responded to thisstrategyof genocide throughmass killing and
starvationof civilianpopulationswhich had been directed mainly at
Muslims.
3.2.0.16 In Resolution 770(1992), adoptedformallyunder Chapter VII, it
authorized theuse of force for thepurposesof the delivery of humanitarian
assistance. The deniai of humanitarianaccess, and the use of starvationof a
civilian populationas a meansof warfare was strongly condemnedin this
and numerous subsequent Council Resolutions anP dresidential statements,
and in numerous submissionsmadeby UN member states on the occasion
of the adoptionof these resolutionsand statements.The delegate of
Venezuela, for example, drew the attentionof the Council members tothe
Conventionon the Preventionand Punishmentof the Crime of Genocide,
reminding them thatthe Conventionstatesthat genocide means inflictingon
a group of humanbeingsconditionsof life calculatedto b~g about its
physical destructionin whole or in part. Article54 of the 1977 Additionai
Protocol 1to the GenevaConventions,he added, also prohibits the
destructionof infrastructuresbasic tolife, suchas electricity, drinking
water, sewagearidother basic publicservices. "Such are the acts today being perpetrated in the Republicof Bosnia andHerzegovina," the
Venezuelandelegateconcluded [SIPV.3119, 6 October 1992,p. 91.
3.2.0.17 In Resolution 780(1992)of 6 October 1992,the Councii also confirmed
the existenceof widespreadviolationsof humanitarianlaw in the context of
the campaignof so-calledethnic cleansing,and the practice of "mass
killings" in that context [alsoResolution808 (1883), 22 February 19931.
Later that month, the Council expressedits revulsionat the fact that even
those civilianswho had been subjectedto so-calledethnic cleansingand
were fleeing from the city of Jajce, were subjectedto attacks from Serb
forces [PresidentialStatement,S/24788, 30 October 19921.Atrocitiesof
this kind, verified and condemnedby the Council, confirmthe existenceof
a strategy not onlyto removemembersof anethnic or religious groups
from particular regions, but indeed to destroy them,even when attempting
to escape. In November 1992,the Councilreaffirmedthat any taking of
temtory by force and throughsuchpracticesis unlawfuland unacceptable,
insisting that al1displacedpersons be enabled toretum in peace to their
former homes [Resolution 787 (1992), 16November 19931.In the sarne
resolution, the Council felt constrainedto demandthe cessationof outside
interference, "including infiltrationinto the country of irregular units and
personnel", once again confirming the existenceof continuing involvement
of the Federal Republicof Yugoslavia in these genocidal acts. This direct
link was made even moreapparentby the factthat the Councii, once more,
responded by adoptingin that resolutionfurther sanctions against the
Federal Republicof Yugoslavia(Serbiaand Montenegro).
3.2.0.18
As its demands for cornpliance remainedunheeded, the Security Council
gradually widened the mandateof the UnitedNationsProtection Force (UNPROFOR), initiallyto escort humanitarianaid convoys. Even then,
these entirely humanitarianefforts, aimed at ensuring the very survival of
the mostly Muslimpopulations, were consistently obstructedby Serb
forces, leading the Council toadopt the desperatemeasure of air-drops, in
its attempt toprevent the exterminationof large segmentsof the population
through starvation [PresidentialStatement S/25334, 25 February 19931.In
March 1993, the:Councilwas once more constrainedto demand that "the
killings and atrocities must stop", reaffirmingthat those guilty of crimes
against internationalhumanitarianlaw will be held individuallyresponsible
by the world cornmunity[Presidential StatementS/25361, 3 March 19931.
Subsequently,the Councilaffirmedthat the crime of genocide was included
inthese violatio~isof humanitarianlaw by adoptingthe Statuteof the
InternationalTribunal [see 3.2.0.2 1-22,3.3.1.11.
3.2.0.19 In April 1993, theCouncil expressedits alarm at "the continueddeliberate
armedattacks and shellingof the innocent civilian population"by Serb
forcesgrouped around Srebrenica, an enclave populatedby mostly Muslim
civilians andincYuding large numbers of civilians, who had been forced to
flee their homes inthe faceof the campaignof genocide. The Council
responded to this practice of Serb forcesof encircling mainlyMuslim
inhabitedareas and then bombardingthe civilian populationand displaced
persons therein, coupledwith the denialof humanitarianaccess, by
establishingthe so-calledsafe havens, initiallyin Srebrenica, and later in
other areas, including Sarajevo[Resolutions819 (1993), 3 April 1993; 824
(1993), 6 May 19931.It is noteworthy thatthe Council specificallyreferred
to the first Interim Order issuedby the InternationalCourt of Justice with
respect to acts of genocidewhen adopting Resolution 819 (1883)
concerning Srebrenica. In a further response to these acts, and refeningspecificallyto the related interferenceby way of "the activitiescarried out
in violationof resolutions757 (1882)and 787 (1882)between the territory
of the Federal Republicof Yugoslavia (Serbiaand Montenegro)and Serb-
controlled areasin ...the Republicof Bosniaand Herzegovina," the
Council adopted even further sanctionsagainstthe Federal Republicof
Yugoslavia (Serbiaand Montenegro) [Resolution 820(1993), 17 Apnl
19933.
The Council subsequentlyeven authorizedmemberstates to use military
force to enforce the securityof the so-calledsafe havens, once again
confrrrningthrough thisaction the gravityof the genocidalpractice it was
seeking to counter, [Resolution 836(1993),4 June 19931.Significantly,in
that very resolution, the Councilonce moredemanded that"the Federal
Republicof Yugoslavia(Serbiaand Montenegro)immediatelycease supply
of military arms, equipmentand servicesto BosnianSerb paramilitary
units", again linkingthe Federal Republicof Yugoslavia tothe appalling
acts of genocide that were being committedagainst thepopulation and
displacedpersons in the so-calledsafe-areas.
The means and methodsof genocidehave also been addressed on the level
of individual responsibility.In Resolution 771 (1992), the Council
expressed grave alarm at forcible mass expulsionsand deportationsof
civilians,imprisonmentand abuse of civiliansin detentioncentres,
deliberate attackson non-combatants,hospitalsand ambulances, impeding
the delivery of food and medicalsuppliesto the civilianpopulationand
wanton devastationand destructionof property. It condemneùthese
practices, including "ethniccleansing", and determinedthat individual
responsibilityattaches to them. Accordingly,it requested member states and humanitarianorganizationsto collate substantiatedinformation relating
to such activities. The Council followedup on this measurein Resolution
780 (1992), wherein it expressedonce again its grave alarm at continuing
reports of widespreadviolationsof internationalhumanitarianlaw,
including mass killingsand the continuanceof the practice of "ethnic
cleansing", and lestablisheda Commissionof Experts to examineand
analyze informationrelated to thecommissionof such acts. As the
Pakistani delegateexplainedduring the Councildebateon this resolution:
"In the war in Bosnia, thesystematic violationof human
rights--thebrutal campaignof "ethnic cleansing"-4s not the
consequeinceof the conflict, but its cause. The Security
Council rnustrespond resolutelyto thisgenocidai campaign
against the Bosnianpeopleand particularlyagainst the
Muslims. It must act vigorously tostop the atrocities being
committedagainst the Muslims,the like of whichhave not
been witrtessedsince the holocaust." [S/PV.3136, 16
N0vembe.r1992, at 31. Other delegationsspealang in the
debate specificallyreferred to genocide in the contextof a
campaignof territorial conquestand a war of aggression;
e.g.,id., pp. 53, 681.
3.2.0.22 In February 1993, the Councildecidedto establishan international tribunal
for the prosecutionof persons responsibleof seriousviolations of
humanitarian law committedin the temtory of the former Yugoslavia
[Resolution 808 (1993), 22 February 19931.The statuteof the tribunal,
adopted in Resolution 827 (1993)of 25 May 1993,explicitlyincludes
genocide in the categoryof crimes to be prosecuted. Again, in this context
the Council highlightedwhat are in fact the same meansof genocide that
have been employedby the Federal Republic of Yugoslavia(Serbia and
Montenegro)in the Republicof Bosniaand Herzegovina, when refemng to
"mass killings, niassive,organizedand systematic detentionand rape of women, and the continuanceof the practice of "ethniccleansing", including
the acquisitionand the holdingofrritory.[id.].
3.2.0.23 The actions of the Security Council were complementedby the activitiesof
a wide range of other bodiesoperatingwithinthe frameworkof the United
Nations, including theGeneral Assembly,the Commissionon Human
Rights, its Sub-Commissionand SpecialRapporteur, the Human Rights
Committee, the Committeeon the Eliminationof Racial Discrimination,
and others. As will be further demonstratedin the Chapters that follow,
many ofthese organs formallyidentifiedthe atrocities committedin the
Republicof Bosniaand Herzegovinaas a consistentand,indeed,
systematic,pattern of violationsarnountingto genocide involving the
Federal Republicof Yugoslavia(Serbiaand Montenegro).
CHAPTER3.3
CONFIRMATIONBYOTHERAUTHORITATIVE ORGANS THAT
THEACTS COMMITTEDAMOUNTTO GENOCIDE
Section3.3.1
The GenocideConventionisprimafacie applicable
The applicabilityof al1aspectsof humanitarianlaw, including thefull
range of the Genevalaw conceming internationalarmed conflictsto the
situationin the Republicof Bosnia andHerzegovinais not in doubt. The
UN Security Council confirmed thisfact as early as June 1992 [Resolution
764 (1992)], when it referred alsoto individualcriminal responsibilityfor
grave breaches of the Geneva Conventions.In additionto Resolutions (1992) and 780 ((1992),to which reference has beenmade above, the
Statute of the International Tribunal establishedby the Security Council
specificallyincludesthe Genocide Conventionand the conceptof crimes
against humanityas sources of law with respect to the situationin the
former Yugoslacria.When making proposais for the drafting of the Statute
of the Tribunal, France statedthat it would seem "paradoxical"not to
include genocide in its competenceor, indeed "ethniccleansing" [Sl25266,
p. 201.Other prc~posals,suchas the those put forward by Italy, the
Organizationof the Islamic Conference,Russia, the United States of
America, and Canada, includethe Genocide Conventionas an instrument
that isprimafacie applicable[S/24300, 17Febmary 1993, SI25512, 2
April 1993, Sl25537, 6 April 1993,Sl25575, 12April 1993, Sl25594, 14
April 1993 respectively.
3.3.1.2 The GenocideConvention is also frequentlycited in the Resolutionsof the
General Assemb:Lyt,he United Nations Commissionon Human Rights and
its Sub-Commission,and the reports of United NationsRapporteurs and
other organs. These sourceswiil bebriefly consideredin the following
paragraphs.
Section3.3.2
The United NationsGeneral Assembly
3.3.2.1 The General Assembly,as early as 25 August 1992,when adopting
Resolution461242,stronglycondemnedthe "abhorrentpractice of ethnic
cleansing" whicti, in its view constitutesa grave andserious violation of
internationalhumanitarianlaw. It reflectedthe UN Secretary-General 's finding of a concertedeffort by the Serbs of Bosnia andHerzegovina, with
the acquiescenceof, and at least somesupportfrom, the YugoslavPeople's
Army, "to create 'ethnically pure'regions ....". The Assemblyidentified
summary and arbitrary executions, forceddisappearances,torture, rape and
cruel, inhumanand degradingtreatment, aswell as arbitrary arrest and
detention as elementsof this strategy.The systematicdeploymentof these
techniques with the intent to extinguishin wholeor in part the largely
Muslim population tocreate "ethnicallypure" regions, of course, arnounts
to the very definitionof genocide[seebelow, Part 51.
3.3.2.2 The Assemblyalso condemned the violationof the sovereignty, territorial
integrity and politicalindependenceof the Republicof Bosniaand
Herzegovina, deeming this tobe aggression,and demanded thatthis
practice be brought toan end immediatelyand that further steps be taken,
on an urgent basis, to stop the massiveand forcible displacementof
population from and withinthe Republicof Bosniaand Herzegovina. The
Assembly thus linked external interventionwith the genocidalacts it had
described and condemnedso vigorously. In Resolution461246the General
Assemblyalso confirmed thatStates "are to be held accountablefor
violations of human rights which their agentscommitupon the territory of
another state."
3.3.2.3 On 16December 1992, theGeneral Assemblyadopted a declaration on
"ethnic cleansing"onceagain condemningthat practice and branding it a
violation of humanitarianlaw, of which the Genocide Convention is a part
~esolution 47/80]. In a further pronouncementadopted two days later,
Resolution471147,the Assemblyagain identifiedand condemnedthe
following elementsof the campaignof genocide, including "killings,torture, beatings:,rape, disappearances,destructionof houses, and other
acts or threatsof violenceaimed at forcing individualsto lave their
homes, as well as reports of violationsof human rights in connection with
detention," and "the indiscnminateshellingof cities and civilian areas, the
systematicterrorizationand murder of non-combatants,the destruction of
vital services, the besiegingof citiesand the use ofmilitary force against
civilian populationsand relief operations". It foundthat as a result of these
practices, "the Muslimpopulation [is]threatenedwith virtual
extermination", adding thatthe Serbianleadershipin temtories under their
control in Bosniaand Herzegovinaand "the YugoslavArmy and the
political leadershipof the Republicof Serbiabear primary responsibility for
this reprehensible practice,which fiagrantlyviolatesthe most fundamental
principles of human rights". The Assemblyfurther restated the obligation,
which is also reflected in the GenocideConvention,to take appropriate
steps to apprehendand punish thosewho are guilty of perpetrating or
authorizingthe violations. It also confirmedagain that States are to be held
accountablefor violations"which theiragents commitupon the territory of
another State". As one delegateput it in the debate leading to the adoption
of the resolution: "Serbiamust be madeto realize that by pursuing the
policy of "ethnic:cleansing"it has blatentlyviolated the 1948Convention
on the Preventiolnand Punishmentof the Crime of Genocide and therefore
must be responsiblefor its crimes againsthumanity" Bangladesh,
A/47/PV.87, 15December 1992,p. 461. Reflecting thisassessment, the
Assembly, in Resolution 47/121, also adopted on 18Decernber 1992, once
again expressed grave concem at what it termed "a consistent patternof
gross and systematic violationsof humanrights, a burgeoningrefugee
problem resu1tin.gfrom mass expulsionsof defencelesscivilians from their
homes and the existencein Serbian Montenegrancontrolled areas ofconcentrationcampsand detentioncentres, in pursuit of the abhorrent
policy of "ethnic cleansing", which is a form of genocide".
The Assemblytherefore formallyand explicitlybranded the campaign
mountedas one of genocide [Resolution4711211,for which "the Yugoslav
Amy and the political leadershipof the Republicof Serbia bear primary
responsibility" pesolution 4711471.The former resolutionwas adopted by
102votes to none. The 57 abstentionscanbe explainedwith reference to
certain provisions containedin the resolution, concemingpolitical aspects
of the continuedapplicationof SecurityCouncil Resolution713 (1991). As
the records of the debatein the Assembly reveal, there was no significant
doubt as to the provisions conceming the existenceof a campaign of
aggression and genocide. Resolution471147 wasadoptedwithout a vote,
evidencing universalconsensuswith respect tothe findingsit contains.
In a further resolution, the Assemblyexpress4 outrage at the fact that rape
was being used as a "systemic practice"and an "instrumentof ethnic
cleansing against thewomenand childrenin the areas of armed conflict in
the former Yugoslavia,in particular againstMuslim women and children in
Bosnia and Herzegovina [481143,20 December 19931.The Assembly
clearly stated that "this heinouspractice constitutesa deliberate weapon of
war in fulfillingthe policy of ethnic cleansingarried out by Serbian forces
in Bosnia andHerzegovina", and inthis context restatedthat "the abhorrent
policy of ethnic cleansing[is]a form of genocide." The Assembly, in still
another resolution, adoptedat its 48th session, reaffirmed its
"determinationto preventacts of genocideand crimes against humanity"in
the context of "the continuationof aggressionin Bosnia andHerzegovina",
also refemng to the linksexistingbetweenthe Federal Republicof
Yugoslavia(Serbiaand Montenegro)and Serb militiasand paramilitary groups responsibïefor such "massive, grossand systematic violations"
[Resolution48/88, 20 December 19931.
Also at the 48th session, theAssembly,on 20 December 1993, adopted
Resolution 48/153. This resolutionconstitutes onefurther, authoritative
determinationof the existenceof factsby the Assembly, the legal
classificationofthese facts, and a determinationas to international
responsibilityfor these facts. The resolutionwas adopted unanimouslyand
can be regarded as a conciseand authoritative determinationby the
internationalcorrimunityas suchas to the legal situationobtainingin the
Republicof Bosriiaand Herzegovina.
3.3.2.6 In Resolution481153,the Assemblyagain identifiedand condemnedthe
essentiai e1ement:of the campaignof genocide, "whichinclude killings,
torture, beatings.,arbitrary searches, rape, disappearances, destructionof
houses and other actsor threatsof violenceaimed at forcing individuaisto
lave their homes," as well as violationsof human nghts in connectionwith
detention (concentration camps).The Assemblyfurther condemnedthe
indiscriminateshellingof cities and civilianareas, "the sytematic
terrorization and murder of non-combatants",the destruction of vital
services and beslegingof citiesand the use of military force against civilian
populationsand relief operationsby al1sides, recognizing that themain
responsibilitylies with the BosnianSerbs, who have used such tactics asa
matter of policy,,and the BosnianCroats.
3.3.2.7 This catalogue of offencesthat were committed"systematically"and as a
"matter of policy", was clearly and squarelyidentifiedas genocideby the
Assembly, whichrecalled the findingit had made already in Resolution47/121, to the effectthat thecampaignof so-calledethnic cleansing, in
fact,"is a form ofgenocide". The unanimityof virtually al1Statesof the
world on this point was thus re-emphasized.
The Assembly further clarified thetrue identityof "the BosnianSerbs",
who have used genocidal tacticsas a matterof policy, by "recognizingthat
the leadership in territorynder the controlof Serbs in the Republicsof
Bosnia and Herzegovinaand Croatia, the commandersof Serb paramilitary
forces and politicaland militarvleaders in the Federal Republicof
Yugoslavia (Serbiaand Montenegro)bear ~rimarvres~onsibilityfor most
of these violations" [emphasisadded]. Onceagain, this is nothingless than
the unanimousassessmentof the entire membershipof the United Nations.
Section3.3.3
The UN Commission onHuman Rights and its Sub-Commission
On 13August 1992, the Sub-Commissionon Preventionof Discrimination
and Protection of Minoritiesexpressedits honor at, and total and
unqualifiedcondemnationof, so-called"ethniccleansing", demandingthat
such policies and practicesbe immediatelybrought to an end [Decision
1992/103]. The followingday, the United Nations Commissionon Human
Rights met in its first ever emergencySpecialSession, reflectingthe
drarnatic urgencyof the situation. Itadopteda resolution expressingits
"particular abhorrence" atthe conceptand practice of "ethniccleansing" in
Bosnia andHerzegovina,which "at a minimum entails deportationsand
forcible mass removal or expulsionof persons from their homes in flagrant
violation of theirnationalrights, whichis aimed at the dislocationor destruction of national, ethnic, racial or religiousgroups [Resolution
19921s-111, 14August 19921.In this context theCommissionspecifically
recalled that the former Yugoslaviawas a party to the Genocide Convention
and "condemnsiabsolutelythe conceptand practice of "ethniccleansing"."
The Commissioricalled upon al1parties in the former Yugoslaviato fulfil
their obligations,inter alia, under the GenocideConvention,affirming
"that Statesare to be heldaccountable for violationsof human rights which
their agents com.mitupon the temtory of another state".
At its second emergencysession, theCommissionspecifically drew the
attention ofal1Statesto the factthat theacts that were occumng in the
Republicof Bosniaand Herzegovinaconstitutegenocide, by calling upon
them to consider "the extent" to whichthis was the case [Resolution
19921s-211,1December 19921.
3.3.3.2 The UN Commissionon HumanRights, at its 49th session in 1993,
recalled its grave concem at the continuing,odiousprocedure of ethnic
cleansing which in its view wasthe direct causeof the vastmajority of
human nghts violationsin the former Yugoslavia andwhose principal
victims are the Muslimpopulation"virtuallythreatenedby extermination".
The Commissionalso recalled the General Assembly'sfindingthat ethnic
cleansing is a form of genocide [Resolution199317,23 February 19931.
The Commissionadopteda further resolutionon rape and abuse of women
in the temtory of the formerYugoslavia,once again condemningthis
practice as an el.ementof a systematicpractice of ethnic cleansing
[Resolution 19913182,3 February 19931.
The Commissioncondemnedin the strongest termsal1these violations,
recognizing "that the leadershipin temtory under the control of the Serbs
in the Republicsof Bosniaand Herzegovinaand Croatia, the commandersof Serb paramilitary forcesand politicaland militarvleaders in the Federal
Re~ublicof Yugoslavia(Serbiaand Montene~ro)bear primary
responsibilitvfor most of theseviolations"[emphasisadded]. The
Commissionalso demandedthat appropriate steps,in accordancewith
internationallyrecognizedprinciplesof due process, are taken, to
apprehend and punishthosewho are guilty of perpetrating or authorizing
the violationsand to ensure that they would not recur.
Overall, therefore, the Commissionon Human Rights, identifiedthe
systematic patternof grave violationsof human rights as falling squarely
within the definitionof genocide,and it foundthat the Federal Republic of
Yugoslavia(Serbiaand Montenegro)is primarily responsible.
In March of 1994, the Commissionaddressedagain the genocidalpractice
of rape and abuse of womenas an instrument ofwar, strangulationof cities
in the Republicof Bosniaand Herzegovina,shellingand killing of
civilians, torture, arbitraryexecutions,and enforcedand involuntary
disappearances.In this context, theCommissionalso denounced the
continued deliberateand unlawfulattacksand uses of military force against
civilians and other protectedpersons, in particular:
--
the besiegingof citiesand other civilianareas, and the deliberate,
murderous shellingthereof, particularlyof the declared 'safeareas';
-- the systematicterrorizationand murder of civiliansand
non-combatants;
-- the destructionof vital services;
-- the use of militaryforce against relieforganizations;
-- the intentional destructionof mosques,churches and other places of
worship and the desecrationof cemeteries; -- other attacks upon civilians;
-- the forced conscriptionof internallydisplacedpersons and of
refugees in disregard of their protected status [E.CN.4/1994/L.801.
Section 3.3.4
The Special Rapporteuron Human Rights in Former Yugoslavia
3.3.4.1 At its first SpecialSession, the Commissionon Human Rights appointeda
Special Rapporteur, Mr TadeuszMazowiecki,who statedin his first report
that:
"6. Mosi: ofthe territory of the former Yugoslavia,in
particular Bosniaand Herzegovina, is at present the scene of
massiveand systematic violationsof human rights, as well as
serious grave violationsof humanitarianlaw. Ethnic
cleansing isthe cause of most such violations.
7. ...the policy [of ethnic cleansing] hasbeen openly
pursued on the tenitory of thoseparts of Bosniaand
Herzegovinaand Croatia which are controlledby ethnic
Serbs" [E:/CN.4/1992/S-119,28 August 19921.
The Special Rapporteurdescnbed the meansof "ethnic cleansing" in detail,
including thebombardmentof civilian targets, of mosques, the systematic
starvationof populations,arbitrary detentionsand executions, etc. He
placed emphasison the "shellingof populationcentres and the cutting off
of suppliesof food and other essential goods", referring to "the most
dramatic and we:ll-knowncase of Sarajevo"which had led to the belief of
some that "the attackingforces are determined to"kill the city itself' [id.,
para. 17. As far back as August 1992,the Special Rapporteuralso
illustrated this practice with reference to Bihac,in north-west Bosnia: "...shelling occursdaily. There are no significanttargets in
the city.... Fifty one-childrenhave been killed there since
the beginningof the war" [id.,para. 201.
In October 1992, the Special Rapporteurindicatedthat, in his view, the
military conflictin Bosniaand Herzegovinais aimed at achieving "ethnic
cleansing", and that the Muslimpopulation,as the principalvictims, "are
virtually threatened with extermination".He shared the view of other
observers that the principal objectiveof the militaryconflict in Bosnia and
Herzegovina is the establishmentof ethnically-homogeneousregions. Ethnic
cleansing, in his view, does not appear to be the consequenceof the war,
but rather its goal. This goal, to a large extent, has already been achieved
through thekillings, beatings, rape, destructionof houses and threats, the
Special Rapporteur added. Suchpracticeshad intensifiedin recent weeks
and there was less and less resistanceon the part of the non-Serbian
population, increasingnumbers of whomare ready to abandoneverything
and to flee their homeland.The Muslimand Croatian populations,in the
temtory controlledby Serbianauthorities, he concluded, live under
enormous pressure and terror. Hundredsof thousandsof people are being
forced to lave their homes and toabandontheir belongingsin order to
save their lives [ElCN.4/19921s-1110,27 October 19921.
The Special Rapporteurlater confirmedthat the principal agentsof this
campaign of "ethnic cleansing"were irregular paramilitarygroups which
had been armed and equippedwith "very large stocksof military hardware"
which had ben previouslyheld by the JNA and Belgradeauthorities
[A/471666,paras. 14-151.3.3.4.5 In February 199:3,the SpecialRapporteursubmitteda further report,
detailing the app:licationof the practice of ethnic cleansinganlarge
number of individual instances,refemng to the methodsof beatings,
torture, summaryexecutions, expulsions,use ofthe siegeand cutting off
suppliesof food, shellingof civilians, etc, and especiallythe "systematic
nature" ofthese violations [A/48/92, para. 201.In his conclusion, the
Special Rapporteurconfirmed once more thatethnic cleansingviolates
fundamentalprin.ciplesof internationalhuman rights and humanitarian law,
also refemng expressly to the Genocide Convention[A/48/92, para. 2561.
3.3.4.5 In his mostrecent report, the SpecialRapporteurconfirmsthat the elements
of the campaignof genocide hehad describedhave continuedinto 1994
[E/CN.4/1994/110, 21 February 19941.
Section3.3.5
TheUnitedNationsCommissionof Experts
3.3.5.1 The Commissioriof Experts establishedin accordancewith Resolution 780
(1992) of the UriitedNations Secunty Council confirmedin its report that:
"Basedon the many reports describingthe policy and
practicesconductedin the former Yugoslavia, "ethnic
cleansing" has been carried out by meansof murder, torture,
arbitrary arrest and detention, extra-judicialexecutions, rape
and sexual assault, confinementof civilian populationin
ghetto areas, forcible removal, displacementand deportation
of civilian population, deliberatemilitaryattacks or threats of
attacks on civiliansand civilianareas, and wanton
destructionof property. Those practices constitutecrimes
againsthumanityand can be assimilatedto specificwar
crimes. Furthermore, such acts could also fa11within the meaningof the Genocide Convention"[S/25274,para. 56,
10February 19931.
Many submissionsto the UN Commissionof Experts and the UN Security
Council also reflect thegenocidalcharacterof events in the Republicof
Bosnia andHerzegovina.The submissionsof the UnitedStates, for
example, cover actsof wilfulkilling, torture of prisoners, abuse of civilians
in detention centres, deliberate attackson non-combatantsand mass forcible
expulsionsand deportations. The reportStatesthat "the discrete incidents
reported herein contain indicationsthat they are part of a systematic
campaign towards a single objective--the creationof anethnically "pure"
state" [S/24583, 23 September1992,p. 21.Similarly, France argued the
followingwhen makingher submission:
"The accounts thus testify to a process: occupationand
destructionof a village, executionof some of the inhabitants,
transfer of the others to camps wherethey are subjectedto
maltreatmentand to very harsh conditionsof detention,
eliminationof the mostinfluential,and possible releaseor
exchangeof the others on condition thatthey abandon their
property and declare that they will not retum to their village.
This process generally takes place in the contextof a policy
of ethnic cleansing" [S/24768,5 November 1993,p. 21.
Slovenia indicatedthat amongsome 70,000 refugeeson her territory, many
had been eyewitnessesof torture, rape and other forms of violent, inhuman
and humiliatingtreatment, manypersonswho where banishedor deported
from their homes, intemedin concentration camps anddeprived of their
property which was confiscatedor destroyedin the process of "ethnic
cleansing", as well as personswho were deprivedof urgent medial care
due to attacks on hospitalsand dispensaries.Numerousrefugees had
witnessed mass andindividual killingsand other violationsof humanitarian law. Such flagrant violationsof international law, Sloveniacontinued, are
evidence of "genocideas the result of the continuedpractice of "ethnic
cleansing" " [S/:!4789,9 November 1992,p. 21.
Section3.3.6
The Viema WorldConferenceon Human Rights
3.3.6.1 The World Conferenceon Human Rightsprovideda unique forum for the
authoritativeexpressionof statepracticeand opiniojuris relating to human
rights and hummitarian law. The Conferencewas attendedby
representativesof 171 Statesand adoptedby consensusa formal Declaration
and Programme of Actionwhich expressed dismayat massive violations of
human rights, especiallyin the form of genocide, "ethnic cleansing"and
systematicrape of women inwar situations,creating mass exodus of
refugees and displacedpersons. The Conferencedecided, also unanimously,
to appeal to the SecurityCouncil to"takethe necessary measures to end the
genocide taking place in Bosnia andHerzegovina,and inparticular at
Gorazde."
3.3.6.2 The Conferencewas therefore unanimousin declaring that the practice of
so-calledethnic cleansingarnountsto genocide. A further declarationon
Bosnia andHerzegovinawas adoptedby 88 votes to 1, with 54 abstentions.
The abstentionswere largelydue to the introductioninto the resolution of
paragraphs proposing specificways of redressing the situationin the
Republic of Bosniaand Herzegovina.In particular, several delegations
were not persuadedof the propriety of usingthe World Conference to
recommendpolicy to the SecurityCouncil. However,in the light of the unanimousdecisionreferred to above, the virtuallyunanimoussupportof
al1membersof the internationalcommunityfor the following provisionsof
the declarationcannotbe doubted:
"The World Conferencebelievesthat the practice of ethnic
cleansingresultingfrom Serbianaggression against the
Muslim and Croat populationin the Republicof Bosniaand
Herzegovina constitutes genocidein violation of the
Conventionon the Preventionand Punishmentof the Crime
of Genocide.
S..
The World Conference strongly condemns
Serbia-Montenegro,the YugoslavNations Army, the Serbian
militiaand the extremistelementsin the BosnianCroatian
militiaforces as perpetratorsof these crimes" [AIConf.
157124 @artl), p. 471.
Section3.3.7
TheCornmittee onHumanRights
3.3.7.0 In 1992,the Human RightsCommitteeestablishedunder the terms of the
Covenanton Civil and PoliticalRights requesteda report from the
Govemment of Yugoslavia(Serbiaand Montenegro),interalia, on
measurestaken to prevent and combatthe policy of "ethniccleansing". The
Committee, after havingheardthe report, observed "the existenceof links
between the nationalists[in BosniaHerzegovinaand Croatia] and Serbia
which invalidated theFederal Government'sclaim tobe exempt from
responsibility". The Committeestronglydeplored thissituation
[A/C.3/47/CRP.1,20 November 1992;CCPR/C/79/Add. 16, 28 December
19921. Section3.3.8
The Cornmitteeonthe Eliminationof RacialDiscrimination
3.3.8.0 The Committeeon the Eliminationof RacialDiscrimination expressed
grave concem about the massive,gross and systematic human rights
violationsoccumng in the territory of Bosnia andHerzegovina, as well as
practices of"eth~iiccleansing", including forcedpopulationtransfers,
torture, rape,surnmaryexecutions, theblockadingof international
humanitarianaid and the commissionof atrocitiesfor the purpose of
instilling terror among the civilian population.The Committee expressed
profound concern thatthe humanrights violationsoccumng in the Republic
of Bosnia and Herzegovina werebeing committedon the basis of "ethnic
identity" for the :purposeof attempting tocreate ethnicallypure States. The
Committee noted, in that context, with great concem that links existed
between the Federal Republicof Yugoslavia(Serbiaand Montenegro) and
Serbian militiasand paramilitarygroups responsiblefor massive, gross and
systematic violationsofhuman rights in Bosnia andHerzegovina [A/48/18,
paras. 467, 468, 5371.
CHAPTER3.4
INTERIMCONCLUSION
3.4.0.1 The organs of the United Nations, and of other comptent international
organizations, have clearly identifieda consistent patternof the gravest
abuses of fundanientalhumanrights and violationsof elementary rules of
humanitarianlaw, consistingof, interalia: -- the maintenanceof concentration campsmainlyfor the purpose of
detaining, raping, torturing and killingpopulations,in particular the
Muslim population[e.g., UN SecurityCouncilResolutions770 (1992), 771
(1992), 798 (1992), 820 (1993), 827 (1883); GeneralAssemblyResolutions
461242, 471121, 4711474 ,8/88, etc.];
-- the killing, and indeed masskilling, of mainlyMuslims, including
the attempts to exterminate largesegmentsof mainly Muslimpopulations
and intemally displacedpersons throughdirect military attack, including
bombardmentand shelling,and through thecreation of conditionsof life
calculatedto bring about theirphysicaldestruction, inter alia, by
preventing thesupplyof vital humanitarianrelief, the deprivationof
essential services, such as water, heatingand electricity, etc., and the use
of torture and rape and other forms of attackand mistreatmentcausing
senous bodily andmental harm to the mainly Muslimvictims [Security
Council Resolutions557 (1992), 764 (1992), 770 (1992), 780 (1992), 787
(1992), 819 (1993), 824 (1993), 836 (1993), 859 (1993), General Assembly
Resolutions461242,471121, 471148,48/88, etc.];
-- the systematicuse of rape not only as a meansto prevent births
within the group, but, in a grotesqueand indescribablycruel way, as a
means to alienatea mother from the ethnic backgroundof the child that
was being conceived through rape [SecurityCouncil Resolutions798
(1882), 820 (1993), 827 (1883), General AssemblyResolution481143,
Commissionon Human RightsResolution199318,etc.];
-- other masures to "change the ethniccomposition ofthe
population" [Security Council Resolutions 752 (1992), 757 (1992), etc.].
These types of acts, takenas individualcategoriesand in their totality, fall
squarely within thedefinitionof genocideprovided in Article II of the Genocide Convention.This has beenclearly confirmedby authoritativeand
objective international organs, reflectingviews of the vastajonty of
States.The situationis not merelyone of displacementof a population, but
amounts to a consistent campaignconducted withinthe Republicof Bosnia
and Herzegovinawhich is aimedat the destruction, in whole or in part, of
the mainly Mus1j.m population thatis its target--apoint which will be
addressed in greater detail in Part 5 of this memorial[e.g.,General
Assembly Resolution471121, restated in resolution4811431.
3.4.0.3 Finally, the direct and active involvement,and indeedprimary
responsibility, of the FederalRepublicof Yugoslavia(Serbiaand
Montenegro)has been confirmed throughoutthe resolutionsand decisions
summarizedhere -an issue which will be addressed further in Part 6. PART 4
JURISDICTIONANDADMISSIBILITY
CHAPTER 4.1
INTRODUCTION
4.1.0.1 According to Artïcle 38, paragraph 2, of the Rules of the Court, the
Republic of Bosniaand Herzegovinahas specifiedin its Application, as far
as possible, the legal groundsupon which thejurisdiction of the Court is
based. After a discussion devotedthe "Jurisdictionof the Court"
[paragraphs88 to,1001,it concluded:
"Therefore, Bosnia anderzegovinasubrnitsthat the Court
hasjurisdïction to hear its claim against Yugoslavia(Serbia
and Montenegro)arising under the GenocideConvention";
[para. 1011.
4.1.0.2 Subsequently,during the proceedingsrelating to the Request for the
indicationof provisionalmeasures, Bosnia andHerzegovina submittedtwo
additionalbasis of jurisdiction of the Courtin this case:
- a letter dated8 June 1992,addressed tothe President of the
Arbitration Commissionof the InternationalConference for Peace in
Yugoslaviaby the Presidentsof the Republicsof Montenegro and of
Serbia, and
-
the Treaty betweenthe Alliedand AssociatedPowers on the
Protectioniof Minorities, signedat Saint-Germain-en-Layeon 10
September 1919.While it, itself, lodged Requestsfor the indicationof provisional measures,
Yugoslavia (Serbiaand Montenegro),quite inconsistently,challengedthe
admissibilityof the Applicationand thejurisdiction of the Court, at last as
faras it was based onthe additionalbasis of jurisdiction invokedby Bosnia
and Herzegovina.
In its Order of 8 April 1993, theCourtrecalled that:
"...on a request for provisionalmeasuresthe Court need
not, before deciding whetheror not to indicate them, finally
satisfyitself thatit hasjurisdiction on the meritsof the case,
yet it ought not to indicate such measures unlessthe
provisions invokedby the Applicantor foundin the Statute
appear, prima facie, to afford a basis on which the
jurisdiction of the Court might beestablished" [I.C.J.
Reports 1993, pp 11-12;see also Order of 13 September
1993, id., pp 337 -3381.
In this same Order, the Courtconsidered
- that it has been "scizedof thecaseon the authority of a Head of
State treated as suchin the UnitedNations" and that it might "for
thepurposes of [those]proceedingson a request for provisional
masures, accept the seisinas the act of that State" [id. ,p. 111;
- that it did not need to determinedefinitelyat that stage of the
proceedings "whetheror not Yugoslavia[was]a Member of the
United Nations and as sucha party tothe Statuteof the Court" [id.,
p. 141and that, in any event, "proceedingsmay validly be instituted
by a State againsta State whichis a party" to a traty containinga
specialprovision providingfor thejurisdiction of the Court even if
it is not a party to the Statute [id.]; -
that ".. Article IX of the GenocideConvention,to which both
Bosnia and Herzegovinaand Yugoslaviaare parties, [appeared] to
the Court to afford a basis on which thejurisdiction of the Court
mightbe foundedto the extentthat the subject-matterof the dispute
relates to "theinterpretation,applicationor fulfilment"of the
Convention, includingdisputes "relatingto the responsibilityof a
State for genocideor for any of the other acts enurneratedin article
III" of the:Convention"[id., p. 161;
- but that it was unableto regard the letter addressedon 8 June
1992, by the Presidentsof the Republicsof Montenegroand Serbia
to the President of theArbitrationCommissionof the International
Conferencefor Peace in Yugoslavia"as constitutinga primafacie
basis of jiiridiction" [id., p. 181.
4.1.0.6 In its Order of 13September 1993, the Courtdeclared its opinion on other
additionalbasis of juridiction relied on byBosniaand Herzegovina and
considered in particular that the Treatyon the Protection ofMinorities,
signed at Saint-Germain-en-Layeon 10September 1919was, in any event,
"irrelevant to [that] request for provisionalmeasures" [I.C.J. Reports1993,
p. 3401.
4.1.0.7 In conformitywith the usualpractice, in both Orders, the Court warned
that the decisiongiven in the proceedingson the Requestsfor the indication
of provisional measures
"...in no way [prejudged]the questionof thejurisdiction of
the Court to deal with the meritsof the case, or any
questions relatingto the admissibilityof the Application, or
relating tc~the merits themselves,and leaves unaffectecithe
right of the Governmentsof Bosniaand Herzegovinaand Yugoslaviato submitargumentsin respect of those
questions" [ZC.J. Reports 1993,p. 23 and p. 3491.
Therefore, keepingin mindthat the Courtbased itself onlyonprimafacie
findings, it appears to the Govemmentof Bosniaand Herzegovina thatit
must establishin a more detailedway the admissibilityof its Application
and thejurisdiction of the Courtand thatit cannot only rely on these
provisional findings.
It is the firm convictionof the Govemmentof Bosnia andHerzegovina
that, iftudiedcarefully, the additionalbasis it offered for thejurisdiction
of the Court wouldprove well-founded,and that the Court also has
jurisdiction on the basis offorum prorogatwn, to the extent that the specific
requests madeby the RespondentState, in particular in its letter of 1 April
1993, "overlapin kind with those of the Applicant"and "pass beyond the
lirnits of the GenocideConvention" [Separate Opinion of Judge
LAUTERPACHT, 1.C.J. Reports 1993, p. 42 11.
4.1.0.10 However, there is no doubt thatthese groundsfor thejurisdiction of the
Court are less obviousand less indisputablethan Article IX of the
Conventionon the Preventionand Punishmentof the Crime of Genocideof
9 December 1948.Moreover, this Conventionoffers a soundbasis of
jurisdiction as regards themain submissionsof Bosniaand Herzegovina
which aim,first of dl, to obtaina Judgmentrecognizingthe responsibility
of Yugoslavia(Serbiaand Montenegro)for committinggenocideand aiding
and abettingothers to commitsucha crime, and for failing to prevent and
punish genocide; and whichalso aim to obtain a Judgement giving grounds
for relief, including restitution.It mustalso beoted that Yugoslavia (Serbiaand Montenegro) has,in fact, acquiesced tothe jurisdiction of the
Court on this basis.
4.1.0.11 Therefore, taking in considerationtheprimfaci emdingsof the Court in
its Orders of 8 April and 13September1993,and the extreme urgency of a
Judgment on the genocideperpetratedby Yugoslavia(Serbia and
Montenegro), Bosniaand Henegovina, hoping to avoidpreliminary
objectionsof a dîlatory character, will concentrate,in the present Part, on
the sole basis of jurisdiction residingin Article the Genocide
Convention (Chapter4.2). It will then tacklevery briefly the very artificial
question of the admissibilityof the Application(Chapter 4.3).
CHAPTER 4.2
JURISDICTIONOF THE COURT
4.2.0.1 Althoughit has acquiescedto the Court'sjurisdiction based on Article IX
of the Genocide Convention,and is, indeed, bound by it, the Respondent
State has underlinedsomeallegeddifficulties regardingthe status of Bosnia
and Herzegovinain respect of the Convention,and the Court itself has
noted some otherdifficultiesin respect of Yugoslavia(Serbiaand
Montenegro)'~statusin relation tothe Court'sStatute. In fact, both States
are bound by the Convention,and, therefore, the scope of the Court's
jurisdiction in this regard mustbe clarified. Section4.2.1
Bosnia and Herzegovinais bound by the Genocide Convention
During the proceedingsrelatingto the Requestsfor the indicationof
provisional measures,Yugoslavia (Serbiaand Montenegro) seemed to
question the internationalstatusof Bosnia andHerzegovina, and
consequentlyits capacityto be a party to the Genocide Convention.None
of these allegationsis sustainable.
Theintemationas ltatusofBosniaandHenegovina
a. TheallegedabsenceofstatehoodofBosniaandHerzegovina
Althoughnever directly in the course of the presentproceeding, Yugoslavia
(Serbia and Montenegro)episodicallyinsinuatedthat Bosnia and
Herzegovina is not a State, in regard of criteria of statehoodset up by
internationallaw. Thus, during the public sitting of2 April 1993, the
acting Agent of this countrydescribedBosniaand Herzegovinaas an
"independent internationalentity" (sic) [CR93113, p. 141.Further, in its
Observationsof 23 August 1993, Yugoslavia(Serbiaand Montenegro)
contestedthe right to self-determinationof what is described as the
"so-calledRepublicof Bosnia andHerzegovina"[p. 211[seealso CR
93/34, pp. 8, 10, 11and 131.
Outside of this forum, Yugoslavia(Serbiaand Montenegro) has made it
plain thatit did not considerBosniaand Herzegovinaas a State, in the
sense of internationallaw; for exarnple,on 26 June 1992, Serbian
President, Mr. S. MILOSEVICdeclared, during a meeting withthe President of the European Conferencefor Peace in Yugoslavia thatin his
view the status of Bosniaand Herzegovinahad to be determinedin
Belgrade [NewYorkTimes,26 June 1992, p. 8).
4.2.1.4 Even though this is a purely politicalnjuriousand offensiveposture, the
Governmentof Bosnia andHerzegovina wishes totake the opportunity of
the present case in order to refute suchan insultingpoint of view, and is
confident that the Court will definitelysettlethis very artificial question.
4.2.1.5 As the Arbitration Commissionof the International Conferencefor Peace in
former Yugoslavia (hereafter: "the Arbitration Commission") putit in its
Opinion no14, of 29November 1991 :
"....the State is commonlydefinedas a community which
consists of a territory and a populationsubjectto an
organized political authority;(...sucha State is
characterizedby sovereignty" [I.L.M., 1992, vol.XXXI, p.
1495;see also Mixed ArbitralTribunal, Germany-Poland,
Award of'1 August 1929,Deutsche Continental
Ga-Gesellscha@,Rec. T.A.M., IX, p. 336 and Article 1of
the Convention onRightsand Duties of States adopted at
Montevideoby the Seventh PanAmericanConferenceon 22
December 1933, A.J.I.L. 1934,n028, suppl., p. 751.
4.2.1.6 There cannot exi.stthe slightestdoubt thatthese requirements are met in the
present case.
4.2.1.7 Indeed, the Respondent State activelyoccupiesitself in trying to break up
Bosnia and Herzegovina'sunityand to flout its sovereignty. Sufficeit to
recall in this respect that
"Sovereigntyin the relationsbetweenStates signifies
independence.Independencein regard toa portion of the globe is the right to exercisetherein, to the exclusionof any
other State, the functionsof a Stat..."wax HUBER, sole
Arbitrator, Arbitral Award,4 April 1928,Zsland ofPalmas
case, R.I.A.A. II, p. 8381.
No one, except Yugoslavia (Serbiaand Montenegro), deniesthis right to
Bosnia and Herzegovina which,at the date of the drafting of this Mernorial
has been recognizedby rnostMemberStatesof the United Nations,
including, as early as 7 April 1992,the United Statesof America and the
European Communityand its MernberStates, and whichhas beenadmitted
in the United Nations on 22 May 1992.
Certainly, "the effects of recognitionby other Statesare purely
declaratory" [ArbitrationCommission, Opinionno1, prec. para. 4.17, p.
14951.However, as admittedby the Arbitration Commissionitself, such
recognitionby other States
"...dong with membershipof internationalorganizations,
bears witnessto these states'conviction thatthe political
entity so recognizedis a realityand confers on it certain
rights and obligationsunder international law"[Opinionn08,
4 July 1992,I.L.M. 1992, vol.XXXI, p. 1523;see also e.g.
OPPENHEIM'sZntemationu Llaw, 9th. ed. by Sir Robert
JENNINGS and Sir Arthur WATI'S, 1992,pp. 158-1601.
4.2.1.10 The existenceof the main elementsin this respect has ben summedup by
the Arbitration Commissionin its Opinionno11of 16July 1993:
"...in a referendumheld on 29 February and 1March 1992,
the majority of the peopleof the Republichave expressed
themselvesin favour of a sovereignand independentBosnia.
The result of the referendurnwasofficiallypromulgatedon 6
March, and sincethat date, not withstandingthe drarnatic
events that haveoccurredin Bosnia-Herzegovina,the
constitutionalauthoritiesof the Republic haveacted like those of a sovereignState in order to maintainits territorial
integrity and their full and exclusive powers" [I.L.M. 1993,
p. 15881.
4.2.1.11 It is therefore absolutelyunquestionable that Bosniaand Herzegovina is a
State in the meaningof internationallaw and, asa Member State of the
United Nations, is a Party to the Statuteof the Court and is, by way of
consequence, entitled to bringa case before the Court in accordance with
the Statuteand withthe requirementsof the Rules of Court [seealso
below, paras. 4.:2.1.25et seq.].
b. Thealleged "illegitimac yof theGovenvnentofBosniaandHenegovina
As soon as its first writtenpleading, theRespondentState lodged "a
prelirninaryobjectionwith regard tothe legitimacyof the Applicant",
asserting that:
"The "Governmentof the Republicof Bosnia-Herzegovina"
and the "Presidentof the Republicof Bosnia and
Herzegovina" ,A. IZETBEGOVIC ,have not been legally
elected and do not representall threeconstituent peoplesand
their legitimacyand mandateare disputednot only by
representativesof the Serb people,but also of the Croat
people, includingsomeofficialorgans of the "Republicof
Bosnia andHerzegovina". In the negotiations onthe crisis in
the "Republicof Bosniaand Herzegovina, the bodies of the
Geneva Conferenceand of the United Nations accept
A.IZETBEGOVICand the "Govemmentof the Republic of
Bosnia andHerzegovina" as partners only as representatives
of the Muslim side, Dr. R. KARADZIC,as representativeof
the Serb side and M. BOBANas representativeof the Croat
side. Even this illegalmandateof A.IZETBEGOVICexpired
on 20 December 1992,which is well illustratedby the letter of the Presidentof the "Governmentof the Republicof
Bosnia andHerzegovina", Mr. M. AKMADZIC,to the
President of the United NationsSecurity Counciland the
President of the United Statesof America (Copies of the
letters are enclosedherewith)", [Responseto the first
Request for the indicationof provisionalmeasuresof
protection submittedby the Govemmentof the Republic of
Bosnia andHerzegovina, 1 April 1993,para. 1, p. 11.
4.2.1.13 The Federal Republicof Yugoslavia(Serbiaand Montenegro) reiterated
these unusualviews both during the written and oral phases of the
proceedings that preceded the Court'sOrder of 13 September 1993 [see
e.g.: Observationsof 9 August 1993, para. 6, pp. 6-7 or CR 93/34, p. 161.
4.2.1.14 It is hardlynecessary to specifythat suchan argumentis not only entirely
unfounded [see infa para. 4.2.1.191, it is also completelyirrelevant.
4.2.1.15 The fundamental"postulate"[ShabtaiROSENNE, TheLaw and Practice of
the Intem'onal Court, 1985, p. 2681in respect of procedural capacity
before the International Courtof Justiceis that, as stated in Article34,
paragraph 1, of the Statute,
"Only Statesmay be parties in cases beforethe Court".
4.2.1.16 The alleged "legitimacy" or "illegitimacy" of the Government of a State
bringing a casebefore the Courtis therefore withoutany consequencein
respect of standingin the I.C.J. and, as explainedabove r4.2.1.2 -
4.2.1.111, there canbe no doubt that Bosnia andHerzegovinais a State
according to international law.It is thereforeentitled as such to refer a
matter to the Court in conformitywith its Statuteand Rules. This is an inescapableconsequenceof the fundamentalprinciple of general
internationallaw accordingto which
"Each State has the right freelyto choose and develop its
political, social, economicand culturai system" without
extemal intervention. [GeneralAssembly ofthe United
Nations, DeclarationonPrinciplesofInternationaL law
concerning Friendly RelationsandCooperation between
StatesinaccordancewiththeCharterofthe United Nations;
Resolution 2625(XXV), 24 October 19701,
As the Court saitlin its Judgmentof 27 June 1986, the "domestic policy
options" of a State "cannotjustify on the legal plane" complaintsby other
States [I.C.J. Reports1986,p. 133;see also Advisory Opinion, 16 October
1975, WesternSaharaCase,1.C.J. Reports1975, 43: "No rule of
internationallaw, in the view of the Court, requires the structure of a State
to follow any particular pattern"; or Arbitration Commission, Opinionno1,
op. cit. para. 3.117,p. 1495, etc.].
4.2.1.18 It is, however, not a matter of surprisethat Yugoslavia (Serbiaand
Montenegro)takessucha position. Thisis completely consistentwith its
constant intervention inthe intemal affairs of its neighbours, particularly
the Republicof Bosniaand Herzegovina.
4.2.1.19 In any event, its allegationsare totallydevoid ofany substance. Suffice it
to recall here that:
- by a referendumheld on 29 Februaryand 1March 1992, the people
of Bosniaand Herzegovina optedfor the independenceof their
country, with the overwhelmingmajorityof 99,4 per cent of the
voting electors, the participationbeing of3,4 percent since many
Serbs - but not all-had followedthe voting boycott ordered by
their self-styled leaders(ethnicSerbs make about 31 per cent of the Republic's population).Althoughthe referendumwas held in
disturbedcircumstances,the legalityand validityof the votes were
not challengedand were confirmedby internationalobservers;
- the collegialPresidencyof the newly independentState was
composedof sevendemocraticallyelectedmembers - two Croat
representatives, two muslimrespresentatives,two Serb
representativesand one other memberrepresentingother and
undeclaredcitizensof the Republic;it is true that the Serb members
of the Presidencyhave subsequentlynot participatedin the
Presidency, but thiswas their free - and deplorable - choice and, of
course, nothingcanbe inferred from this fact regardingthe
legitimacyof the Governmentof Bosniaand Herzegovina;
- according to Article220 of the Constitutionof Bosniaand
Herzegovina,
"In case of war or stateof emergency, the mandateof
the Members of thePresidencyand of the President
shall be continueduntil such time as the conditions
for new electionsfor the Presidencybe met" [the
original of this provision andan English translation
have been sent to the Courtby the Agentof Bosnia
and Herzegovinaon 22 August 19931,
there cannot be the slightestdoubt thatthe conditionsfor the
applicationof this provision have beenmet continuously since 20
December 1992, the date when the mandateof the current
Presidency was, in principle, supposedto expire; and, of course, the
manoeuvresof the RespondentState haveplayed an important role
in this dramatic situation;
- Mr. A.IZETBEGOVIChas constantlybeen recognizedas the legal
and legitimatePresidentof the Republicof Bosnia andHerzegovina.
It is of course tnie that, insidethe International Conferenceon Former Yugoslavia, other partiesto the on-goingconflictappear -
including representativesof Yugoslavia(Serbiaand Montenegro) -
but, naturally, no legal conclusionscan be drawn from this fact; it
is merely a reflectionof the very situation incitedby the Respondent
State.
4.2.1.20 As the Court foundin its Order of 8 April 1993:
"...the power of a Head of Stateto act on behalf of the
State in its international relationsis universally recognized,
and reflected in, for example, Article 7, paragraph 2 (a), of
theViennaConvention on theLawof Treaties"P.C.J.
Reports1!393,p. 11;see also Orderof 13September 1993,
I.C.J.Reports1993,p. 3371.
In the present case, the Applicationwas signedby an Agent duly appointed
by President IZETBEGOVIC, universallyrecognizedas the legal and
legitimateHead of the ApplicantStateby the international community,and
whose existencecannot be denied. Thiswas done in absoluteconformity
with Article40 of the Rules of Court and with the usual practice in this
respect [seeSh. ROSENNE, op. cit. para. 3.27, pp. 214-215, or
GenevièveGUYOMAR, Commentaire duRèglemend te la Cour
internationalede Justice1983,pp. 261-2641.
4.2.1.22 It cantherefore not be denied thatthe Applicationwas lodged by a proper
Applicant State, duly representedin conformitywith the Rules of Court. BosniaandHenegovinaha succeededtheS.F.R.Y. to the Genocide
Convention
4.2.1.23 During his pleadingof 2 April 1993, ProfessorROSENNE, the acting
Agent of Yugoslavia (Serbiaand Montenegro) ,alleged that
"...no rule of contemporaryinternationallaw (...)gives
Bosniathe nght to proclaimunilaterally,by means of a
documentcalleda notificationof succession,that it is now a
party to the Genocide Conventionwith effect from 6 March
1992, merelybecauseYugoslaviais a party tothe
Conventionand becausethe Conventionwas applicableto
what is now the territoryof Bosnia andHerzegovina through
the former SocialistFederal Republicof Yugoslavia" [CR
93/13, p. 141.
4.2.1.24 What this meansis rather perplexing.It seemsto imply that Yugoslavia
(Serbia and Montenegro)deniesthat Bosnia andHerzegovinais a successor
State to the former S.F.R.Y. and (or alternativel?)that there exists no
rule in contemporary internationallaw empoweringa successor State to
succeedto multilateraltreatiesconcludedby the predecessor State. Both
assertions are completelyerroneous.
BosniaandHenegovinais a successorState
4.2.1.25 That Bosniaand Herzegovina - as well as Yugoslavia(Serbiaand
Montenegro) [see4.2.2.9, below] - is a successorState, is not subjectto
doubt.
4.2.1.26 According to the very widelyaccepteddefinitiongiven in both Vienna
Convemnnoo mn Succession ofStatesof 1978and 1983
-142 - " "successionof States" meansthe replacementof one State
by another in the responsibilityfor the international relations
of territory;
and it is obviousthat Bosniaand Herzegovinahas replaced the former
S.F.R.Y. for the international relationsof what was theFederal Republic
of Bosnia and Herzegovinabefore the dissolutionof former Yugoslavia.
This situationwas recognizedas early as 7 April 1992, by the Security
Council since, in its Resolution749 (1992), it refers to Bosnia and
Herzegovina as a distinctentity [seein this respect Drazen PETROVIC et
Luigi CONDORELLI, L'ONU et la crise yougoslave, A.F.D.1.1992,p.
353, which clearly impliesthat, at thisdate, "Yugoslavia"had ceasedto
represent BosniaandHerzegovinain its internationalrelations. Some time
later, it demanded
"That al1forms of interferencefrom outsideBosnia and
Herzegovina, includingby units of the YugoslavPeople's
Amy (JNA) as well as elementsof the Croatian Amy,
cease imrnediately,and that Bosnia andHerzegovina's
neighbourstake swift action toend such interference and
respect the territorial integrityof Bosniaand Herzegovina"
mesolution 752 (1992)of 15 May 1992;see also Resolutions
757 (1992)of 30 May 1992,or 770 (1992)of 13August
19921.
4.2.1.28 The General Assemblyadopted thesarnepositionin Resolutions461242of
25 August 1992, 47/121 of 18December 1992 and48/88 of 20 December
1993.
4.2.1.29 It is true that, in its first findings, theArbitrationCommissionof the
European, then called the International Conferenceon Former Yugoslavia,
express4 some doubts regardingthe statusof Bosniaand Herzegovina as asuccessor State of the S.F.R.Y. After it had established that"the Socialist
Federal Republicof Yugoslavia[was]in the processof dissolution"
[Opinionno1, prec. para. 4.2.1.5, p. 14971,it considered, in Opinionn04
of 11January 1992,that
"The will of the peoplesof Bosnia andHerzegovinato
constitutethe SocialistRepublicof Bosniaand Herzegovina
as a sovereignand independentStatecannotbe held to have
ben fully established"[I.L.M., 1992,p. 15031.
But, after the referendumof 29 February and 1 March 1992,the
Arbitration Commissionnoted that:
"- the referendum proposedin Opinionn04 was heldin
Bosnia-Herzegovinaon 29 February and 1March: a
large majorityof the population votedin favour of the
Republic's independence; (...);
"- most ofthe new statesformed from the former
YugoslavRepublicshave recognizedeach other's
independence,thus demonstratingthat the authority of
the federal state no longerholds way on the temtory
of the newly constitutedstates;
"- the commonfederal bodieson which al1the Yugoslav
republics were representedno longer exist: nobody
of that typehas functionedsince;
"-
the former nationaltemtory and population of the
SFRY are now entirely under the sovereignauthority
of the new states;
"- Bosnia-Herzegovina, Croatiaand Slovenia havebeen
recognizedby al1the Member Statesof the European
Communityand by numerousother States,and were
admitted to membershipof the United Nations on 22
May 1992; "- UN Security CouncilResolutionsn0752and 757
(1992)containa number of references to "the former
SF'RY"; (...);
"- the declarationadoptedby the Lisbon European
Councilon 27 June makesexpressreference to "the
former Yugoslavia" .
The Arbitration Commissionwas therefore of the opinion
"that the process of dissolutionof the S.F.R.Y. referred to in
Opinion nO.1of 29 November1991is now completeand that
the S.F.R.Y. no longer exists" [Opinionn08, prec. para.
4.2.1.9, p. 15231,
and, in its Opinionn09, it statedexpresslythat:
"New Stateshave been created on the territory of the former
S.F.R.Y. and replaced it. Al1are successorStates to the
former S.F.R.Y." U.L.M. 1992,p. 15241,
moreover, in Opinionno11, of 16July 1993, it emphasized that6 March
1992, the date when the resultof the referendumwas officially
promulgated,
"...must be consideredthe dateon which Bosnia and
Herzegovina succeededthe SocialistFederal Republic of
Yugoslavia"[op. citp .ara. 4.2.1.10, p. 15881.
4.2.1.30 Furthermore, the Republicof Bosniaand Herzegovinapariticipates fully in
the Working Group of the International Conferenceon Former Yugoslavia
where it is unanimously consideredas a successorState of the S.F.R.Y.
This participation has never been challenged,not evenby Yugoslavia
(Serbia and Montenegro) .
4.2.1.31 It appears clearly that if the RespondentState has, during the previous
proceedings in this case, attemptedto cast somedoubts on the status of
Bosnia and Herzegovinaas a successorState to S.F.R.Y., it has been a purely procedural move: evenduring theseproceedingsit has, in fact,
recognized that
"Bosnia-Herzegovinais an independentinternationalentity"
professor ROSENNE'spleading, 2 April 1993, CR 93/13,
P. 141,
and that
"...the territory of the former YugoslavRepublics, with the
exceptionof those of Serbiaand Montenegro, no longer form
part of that of the FederalRepublicof Yugoslavia"[id., 26
August 1993, CR 93/34, p. 131.
4.2.1.32 If this is tru-and, indeed, it is true-,then it is crystal-clearthat Bosnia
and Herzegovinahas replacedthe former S.F.R.Y. in the international
relations conceming its temtory and is therefore a successorState.
BosniaandHenegovinais a Partyto the GenocideConvention
4.2.1.33 In this very capacityit has succeededthe S.F.R.Y. as a Party to the 1948
Genocide Convention.
4.2.1.34 This was clearly acknowledgedby Bosniaand Herzegovinain a note sent
by the Minister for Foreign Affairs to the Secretary-Generalon 29
December 1992 [the text of whichis printed below, para. 4.2.1.471.
4.2.1.35 The Respondent State seemsto challengethis point on the ground that
- unilateral successionis, allegedly,onlyprovided for in the Vienna
Convention onSuccessionof StatesinRespectof Treatiesof 23
August 1978,which hasnot entered into force and was, allegedly,
only "evolvedin order to deal with the problem of the effect of decolonization"[professorSh. ROSENNE, 2 April 1993, CR
93/13, p. 151,
and that
- besides this, there is, allegedly,no rule of internationallaw giving a
right to a successorStateto proclaim unilaterallythat it is bound by
a treaty to which the predecessorStatewas a Party [seeabove,
para. 4.2.1.231.
4.2.1.36 It is true that the 1978 Conventionis not yetin force, althoughit must be
noted that the former S.F.R.Y. signedit on 6 February 1979 anddeposited
an instrumentof ratificationon 28 April 1980.
In return, it is clearly untrue that this Conventiononly deals "with the
problem of the effect of decolonizationon the treatyobligationsof the
former colonial powersand the newly -independentdecolonizedpowers"
[CR 93/13, p. 151.This problem was,indeed, present in the mind ofthe
drafters, but it was far from being addressedexclusively. Sufficeit, in this
respect, to read the text of the Conventionitself: it applies, generally,
"...to the effects of a successionof Statesoccurring in
conformitywith internationallaw, and, in particular, the
principles of internationallaw embodiedin the Charter of the
United Nations" [Article 61,
and it applies as well to "Successionin Respectof Part of Territory" [Part
II],"Newly Independent States"[PartIII'J and "Unitingand Separationof
States''[part IV.
4.2.1.38 The distinctionbetweenrules applicableto successionin case of
decolonizationon the one handand to other casesof successionis,
nevertheless, extremely important inrespect both of the Convention and of general international law.Regardingthe 1978Convention,it follows from
Article 2, paragraph 1 (f), that Part III only applies in caseof
decolonizationsince
" "newly independentState" meansa successor State the
territory of which immediatelybefore the date of the
successionof Stateswas a dependentterritory for the
internationalrelationsof which the predecessor State was
responsible";
Bosnia andHerzegovinawas clearly not inthis situation;consequentlyonly
rules embodiedin Part IV ofthe Conventionare directly relevant.
4.2.1.39 The sarnealso holds true with regard to contemporarygeneral international
law. Authoritieshave stressedthat Statepractice in this respect " has been
variable, often dependenton the very specialcircumstancesof particular
cases" [OPPENHEIM's9th ed., op. cit., para. 3.21., p. 210; see also
Charles ROUSSEAU,Droit intedonal public, tome III, Les
compétences, Pans, 1977,pp. 484-4871.Somegeneral trends nevertheless
appear, in particular,
i) if it cannotbe sustainedthat the 1978Conventionis pure
codification, "lesprincipes dont [elle s'inspire]ne sont cependant
guèrecontestables"[NGUYENQUOC Dinh, Patrick DAILLIER,
Alain PELLET, Droit internationalpublic, 4th ed., 1992,p. 5121.
Carefully draftedafter learned discussions inthe I.L.C. and founded
on extensivestudiesof State practice, the Convention "conserve
toute sa valeur en tant qu'instrument consolidant l'opinionjuridique
quant aux règlesdu droit international généralement admises ec ne
qui concerne la successiond'Etatsen matièrede traités" [I.L.C. Yearbook 1974,vol. II, pt. 1, Report of the I.L.C. to the General
Assembly ,para. 631;
there is aclear divisionbetweenrules applyingin cases of
ii)
decolonizationon the one hand, and in those cases not involving
decolonizationon the other hand; in thefirst case there is a need to
exercise specialcare in preserving the absolutelyfreewill of the
new State, while this concem is less apparentin case of dissolution
or of secession;this is reflectedboth in the 1978Conventionand by
Statepractice. As has been explained, in the secondcase,
"l'opération se dérould eans des conditions tellesque, quelle que
soit la rupture légale d'identité entles Etats en cause, les
successeurs peuventdifficilementpasser pourde véritablestiers par
rapport à leur prédécesseurs, qu'ilc sontinuent plusou moins (..).
Cetteparticularitéexpiquela règlegénérale applicabl e de telles
situations= le régimeconventionneldu ou des prédécesseur(s)
survit dans le chef du oudes successeur(s),dans ses limites spatiales
originelles" [JeanCOMBACAUet Serge SUR, Droit international
public, Phs, 1993,p. 4361.
4.2.1.40 Itderives from these considerations that,in case of dissolutionof a
pre-existing State -which is the present hypothesis,even if this is wrongly
chailengedby the RespondentState -,the successorStatesare, as a matter
of principle, bound by the treaties concludedby the predecessor State. The
same would be true in case of successioneven if, contrary to Yugoslavia
(Serbia and Montenegro)'~allegations, thedismembermentof the former
S.F.R.Y. cannot be assimilatedto a series of secessions [see below,paras.
4.2.2.9 et seq.].4.2.1.41 Generally speahng, "practicesuggests thatin many cases it will be
appropriate to regard theformer componentparts of the "union State" as
remaining bound by its treatiesafter its dissolutionif those treaties were in
force either for its whole territory or for that part of its temtory which
forrned that componentstate" [OPPENHEIM'S 9thed., op. cit., para.
4.2.1.9, p. 2201.And, if practice laves someroom for discussionas
regards bilateral treaties, itesabsolutelyclear that "c'est la continuité
des actes conventionnels quia été habituellementconsacréepar la pratique
internationaleen ce qui concerne les traités multilatérau[Ch.
ROUSSEAU, op. cit., para. 4.2.1.39, p. 5021,since it is "logique de
considérer que lesdispositionsdes traités normatifssont dans une large
mesure indépendantes des vicissitudes auxquelles peuventêtre soumisleurs
signataires" [id., p. 501, see also C. Wilfred JENKS,State Successionin
Respect of law-Making Treaties, B.Y.B.I.L., 1952, p. 105or Marco G.
MARCOFF, Accession à l'indépendanceet successiond'Etats aux traités
internationau, Fribourg, 1969,pp. 155et seq. or 2761.
4.2.1.42 Automaticcontinuityis particularlywell established in respectof
conventionsof a humanitariancharacter. Thus, althoughthe authors of
OPPENHEIM'S Treatise, 9th edition, are somewhathesitantto admit
succession in caseof separationor secession,they recognizethat "there is
more room for the view that in case of separationresulting inthe
emergence of a new statethe latter is boundby - or at least entitled to
access to -general treatiesof a "law-making"nature, especiallythose of a
humanitariancharacter, previouslybindingit as a part of the state from
which it has separated" [op. cit., para. 4.2.1.9, p. 2221,and theygive
several examplesconfirmingthis view [id., pp. 222-2231.This principle is
also exemplifiedat lengthby Dr. M.G. MARCOFF who, in his leamed study, establishesthat automatic continuityex tunc (i.e. from thevery date
of independence)has been consistently adrnittedfor al1humanitarian
conventionsincludingthe 1949Red-CrossConventions[op. cit., para.
4.2.1.41, pp. 30:3 et seq.]. And, in the commentaryon its final draft on
successionof Statesin respect of treaties, the I.L.C. expressly drew
attention to theparticular case of humanitarianconventionsand called for
continuity as far as they are concerned [Report, op. cit., para. 4.2.1.39,
paras. 76 to 781.
4.2.1.43 There is not the slightest doubtthat the 1948GenocideConventionhas a
humanitariancharacter. As the Court statedin its 1951Advisory Opinion,
"The Conventionwas manifestlyadopted for a purely
humanitarianand civilizingpurpose.It is indeed difficult to
imagine a convention thatmighthave this dual character toa
greater degree ..." [I.C.J. Reports 1951, p. 231.
Moreover, as stressedby the Court, a consequenceof "the special
characteristics of the GenocideConvention" :
" ...is the universalcharacterboth of the condemnationof
genocideand of the cooperationrequired "in order to liberate
mankindfrom such an odious scourge" (Preambleto the
Convention).The Genocide Conventionwas therefore
intended by the General Assembly tobe definitely universal
in scope" [id.].
4.2.1.44 These special features strengthenthe general principle exposed inArticle
34 of the 1978 (?onventionon Succession of States in respect of Treaties
which, as seen above, purely codifies thecontemporarypractice of States.
According to this provision:
"Whena part or parts of the tenitory of a State separate to
form one:or more States, whetheror not the predecessor
continues to exist: "(a) any treaty in force at the dateof the successionof States
in respect of the entire territory of the predecessorState
which has becomea successorStatecontinuesin force in
respect ofeach successorState so formed" [paragraph 1 -
exceptionsprovided for in paragraph 2 (1) clearly do not
apply in the present case].
4.2.1.45 The inescapableconclusionis therefore that al1successorStatesof the
former S.F R.Y., includingBosnia andHerzegovina, have automatically
succeededit to the Genocide Conventionwhich it had signedas early as 11
December 1948and ratified,withoutreservationon 29 August 1950.
4.2.1.46 The questionof the effectsand scopeof the notice of succession givenby
Bosnia andHerzegovinaon 29 December 1992,is therefore of secondary
importance.
As recalled in the Court's Order of 8 Apnl 1993, [I.C.J. Reports 1993,p.
151,the notice of successionis drafted in the following terms:
"The Governmentof the Republicof Bosniaand
Herzegovina, havingconsideredthe Conventionon the
Prevention and Punishmentof the Crime of Genocide, of 9
December 1948, to which the former SocialistFederal
Republicof Yugoslaviawas a party, wishes to succeed to the
same and undertakesfaithfullyto perform and canyout al1
the stipulationstherein containedwith effect from 6 March
1992, the date on whichthe Republicof Bosniaand
Herzegovinabecameindependent".
4.2.1.48 Althoughit was, in no way, indispensableto establish thatBosnia and
Herzegovina was bound by the GenocideConvention, thisdeclarationbears
witness to the will of the ApplicantState to abide by the Convention.As
Dr. M.G. MARCOFF put it: "Des extériorisations de ce genre ne possèdentque la
fonctionde "révélateursd "u phénomène juridique de la
succession, survenuau momentdu changementde
souveraineté"[op. cit., para. 4.2.1.41, p 3051.
4.2.1.49 As the Court noted in its Order of 8 April 1993, it may, however be
stressed that, by his DepositaryNotificationto the parties to the Genocide
Conventionof 18March 1993(2),
" ...the Secretary-Generalhas treated Bosnia-Herzegovina,
not as acceding,but as succeedingto the Genocide
Convention ..."[I.C.J. Reports 1993,p 161.
4.2.1.50 Other States Partieshave notreacted to this notification.This means that if
Bosnia andHerzegovinawas to be consideredas a "Newly Independent
State" in the meaningof the 1978Convention -which is more than
doubtfull (see above, para. 4.2.1.38) -it would, nevertheless, have
succeededto the former S.F.R.Y. 'smembershipto the Genocide
Conventionby which it is bound in any case.
4.2.1.51 It therefore appears that
i) the statehoodof Bosnia andHerzegovinacannotbe challenged;
ii) Bosnia and Herzegovinais a successorState to the former
S.F.R.Y,.;
as such it has automaticallysucceededit to the 1948Conventionon
iii)
Genocideor, alternatively(andcomplementarily)it has established
its acceptanceof the Conventionthrough its communicationto the
Secretary-Generalof 29 December 1992;
iv) this succession took place on 6 March 1992,the date of the
successionof States;v) Bosniaand Herzegovina could thereforelodge an Application onthe
basis of ArticleIX of the Genocide Convention;and
vi) this Application wasmadeby the legitimate andlegal Government.
Section4.2.2
Yugoslavia (Serbiaand Montenegro)is boundby the Genocide
Convention
Yugoslavia (Serbia and Montenegro) has, infact, if somewhatreluctantly,
accepted the Court's jurisdictionon the basisof ArticleIX of the Genocide
Convention in the present case. However, itmustbe stressed that, in any
event, it has succeededthe former S.F.R.Y. tothe Genocide Convention.
Yugoslavia(SerbiaandMontenegro) hasacceptedthe Court'sjurisdiction
onthebasisofArticle lX ofthe Genocide Convention
On severaloccasionsduring the proceedingsrelating tothe Requestsfor the
indication of provisionaimeasures, the RespondentState "reserved its
rights" regarding thejurisdiction ofthe Court andthe admissibility ofthe
Application, but onmost of those occasions- indeed, virtually aof them -
these purported "reservations"were expressly limitedto the submissions
made in the Applicationor in the Requestsfor the indication of provisionai
measures, which may have appearedto go beyond the scopeof the
Genocide Convention.i) In its letter of 1April 1993, the FederalMinister of Foreign Affairs
of Yugoslavia (Serbiaand Montenegro) proposed himselfvarious
provisional measures(seebelowpara. 4.2.2 -4) and specified:
"The Govemment of the Federal Republicof Yugoslavia
avails itself of this opportunityto inform theCourt that it
does not acceptthe competenceof the Court in any request
of the Applicantwhich is outsidethe Convention onthe
PreventionandPunishmeno tftheCrimeof Genocide.This is
withoutprejudice to thefinal decisionof the Yugoslav
Governmentto be party to the disputesubmittedby the
"Republicof Bosniaand Herzegovina" ".
Even if the exact meaningof the last sentenceis not clear, it follows a
contrario from the first sentence thatthe RespondentState accepts the
competenceof the Court as long as it is withinthe Genocide Convention.
ii) This interpretationwas confirmedin the Observationsof Yugoslavia
(Serbia and Montenegro) dated 23 August 1993:
"It is obvious that,by requiringprovisional measures,on 1
April 1993, the intentionof the FR of Yugoslaviawas not to
accept thejuridiction of the Court whatsoever,or to an
extent beyond whatis strictly stipulatedin the Genocide
Convention".
iii) In these same observations, theRespondentState recalled the
statementmadeby Professor ShabtaiROSENNEon 2 April 1993:
"The Federal Republicof Yugoslaviadoes not consent to any
extensionof thejuridiction of the Courtbeyond what is
strictly stipulatedin the Conventionitself' [CR 93/13, p.
161.
iv) During this samepublic sittingof the Court, the Acting Agentof
the RespondentState declared:
"...we do think thatthejurisdiction of the Court is limited,
but we are prepared to continueto litigatethe case within the
limits of thejurisdictionas we understandit" [id.,p. 541.v) And the way the RespondentState "understands" the limits of the
Court'sjurisdiction has beenclearly explainedin various occasions;
as definedin the Genocide Convention:
"...Ourdispute [is] over the implementationof the
Convention onthe Prevention andPunishmeno tf the Crime
of Genocide[ProfessorRodoljubETINSKI,Agent of
Yugoslavia(Serbiaand Montenegro),26 August 1993, CR
93/34, p. 161;
"There are some additionalmeasuresrequested, but these go
far beyond the applicationof the GenocideConvention,
which is what this caseis about.." [ProfessorSh.
ROSENNE, id., p. 481.
Two specificepisodesare of particular importancein this respect. Both on
1 April 1993and on 23 August 1993, Yugoslavia(Serbiaand Montenegro)
made counter-claimsin reply to Bosniaand Herzegovina'sRequestsfor
provisional measures. For rasons whichhave been explainedabove (para.
4.1 .O11)Bosnia andHerzegovinawill refrain from stressingthat these
claims go well beyond the frarneworkof the Genocide Convention,al1the
more as the RespondentState "reserved its rights"regarding the
jurisdiction of the Court outsidethe scopeof the 1948 Convention (evenif
the validity of sucha "reservation"is a matterof grat doubt).
Nevertheless, these requestsfor provisionalmeasuresmust have rested on
some jurisdictional link betweenthe Partiesor, at the very least, there
existed, in the opinionof the Governmentof Yugoslavia(Serbiaand
Montenegro), aprimafacie basis on whichthejurisdiction of the Court
might be established.According tothe declarationsmade by the
RespondentState this basis is the Genocide Convention. It is therefore clear that Yugoslavia (Serbia andMontenegro)is itself
convinced that the Court hasjurisdictionin the present case on the basisf
Article IX of the 1948 Convention.It has publiclyand repeatedly
recognized thisfact during the previous phasesof the proceedings andit is
undisputable that declarationsmadeby representativesof a Party during a
jurisdictional or arbitral procedurebind thPart yseee.g. the Arbitral
Arward of 23 October1985, Canadav. France, Dzmend concemm le
filetageà l'intérieudu Golfedu Saint-Laurent, R.G.D.I.P. 1986,p. 7561.
4.2.2.6 As the Court observed,
"One of the basic principlesgoverningthe creation and
performance of legal obligations,whatevertheir source, is
the principle of good fait.... Just as the very rule ofpacta
sunt servanda in the law of treatiesis based on good faith, so
is the binding characterof an international obligation
assumedby unilateral declaration. Hence interestedStates
may take cognizanceof unilateral declarationsand place
confidencein them, and are entitledto require that the
obligationthus createdbe respected" [Judgmentof 20
December 1974, Nuclear TestsCase, I.C.J. Reports 1974, p.
268; see also I.C.J. Reports 1988,p. 1051.
In the presentcase, Yugoslavia (Serbiaand Montenegro)made clear that it
considereditself bound by the GenocideConventionand that it considered
that the Court hasjurisdiction on the basis of ArticIX of said
Convention. It is on the basis of this assumpti-nand only on the basis of
this assumption, that,in the present Memorial,Bosniaand Herzegovina
focuses exclusivelyon this title of jurisdiction. It is therefore no longer
open to the RespondentState "to go backupon that recognitionand to
challenge the validity" of this basis ofjurisdict[cf.I.C.J. Reports 1960,p. 2131.As Sir Gerard FITZMAURICE explainedin his dissenting opinion
in the Case concerning theTemple ofPreahVihear:
"(.. .in thosecases whereit can be shownthat a party has,
by conductor otherwise, undertaken,or becomebound by,
an obligation,it is strictlynot necessaryor appropriate to
invokeany rule of preclusionor estoppel, althoughthe
languageof that rule is, in practice, often employedto
descnbe the situation.Thus it maybe said that A, having
accepteda certain obligation,or having becomebound by a
certain instrument,cannotnow be heard to deny the fact, to
"blow hot andcold". True enough, A cannotbe heard to
deny it; but what this really meansis simply thatA is bound
and, being bound, cannotescapefrom the obligationmerely
by denyingits existence".[I.C.J. Reports 1962,p. 631.
Therefore, having acceptedArticle M of the GenocideConventionas a
basis for thejurisdiction of the Court the present case, Yugoslavia
(Serbia and Montenegro)cannotnow escapefrom the obligation deriving
therefrom "simplyby denyingthe existence".This considerationis essential
and refutesallthe objectionsthat the RespondentState thought advisableto
exude here and there: one may not blow hot andcold. Yugoslavia(SerbiaandMontenegro) hm succeeded theS.F.R.Y. to the
Genocide Convention
4.2.2.9 Independentlyfrom its acceptanceof thejurisdiction of the Court in the
present caseon the basis of ArticleIX of the GenocideConvention,
Yugoslavia (Serbiaand Montenegro) does not denythat it is bound by the
1948Convention,but it bases itself on a reasoning which is highly
debatablefrom a legal point of view,sinceit alleges that it is the sole
"continuator"of the former S.F.R.Y.
4.2.2.10 In the opinion of the Governmentof Bosniaand Herzegovina, such an
ailegationcannotbe sustained, sincethe RespondentState is but one of the
successor Statesof the former S.F.R.Y., exactly as are the fourther
Stateswhich have emerged fromthe dissolutionof the predecessor State.
However, for the purpose of the presentproceeding, whether or not
Yugoslavia(Serbiaand Montenegro)is a successoror a "continuator", it is
bound by the Genocide Convention. Yugoslavia (Serbia andMontenegro)is a successorStateto theformer
S.F.R.Y.
4.2.2.11 In the course of previousproceedingsin the present caseas well as in other
forums, Yugoslavia(Serbiaand Montenegro) claimed thatit is the only
continuator of the former S.F.R.Y. Thus, during his oral presentationof 26
August 1993,Mr. M. MITIC, Chief Legal Adviserof the Federal Ministry
of Foreign Affairs, challengedthe validityof independenceof former
federate Yugoslav Republics[CR 93/34, p. 81.Moreover, it is on the basis
of this alleged "continuity"that Yugoslavia (Serbiaand Montenegro)
considers itself to be bound byl ntemationalcommitments undertakenby
the former S.F.R.Y.
4.2.2.12 By a Declaration made on27 April 1992, the Participantsto the Joint
Session of the S.F.R.Y. Assembly,the NationalAssembly ofthe Republic
of Serbia and the Assemblyof the Republicof Montenegrodeclared:
"The Federal Republicof Yugoslavia,continuing the State,
international, legal and politicalpersonalityof the Socialist
Federal Republicof Yugoslavia, shall stnctly abideby al lhe
commitmentsthat the S.F.R of Yugloslaviaassumed
intemationallyin the past... "[see1.C.J. Reports1993,p.
151.
This was confirmed in an officialnote, dated the sarneday which was also
the date when the Constitutionof the new State of Yugoslavia(Serbia and
Montenegro) was adopted, whichnote was sentby the PermanentMission
of "Yugoslavia"to the United Nations, to the Secretary-General,and
published as an officialdocumentof the GeneralAssembly:
"Strictlyrespectingthe continuityof the international
personality of Yugoslavia,the FederalRepublicof
Yugoslavia shall continue tofulfil all the rights confered to,
and obligationsassumedby, the Socialist Federal Republicof Yugoslaviain international relations, includingits
membershipin al1internationalorganizationsand
participationin internationaltreatiesratified or acceded to by
Yugoslavia"[Al461915,7 May 19921.
Since then, this has ben the constantpostureadoptedby the Respondent
[seee.g. the Aide-Mémoire dated14January 1994of the Governmentof
the Federal Republicof Yugoslaviaaddressedto the Temporary Chairman
of the 15th Meetïngof States Partiesto the International Conventionon the
Elimination of al1Forms of RacialDiscrimination,CERD/SP/50, Annex].
In the same spirit, it must benotedthat when the Human Rights Committee
of the United Nations requestedthe Govemmentof Yugoslavia(Serbia and
Montenegro) to submit a short report on seriousbreachesof the
International Covenanton Civil and Political Rights,a delegation of
Yugoslavia (Serbiaand Montenegro)was sentto a meetingof the
Committeeon 6 November 1992:
"The Committeewelcomedthe delegation,explainingthat it
regarded ,thesubmissionof the reportby the Govemment and
the presence of the delegatias confirmationthat the
Federal Republicof Yugoslavia(Serbiaand Montenegro)had
succeedeü,in respect of its territotothe obligations
undertakenunder the InternationalCovenanton Civil and
Political Rightsby the former SocialistFederal Republicof
Yugoslavia." [Comments oftheHuman RightsCommittee,
AlC.31CRP.1, 20 November 1992, para. 191.
While the Governmentof Bosniaand Herzegovinamaintainsthat
Yugoslavia (Serbiaand Montenegro) cannotbe the "continuator"of the
former S.F.R.Y., neverthelessit fullyacceptsthat it is a successor State
exactly in the sarnewayas the four other Stateswhichemerged from the
dissolution of theformer Yugoslavia,and thatin either event it is bound by
the Genocide Convention.4.2.2.14 A great many facts derive from thisundisputable conclusion:
-
since 15May 1992 [Resolution 752(1992)], al1Resolutionsof the
Security Councilas well asof the General Assemblyof the United
Nations, mention "the former Yugoslavia" , thus evidencingthe
convictionof the internationalcommunity thatthe S.F.R.Y. no
longer exists;
- this is also the opinionof the European Community[see the
Declarationadoptedby the Lisbon European Councilon 27 June
19921,of the International Conferenceon the "Former Yugoslavia"
[sincethe London Conferenceof 26-27 August 19921;
- and ofthe ArbitrationCommission,which in several carefully
considered opinions noted,first, that the S.F.R.Y. was "in the
process of dissolution"[Opinionno1, op. cit. para. 4.2.1.5, p.
1497, then that this processwas completed, that the S.F.R.Y. no
longer existed[Opinion nO 8, op. cit. para. 4.2.1.91, that "noneof
the successorStatesmay (..)claim for itself alone the membership
rights previouily enjoyedby the former S.F.R.Y. " [Opinionno 9,
op. cit. para. 4.2.1.293, and, in particular, that "the F.R.Y. (Serbia
and Montenegro) isa new Statewhich cannotbe consideredthe sole
successor [sic] tothe S.F.R.Y." [Opinionno10, 4 July 1992,
I.L.M. 1992,p. 15261,the date of State succession being27 April
1992 [Opinionno 11, op. cit. para. 4.2.1.101;
-
in its Resolution 757of 30 May 1992, the Security Councilpointed
out that
"...the claim by the FederalRepublicof Yugoslavia(Serbia
and Montenegro) tocontinue automaticallythe membership
of the former Socialist Federal Republicof Yugoslaviain the
United Nationshas not been generallyaccepted";
- while, in Resolution777 of 19September 1992,it considered "...that the State formerlyknownas the SocialistFederal
Republicof Yugoslaviahas ceasedto exist".
4.2.2.15 All the five Stateswhich haveemerged fromthe dissolution of the former
S.F.R.Y. are therefore new States, eachof them beisuccessor on
their respectiverritories. The generalrules of internationallaw on State
successionapply to each of them, including Yugoslavia(Serbiaand
Montenegro).
Yugoslavia (SerbiandMontenegro)is aparty to the GenocideConvention
4.2.2.16 The previous remarks [para4.2.2. -4.2.2.1 ha1e ben made mainly
for the sake of legal comprehensiveness.Whether Yugoslavia(Serbia and
Montenegro)is in facteen as a successorState to the former S.F.R.Y. or
as its "continuator", the resultis the same: either way it is a party to the
1948 GenocideConventionwhich had been ratifiedby the former S.F.R.Y.
in1950 .or the convenienceof legal argument, both hypothesiswill be
discussed separately.
Yugoslavia (SerbandMontenegro)is boundby the GenocideConvention
as a successorto thefonner S.F.Y.
4.2.2.17 Asshownabove[paras.4.2.1.25-4.2.1.40]asuccessorState,in
principle, succeedsto any treaty in force for the predecessor State at the
date of the successionof States in respect of the entire temtory of the
predecessor State:.This holdse in particular for humanitarian
conventions.4.2.2.18 The same reasoningwhich appliesto Bosnia andHerzegovina [se d.] also
applies to Yugoslavia (Serbiaand Montenegro):
- both Statesare successorsto the former S.F.R.Y.;
- the latter had becomeaPart to the Conventionin 1950and still
was a Party at the dateof the successionof States;
- the GenocideConventionhas a humanitariancharacter and a
universal vocation;
-
therefore it continuesin force automaticallyin respect of Yugoslavia
(Serbiaand Montenegro)as well as of Bosnia andHerzegovina.
Moreover, both States, by unambiguousdeclarationshave formally
accepted international obligationsassumedby the former Yugoslavi-this
has ben done specificallyin respect of the Genocide Convention(and of
many other conventionsand treaties)by Bosniaand Herzegovina [see
above, para. 4.2.1.47 and in a general way by Yugoslavia(Serbia and
Montenegro) throughthe Declarationsmade on 27 April 1992,by the Joint
Meeting of the Assembliesof Serbia, Montenegroand the "Federal
Yugoslav Republic"and by the PermanentMissionto the United Nations
[se ebove, para. 4.2.2.121.
4.2.2.20 Indeed,in these same Declarations,the constituent legislative,executive
and diplomatic organsof Yugoslavia(Serbiaand Montenegro) also
expressed their belief thatthe Statethey represent was continuingthe
internationalpersonalityof the formerS.F.R.Y., a statement which,in the
opinion of the Governmentof Bosnia andHerzegovina is clearly erroneous
[se ebove]. But nothingcanbe inferred, Iegally, from this statement.4.2.2.21 In the first place, as shown above Ipara. 4.2.1.481 such a declarationis in
no way indispensable toestablish successionto a treaty to which the
predecessor State.[exceptfor "Newly IndependentStates", i.e. decolonized
States -see above, paras. 4.2.1.38 and 4.2.1.391 was a party, especiallyas
regards conventionsof a humanitariancharacter. In this case "continuity"is
automaticand a declarationof successiononly bears witnessto the will of
the successorState to abideby the treaty.It is worth recalling in this
respect that theHuman RightsCommitteeof the United Nations saw the
submissionof a report and the appearanceof a delegationof Yugoslavia
(Serbia and Montenegro)before it in November 1992,as a pure
"confirmation"that this country "had succeeded,in respect of its tenitory,
to the obligationsof the former S.F.R.Y. [A/C.3/CRP.1:see above, para.
4.2.2.121.
4.2.2.22 In the secondplace, Yugoslavia (Serbiaand Montenegro)could not
transform an automaticsuccessionaccordingto general international
well-established pinciples into a conditional succession, as it would be the
case if it were accepted thatit has succeededthe former S.F R.Y. to the
Genocide Conventiononly providedthat it is a continuatorState.
4.2.2.23 The clear conclusionis that Yugoslavia(Serbiaand Montenegro)is a party
to the GenocideConventionby virtue of the usual pnnciples applicableto
the successionof'Statesin respect of treaties. Its declarationsof 27 April
1992, mighthave reinforcedits obligationsin this respect but they could
certainly not neutralizethe applicationof thosegeneral pnnciples. Yugoslavia (Serbia andMontenegro)wouldalso be boundby the Genocide
Convention if it were consideredas a "continuator" of theformer S.F.R.Y.
4.2.2.24 The sarneconclusionobviously holdstrue if arguendoit is admittedthat
Yugoslavia (Serbiaand Montenegro)is the sole continuator ofthe former
S.F.R.Y., as it allegesto be.
4.2.2.25 In the first place it must be stressedthat, accordingto this hypothesis,a
declarationwould havebeen entirely superfluous:to declare that a
"continuator" Statecontinuesthe rights and obligationsof the predecessor
is only to reflect the obvious.
4.2.2.26 Nevertheless, Yugoslavia (Serbiaand Montenegro) didmake such a
declaration in the most formaland solemnmanner [seeabove, para.
According to the celebrateddictumof the Court in the NuclearTestscase,
"It is well recognizedthat declarationsmade by way of
unilateralacts, concerninglegal or factual situations, may
have the effect of creatinglegal obligations. Declarationsof
this kind maybe and often are, very specific.When it is the
intentionof the Statemakingthe declaration thatit should
become bound accordingto its terrns, that intentionconfers
on the declaration thecharacterof a legal undertaking,the
State being thenceforth legally required tofollowa course of
conduct consistentwith the declaration.An undertakingof
this kind, if givenpublicity, and with anintent to be bound,
even though not madewithinthe contextof international
negotiations,is binding. In these circumstances,nothingin
the nature of a quidpro quo nor any subsequentacceptance
of the declaration, nor even anyreply or reaction from other
States, is required for the declarationto take effect, since
sucha requirementwould beinconsistentwith the strictly unilateral natureof thejuridicai act by which the
pronouncementby the Statewas made" P.C.J. Reports1974,
p. 2671.
4.2.2.28 In the present case, there canbe no doubt that Declarations made both by
the constituentAssemblyof Yugoslavia(Serbiaand Montenegro) and the
Permanent Missionof that country to the UnitedNations, drafted in legal
language, expressingformalinternational commitments,made publicly with
an obviousintent to be bound, create legal obligationsfor that State.
4.2.2.29 The RespondentStatehas madepublic toal1other Statesits intention to
abide by al1comrnitmentsof the former S.F.R.Y. Whateverits situation, it
is now boundby these declarationswhichapply to the rights and
obligationsderiving from the GenocideConvention, as well as from al1
other treaties to which the S.F.R.Y. was a party.
4.2.2.30 Therefore, whether it is considered tobe a "continuator"or a successor,
Yugoslavia (Serbiaand Montenegro)clearly is a party to the Genocide
Conventionby virtue of general principlesof internationallaw applicablein
case of successionof States. Its will, as expressedin its Declarations of 27
April 1992,only reinforces this general conclusion.
4.2.2.31 It must be stressedin this respect that"Yugoslavia" - together with the
other successor Statesto the former S.R.F.Y. - is listed as a State party to
the 1948 GenocideConventionin the officialUnited Nations publication
entitled MultilateralTreatiesDepositedwiththeSecretary-GeneraI S;tatus
as at 31 December 1992[ST/LEG/SER.E/l1 ,New-York, 19931.4.2.2.32 Both Parties to the present disputealso being parties to the Genocide
Convention, their differencesmustbe settledaccordingto this treaty,
including Article IX, which confersjunsdiction on the InternationalCourt
of Justice. This provisionhas, moreover, been acceptedby Yugoslavia
(Serbia and Montenegro)as a valid title ofjurisdiction in the present case.
Section4.2.3
Yugoslavia (Serbia andMontenegro)'~ status with regardto the Court's
Statute
In its Order of 8 Apnl 1993, the Courtraisedpropriomotuthe questionof
its jurisdictionrationepersonae.It is respectfullysubmittedthat the logic
underpinningthis questionis as follows:
i) as a matter of principle,
"The Court shallbe open to the Statesparties to the present
Statute " [Article35, paragraph 1, of the Court's Statute];
ii) as long as Yugoslavia (Serbia and Montenegro) cannot maintainthat
it is the sole "continuator"of the former SocialistFederal Republic
of Yugoslavia,it could be sustained thatthe new State is no more a
Member of the United Nations;
iii) in that case it would beno more a "Stateparty to the Statute" and,
therefore, the Application couldbe seen inadmissible[see1.C.J.
Reports1993,pp. 12 - 141.
4.2.3.2 As it has indicatedabove [paras4.2.2.11 et seq.], the Government of
Bosnia and Herzegovinamaintainsthat theRespondentState cannotbe
considerd to be the sole "continuator"of the former S.F.R.Y. But such a finding does not imply that Yugoslavia (Serbia and Montenegro)is not a
Party to the Statuteof the Court. Sucha position can not be sustained,
whether it is a successoror a "continuator",as it alleges to be. Moreover,
as the Court itself hasanticipated,this problem is irrelevant as far as the
GenocideConventionis concerned.
Membershipto theStatuteis not relevantin respectofArticle IX of the
Genocide Convention
4.2.3.3 As the Court noted in its Order of 8 April 1993, Article 35, paragraph 2,
of the Statuteprovides:
"The conditionsunder which the Court shall beopen to other
States shall, subjectto the specialprovisions containedin
treaties in force, be laid down by the Security Council, but
in no caseshall such conditions placethe parties ina position
of inequality before theCourt".
Therefore, as the Court putit,
"...proceedingsmay validlybe institutedby a State against a
State which is a party tosucha special provisionin a treaty
in force, but is not party to the Statute, and independentlyof
the conditionslaid down by the Security Council inits
Resolutiori9 of 1946"[I.C.J. Reports1993,p. 141.
4.2.3.4 The Permanent Clourtfollowedthe sameline of argument in the
Wimbledon case:it recognizeditsjunsdiction to take cognizanceof the
Applicationmadeby Great-Britain,France, Italy and Japan against
Germany on the solebasis of Article 386, paragraph1, of the Treaty of
Versailles, althoughGermanywas not yet a Party to the Court's Statute
P.C.I.J., Judgmentof 17August 1923, TheWimbledonSeriesA, no 1, p.
201.4.2.3.5 Any other solutionwoulddepriveboth the expression "...subjectto the
special provisions containedin treatiesin force" (containedin Article 35,
paragraph 2, of the Statute),andjurisdictional clausesof this kind, of any
bearing. It would contradict theessential consensualcharacter of the
Court'sjunsdiction and would be incompatiblewith the intent of the
drafters of the Statuteto open the Court'sjurisdiction as widely as possible.
4.2.3.6 In the present case, thejurisdiction of the Courtis based on Article IX of
the 1948 GenocideConvention (thatis a "specialprovision containedin a
treaty in force"), to which bothStatesare parties- together with many
others. It would be paradoxicalto admit thatone of these Stateswould not
be bound by one of the very important provisionsof this Convention and
could, therefore escape controlby an impartial thirdparty while al1other
parties are bound and have assumed thatal1States partieshad accepted the
same obligation. This wouldamountto a kind of defacto reservationto
which no objectioncould be possible.
4.2.3.7 It must be admittedthat, like Bosniaand Herzegovina, Yugoslavia(Serbia
and Montenegro)is bound by al1the provisionsof the Genocide
Convention, includingits ArticleIX, whetheror not it is a Party to the
Statute of the Court. It is therefore only for the sake of completenessthat
Bosnia and Herzegovinawill now showthat, in any event, the Respondent
State is a Partyto the Statute.
Yugoslavia (Serbia andMontenegro) is, inanyevent,a Pars, to the
Court's Statute4.2.3.8 As recalled earlier (para. 4.2.2.12),Y ugoslavia (Serbiaand Montenegro)
made, on 27 April 1992,formaldeclarations, reiteratedafterwards on
several occasions, in whichit stated thatit would strictlyabide by al1the
commitmentsthat the former S.F.R.Y. assumedinternationallyin the past,
"includingits membershipin al1international organizationsand
participation in internationaltreatiesratified or accededto by Yugoslavia".
4.2.3.9 This was a clear cornmitment,which, certainly, binds Yugoslavia(Serbia
and Montenegro), although it is legally superfluoussince, whether it is a
successor State to the formerS.F.R.Y. which, indeed, it is- or its
"continuator" -as it allegesto be -treaties in force in respect of the
S.F.R.Y. continuein force after the former State has ceased to exist [see
above 4.2.2.24 and further] .
4.2.3.10 This reasoning also appliesto the Statuteof the Court (and the rights and
obligationsderivïng therefrom)to which the S .F.R.Y. was a Party and by
which Yugoslavia(Serbiaand Montenegro)is nowbound bothby way of
succession and becauseof its unambiguousdeclarations.
However, the question anses whether membership tothe Statutegoes
alongside with membership tothe United Nations, or if both instruments
are autonomous. Since, according toArticle 92 of the Charter, the Statute
"forms an integral part of the Charter", it could be argued that a State
which is not - or no more - a Member of the United Nations may not be a
Party to the Statute. This, in turn, raises the questionwhether or not
Yugoslavia (Serbiaand Montenegro)is still a Member of the United
Nations (although,as willbe demonstratedbelow - paras. 4.2.3.20 -
4.2.3.23 -this last questionis, eventually,probably irrelevant).4.2.3.12 While Bosniaand Herzegovinahas consistentlybeen of the opinion that
Yugoslavia (Serbiaand Montenegro) cannotcontinue automaticallythe
membershipof the formerS.F.R.Y. in the United Nationsand that its
continued membershipshouldbe terminated,it must be admittedthat, in
law, the situationisfar from being clear in this respect.
4.2.3.13 Placing its relianceon Resolution777 (1992) adoptedby the Secunty
Council on 19 September1992,and Resolution4711of the General
Assemblyof 22 September1992,the Court leaves open the questionof
whether or not the RespondentState is a Party to the Statute [Order of 8
April 1993, I.C.J. Reports 1993,p. 141.
4.2.3.14 AlthoughBosniaand Herzegovinaregrets it from a politicalpoint of view,
it must be admittedthat, inthese Resolutionsthe goveming bodiesof the
United Nations have not yet madea fmaldecisionregarding the status of
Yugoslavia(Serbiaand Montenegro)in the United Nations.No doubt, they
have already decided thatthis Statewas not the solecontinuatorof the
former S.F.R.Y. and "cannotcontinue automatically"its membership in the
United Nations. But, in conformitywith the recommendationmade bythe
Security Councilin its Resolution777 (1992), the GeneraiAssembly has
only decided
"...that the Federal Republicof Yugoslavia(Serbiaand
Montenegro)should applyfor membershipin the United
Nations and that it shail not participate in thework of the
General Assembly"[Resolution4711, 22 September 19921
4.2.3.15 But, on the other hand, as notedby the Under-Secretary-Generaland Legai
Counselof the United Nationsin the letter he addressedto the Permanent Representativesto the United Nationsof Bosnia andHerzegovinaand
Croatia, Resolution47/1:
"...neither terminatesnor suspendsYugoslavia's
membership, in theOrganization"[doc. A1471485,annex,
italics in the originaltext -s1.C.J. Repons 1993,p. 131.
In fact, Yugoslavia (Serbiaand Montenegro)has kept on consideringitself,
and has acted as a Member of the United Nations, maintainingits
Permanent Missions in New York andGeneva, swampingthe Secretariat,
the Security Counciland the General Assembly withdocuments, many of
which have ben publishedas officialdocumentsof these bodies.
4.2.3.16 On his part, the SecretaryGeneralhas also kept ontreating Yugoslavia
(Serbia and Montenegro) asa StateMember. Following Resolution4711of
the General Assembly, the seat and nameplateof Yugoslavia
"...remain as before, but in Assemblybodies representatives
of the Federal Republicof Yugoslavia(Serbiaand
Montenegro)cannot sit behindthe sign "Yugoslavia".
Yugoslav missionsat United NationsHeadquarters and
offices may continueto functionand may receive and
circulate documents.At Headquarters, the Secretariat will
continue to fly the flag of the old Yugoslaviaas it is the last
flag of Yugoslaviaused by the Secretariat. The Resolution
does not take away the right of Yugoslaviato participatein
the work of organs other than Assemblybodies. The
admissionto the United Nationsof a new Yugoslaviaunder
Article 4 of the Charter will terminatethe situationcreated
by Resolution4711 " [A1471485 - see 1.C.J.Reports1993,
pp. 13-14].
4.2.3.17 While, in the opinionof Bosniaand Herzegovina, Yugoslavia(Serbia and
Montenegro)has no right to continuedmembershipand shouldapply to
membershiplike:all other successorStatesto the former S.F.R.Y., the
internationalcommunityhas acceptedthis situation. Yugoslavia(Serbia and
- 173 - Montenegro) may notusurp the seatof the former S.F.R.Y. in the United
Nations and, at one and the same time, deny that it is bound by the
Charter.
4.2.3.18 Although the decisiontaken by the GeneralAssemblyin its Resolution
4711,does not refer expresslyto Article5 of the Charter, the present legal
situation of Yugoslavia(Serbiaand Montenegro)is that of "a member of
the United Nations againstwhichpreventiveand enforcement action has
been taken by the Security Council[andwhich has been]suspended from
the exercise of the rights and privilegesof membershipby the General
Assembly upon the recommendationof the SecurityCouncil". Such a
situation has nobearingon the obligationsof this State, deriving from the
Charter and the Statuteof the Court.
4.2.3.19 This consequenceis aclaiowledgedby Professor ROSENNE,who writes
that suspension under Article5 of the Charter
"...is limitedto suspensionfrom the rights and privileges of
membership,and the State concemedremains a memberof
the United Nationsfor ali otherpurposes, and is bound by its
obligationsunder the Charter andStatute. Action under this
provision could,for example, deprivea State of its right to
instituteproceedings in the Court,withoutaffectingits
obligationsshouldproceedingsbe introducedagainstit" [op.
cit. para. 4.2.1.15, p. 2771.
4.2.3.20 In any event, the Governmentof Bosniaand Herzegovinamaintainsthat
membership ofthe Charter on the one handand of the Statuteon the other,
are not interrelated questionsand that, evenif Yugoslavia(Serbia and
Montenegro) were not a Party to the Charter, it would remain bound bythe
Statute of the Court.4.2.3.21 It must be kept iri mind, in particular, that
i) "A State which is not a Member ofthe United Nations may become
a party to the Statuteof the International Courtof Justice ..."
[Article93, paragraph 2, of the Charter]; and that
ii) conditionsfor amendmentlaid down by the Charter [Articles 108
and 109, paragraph 21and by the Statute [Articles69 and 701are
not exactly identical.
This shows that they are, in fact, different legal instruments.
Itcanbe noted that severalauthonties, in view of these facts, have pointed
out that withdrawalor expulsion fromthe United Nationsdoes not imply
that the concemed Stateceases being bound by the Statute. Thus, Hans
KELSEN wrote that:
"...the Statuteof the InternationalCourt of Justice, although
an integralpart of the Charter, is neverthelessa relatively
independent instrument.It is subjectto amendment
procedure not identicalwith that toCharter. It is especially
the fact that membershipin the communityconstitutedby the
Statuteis possiblewithout membershipin the "United
Nations" which makesthe interpretationpossible thata
Member of the United Nationsmay withdraw fromthe
judicial community onlyor from the United Nations (in the
narrower sense), remaininga party to the Statute. That it
may become party to the Statuteafter having withdrawn
from the United Nationscannotbe doubted. If the right of
withdrawalis considered tobe a consequenceof the
Member's sovereignty,it is hardlypossibleto deny that a
state may restrict the exerciseof this right to any extent it
likes". [HansKELSEN,TheLawofthe United Ndons,
London, 1951,p. 134 ; see. also ShabtaiROSENNE The
Zntem'onal Couro tfJustice, 1957,p. 227 ; the latter
author expressed later a contrary view; see op. cil. para.
4.2.1.15, pp. 276-2771.4.2.3.23 It may probably be admittedthat a State may withdraw fromthe Statute
either simultaneouslywith a withdrawal fromthe United Nations. But there
is no automaticityin this respect and, in the presentcase, Yugoslavia
(Serbia and Montenegro)not only has notwithdrawn fromthe Court's
Statutebut, on the contrary, it has proclaimedthat it will abide by al1the
international commitmentsby the formerS.F.R. AY. ong these
commitments wherethoseresultingfrom the Statute.
4.2.3.24 It cantherefore be concluded that
i) Yugoslavia (Serbiaand Montenegro),whether or not it is a Member
of the United Nations,is a Party to the Statuteof the Court and
bound by al1legal obligationsderivingtherefrom ; but that,
ii) in anyevent, the statusof the RespondentState with regard to the
Statutehas no effecton thejurisdictionof the Court in relation to
Article IX of the Genocide Conventionof 1948.
Section4.2.4
Thescopeof thejurisdictionof the Court done materiue
While Yugoslavia (Serbiaand Montenegro)has never denied that it is a
Party to the GenocideConventionand has acceptedthe Court'sjurisdiction
on the basis of Article IX of this Convention[seeparas. 4.2.2.2 et seq.], it
has insisted that it was "preparedto continueto litigate the case "within the
limits of thejurisdiction as [it] understand[s]it" [seeC.R. 93/13, p. 541,
that is to say: in the frameworkof "whatis strictly stipulatedin the
Convention itself' [seid, p. 16and see above, para. 4.2.2.31.4.2.4.2 It is not questionable thatthe Court'sjurisdiction is based onthe consent of
States but
"The requirementof consent cannotbe allowedto degenerate
into a negationof consentor, what is the same thing, into a
requirementof double consent,namely, of confirmationof
consent already given" IIC J., CaseConcerning thA eerial
Incidentof 27July1955, Joint dissentingopinion by Judges
Sir Hersch LAUTERPACHT,WellingtonKooand Sir Percy
SPENDER, 1.C.J. Reports1959,p. 1871.
In other words, in the present case, Yugoslavia(Serbiaand Montenegro)
has consentedto the Court'sjurisdictionas a Party to the Genocide
Conventionand it may not, in the courseof the proceedings, make its
consent -and, consequently,the Court's jurisdiction -dependent on special
rules of interpretation.
4.2.4.3 Article M of the 1948 Conventionis a clear basis for thejurisdiction of the
Court; it must be interpretedneither "strictly"nor "widely", but in
conformitywith the usualrules of interpretationof treaties. In particular, in
case of doubt, regarding clauses conferringjurisdiction
"...the Court must,if it doesnot involvedoing violence to
their tem.s, be construedin a mannerenablingthe clauses
themselvesto have appropriate effects"[P.C.I.J., Order of
19 August 1992, FreeZonescase, Series A, n022, p. 13; see
also I.C.J. Reports1949, p. 241.
The Court'sjurisdiction cannotbe frustratedby unilateral restrictive
interpretationsgiven by one of the Parties. On the other hand, the
Applicant State
"...must establisha reasonableconnectionbetween the
treaty and the claimssubmitted tothe Court" [I.C.J.,
Judgementof 26 November 1984, CaseconcerningMilitary
andParamilitaryActivitiesinandagainstNicaragua
(Jurisdictionof the CourtandAdmissibilityof the
Application),I.C.J. Reports1984,p. 423.According to Article IX of the Conventionon the Preventionand
Punishmentof the Crimeof Genocide,
"Disputesbetweenthe ContractingParties relating to
interpretation, applicationor fulfilmentof the present
Convention,including those relating to theresponsibilityof a
State for genocideor for any of the other acts enumerated in
Article III (3), shallbe submitted tothe International Court
of Justiceat the request of anyof the partiesto the dispute".
It is evident from SectionIV of the Applicationmadeby the Republic of
Bosnia andHerzegovinathat the breachesby the RespondentState of its
obligationsunder the Genocide Convention andits responsibility deriving
therefrom werearnongthe main submissionsmadeby Bosnia and
Herzegovina. They are the substanceof points (a) and (q) of the
Applicationand many other submissionsare related tothem, as will be
demonstratedbelow. Moreover, as explainedin Chapter 1 of the present
Memorial, Bosnia andHerzegovinahas lirnitedits subrnissionsto points
having a "reasonableconnection" with the GenocideConvention, subjectto
the formal reservationthat it may take for granted that Yugoslavia(Serbia
and Montenegro)has acceptedthe Court'sjurisdiction on the basis of
Article IX of this Convention.
It is, therefore, self-evidentthat thisprovisionoffers a clear basis for the
jurisdiction of the Court in the present case.
Moreover, in its Order of 8 April 1993and 13September 1993,the Court
has found that
"...Article IX of the Genocide Convention,to which both
Bosnia-Herzegovinaand Yugoslavia (Serbiaand
Montenegro)are parties, (..) appearsto the Court to afford
a basis on whichthejurisdictionof the Court mightbe founded tothe extent that the subject-matterof the dispute
relates to "theinterpretation,applicationor fulfilment"of the
Convention, includingdisputes "relatingto the responsibility
of a State for genocideor for any of the other acts
enumeratedin article III" of the Convention" [I.C.J. Reports
1993, p. 16 andp. 338; see alsopp. 14and 3421.
4.2.4.8 Bosnia and Herzegovinadoes not dispute that, asfar asthe title of
jurisdiction constitutedby the Genocide Conventionis concerned, the
subject-matterof the dispute must berelated tothe Conventionand to the
responsibilityderiving from breachesof this instrument.But, thus,
conceived, this basis ofjurisdiction is broader than it might seem at first
sight and certainly muchbroader than Yugoslavia(Serbiaand Montenegro)
sees it [seee.g. its Observationsof 23 August 1993,p. 151.
4.2.4.9 Firstly, genocide asembodiedin the 1948Conventionmust be envisagedin
a broad senseas is apparent from thetravauxpréparatoiresand derives
from the intents of the drafters and the ContractingParties. This will be
elaborated in Chapter5 hereafter.
4.2.4.10 Secondly, if there canbe no doubt thatthe Court hasjurisdiction regarding
the crime of genocide perpetratedby the RespondentState, its agents and
its surrogates and ail other wrongfulacts enumeratedin Article III of the
Convention, it aiso hasjurisdiction with respect tothe consequencesof
such crimes. This is clearly impliedby the reasoningof the Court in
paragraph 42of its secondOrder of 13 September 1993.In this paragraph,
the Court explainedthat is was unableto accept, for the purpose of a
request for the indicationof provisionalmeasures, "...that a "partitionand dismemberment" ,or annexationof
a sovereign State, could in itself constitaneact of genocide
..."[I.C.J. Reports1993,p. 3451.
But, at the sarnetime, the Court makesplain thatit is competentto deal
with sucha "partitionand dismemberment", annexationor incorporationas
far as it is a consequenceof genocide[id.,pp. 345-3461.It is the
Applicant'scontentionthat this is the case and that the partitionand
dismemberrnent ofBosniaand Herzegovina andincorporationof large parts
of this sovereignState in its own territory are the purpose and aim pursued
by the RespondentState, and are thereforeillegal consequencesof the
crime of genocide. Similarly,Bosniaand Herzegovinais entitled to oppose
genocide by al1possiblemeansin the frameworkof its inherent right of
self-defenseand to benefit from the help and humanitarianassistanceof
other Statesand of the internationalcommunity.
4.2.4.11 Thirdly, in the same spirit, "it must be borne in mindthat the activities
which mayprima faci eppear not to fallwithin" categoriesof conducts
listed in Article III of the 1948 Convention "mayin tmth do so if such
conduct canin fact be shownto cause, or contributeto, with sufficient
directness, genocideor genocidalactivity" [Separateûpinion of Judge
LAUTERPACHT, I.C.J. Reports1993,p. 4131.It is, in effect, clear that
al1acts of Yugoslavia (Serbiaand Montenegro)which concur to comrnitting
genocide fa11into the Court'sjurisdiction on the basis of Article IX of the
Genocide Convention;that clause givesjurisdictionto the Court over
disputesrelating to the "fulfilmentnof the Convention; consequently,al1
acts concurring to the perpetrationof the crime of genocidefall into the
Court'sjurisdiction.Thus, for exarnple,breachesof the laws of war or
illegal use of force by the RespondentState mightbe, as such, outside the
Court'sjurisdiction asprovidedfor in the Convention, butif and insofar as they have been accomplishedin a view to commitgenocide, they fall into
itsjurisdiction. As will bedemonstratedin Chapters 5 and 6 below, this is
indeed the case.
As this Court recognizedin its 1951 Advisory Opinionrelating to
Reservationsto the Conventionon the preventionand punishmentof the
crime of genocide:
"The Conventionwas manifestly adoptedfor a purely
humanitarianand civilizingpurpose. It is indeed difficult to
imaginea convention thatmight havethis dual character to a
greater degree, sinceits objecton the one hand is to
safeguardthe very existenceof certain human groups and on
the other to confirmand endorsethe most elementary
principles of morality.In sucha conventionthe contracting
Statesdo not have anyinterests of their own; they merely
have, one and all,a commoninterest, namely, the
accomplishmentof thosehigh purposeswhich are the raison
d'êtreof the convention.Consequently,in a conventionof
thistype one cannotspeak of individualadvantagesor
disadvantagesto States, or of the maintenanceof a perfect
contractualbalancebetweenrights and duties. The high
ideals which inspiredthe Conventionprovide, by virtue of
the common willof the parties, the foundationand masures
of al1its provisions" [I.C.J. Reports1951,p. 231.
4.2.4.13 Bosnia andHerzegovina willshowin more detail below (Chapter 5) that
genocide is an international wrongful act and,more specifically,a crime
against the peace and securityof mankindprohibited by a peremptory norm
of general internationallaw (jucsogens).This is clearly an obligationerga
omnes as was expresslyadmittedby the Court in the Caseconcerningthe
BarcelonaTraction,LightandPowerCompany,Ltd. (NewApplication -
SecondPhase): "Suchobligationsderive, for exarnple,in contemporary
internationallaw, from the outlawingof acts of aggression,
and of genocide, and aiso from the principlesand rules
concerningthe basic rightsof the human person, including
protection from slaveryand racial discrimination. Someof
the corresponding rightsof protection haveentered into the
body of general internationallaw [Reservations to the
Convention on thePrevention andPunishmeno tfthe Crime
of Genocide,AdvisoryOpinion;I.C.J. Reports1951,p. 231;
others are conferred by international instrumentsof a
universal or quasi-universal character"[IC.J. Reports1970,
p.321.
4.2.4.14 This findinghas importantconsequencesconcerningthejurisdiction of the
Court since:
"[Aln essentiai distinctionshouldbe drawn between the
obligationsof a State towardsthe internationalcommunityas
a whole, and those arising vis-à-visanother State inthe field
of diplomatic protection.By their very nature the former are
the concem of all States. In viewof the importanceof the
rights involved, al1Statescanbe heldto have a legal interest
in their protectio..." [id1.
4.2.4.15 In other words, this meansthat anyStatehas a "legalinterest" in suinga
Statecommittinggenocide(providedthere exists a jurisdictional link
between the two litigant States),whether the victimsof the genocideare its
own citizensor not and whereverthe crime is committed. In the present
case, this impliesthat Bosniaand Herzegovina could evensue Yugoslavia
(Serbia and Montenegro)withouthaving toprove that the victimsare
Bosnian and even ifthe acts of genocideare committedon the temtory of
third Statesor on the RespondentState'stemtory itself, serving to illustrate
the importanceof the Conventionand its provisions.4.2.4.16 Ittherefore appears that:
i) Article IX of the Genocide Conventionconstitutesa proper basis for
thejuridiction of the Court in the present case;
this Article aswell asthe other relevant provisionsof the
ii)
Conventionmust beinterpretedaccordingto the usual rules of
interpretationof treaties;
iii) the Court:hasjurisdiction to decideon al1aspects of the dispute
which have a reasonableconnectionwith the Genocide Convention
and, in particular, on al1submissionsrelating to acts of the
RespondentState which were used as meansto commit, andlor aid
in the commissionof genocideand to al1consequencesof such acts;
Genocidebeing a crime under internationallaw, Bosnia and
iv)
Herzegovina has a legal interest and right to sue Yugoslavia(Serbia
and Montenegro) for al1acts of genocideor assimilated conduct.
CHAPTER4.3
ADMBSIBILITYOF THEAPPLICATION
4.3.0.1 The RespondentState has not directlychallengedthe admissibilityof the
Applicationmade by Bosnia andHerzegovina. However,on several
occasions it has insinuatedthat there could exist someproblems in this
respect. Yugoslaviahas hintedat two differentpoints: fustiy it seems to
dege that the Court shouldavoid exercisingitsjuridiction since other
organs of the United Nationsare dealingwith the dispute; second, it claims
that the dispute has exclusively aninternalcharacter. There is not the
slightest groundfor either one of these allegations. Section4.3.1
Irrelevanceof the activitiesof otherU.N. organsin respectof the
presentcase
On several occasionsduring the proceedingsconceming the requestsfor the
indicationof provisionalmeasures, the Respondent State raised some
objections based on the fact that the SecurityCouncilwas seized of the case
on the basis of Chapter VI1of the Charter of the United Nations.As the
COU^ noted in its first Order,
"...Yugoslaviahas drawn attentionto the numerous
Resolutionsadoptedby the United NationsSecurity Council
concerning the situation in the former Yugoslaviaa ,nd to the
fact that in that respectthe SecurityCouncilhas taken
decisionson the basisof Article25 of the Charter, and has
indicated expresslythat it is actingunder Chapter VI1of the
Charter (..)Yugoslaviacontendsthat so long as the Security
Councilis acting in accordance with Article 25 and under
that Chapter, "it wouldbe prematureand inappropriatefor
the Court to indicateprovisionalmeasures, and certainly
provisional measuresof the typewhich have been requestedn
[I.C.J.Reports1993,pp. 18 - 19 - seealso statementsby
Professor ROSENNE, 2 Apnl 1993,CR 93/13, pp. 19, 23
or 53; and the Observationsof Yugoslavia(Serbiaand
Montenegro)of 9 August 1993,p. 131.
Although at least on one occasion, Yugoslavia(Serbiaand Montenegro)
expressly mentioned that"The SecurityCouncil remains actively seizedof
the whole question raised in the Applicationinstitutingthese proceedings
and in the Request for the indicationof provisional measures"[CR 93/13,
p. 191,it is not clear whether thisobjectionwas limited tothe provisional
measures requestedby Bosniaand Herzegovinaor if it was also supposed
to be valid as regard the Applicationitself.4.3.1.3 In any event, as the Courtrecailedin its Order of 8 April 1993,
"...while there is in the Charter "a provision for a clear
demarcationof functionsbetweenthe General Assemblyand
the Security Council,in respect of any disputeor situation,
that the former should notmake any recommendation with
regard to thatdisputeor situation unlessthe Security Council
so requires, there is no similar provision anywherein the
Charter with respect to the Security Counciland the Court.
The Councilhas functionsof a politicalnature assigned to it,
whereas the Court exercisespurelyjudicial functions. Both
organs can therefore perform their separatebut
complementaryfunctionswith respect tothe same events
[MilitaryandParamilitaryActivitiesin andagainst
Nicaragua(Nicaragua v. UnitedStatesofllmerica),
JurisdictionandAdmissibility, Judgment1.C J. Reports
1984,pp 434-435, para. 951"[I.C.J. Reports1993, p. 191.
4.3.1.4 This is a constantand well establishedjurisprudence of the Court [cJ
Judgment of 24 May 1980, CaseconcerningUnitedStatesDiplornaticand
ConsularSta# in Tehran,I.C.J. Reports1980, pp. 20-22 -see also Alain
PELLET,"Leglaive et la balance -Remarquessur le rôle de la C.1.J. en
matièrede maintiende la paix et de la sécuritéinternationale", in
Zntem'onal Law at a Timeof Perplexity -EssaysinHonourof Shabtai
Rosenne, 1989,pp 541-5501 andit must benoted that, contrary to the
RespondentState'sallegations [@ CR 93/13, p 231,in the Lockerbie case,
the fact that the SecurityCouncilwas acting on the basis of ChapterVI1of
the Charter has not preventedthe Courtfrom examining Requestsfor
provisional measures (evenif theywere rejected on other grounds) [Orders
of 14April 1992,I.C.J. Reports1992,p. 3 and p. 1141. Section4.3.2
The aiieged "internai"characterof the dispute
4.3.2.1 In several occasionsduring the previousproceedingsin this case,
Yugoslavia (Serbiaand Montenegro) insisted that"the situationwhich has
developed inBosniaand Herzegovinais a situationof civil war with al1
which thatentails" [Pleadingof ProfessorROSENNE, 2 April 1993, CR
93/13, p. 52; see also the statementmadeby Mr. ZIVKOVIC, id.,pp. 6-8
and Observationsof 9 August 1993,p. 111.
It is not clear if this insistenceis supposed,in the mindof the Respondent
State, to have any consequenceregardingthe admissibilityof the
Application. Inany event, it has none.
The question whetheror not Yugoslavia (Serbiaand Montenegro)is
involvedin the genocideperpetrated againstparts of the populationof
Bosnia and Herzegovina (asweli as againstMuslimpopulationof the
Respondent State itself)is preciselythe main substantialissue in this case.
It is the contentionof the Applicantthat Yugoslavia(Serbiaand
Montenegro)not only is involvedin these drarnaticevents, but also is at
their origin and that theauthoritiesof Belgradehave decided, organized
and directed and are organizingand directingthe sharnefulpolicy of
genocidal "ethniccleansing"with a view to achievingthe chimerical dream
of a "Great Serbia" by meansof aggression.The submissionmade in the
Application, and (conditionally)restrictedin the present Mernorial, requests
from the Court a Judgmentdeclaringthe responsibility ofthe Respondent
State for these internationallywrongfulacts and decidingthat
reparationlrestitutionis due for the damagesthese acts have caused.4.3.2.4 It must be added thatgenocideand other related wrongful acts which have
ben committedby Yugoslavia(Serbiaand Montenegro) accordingto the
Governmentof Bosniaand Herzegovinaamount to international crimes - in
the senseinternationallaw gives to thisexpression(seePart 5 below). This
follows clearly from Article 19 of the Draft Articles of the International
Law Commissiori (I.L.C.)on StateResponsibility, accordingto which
"An internationallywrongful actwhich results from the
breach by a Stateof an international obligation so essential
for the protectionof fundamentalinterests of the international
communitythat its breach is recognizedas a crime by that
communityas a wholeconstitutesan internationalcrime"
[paragraph21.
Among these crimes, paragraph 3 of draft Article 19lists
- aggression,
- "a seriousbreach of aninternational obligationof essential
importancefor safeguardingthe right of self-determinationof
peoples", or
- "a seriousbreach on a widespreadscaleof an international
obligationof essential importancefor safeguardingthe human being,
such as thoseprohibiting slavery, genocideand apartheid", ailof
which areat stakein the present case either directly (genocide)or
because they havebeen a consequenceor a means of genocide.
These crimes are internationalby essence.
4.3.2.5 At least two main conclusionscanbe drawn from the above considerations:
first, the disputebroughtbefore the Courtby the Application of20 March
1993, is, undisputablyinternational;and, second, if the RespondentState
were to deny suchan obviousfact, the argumentcould notbe held to be of
a preliminary character; it is so evidentlyindissociable fromthe substance
of the casethat the Court wouldcertainlyhave no other choice than to "... find that the objectionis so related tothe merits, or to questionsof fact or
law touchingthe merits, that it cannotbe considered separately without
going into the merits"P.C.J., Judgmentof 24 July 1964, Caseconcerning
theBarcelonaTractionLightandPowerCompany,Ltd, Preliminary
Objections,I.C.J. Reports1964,p. 431.
CHAPTEX4.4
CONCLUSIONS
It is respectfullysubmitted thatboth litigant Statesare Parties to the
Genocide Convention,of whichArticle M provides a proper basis of
jurisdiction and that no objectionmay, seriously, beraised against the
admissibilityof the Application.
4.4.0.2 However, it must be admittedthat, in limiting itselfto this basis of
jurisdiction, the Govemmentof Bosnia andHerzegovinahas limited the
scope of its Application(the formal submissionshave, consequently,been
modified).
Once again it wishes tomakeclear that it is still convinced thatthere exist
other valid tiîies of jurisdictionbut that, in view of the special
circumstancesand the urgenceof the case, it has decidedto focus on
ArticleIX of the Genocide Conventionwhichhas been acceptedas a valid
title of jurisdiction by the RespondentState. If Yugoslavia(Serbiaand
Montenegro) does not reconsiderits acceptance -which, in any event, it is
not entitled to d- Bosniaand Herzegovinawill confine itselfto the
matters related to the Genocide Conventionduring the following phasesoftheproceedings;'butif theRespondent Stateraisespreliminary objections,
the Governmeno tf BosniaandHerzegovinareservesits rights toinvokeal1
otherexistingtitlesofjurisdiction. PART5
THE ACTSPERPETLQATE CDONSTITUTEGENOCIDE
AND ITS COROLLARIES
CHAPTER5.1
THE CONVENTION'SANTECEDENTSAND SPIRIT
Section5.1.1
An offencjusgenîîum
5.1.1.1 Genocideis a crime whichis definedin the 1948 Genocide Convention
[ConventiononthePreventionandhrnishmemof the Crimeof Genocide,
G.A. Res. 260(III)of 9 December1948.78 U.N.T.S. 2773.Although
Articl1of that Conventionbindsthe "ContractingPato preventor
to punish" this "crimeunderinternation"lgenocidehad already
been specifiedin the indictmentof 8 October 1945 against major German
war criminals [Trialof theMajorWarCriminalsbeforetheZnternational
MilitaryTribunal,Nuremberg, 14November 19-51October 1946,
Nuremberg, 1947,vol.,pp. 43-44].Moreover, a unanimous1946
General Assemblyresolution "affirms that gena crime under
internationallaw...for the commissionof whichprincipalsand
accomplices..re punishable"[Resolutiononthe Crimeof Genocide,G.A.
Res. 96(I) of 11December 19461.5.1.1.2 This point is reiterated in G.A. Res.180(II)in whichthe expression "crime
against mankind" is used both to emphasizethe global recognitionthat such
activity is violativeof the most basic provisionsof the internationalcanon
and also to signalthat genocideis not confined, aswas thejudgment
pronounced at Nuremberg, to wartimecrimes againstthe peace and
security of mankind. [Thispeace and securitycategory of offences the
InternationalLaw Commissionwould later be called upon to codiQ. See
ECOSOC Ad Hoc Committeeon Genocide(hereinafter, Ad Hoc Cttee),
Report of the Committeeand Drafi Convention,E1974,24 May 1948,p.
5.1.1.3 The 1946 resolution,in its deliberatechoiceof the term "affirms," intended
to signifybeyond doubt thatgenocidewas already recognizedas a crime
jus gentiwn. [According tothe InstitutesofJustinianI,2,l, jus gentiumis
"that law which natural reason has establishedarnongal1men, thatwhich is
especially regardedby dl. "1 By 1948,even before the Conventionhad
been endorsed by the General Assembly andopenedfor signatureand
ratification, the internationalcommunitythus had spoken unambiguously to
assert that genocidewas the quintessential instanceof an act in violationof
the law, obedienceto which is recognizedby al1as sine qua nonof
membershipin the civilized communityof Statesand peoples.
That genocidehas sucha specialstatusis manifestin the revulsionfelt
5.1.1.4
throughout the world, especially--but by no means solely -- as a result of
the activitiesof Hitler's minions. Thisas been recognizedby the
International Courtof Justice. Inits 1950 advisoryopinion on reservations
to the Genocide Convention, the Courtsaid, "the principlesunderlyingthe
Conventionare principleswhich are recognizedby civilized nationsas binding on States, even withoutany conventional obligation"[Reservations
tu the Convention onGenocide,AdvisoryOpinion: I.C.J. Reports 1951,p.
15at 231.
5.1.1.5 The purpose of the 1948 Convention,therefore, was not to create a new
crime but: 1) todefine more preciselya binding set of legal obligationson
Statesand individuals;2) to provide the legal processby which those
obligationsand prohibitionscould beenforcedagainstpersons; and 3) to
ensure that disputesbetweenStatesregarding their responsibilitiesunder the
Conventioncould be resolvedby recourse to the InternationalCourt of
Justice.
Section5.1.2
Purposesand principlesof the Genocide Convention
5.1.2.1 These purposes, as Bosniaand Herzegovinawill demonstrate, are evident
from the Convention'stext and the travauxpreparatoires, as well as by
subsequentusage.
5.1.2.2 At the outset, however, it is usefulto understandthe spirit of the
Convention.This is clarified by theseprefatory wordsof the I.C.J.'s 1950
AdvisoryOpinion: "The origins and character of that Convention,the
objects pursued by the GeneralAssembly andthe contractingparties, the
relations which exist betweenthe provisionsof the Convention,inter se,
and betweenthose provisionsand these objects, fumish elementsof
interpretationof the will of the GeneralAssemblyand the parties. The
origins of the Conventionshowthat it was the intentionof the UnitedNations to condemnand punishgenocideas 'a crime under international
law' involvinga denial of the right of existenceof entire human groups, a
denial which shocksthe conscienceof mankindand results in great losses
to humanity, and which is contrary to moral law andto the spirit and aims
of the United Nations.. ."[id. at 231.
Continuing, this Court statedthat the "objectsof sucha conventionmust
alsobe considered. The Conventionwas manifestlyadopted for a purely
humanitarianand civilizingpurpose. It is indeeddifficultto imaginea
convention thatmighthave this dual characterto a greater degree, since its
object on the one hand is to safeguardthe very existence of certainhuman
groups and on the other to confirmand endorsethe most elementary
principles of morality.. .Thehigh idealswhich inspiredthe Convention
provide, by virtue of the commonwill of the parties, the foundationand
measure of al1its provisionn[id.].
Any effort to interpret the Conventionin the spirit of the drafters and with
their objectivesin mind requiresrecourse to the travauxpreparatoires. The
International Court, in its 1950ReservationOpinionhas aiready made clear
the relevance of the travauxand legislative history.For example, the Court
in thatcase had observedthat, although theGenocide Conventionhad been
adopted unanimouslyby the General Assemblyin plenary session, it "is
nevertheless the result of a series of majority votes-- which may make it
necessary for certain Statesto make reservations" [Reservations,Advisory
Opinion, id. p. 911.Moreover, althoughthe Conventionitself saysnothing
about reservations, the Court satisfieditself from the travaux "thatan
undertakingwas reached withinthe GeneralAssembly onthe right to make
reservations and that it is permittedto concludetherefrom that States, becomingparties to the Convention, gave theirassent thereto" [id. p. 911.
As the Court pointedout in the AdvisoryOpinion on the Genocide
Convention, ininterpretinga treatyso fraught with history and public
policy, recourse to travauxand legislativehistory is an invaluabletool in
understandingthe meaningof bare words.
5.1.2.5 With those importantstricturesin mind --that the Convention codifiespre-
existing law and that this codificatmustbe read in the light ofthe high
principles andclear moral objectiveof the drafters and ratifiers of the-text
- the applicantnow tums to examine the provisionsof the Convention
which form the legal basis for the allegationof the Republicof Bosnia and
Herzegovina. Bosnia andHenegovina submits that theFederal Republic of
Yugoslavia (Serbia and Montenegro)is in gross violation ofits most
solemn obligationsunder the Genocide Convention. Specifically,the
Republicof Bosnia andHerzegovina alleges thatthe Federal Republic of
Yugoslavia (Serbia and Montenegro)has committed genocideand, with
complicity, has failedto prevent, hasincitedto, andas assistedthe
committingof genocide, andhas failedto punishpersons who have
committed, or aided the committingof, these prohibited acts.
CHAPTER5.2
THECONVENTION'S COVERAGE
Section5.2.1
Whatthe 1948Conventionprohibits(Offences)
5.2.1.1 ArticleIIIof the Conventionmakesunlawfulthe followingacts: "(a) Genocide;
@) Conspiracyto commitgenocide;
(c) Direct and public incitement to commit
genocide;
(d) Attemptto commitgenocide;
(e) Complicityin genocide."
5.2.1.2 Bosnia and Herzegovinawill demonstratethat al1of these acts occumng in
its territory [se SIRES1820of 17April 1993which reaffirmed "the
sovereignty,tenitorid integrityand political independenceof the Republic
of Bosnia and Herzegovina"]have ben committed, are still being
committedand ought to have been prevented, stoppedand punishedby the
Federal Republicof Yugoslavia(Serbiaand Montenegro). phe territorial
integrity and independenceof Bosniaand Herzegovinais reaffirmed in
Security CouncilResolution820 of 17April 1993.1
Genocideis definedin ArticleII as
"any of the foliowingacts committedwith intent to destroy,
in wholeor in part, a national, ethnical, racial or religious
group, as such:
(a) Killingmembersof the group;
(b) Causingseriousbodilyor mental harm to
membersof the group;
(c) Deliberatelyinflictingon the group conditionsof life
calculated tobring about its physical destructionin
whole or in part;
(d) Imposingmasures intendedto prevent births
withinthe group;
Forcibly transfemng childrenof the group to another
(e)
group. "
The definitionof Genocidein the Conventionprecisely describes the events
in Bosnia and Herzegovina today.As is set forth in Part 2 (Chapter2.2),according to reliable first-handreports of observers on behalf of expert and
impartial intergovemmentaland nongovemmentalorganizations, hundreds
of thousandsof persons have been killed, tortured,rape dnd have been
victimizedby inflictingon them conditionsof life calculatedto bring about
the physical destructionin wholeor in part of the groups (ethnic, racial or
religious) to which they belong.Thisis not random mayhem. As indicated
in Part3, the SpecialRapporteurof the U.N. Commissionon Human
Rights, Mr. TadeuszMazowiecki,has reported that non-Serbsare by far
the bulk of those being beaten, robbed, rapedand forced to flee and that
this is "undoubtedlyrelated to the politicalobjectives formulatedand
pursued by Serbiannationalists.." [A/47/666; Sl24809, 17November
1992, Annex, p. 61.The GeneralAssemblyhas registered its horror at the
"widespread rapeand abuse of womenand children" and "in particular its
systematicuse againstthe Muslimwomenand children in Bosnia and
Herzegovinaby Serbian forces.. ." [GeneralAssemblyResolution481143of
20 December 19931.Pnmarily the Muslimbut also the Croat populationof
Bosnia andHerzegovinahavebeen the victims of this deliberate carnpaign.
This is no coincidence: the victimsare selectedon the basis of their
religion,ethnicityor group identity.
Nor are these the acts of ordinary individualcriminals. From the report of
the Committeeon the Eliminationof RacialDiscrimination,it is evident
that "links existedbetweenthe FederalRepublicof Yugoslavia (Serbiaand
Montenegro) and Serbianmilitiasand pararnilitarygroups responsible for
massive, grossand systematicviolationsof human rights in Bosnia and
Herzegovina.. ." [GAOR,48th Sess., Supp. No. 18 (Al481181.From the
General Assemblyof the United Nations, in December, 1993, has cornean
unqualifiedcondemnationof "continuedviolationof the internationalborder" of Bosniaand Herzegovina "by Serbianforces" [G.A. Res.
A148148of 20 December 1993, para. 41and the conclusion,by consensus,
that the "principalvictims" of thearbitrary detentions, summary
executions, rape and torture "are the Muslimpopulationthreatenedwith
virtual extermination.." [G.A. Res. Al481153 of20 December 1993,
prearnble]. The General Assemblyalso concludedthat these horrendous
acts are "tactics" used "as a matter of policy" [id. para. 61.By whom?
The Generai Assembly, alsoby consensus,concludedthat, while there
were violationsby others, "the leadershipin temtory under the control of
Serbs" in Bosnia and Herzegovina, "the commandersof Serb paramilitary
forces and political and militaryleadersin the Federai Republicof
Yugoslavia (Serbiaand Montenegro) bearprimary responsibilityfor most
of these violations" [id. para. 41.Thus the SpecialRapporteur of the U.N.
Commissionon Human Rights [seeElCN.411992lS-119,28 August 1992
et. seq.], the Sub-Commissionon the Preventionof Discriminationand
Protection of Minorities [seeRes. 19921103 of13August 19921,the
Commissionon Human Rights [seeRes. 19921s-1/11,and the General
Assembly have al1concluded thatacts arnountingto genocidehave been
and are being committed,with the vast preponderanceof responsibility
being attributable to Serb forces. Indeed, in Resolution471121of 18
December 1992, the Assemblyconcluded that these acts constitute "a form
of genocide." Likewise, the Commissionof Experts establishedby the
Security Council foundthat "suchacts could also fall within the meaningof
the Genocide Convention" [S/25274,para. 561.Again, in 1994the Generai
Assembly was able to reach the conclusionnot only thatrape of Muslim
women was being used as an "instrumentof ethnic cleansing"but that "the
abhorrent policy of 'ethniccleansing'was a form of genocide"
[A/RES/48/143, preambleand para. 21.These conclusionsof law and fact, described at greater lengthin Part 3, are bound to be of great persuasive
power in this Court.
5.2.1.6 This Court is now being askedto give appliedmeaningto the solemn
purposeof the GenocideConvention.Fortunatelyfor this great task, most
of the terrns used in ArticleII to definegenocideare perfectly clear. There
is no need to trace the history of "killing"or "causingbodily or mental
hm" through the nationaljurisprudence of the drafting parties nor through
the travauxpreparatoires.There is no difficultyin connectingthose words
to the terrible reality of Bosniaand Herzegovina'sravishmentwhich Part 2
of this Memorial has summarized.The instantpart of the Memorial,
instead, will focus on a few more ambiguousterms and conceptsin the
Convention'sprohibitions asto which the travauxmay cast light.
Specifically,we shd seek to demonstrate:
1) who the drafters intended tomakeresponsiblefor designated
unlawfulacts;
what responsibility Statesassumedunder the
2)
Convention ;
3) what standardof proof is required -- civil or criminal?--in
litigationbased on State responsibility;
4) what is meantby ArticleII's terrn "destroy, in whole or in part";
and
what is the meaningof, and evidentiarystandardapplicableto, the
5)
Convention's ArticleII requirementthat acts must have been
"committedwith intent.. ." Section5.2.2
Whothe draftersintendedto makeresponsible
The Convention's prohibitionsand provisionsfor punishmentof violators
applies,under Article IV, to "persons"whether "constitutionally
responsible rulers, public officialsor private indiv"duals.
The Convention, however,does not envisageonly a need to address
individualviolators. Quitethe contrary. ArtiIXeexpressly foresees
another contingencyfirrnlyrooted in the drafters' recently endured history,
narnely: "responsibility ofa Statefor genocideor for any of the other acts
enumerated inArticle III."
Thus the Convention defmesgenocideand corollary offencesand
establishesthatthese offencesmaybe attributableto a broad range of
individuals, high and low, andalsoto States.When the delictis that of a
State, an "internationalwrong occurs wherean internationalperson acts in
violation oan internationallegai duty." [Jemings and Watts,
Oppenheim's InternationaLlaw, 9th ed., Vol. 1,part 1, p. 502, sec. 146
(1992).] The Republicof Bosniaand Herzegovina admitsthat the Federal
Republic of Yugoslavia(Serbiaand Montenegro)has "international
personality." It will demonstrate,with evidenceand law, that this
internationalperson has committed the wrongsdefinedby the Genocide
Convention.
That Convention defmesthe conductwhich constitutes thewrong it seeks to
prohibit.m, under ArticleIX, a State may be guilty of genocide if it, or its officiaisor agents, commitgenocideas definedin Article II, or any of
the concomitantacts, suchas incitement,enumeratedin Article III. Second,
a State may be guilty of a breach of a most solemnlegal obligationunder
the Convention's Articles1, IV, V and VI if it fails to employ the organs
and instrumentsof its dornesticjurisdiction to prohibit and prevent persons
from cornmittingacts of genocide. Third, a wrong is committedwhen a
State, in violationof its duty under Articles1and VI, fails to bnng to trial
and punishpersons who have committedany ofthe prohibited acts. In
other words, Statesare not merely enjoinednot to commitgenocidethrough
stated action, but they are activelyto prohibit and prevent such acts and to
punish those who perpetrate them.
5.2.2.5 That States have these responsibilitiesis clear on the face of the
Convention'stext, whichprovides, in Article IX, that "disputesregarding
these aspects of responsibility ofa Statefor genocideor for any of the
other acts enumeratedin Article III, shallbe submitted tothe International
Court of Justice at therequest of any of the parties to the dispute." It is
under this provisionthat the Republicof Bosnia andHerzegovinacharges
the Federal Republicof Yugoslavia (Serbia andMontenegro)with
cornmittingand abettinggenocide. It is also under this provision thatthe
Republic of Bosniaand Herzegovina chargesthe Federal Republicof
Yugoslavia (Serbiaand Montenegro)with grave failure --to use the
terminologyof Article IX ofthe Convention -- to secure the "applicationor
fulfillmentof the present Convention." Egregiously,they failed to prevent,
prosecute and punish, in accordancewith Articles1and IV to VI, the
perpetrators of the wrongs enumeratedin the Convention.The responsibilitywhich the Conventionattaches directly to States -- as
distinct from persons-- is no mere drafters' whim. On the contrary, the
phrase "the responsibilityof a Sîate for genocide orany of the other acts
enumerated in Article III" was the result of some of the most intense
discussionof any part of the Convention. Thephrase had not been included
in the Secretariat'sfirst draft, nor in the draft prepared by the Ad Hoc
Committeeof the Economicand Social Council [Ad Hoc Cttee, op. cit. p.
38 and asteriskfootnote].
Even during the drafting phase, however, thesixth Committeeof the
General Assemblyindicatedits interest in bringing States directlyto
account. General AssemblyResolution 180(II)declares "that genocide is an
internationalcrime entailingnationaland international responsibilityon the
part of individualsand States.. prearnble, op. cit; emphasis added].The
theme that Statesmust be madeaccountablewas taken up, again, when the
Ad Hoc Committee'sdraft was before the General Assembly'sSixth
Committee [G.A.O.R., 6th Cttee, SummaryRecords, 21 September-10
December 1948.Hereinafter, SixthCttee].There, the representativeof
Francenoted that "whetheras perpetrator or as accomplice, the
Government's responsibilitywas in al1cases implicated" [id at 1461.While
Franceand a number of other States at first preferred the creation an
international criminal tribunal to try offending regi[id p. 3391,a
different approach, offeredby Belgium,was ultimatelyadopte!. It took
into account thata world criminalcourt, authorizedto try States as weil as
individuals,rnightnot sooncome into being. Thus, the summaryrecord
States:"the Belgiandelegationhad thoughtit preferable to haverecourse to
an already existingcourt, the International Courtof Justice..ich. . could establish the non-fulfillment,by a State, of its obligationto punish the acts
enumerated..."[id p. 3381.
5.2.2.8 In this Belgiumwas supportedby the British, who, al1along, had stressed
as "the main issue...the responsibilityof States for acts of genocide
committedor toleratedby them" [id .. 7021.The SixthCommittee
adopted theBelgïan-British amendment towhat became Article IX only
after much deliberationand by a vote of 23 to 13, with 8 abstenti[id ..
4471.The words of the Britishrepresentative, Sir Gerald (later Judge)
Fitzmaurice, remain instructive:
"Whenit became clear that genocidewasbeing committed,
anyparty to the conventioncould refer the matter to the
International Courtof Justic..In accordancewith Article
94 of the Charter, Member States were legallybound to
comply with the decisionsof the InternationalCourt.
Furthermore, Article 94,paragraph 2 of the Charter
provided that if a State failed toperform the obligations
incumbentupon it under a judgment rendered by the Court,
the other party mighthave recourse to the Security Council.
The United Kingdomdelegationhad always taken into
account theenormouspractical difficultiesof bringing rulers
and heads of Statestojustice, exceptperhaps at the end of a
war. In time of peace it was virtuallyimpossibleto exercise
any effectiveinternationalor nationaljurisdictionover rulers
or heads of States. For that reason the United Kingdom
delegationhad felt thatprovision to refer acts of genocideto
the InternationalCourt of Justice, and the inclusionof the
idea of internationalresponsibilityof Statesor Governments,
was necessaryfor the establishmentof an effective
conventionon genocide." [id .. 4441
5.2.2.9 Thus, it is absolutely clearfrom the travauxthat the draft of Article IX was
deliberatelyamendedby the Assembly'sSixth Committeeto include in theConventiona specificprovision makingStates, in additionto individuals
and groups, liable for the prohibited acts.
Section 5.2.3
Whatresponsibilitythe Conventionimposes onStateParties
Of course, Statesare maderesponsibleby the Convention[ArticleIXJfor
acts such as "genocideor any ofthe other acts enumerated"in Articles II
and III. Additionally, Statesare liable for breach of the textualobligations
set out in Articles1, IV, V and VI. As Mr.Kaeckenbeeck,the Belgian
representative, expressedit, the effectof whatbecame Article IX was also
to give the I.C.J.jurisdiction to "establishthe non-fulfillment,by a State,
of its obligationto punish the acts enumerated.. ."[id. p. 3381.What are
these obligations?
Article 1obligesparties "to prevent and topunish" perpetrators of
genocide. A State'sfailureto prevent the commissionof acts of genocide
thus is actionableunder ArticleIX. Moreover, the duty to take preventive
measures within the competenceof the authonties is not confinedsolelyto
the territory within the sovereignjurisdiction of thoseauthoritiesbut
extends also to areas over which they exercisede facto control or where
they have the influenceto prevent -- or even merely tomake their best
effort to tryto prevent --the occurrenceof a human tragedy, especially
when that tragedyis, at leastin part, of those authorities'own making.
Other aspects of this abjectfailureof the Federal Republicof Yugoslavia
(Serbia and Montenegro)"to prevent and to punish" will bediscussedin
Part 5, below.5.2.3.3 A State's failure to preventand its failure to prosecutepersons for
violationsof the Conventionare wrongs under the Conventionquite
independentlyof whetheror not the Stateitself participatedin, or abetted
the commissionof those acts. The failureof the Federal Republic of
Yugoslavia (Serbiaand Montenegro) toconvicta single Serbian in
connectionwith the array of horrors set forth in Part 2 of this Memorial
shocks the consciencebut also establishesaprimafacie violation of the
duty, under Article VI ofthe Convention,to ensure that persons engaged in
the enumerated acts "shallbe punished"in accordancewith laws enactedby
States"to give effect to theprovisionsof the present Convention"[Article
VI. While Yugoslavia,as most other stateparties, has enacted such a law
Dnstituteof ComparativeLaw, Collectionof YugoslavLaw, vol. XI,
Criminal Code (Beograd: 1964)ch. 11, Art. 124,p. 75. Annex 5-11and,
incidentally, made it also applicableto "a citizen of Yugoslaviawhen he
commits abroada criminal offence" [Criminal Code, id. ch. 8, Art. 93, pp.
62-63], legislativeprohibitionof genocide isnot sufficient. Article VI of
the Convention alsorequires the States partiestoring allegedperpetrators
to trial in national courts. Moreover, Statesare required by Article IV to
see that persons "committinggenocideor any ofthe other acts enumerated
in Article III shall be punish.." It is brought to the Court'sattention
that, as far away from the sceneof the mage as the Federal Republicof
Germany, the authoritieshave tracked down and arrested a Serb, Dusko
Tadic, as a suspectin the commissionof torture and mutilationat the Serb
detention campof Omarska[TheNew York Times Feb. 16, 1994, p. A4].
The failure of the Federal Republicof Yugoslavia(Serbiaand Montenegro)
to show similar diligencein carrying out its obligationsconstitutesa
violation of the responsibilityof the Stateas envisagedby Article and
gives rise to a cause of actionbefore this Courtwhich is separate from theailegation that the Stateitself has participateddirectly or indirectly inthe
prohibited acts.
The Conventionmay thus be seen to impose thr ebligationson States:
1) not to engagein genocideor the corollary acts described inArticles
II and III of the Convention;
2) not tofail through negligence, lackof diligence, or sympathy with
perpetrators of the prohibitedacts, to do al1withinthe State'spower
to prevent thecommissionof genocideby anyone acting under the
authority, or withinthe dejure or defacto jurisdiction, of the State,
or subjectto the State's influenceor control, direct or indirect;
and
3) not to fail throughnegligence, lackof diligence, or sympathy with
perpetrators of the prohibitedacts, to bring them tojustice and,
thereby,deter further acts of genocideor related crimes.
The Republicof Bosniaand Herzegovina urgesthe Court, after close
examinationof the facts assertedin this Memorial, to concludeas a matter
of law that the Federal Republicof Yugoslavia(Serbiaand Montenegro)
has committedacts proscribedby the Convention,has failed in its duty to
prevent commissionof the proscribedacts and failed in its duty to bring to
justice persons under its controlor jurisdiction who have committedsuch
acts.
The State responsibility provisionsof the Conventionare perfectly clear
from the text. The Stateis prohibitedfrom engagingin any of the acts
enumeratedin ArticlesII and III. And the State has the responsibiiityto
investigate, bring to trial and prosecute personswho have committed
genocide, or conspired, incited, attemptedor engagedin complicityto commit genocide. The Republicof Bosniaand Herzegovina subrnitsthat the
Federal Republicof Yugoslavia(Serbiaand Montenegro)has itself
committed theenumeratedprohibitedacts, has failed to use due diligence to
prevent their commissionby the use of meansat its disposal --influence,
resources, etc.-- to preventpersons from committingsuch acts, and has
also patently failed in its duty to seekto apprehend, chargeand convict
those persons withinitsjurisdiction, or acting under its guidance, agency or
authonty, as to whom there is probable cause to believe that theymay have
committed prohibitedacts.
5.2.3.6 This third aspect of Stateresponsibility,too, was clearly envisagedby the
drafters of the Convention.As the Netherlands'representative said in the
debate of the SixthCommittee, the"responsibilityof States" amendment
proposed and approvedat that time as a new part of Article IX "envisaged
also the indirectresponsibilityof the State resulting from the leniencyof
national courtstowardsindividuals or groups guilty of genocide" [SUrth
Cttee, op. cit. p. 4351.
5.2.3.7 In December, 1993,the U.N. General Assembly urged"the authorities of
the Federal Republicof Yugoslavia(Serbiaand Montenegro)" to "use their
influence with the self-proclaimed Serbianauthoritiesin Bosniaand
Herzegovina" to end the terror of ethnic cleansing [G.A. Res. Al481153of
20 December 1993,para. 101.The Courtis asked toadopt the view of the
General Assembly thatthe authonties in Belgradehad such influence and to
conclude from the factsthat they failed to use it to dischargetheir
obligationsunder the Convention.It is for this Court to bnng the Federal Republicof Yugoslavia(Serbiaand
Montenegro) to account, to determine theent of its Govemment's
malfeasancesand wrongfulnonfeasances,and to afford reliefto the victim.
As is pointed out in the 9th editionof Oppenmopc.it. p. 994 (Vol. 1,
parts 2-4), se4341:"The International Courtof Justice is given
jurisdiction with regard to disputes relatingto the interpretation,
application, and fulfillmentof the Convention, including responsibilityof
the parties for acts of genocide." Beforethis Court, theRepublicof Bosnia
and Herzegovinathus asserts its right to relief both from the acts and the
omissionsof the Federal Republicof Yugoslavia(Serbiaand Montenegro)
which have made the populationof Bosniaand Herzegovinaendure the
very fate which the Conventionse& to banish forever.
CHAPTER 5.3
EVIDENCEANDINFERENCE: MODESOFPROOF UNDERTHE
CONVENTION
Section5.3.1
The facts and thLaw
It will be readily apparentfrom the recitalof facts in Part Two of this
Memorial thatthe grim realities of murder, rape,maiming, destructionand
terrorization of the Muslimpopulationof Bosnia andHerzegovina establish
a pattern of deliberateconductthat speaksfor itself. Iof genocide.
Various U.N. organs, commissionsand experts have heard this. This
Court, however, has a special responsibilityto weigh withous
prudence the evidence which,to a lay person, may make the case against the Federal Republicof Yugoslavia(Serbiaand Montenegro) seem self-
evident. Fortunately, the travauxof the Genocide Conventionmake quite
clear the applicablestandardof proof which the drafters thoughtto be
appropriate to theudicial weighingof evidence in casessuch as this one.
Section5.3.2
Civilor criminalaction?
5.3.2.1 A cursory examinationof the text canbe misleadingas to the applicable
rules of evidenceand onus of proof. Articl1 of the Genocide Convention
speaks of genocideas a "crimeunder internationallaw." For that matter,
the InternationalLaw Commission,in itswork on a Draft Code of
Offencesagainst the Peace and Securityof Mankind [Draft Codeof
Offencesagainst the Peace and Securityof Mankind, YB ILC(1954), vol.
2, pp. 149-52,and id. (1982-present)], hasalso proposed to treat genocide
as one of the categones ofcrimes the Codeshouldcover. This cancause
misunderstanding, becausethe present actionis not criminal in nature and
does not involve criminalprocedureor rules of evidenceand proof. The
Genocide Convention,in describinggenocide as"a crime in international
law" does so for a limited, specificpurpose: to assert that States, in
ratifjmg the Convention, "undertaketo prevent and to punish" the srsons
who commit such crimes. This provisiondoes not purport to cnminalize
violations committedby Statesagainstother States. The Draft Code, too, is
directed towards criminalproceedingsto punishviolationsother than those
committedby and against States.At present, this limitationis inescapable.
As is observed by the Nintheditionof Oppenheim'sInternational Law,"Thereis no tribunalwith appropriate internationalcriminaljurisdiction
over states" [op. cit. p. 535 (Vol.1,part l), sec. 1571.
A criminal prosecution normallyrequires the Courtor jury to be convinced
beyond a reasonable doubtthat the accusedhas committedthe alleged
crime. This is becauseof the onerousnessof the penalties that canensue if
the defendant isconvicted(death, deprivationof liberty, etc.). It is also
because a criminal trial arrays the majestic powerof the State against an
individual person. Neither of thesejustificationsfor requiring proof
"beyond a reasonable doubt"apply in a case in whichBosnia and
Herzegovina is asking for remediesno differentin kind from those
attendant upon any seriousbreach of a treaty and in whichneither party --
certainly not Bosnia andHerzegovina --is at an advantage vis-a-visits
adversary. The appropriaterules of evidence,therefore, are those
commonlyapplicableto "civil" actions.
There is no need to speculateon this matter. Under the terms of the
Genocide Conventionand the Court's Statute,this a civil action. The
travaux make this clear. When the Belgian-Britishamendmentto what
became Article M of the Conventionwas passed by the Sixth Committeeof
the Assembly and becamepart of the finaldraft, the Belgianrepresentative
addressed this important question.He observed thatthe I.C.J. 's
"competencecould not, of course, be extendedto the pend sphere.. ."
[SixthCttee, op. cit. p. 3381.Indeed, theCommitteeengaged in a spirited
discussionof this point, which makesclear thatmost delegates werewilling
to endorse the introduction of "responsibilityof a State" only insofar as this
was understood to extend to u, rather than criminal, responsibility.For
example, M. Chaumont, theFrench representative, statedthat France "was in no way opposed to the principleof the international responsibility of
matterof civil, and not criminal, responsibility"
States as long as it was a
[id. p. 4311,a point on whichhe was fully reassuredby the sponsorsof the
amendmentto Article IX. The Netherlands' supportfor the amendmentalso
dependedon reassurancethat civilresponsibilitywas entailed [id. p. 435.
See further debate on thecivillcriminalissue, id. pp. 431-4401.The British
CO-sponsor~itzmaurice, id.p. 4401made the intent of the proposers
absolutely clear: "the responsibility envisagedby thejoint Belgian and
United Kingdomamendmentwas the international responsibilityof States
followinga violationof the convention.That was civil responsibility, not
criminal responsibility"[id. p. 440.; emphasisadded]. It was with this
clearly in mind that the delegatested for the important new provision
establishingthe notionof State responsibilityfor genocide.
5.3.2.4 In the international law ofStateresponsibility,it is similarly acknowledged
that the responsibility ofStatesis analogoustciv esponsibilityin
domesticlegal systems,whereasthe responsibility of individualsunder
international lawis analogous tocriminalresponsibilityin domestic
systems. As then-SpecialRapporteur Roberto Agowrote in the I.L.C.'s
Fifth Report on StateResponsibility[Doc. AlCN.41291and Add 1and 2,
Yearbookof the InternationalLaw Commission, 1976, Vol.II, Pt. 1
(1977), p. 31: "it wouldbe a mistaketo assimilate the rightor duty
accorded to certain States topunish individuals who have committed[war
crimes, crimes againsthumanityand other crimes defined by international
law] to the'specialform' of international responsibility applicableto the
State in such cases" [id. p. 33, para. 1011.He added that "it seems clear to
us that it would not bejustifiable iny caseto refer to a 'criminal'
responsibility ofthe State" even when there is a basis for the applicabilityof internationally-definedcriminalpenaltiesto individual[id.p. 33, para.
101, n. 1541.Hypothetically,attachingcriminalresponsibilityto actions of
a State "might possiblybejustified in cases in which the form of
internationalresponsibility applicableto the Stateself would result in
punitive action for purely punitivepurposes" [id.]. That, however, is not
this case. The GenocideConventionclearly does not envisagea criminal
trial of States, certainlynot before this tribunal.
In the present case, this seeminglyheoreticalissue has practical
importance. Civil responsibilityand criminalresponsibilitydiffer
sig~ficantly both as to therequisite standardsof proof and as to available
remedies. The remedies sought from thisCourt are civil in nature. The
question of the requisiteevidentiarystandardto be applied by this Court,
however, is an importantquestionof law which mustbe addressed for, on
the answer to it dependsthe mode ofpresentingthe Republicof Bosniaand
Herzegovina's case.
While the text of ArticlesII-VIof the Conventionmakesclear that the
Convention establishesa legal obligationof Stateparties tobring violators
to account through the nationalcriminallaw, the law to be applied by the
I.C.J. is the law ofciv responsibilityfor the commissionby a Stateof
acts prohibited by the Conventionand for failureto prosecute and punish
persons under its control orjurisdiction who commit suchacts. Thus, the
appropriate evidentiarystandard, generallyrecognizedas suchby national
legal systems,is that of the balanceof the evidenceand, in the case of
inferences, the balance of the probabilities. Moreover, whilethe
responsibilityforadducingevidenceof wrongfulacts rests with the party alleging injury, that evidentiaryonus may shift to the other partincertain
circumstances, someof which arise in this case.
Section 5.3.3
Onus of proof and inferencesin civil actions
5.3.3.1 The importance of recognizingthe civil nature of this case, aside from the
question of remedies, is that suchrecognitionmay affect the balance of
evidence that the plaintiff mustdduce in order to succeed.
5.3.3.2 In criminal proceedings, Article 14of the U.N. Covenanton Civil and
Political Rights restates what is everywhereacceptedas the general rule,
that: "Everyonecharged with a criminaloffence shall have the right to be
presumed innocent until proven guilty." As the rapporteur's commentary
on the DraftStatutefor an InternationalCriminalTribunal has stated, it is
the prosecutor, in a criminal trial, who "has the burden to prove every
element of the crime beyond a reasonabledoubt or in accordancewith the
standard for deterrniningthe guilt or innocenceof the accused" [Reportof
the InternationalLaw Commission onthe work of itsforty--!h session,
G.A.O.R., Supp. No. 10 (A/48/10), p. 3041.
5.3.3.3 This, however, is not the standardof proof in civil actions. In civil
proceedings, after the accuser has presentedclear evidence of certain
essential facts, the court mayeduce, or infer, from those facts certain
additional elementsbecause to do so fits with ordinary probablistic
expectations. It then rests with the defendantto demonstrate that such
deduction, inference or presumptionsare unwarranted inthe specificinstance. In criminai actions, too, someinferencesmay be pemitted, but
the onus of proof rarely, if ever, shiftsto the defendant.
The facts Bosnia and Herzegovina presentsin Part 2 of this Memorial cal1
out for the Court to draw inferencesand to require the defendant to rebut
them. Inferencesare logical deductionsfrom demonstrablefacts which
correspond with "commonexperience"or "commonsense. " For example,
almost al1legal systems accept the drawingof someinferences in civil
actions in accordance with whatin the commonlaw is known as the
evidentiaryprinciple of resipsaloquitur:"the thing speaksfor itself."
[See, for example, A. Tunc, "Torts" in InternationaE l ncyclopaediaof
Comparative Law, vol. 11, ch. 13, pp. 34-38, where it is concluded, after
a survey of commonand civil lawjurisdictions, that "it is, perhaps, better
not to speakof a presumptionof faultat all, but rather of its indirect proof
by circumstantialevidence.. " id. at 38, (J.A. Jolowitz, article author).]
In French law, the drawingof inferences is perrnitted, where warranted by
circumstances:
"...La charge de la preuve imposée au ministère publicou à
la partie civile est parfoisailégpar l'existencede
présomptions légaleo su conclusionstiréespar la loi de faits
connusou simples à établir.Fondées surune probabilité
imposée parl'expérience,ellesjouent en matièrepénaleun
rôle bien moinsimportant qu'en matière civile; leur utilité
est cependantindiscutable, car ellessimplifientdes preuves
parfois très difficilesou impossibleà rapporter.
Les présomptions favorables à l'accusation facilitent
d'ordinairela preuve d'un des élémentd se l'infraction.
[Merle and Vitu, Traité de droitcriminelet deprocédure
pend (4th ed.), Paris 1989,p. 162,para. 126.Annex 5-11].5.3.3.5 The laws and practices of other legalsystemsalso permit inferences to be
drawn, and proven facts to beprimafuie evidenceof other unproven
facts, sometimeseven in criminalcases, but especiallyin civil cases where
the burden of proof is not distributeso heavily in favor of the defendant.
In the law of the ChinesePeople's Republic,even in a cnminal case, the
onus of proof may shiftto a statefunctionaryafter it is shown that his or
her property or expenditureclearly exceedsthat person's legal income.
Thus, the defendantmaybe ordered toexplainits source and, if unable to
do so, it willbeinferred that thedifferencewas illegally obtained
[Supplementary Regulationsonthe Punishmen tf theCrimesof Corruption
andBribery,effectiveas of Jan. 21, 1988. ChineseJudicialDictionary(Ji
Lin People's PublishingHouse: 1991),p. 572. Annex 5-1111S.uch
inferences are more commonlymadein civil cases. For example, in any
Chinese civil action resultingfrom the collapseof "a building, or any other
installation..its owner or manager shallbearcivil liability unless he can
prove himself not at fault" [TheGeneralPrinciplesof theCivil Lawof the
People'sRepublicof China,effectiveasof January 1, 1987, Article 126.
Annex 5-IV].
5.3.3.6 In one way or another, al1legal systemspermit a version of the inference
from a proven fact to an unprovableone in certain circumstances,
especially in civil actions.Germanyacceptsa "notionof primafacie proof,
which is analogousto the [commonlaw] doctrine of res ipsa loquitur."
Moreover, the doctrineof VerkehrssicherungspjlichteS ntates"that whoever
by his activityor through his propertyestablishes in everydaylife a source
of potential danger whichis likely taffectthe interests and rights of
others, is obliged to ensure their protectionagainst the risks thus created byhim" P.S. Markesinis, ComparativeIntroductionto the Gemzan Law of
Tort, 2nd ed. (Oxford: 1990)p. 64. Annex5-VJ.
The extent to which, in a civil action, responsibilitycan be establishedby
circumstantial evidence depends,in addition to "commonsense," on the
extent to which the relevantnon-circumstantialevidenceis unobtainable,or
exclusivelywithin the purview of the defendant.For example, has the
Federal Republicof Yugoslavia (Serbiaand Montenegro)made the
requisite good-faitheffort to bring to trial and punishpersons guilty of the
acts prohibited by the Convention? Evidenceof such efforts exist, if at all,
solelywithin the reach of the FederalRepublicof Yugoslavia(Serbia and
Montenegro). In the midst of a veritablesea of forbiddenacts, it is for the
party in the best positionto do so toexplainthis dramaticincongruity. As
this Court said in the Corfu ChannelCase, "exclusivetemtorial control
exercised by a State withinits frontiershasa bearing upon the methodsof
proof availableto establishthe lcnowledgeof that State as to suchevents.
By reason of this exclusivecontrol, the other State, the victim of a breach
of internationallaw, is oftenunableto furnish direct proof of facts giving
rise to responsibility" [Co* ChannelCase, Judgmentof April 9, 1949,
I.C.J. Reports 1949,p. 4 at 181.
In this case, the Republicof Bosniaand Herzegovinawili ask the Court to
make inferentialdeductionsfrom the patternsof proven facts. These
inferences will go to the questionof whether the Federal Republicof
Yugoslavia(Serbiaand Montenegro)has madethe requisite good-faith
effort tocomply with its responsibilityunder Article VI of the Convention
to prevent genocideas well as investigate,prosecute and punish genocide
comrnittedby persons in violationof the Conventionand inviolation of the Court's two orders regarding provisionalmeasures. For example, in view
of the magnitude, duration and brutalityof the killings, rapes, and sirnilar
acts and their geographicalproximity tothe territory of the Federal
Republic of Yugoslavia (Serbiaand Montenegro)that State canreasonably
be required to rebut the inferenceof complicityand failure either to prevent
or punish acts of genocideby presentingconvincingevidencethat its
Govemment has madeevery reasonableand diligent effort to discharge its
legal obligations.,
5.3.3.9 Another kind of inference the Court will beasked todraw goes to the
"intent" of the Federal Republicof Yugoslavia(Serbiaand Montenegro) --
or persons aided by it or under its contr--in committingproven acts.
[seebelow]
5.3.3.10 In ih Order of 13September 1993,this Court indicatedas a provisional
masure that "the Governmentof the Federal Republicof Yugoslavia
(Serbia and Montenegro)should immediately,in pursuance of its
undertakingin the Conventionon the Preventionand Punishment of the
Crime of Genocideof 9 December 1948,take al1measureswithin its power
to prevent commissionof the crime of genocide" [Order of 13 September
1993, Caseconcerning application ofthe Convention onthePreventionand
Punishrnen otfthe Crime oG f enocide(Bosniaand Herzegovinav.
Yugoslavia (Serbiaand Montenegro)),I.C.J. Reports1993,p. 325 at 342,
para. 371.Was there a good-faithattempt at compliance? When exarnining
whether the Federal Republicof Yugoslavia (Serbia andMontenegro)
indeed has taken al1measures withinits power, this Court will be called
upon to exerciseits discretionin drawinginferencesfrom the proven facts
and to make deductionsof law from demonstratedpatterns of action orinaction. The Court will also be called upon to determinewhichparty in
this action is better positionedto demonstrate thedegree of good faith
compliance the Court'sorder elicited from the Federal Republicof
Yugoslavia (Serbia and Montenegro).
Section5.3.4
Therequisitestandard:"todestroyin whole orin part"
Under the terms of Article II of the Convention, theoffence of genocideis
committedin respect of a "national,ethnical, racial or religious group as
such" which a perpetrator seeks "to destroy in whole or in part.." It is
not necessary that the factsproven shoulddemonstratethe decimationof
the entire group, or of most of its members. Againstthe backgroundof the
holocaust, the travauxof the GenocideConventiontell us that the drafters
intended to make culpablethe attem~tto decimate,and not to stay the hand
of the law until after the attempthad achievedpartial or complete success.
"In whole or in part" was added to the draft of Article II. The ECOSOC
Ad Hoc Committee's drafthad defined genocideas "acts comrnittedwith
intent to destroy a nation, racial, religiousor political group." This was
amended to add the further reference to "in whole or in part" before the
word "destroy" rAlC.61228. U.N. GAOR3rd Sess., Pt. 1 (Sixth Cttee),
73rd Mtg.]. This change alsogoes to the questionof the requisite threshold
of carnage.
There is further evidencethat the Sixth Committeedeliberately soughtto
lower the threshold at which acts ofvictimizationqualifiedas genocide. Whereas the Ad HocCommittee's drafthad made definitive the "inflicting
on membersof the group measuresor conditionsof life causing their
death" [U.N. Bulletin, December 15, 1948,p. 10121,the Sixth Committee
substituteda different standard: "deliberatelyinflictingon the group
conditionsof lifealculatedto bring about its physicaldestructionin whole
or in part" [id.]. Thus the Assembly'sdrafters twice insertedthe "in whole
or in part" formula to ensure that the quantityof transgressionrequired to
be establishedinorder to constitute theoffence should notdelay the
applicationof the Conventionuntil the carnagehad achievedits full
consequence.
5.3.4.4 To the sarneend, Article III was extensivelyamendedto create new
offences not visualizedby theAd HocCommittee'sdraft, including
"conspiracy to commitgenocide," "incitement,""attempt"and
"complicity." The additionof thesecorollary offencesis of much
significanceto the case presentedby the Republicof Bosnia and
Herzegovina, since these offencesexist separate from the degree of
"success" actuallyachievedin destroyingthe targeted group.
5.3.4.5 Why were these changes introducedin the later stagesof the drafting
process? It has been widely commentedby experts that "le génocidequi
mène à l'extermination d'ungroupe n'estpas forcémentl'assassinat
immédiatd'un certain nombre d'êtreshumains" [S. Plawski, Etudedes
Pn'ncipesFondamentaud xu Droi tnternationaPl enal(Paris: 1972)'p.
1151.Raphael Lemkin, the originatorof the term "genocide"and one of
the expert drafters of the Secretary-General'sdraft text madeclear that
"genocide does not necessarilymeanthe immediate destructionof a nation"
but, rather,...a coordinatedplan of differentactionsaiming at thedestruction of theessentialfoundationsof the life of nationalgroupp.
Lemkin, AxisRule inOccupiedEurope(Washington:1944),p. 79. Annex
5-VI].
The drafters of the Conventionwere aware of thehistory of Hitler's
European empire and its severalapproachesto the destructionof
subordinatednon-Aryanraces. Some wereto be entirely annihilatedby
mass killing, while others were to be destroyed moregradually and
piecemeal. It was the representativeof the Governmentof Yugoslaviawho
pointed out, asan instanceof genocide,the deliberateGermanpolicy,
during the occupationof his country, to disperse the Slavmajority from
certain areas in order to establishthere a new Germanpopulation. Mr.
Bartos put it succinctly: "Genocide couldbe committedby forcing members
of a group to abandon theirhomes" [3 U.N. GAOR, Pt. 1 (Sixth Cttee) at
184-85(82ndMtg., 23 October 1948)l.Suchefforts inevitably werethen,
and are now, accomplishedby violenceand terror in which only somepart
of a group is killed, maimed,tortured or raped in order to have the
intended effect on the groupas a whole. What the Convention soughtto do
was to makepunishablethe genocidalenterprisewhether directed at an
entire group, or only at part of it; whetherit was successful in achieving
total eradicationor only partially so.
This aspect of thetravauxhas been confirmedby a study prepared in 1978
by the SpecialRapporteur, NicodemeRuhashyankiko,appointedto report
to the Commissionon HumanRightsSubcommissionon Prevention of
Discriminationand Protectionof Minorities[E/CN.2/416, 4 July 1978.
Hereinafter, RuhashyankikR oeport]. This studyconcludedthat the Legal
Committeeof the General Assembly,in its review and revision of the draft convention, had given the matter considerable attention.Thus, on "the
question of the extent to whicha group must be destroyedbefore an act
committedwith that end in view canbe termed genocide, it was generally
agreed during the debatein the SixthCommittee,that it was not necessary
for the act to be aimedat the groupin its entirety. It was sufficientthat an
act of genocide shouldhave as its purpose the partial destructionof a
group. Accordingly , an amendment(AIC.6/228)proposing the insertion of
the words 'inwholeor in part' in the draft of the Ad Hoc Committeewas
adopted. The evidentpurpose of the amendmentwas to make it clear that it
was notnecessary to kill al1the membersof a group in order to commit
genocide" [G.A.O.R., 3rd Sess., Pt. 1, 6th Cttee, 73rd mtg.]. The
Commentaryof the U.S. Governmenton the Draft Conventionexpressed
the commonview that it "is obviouslynot intended thatgroups must be
totally destroyed before thecrime of genocideexists" [A/401/Add.2, 18
October 1947,p. 21.
5.3.4.8 Indeed, during the Convention'sdrafting, the Sixth Committeespent
considerabletime debatingthe rather febrile issue of whether genocide
could be committedagainsta singleperson [id. p. 15, para. 541.The intent
of the drafters, it is evident from the travaux,was to designateas genocide
acts which aimedto destroya group --whetherby attrition or by even
more radical and instantanmusmeans, whether al1at once or in gradua1
increments.
5.3.4.9 It isthus not necessaryto demonstrate that thekilling of BosnianMuslims
and the corollary crimes committedagainst them either succeededin, or
even intended, the total eradicationof thisgroup. The threshold of the
crime definedin the 1948 Conventionis reached when "a large number of persons" [id.] havebeen targetedbecauseof their membershipin a specific
ethnic group.
5.3.4.10 What constitutesa group targetedfor genocide? The words of Article II
are clear enough. The travauxreveal, however, that the Sixth Committee
changedthe wording of ArticleII from the Ad Hoc Committee'sversion:
"intent to destroy a nation" to "intentto destroy, in whole or in part, a
national group." The intent of the drafters, in makingthis change of
terminology, accordingto the Ruhashyankikostudy, was to refer "not to
persons who were citizensof or held passportsissued by a given State, but
tothose having a certain culture, languageand traditionalway of life
peculiar to a nation but livingwithinanotherState" [id.p. 291, para. 59.
See AIC.3lL. 12121.The Stateof Bosniaand Herzegovinais made up of
several national and religious groups.The revised textthus deliberately,
with great prescience, broughtthe definition ofacts constituting genocide
into exact conformitywith the nature of the tragedy occurring in our time
to the Muslims of Bosniaas well as to other groups sharingthe Republic of
Bosnia andHerzegovina'sideal of a multicultural statein which various
nationalgroups live peaceablytogether.
Section5.3.5
What is meantin ArticleII by "intent"?
5.3.5.1 Article II of the GenocideConventiondefmesgenocideas consistingof one
of the acts enumeratedin that Article "committedwith intent to destroy..."
a designatedgroup in whole or in part. This "intent" requirementwould
create undeniable problemsin the present case if it were read to require that the Republicof Bosniaand Herzegovinamust demonstratethe
individualor collectivetateof mind ofthe perpetrators of the atrocities
some of which haveben reported in Part 2 of this Memorial.
However, it is important to bear in mindthis Court's instruction,in its
1951 Advisory Opinion,to read the Conventionin the light of its high
moral principles and crucial objectives.o relevantis this Memorial's
discussionof the appropriatecivil evidentiarystandardapplicableto proof
of "acts" under the Conventionin general. It is impossibleto conclude
from this context that proof based on direct evidenceof a genocidal master-
plan could beexpectedas a necessaryconditionto the Convention'sbeing
applied in circumstancesuchas thosenow prevailingin the temtones of
the former Yugoslavia.
5.3.5.3 The matter was put in perspectivesomeyears ago by the philosopherand
social historian, Jean-Paul Sartre, who noted that the Convention "was
tacitly refemng to memorieswhich were still fresh" of Hitler and his
associates' "proclaimed...intentto exterminatethe Jews." But Sartre
hastened to point out that few governmentswould be so demonicas to
proclaim such intentions.Thus, he asked, would it not be possible, indeed
necessary, "by studyingthe facts objectiveltodiscover implicitin them
such a genocidalintention"? [J.-P. Sartre, "On Genocide," in Falk, Kolko
and Lifton, Crimesof War(New York: 1971)p. 534. Annex 5-VU].
5.3.5.4 In this matter, the travauxdo not speakwith great clarity. The
RuhashyankikR oeponconcludesthat, in the Assembly'sSixth Committee,
different proponentsof the "intent"clause championedit for different
reasons. Some saw it as a barrier to a defencebased on failurecarry outthe intended genocidei.e. that the intent, together with some acts, would
suffice regardlessof their successor failure [RuhashyankikoRepon, op.
cit. pp. 25-27, paras. 96-1061.Others supportedthe inclusionof an "intent"
clause in order to distinguishgenocide from"ordinary" killing, that is,
murder not motivatedby group hatred which waspunishableunder
ordinary criminallaw or the laws of war. The purpose of some proponents
was to fil1what appearedto them a gap in the law demonstratedby the
Nuremberg Trials, at which the masspersecutionof persons based on
invinciblehatred of a nationality, ethnicity,etc. was not heldpunishable
except when committedin connectionwith objective crimesof aggressive
wax-making [id p. 26, para. 1001.
Whatever the motivesof the proponentsof the "intent"proviso, the drafters
did tryto make clear that they didnot wishto create a loophole through
which mass-perpetratorsof unspeakablecrimes could escape simplyby not
speakingof their purpose. For exarnple,they eventually deletedthe term
"premeditated"foundin the Ad Hoc Cornmitteedraft of Article II[Special
Committee, El794, p. 5. SeeJ. Graven, "Les Crimes Contre L'Humanité,"
Recueil des Cours 195011,427 at 4941.They did this in order not to risk
"restraining in an unjustifiedmannerthe criminalcharacter of the offence"
[id. at 4951.Moreover, as the Netherlandsrepresentative observedduring
discussionof the Secretariat's draftof the Conventionon 22 April 1948, it
must be "establishedbeyond doubt.. that so-calledcarnouflagedgenocide
will equally bepunishable;this covers casesin whichthe defendantmight
plead that the incrirninatedaction, althoughit did in fact lead to the
destruction or frustrationof a group, was not aimedagainst that group.
Only ..coincidence,the defendantmightcontend.. led to the unintended result that the group was destroyedor hampered inits existence or
development" [U.N. Doc. El623lAdd3, 22 April 1948, p. 21.
5.3.5.6 Moreover, the SixthComrnittee,in active debate, treated intent as a matter
quite different from motive [RuhashyankikR oeport, op. cit. p. 26, para.
101-1051.Ruhashyankikohas observedthat, during the drafting stage there
were proponentsof includinga "motive" standardin Article II. It is
instructive to understandwhy their view did not carry."In oppositionto the
above-mentionedproposal" he notes, "it was argued that a statementof
motive would result in a definitionwhich wouldallow the guiltyparties to
claim that they had not acted under the impulseof one of the motivesheld
to benecessary to prove genocide." [id. p. 26, para. 1041. The deletion of
a "motive" elementthus clearly demonstratesthe Sixth Cornmittee's
determinationto make sure that it wouldnot be necessary in future to
establish thaterpetrators harbored the sort of deliberateplan of mass-
murder based on group-hatredsthat had characterizedthe Nazi regime and
which that regime had publiclyproclaimedas a matter of state policy.
The RuhashyankikR oeport has also noted the point made previously in this
Part of the Memorial: that ArticleIX raises a questionof the &l
responsibilityof a State [id. pp. 84-85, paras. 324-3281. Incases of civil
responsibility, therule generallyfollowedby civilized states is that an actor
is presurnedto intend the natural consequencesof his or her acts. Thus the
culpable intent of a state chargedwith genocideunder Article IX of the
Conventionwould appear to be demonstrableby evidence of a pattern of
acts the natural and actualconsequenceof which is "the destruction in
whole or in part of a national,ethnical, racial or religious group, as such."
Such "constructiveintent" is presumed andneed not be proven by theplaintiff. Rather, it must be disprovedby the party whose acts, or patterns
of acts, haveben demonstrated. The actorwill be presumed to have
intended the naturalconsequence: thatis, the destruction, in whole or in
part, of a nationalgroup, until thepresumptionis rebutted by the balance
of evidenceto the contrary. As wasstatedin the 13 September 1993
separate opinionof ad hocJudge Lauterpachtin the interim measuresphase
of the present case: "At the veryleast, the effect of the evidenceis to shift
the burden of proof completelyto the Respondent"[op. citp . 431, para.
67J.
This very conclusionwasalso reachedby a second study, the 1985report
of the Human Rights Commission'sSpecialRapporteur, analyzingthe
GenocideConventionfor the Commissionon Human Rights. "The relative
proportionate scale of the actualor attempteddestructionof a group" Mr.
Whitaker has written, "by any of the meanslisted in Articles II and III of
the Convention,is certainlystrong evidenceto prove the necessary intent to
destroy a group, in whole or in part" [E/CN.4/Sub.2/1985/6,2 July 1985,
p. 16, para. 291.His report concludes: "Notal1genocidal regimesare
likely to be as thoroughly documentedas the Nazi one was. It is suggested
that a court should beable toinfer the necessaryintent from sufficient
evidence, and thatin certain cases this wouldinclude actionsor omissions
of such a degree of criminalnegligenceor recklessnessthat the defendant
must reasonably beassumedto have been aware of the wnsequences of his
conduct" [id p. 19, para. 391.
From the facts marshalledin Part 2 of this Memorial it is readily apparent
thatthis is precisely such a case, one that warrants the drawing of such
presumptive inferencesabout genocidalintent. It is thus worth noting that, in 1948, the representativeof Yugoslavia,addressing the Sixth Committee
of the General Assembly, foresaw thenecessity, in just such circumstances
as have now arisen, to draw presumptive deductionsfrom a pattern of
facts. He held "thatany crime committedagainstcertain groups must be
defined as genocide, even if it was unpremeditated"and observed with
obvious distaste that "inthe United States, for example, charges of
lynching had been dismissedon the ground that premeditationhad not been
established" [SixthCttee, op. cit. p. 821.He insisted that thetext should
make the duty of "suppressionof genocidedependent"net "upon a
subjectivepsychologicalcondition"but, rather "upon thefact of the
criminal act aione" [id. p. 881.Otherwise, thelaw "would allowmany
cases of genocideto go unpunished"[id.].
5.3.5.10 The YugoslavCriminal Code, incidentally ,adopts approximately thissame
position. Whereas Chapter XI, article 124, of the Code incorporates Article
II of the Genocide Conventioninto the domesticlaw of Yugoslavia,
includingthe "intent" clause, Chapter II of the Code [Art. 7(2)] explains
the role of intent thus: "A criminaloffenceis committedwith intent when
the perpetrator was consciousof his deed and wanted its commission; or
when he was conscious thata prohibited consequencemight result from his
act or omissionand consentedto its occurring" [Annex5-VIII].
5.3.5.11 It is the contentionof the Republicof Bosniaand Herzegovina thatthe
Govemment of the Federal Republicof Yugoslavia(Serbia and
Montenegro) could notbut havebeen conscious that a prohibited
consequencemightresult from its acts or omissions, narnely, the
destruction ofsignificantportions of the Muslim populationof Bosnia, and
that it neverthelessaided, consentedto, and failedto investigateor punishthese acts. From the fact, scopeand circumstanceof that destructionthe
necessary constructiveintent can be inferred, whether or not clear evidence
can be produced by the ApplicantState of anactual animusby the
RespondentState to destroy a group in wholeor in part.
Such inferences, specifically,of intent to commitan act, drawn from
actions of a perpetrator, are not unique tothe lawsof Yugoslaviabut, on
the contrary, are commonlyincorporatedin legal systems.In the
jurisprudence of the United States, "permissiveinferences"may be drawn,
even in a criminal case, and the more readilyin civil actions. The Supreme
Court has held that the drawing of permissive inferencesof intent (as
opposed to a "mandatorypresumption"of intent)does not violate a
defendant'sconstitutional rights [Francv.Franklin, 471 U.S. 307 at 314
(1985); see also UlsteCount Cyour v. Allen, 442U.S. 140at 157
(1979)l. In the U.S. SupremeCourt'sview, a "permissiveinference" is
like a "presumption"which, in turn, "mayconstitute primafacie evidence"
[Turner v. UnitedStates, 396 U.S. 398,402 n. 2 (1969)l. Suchprimafacie
evidence may be regarded in U.S. courts aswarranting a permissive
inference "unless the defendant explains..the satisfactionof thejury"
[id. at 4021.The test used is that "thepresumedfact is more likely than not
to flow from the proved fact on whichit is made to depend" [Learv.
UnitedStates, 395 U.S. 6 at 36 (1969)l. In civil rights litigation, where
civil actions for damagesmay lie for intentionaldiscrimination, the U.S.
Supreme Court has held that onceaprimufacie case of discrimination has
ben establishedon the fac -- or exarnple,that plaintiff was discharged
from employment forno evidentreason --the burden shifts to the
defendant to produce "anexplanationto rebuttheprimafacie case --i.e.
the burden of 'producingevidence'that the adverse...actions weretaken for a legitimate, nondiscriminatoryreason"' [St. Mary's Homr Center v.
Hicks, 113S.Ct. 2742 at 2747 (1993)l. In other words, once the factof
harm has been shownby the plaintiff, it is up to the defendant to
demonstrate reasons "which, if believedbv the trier of fact, would support
a finding that unlawful discriminationwas notthe cause of the [harmful]
action" [id. at 2746. Emphasisin original].
5.3.5.13 Similarly, in this case, the patterns of killing, rape,maimingand
terrorizing, being provenas facts, shouldbe taken by this Court to create a
prima facie case of genocide, leavingthe perpetrator with the burden of
demonstrating to the satisfactionof this Courtthat there was no "intent to
destroy in whole or in part" the communitywhich has in fact been shown
to have been shattered.
5.3.5.14 In civil law systems,too, liabilityin importantcategoriesof cases may be
found in accordancewith a presumptionof fault or a principle of strict
liability which shiftshe onus of proof to the defendantafter aprima fucie
case has been madeby the plaintiff.Thus proof of non-negligenceor of
non-intent may have to be offered by the defendantafter the plaintiff has
demonstratedthe occurrenceof anact which, in the nature of things,
probably could not haveoccurred in the absenceof such intent (do1or
dolus) or negligencemute, culpa) [I. Brownlie,Systemof the Law of
Nations, State Responsibility,Part 1 (Oxford: 1983),p. 44. Annex 5-IX;
Mazeaud et Tunc, Traitétheoriqueetpratique de la responsabilitécivile,
6th ed., ch. 43.
5.3.5.15 In English law, "intentionto injure" is proven once it is demonstratedthat
the defendanthas willfullycausedan injury, withoutanynecessity to demonstrate maliciousintent [Wilkinsonv.Downton(1897), 2 Q.B. 57 at
58-59]. Englishtort law, while it makesintentionan element imany
forms of wrong, generallytreats intent restrictivelyas the intent to harrn,
not as requiring proof of maliceor motive [Diasand Markesinis, TortLaw
(Oxford: 1984),pp. 169-200.Annex 5-XJ M.oreover, a defendant's
recklessnessin the faceof possibleinjury may be sufficientto establish
intentprim acie or on the basisof res @saloquincr.It is sufficientto
show that a reasonableperson would have anticipatedtortious consequences
flowing from demonstrableacts or omissions thatare not, in themselves,
tortious [ClerkandLindsellon Torts(London: 1989),pp. 42-50, 564-577.
Annex 5-XI].Moreover, "wherethe thing is shown tobe under the
managementof the defendantor his servants, and the accidentisuch as in
the ordinary course of things does not happenif those who have the
management useproper care, it affords reasonable evidence,in the absence
of explanationby the defendant,that the accidentarose from want of care"
[Scottv. LondonandSt. KatherineDocks(1865), 3 H.&C. 596 at 6011.
Putsuccinctly, in Englishlaw as elsewhere,a person may be presumed to
intend the naturaland probable consequencesof his or her acts [seeR. v.
Moloney (H. of L.), 1 A.E. 25 at 1038(1985)l.
5.3.5.16 In Canada,this rule has been formulatedto mean "a man is usually able to
foresee what are the naturalconsequencesof his acts,it is, as a rule,
reasonable to infer that he did foresee them andintend thp." Stuart,
CanadianCriminalLaw (Toronto: 1982),p. 121. See alsoBuuangaand
Durocher(1979), 49 C.C.C.(2d) 369 (Ont. C.A.): "Sincepeople are
usually able to foresee theconsequencesof their acts, if a person does an
act likely tooduce certain consequencesit is, in general, reasonable to
assume that the accusedalso foresaw the probableconsequencesof his act and if he, nevertheless,acted so as to produce those consequences, that he
intendedthem." id. at 3871.
CHAPTER5.4
PROHIBITEDACTSOTHERTHANGENOCIDE
Section5.4.1
Conspiracy
5.4.1.1 The Ad Hoc Committeehad observedthat conspiracy shouldbe a separate
offence "in view of the gravity of the crime of genocideand of the fact that
in practice genocide isa collectiveime, presupposingthe collaborationof
a greater or smaller numberof persons [U.N. Doc. E/794, 24 May 1948,
Report of the Comrnitteeand Draft ConventionDrawn Up By the
Comrnittee,Dr. Karim Azkoul, Rapporteur, p. 201.In the Sixth
Committee, theonly difficulty about the conceptof complicity concemed
whether it could best be rendered in French lawsas "ententeen vue de
l'accomplissementde genocide"or by the term"complot" [SixthCttee, op.
cit. pp. 211-12].The provision was easily adoptedby 41 votes to Owith4
abstentions[id. p. 2121.The facts set out in Part 2 of this Memorial
demonstratethe existencein fact of sucha conspiracyto commitgenocide
between persons under the jurisdictionof the Federal Republicof
Yugoslavia (Serbiaand Montenegro)and irregular Serbian forces and other
persons in Bosnia. Section5.4.2
Incitement
5.4.2.1 In the Ad Hoc Committee,the United Stateshad insistedon the insertionof
the term "direct" before "incitement"and had explainedthat the two words
must be read to be "of a nature to create an imminent dangerthat it would
result in the commission"of genocide itself[E/794 A,d Hoc Cttee, op. cit.
p. 211.Despite U.S. opposition,on constitutionalgrounds, the enumeration
of "incitement"as a separatecorollary act prohibitedby the Convention
was stressedby the majorityboth of the ECOSOCAd Hoc Committeeand
the General Assembly'sSixthCommittee.In the words of the Polish
representative, Mr. (later, Judge) Manfred Lachs:"Victimsof genocide
could derive but meager satisfaction from seeing theguilty persons brought
to justice after the crime hadeen committed;it would be better to prevent
the crime from beingcommitted.. .Incitementto genocidewas one of those
typicalcases in whichthe law shouldinterveneat a very early stage" [Sixth
Cttee, op. cit. p. 2151.The French representative,M. Spanien, added that
the issue of freedomof speechraised by the U.S. "was not convincing...It
was precisely in connectionwith genocidethat the suppressionof
propaganda was absolutely essential"[id. p. 2161.Mr. Federspiel, the
representativeof Denmark, added that"the stage of incitement" was "the
most dangerous stage" and that it mustbe enumeratedas a prohibited act
[id. p. 2201.Mr. Manini y Rios, representingUruguay, added that "history
showed thatthe majorityof cases of genocidehad been preceded by a
violent campaignof incitement"[id. p. 2221.The facts set outin Part 2 of
this Memorial demonstrate the existencein fact of such incitementto
commit genocideby persons in authorityor under thejurisdiction of the
Federal Republicof Yugoslavia(Serbiaand Montenegro). Section 5.4.3
Attempt
5.4.3.1 The term "attempt"as a prohibited actconnectedwith, but separate from,
another prohibited act is commonlyrecognizedand employed tosome
extent by alllegal systems. The enumerationof "attempt"as a prohibited
act in the GenocideConventionelicited no discussionin the drafting stages.
The facts set out in Part 2 of this Memorialdemonstrate, in fact, the
numerous incidentsin which genocide has beenattempted.
Section 5.4.4
Complicity
5.4.4.1 In the Ad Hoc Committee,the adoptionof complicityas an act prohibited
by the Conventionhad been unanimous[E/794, AdHoc Cttee, op. cit. p.
211.In the General Assembly'sSixth Comrnittee,Luxembourgoffered an
amendment to the Ad Hoc draft which madeit clear that complicity applied
only to acts of genocide itselfand not to conspiracy, incitementand attempt
[SixthCttee, op. cit. p. 2541.He used the occasionto define complicityto
mean, as it did in his state'slaw, "the rendering of accessory or secondary
aid, or simplyof facilities, to theperpetrator of anoffence" [id.]. This
appears to be the definitionacceptedby the representativesof States in the
Committee. [see, for example, M. ChaumontrepresentingFrance, id. p.
255. To the same effect seeM. Houard (Belgium) id.p. 256, Mr.
Fitzmaunce (U.K.) id., Mr. Abdoh (Iran)id. p. 258.15.4.4.2 The 1978Report of the InternationalLaw Commission, commentingon its
work on State responsibility,has noted that, in its own draft of Article 27,
"complicity" may take the form of "assistance"suchas the "provisionof
weapons or other suppliesto assistanotherState to commit genocide"
[Yearbookof the International Law Commission, 1978,vol. II, Pt 2, p.
2851. However, mere toleranceor benevolentneglect may also suffice.
This restates the principle of complicityas it is used in the commonlaw,
where it originates. Complicityliabilityoftenis a form of vicarious
liability. This embodies"a superintendencerationale whereby"for
example, "employersare held responsible for their employees'criminal
transgressionsthrough a deemedfailureto exerciseproper control and
authority over their employees"[K.J.M. Smith, A Modem Treatiseon the
Lawof Criminal Complicity(Oxford: 1991)p. 81.The same definition
would be applicableto civil vicarious liability. Wherea governmenthas a
legal duty to protect persons againstviolationof their rights under
international law by other personswithinthat government'sjurisdiction,
this Court has clearly establishedthat "inaction"by the Government itself
constitutesa seriousviolationof that State's legalobligation,whether or
not the persons actingunlawfullywere doingso in explicit complicity or as
agents of the Government[U.S. Diplomaticand ConsularStagin Teheran,
Judgment, I.C.J. Reports 1980,p. 3, at 32-33, paras. 66-68].
5.4.4.3 In its Order of 13September1993,this Court madeclear that the
"govemment of the Federal Republicof Yugoslavia(Serbiaand
Montenegro) should in particular ensure that any military, pararnilitaryor
irregular armed units which may bedirectedor supportedby it, as well as
any organizationsand persons which maybe subjectto its control, direction
or influence, do notwmrnit anyacts of genocide, of conspiracyto commit genocide, of direct and public incitementto commitgenocide, or of
complicityin genocide, whetherdirected at the Muslim populationof
Bosnia and Henegovina or againstany other national, ethnical, racial or
religious group"[Order of 13 September, 1993,op. cit. pp. 342-43, para.
37. This adumbrationof the terms of ArticleIII shows thatthe Court is
quite clear as to the plain meaningof these terms as they apply to the
situationin the former Yugoslavia.The facts set out in Part 2 of this
Memorial indicate that there has been continuing complicityby the Federal
Republic of Yugoslavia(Serbiaand Montenegro)with persons and groups
of personscomrnittinggenocidein the Republicof Bosnia and
Herzegovina.
CHAPTER5.5
PROGRESSIVE DEVELOPMENT OF THEDEF'INITION AND
PROHIBITIONOF GENOCIDE
Section5.5.1
Developmentspriorto the Convention'scominginto force
5.5.1.1 As we observed in section5.1 above, the conceptof genocideas an
extremelygrave and unlawfulact precedes thecoming into force of the
Genocide Convention.It was a wrong knownto the Tribunalat Nuremberg
and expressedby the GeneralAssemblyas early as 1946 [G.A. Res. 96(I)
of 11December 19461.Indeed, this Court, in its Order of 13 September
1993, echoes its own exact words to descnbe genocide in its 1950advisory
opinion. In 1950, this Courtdefinedgenocideas aenial of a group's right
to exist "a denial which shocksthe conscienceof mankindand results ingreat losses to humanity,and which is contrary to moral law and to the
spirit and aims of the United Nations" [Reservationstothe Conventionon
Genocide, op. cit. p. 231.In 1993this Court noted the "great sufferingand
loss of life" in Bosnia andHerzegovina "in circumstanceswhich shockthe
conscienceof mankindand flagrantly conflictwith moral law andthe spirit
and aims of the United Nations"[Order of 13 September, op. cit. p. 348,
para. 521.The choice, in 1993,of the verbal formula used by the Court in
1950 todescribe genocideis not, of course, a coincidence.
Section 5.5.2
Furtherdefinition:I.L.C. draftarticleson stateresponsibility
Article 19 of theInternationalLaw Commission'sDraft Articles on State
Responsibility classifies genocides "an internationalcrime" recognized as
such by "the international community...as a whole..." praft Articles on
State Responsibility, Reportof the InternationalLaw Commission tothe
General Assembly, 35 U.N. GAOR Supp. No. 10at 49, 59-68. U.N. Doc.
A135110(1980)l. It further notes that an internationalcrime such as
genocide, is an "international wrongfulact which results fromthe breach
by a State of [an]international obligation..ssentialfor the protection of
fundamentalinterests of the international community .." [id.]. As noted in
para. 5.3.2.3, above, the term "criminal"is used here to denote several
matters irrelevant to this litigation. Amongthem are the duty of Statesto
crirninalizeacts of genocidecommittedby persons over whom they have
jurisdiction. What & relevantto this caseis the I.L.C. Draft Article's
recognition that 1) genocidemay be committedby a as such, and 2)
that this constitutesa "wrongfulact" that takes the form of a State'sbreach of a fundamentaltreaty obligation. Thus the draft confirms Bosniaand
Herzegovina'sciaim that the GenocideConvention'sArticle IX is
applicableto States, asa wrong effectedby the breach of a fundamental,
inescapabletreatyobligation, for which Statesmay be held responsible by
this Court. This confirmsthe universalacceptanceof the prohibition of
genocide as attainingthe levelof pararnountcythat internationallaw
classifiesasjus cogens. [SeeILC Jearbook, 1966,vol. 2, pp. 248-249.1
Section 5.5.3
Furtherdefinition:Conventiononthe non-applicabilityof statutory
limitationsto war crimes and crimes againsthumanity
5.5.3.1 This Conventionwas adoptedand openedfor signatureby the General
Assemblyin 1968[U.N. Doc. A/RES/2391(XXIII)of 9 December 1968.
I.L.M. vol. VIII, p. 68 (1969). Enteredinto Force 19701.It links genocide
as defined by the Conventionwith other crimes against humanityas defined
by "the Charter of the InternationalMilitaryTribunal, Nürnberg, of 8
August 1945and confirmedby resolutions30) of 13February 1946and
950) of 11 December 1946of the General Assembly.. ." [id.Art. I(b)] and,
specifically,refers to "evictionby armed attack or occupation" aswell as
"inhumanacts resulting fromthe policy of apartheid" [id.]. Whilethe laws
of the Nuremberg Tribunal and the lawspertainingto apartheid are
separate from the Genocide Convention, itis apparent that, together, these
three increasinglyare recognizedas part of a skeinof international law
prohibitingthe collectivehate-driven decimationof groups ofpersons on
account of their group affiliation.The symbiosisbetweenthe StatutoryLimitationsConventionand the
Genocide Conventionis further underscoredby Article II of the former,
which makesit applicable,in terms very similarto the Genocide
Convention, to "principalsor accomplices, "definedas persons who
"participatein or who directlyincite others to the commissionof any of
those crimes, or who conspireto commit them,irrespectiveof the degree
of completion"and whichapplies also "to the representatives of State
authority who toleratetheir commission." This adumbratesthe terms used
in Article III of the GenocideConvention, providinga fuller, yet consistent
textualit.
Section5.5.4
F'urtherdefinition: I.L.C.DraftCodeof Offencesagainstthe Peace
andSecurityofMankind
The Draft Code, as adoptedon first readingby the InternationalLaw
Commission in 1991, makesgenocidecommittedby persons a criminal
offence using the defmitionprovidedby the Genocide Convention[Draft
Code of Crimes Againstthe Pace and Securityof Mankind. Art. 19.
Report of the InternationalLaw Commission onthe work of its forty-third
session. G.A.O.R. Supp. No. 10 (A/46/10), p. 2611.That merely
confirms, and consolidateswith other offences,what the Genocide
Convention already makesactionable.But the Draft Code does expandthe
Convention'stext. The Draft makesclear that the prohibitedact of
"deliberatelyinflictingon the group conditionsof life calculatedto bring
about its physical destructionin whole or in part-- the languageof Article
II of the Convention-- also "covereddeportationwhen carried out with the intent to destroy the groups in wholeor in part[id.p. 2621.Deportation,
in this context, refers to the involuntaryremoving anddispersal of a
population, not to a meansof transportation.It would surely be irrelevant
whether "deportation"was carried out by puttingpersons in cattle-cars
destined for distanttemtories in order to makea place "Juden-rein"or by
creating the conditionsof terror which wouldcause thousandsof persons of
a group to fleo en foot in order to makea territory "clean" of Muslims.
Section5.5.5
Furtherdefinition:I.L.C. DraftStatuteof an InternationalCriminal
Tribunal
5.5.5.1 This DraftStatutegives theproposedCriminalTribunaijurisdiction to try
persons for enumeratedcrimes, the first of whichis genocide praft Statute
for an InternationalCriminalTribunaland CommentariesThereto, Part 2,
Art. 22(a). Report of the InternationalLaw Commissionon its 45th
Session, U.N. GAOR, 48th Sess., Annex, Part B at 258. U.N. Doc.
Al48110(1993)l. The applicablelaw in sucha case is the definitionof
"genocideand related crimes" set out in ArticlesII and III of the
Convention [id.].
5.5.5.2 This provision evidencesthe intentionof the international communityto
give effect to the GenocideConventionin al1applicable cases involving
criminal culpabilityand to do so by the creationof a new international
tribunal, first envisagedby the draftersof the Convention,withjunsdiction
over acts of persons. The effect of sucha Statute'scoming into force
would be to completethejurisdictionaitriad envisagedby the drafters, Le.:1) national tribunalswith cnminaljurisdiction over individualsaccused of
enumerated prohibited actsincorporatedinto national law;2) an
internationaltribunal with generalcriminaljurisdiction over al1individuals
accused of prohibitedacts enumeratedin the Convention;and 3) the
International Court of Justicewithurisdiction in civilactions brought by
one State party to the Genocide Conventionagainst another allegingthe
latter's civil responsibility for theprohibitedacts enumerated, inter alia, in
Articles II and III, as well as civil liabilityfor the consequencesof the
wrongful acts.
Section5.5.6
Furtherdefinition:the YugoslavWarCrimesTribunal
This tribunal [its full title is "InternationalTribunal for the Prosecution of
Persons Responsiblefor SeriousViolationsof International Humanitarian
Law Committedin the Territory of the Former YugoslaviaSince 199lW]
was created by a decisionof the Security Council, actingunder the powers
vested in it by ChapterVI1 of the U.N. Charterpursuant to its
determinationthat the situationin the formerYugoslaviaconstitutesa threat
to, and a breach of, the peaceThe Council decided thatan "international
tribunal shall be establishedfor the prosecutionofrsons responsible for
serious violationsof internationallaw committedin the temtory of the
former Yugoslaviasince 1991"[SecurityCouncilResolution808 (1993)of
22 February 19931.
The ex-Yugoslavia Tribunalis specificallyauthorizedin Article4 of its
Statute "to prosecute personscommittinggenocide"as defined inparagraphs 2 and 3 of the Statute. Paragraph2 precisely incorporates the
enumerationof prohibited acts in Article II of the Genocide Conventionand
paragraph 3 equallyprecisely incorporates thelanguageof the enumeration
in the Convention'sArticle III. Thus, while the YugoslavTribunal is
different in its origins from this Court, being based on a Security Council
Resolution rather than a treaty, and althoughits jurisdiction is very
different, being criminal and being confined toacts committed in the
former Yugoslavia, nevertheless,the Tribunal'smandate hasrelevance to
this case. First, it demonstrates thecontinuinguniversal importance
attached to the GenocideConvention andits definitionand enumerationof
acts and omissionsin the Convention's Articlesas definitiveof genocide
and its corollary offences. Second,itreaffirms the universalityand premier
importanceof the principlesand purposesembodiedin the Convention.
While this incorporationof the key provisionsof the Genocide Convention
in the Statuteof the ex-YugoslaviaTribunalreenforces the law of the
Convention, it also elaboratesthe earlier definition.For example, the
Tribunal's newjurisdiction to trypersons (ithas none over States as such)
extends to the determiningof "individualcriminalresponsibility" [op. cit.
Art. 7J. Responsibility,the Statutethen continues, attachesto any "person
who planned, instigated,ordered, committedor otherwiseaided and abetted
in the planning, preparationor executionof a crime" including,
specifically,genocide[id.T ]h.is is consistent with, yet helpfully
adumbrates thetext of ConventionArticle III. There are also provisions for
attributing to a superior responsibilityfor acts of a subordinate "if he knew
or had reason toknow that the subordinatewas about to commit such acts
or had done so and the superior failed to take the necessaryand reasonable
measuresto prevent suchacts or to punishthe perpetrators thereof' [id.Art. 7(3)]. This clarifiesthe State'sduty to "preventor punish" as
establishedin Article 1of the GenocideConvention.While these provisions
adumbrate the Convention's definitionof culpabilityfor genocide, they do
so in a context that makesclear the SecurityCouncil'sintent to do no more
than make clear the law as already stated inthe Convention, thelaw
applicableto both parties in this litigation.
Moreover, while thejurisdiction of the ex-YugoslaviaTnbunal is limited to
criminal acts cornmitte. by persons, suchprovisions of the Tribunal's
Statuteas pertain to criminalresponsibilityof persons shouldbe seen as
ips acto applicableto the civil responsibilityof Statesunder Article IX of
the Convention.
It shouldalso be noted that, while theStatuteof the Tribunal represents the
best effort of the Securityouncilto bring the Genocide Convention,as
well as other internationallaw, tobear in practice upon one specific
instance (the ex-Yugoslavia), and,as such, is likely to ban invaluableaid
to this Court in construing the Convention,the reciprocal is equallytrue.
What this Court decidesabout the issues raised in this caseregarding such
matters as the duty to prevent and to punish, definitionof intent, applicable
rules of evidenceand onus of proof, the definitionof acts enumeratedin
Articles II and III of the Convention,and the lawpertaining to complicity
and attributability:al1this will haveutmostsignificancein shapingthe
jurisprudence of the Tnbunal. PART 6
THE GENOCIDEANDïïS COROLLARIES ARE
AITRIBUTABLETO YüGOSLAVIA(SERBIA AND
MONTENEGRO)
CHAPTER6.1
INTRODUCTION
6.1.0.1 As demonstrated inPart 5 above, genocideis being committedin Bosnia
and Herzegovina. Therefore, the Genocide Conventionis applicable.
Moreover, as explained inthat chapter [Section5.2.31,the Convention
imposes on StateParties two differentkinds of obligations:
i) not to engagein genocide, and the related acts enumeratedin
ArticleIII thereof (conspiracy,incitement, attemptand complicity)
and,
ii) to prevent genocideand punishtheetrators.
6.1.0.2 So far as individualsare concemed, criminallaw, whether nationalor
international, is applicable,e enforcedeither by criminal national
Courts or "by suchinternationalpend tribunalas may havejurisdiction"
[ArticlVq, in the present case the InternationalCriminalTribunal for the
Former Yugoslavia createdby Resolution827 (1993)of the Security
Council.But this is not so regardingStateParties to the Convention.If a dispute
arises betweenthem, Article IXgivesjurisdiction to the International Court
of Justice "whose function", accordingto Article 38 of the Statute, "is to
decide in accordancewith international law".Therefore, in the present
case, the responsibilityof Yugoslavia (Serbia andMontenegro)must be
determined in accordancewith the principlesof general internationallaw
applicableto State responsibility.
The basic principle in this fieldis exposed inArticle 3 of Part One of the
Draft Articles adoptedby the InternationalLaw Commissionon first
reading in 1980:
"Artide3. Elernentsof an internationallywrongfulact of a
State
There is an internationallywrongfulact of a State when:
conductconsistingof anactionor omissionis
(a)
attributablto the Stateunderinternationallaw; and
@) that conductconstitutesa breach of aninternational
obligationof the State."
It is therefore not enough thatthere existsa breach ofan international
obligationas, indeed, violationof the GenocideConventionis. It is also
necessary that this breach be "attributable" (imputable)ta State.
Notwithstandingwhat hasbeen said above [Section5.3.31about the burden
of proof in the law of international responsibility,Bosniaand Herzegovina
will show that the very seriousbreachesof international lawdetailed in this
Memorial are attributableto Yugoslavia(Serbia andMontenegro).
The very carefully drafted Articlesof the I.L.C.'s draft codify the
applicablerules in this respect.The generaloveniew is as follows: - Draft Articles5 and 6 confirm the principle that the conduct of its
organs is attributableto the State, whatever their position inthe
organizationof the State;
- the sameholds true for other entitiesempoweredto exercise
elementsof the govemmental authority [Article 3;
-
and for persons acting in fact on behalf of the State [Article 81,even
persons acting ultra vires;
- and Articles27 and 28provide for the responsibility ofa State
which is implicatedin the intemationally wrongfulact of another
State.
6.1.0.7 Seen in the light of theseprinciples, the responsibilityof Yugoslavia
(Serbia and Montenegro)adresse. in this part of the memorialis as
follows:
- first, it has participateddirectlyin the crime of genocideby its own
organs [Chapter6.21;
- second, it has committedgenocidethrough its agents and surrogates,
acting on its behalf in Bosniaand Herzegovina, including the so-
called "SrpskaRepublika"[Chapter6.31;
- third, it has aided and abettedgroups and individuals inthe crime of
genocide [Chapter6.41;
- fourth, it has failedto prevent genocideand to punish its
perpetrators [Chapter6.51. CHAPTER6.2
THEORGANSOF YUGOSLAVIA(SERBIAANDMONTENEGRO)
HAVECOMMlTTEDTHEACTSOF GENOCIDE
Although the Governmentin Belgradeannounced,on 4 May 1992, the
withdrawal of the JNA fromBosniaand Herzegovina, it is undoubtable that
the direct involvementof Yugoslavia (Serbia andMontenegro)through its
own organs and, in particular, its Army, in the commissionof genocide
carried on unintempted after this date. This directand continuing
participation of Yugoslavia(Serbiaand Montenegro) in the genocidehas
ben acknowledgedby international organizations,both at global and
regional levels, and by manyindividualstates. These facts and fmdings
entail the unescapableconclusion thatthe responsibilityof Yugoslavia
(Serbia and Montenegro) is impliedby the internationally wrongful actsof
its own organs.
Section6.2.1
Reminderof the relevantfacts
As has been shownin Part 2 above, and more particularly in Chapter 3 of
that Part, the Govemmentof Belgradeare not onlyinvolvedin the
perpetration of the crime of genocideagainstthe Muslim and Croatian
population of the Republicof Bosniaand Henegovina (and ofparts of its
own population) but this genocidehas been entirely devised andplannedby
that Governmentand, in a largepart, perpetratedby its own organs. In this
perpetration the "YugoslaviaNationalArmy" (JNA) whichwas later
constitutedas the "YugoslavArmy" (VJ)played a major role.6.2.1.2 In this respect, two periods mustbe envisagedseparately: namely,before
and after May 1992.
BeforeMay1992
6.2.1.3 As explainedabove [para. 2.3.3.21, at thevery beginningof the year 1992,
the JNA was the object of a major reorganizationwhich resulted in a
spectacularincrease of the numberof troops in Bosniaand Herzegovina,
which swelledto 95,000. This reallocationof troops was clearly aimed at
putting into operationthe "RAM"covert operationplan,'the purpose of
which wasto realize the "GreaterSerbia" [seeSection2.3.4 above].
6.2.1.4 RAM was the origin both of the arming of the Serb population inBosnia
and Herzegovina, and of the creationof the first paramilitarygroups both
in Bosnia and Herzegovina itselfand in Serbia and Montenegro. This
creation was condonedand stronglysupportedby the authoritiesin
Belgrade.
6.2.1.5 As explainedin Parts 2, 3 and 5, the beginningof 1992was also the time
when the atrocities against theMuslim andCroatian populationin Bosnia
and Herzegovinabegan to be committedon a large scale: creation of
concentration camps,massiveexpulsions,killings, beatings, internments,
rapes, attacks on Muslimvillages, etc. [seee.g. :2.2.1.4; 2.2.2.2; 2.2.5.3 ;
2.2.5.51. Al1these acts - and manyothers -were perpetrateddirectly by
the YugoslavNational Army alone or with the aid of pararnilitarygroups
armed, controlledand commandedby Serbianofficers or officials, among
whom the notorious "CommanderArkan"or V. Seklj, both soonto beelected a Member of the SerbianParliament[seee.g. 2.2.1.17; 2.2.2.2;
2.2.2.16; 2.2.5.3; 2.2.5.81.
AfterMay 1992
On 4May 1992, the Governmentin Belgradeannouncedthe withdrawalof
JNA troops fromBosnia andHerzegovina.As will be explained later, this
announcementwas only designedto escape condemnationby the
internationalcommunityand tojustify the assertionthat events in Bosnia
and Herzegovinaconstitutea "civilwar" T.his assertionis entirely
untenable. Howeverthis announcementwas a clear recognitionof the
massive presenceof Serbiantroops on the spotntil that date.
According to the Respondent, "on5 June 1992,the last Yugoslav soldier
left the temtory of Bosnia andHerzegovina" [Mr Etinski; public sessionof
26 August 1993, CR 93/34, p. 121.Very unfortunately,this statementis
untrue. In fact only about 14,000men on a total of 76,000 troops who
were non-residentsof Bosniaand Herzegovinawere withdrawn; the
remaining 80,000 men were transferredto theAmy of the so-called
"SerbianRepublic of Bosniaand Herzegovina" [theinitial narneof the
"Serpska Republic"] [seepara. 2.3.6.1 above] which is a mere creature of
Yugoslavia (Serbiaand Montenegro)[seebelow] andthe decisionskept on
being madein Belgradefrom wherethe orders came [seepara. 2.3.6.6
above]. Moreover, the JNA had suppliedthe paramilitary forces in Bosnia
and Herzegovina with weaponsand part of the soldiers continued to operate
under the uniforms and insigniasof the JNA.6.2.1.8 The record showsa massive continued involvement of former JNA troops
in the atrocities commitedon a largerscaleafter May 1992[seee.g.
6.2.1.9 The Federal Republicof Yugoslavia(Serbiaand Montenegro) continuedto
be directly involvedin the atrocitiesperpetratedin the Republicof Bosnia
and Herzegovina, although, in the lightof the establishmentof the so-called
"Srpska Republika", this involvement tooka different form.
6.2.1.10 First, the VJ as suchremainedpresent in Bosnia andHerzegovinaand its
members took directand active part in the atrocities committedagainst the
Muslim and Croatianpopulation. Thus, for example, commandersof
concentration camps havebeen and are very often officers of the VJ [see
Section2.2.11, so are the "intenogators".
6.2.1.11 Second, it must alsobe kept in mindthat genocideis committedby
Yugoslavia(Serbiaand Montenegro)not only in Bosniaand Herzegovina
but that "ethnic cleansing"is also committedon its own territory or in
Croatia. In this respect, thesituationin Sandjakmust particularlybe
stressed. As early as August 1992, Mr. TadeuszMazowiecki, the Special
Rapporteur of theCommission onHumanRights, noted that:
"In the regionborderingBosniaand Herzegovina classical
methodsof ethnic cleansingare employed. Housespertaining
to Muslims havebeen bumed and mosquesdestroyedby
tenorist attacksin the citiesof Pljevlia. Priiemlie and
Priboj. The presenceof various militaryand paramilitary
groups in the are., due to the proximityof the conflictin
Bosnia, has increased thesenseof insecurityaffiictingthe
Muslim population. An estimated70,000 Muslimsare
reported to have left theregion sincethe beginningof the conflict." [SecondRepon, Oct. 1992,EICN. 4119921s.1110,
para. 23, p. 7; emphasisadded].
In his SixthReport, Mr Mazowieckiagain notes that, in the sarneregion:
"There is a considerableamountof informationof
abductions, the destructionof homesthrougharson and the
use of explosives,and the general harassmentof Muslims,
including beatingsand torture by the police..." [21February
1994,E1CN.4119941110p ,ara. 144,p. 241.
6.2.1.12 Third, there is ample evidence ofcontinuedcrossing of the borders by
troops coming fromSerbiaand Montenegroand shellingof Muslim towns
and villagesin Bosnia andHerzegovina. [see e.g. 2.3.7.2.; 2.3.7.3;
2.3.7.41.
Section6.2.2
Recognitionof thesefactsby the internationalcommunity
The direct participationof Yugoslavia(Serbiaand Montenegro)in the
crime of genocidehas been widely acknowledgedboth by the international
community through the organsof the United Nations and in other
international forums and by individual States.This has been demonstrated
in detail in Part 3 and will only need to be reviewedagain briefly at this
stage. Withinthe United Nations
Neither the Security Council,nor the General Assembly, nor the Secretary-
6.2.2.2
General havebeen misledby the declarationsmadeby Yugoslavia (Serbia
and Montenegro) that it was not involvedin the perpetration of the crime
of genocideor that it had withdrawnits troops from the tenitory of Bosnia
and Herzegovina.
6.2.2.3 Eight daysafter the announcementby the Govemmentin Belgrade that it
would withdraw the JNA from Bosnia andHerzegovina, the Secretaq-
General expressedseriousdoubtsabout the reality of this announcement
and noted thatthe JNA was in fact supportingthe policy of ethnic cleansing
[seeS123900,12May 1992,para. 51.And, as early as 15May 1992, the
Security Councildemanded "thatal1forms of interference from outside
Bosnia andHerzegovina, includingbv units of the YugoslavPeo~le'sAmy
fJ.N.A.1 (...) ceaseimmediately"[Resolution 752(1992); emphasis added].
Fifteen days later it had to deplorethat "thedemandsin Resolution 752
(1992) have notbeen compliedwith" and it condemned
"the failure of the authoritiesin the Federal Republicof
Yugoslavia(Serbiaand Montenegro)includingthe Yugoslav
People'sAmy (JNA), to take effectivemeasuresto fulfil the
requirementsof Resolution 752(1992)"
and consequently,acting under Chapter VI1 of the Charter of the United
Nations itimposed sanctionsagainst Yugoslavia(Serbiaand Montenegro),
whose direct responsibilityfor thetragic eventsin Bosnia andHerzegovina
was thus clearly recognized pesolution 757 (1992)l. Sanctions were
reinforced by Resolutions787 (1992)of 16November 1992 and820 (1993)
of 17 April 1993.In June [seeResolution 762(1992)land October [see
Resolution786 (1992)], the Councilformallynoted that the JNA was stillpresent in Bosniaand Herzegovina.As late as 1993,the Secretary-General
confirmedthat the requirementof a withdrawalof JNA troops "has still not
been fulfilled" [A/47/869].
For its parts, in August 1992,the GeneralAssemblydemandedthat
"..those units of the YugoslavPeople's Army and elements
of the CroatianArmynow in Bosnia andHerzegovinamust
either be withdrawn,or be subjectto the authority of the
Governmentof Bosnia andHerzegovina,or be disbandedand
disarmedwith their weaponsplacedunder effective
internationalmonitoring,and requeststhe Secreîiuy-General
to considerwithoutdelay whatkindof international
assistancecouldbe providedin this connection"Desolution
461242,para. 33.
On 18December 1992,the GeneralAssembly inits Resolution47/121
"2. StronglycondemmSerbia, Montenegroand Serbian
forces in the Republicof Bosniaand Herzegovinafor
violationof the sovereignty,territorialintegrityand political
independenceof the Republicof Bosniaand Herzegovina,
and theirnon-compliancewith existingResolutionsof the
Security Counciland the GeneralAssembly,as well as the
London Peace Accordsof 25 August 1992;
3. Demandsthat Serbiaand Montenegroand Serbianforces
in the Republicof Bosnia andHerzegovinaimmediately
cease their aggressiveacts and hostility and complyfullyand
unconditionailywiththe relevant Resolutionsof the Security
Council, in particularResolutions 752 (1992)of 15May
1992, 757 (1992)of 30 May 1992,770 (1992)and 771
(1992)of 13August 1992.781 (1992)of 9 October 1992,
and 787 (1992)of 16November 1992,GeneralAssembly
Resolution461242and the London PeaceAccordsof 25
August 1992; 4. Demandsthat, in accordancewith Security Council
Resolution752 (1992),al1elementsof the Yugoslav
People's Amy still in the temtory of the Republicof Bosnia
and Herzegovinamustbe withdrawnimmediately,or be
subjectto the authorityof the Govemmentof the Republic of
Bosniaand Herzegovina,or be disbandedand disarmed with
their weaponsplaced under effectiveUnited Nations
control."
In another Resolutionadoptedthe sameday, the Assemblycondernned
"... in the strongestpossibleterms the abhorrentpractice of
"ethniccleaning", and recognizedthat the Serbianleadership
in temtories under their controlin Bosnia andHerzegovina,
the YugoslavAmy and the politicalleadershipof the
Republicof Serbiabear primary responsibilityfor this
reprehensive practice,which flagrantlyviolatesthe most
fundamentalprinciplesof humanrights" molution 4711471.
6.2.2.6 These fm condemnationswere reiteratedin Resolution48/88 of 20
December 1993in which, moreover, the GeneralAssembly
"Condemnsvigorouslythe violationsof the human rights of
the Bosnianpeople and of international humanitarianlaw
committedby parties to the conflict, especiallythose
committed as~olicvbv Serbiaand Montenegroand the
BosnianSerbs, who have done so fra~rantlvand on a
massive scale" (..);
and declares itself
"Dee~lyalarmedby the continuingsystematicabuses
committedagainstAlbanians, Bosnians,Hungariansand
Croatians, and others in Kosovo.Sandzakand Voivodina
respectively, by the authoritiesof Serbiaand Montenegr0
..." [emphasis added] .
This pronouncementwas further amplifiedin a following GeneralAssembly
Resolutionof the same date [48/153]. These thus constitue a uniquelegaldetermininationby the body reflectingvirtuallythe views of the
international communityas such.
In the same spirit the Commissionon Humanrights insisted, in February
1993that Yugoslavia (Serbiaand Montenegro)together with the Serb
paramilitary forces "bearprimary responsibility"for most of the violations
of human rights and internationalhumanitarian lawin the former
Yugoslavia ~esolution 7 (1993), 23 February 1993,para. 81.
Outsidethe United Nations
The responsibilityof Yugoslavia(Serbiaand Montenegro)for the "ethnic
cleansing"and the genocide committedin former Yugoslaviaand more
particularly in Bosniaand Herzegovinahas also been stressed in other
forums.
Thus, the C.S.C.E. has foundthat
"...primary responsibilityfor the conflictin Bosnia and
Herzegovinalies with the present leadersof Serbia and
Montenegroand withthe Serbianforces operatingin Bosnia
and Herzegovina" .
In the view of the C.S.C.E., these authoritiescontinueto pursue temtorial
gain through the use of force and to violatebasic human rights standards
through the odiouspracticeof "ethniccleansing" , and other brutalities
affecting many parts of the former YugoslaviaDeclaration of the Third
Meeting of the C.S.C.E. Council,Stockholm, 15December 19921.In
further confirmationof the view that the Govemmentof Yugoslavia(Serbia
and Montenegro)is intemationally responsible for"ethniccleansing" and genocide, the C.S.C.E. has taken the unprecedentedstep of excluding that
State from the C.S.C.E.
6.2.2.10 The European Community, forits part, repeatedlyand consistently
deplored and condemnedthe situationin Bosniafor which, in its view,
"...by far the greatest shareof the responsibilityfalls on the
Serbian leadershipand the Yugoslav Armycontrolledby it."
[European Council Declarationon Former Yugoslavia,
Lisbon, 27 June 1992,F/S/24200, 29 June 19921.
6.2.2.11 The World Conferenceon HumanRightsheld in Viennain June 1993also
adopted a declarationon Bosniaand Herzegovinain which it
"...stronglycondemnsSerbia -Montenegro, the Yugoslav
National Amy, the Serbianmilitiaand the extremist
elementsin the BosnianCroatianmilitiaforces as
perpetrators of these crimes"
that is:
"...the practice of ethniccleansingresulting from Serbian
aggressionagainstthe Muslimand Croat populationin the
Republicof Bosniaand Herzegovina[which]constitutes
genocidein violationof the Conventionon the Prevention
and Punishmentof the Crimeof Genocide". [A/Conf. 157124
(part l), p. 47, emphasisadded].
6.2.2.12 Many individual States alsoexpressedthe view that Yugoslavia(Serbia and
Montenegro)bears the mainresponsibility for the genocidecommittedin
the Former Yugoslaviaand more particularlyin Bosniaand Herzegovina. It
is not possiblewithinthe confinesof this Memorial to reproduce this vast
amoujnt of State Practice. The legal determinationsof States are of course
evidencedin the submissionsto the UN - and other bodies, whoen debating
the adoptionof resolutionsand decisions citedand qouted above. These
resolutions and decisionsin themselvesrepresent thechrystallisationof this
virtually unanimousState Practice. Section6.2.3
Legalconsequences
As the General Assemblyrecalled in its Resolution461242of 25 August
"Statesare to be accountablefor violationsof human rights
which their agentscommitupon the tenitory of another
State" [seealso Resolution 19921s-111of the Human Rights
Commission, para. 111.
This is the mere applicationof the basic principle of the internationallaw
of State responsibilityas codifiedin Article5 of Part 1of the I.L.C.'s draft
according to which
"...conductof any State organ having thatstatusunder the
intemal law of that State shallbe consideredas an act of the
State concemed under intemationallaw, provided thatorgan
was acting in that capacityin the casein question".
In the present case, therecanbe no doubt that the YugoslavNational Army
(JNA), which bears responsibility for theacts of genocidein former
Yugoslaviaand particularlyin Bosniaand Herzegovina,is a "State organ"
of Yugoslavia(Serbiaand Montenegro).Moreover, this was explicitly
provided for in Article 240 of the 1974Constitutionof the Former Socialist
Federal Republicof Yugoslaviawhich remainedin force in Serbia and
Montenegro until27 April 1992. TheVJ assumesthis very functionin
Yugoslavia (Serbiaand Montenegro) afler that date.
There also is no doubtingthat the JNA, later the VJ, acted andis acting in
its capacity as an organ of Yugoslavia(Serbiaand Montenegro) in this case. As shown inChapter 2 of the present Memorial, the "operational
chain of command"of the YugoslavArmy has not been changed since 1991
and is centered in Belgrade, including thatfor al1militaryoperations in
Bosnia andHerzegovina [para. 2.3.6.61. There is no signthat the
Govemment in Belgradeever disapprovedor disownedthe behavior of its
armed forces, or has attempted torestrain it.
6.2.3.5 A fm legal conclusionmay therefore bedrawn fromthis concurrent and
impressive pattern of facts: Yugoslavia (Serbiaand Montenegro)is directly
responsible for its direct participationin the genocide committedagainst the
Muslims (and other peoples (of Former Yugoslaviaand, particularly)) of
the Republic of Bosnia andHerzegovinaand the findingsof the Court in its
Orders of April 8 and 13September 1993,which were drafted in the
conditionalmust be put in the indicativemood: the Governmentof the
Federal Republicof Yugoslavia(Serbiaand Montenegro)has not ensured
that its military,ramilitaryor irregular [but directly controlled)armed
units havenot committedacts of genocide, of conspiracyto commit
genocide, of direct and public incitementto commit genocide, or of
complicityin genocidewhetherdirectedagainst the Muslim population of
Bosnia and Herzegovinaor againstany other national,ethnical, racial or
religious group. Rather to the contrary, suchacts havebeen committedby
the organs of Yugoslavia (Serbiaand Montenegro), particularlyby its
Army with the fiil1knowledgeand approbationof its Govemment. The
Defendant State has therefore violatedand is still violatingits legal
obligationas undertakenin the Conventionon the Preventionand
Punishmentof the Crimeof Genocideof 9 December 1948. It therefore
implicatesits internationalresponsibility. CHAPTER6.3
THEAGENTS,SURROGATESANDOTHERPERSONS ACTING
ON BEHALFOF YUGOSLAVIAHAVEPARTICIPATEDIN THE
GENOCIDE
It has been a leitmotifof the Representativesof Yugoslavia(Serbia and
Montenegro) during the proceedingsrelatingto the Requestsfor the
indicationof provisionalmeasures thatthe Applicantwas unable "to see a
distinctionbetweenthe actionsand the standpointsof the Federal
Govemmentof Yugoslaviaitself, and the actionsand the standpointsof the
Serbs in Bosnia-Herzegovina" [Professor Rosenne,Public Sittingof Friday
2 April 1993, CR 93-13, p. 52; see aiso e.g. ibid.,7 -.8 or 33; CR 93-
94, p. 15or Observationsof 9 August 1993, p. 9, etc.].
6.3.0.2. There is, however, no confusionat ail; or, rather, if there is confusion, it
results from the behaviourof Yugoslavia(Serbiaand Montenegro) itself
since this Statehas establisheditsfactosovereigntyon extensive
territories belongingto the Republicof Bosnia andHerzegovinawhere it
acts as the real ruler, either directly [seeChapter 6.2, above], or through
the so-called"SrpskaRepublika"or othergroups or individualswhich are,
in fact, acting on its behaif. Accordingto weil establishedprinciplesof
intemationallaw [Section6.3.11, the intemationally wrongfulacts
comrnittedby suchpersonsor groupsentailthe responsibilityof Yugoslavia
(Serbiaand Montenegro)[Section6.3.31. Section6.3.1
The applicable law
6.3.1.1 The principle codifiedin Article 8 of Part 1of the I.L.C. draft on State
Responsibilitymust beinterpretedwidely. Accordingto this provision:
"Article8. Attributionto the Stateoftheconductofpersons
actinginfact on behalfoftheState
The conductof a person or group of persons shallalso be
consideredas an act of the Stateunder internationallaw if:
(a) it is established thatsuchpersons or group of persons
was in factactingon behalf of that State; or
(b)suchperson or group of persons was infact exercising
elementsof the governmentalauthorityin the absence of the
official authonties and in circumstanceswhichjustified the
exerciseof thoseelementsof authority."
Commentingon this provision, the then SpecialRapporteur wrote:
"The attributionto the State,as a subjectof international
law, of the conductof persons who are in fact operating on
its behalf or at its instigation(though without having
acquired the statusof organs, either of the Stateitself or of a
separateofficialinstitution providinga public service or
performing a public function)is unanimouslyupheld by the
writers on internationallaw whohave dealt with this
question." [R. AGO, ThirdReportonStateResponsibility,
I.L.C. Yearbook1971, vol. II, Part 1,p. 2661
Judge AG0 also noted:
"...privatepersons may be secretlyappointedto carryout
particular missionsor tasks to which the organs of the State
prefer not to assignregular Stateofficiais;people may be
sentas so-ded "volunteers"to helpan insurrectional
movementin a neighbounng country - and many more
examplescouldbe given." [id. p. 2631.These views are supportedby unanimousdoctrine. Althoughwriters usually
discuss the intemationaluse of force, it is obvious thatthe principles they
describe may be transponedto other breachesof internationallaw and
apply in particular in case of genocide[seee.g. Hans WENBERG,
"L'interdiction du recours a la force; le principe et les problemesqui se
posent", Ree, des cours 1951-1,vol. 78, p. 68; RosalynHIGGINS, "The
Legal Limits to the Use of Force by SovereignStates - United Nations
Pratice", B. Yb. I.L., 1961, p. 278 et seq;.Ian BROWNLIE,International
Law and the Use of Force by States, 1963,p. 361; RIFAAT, International
Agression, 1979, p. 217; etc.].
Therefore, the Governmentof the Republicof Bosnia andHerzegovina
submits thatthe authoritiesof the so-called"SrpskaRepublika", its "Army"
and its other "organs" as well as other groupsand individualsdirectly
controlledby the Govemmentof Belgrade have acted andare acting
exclusively onbehalf of Yugoslavia (Serbiaand Montenegro). Their
intemationally wrongfulacts and, in particular, their participationin the
acts of genocide, entail therefore the responsibilityof the latter.
Section6.3.2
Reminderofthe relevantfacts
On 28 March 1992,one dayafter the declarationof independenceby the
Republic of Bosniaand Herzegovina,Serbian extremistleaders in Bosnia
and Herzegovina proclaimeda so-called "SerbianRepublic of Bosnia-
Herzegovina" , subsequentlythe "Srpska Republika" , whose forces,
seemingly, took over the JNA and Serbianand Montenegranpolice forces. But this was only for the sake of appearances:the Republicof Bosnia and
Herzegovina had been universallyrecognizedand admitted in the United
Nations; Yugoslavia (Serbiaand Montenegro)had been condemnedby the
Security Council and the GeneraiAssemblyfor its continuinginterference
in the new sovereignState, its direct involvementin the policy of "ethnic
cleansing" and its violationsof the territorial integrity of its neighbour
States. Itthen apparentlydecidedto withdrawand to act under the screen
of a Puppetentity entirelyat its disposal. Moreover, for obvious reasons, it
wanted to claim that eventsin Bosniaand Herzegovina amountedto pure
civil war.
6.3.2.2 In fact, nothing changed.The authoritiesof the supposed "new State"
continued to taketheir orders from Belgrade; the JNAcontinued, under a
new name, its campaignof genocidewith not onlythe aid, but under the
control of, and with substantialsupplies from Yugoslavia(Serbia and
Montenegro) .
6.3.2.3 As shownin Section2.3.6 above, the "decision" thatthe Governmentin
Belgrade claimsto have made in May 1992 was, in fact, never
implementedand the major part of JNA troops remained in Bosnia and
Herzegovina, only changinguniformsand insignias - and not even thatin
al1cases. Moreover:
- the officers continuedto be appointedby Belgrade, includingthe
"Commanderin Chief of the SerbianAmy in Bosnia and
Herzegovina", Generai Ratko MLADIC, who was appointed after
this so-calleddecisionof "withdrawal",and is still at his post.
Before being appointedin Bosnia andHerzegovina, Mladic ruthlesslydistinguishedhimselfas the leader of the Serbforces in
Croatia.
Most of JNA's mi1iiiu-y equipmentwas left in Bosnia and
Herzegovina, as expresslyproclaimedby President Cosicin the
declarationto the YugoslavFederal Assembly [seeabove, para.
2.3.6.41, and military supplieshave, since then, continuouslybeen
sent from Serbia to thoseparts of the Republicof Bosnia and
Herzegovinacontrolledby Serbianextremists [see above, para.
2.3.7.11; and
the so-called"army of the SrpskaRepublika"receives its orders
exclusivelyfrom the "YugoslavSupremeDefence Council"
(composedof the Presidentof Yugoslavia(Serbiaand Montenegro)
and Presidents of theRepublicsof Serbiaand Montenegro), the
General Staffin Belgrade [seeabove, para. 2.3.6.61.
Concretely, it does not really matter therefore whether atrocities are
committed overtly by the JNA, later VJ, or by the "Amy" and the police
of the so-called "Srpska Republika"they are interchangeable;the atrocities
are committedby men who Weardifferent uniforms, butare under the
same command.
It cantherefore be safelyconcludedthat al1the acts of genocide, the
shockingreality of which has ben establishedin Parts 2 and 5 above,
which havebeen committedby the forces of the so-called "Srpska
Republika" were in fact committedon behalf ofYugoslavia (Serbianand
Montenegro) .6.3.2.6 It is highly significantin this respect thatboth Yugoslavia(Serbia and
Montenegro) and the so-called"Srpska Republika" behave clearly in a way
indicatingthat the latter is not an independentState, or indeed a quasi-
sovereign entityof anykind. Thus, in the meetingsof the International
Conferenceon Former Yugoslavia,the representativesof the so-called
"Srpska Republika"sit with the delegationof Yugoslavia(Serbia and
Montenegro). In the sameway, it mustbe notedthat the Applicationto the
I.C.J. madeby Yugoslavia (Serbiaand Montenegro)as recent as 16 March
1994, challengesthe validityof the decisionstaken at a meetingof the
North Atlantic Councilon 9 February 1994,the aim of which is to protect
the temtory of Bosniaand Herzegovina.This showsin the clearest way
that Yugoslavia(Serbiaand Montenegro)considersthe part of Bosnia and
Herzegovina it controlsthroughthe so-called"Srpska Republika"as part of
its own territory [seepara. 2.3.8.61.
Theconductof theso-called "SrpskaRepublika" entailsYugoslavia (Serbia
andMontenegro) 'sresponsibility
6.3.2.7 It is evident from the facts that the entitywhich calls itself "Srpska
Republika" does not exist as a Stateand, indeed, has no legal existence at
all.
6.3.2.8 As recalled by the ArbitrationCommissionof the InternationalConference
on Former Yugoslavia:
"...the Stateis commonlydefinedas a communitywhich
consistsof a temtory and a populationsubjectto an
organizedpoliticalauthority; (..) sucha stateis characterizedby sovereignty"[Opinionno. 1, I.L.M. 1992,
vol. XXXI, p. 14951.
It mightbe admitted thatthe so-called"SrpskaRepublika" - which has not
been recognizedby any State, not even, at least dejure by Yugoslavia
(Serbia and Montenegro) -could avail itself ofa "territory" [althoughill-
defrned]and a "population"[althoughthe result of ethnic cleansing, that is
a conduct clearly impermissibleunder internationallaw and in contradiction
with internationalius cogens]; but it has neither an "organizedpolitical
authority" nor sovereigntyin the meaningthese words have in international
law .
As the Badinter Commissionconfirmed, the Serb population ofBosniaand
Herzegovinais not a self determinationentity entitledto independenceand
statehood. It is of course intitledto the enjoymentof a wide range of
human and rninorityrights, but not to armedsecession. In this particular
case, purported creationof statehoodcame about as the result of the
unlawfuluse of force by the Federal Republicof Yugoslavia(Serbiaand
Montenegro), and of the genocidalpractice of ethnic cleansing.As the
United Nations SecurityCouncilhas madeclear in numerousother cases,
the creation or maintenanceof an entitypurporting to be a state in violation
of the prohibitionof the use of force, or al1other rules ojus cogens, such
as the prohibitionof apartheid, and it is subrnitted,the obligationnot to
perpetrate genocide, cannothave legal consequences.Therefore, even as
the so-calledSerb Republicwere to exercise some sort of effective
authority, this would notendowit with internationallegal status. It remains
a surrogate of the FederalRepublicof Yugoslavia(Serbiaand
Montenegro) .6.3.2.9 The "government"of this so-called"State"is entirely in the hands of the
Govemment in Belgrade, it has no effectivity whatsoever,and no authority
except by the grace of their mastersin Belgrade.
Section6.3.3
Legalconsequenees
6.3.3.1 In such conditions thereis no questionof sovereignty .According to Judge
Max HUBER celebrateddictum:
"Sovereigntyin the relationsbetweenStates signifies
independence.Independencein regard to a portion of the
globe is the right to exercisetherein, to the exclusionof any
other State, the functionsof a State" ,[Island of Palmas
Arbitration, 1928,R.Z.A.A.II, p. 8381.
As recalled in OPPENHEIM7s9th edition, "Sovereigntyis supreme
authority, which on the international planemeans (...]legal authority which
is not in law dependanton anyother earthly authority" [op. cit., p. 1221.
In the present case, the authorityof the so-called"Srpska Republika"is
entirely dependenton the Govemmentin Belgrade andit cannot, therefore,
claim statehood.
6.3.3.2 However, it can be added in passing that evenif this entity were a State -
which it is not -, Yugoslavia (Serbiaand Montenegro)would, nevertheless
be responsible for the genocidecommittedby the organs of this so-called
"State" or by persons acting on its behalf. In effect, as declared in Article
28, paragraph 1, of the First Part of the I.L.C.'s Draft on State
Responsibility :
"An internationallywrongfulact committedby a State in a
field of activityin whichthat stateis subjectto the power of direction and control of another Stateentails the international
responsibilityof that other State[seealso Article 12,
pa.rasraph21.
[seealso, a contrario,the Arbitral award of November 1923in re Brown,
R.Z.A.A.,Vol. VI, pp. 120et. seq., a case largelytaken into consideration
by the I.L.C. - seeZ.L C.. Yearbook1979,vol. II, part II, p. 1061.
In the presentcase, it is clear that if the so-called "Srpska Republika"were
a State and could be heldas such to be the perpetrator of the crime of
genocideon the temtory it controls, it would, nevertheless havebeen
"subjectto the power of directionand control" of Yugoslavia(Serbiaand
Montenegro)whose responsibilitywould therefore be entailed. This would
be an hypothesisof "indirect responsibility"in the meaningof Judge
AGO's separateopinionin the Case conceming MilitaryandPararnilitary
ActivitiesinandagainstNicaragua:
"The situationswhich canbe correctlytermedcases of
indirect responsibilityarehosein whichone State that, in
certain circumstances,exerts control over the actions of
another canbe held responsiblefor an internationally
wrongful act committedby and imputableto that second
State. The question thatises in suchcases is not that of the
imputabilityto a Stateof the conductof persons and groups
that do not form part of its officialapparatus, but thatof the
transfer to a Stateof the international responsibilityincurred
through an act imputableto anotherState." [I.C.J. Reports,
1986,p. 1891.
If Yugoslavia (Serbiaand Montenegro)wouldbe responsiblefor the
conduct of the so-called "SrpskaRepublika"if this entity were a State, a
fortiori this holds tme if, as it is this case, it is not a Statebut a mere de
facto artificial entity emanatingfrom Belgrade.6.3.3.4 Indeed, if the authoritiesof the so-cailed"Srpska Republika"cannot claim
statehood - and, in the view of the Govemmentof Bosniaand Herzegovina,
they certainly cannot -,they are but agents and surrogatesof Yugoslavia
(Serbia and Montenegro). Thisis in contrast with the factsof the first
phase in the Hostages case, where
"no suggestion[had]been made that the militants, when they
executedtheir attackon the Embassy, had any form of
officiai status as recognized "agents"or organs of the Iranian
State" [I.C.J. Reports, 1980,p. 291.
In the present case, the behaviourof the Governmentof Yugoslavia(Serbia
and Montenegro)showsthat, from the very beginning,the authoritiesof
the so-called "SrpskaRepublika" havebeen "agents" of Yugoslavia (Serbia
and Montenegro) "for whoseacts [this]State itself [is] intemationally
responsible" [see id., p. 351.Also incontrast with the facts in Nicaragua
vs. UnitedStates, Yugoslavia (Serbiaand Montenegro)is in "effective
control of the military or paramilitaryoperations "ofthe so-called "Amy
of the Serbian Republicof Bosniaand Herzegovina" [see I.C.J. Reports,
1986,p. 651.
6.3.3.5 Althoughinternationaljurisprudence does not reflect the sarnegross
character of eventsthat are evidentin the present case [see the Report of
the I.L.C. to theGeneralAssembly in1974I. C.J. Yearbook1974, vol. II,
1st Part, commentaryon Art. 8, paras. 4 and 5, Article Ka], the I.L.C. 's
Draft Articles on stateResponsibilityare entirely relevantin the present
case [citedabove, para. 6.3.1.11.
The so-called "SrpskaRepublika"is but a "groupof persons" acting in fact
on behalf of the Stateof Yugoslavia(Serbiaand Montenegro), and this
applies, of course, toailof its "organs"and "agents".6.3.3.6 Moreover, as explainedbefore [para. 6.3.3.21, if this entity were a State,
its conduct would, nevertheless,entail Yugoslavia(Serbiaand
Montenegro)'~responsibility.It is therefore unthinkablethat, as it is not
even a Stateoperatingunder the umbrellaof "Yugoslavian"sovereignty,
the wrongful actsof this entity would notbe attributableto Yugoslavia
(Serbia and Montenegro).
6.3.3.7 Consequently, ail the atrocitiescomrnittedby this so-called "State", by its
organs and its agents or by any other persons or groups of persons acting
in fact on behaif of Yugoslavia (Serbiaand Montenegro)against the
Muslim and other non-Serbpopulationon the temtory of the so-called
"Srpska Republic" must beattributedto Yugoslavia(Serbiaand
Montenegro) .
As showedin Part 5 above, theseacts amount, without anydoubt to
genocide.
CHAPTER6.4
YUGOSLAVIA(SERBIAAND MONTENEGRO) HAS AIDW AND
ABETTEDGROUPS AND INDIVIDUALSIN THEACTSOF
GENOCIDE
6.4.0.1 In its Order o8 April 1993, the Courtindicated that
"The Governmentof the FederalRepublicof Yugoslavia
(Serbiaand Montenegro)should inparticular ensure that any
rnilitary,paramilitaryor irregular armedunits which may be
directed orupportedby it, as wellas any organizationsand
persons which may be subjectto its control, direction or
influence, do not commitany acts of genocide, of conspiracy
to commmitgenocide, of direct and public incitementto commit genocide,or of complicityin genocide, whether
directed against theMuslimpopulationof Bosnia and
Herzegovinaor againstany other national,ethnical, racial or
religious groups" D.C.J. Repon 1993,p. 241.This was
reiterated in the Order of 13September1993 [id.p. 3491.
6.4.0.2 In a situationof intemationalarmed conflict, inextricableas is the situation
prevailing in the former Yugoslavia,it is not always easy to determine
precisely who are the wrongdoersand to makea clear distinctionbetween
the intemationallywrongfulacts committeddirectlyby Yugoslavia(Serbia
and Montenegro), its organs, its agentsand its surrogates on the one hand,
and those committedby "organizationsand persons (....)subject to its
control, direction or influence". This is al1the more difficult now that most
of the evidenceis situatedeither in Yugoslavia(Serbiaand Montenegro)
proper or in that part of the temtory of Bosniaand Herzegovina under its
control. "By reason of this exclusivecontrol, the other State [in the present
case, Bosnia and Herzegovina],the victimof a breach of internationallaw,
is often unable to fumish directproof of facts givingrise to responsibility"
[Co* Channel Case, I.C.J. Repons 1949, p. 181,and, in particular, to
determine the real legal natureof the perpetrations.
6.4.0.3 In this particularcase, the United NationsSecurityCouncil, and other
authontative international organs,haveleft no doubt whatsoever, as to who
is intemationallyresponsiblefor the launchingand sustainingof the
carnpaignof armed force and genocidein the tenitory of the Republic of
Bosnia andHerzegovina. As has been indicatedin Part 3, the international
communityeven adoptedthe most comprehensivesanctionsregime to date
against that perpetrator: the FederalRepublicof Yugoslavia(Serbia and
Montenegro) .Having establishedthe responsibility ofthe Federal Republicof Yugoslavia
(Serbia and Montenegro) foracts of genocideperpetrated directly by its
own organs and its surrogates, the legal analysis willnow tum to
responsibilityincurred for aiding and abetting individualsand groups
operating in the Republicof Bosniaand Herzegovina.
Section6.4.1
The applicablelaw
The principle that a Stateentails its responsibility whenit aids groups or
persons to commit an internationalwrongfulact findsbroad supportin the
internationaljurisprudence. Itgoes as far back as the historicAlabama
ClairnsArbitrationin whichthe U.S./Great BritainArbitral Tribunal
decided, in 1872, GreatBritainhad entailedits own responsibilityin having
fitted out, armed, equippedand suppliedConfederatecruisers. moore,
HistoryandDigestof theInternationaA l rbitrationsto whichthe United
States hm beena Party, vol. 1,p. 6531.More recently the I.C.J. has
decided that Iran's responsibilitywas entailed inthe HostagesCase,both
because, in a first phase, it had not preventedthe acts of the "militants"
[seeabove para. 6.2.3.61 and because, during the secondphase, they were
acting on behalfof the state, under "the sealof officialgovemment
approval" (I.C.J. Reports1980,pp. 33-35,at p. 34). In the same line, in
itsjudgement of 27 June 1986, the Courtdecided:
"that the UnitedStates of America, by training, arming,
equipping, fmancingand supplyingthe contra forces or
otherwiseencouraging, supportingand aiding militaryand
pararnilitaryactivitiesin and againstNicaragua, has acted,
against theRepublicof Nicaragua, in breach of its obligation under customary internationallaw notto intervenein the
affairs of another State" [I.J.Reports1986,p. 1461.
and thatthe United Stateswas "undera duty immediatelyto cease and to
refrain formal1such acts" and "underan obligationto make reparation to
the Republicof Nicaraguafor allinjury caused to Nicaragua by these
breaches" [id. p. 1491.
6.4.1.2 It is al1the more certain in the present casethat Yugoslavia(Serbiaand
Montenegro)entails its responsibility for breachesof the Genocide
Conventionfor aiding and abettinggroups and individualsin genocide, that
Article III of the said Conventiondefinesas "punishable"not only genocide
itself, but also "conspiracyto commitgenocide", "direct and public
incitementto commit genocide", "attemptto commit genocide" and
"complicity in genocide". Al1these acts havebeen defined in Part 5 above.
Moreover, it canbe noted that Article 7 of the Statuteof the International
CriminalTribunal for Former Yugoslaviaadoptedby Resolution827
(1993)of the SecurityCouncilof 25 May 1993, holds responsible for the
crimes enumeratedin Articles2 to 5 -including genocide(Article 4), "a
person who planned, instigated,ordered, committedor otherwiseaided and
abetted in the ulanninn. ureparationor executionof those crimes"
(emphasis added).
6.4.1.3 Probably, the Court offered thebest definitionof "complicity"and other
related acts intsjudgment in the Nicaragua case.The Court suggested
that it wasmaterialin determiningthe unlawfulnessof encouragingthe
commissionof acts
"..to consider whetherthat encouragementwas offered to
persons in circumstanceswhere the commissionof such acts
was likely or foreseeable" P.C.J. Reports1986,p. 1301.6.4.1.4 In thisjudgment, the Courtconsideredthe allegationsof Nicaragua
according to which the militaryand paramilitary actionslaunchedin and
against Nicaragua would be "essentiallythe acts of the United States". The
Court recalled
"If such a findingof the imputabilityof the acts of the
contras to the United States wereto be made,no question
would arise of mere complicity inthose acts, or of
incitementof thecontras to committhem." P.C.J. Reports
1986, p. 641.
However,
"The Court has taken the view ...that UnitedStates
participation, even ifpreponderantor decisive, in the
fmancing ,organizing , training, supplyingand equippingof
the contras, the selectionof its militaryor paramilitary
targets, and the planningof the wholeof its operation, is still
insufficientin itself, on the basis of the evidencein the
possessionof the Court, for the purpose of attributingto the
United States the actscommittedby the contras in the course
of their rnilitaryof paramilitary operationsin Nicaragua. Al1
the foms of United States participationmentionedabove,
and eventhe general controlby the respondentState over a
force with a high degree of dependencyon it, would not in
themselvesmean, withoutfurther evidence, that the United
Statesdirected or enforcedthe perpetrationof the acts
contrary to humanrights and humanitarianlaw alleged by the
applicantState. Suchacts could well be committedby
membersof the contras withoutthe control of the United
States. For this conductto give nse to legal responsibilityof
the United States, it would in principlehave to beproved
that thatState had effectivecontrolof the military or
paramilitary operationsin the course of which the alleged
violations were committed. " [id.,pp. 64-65].
Consequently ,
"The Court does not consider that the assistance givenby the
United Statesto the contras warrantsthe conclusion that
these forces are subjectto the United States to such an extent that any acts they havecommittedare imputableto that
State. It takes the view that the contras remain responsible
for their acts, and that the United Statesis not responsible
for the acts of the contras, but for its own conduct vis-à-vis
Nicaragua, includingconduct related tothe acts of the
contras. What the Court has to investigateis not the
complaintsrelating to allegedviolationsof humanitarianlaws
by the contras, regarded by Nicaraguaas imputableto the
United States, but rather unlawfulacts for which the United
Statesmay be responsibledirectlyin connectionwith the
activitiesof the contras. The lawfulnessor otherwiseof such
acts of the United Statesis a questiondifferent fromthe
violationsof humanitarianlaw ofwhich the contras may or
may not havebeen guilty. Itis for this reason that the Court
does not have todeterminewhetherthe violationsof
humanitarianlaw attributedto the contras were in fact
committedby them. At the sametime, the questionwhether
the United StatesGovernment was,or must have ben,
aware at the relevant time that allegationsof breaches of
humanitarianlaw were being madeagainstthe contras is
relevantto an assessmentof the lawfulnessof the action of
the United States." [id., p. 651.
Section6.4.2
Reminderof the relevantfacts
6.4.2.1 It is clear from the record thatYugoslavia(Serbiaand Montenegro)has
ben "omnipresentin the genocide". This "omnipresence"has been - and
still isreflectedby the presenceon the spotof its organs, includingthe
JNA, then the VJ, and its agentsand surrogates, includingthe co-called
"Srpska Republika"and also - by the incitementand ideological
backgroundit has offered to all thoseparticipatingin the genocide, which
arnountto a conspiracyto commitgenocide,-
by training, arming, equipping, financingand supplyingthe groups
and individualscommittinggenocide, and
- by infiltrationinto the territory of Bosniaand Herzegovina of
irregular forces.
Chapter 3 of Part 2 has presentedthe (historical)context in which the
genocide is being perpetrated. It is crystal-clearthat the ideologyof Greater
Serbia [Section2.3.11 has constitutedthe general backgroundand a
constant sourceof inspirationfor those who commit genocidalacts. Indeed,
a State cannotbe held repsonsiblefor an ideologyas such. But things
change when it makesit an officialideology, and spreadsit through the
media which it entirely controls,censoringal1contrary views. As Mr.
Tadeusz Mazowiecki,the Special Rapporteurof the Commissionon Human
Rights stressed in his "SixthReport on the situationof human rights in the
temtory of the former Yugoslavian,with respect toSerbia:
"A primary areaof concern for the Special Rapporteuris the
incitementto nationaland religioushatred in public life and
in the media. In publiclife, leadingpolitical figures make
inflammatoryand threatening statementsagainst rninority
groups on a regular basis. On severaloccasions, for
instance, the leader of the Serbian RadicalParty, Mr.
Vojislav Seklj, has suggested thatthe Hungarianand
Albanianrninoritiesshouldbe expelled fromVojvodinaand
Kosovo, respectively.The incitementto hatredby political
leaders was particularlywidespreadduring the carnpaigns
leadingto the parliamentaryelectionsin December 1993.
The use of demagogic methodsin order to intensifyand
manipulateirrationalfears and prejudicesamong the
electorate appears to be an importantmeansof gainingvotes.
.............................................................
"The prevailingclimateof ethnicand religious hatredis also
encouragedthroughmisinformation, censorshipand
indoctrinationby the media (seeWCN.411994147,paras. 176-179). In particular, the coverageof atrocities committed
in the conflictbetweenSerbs and Muslimsin Bosnia and
Herzegovinais selectiveand one-sided.The media denigrates
Muslimsand Islam throughsensationalistand distorted
account of historicaland existing "crimes" which they have
committed "against theSerbianpeople" whilegrave
violations perpetrated againstMuslimsare either rarely
reported or discount4 as maliciousaccusations formingpart
of an "anti-Serbian conspiracy".The programming of the
State-controlledTV Belgraderegularly involves the
demonizationof certain ethnicand religious groups.In this
respect, a particularly disturbing broadcastis the programme
Iskre i varnice nedelia" E/CN.4/1994/110, 21 February
1994,paras. 124and 125,p. 21; on Montenegro, see id.,
para. 149,p. 25).
6.4.2.3 Incitementto ethnicand religioushatred and genocideis combinedwith
strategicplans aïmingat realizingthe "GreaterSerbia" through killing,
deportation, expulsion,ill-treatmentor rapeof non-Serbsand, particularly,
membersof the Muslimpopulation.The most well-knownand systematic
of these plans is"RAM" [seeabove section2.3.41 which haseffectively
been brought into operation. It is worth noting, for example, that on 21
July 1993, GeneralRatkoMLADICopenlydeclared:
"Thingsare movingvery well, accordingto plan". [New
YorkTimes,22 July 1993,emphasisadded]
6.4.2.4 In executionof the RAM plan, theJNA began to transfer arms to Serbian
communities inBosnia andHerzegovina[seeabove, paras. 2.3.4.2;
2.3.4.31 and these suppliesin arms continuedand evenintensifiedafter the
independenceof Bosnia andHerzegovina, togetherwith suppliesin
equipment, food, etc. [seeparas. 2.3.7.1; 3.2.0.13 above, or the facts
listed in the SeparateOpinionof Judge LAUTERPACHT, I.C.J. Reports
1993,pp. 428-4291.Moreover, as recalled in Part 2 above, in addition toarms suppliesand
logistical supportgiven by Yugoslavia(Serbiaand Montenegro)to the
"BosnianSerbs", VJ troopsand aircraft regularly crossthe border while
paramilitaq groups are formed, equippedand trained in Serbiaand
Montenegro [seee.g. para. 2.3.7.2etseq.].
Section6.4.3
Recognitionof these facts by the internationalcornmunity
The aiding and abettingof Yugoslavia(Serbiaand Montenegro) in the
genocide has been widelyacknowledgedby the international community
together and complementarywith the condemnationof this State for its
direct participationin the acts of genocid[see above Section6.2.21. This
has been done in and outsidethe UnitedNations.
In multiple resolutions,the SecurityCouncil insistedthat Yugoslavia
(Serbia and Montenegro)must ceaseits aid to paramilitarygroups
operating in Bosniaand Herzegovina:
-
in resolution787 (1992, it
"Demand that al1forms of interferencefrom outside the
Republic of Bosniaand Herzegovinaincludin~infiltration
into the country of irregular units and-personnel,cease
immediately ..."[16November 1992, emphasisadded];
- in resolution 819 (1993), it
"Demand that the Federal Republicof Yugoslavia(Serbia
and Montenegro)immediatelycease the su~~lvof militarv
arms. wuipment and servicesto the BosnianSerb paramilitary units in the Republic ofBosniaand
Herzegovina" [16 April 1993, emphasis added];
- in resolution820 (1993)adoptedthe followingday, it expresses "its
condemnationof al1the activitiescanied out in violation of
resolutions 757 (1992)and 787 (1992)between the temtory of the
Federal Republicof Yu~oslavia(Serbiaand Montenegro)and Serb-
controlled areas in the Republicof Croatia and the Republicof
Bosniaand Herzegovina" (emphasisadded) and strengthened the
sanctionsagainst Yugoslavia(Serbiaand Montenegro)in order to
impede these activities [seealso Resolution838 (1993)of 10June
19931,etc.
Thus the Counciiboth stronglycondemnedthe acts of "BosnianSerbs" and
the aid given to them by Yugoslavia(Serbiaand Montenegro).
6.4.3.3 In its most recent resolution,adoptedon 20 December 1993, the General
Assembly supports theposition takenby the Security Councilin this
respect and
"Requeststhe Security Councilto followand immediately
implementits resolution 838 (1993)of 10June 1993to
ensure that theFederal Republicof Yugoslavia(Serbia and
Montenegro) immediately cease the supplyof miiitary arms,
equipmentand servicesto BosnianSerb paramilitary units, as
demanded in SecurityCouncilResolution 819 (1993)of 16
April 1993. " [Resolution 48/88].
6.4.3.4 Many other international organsstressed that Yugoslavia(Serbiaand
Montenegro) exercisesa great influenceon the "BosnianSerbs". Thus, the
Special Rapporteurof the Commissionon Human Rights confirmed that
irregularparamilitarygroups which were very active in the "ethniccleansing" were armed and equippedwith "very large stock of military
hardware" suppliedby the JNA[cf. A/47/666, paras. 14-15].
For their parts, the E.E.C. and the C.S.C.E. alsoacknowledgedthe
influence of Yugoslavia (Serbiaand Montenegro)on the forces operatingin
Bosnia and Herzegovina.Thus, in a statementon Bosnia-Herzegovina, the
E.C. and its Member States, as early as 11Apnl 1992, called upon the
"Serbianand CroatianGovemmentsto exercise al1their
undoubtedinfluence[to endthe interferencein the affairs of
an independent Republicand to condemnpublicly and
unreservedlv theuse of force in Bosniaand Herzeeovina"
[E.P.C. Press Release46/92, emphasis added] ,
- and, on 15 April 1992, theRepresentativesof the C.S.C.E. Participating
States, during a Helsinki Follow-up Meeting,
"condemnedthe Serbianirregulars and the JNA for violating
the independenceand territorial integrity of Bosnia-
Herzegovinaand the human nghts of its people, and "urged
the Govemmentof Serbia to discontinueits support for such
actions which, if continued,would constitutea pattern of
clear, gross and uncorrectedviolationof CSCE
comrnitments." [seeMarc WELLER, "The International
Responseto the Dissolutionof the SocialistFederal Republic
of Yugoslavia", A.J.Z.L. 1992,no. 3, p. 5981.
Perhaps the most convincinganalysisin this respectis containedin the
Comments of the HumanRights Comrnitteeafter the hearing of a
delegation form Yugoslavia(Serbiaand Montenegro)on 4 November 1992.
Placing itself exclusivelyonlegai ground,
"The Committeeobserved thatthe meansdeployedand the
interests involved demonstratedthe existence of links
betweenthe nationalistsand Serbiawhich invalidatedthe
Federal Govemment's claim to be exempt from
responsibilit." "The Committee strongly deplored this situationand
regretted the refusal of the Federal Govemmentto
acknowledgeits responsibility forsuchacts on the ground
that they were committedoutsideits territory."
"The Committee firmly urged the Federal Government to put
an endto this intolerable situationfor the observanceof
human rights, and to refrain fromany supportfor those
committingsuchacts, includingin territory outside the
Federal Republicof Yugoslavia(Serbiaand Montenegro). It
called upon the Govemmentto showa clear political will
and effectivelyto dissociate itself from the Serbian
nationalistmovements bytotallyrepudiatingtheir ideology
and condemningtheir schemes.The Committee considers
that a showof unwaveringfirmnesson this point would
deprive the extremistsof supportthat is essentialto them."
[A/C.3/47/CRP.l, 20 November 1992,paras. 21, 23 and 24,
pp. 8-91.
6.4.3.7 These statementsare self-explanatoryand bear witness of the convictionof
the intemational communitythat, by a large diversityof means, Yugoslavia
(Serbiaand Montenegro)has aided and abettedin the genocide.
Section6.4.4
Recognitionof thesefactsby Yugoslavia(Serbia and Montenegroi )tself
6.4.4.1 During the previous proceedingsin this case, Yugoslavia(Serbia and
Montenegro)deniedits involvementin the genocide committedagainst non-
Serb populationsin Bosnia-Herzegovinaand elsewherein former
Yugoslavia. It statedin particular that it did "not have a single soldier on
the territory of the "Republicof Bosniaand Herzegovina", thatit did not
"military supportany side in this intemationalarmed conflict" (emphasisadded) - which it alsoqualifiedas pure "civil war...-and thatit did "not
support, in any way, thecommittingof seriouscrimes thatare being done"
in Bosniaand Herzegovinamr. ZIVKOVIC,public sessionof 2 April
1993, CR 93113,p. 7; seealso Dr. MITIC, 26 August 1993, CR 93/34, p.
151.These pious statementsare entirelydeniedby formal and concordant
declarationsmadeby the highestrankingofficiaisin Yugoslavia(Serbiaand
Montenegro), suchas SlobodanMilosevic,and by their surrogatesin
Bosnia andHerzegovina[seeSection2.3.81.
It is worth notingin particularthat Dr. RadovanKARADZIC,the leader of
the so-called "SrpskaRepublika"declared,on 23 June 1993,in statements
reported by the BBC, that:
"At this momentthe Serbian Amy and the Serbiannation
play a role of a subsituteUN ProtectionForce, by allowing
the civiliansand thearmy of the CroatianHerceg-Bosnaonto
the temtory, helpingthemand allowingthem to retum if
they wantto, or to proceed further." [BBC,June 23, 19931.
Even moreimportant, this clear recognitionof Serbianaid is corroborated
by formal statementsmadeby the highestauthorities inSerbiaand
Yugoslavia (Serbiaand Montenegro). Three documentsare of particular
importancein this respect:
- the Communiquémadepublicby the Govemmentof Serbia, in early
May 1993 [see2.3.8.2; 2.3.8.31
- the Communiqué of the Federal Govemment,also releasedin early
May [id.]; and
- the Statementmadeby PresidentSlobodanMILOSEVICof Serbia
on 11May 1993 [see2.3.8.4; 2.3.8.51.
Ample quotationsof these documents havebeen madeabove and the most
relevantpassagesare also quotedin Judges SHAHABUDDEENand LAUTERPACHTSeparateOpinionsof 13 September 1993[I.C J .Reports
1993, pp. 362-363and 428-4291.
6.4.4.4 These statements constitute clear recognitionsthat Yugoslavia(Serbiaand
Montenegro) has massivelyaided the "BosnianSerb forces", those which
were committinggenocide:
- they recognizethat Yugoslavia (Serbiaand Montenegro) "hasbeen
unreservedlyand generously helpingthe Serb Republic";
- they admit that "mostof the assistancewas sent to people
fightersin Bosnia-Herzegovina" (emphasis added);
-
they reaffm "thejust objectivesof the Serbianpeople"; and
- they state that "owing tothis assistance, (the Serbsin Bosnia)have
achieved most of what theywanted".
6.4.4.5 It could certainly not be expectedthat the Govemmentauthoritiesin
Belgrade acknowledge formally their aidingand abettingin genocide. But it
is remarkable that, by these statements,they formallyrecognize that they
have, during twoyears at least, aided those who fight in Bosnia-
Herzegovina and, as explainedin Parts 2 and 5 above, there cannot be the
slightest doubt thatthese "fighters"are the perpetrators of the genocide.
Yugoslavia (Serbiaand Montenegro)has been "generously helping"them,
while being fully awareof what wasgoing on. Section 6.4.5
Legalconsequences
In the present case, it is clear that Yugoslavia (Serbiaand Montenegro)is
the only power in that part of Bosniaand Herzegovinaunder Serbian
control, as explainedin Chapters2 and 3 of the present Part. However,
and keeping in mind the difficultyof proo[se ebove, para. 6.4.0.21, even
if certain groups or individualsparticipating inthe genocide, are acting on
a relatively autonomousbasis- whichin the view of the ApplicantState is
-ot the case-,then, accordingto the principleslaid down bythe Court in
its 1986judgment [se ebovepara. 6.4.1.41 Yugoslavia(Serbiaand
Montenegro) would be responsible for itsown intemationallywrongful acts
in connectionwith the acts of genocideas related acts of those groups and
individuals. This requirementhas been fullyatisfiedin this case.
The facts which are outlinedin this Mernorial,as widelyacknowledgedby
the internationalcommunity[Part 3, Section6.4.31and as acknowledged
by Yugoslavia (Serbiaand Montenegro)itself r2.3.8;Section6.4.41 make
it perfectly clear that Yugoslavia(Serbiaand Montenegro) hasaided and
abetted groups and individualsin the in this case relatedacts of genocide.
Therefore, Yugoslavia (Serbiaand Montenegro)'~international
responsibilitys clearly implicated. CHAPTER6.5
YUGOSLAVIA(SERBIA AND M0NTENEGRO)'S FAILURETO
PREVENTANDPUNISHGENOCIDE
Section6.5.1
Theapplicablelaw
6.5.1.1 As explainedabove, the 1948Conventiondoes not only require States not
to commit genocidedirectlyandlor throughits organs, agents or surrogates
- an obligationwhich hasbeen violatedby Yugoslavia(Serbiaand
Montenegro) -it also puts an obligationon them toprohibit and prevent
acts of genocideand related acts and to punishtheir perpetrators.
Yugoslavia (Serbiaand Montenegro)has notcompliedwith either of these
obligations. These failures giverise to a cause of action separate from the
one based on the commissionof genocide[seepara. 5.2.3.31.
6.5.1.2 Indeed the obligationsto preventand punish the act of genocideare the
very "object and purpose" of the Convention,in the meaningthese terms
have in the 1969ViennaConventionon the Law of Treaties. The official
title of the 1948Convention is: "Conventionon the Prevention and
Punishmentof the Crime of Genocide", and Article 1is drafted as follows:
"The ContractingParties confirrnthat genocide, whether
committedin time of peace or in time of war, is a crime
under internationallaw which theyundertaketo prevent and
to punish" [emphasis added],
while Articles IV to VI detail the meaningof "punishment"[seeabovepar.
In non-preventing the genocideand non-punishingits perpetrators,
Yugoslavia (Serbiaand Montenegro),whateverits own direct responsibilityin this crime, has depnved the Conventionof its object and purpose [see
I.C.J., Judgementof 27June 1986,Case concemingMilitary and
Paramilitary Activitiesin and against Nicaragua, I.C.J. Reports 1986,pp.
136-1381.
Itcan be added that, independentlyof any treatyprovisions, it is well
establishedin general customaryinternationallaw that an "internationally
wrongful actnconsists eitherof an "action"or of an "omission"
"attributableto theStateunderinternationallaw" [Article3 of Part One of
the I.L.C. 's draft on State responsibility). Thisis a mere codificationof a
firmly establishedprinciple [seeR. AGO, 3rd Report on State
responsibility,Z.L.C. Yearbook,1971,vol. II, Part 1,para. 56; see also
I.C.J. Judgementof 9 April 1949, Co@ Channelcase, I.C.J. Reports
1949, pp. 22-23or Judgmentof 24 May 1980, Case conceming United
StatesDiplomatieand ConsularStaflin Tehran, I.C.J. Reports 1980,pp.
30-331.
Section 6.5.2
Yugoslavia (Serbia and Montenegro)'~ failureto act (Le.to preventand
topunish)
In this last judgment,the Courtnoted, in respect of the first phase of the
events it described(duringwhichthe "militants"could notbe considered as
the agents of theIranian Governenment) that theIranian authorities:
"(a) were fully aware of their obligationsunder the
conventions in force to take appropriatesteps toprotect the
premises of the United StatesEmbassy and its diplomaticand
consular staff from any attackand from anv infringementof -, and to ensure the securityof such other
persons asmight bepresent on the said premises;"
"(b) were fully aware, as a result of the appeals for help
made by the United StatesEmbassy, of the urgent need for
action on their part;"
"(c) had the meansat their disposalto perform their
obligations:"
"(d) completely failedto comply with these obligations". [id.
pp. 32-3:3].
6.5.2.2 The same holds true in the present case.
The Government inBelgrade werefully awareof their obligationsunder
the 1948Convention to preventgenocideand punish the perpetrators. It
must benoted in this respect that Yugoslavia (Serbia and Montenegro)
itself,during the previousproceedingsin this case, made counterclaimsby
which it requested the Court, inter alia,
"To indicate thefollowingprovisionalmeasure:
The Governmentof the so-calledRepublicof Bosnia
Herzegovinashouldimmediately,in pursuance of its
obligation under the Conventionon the Preventionand
Punishmentof the Crime of Genocideof 9 December 1948,
take al1measureswithinits power to prevent commissionof
the crime of genocide againstthe Serb ethnicgroup"
[Observationsof 9 August 1993,para. 3, pp. 2-31,
thus showing thatis was perfectlyaware of the obligationof prevention
bearing on the States partiesto the Convention.In any case, this
obligation -which, onceagain, is the very "objectand purpose" of the
Conventionto which Yugoslavia(Serbiaand Montenegro) is a Party - has
ben recalled, again and again, by
- the Security Council[seee.g.: resolutions771 (1992)of 13August
1992; 787 (1992)of 16November 1992; 819 (1993)of 16 April 1993;
etc.];- the General Assembly[see e.g.:Resolutions461242 of25 August
1992,para. 7; 47/80 of 16December 1992;471147of 18December 1992,
paras. 9 and 16;48/88 of 20 December 19931.
The Court itself, in its Order of 8 April1993,recalled unanimously that:
"The Govemmentof the Federal Republicof Yugoslavia
(Serbiaand Montenegro)shouldimmediately,in pursuance
of its undertakingin the Conventionon the Preventionand
Funishmentof the Crimeof Genocideof 9 December 1948,
take al1measureswithinits power to prevent commissionof
the crime of genocide" [I.C.J. Reports 1993, p. 24; see also
theOrder of 13 September1993,id., p. 3491.
Consequently, Yugoslavia (Serbiaand Montenegro) wascertainly not
unaware of the obligationsof preventionand punishmentincumbenton it
on the basis of the Genocide Convention.
The Belgrade Govemmentwere also "fullyaware of the urgent need for
action on their part" as meantby the Court in the aforementioned
Judgement [I.C.J. Reports, 1980,p. 331.Sincethe acts constituting
genocide haveben committedby themand by the Yugoslavarmy or by
their agents and surrogatesin Bosniaand Herzegovina, they certainly
cannot allege that they were notaware of these acts whilea multitude of
internationalbodies has stressed, at least from the summerof 1992, the
extreme urgency to react [seeabovepar. 6.2.3.SI M.oreover, as Judge
SHAHABUDDEEN hasnotedin the SeparateOpinion hehas appendedto
the Court'sorder of 13September 1993,it is, to say the least, very strange
that "Yugoslavianeither affirms nor denies" that theSerbs have been
comrnittinggenocide [I.C.J. Reports 1993,p. 3631while they could not
ignore this fact and while they hadthemselvesmadea Request for the
indication of provisional measures[seeabovepara. 6.2.3.61 which by way
of definitionimpliesa real urgency [seeArticle 74, paragraph 1 of the Rules of Court or the Order of 29 July 1991in the Caseconcerning
Passage through the Great Belt, I.C.J. Reports 1991,p. 12et seq.]
6.5.2.4 There canbe no more doubt thatthe authoritiesof Yugoslavia(Serbia and
Montenegro) "had the meansat their disposalto perforrn their obligations"
as meant by the Court in theaforementionedJudgement [I.C.J. Reports
1980, p. 331to preventand punish genocide.The Governmentin Belgrade
is not known to be weak. Rightto the contrary, it appears clearly as having
very strong powers, not to say that it is purely and simplya dictatorship. It
is therefore unlikelythat its organsand, in particular, its armed forces
could haveacted contrary to its will and commandsal1the more as the
atrocities committedon its behaif are not isolated factsor "bavures", but
are committedmassivelyand on a large sde. Moreover, as shownabove,
the authorities of the so-called"SrpskaRepublika"are entirely in the hands
of the Government in Belgrade andit aiso controlsand massivelyaids the
pararnilitaryforces acting on the territory of Bosnia andHerzegovina which
are entirely dependantuponits aid and supply.
6.4.2.5 Moreover, the geographid configurationof the region must also be taken
into consideration[see I.C.J. Judgmentof 19April 1949, The Co@
Channel Case, I.C.J. Reports 1949,pp. 20-231.Yugoslavia(Serbiaand
Montenegro) is a neighbour Stateof Bosnia andHerzegovina, it has
therefore a specialduty not to let its temtory be used for perpetrating
internationallywrongful acts and is in a position to preventthese acts more
easily than remote States.
It must also be noted thatYugoslavia(Serbiaand Montenegro) could
6.4.2.6
certainly not invoke any legal impedimentregarding the punishmentofperpetrators of the act of genocide:provisionsof Article II and III of the
1948 Conventionhave been includedin the sarnewording in the Yugoslav
Pend Code, still in force in Yugoslavia(Serbiaand Montenegro).
Therefore itis clear that the Governmentof Yugoslavia(Serbiaand
Montenegro) were aware of their obligationsto prevent and to punish under
the GenocideConventionand of the urgent need for action on their part,
and that they had the meansat their disposalto perform their obligations.
However, they "completely failed to complywith these obligations" [I.C.J.
Reports 1980,p. 331.This is quite apparentfrom the record of the relevant
facts and it is not useful to recite here again the hideouslist of atrocities
committedby Yugoslavia (Serbiaand Montenegro) [seeChapter 2.21.
Suffice it to say that "nothingwas attempted(by the authoritiesin
Belgrade) to prevent the disaster"U.C.J. Reports 1980,p. 231,nor have
they, at any time, whetherduring the previousproceedingsin this case or
in other forums, aiieged that they haveaken even a first step in order to
prevent the genocidewhichthey knewwas - and still i-committedin the
neighbour territory of Bosniaand Herzegovina.
In the present case, the duty ofthe StatesParties to the 1948 Conventionto
prevent and punish isaii the more compeliingnow that genocideis not a
"usual" internationailywrongfulact, not a mere "delict". As demonstrated
in Part5 above it is "an offencjus gentium", a "crime under international
law" [seeparas. 5.1.1.1 et seq, see also para. 4.2.4.131. And it is admitted
that such crimes have "specialconsequences"in internationallaw (see
Roberto AGO, 5th Reporton StateResponsibility, Z.LC..Yearbook1976,
vol. II,Part1, pp. 79-154; see aiso GartanoARANGIO-RUIZ,5th Report on State Responsibility,A/CN.4/453/Add. 2, 8 June 19921.One of these
consequencesis the specialobligationnot to thelp the actor of the breach
and an "intensification"ofjustifiablecounter-measures[see W.
RIPHAGEN, 4th Report on StateResponsibility ,I.L.C. Yearbook1983,
vol. II, Part1,paras. 53 et seq; see also G. ARANGIO-RUIZ, op. cit.,
Add. 3, 24 June 1993,paras. 118 etseq.]. -
6.4.2.9 This points to a clear answer toa questionraised by Judge
LAUTERPACHTin the SeparateOpinionhe appendedto the Court's
Order of 3 September 1993:
"Obviously,an absolutelyterritorial view of the duty to
prevent genocidewouldnot make sense since this would
mean that a party, though obliged toprevent genocidewithin
its own territory, is not obliged toprevent it in territory
which it :invadesand occupies.That would be nonsense. So
there is an obligation,at any rate for a Stateinvolvedin a
conflict, to concem itself with the preventionof genocide
outside its territor."
"Butdoes the duty of preventionthat rests upon a party in
respect of its own conduct, or that of persons subjectto its
authority or control, outsideits territory also mean that every
party is under an obligationindividuallyand actively to
interveneto prevent genocideoutsideits territory when
committedby or under the authorityof some other party?"
[I.C.J. Repons 1993,p. 4441.
Thus it appears thatJudge LAUTERPACHTmakes a distinctionbetween
two different situations: thecasewhen a State is directly involvedin a
conflictand when there canbe no doubt thatthe obligationto prevent
applies strictly, ;andthe secondcase when the State is not directly involved
in the conflict and where the writer seemsto have some doubtabout the
legal requirementof prevention.6.4.2.10 A definitive answer to this questionis probably not necessary in the present
case since it is quite obviousthat Yugoslavia(Serbiaand Montgenegro)is
directly involvedin the conflict. It is, indeed, the only State involved, it is
in direct control of that part of the territory of Bosniaand Herzegovina
where genocideis committedand it has an indisputableduty to prevent it.
However, even in the second situation, Article1of the Convention,which
is drafted in absolutely generalterms, providesfor an obligationto al1
States Parties to prevent and punish genocide, thisis a consequenceof
genocide being definedas a crime under international law.
6.4.2.11 It canalso be noted thatthe Pend Code of Yugoslavia(Serbiaand
Montenegro), Article93, provides for the punishmentof "a citizen of
Yugoslaviawhen he commitsa criminal offenceabroad [seeabovepara.
5.2.2.31. This shows thatthis statehas not a "territorial conceptionof
criminal law".
6.4.2.12 In its Order of 13 September1993,the Court stated that
"...while taking into account, intealia t,e replies of the
two Parties to a questionput to themat the hearings as to
what steps had been taken by them "to ensure cornpliance
with the Court's Order of 8 April 1993",is not satisfiedthat
al1that mighthave been done has been done to prevent
commissionof the crime of genocidein the tenitory of
Bosnia-Herzegovina,and to ensure that no action is taken
which may aggravateor extendthe existing disputeor render
it more difficultof solutions". [I.C.J. Reports1993, pp. 348-
3493
Although thisstatementis drafted generally, it is clear that it adresses itself
to the RespondentStateas is clear in the light of the Opinionsappendedby
individualjudges [seee.g.:Judge SHAHABUDDEEN,p. 364; Judge
WEERAMANTRY,pp. 273 and 381; Judge TARASSOV,pp. 450-4511.Itis therefore clear that the Courtconsideredthat Yugoslavia (Serbiaand
Montenegro)had not compliedwith its duty to prevent genocide,at least
during this period between 8April and 13September 1993. Very
unfortunately, thissituation has remainednchangedsince then.
CHAPTER6.6
CONCLUSION
In view of the argumentsexposedabove, it canbe firmly concluded that
Yugoslavia (Serbia and Montenegro)has ben, and is, in breach of its
obligationsunder the 1948 Genocide Conventionin many respects:
i) it has not prevented genocide whileit was perfectly aware of this
crime being committed both on its own temtory and in the neighbour State
of Bosnia and Herzegovina;whileit had the meansto prevent it;
ii) it has notunishedthe perpetratorsof genocide although theyare
entirely under its exclusive control; but
iii) on the contrary, its own organs, and agents, have themselves
committed, andare still committing genocide;
iv) they have been and stillre accomplices ofthe acts of genocide;
v) including theso-called"SrpskaRepublika"and Yugoslavia
(Serbia andMontenegro)'~other surrogateswhich are acting under its
entire control andon its behalf onthe territory ofBosniaand Herzegovina;
and
vi) ithas aided and abettedin the planning, the preparation and the
executionof genocide. PART 7
On the basis of the evidence and legal arguments presented inthis
Memonal, the Republicof Bosniaand Herzegovina,
Requests the InternationalCourt of Justice to adjudgeand declare,
1. That the Federal Republic of Yugoslavia (Serbiaand
Montenegro), directly, or through the use of its surrogahas,violated
and is violatingthe Conventionon the Prevention and Punishmentof the
Cnme of Genocide, by destroying inpart, and attemptingto destroy in
whole, national,ethnical or religiousgroups within the, but notlimited to
the,territory of the Republic of Bosnia and Herzegovina, including in
particular the Muslim population, by
- killingmembers of the group;
- causingdeliberatebodily or mental harm to membersof the group;
- deliberatelyinflicting on the group conditionsof life calculated to
bring about its physical destructionin whole or in pm;
- imposingmeasures intendedto prevent births within the group.
2. That the Federal Republicof Yugoslavia(Serbiaand
Montenegro)has violated andis violating the Conventionon the Prevention
and Punishmentof the Crime of Genocideby conspiringto commit
genocide, by complicity in genocide,by attemptingto commit genocide and
by incitementto commit genocide; 3. That the Federal Republicof Yugoslavia(Serbiaand
Montenegro) has violated and is violatingthe Conventionon the Prevention
and Punishmentof the Crime of Genocideby aiding and abetting
individualsand groups engaged in acts of genocide;
4. That the Federal Republicof Yugoslavia(Serbiaand
Montenegro) has violated and is violating the Conventionon the Prevention
and Punishmentof the Cnme of Genocideby virtue of having failed to
prevent and topunish acts of genocide;
5. That the Federal Republicof Yugoslavia(Serbiaand
Montenegro) must immediately cease the above conductand take immediate
and effectivesteps to ensure full cornpliancewith its obligationsunder the
Conventionon the Prevention and Punishmentof the Cnme of Genocide;
6. That the Federal Republic of Yugoslavia(Serbiaand
Montenegro) must wipe out the consequencesof its internationalwrongful
acts and must restore the situation existingbefore the violations of the
Conventionon the Preventionand Punishmentof the Crime of Genocide
were committed;
7. That, as a result of the internationalresponsibilityincurred for
the above violationsof the Conventionon the Preventionand Punishment
of the Crime of Genocide, the Federal Republicof Yugoslavia(Serbia and
Montenegro)is required to pay, and the Republicof Bosniaand
Henegovina is entitled to receive, in its own right and aparens patriae
for its citizens, full compensation forthe damagesand losses causai, in the
amount to be determinai by the Court in a subsequentphase of the
proceedingsin this case.
The Republicof Bosnia andHerzegovina reservesits right to supplementor
amend its subrnissionsinthe light of further pleadings.The Republic of Bosnia and Herzegovina also respectfullydraws the
attentionof the Court to the fact that it has not reiterated, at this point,
several of the requests it made in its Application, on the formal assumption
that the Federal Republic of Yugoslavia (Serbiaand Montenegro)has
accepted thej,urisdictionof this Court under the terms of the Conventionon
the Prevention and Punishment of the Crime of Genocide. If the
Respondentwere to reconsider its acceptance of thejurisdiction of the
Court under the terms of that Convention- which it is, in any event, not
entitled to d- the Governmentof Bosnia andHerzegovinareserves its
nght to invoke also al1or some of the other existing titles of jurisdiction
and to reviveallor some of its previous subrnissionsand requests.
The Hague, 15April 1994
MuhamedSACIRBEY
Agent of the Govemmentof the
Republic of Bosnia and Herzegovina
Memorial of the Republic of Bosnia and Herzegovina