INTERNATIONALCOURTOF JUSTICE
CASE CONCERNINGAPPLICATION OF THE CONVENTIONON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(Bosnia and Herzegovinav.Federal Republicof Yugoslavia)
REPLY
OF
BOSNLA AND HERZEGOVINA
23 April 1998CONDENSEDCONTENTS ................................... v
LIST OF BOOKS AND DOCUMENTS ........................VII
LIST OF ANNEXES ......................................VI11
CONTENTS ............................................. xxI PART 1
INTRODUCTION
CHAPTER1 IMPORTANCE ANDOVERVIEWOF THE CASE
CHAPTER2 FEDERALREPUBLICOF YUGOSLAVIA'S REPLYTO THE
APPLICANT'SMEMORIALIS INADEQUATE AND ERRONEOUS
CHAPTER3 EVIDENCE
CHAPTER4 INTRODUC'TION TO THE FACTS PRESENTEDIN THIS REPLY
PART II
FACTS CONSTITUTINGGENOCIDE
CHAPTER5 THE BASIS IN FACT FOR FINDING THATGENOCIDEWAS
COMMITTED
CHAPTER6 THE ACTS COMMITTED CONSTITUTEGENOCIDE:THEY SATISFY
THE LEGAI, CRITERIAESTABLISHEDBY THE CONVENTION
CHAPTER7 RAPE AND SEXUALASSAULT ASSPECIFICMEANSOF
COMMITTINGGENOCIDE
PART III
FACTS PERTAININGTO THE RESPONSIBILITYOF THE FEDERAL
REPUBLIC OF YUGOSLAVIA
CHAPTER8 THE BASIS IN FACT FOR FINDING THAT THE VIOLATIONS OF
THE GENOCIDECONVENTIONARE ATTRIBUTABLE TOTHE
RESPONDENT
CHAPTER9 LEGAL PRINCIPLESOF STATERESPONSIBILITY APPLICABLETO
VIOLATIONS OF THEENOCIDECONVENTION
CHAPTER10 THE FEDERALREPUBLICOF YUGOSLAVIAIS RESPONSIBLE FOR
HAVINGCOMMITTEDGENOCIDEAND RELATED ACTS
CHAPTER11 THE FEDERALREPUBLICOF YUGOSLAVIAIS RESPONSIBLE FOR
ITS FAILURE TO PREVENTAND TO PUNISHNOCIDEAND
RELATEDACTS PARTIV
REMEDIESSOUGHTBY BOSNIAAND HERZEGOVINABEFORE
THE COURT
CHAPTER12 INTRODUCTORY ANDPRELIMINARYOBSERVATIONS
CHAPTER13 SATISFACTION
CHAPTER14 THE DUTY TOREPAIRTHE DAMAGESAND LOSSESCAUSED
CHAPTER15 THE DUTY TO CEASETHE ONGOING VIOLATIONS AND TO
TAKEIMMEDIATEAND EFFECTIVE STEPS TOREFULL
COMPLIANCEWITHITS OBLIGATIONS
PART V
THE COUNTER-CLAIMS
CHAPTER16 RESPONSE TO ALLEGED FACTS
CHAPTER 17 LEGALAPPRAISAL
PARTVI
CONCLUSIONS AND SUBMISSIONS LIST OF BOOKSAND DOCUMENTS
DEPOSITEDAT THE REGISTRY
a. Beverly Allen, Rape Warfare -TheHidden Genocidein Bosnia-Herzegovinaand
Croatia,Minneapolis 1996
b. Norman Cigar, Genocidein Bosnia: Thepolicy of "EthnicCleansing",Texas 1995
c. Misha Glenny, The Fa11of Yugoslavia - The ThirdBalkan War,London 1992,updated
edition 1996
d. Roy Gutrnan,A Witnessto Genocide - The First Inside Account of the Horrorsof
'EthnicCleansing 'in Bosnia, Shaftesbury 1993
e. FlorenceHartmann, "Chronologied'une négligencecriminelle:le génocide de
Srebenica",L'ex-Yougoslavie enEurope - De lafaillite des démocraties au processus
depaix, Paris 1997
f. JanWillem Honig andNorbertBoth, Srebrenica - Record of a WarCrime,London
1996
g. Tim Judah,The Serbs -History, Myth& the Destruction ofYugoslavia,New Haven
1997
h. Peter Maass,Love ThyNeighbor -A Story of War,New York 1996
i. Noel Malcolm, Bosnia - A Short History, London 1994,updatededition 1996
j. David Owen, Balkan Odyssey, 1995-1996,LondonIndigo
k. David Rieff, Slaughterhouse -Bosnia and the Failureof the West,New York 1995
1. David Rohde, Endgame -.The Betrayaland FaIl of Srebrenica:Europe's Worst
Massacresince World WarII, New York 1997
m. Michael A. Sells, The Bridge Betrayed:Religion and Genocidein Bosnia, Berkeley
1996
n. Laura Silber and Allan Little, The Deathof Yugoslavia, London 1995,revisited
o. Leo Tindemans,Lloyd Cutler,BronislawGeremek,John Roper, Theo Sommer,
Simone Veil, David Anderson, UnfinishedPeace -Report of the International
Commission onthe Balkans, WashingtonD.C. 1996
p. Paul Williams andNorman Cigar, WarCrimesand IndividualResponsibiliq: A Prima
Facie Casefor the Indictmentof SlobodanMiloSevii.,New London 1996
q. WarrenZirnrnerman,Originsof a Catastrophe, Yugoslaviaand its Destroyers -
America 3Last Ambassadortells what happened andwhy, New York 1996
r. OberlandesgerichtDüsseldorf,Urteilin der Strafache gegen Nikola Jorgit, CaseIV,
26/96, 2StE 8/96, 5 January1998 ANNEXES
Wheneverthe Applicant refers tothe same source in more than one Chapter, this Anneis
listed under the Chapter in whichthe rejèrenceis madefirst. In the text of the Replythis
Annexkeepsthe same number insubsequent Chapters.
US Department of State, Country Reports onHuman RightsPracticesfor 1992, Feb.
1993, p. 726.
Shahabuddeen,Precedents in the WorldCourt, 1996,p. 100.
Tanjug 1939 gmt 15 Jan. 1991,BBCSummaryof WorldBroadcasts, EEl0972 BI13,
1211,17 Jan. 1991.
Steven Erlanger, "AlbrightWarns Serbs on Kosovo Violence",New YorkTimes, 13
Mar. 1998.
Tony Barber, TheIndependent,EuropeanNews Page 13,22 Oct. 1993.
Tony Barber, TheIndependent,European News Page9, 19 April 1994.
Misha Glenny, TheFull of Yugoslavia - The Third Balkan War, London 1992,
updated edition 1996, pp. 34-35.
Tim Judah, The Serbs- History,Myth & the Destruction of Yugoslavia,New Haven
1997,pp. 164-165, 170-171,230-231.
Belgrade home service 1711 gmt 11Mar. 1991,BBCSummaryof WorldBroadcasts,
EEl1019 BI12 [31], 13 Mar. 1991.
Tanjug 1637gmt 16 Mar. 1991,BBCSummaryof WorldBroadcasts, EEl1023 BI14
[30], 18 Mar. 1991.
S. MiloSevit, "Bogamicemo da se tucemo" (By God, We will Fight), NIN, 12 Apr.
1991, p. 40; fiom the StenographicRecord of the SerbianParliament.
Radio Belgrade 1400gmt 10 Dec. 1991,BBCSummaryof WorldBroadcasts,
EEl1253 Cl11 [l], 12 Dec. 1991.
Tanjug 1022 gmt 21 Feb. 1992,BBCSummaryof WorldBroadcasts, EEl1312 C119
[20], 23 Feb. 1992.
Tanjug 1921 grnt 9 April 1992,BBCSummaryof WorldBroadcasts, EEl1351 C113.
Borislav Jovit, Borislav JovSiDiary: Final Days of the SFRY,English translation,
Belgrade 1995,pp. 131-132.
Noel Malcolm, Bosnia -A Short History, London 1994, updatededition 1996, pp.
226-230, 240-243.
ICTFY, Trial Chamber, Cases No. IT-95-SR61 & IT-95-18-R61, Review of
IndictrnentPursuant to Rule 61, Transcript testimonyRuez,3 July 1996,pp. 18-50,
54-55.United States Departmentof State, Bureauof Public Affairs,Dispatch, Vol. 40,
Number 30, 26 July 1993,pp. 537-548.
United States Departmentof State, Bureau of Public Affairs,Dispatch, Vol. 4, No.
16, 19 April 1993,p. 258-264, 268-269.
David Rieff, Slaughterhouse - Bosnia and the Failure of the West,New York 1995,
p. 113.
Laura Silber and Allan Little, Death of Yugoslavia,London 1995,revised ed., p.
244-245, 204-207, 222-251.
Leo Tindemans, Lloyd Cutler, BronislawGeremek,John Roper,Theo Sommer,
Simone Veil, David Anderson, UnJinishedPeace - Report of the International
Commission on theBalkans, WashingtonD.C. 1996,p. 40.
"Bosnia-Hercegovina:"EthnicCleansing'Continuesin Northern Bosnia",Human
Rights WatcWHelsinki, Nov. 1994, Vol. 6,No. 16,p. 35.
ICRC, List of patients of psychiatrichospital Sokolac.
US Department of State, Bureau of Public Affairs, Dispatch, 12 Apr. 1993,Vol 4,
No. 15, p. 244.
US Department of State, Bureauof Public Affairs,Dispatch, 2 Nov. 1992,Vol 3,
No. 44, p. 803.
US Department of State, Bureau of Public Affairs,Dispatch, Vol. 3, No 52, p. 918.
"War crimes in Bosnia-Hercegovina:BosanskiSamac",Human Rights
WatcWHelsinki,Apr. 1994,Vol. 6, No. 5, pp. 2, 7, 12.
US Department of State, Bureau ofPublic Affairs,Dispatch, 28 Sep. 1992,Vol. 3,
Nr. 39, pp. 733-734.
US Department of State, Bureauof Public Affairs,Dispatch, 2 Nov. 1992,Vol. 3,
No. 44, p. 804.
"War Crimes in Bosnia and Herzegovina:UN Cease-fireWon't Help Banja Luka",
Human Rights WatcWHelsinkiJ ,une 1994,Vol. 6, Issue 8, pp. 1-2.
"Bosnia-Herzegovina:living for the Day - Forced Expulsionsfrom Bijeljina and
Janja",AmnestyInternational, AI Index: EUR 63/22/94,Dec. 1994,p. 2.
Hearing Before the Commissionon Security and Co-operationin Europe, 4 April
1995, "Genocidein Bosnia-Herzegovina"; testirnonyby AndràsRiedlmayer,Harvard
University, p. 51.
Council of Europe, ParliamentaryAssembly,SixthInformationReport on War
Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina,Doc. 7133, p.
11.
ICTFY, Trial Chamber,Prosecutor v. RadovanKaradziéand RatkoMadié, Cases
No. IT-95-SR61 and IT-95-18-R16,TestimonyRalston, Case No. IT-95-18-R61 and
IT-95-5-R61, p. 73.
Joint Hearing Before the Select Committeeon Intelligenceof the United States
Senate and Committeeon Foreign Relationsof the United States Senate. OneHundred Fourth CongressFirst Session.Wednesday,9 Aug. 1995, "WarCrimesin
the Balkans", pp. 9-17.
Council of Europe, ParliamentaryAssembly, Fourth InformationReport on War
damage to the cultural heritage in Croatia and Bosnia-Herzegovina,Doc. 6999., p.
36.
Council of Europe, ParliamentaryAssembly,SecondInformationReport on War
Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina,Doc. 6869,
pp. 10-12.
Council of Europe, ParliamentaryAssembly,Ninth InformationReport on War
Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina,Doc. 7464, 18
Jan. 1996, p. 18.
Michael A. Sells, TheBridge Betrayed: Religionand Genocidein Bosnia, Berkeley
1996, p. 4; Note 6, pp. 4-5, 134-135, 166-167.
"War Crimes inBosnia-Herzegovina: UN Cease-Fire Won't Help Banja Luka",
Human Rights WatcWHelsinkiWatch,June 1994,Vol. 6, No. 8, pp. 1-2.
Patrick Bishop, TheDaily Telegraph,20 May 1993.
Council of Europe, ParliamentaryAssembly,Eight InformationReport on War
Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina,Doc. 7341, 28
June 1995,p. 11.
Council of Europe, ParliamentaryAssembly,Eight InformationReport on War
Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina,Doc. 7464, 28
June 1995,p. 11.
"War Crimes in Bosnia Herzegovina, UN Cease-FireWon't Help Banja Luka",
Human Rights WatcWHelsinkiJ ,une 1994, Vol.6, No. 8,p. 16.
US Department of State,Bureau of Public Affairs, Dispatch, 12April 1993, Vol.4,
No. 15, pp. 244-245, 248.
US Departmentof State,Bureau of PublicAffairs, Dispatch, 8 Feb. 1993,Vol. 4,
No. 6, p. 75.
Hannes Tretter e.a., 'EthnicCleansing Operations'in the Northeast-BosnianCityof
Zvornikffom April throughJune 1992,LudwigBoltzmannInstituteof Human
Rights (1994).
Jan Willem Honig and Norbert Both, Srebrenica - Recordof a WarCrime,London
1996, pp. 72-73, 177.
Roy Gutman,A Witnessto Genocide - TheFirst InsideAccountof the Horrors of
'EthnicCleansing 'in Bosnia, Shaftesbury1993,pp. 40-41, 80-81.
TheDeath of Yugoslavia,BBC-seriesby Laura Silber, Vol.4: The Gates of Hell.
Support-action;request for action of the lightcombatair force, request fiom Com-
mand Post of the 17th Corpsaddressed tothe 2nd Military DistrictCommand, 10
April 1992.ICTFY, Trial Chamber, Cases No. IT-95-5-R61 & IT-95-18-R61,Testimony
Karremans, 4 July 1996,pp. 4-6.
"War Crimes in Bosnia-Herzegovina",Human Rights WatcWHelsinki,Vol. II, pp. 2,
286-287.
"The Fall of Srebrenicaand the Failure of U.N. Peacekeeping",uman Rights
WatcWHelsinki,Oct. 1995,Vol. 7, No. 13, pp. 9-11, 19-21, 30-31, 35, 42-44.
ICTFY, Trial Chamber, CasesNo. IT-95-5-R61 & IT-95-18-R61, Testimony
ErdemoviC,5 July 1996,p. 42.
ICTFY, Trial Chamber, CasesNo. IT-95-5-R61 & IT-95-18-R61,Testimony
Groenewegen, 4July, p. 64.
ICTFY, Trial Chamber.,CasesNo. IT-95-5-R61 & IT-95-18-R61,Testimony Witness
A, 5 July 1996,p. 11.
"The Fa11of Srebrenicaand the Failureof U.N. Peacekeeping",Human Rights
WatcWHelsinki,Oct. 1995,Vol. 7, No. 13,p. 44.
David Rhode, Endgame. TheBetrayal and Fall of Srebrenica: Europe's Worst
Massacre Since World WarII (1997), pp. 28-29, 58-59, 342-343, 346-349.
Misha Glenny, TheFa11of Yugoslavia -The Third Balkan War,London 1992,
updated edition 1996, pp. 148-149, 166-167,187.
European Parliament R-esolutionB-3-0034, 0036, 0101/93, 21 Jan. 1993, Oficiul
Journal of the Europeun Communities,No. C 421172,15 Feb. 1993.
Noel Malcolm, Bosnia -A Short History, London 1994, updatededition, p. 251.
Norman Cigar, Genocide in Bosnia: ThePolicy of "EthnicCleansing", College
Station, 1995, pp. 3-4, 54-55.
"Bosnia-Herzegovina: 'You have no place here-Abusesin Bosnian Serb-controlled
areas",AmnestyInternational, AI Index EUR63111/94, June 1994,pp. 1,5.
DocumentPopulation Structure.
Criminal Code of the Federal Republicof Yugoslavia, Chapter16: CriminalAct
Against Humanity and InternationalLaw; Genocide, Article141.
US Department of State, Bureau of Public Affairs,Dispatch, Dec. 28 1992,Vol. 3,
Vol. 52, p. 920.
"German Court sentences Serbto life for genocidein Bosnia",New YorkTimes,27
Sep. 1997,p. A5.
Case IV, 26/96, 2 StE 8/96, Generalbundesanwalt,OberlandesgerichtDüsseldorf,
Strafsache gegen NikolaJorgiC,p. 160-162.
Cherif Bassiouni,Sexual Violence,Occasional PaperNo. 1, IHRLI, DePaul
University Collegeof Law, 1996,pp. 2, 10-11, 24-25, 32-33, 38-39.
Ms. Patricia Viseur-Sellers, the Legalficer on gender issuesof the ICTFY, ICTFY
Bulletin, No. 7,21 June 1996,p. 5.Cherif Bassiouni,Investigating Violationsof International Humanitarian Law in the
Former Yugoslavia,OccasionalPaperNo. 2, IHRLI, DePaul University Collegeof
Law, 1996,pp. 36-39,56-57.
Ivy L. Schwartz, "Sexual Violence against Women: Prevalence, Consequences,
Societal Factors,and Prevention", AmericanJournal of Preventive Medicine,7[6], p.
364.
S. Swiss and J.E. Gilles, "Rapeas a Crimeof War.A MedicalPerspective",JAMA,
Aug. 4, 1993,vol. 270, pp. 612-613.
ICTFY, Trial Chamber,Prosecutor v. KaradfiéandMadié, Cases No.IT-95-5-R61
and IT-95-18-R16,TestimonyOosterman, 2July 1996, pp. 28, 31.
"Bosniaand Herzegovina:Rapeand Sexual Abuseby Armed Forces", Amnesv
International Report, AI Index: EURl63/01/93,Jan. 1993,pp. 1-2, 4, 5, 7, 11, 12.
Dragica Kozaric-Kovacic and others,"Rape,Torture and Traumatizationof Bosnian
and CroatianWomen:Psychological Sequelae,Amer. J. Orthopsychiat.,65(3), July
1995, pp. 428-429, 431-33.
ICTFY, Trial Charnber,Prosecutor v. Karadfiéand Mladié,CasesNo. IT-95-5-R61
and IT-95-18-R16,TestimonyCleiren, 2July 1996,pp. 11, 14-17, 19.
ICTFY, Trial Charnber,Prosecutor v. KaradZiéand Madié, CasesNo. IT-95-5-R61,
and IT-95-18-R61,TestimonyRalston,from the ICTFY, 28 June 1996,pp. 62 and
76.
Médecins dumonde, Boulangeret al., L 'enferYougoslave,Paris, Belfond, 1994,p.
353.
Alexandra Stigelmayer,Stern, 49/92 (68).
Ted Meron, "Rapeas a CrimeUnderInternationalHumanitarianLaw", AJIL, 1993,
Vol. 87, No. 3, p. 426.
AxisRule in OccupiedEurope,Washington, 1944, pp. 79-86.
Agathe Logaert, "Bosnie: Témoignages sur la pratique des violsdans les villages
autour de Sarajevo.Le trop fameux CaféSonja",Le Monde, 5 Feb. 1993,p. 3.
"AmnestyInternationaldénonceles viols qui se poursuiventen Bosnie",Le Monde,
23 Jan. 1993,p. 3.
"Purifier le lien deiliation.Les viols systématiquen ex-Yougoslavie,1991 -1995",
Esprit, Dec. 1996,p. 155.
Ivy L. Schwartz, "Sexual Violence against Women: Prevalence, Consequences,
Societal Factors,and Prevention", AmericanJournal of Preventive Medicine,199 1,
7[6], p. 365.
"Un aspect particulier dunettoyage ethnique",Louise Lambrichs,Le Monde, 30 May
1996, p. 24
A. Koller, U. Maier and H. Pflüger, "DasHodentraumaund seine Bedeutungfür die
Fertilitat des Mannes"("TesticularTrauma andits significancefor Male Fertility"),
2. Urol.Nephrol., 78 (1985),pp. 430-43191. "A Pattern of Rape", Newsweek,11 Jan. 1993, p. 26
92. Beverly Allen, "Rape Warfarein Bosnia-Herzegovina:The Policy and the Law", The
BrownJournal of WorldAfairs, 1996, Vol. III, Issue 1, p. 314-315.
93. Beverly Allen,Rape Warfare, Minnesota, 1996, p. 87.
94. "Bosnie:Le jeu des assassins",Le Monde, 13 Jan. 1993,p. 2.
95. ICTFYBulletin, No. 1.546, 10 Mar. 1997,p. 4.
96. US Department of State, Bureau of Public Affairs, Dispatch, 16Nov. 1992, Vol. 3,
No. 46, p. 831
97. Roy Gutrnan,Newsdql, Queens Edition, 8 Aug. 1995,p. 4, para. 1
98. "War Crimes in Bosnia-Herzegovina", HelsinkiWatch,Apr. 1993, Vol. II, p. 181,
99. Courrier du Monde, "L'humiliation programmée"L ,e Monde, 2 Jan. 1993, p. 2.
100. David Rieff, Slaughterhouse - Bosnia and the Failure of the West,New York 1995,
p. 121.
101. Dr. Milan Vego, The Army of Bosnia and Herzegovina,Jane 'sIntelligence Review,
February 1993, pp. 63,,446-449.
102. Veljko KadijeviC,My Viewof the Break-Up, Belgrade, 1993, pp.97-99, 160.
103. Transcript of telephone conversation between SlobodanMiloSeviCand Radovan
KaradiiC, 29 May 1991.
104. Srpska Rec, 24 May 1993,p. 8.
105. Petar JankoviC,Dialy, 24 July 1991.
106. James Gow, The remaïns of the Yugoslav People's Army, Jane's Intelligence
Review,Aug. 1992,pp. 359-362.
107. Bosanski Petrovac Municipal Headquartersof Territorial Defence, Request addressed
to Military Post 1754, signedCaptain Obrad Vrzina, 13 Dec. 1991.
108. Cornrnandof 530th Rear Base,letter to 5th Military District HQ, signed Colonel
Milan SkondriC,3 Jan. 1992.
109. 2nd Military District Headquarters, letter to 530th Rear Base, signed Colonel
Gradimir Petrovac,8 Jan. 1992.
110. Public Safety Station BosanskiPetrovac, request addressed toMilitary Post 1754,
signed Ljubomir Kerkez,6 Feb. 1992.
111. 530th Rear Base, letter addressedto 2nd Military District, signed colonel Milan
Skondric. 17 Feb. 1992.
112. 2nd Military District,letter addressed to Federal Ministry of the National Defence,
signed Colonel Gradimir Petrovic, 3 Mar. 1992.
113. Territorial Defence BosanskiNovi, request addressedto Military Post 1754, signed
Milan DarnjanoviC,16Mar. 1992.
114. 530th Logistics Base, 1,etteraddressedto 2nd Military District, signedMilan
Skondic, 19 Mar. 1992.
115. Military Post 4022 Banja Luka, request addressedto Military Post 5027 Sarajevo,
signed Vaso TepsiC,26 Mar. 1992.Military Post 5027 Sarajevo,order given to MilitaryPost 5290 Banja Luka, signed
Colonel Gradimir PetroviC,30 Mar. 1992
2nd Military District, letter to the FederalMinistryof Defence, signed General
Milutin Kukanjac, 24 Apr. 1994
Serb Autonomous Region of Romanija,letter to Assistentof Federal Secretaryfor
People's Defence for Logistics,signedMilan TupajiC,10 Feb. 1992.
2nd Military District, accompanyingletter addressedto JNA General Staff, signed
Milutin Kukanjac, 20 Mar. 1992
Conclusionsbased on the assessmentof the situationin the territory of Bosnia and
Herzegovina with the zone of responsibilityof the 2nd Military District, signed
Lieutenant-GeneralMilutin Kukanjac, Mar. 1992.
Bulletin of the European Communiîy,No. 4-1992,p. 84, para. 1.5.14.
Bulletin of the European Communities,No. 5-1992,p. 104,para. 1.3.5..
Warren Zimmerman, Originsof a Catastrophe, Yugoslaviaand its Destroyers -
America's Last Ambassudortells what happened and why,New York 1996, pp. 184-
187, 191.
Association of the Serbs fiom Bosniaand Herzegovina,letter to Chief of Staff,
Major-GeneralBlagoje AdiiiC,signed PresidentGojko Djogo, 22 Jan. 1992
Serb Assembly of Municipalityof FoEa,letter to the General Staff of the JNA,
signed Josif MiliEiC,17Mar. 1992.
Federal Secretariat forNational Defence, letter to the Commandof the 1st Military
District, signed General Blagoje AdiiC, 12 Jan. 1992.
1st Military District signed Lieutenant-General Nikola MandariC,4 Apr. 1992
Command of the 2nd Military District,letter to the General HQ of the SRFY Armed
Forces, signed Dobrasin PrasceviC,5 Apr. 1992.
Dessa Trevisan and Tim Judah, "Serbssplit Bosnianrepublic", The Times,28 Mar.
1992.
Command of the 17th Corps, Decisionfor carryingout the combat activities, signed
Major-General Milan Nedeljkopvic, 26 Apr. 1992
Command of the 2nd Military District ,telegram to General Staff of the Armed
Forces of the SRFY, signed ColonelZekanoviCMilutin, 7 Apr. 1992.
ComrnandPost of the 17thCorps, Requestfor actionof the light combat air force,
to the 2nd Military District, signed Brigadier-GeneralSavo JankoviC,10 Apr. 1992
Command of the 2nd Military District, Combatand operational report to General
Headquarters of the JNA, signed ColonelKazulStevan,26 Apr. 1992. . .. ...
2nd Military District, Extraordinary Reportto the Operational Centreof the General
Staff, signed Colonel Nikola Sego, 17April 1992,
"Twee Serviërs geven zich aan",De Volkskrant,16Feb. 1998.
Reserve Comrnand Post, Operational Reportto the 2nd Military District, signed
Bganko FilipoviC,6 Apr. 1992. . . . . . ... . . ......... . . . . . ..... . . .137. "Bosnia-Herzegovina:Sarajevo",Human Rights WatcWHelsinki,Vol. 6. No. 15, Oct.
1994,pp. 4-20. ............................................
138. Bosnian SerbTelevision, Pale,Interview with Lieutenant-GeneralMilutin Kukanjac,
12 July 1994,pp. 6-7.
139. Ian Traynor, The Guardian, 30 Apr. 1993. .........................
140. Statement of GeneralDjordje DjukiC,4 Feb. 1996.
141. Serb Republicof Bosnia and Herzegovina, Request forproviding personnelto the
2nd Military District, 27 Apr. 1992,signedColonel Bogdan SubotiC.
142. Minutes fromthe meeting with presidentsof municipalitiesin the responsibilityzone
of the division, signed DmitrovicMomEilo,14 May 1992.
143. Biljana Sacic, Vesti,12 May 1993,p. 9. ...........................
144. Ian Traynor, The Guardian, 25 April 1992,p. 8. .....................
145. Zagreb Radio Croatia:Network,FBIS-EEU-97-114,24 Apr. 1997. .........
146. Gregor Mayer, ProJil, 10Aug. 1992,p. 40. .........................
147. H. Guirchon,Le NouvelObservateur,29 Oct. 1992. .... ;..............
148. Patrick Bishop, "BesiegingSerbs reject UN chiefs evacuationplea", The Telegraph,
12Mar.1993. .............................................
149. Srpska Rec, 10 May 1993,p. 23.
150. Laura Silber, "Belgrade'sarmy fights in Bosnia",Financial Times,8 Jan 1994.
151. John Kifner and Ian Traynor, The Guardian, 28 Jan. 1994,p. 8 ........... p.
152. Order of the Command of the SRK, addressed tocornmandof al1brigades, 15 Dec.
1993
153. Florence Hartmann, Le Monde,2 Mar. 1994 ........................
154. Roger Cohen,New YorkTimes,9 Dec. 1994 ........................
155. Jane S Sentinel, 1996,Bosnia Herzegovina,pp.27,28 ...................
156. John Pomfret, The WashingtonPost, 4 July 1995,p. Al ................
157. Karlo Jeger, Globus, 15 April 1994 ..............................
158. Stephen Engelbergand Eric Schmitt,International Herald Tribune, 12 June 1995,p.
9.
159. Karsten Prager, TimeInternational, 17 July 1995. .....................
160. Cabell Bruce, "BelgradeBlarned-Accusedof directing attacks on Savehaven",
Newsday, 12Aug. 1995,p. A07.
161. Jane SSentinel, 1997Edition, Yugoslavia, para.10.7.1
162. Tom Shanker, TheNew YorkReviewof Books, 9 May 1996,p. 14
163. Andreas Zumach, Basic Reports,No.47, 16 Oct. 1995,p. 1
164. Djuro Kozar, Ljubljana Oslobodjenje(Europe Edition),20-23 July 1995,FBIS-
EEU-95-142 ..............................................
165. Jane 'sSentinel, 1997Edition, Yugoslavia, para.10.14.2.
166. Helsinki Committeefor Human Rights in Serbia,Report on the state of Human
Rights in Serbia in 1995, pp. 3, 23, 26.167. 2nd Military Districts, Request addressedto the Federal Secretariatfor People's
Defence, str. conf. 311103-41,24 April 1992
168. Tribunal,A Publication of the Institute for War and Peace Reporting,No. 7,
Feb./Mar. 1997, Srdja Popovié,p. 1.
169. C. Milivojevic cekam hapsenje"("1Await Imprisonment"),Spona, Frankfurt,
Germany, 18 Dec. 1993,p. 15.
170. Julian Borger, The Guardian, Feb. 1997, Section2, p. 2.
171. Telegram from Detached ComrnandPost-Trnovoto Police HQ - Pale, 30 June 1995.
172. Telegram from Detached CommandPost -Trnovoto MUP, 1 July 1995.
173. Telegram from Police Force HQ - Pale to Centreof Public Safety - CJB Sarajevo, 6
July 1995.
174. Telegram fiom Detached CornrnandPost -Trnovoto Ministry of Interior of
Republic of Srpska,24 July 1995.
175. Jane's Intelligence Review,Europe, Nov. 1995,p. 484.
176. Dejan Anastasijevic,VremeInternational, 26 June 1995, pp. 13-15.
177. Public Security Centre Prijedor,telex to variouspolice stations,24 June 1995,
signed StankoviC.
178. Ministry of Interior Affairs of RS, letter to the Ministryof Interior Affairs of the
Republic of Serbia,25 June 1994, signedGoranMaCar.
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267. General Secretariat ofthe President of the Republicof Montenegro, letter to
Cardaklija Suada, signed Ljiljana Ivanovic, 5July 1993. ................
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305. Oslobodenje, 13 February 1994. PART 1
INTRODUCTION
CHAPTER 1 IMPORTANCEAND OVERVIEW OFTHE CASE ........... 1
Section 1 Importanceof the casein perspective ..................... 1
Section 2 Prior phases of the litigation......................... 3
Application and Memorial ........................... 3
Ordersregarding interim measures ..................... 4
Judgment onpreliminary objections .................... 5
Order regarding counter-claims ....................... 6
Order delaying time-limits........................... 7
Section 3 The Counter-Memorial ............................... 7
Partone ....................................... 7
Parttwo ...................................... 11
Section 4 General schemeof this Reply .......................... 14
CHAPTER 2 FEDERALREPUBLICOF YUGOSLAVIA'S REPLYTO THE
APPLICANT'SMEMORIALIS INADEQUATEAND
ERRONEOUS .................................... 15
Section 1 A "Balanceof Guilt"test is inapplicableto genocidalacts ...... 15
Section 2 Genocidecan be directedto more than one group at a time ..... 20
Section 3 "Inclusiounius est exclusio alterius".is inapplicableto the Genocide
Convention ...................................... 21
Section 4 States areresponsible forcommittinggenocideand other acts
violative of the Genocide Convention .................... 24
Section 5 The onus of proving intentto commit genocidedoes not invariably rest
withtheApplicant ................................. 28
Section 6 The obligationsimposedon Statesby the GenocideConvention are not limited to those defined in Article................ 32
CHAPTER 3 EVIDENCE ...................................... 34
..................................
Section 1 The onus of proof 34
Section 2 Sources. probity and weightof presentedevidence ........... 41
CHAPTER 4 INTRODUC'TION TO THE FACTS PRESENTED
INTHISREPLY .................................. 55
Section 1 The context of the war .............................. 55
Section 2 The facts reveal aclear pattern of violations of the
Genocide Convention ............................... 68
Section 3 The facts reveal that the FederalRepublic of Yugoslaviabears
responsibility forthe acts cornmitte..................... 71
PART II
FACTSCONSTITUTINGGENOCIDE
CHAPTER 5 THE BASIS IN FACT FOR FINDINGTHAT
GENOCIDEWAS COMMITTED ....................... 77
Section 1 Introduction ...................................... 77
Section 2 Killing mernbersof the group .......................... 80
...................................
Introduction 80
Killing of civilians............................... 82
Killingof men ................................. 97
..................................
Killing of elite 108
Section 3 Causing seriousbodily ormental harm to members of the group . .119
...................................
Introduction 119
Purported dejèncesofered by the Respondent ............ 121
Causingseriousbodily harm ........................ 123 Causing serious mental harm ........................ 131
Systematic and widespreadpracticedirected against non-Serbs . 133
Section4 Deliberately infiicting on the group conditionsof life
calculatedto bring aboutits physical destructionin
whole or in part ................................... 134
Introduction ................................... 134
Encirclement. shelling. starvatio..................... 135
Deportation and expulsion .......................... 155
Destruction of historical. religious and culturalproperty .....168
Section 5 Camps ......................................... 187
Introduction ................................... 187
Memorial ..................................... 187
Counter-Memorial ............................... 188
The Bosnian archipelago ........................... 189
Pattern ....................................... 195
Batkovii ...................................... 200
.....................................
Trnopobe 205
Keraterm ..................................... 211
Omarsku ...................................... 219
Manjata ...................................... 228
Luka ........................................ 233
Suiica ....................................... 241
Fofa KP Dom .................................. 246
Blueprint ..................................... 250
Section 6 Zvornik ......................................... 251
Introduction ................................... 251
A brief history of thefa11of Zvornik................... 253
Killings ...................................... 256
Rape and sexualassault ........................... 260
Camps ....................................... 261
Destruction of culturalproperty ...................... 263
Looting and destruction ofproperty ................... 264
Forced relocation ................................ 264
Thefate of intellectuals............................ 269
Involvement of the Respondent ....................... 269
Conclusion .................................... 271Section 7 OpstinaPrijedor ................................... 271
Introduction ................................... 271
Geographicalposition and brief history ................. 272
Preparationfor the take-over ........................ 273
Takz-over ..................................... 276
The attaclcson outlying areas ....................... 278
The aftermath of the attacks on the non-Serb areas ......... 280
The camps .................................... 281
The atrocities committed in opStinaPrijedor ............. 282
Killing of the civilianpopulation in attacks on non-Serb areas . 283
Killing of civilians within the camps of Omarska. Keraterm and
ManjaCa ...................................... 287
Killing of elite.................................. 289
Torture ....................................... 291
Rape and sexual assault ........................... 294
Destruction of religious and culturalproperty ............ 295
Conclusion .................................... 296
Section 8 Srebrenica ....................................... 298
Introduction ................................... 298
A brief history of thefull of Srebrenica ................. 299
Certain erroneous and misleading statements of
the Respondent concerning Srebrenica .................. 302
Killings ...................................... 303
Rape. torture and other acts of inhumane treatment ........ 323
Forced relocation ................................ 326
Involvement of the Respondent ....................... 327
Conclusion .................................... 328
........................
Section 9 The policy of ethnic purification 328
Thepicture that emergesfiom the evidence .............. 328
Achieving a Greater Serbia through ethnicpurzjication ...... 330
Ethnic cleansing as a strategy directed against non-Serbs .... 332
Ethnic cleansing and the establishmentof physical control over
territories..................................... 334
Systematic violations and the ever repeatingpattern of acts ... 336
Thepattern of acts was the result of oficial public policy .... 339
Authoritative bodies have identified and condemned thispattern of
oficial policy .................................. 340 Parallel~îndingsby regional bodies ................... 343
Determinations by independentobsewers ................ 344
The result of the systematiccampaign of ethnicpuriJication... 345
CHAPTER6 THE ACTS COMMITTEDCONSTITUTE GENOCIDE:THEY SATISFY
THE LEGALCRITERIAESTABLISHED BY THE CONVENTION48
Section 1 Purposesof the Convention ........................... 348
Section2 The prohibitedacts are defined and enurneratedby the Convention 350
Section 3 These acts and facts in law constitutegenocide.............. 352
Killing ....................................... 352
Causing serious bodily and mental harm ................ 353
Deliberately inflicting on thegroup conditionsof life
calculated to bring aboutitsphysical destruction
in whole or inpart ............................... 354
................
Section4 This genocideis actionableunder ArticleIX 355
Section 5 Ethnic cleansingas practisedin Bosnia also constitutes genocide..356
Section 6 The TadiCcase as evidenceof genocide ................... 365
CHAPTER7 RAPE AND SEXUALASSAULTAS SPECIFICMEANSOF
COMMITTINGGENOCIDE .......................... 373
Section 1 Introduction ...................................... 373
Section2 Rape and sexual violence havebeen committedon
an extensive scale .................................. 376
The overall statistics of sexual viole................. 376
The likelihood of an underestimationofsexual violence...... 380
The standards ofproof to be used in cases of rape
and sexual assault ............................... 383
Section 3 Rape and sexual violence have beencommittedon
Muslirnsof al1gender and ages ........................ 384
Rape and sexual violence havebeen committedprimarily
on Muslim women ............................... 388 Rape and sexual violence havealso been committed
on Muslim children . . . .. . . . . . . . . .. . . . . . . . . . . .. . 390
Sexual violence has also been committedon Muslim men . . .. . 391
Section 4 Rape and sexual assaults have been committed everywhere . . . . . .393
Rape and sexual assaults have been committed
outside the camps . . . .. . . . . . .... . . . . . .. .. . . . . .. . .. 394
Rape and sexual assaults have been even more fiequent
inside the camps . .. . . .. . . . . .. . . . . . . . . .. . . . . . . . 396
Rape and sexual assaults have been committed repeatedly . . . . 403
Rape and sexual assaults have beenperformed with particular
savageness or pewersity . . . . . . . . . . . . .. . . . . . . . . . . . 408
Section 5 Introduction to the legal assessrnentof rape under Article II . . . . . 416
Rape committed with genocidalintent is genocide . . . .. . . . . . 416
The Respondent completely misconstrues ArticleII, by limiting
expressly genodical rape to only one categoryofforbidden acts of
genocide . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . .417
Quite contradictorily, the Respondent completely misconstrues Article
II, by implicitly limiting genocidalrape to the killing of the raped
women ....................................... 418
Section 6 Rape and sexual violence are acts prohibited by Article II . . . . .. 420
Rape and sexual assault - "killingof members of the group" . .420
Rape and sexual assault - "causingserious bodily or mental
harm to membersof the group" . . . . .. . . .. . . . .. . . . .. .. 422
Rape and sexual assault - "deliberatelyinflicting on the group
conditionAs of lije calculated to bring about itsphysical
destruction
in whole or inpart" . . .. . . . . . .. . . . . .. . . . . . . . . . .. 425
Rape and sexual assault - "imposingmeasures intended
to prevent birth within the group". . .. . . . . . . . . . . . . . . . 431
Rape and sexual assault - 'yorciblytransferring childrenof
the group to another group" . . .. . . . . . . . . . . . . ... .. . . 434
Conclusion . . . . . . . ... . . . . . . . . . . ... . . . . . . . . . ..437
Mass rape and sexual violence were committed with genocidal intent438
Section 7
Introduction . . . . . ... . . . . . . . . . . .. . . . . .. . .. . . . .-438
Intent - the desirefor "revenge"for allegedpast sexual violence 441 Intent.the vision of afiture GreaterSerbia............. 442
Intent . the massive characterof the rapes and sexual violence
directed towardsthe group ......................... 442
Intent.the selection of the victims of rape and sexual viol443e
Intent.the absenceofprosecution orpunishment of the
perpetrators
of acts of sexual violenc.......................... 444
Intent.the existenceof orders to rape................. 445
Intent . similar analysesandJindings by the ICTFY ........ 447
Intent.the existenceofpatterns of rape recognised by nurnerous
other instance.................................. 456
Conclusion .................................... 464
PART III
FACTSPERTAINING TO THE RESPONSIBILITY OF
THE FEDERALREPUBLICOF YUGOSLAVIA
CHAPTER 8 THE BASISIN FACT FOR FINDING THATTHE VIOLATIONSOF
THE GENOCIDECONVENTIONARE ATTFUBUTABLETO THE
RESPONDENT ................................... 465
Section 1 Introduction...................................... 465
Section 2 Yugoslavia'spreparationfor the armed conflic.............. 468
RAM ........................................ 468
The cardinal role of the Federal and
Serbian Ministries of Interi........................ 474
Petar Jankovit 'spersona1diary...................... 478
The distribution of arms through the JNA............... 482
.filitary documentsproving JNAS massive involvement in the
distribution ofrms .............................. 484
Once more: PetarJankovik'spersona1diary ............. 492
GeneralMilutin Kukanjac'sreport to Belgrade ........... 494
Section 3 Yugoslavmilitary involvementin Bosnia and Herzegovinabefore 19 May
1992 .......................................... 498
Introduction ................................... 498 Counter-Memorial ............................... 500
.................................
Metamorphosis 501
The relocationof the JNA .......................... 503
Bosnian Serb requestsfor placementof JNA garrisons ....... 505
GeneralMilutin Kukanjac'sreport to Belgrade ........... 509
New JNA unitsfiom Yugoslaviaproper ................. 515
The eruption of the conjlict......................... 518
..................................
Bosanski Brod 520
Bijeljina ...................................... 522
Zvornik ....................................... 527
......................................
Viiegrad 532
os an skiumac ................................. 535
Sarajevo ...................................... 538
The Dobrovoljac'kaStreet incident .................... 541
Domino effect ................................... 544
CrisisStaffs .................................... 546
...................................
Prison camps 548
19 May 1992 ................................... 553
Section4 Transformationof theJNAinto the BosnianSerb Army ........ 553
Counter-Memorial ............................... 553
Tadit Judgment ................................. 555
Planning the masquerade .......................... 557
The 2nd Military District ........................... 560
Serb volunteers attachedto the JiVA ................... 561
"Fiveor tenyears at the earliest" ..................... 563
Shopping list ................................... 563
Final touches .................................. 565
19 May 1992 ................................... 571
Changing the letterhead ........................... 572
Section 5 Yugoslavrnilitaryinvolvementin Bosniaand Herzegovinader 19 May
1992 ........................................... 573
Facade of non-interference ......................... 573
Genocidal acts .................................. 577
The Yugoslav and the Bosnian SerbArmies
co-operated in tandem ............................ 580
The continuing activitiesof the Yugoslm Air Forces ........ 581
The 1993 military campaignin east Bosnia .............. 583 1994: the YugoslavArmy specialforces ................. 586
Yugoslavaircraft violated the no-Jlyzone imposedby
the UnitedNations ............................... 589
Operation Vihor ................................. 590
Yugoslav radar was used to shoot down NATO aircraft
in June 1995 ................................... 593
The YugoslavArmy participatedin and directed
the 1995 attack onSrebrenica ....................... 593
Section6 Federal and SerbianMinistriesof Interior Involvementin Bosnia and
Herzegovina ...................................... 596
Introduction ................................... 597
Distribution ofarms .............................. 598
Parallel securiiy structures ......................... 599
Elimination ofpolice oficers ......................... 599
Bureaucracy of ethnic cleansing ...................... 601
Handing overof non-Serbrefugees .................... 602
Serbian paramilitaries ............................. 602
Military operations ............................... 604
The Trnovo batt1eJield ............................. 605
Forced mobilisationor arrest of Serb refugees in Serbia ..... 609
Epilogue ...................................... 612
Section 7 Yugoslavpararnilitaryactionsin Bosnia and Herzegovina ....... 612
Introduction ................................... 612
Arkan'sSerbian VolunteerGuard ..................... 616
VojislavSeielj 'sSerbian CetnikMovement ............... 620
Arkan and Seielj 'sparamilitary activitiesin
Bosnia and Herzegovina ........................... 625
Yugoslavia continuingsupportfor and control
over ~rkan and Seielj ............................. 631
The Politika obituaries ............................ 636
The Yugoslavparamilitaryunits were responsible
for the most evil atrocitie.......................... 639
Conclusions .................................... 644
Section 8 Yugoslavcontrol over the BosnianSerb Army .............. 646
Yugoslaviabalancedthe books of the BosnianSerb Army .... 646
Yugoslaviapaid the salariesand expensesof al1oficers in Bosnia and Herzegovina ........................... 649
YugosIaviaJilled up the oflcers' ranks of
the Bosnian Serb Army ............................ 652
Belgrade's control over the oficers in
Bosnia and Herzegovina ........................... 660
The Bosnian Serb Army and theYugoslavArmy were
jùlly integrated ................................. 669
The Belgrade obituaries ........................... 672
Section 9 The Yugoslav system of nationalbanks .................. 674
Introduction ................................... 674
The unijicationof the monetarysystem ................. 675
Economic andJinancial integration of
the 'TepublikaSrpska" in a new Yugoslavia ............. 677
The interna1relations ............................. 680
Financing "RepublikaSrpska" and "RepublikaSrpska Krajina" 683
Section 10 Yugoslavia'scontinuing supplyof the BosnianSerb military .... 685
Introduction ................................... 685
Counter-Memorial ............................... 686
ZINVOJ ...................................... 689
UnisPretis .................................... 692
The Nikinci testingground .......................... 693
The Yugoslavtrade ............................... 697
Avio bombs .................................... 701
The suppliers ................................... 703
The internationalobservers ......................... 706
Epilogue ...................................... 710
Section 11 Forced recruitmentin the Federal Republicof Yugoslavia ...... 711
Introduction ................................... 711
Counter-Memorial ............................... 712
The mobilisationcampaigns ......................... 712
The summer of 1995 .............................. 714
The extent of the mobilisations....................... 718
Belgrade's involvement ............................ 719
Summons ..................................... 722
Camps ....................................... 725
The "RepublikaSrpska" bureau inBelgrade .............. 727 Perfect unison .................................. 729
The District Court in Belgrade....................... 729
Section 12 Ethnic purificationin the territory of Yugoslavi............. 730
Introduction ................................... 730
The 1993 CSCE mission to Yugoslavia ................. 731
The Yugoslav authorities'refusa1to cooperate with
internationalbservers ............................ 732
Detention camps in Yugoslavia ....................... 735
The ethnically cleansedMuslims of Viiegrad ............. 737
The Sremska Mitrovicaprison camp ................... 738
The ICRCS visits to the KPD camp ................... 743
Bosnians arrested in Yugoslaviaand handed
over to the Bosnian Serbs .......................... 745
The Yugoslav camps used to extraditeBosnian refugees to
third countries.................................. 750
The SandZakMuslims ............................. 753
CHAPTER 9 LEGAL PNNCIPLES OF STATERESPONSIBILITY
APPLICABLETO VIOLATIONSOF THE GENOCIDE
CONVENTION ................................... 758
CHAPTER 10 THE FEDERALREPUBLICOF YUGOSLAVIAIS
RESPONSIBLE FORHAVING COMMITTED
GENOCIDEAND RELATEDACTS .................... 762
Section 1 The commissionof genocidalacts by Yugoslav State organs ..... 762
Before I9 May 1992 .............................. 763
Afier 19 May 1992 ............................... 771
Section2 The responsibilityof the Federal Republicof Yugoslavia for
the genocidalacts cornmittedby the "RepublikaSrpska"and other
Yugoslavsurrogatesin Bosnia and Herzegovina .............
778
The applicableIaw ............................... 779
The attributabilityto the Federal Republic of Yugoslavi..... 782
The Serbianparamilitaryforces ...................... 782
The "RepublikaSrpska" ........................... 788
The BosnianSerb Army (VRS) ....................... 816
Section 3 The responsibilityof Yugoslaviaunder Article III(b). (c). (d) and (e) of the Genocide Convention . . . . . . . . . . . . . . . . . . 818.
Direct and public incitementto commit genocide .. . . .. . . .. 819
Conspiracy to commit genocide . . . . . . . . . . . . . . . . . . . 823
Complicity in genocide . . . .. . . . . . . . . .. . . .. . . .. . . . .828
CHAPTER11 THE FEDERAL REPUBLICOF YUGOSLAVIAIS RESPONSIBLEFOR
ITS FAILURE TO PREVENTAND TO PUNISHGENOCIDEAND
RELATEDACTS . . .. . .. . . . . . . . . . . . .. .. . . . .. . . . . . . 832
Section 1 Introduction . . . . . .. .. . . . . . . . .. . . .. . . . . . . . . . .. . .. 832
Section2 The Respondent'sfailure to prevent genocideand related acts . . . .835
Meaning and scopeof the duty to prevent genocide according
to Article I of the Genocide Convention. . . . . . . . . . .. . . .. 835
The Federal Republic of Yugoslavia hasnot complied with
its duty toprevent underArticle I of the Genocide Convention . 838
The Federal Republic of Yugoslavia has been repeatedly
condemned by the international communityfor not having
prevented genocide . . . .. . . . .. .. . . .. . . . . . . . . . . . . . 840
The Federal Republic of Yugoslavia cannot invokeany excuse or
circumstance precluding wrongfùlness . .. . . . . . . . . . . . . . . 846
Section 3 The Federal Republicof Yugoslavia'sfailure to punish genocide
and related acts . . . . .. . . . . ... . . . .. . .. . . . . ... . . .. . . . 850
Meaning and scope of the duty to punish genocide under the
1948 Convention . . .. . . . . . .. . . . . . . . ... . . . . . ... . .850
Yugoslavia has not complied with itsduty to punish . . . . . .. .854
PART IV
REMEDIESSOUGHTBY BOSNIAAND HERZEGOVINABEFORE
THE COURT
CHAPTER12 INTRODUCTORYAND PRELIMINARYOBSERVATIONS . . .867
Section 1 Introduction .. . . . . .. . . .. . . . . ... .. .. . .. . . .. . . .. . . . .867
Section 2 General internationallaw is applicable forthe determinationof the legal consequencesof the
internationallyrongfiilacts comrnittedby the
Respondent ...................................... 868
Section 3 Genocideis a particularlyseriousinternationally
wrongfulact which entailsa special regimeof
state responsibility
..........................
CHAPTER13 SATISFACTION .................................. 871
Section 1 Thejudgement of the Court as a primarymeans
of satisfaction.................................... 871
Section2 Other means of satisfaction........................... 873
CHAPTER14 THE DUTYTO REPAIRTHE DAMAGESAND LOSSES
CAUSED ....................................... 877
Section 1 Introductory remarks................................ 877
Section2 The Respondentis obligedto make reparationfor al1
damagescaused ................................... 878
Section 3 Restitutionin kind................................. 882
Section 4 Compensation .................................... 884
CHAPTER15 THE DUTYTO CEASETHE ONGOINGVIOLATIONSAND
TO TAKEIMMEDIATEAND EFFECTIVESTEPS TO ENSURE
FULL COMPLIANCE WITHITS OBLIGATIONS ........... 887
PARTV
THE COUNTER-CLAIMS
CHAPTER16 RESPONSETO ALLEGEDFACTS ..................... 891
Section 1 Introductoryremarks ................................ 891 General comments ............................... 891
Military structure................................ 894
Political situatio................................ 894
Independant observation on theposition
of the Bosnian Government ......................... 897
Bosnia and Herzegovina'sposition towards non-Serb suspects
of war crimes .................................. 900
The materialprovided in supportof the counter-claims ...... 903
Serb religiousholidays ............................ 906
Section 2 Incitement [Counter-Memorial7.0.1 ...................... 907
Section 3 Deliberate killing [Counter-Memorial7.1 .] ................. 912
Section 4 Deliberate inflicting on Serbs conditions of life calculated
to bring about their physicaldestructionand causing serious
bodily or mental hann [Counter-Memorial7.2.1 ............. 934
Section 5 Ethnic cleansing [Counter-Memorial7.3.1 .................. 947
Section 6 Destructionof places of worship [Counter-Memorial7.4.1 ...... 953
Section 7 Conclusions[Counter-Memorial7.5.1 ..................... 954
CHAPTER 17 LEGAL APPRAISAL ............................... 955
Section 1 Introductory remarks ................................ 955
Section 2 The Respondent's unacceptable accusation that "Bosniaand
Herzegovinais responsiblefor the acts of genocide committed
against the Serbs in Bosnia and Herzegovina" ............... 959
The Respondent's unacceptable accusation that "Bosniahas breached
Section 3
its obligations.pursuantto Article 1of the Conventionon the
Prevention and Punishmentof the Crime of Genocide.to prevent
acts of genocide" .................................. 966Section4 The Respondent's unacceptable accusathat "Bosniahas breached
its obligation, inaccordance Articles1-IVof the Convention
on the Preventionnd Punishmentof the Crimeof Genocide,to
punish acts of genocid............................. 968
Section 5 Conclusions...................................... 969
PART VI
CONCLUSIONS AND SUBMISSIONS PART 1
INTRODUCTION
CHAPTER1
IMPORTANCEAND OVERVIEWOF THE CASE
1. Importance of the case in perspective
In a truly civilisedworld, wars,barbarism,ethnically-motivatedrape, torture and
mass slaughter, religiousoriented vandalism,ethnicpurificationand the like will be
entirely and effectivelyabolished.The abominable behaviourof the Respondent,
which forms the centre-pieceof thepplicant'scase, showsthat civilisation has
cornenowhere near reachingthis 'truly civilised' sta. he secondbest alternative
to that 'truly civilised' stage world in whichthis behaviourisjudged by an
independent courtof great, widely accepted,authority, a court which willne the
behaviour in legal termsand will condemn the powersresponsiblefor it.
For this case, thisansthat the InternationalCourt ofJustice is asked to conclude
that the indescribable atrocitiescornrnittedagainstthe non-Serbpopulation in Bosnia
and Herzegovinasquarelyfall within the terms of the GenocideConvention.
2. Numerous Resolutionsof the United Nations SecurityCouncilacknowledged and
confumed the decisive rolewhich the Federal Republicof Yugoslavia(the
Respondent)played and continuedto play in the armedconflict which ragedfor
almost four years across theenitory of Bosnia and Herzegovina. ManyStatements
of the Presidentof the SecurityCouncil did therne.An identical analysis was
reflected in Resolutionsof the UnitedNations General Assembly,the United Nations
Human Rights Commission,the UnitedNations HumanRights Comfnittee,the
European Parliament, Statementsof the European Commission,etc.
3. As public declarationsof this sort are usuallythe result of precise,detailed and
balanced examinations,they shouldbe judged as well-considered,substantiated
findingsbased on a balancedanalysisof the relevantfacts. As such,theseReplyofBosnia andHerzegovina
declarations forman authoritative source for theJudgrnentthe Applicantrequests
fiom the InternationalCourt of Justicein this case. However,these findings cannot
replace such a Judgmentnor can their existence rendersuch a Judgmentsuperfiuous.
4. A Judgmentof the InternationalCourt of Justicein this case, like anyjudgment of
any independent court,is first and foremostaimed at settingthe record betweenthe
parties straight. Thisan, in general,only be done in a definitiveand authoritative
manner by Judges who basetheir opinionon an independent, legalappreciationof
the relevant issuesof fact and law.The very fact that on the one hand,the Applicant
bases its clairnon the Genocide Convention andthat on the other hand, both parties
in this case have acceptedthejurisdiction of this Court on conflicts relatingto the
interpretation, applicationorMfilment of this Convention,situatesthe importanceof
this Court inthis very case far beyondthe importanceof every possiblealternative
of conflict-resolution,
This Court, indeed, is the only instancewhich can definitivelydecidethe issues at
stake in this case.
5. This case is submittedto set the record straighton two issues whichare of
paramount importanceto the Applicant:
- the atrocitiescommittedbetweenApril 1992(the beginningof the Serb assault)
and December 1995 (Dayton Accords) againstthe non-Serb population, more
specificallyagainst the Muslimpopulation,of Bosnia and Herzegovina were
indeed of a genocidal nature andas such, constitute extensiveviolationsof the
Genocide Convention;
-
the Federal Republicof Yugoslavia (Respondent)bears responsibilityfor these
and related violationsof the Genocide Convention.
6. The Applicantis of the opinionthat clmiQing these issueswill not onlyserve
histoncal purposes (which is, given the enormityof the atrocitiescommitted,in and
of itself a morethan sufficientreasonto justifi these proceedings), but willalso be
indispensable in the reconciliationprocess, whichis slowlydevelopingin the region.
If the Court establishes,and legallydefmes,the relevant facts and settlesthe question
of State responsibility,then the fight over these issues can stop, thus enablingthe
peoples involvedto take sucha Judgmentas a fm basis on whichto build and
rebuild theirmutual relations.
7. Apart from this importantaspect,this case is also before this Court for monetary
reasons. The genocidalassault in Bosnia and Herzegovinahascausedenormous Chapter -Section 2
Prior phases of the litigation
material and immaterialdarnages;it destroyed the betterpart of the country, and
with it, the economy ofthe country.The Respondent, bearingresponsibility forthis,
needs to compensatefor these darnages. This is notjust a matter of fairnessand
justice, but also amatter of necessity.The substantialeconomicaid which Bosnia
and Herzegovinaby now receives from various friendly States and from the
internationalcommunityas a whole is nowherenear sufficientin making up for al1
the damages suffered. Therefore,the compensation requestedin this case constitutes,
albeit not the principalissue, an indissolublepart of the Applicant'sSubmissions.
8. Supersedingthe importancethis case has for the future relationshipof the two
Parties involved, is its importance for theworld communityas a whole. This is the
first time the InternationalCourt ofJustice is askedto apply the Genocide
Convention in adispute between two Parties. In this case the Court is requestedto
make this Convention work.This is not only in the interest of Bosnia and
Herzegovinain its capacityas victim ofa genocidal armed confiict, but also in the
interest of Bosnia andHerzegovina as aParty to the Convention,just as it is to al1
State-partiesto the Convention, andin effect, to mankindas a whole. The State-
parties to this Convention havea legal interestin knowing if and to what extent in
present day conditionsthis Convention actuallyprovidesfor remedies against
atrocitiesof the category committedin the SecondWorld War,the very impetusfor
the creation of the Convention. ClariQing the normativevalue of the law is always
an importantfeature of the judicial process.It is even more important if this,as in
the present case, could behelpful in the preventionof and therefore in the
eradicationof the most profound and perverse humanrights violation:genocidal
warfare.
2. Prior phases of the litigation
Applicationand Memorial
9. On 20 March 1993, theRepublic of Bosnia and Herzegovinafiled its Application
institutingthese proceedings before the International Courtof Justice.This
Application constitutedthe basis for this case and for Bosnia andHerzegovina's
Submissions, which havebeen expanded andrefined in Bosnia'sMemorial,
subrnittedto the Courton 15 April 1994.Reply of Bosnia and Herzegovina
Ordersregardinginterimmeasures
10. Also on 20 March 1993, theRepublic of Bosnia and Herzegovina requestedthe
Court to indicate ProvisionalMeasures, which theCourt did in its Order of 8 April
1993.
The Court ordered theRespondent,in short,to do everythingwithin its power to
prevent the commission of genocide and ordered the Respondent to ensurethat
people under its control, directionor influence would not commitany genocidal acts
against the Muslimpopulationof Bosnia and Herzegovina or against any national,
ethnical, racial or religious group.
In the same decision,the Court ordered bothparties not to aggravatetheir legal
dispute or make it more difficultto fmd a solution:
"~he Govemmentof the Federal Republic of Yugoslavia(Serbia and Montenegro) andthe
Govemment of the Republicof Bosniaand Herzegovina shouldnot take any action and should
ensurethat no action is taken which may aggravate orextendthe existingdispute over the
prevention or punishment ofthe crime ofgenocide,or render it more difficultof [para.on."
52. sub B.].
11. On 27 July 1993Bosnia and Herzegovinaagainrequestedthe Courtto indicate
Provisional Measures;the Respondentdid the same on 9 August 1993.In its Order
of 13 September 1993, theCourt denied theRespondent'srequest to order Bosnia
and Herzegovinato "takeal1measureswithin its power to prevent commission of the
crime of genocide against theSerb ethnic group".The Court considered:
"whereas the Court does not find that the circumstances,as they now presentthemselvesto the
Court, aresuch as to require a more specificindicationof measuresaddressedto Bosnia-
Herzegovinaso asto recall to it both its undoubted obligationsunder the Genocide Convention,
and the need toefiain ffom actionof the kid contemplatedby paragraph 52 B of the Court's
Order of 8 April 1993;bara. 461.
In the same Order the Court considered:
"51.~hereas, asthe Court recorded in its Or8eApril 1993,the crime of genocide "shocks
the conscienceof mankind,resuits in great lossesto humaa.d is contraryto moral law
and to the spirit and aims of the UnitedNations",in the words of General Assembly resolution
96 0) of 11December 1946on "Thecrime of Genocide";
52. Whereas,sincethe Order o8 April 1993was made, anddespitethat Order, and despitemany
resolutionsof the SecurityCouncil ofthe UnitedNations, greatsuflering and loss of life has
been sustainedby the population of Bosnia-Herzegovinain circumstanceswhich shockthe Chapter I- Section 2
Prior phasesof the litigation
conscience of mankind and flagrantly conflict with moral law andthe spirit and aims of the
United Nations:
53. Whereas, since the Order of 8 April 1993 was made,the grave risk which the Court then
apprehended of action being taken which may aggravate or extend the existing dispute over the
prevention and punishmentof the crime of genocide, or render it more difficultof solution,
has been deepened by the persistenceof conflicts on theoy of Bosnia-Herzegovina and
the commissionof heinous acts in the course ofse conflicts;
54. Whereas the Security Council of the United Nations in resolution819 (1993) of 16 April 1993
took note of the Court'sder of8 April 1993in which the Court indicatedthat the Federal
Republic of Yugoslavia (Serbia and Montenegro) should takemeasures within its power to
prevent the commissionof the crime of genocide, and whereasthe Security Council inthat
resolutioneaffirmed its condemnationof al1violations of international humanitarian law, in
particular the practice of "ethnic cleansing";
55. Whereas the Security Councilof the United Nations in resolution859 (1993) ofugust
1993 which, inter alia, affirmed the continuing membership of Bosnia-Herzegovina in the
United Nations, reaffirmed the principleof the unacceptabilityof the acquisition of territory by
force and recalled that of individual responsibility for theperpetration of war crimes and other
violations of international humanitarianlaw."
The Court concludedby reaffirmingits Order of 8 April 1993, addingthat this Order
"shouldbe immediately and effectively implemented" [para 6.11.
12. Thus, the Court clearlyaccepted the viewthat the Respondentshouldbe told to
refrain fiom violatingthe Genocide Conventionand specificallyordered the
Respondentto take the necessary stepsto that end. On the other hand, the Court
refùsed to give this sort of Order to Bosnia and Herzegovinaand made the latter
only the addresseeof a generalcal1on both partiesto refrain fiom actions which
could aggravate the conflict.
Judgmentonpreliminaryobjections
13. In June 1995,the RespondentraisedPreliminary Objectionsregardingthe jurisdiction
of the Court and the admissibilityof Bosnia and Herzegovina'sSubrnissions.
In its Judgmentof 11July 1996the Courtrejectedal1of these Preliminary
Objections. TheCourt foundthat it hasjurisdictionto adjudicateupon the dispute on
the basis of Article IX of the Conventionon the Preventionand Punishmentof the
Crime of Genocide andit found the Applicationfiled by Bosnia and Herzegovina
admissible.In its Judgment,the Courtconsideredthat the applicabilityof the
Genocide Convention is notReply ofBosniaand Herzegovina
"subjectto the conditionthatthe acts contemplatedby it should havebeencommitted withinthe
fiamework of a particulartype ofconflict.
In other words, irrespectiveof the nature of the conflict formingthe backgroundto such acts,the
obligationsof preventionand punishmentwhichare incumbentuponthe States partiesto the
Conventionremain identical(..It followsthat the rightsand obligations enshrinedby the
Convention arerightsand obligationserga omnes.The Court notesthat the obligationeach State
does have to prevent and to punish the of genocideis nottemtorially limitedby the
convention." [para. 311.
The Court alsoobsewed "that the referencein Article IX to 'theresponsibilityof a
State for genocideor for any of the otheracts enumeratedin ArticleIII', does not
excludeany form of State responsibility."[para. 321.
Orderregardingcounter-claims
14. In its Counter-Memorialof 23 July 1997,the Respondent includedcounter-claims,
alleging that it was the Applicantwho violated the Genocide Convention. Bosnia and
Herzegovina objectedto the inclusion of these counter-claimsin its case,choosingto
do so given the preposterous natureof the counter-claims, which are clearly meantto
make a mockery ofthese extremelyseriousproceedings. Moreover,makingthese
counter-claimspart of these proceedings wouldcausea considerable delay. Bosnia
and Herzegovina based its objectionson Article 80 of the Rules of Court.
15. In its Order of 17December 1997, theCourt rejected theApplicant's objections
considering
"(...) that the counter-claims subby Yugoslavia arediectly connected withthe subject-matter
of Bosniaand Herzegovina'sclaims;andwhereas,as counter-claims,they are thereforeadmissible
and form part of the present proceedinbara. 371.
Thus the Court,
"Fin&that the counter-claims submittedby Yugoslainits Counter-Memorial areadmissibleas
such and fonn part of the currentproceedin[para.431.
16. It goes without sayingthat Bosnia and Herzegovinais not happywith this Order.
This Reply will showwhy, since it will demonstratehow entirely different both
cases,now before the Court, actuallyare. However,it alsogoes withoutsayingthat
Bosnia and Herzegovina fully respectsthis Order. The Applicant willdeal with the
counter-claims in this Reply, whereverit deemsnecessaryto do so, specificallyin
Parts V. Chapter1 -Sectio3
TheCounter-Memorial
Bosnia reservesits rights regarding apossible additionalpleading as meant by the
Court in para. 42 of its Order.
Order delayingtime-limits
17. Although Bosniaand Herzegovinahad expected tobe able to submit its Reply by the
tirne-limitset by the Court, 23 January 1998,this eventually, andmuch to the
Applicant'sregret, turned out not to be feasible.One of the reasons for this is
obviously the factual complexityof this case. Another reason is that most ofthe
translation capacityavailablein Sarajevohad to give priority to urgent requestsfor
translation of documentson behalf of the ongoing criminalproceedings beforethe
ICTFY, especially withregard to the Celebikicase [Prosecutorvs. Delalit and
others, ICTFY, CaseNo. IT-96-21] in which three Bosnian Muslims and one
Bosnian Croat are currentlybeing tried.
18. In his Order of 22 January 1998, the President ofthe Court extendedthe time-limit
for the submission ofthis Replyto 23 April 1998.
As a consequencethereof,the time-limitfor the submission ofthe Rejoinderof the
Respondent was extendedto 22 January 1999.
3. The Counter-Memorial
Part One
19. Sincethe Respondentfailed to complywith this Court'sOrdersof 8 April 1993and
13 Septernber 1993,the on-going state of war in Bosnia andHerzegovina made it
impossiblefor the Applicantto produce its Mernorialwithinthe time-lirnit set by the
Court. Therefore, the Applicanthad to requestan extension,which the Court allowed
by itsOrder of 7 October 1993.
The time-limit, initially set for 15 October 1993,was extendedto 15 April 1994.
Although limitedby the restrictionsposed upon it by the on-goingstate of war, the
Applicantsucceededin submittingits Mernorialto the Courton 14 April 1994.
20. The Respondentwas to submitits Conter-Mernorial on 15April 1995,but obtained
an extensionof this tirne-limitto 30 June 1995.Then, the Respondentdid not
produce a Counter-Mernorial,but raised PreliminaryObjections.The delay caused by
these proceedings ledto a new Court Order dated 23 July 1996,accordingto whichReply of BosnandHerzegovina
the Respondent was alloweduntil 23 July 1997to submit its Counter-Memorial,
which is more than three years sinceBosniasubmittedits Mernorial.
21. Since the Respondent had beenin possessionof the Applicant'sMernorialsince 15
April 1994, one would have expected thatthe Counter-Memorial would,indeed, have
been a responseto the issuesof fact and law which have beenbrought forwardby
the Applicant.
However, like the PreliminaryObjectionsof 26 June 1995,this Counter-Mernorial
spends many more pages on what can only bejudged as politicalpropaganda, rather
than on issues which could be helpfui for the Courtto reach its decisionin this case.
The Applicantmust admit that the mode of proceeding appliedby the Respondentis
to a certain extent effective:it makes it difficult for theApplicantto respond, since
the Applicantprefers to avoid beingdrawninto a debate overthe erroneous
presentationwhich the Respondent producesof "facts"andlor even of "historical
facts", whichin the view of the Respondentwould be relevantfor a proper judgment
of this case.
Therefore, the Applicantwill try and restrict itself to matters of fact and law which
could serve as afurther clarificationof this case andof the Submissionsput forward
by the Applicant.
The Counter-Mernorialcontains 1085pagesof text and is divided into two Parts.
Part One is to be considered the responseto the Memorial,while Part Two contains
counter-clairns.Of the entire text, 348 pagesare devoted tothe response, while more
than twice as much, 730 pages,are spenton the counter-claims.
Out of these 348 pages only 127can be considereda responseto the factson which
Bosnia and Herzegovina hasbased its Submissions in its Applicationand Memorial
[see Counter-Mernorial,pp. 3-79, 98-110and 245-2741.
The Respondent Mer spends 18pages in trying to demonstrateto the Court that
Resolutions, Statementsandior Reportsof independent bodieslike the United
Nations, the European Community,the Conference onSecuriw and Cooperationin
Europe and related sources are not credibleandlor relevantto a properjudgrnent of
the Applicant's Submissions [see Counter-Mernorial,pp. 80-981Another 132 pages
are spent by the Respondentin providing the Court with its view on eventsthat took
place in the former Yugoslavia between1990and 1997,including extensive
referencesto eventsthat occurredin WorldWm II [see Counter-Mernorial,pp. 111-
2441.However, in doing so, the Respondentdoes not providethe Courtwithan
explanationas to why this view on these events,if true, could serveas a justification Chapter1- Sectio3
TheCounter-Mernorial
for the extreme atrocitiescommittedagainstthe non-Serb populationof Bosnia and
Herzegovina, let alone as a justification forgenocide(for which, in any case,there is
never any justification).
Needlessto say, the Applicant doesnot sharethis particular viewon these particular
events at dl, so the Applicantwill only respondto these sectionsof the Counter-
Memorialinsofar as thismay be relevantfor its Submissions.
Finally, the Respondent spends, out of 348 pagess ,ome 50 pages on law [see
Counter-Memorial,pp. 297-3481.
Thus, only around half of the 348 pages of Part One ofthe Counter-Memorial bear
some relevanceto this case.
24. However,the Respondent,in its Counter-Memorial,is never very specific in its
denial of facts and circumstancespresentedby the Applicantin the Memorial.The
approachusually seemsto be: "not true", i.e. "the source is not independent",i.e. "in
any casenot genocide", i.e. "in any case not attributableto Yugoslavia".A randomly
picked exarnple forthis approach reads likethis:
"~venif thestatementweretrue,andtheApplicanthasnotprovedthat itis true andthe
Respondentdeniesit, it is evidentthattheintentwithwhich the allegedactwas committedwasthe
expulsionof Muslims,andthatxcludesgenocide. Besides, evenif theseactswere indeed
committed,they cannotbe attribto the Respondentndit is notresponsiblefor them."
[Counter-Memorialpara. 1.2.1.19.1.
This languagecomesback in many different forms throughoutthe Counter-
Memorial.
It is the viewof Bosniaand Herzegovinathat a mere denial, unsupportedby any
independentsources, ofatrocitiesof the kind involvedin this case andlor of
responsibilie thereof, cannot be consideredto form a proper defense in a genocide
case. If not respectfor the Applicant,then at least respectfor the Court shouldhave
brought the Respondentto take this case more seriously.
Apart from this,the Applicant will showin this Reply that for legal reasonsas well,
the approach taken by the Respondentregardiig the burden of proof is legally
unsound.
25. Although, in some parts of its Counter-Mernorial,the Respondentseemsto defend
the position that theindependentsourcesto whichthe Applicanthasreferred in order
to further supportits Submissionsare not in fact independent,not credibleand not
relevantto the case,the Respondentadopts quite the opposite positionin other partsReplyof Bosniaand Herzegovina
of its Counter-Memorial,unconditionally quoting thesarnesort of independent
sources.The Applicant is convincedthat, in court proceedingsas well, one cannot
have it both ways. Therefore, sincethe Respondentalso refersto the United Nations,
EC, citizens' organisationsand other independentsources (amongwhich are Western
media sources such as the New York Times,Der Spiegel,etc.) theApplicantwill not
further discuss, let alone defend,the quality and independenceof the sourcesto
which Bosnia and Herzegovina hasreferred earlier in these proceedings.
Of course, any referenceto or any quotationof any independent sourcemay be
counteredby the other side by providingthe Court with evidencewhich shows that a
specific quotationof and/or a specific referenceto a particular source is notuseful,
since it would be clear that the particular sourceat this particularpoint was not well
informed. That is, however, preciselywhat the Respondent isnot doing in its
Counter-Mernorial.If the Respondent usesany supportivesourcesfor its blunt
denials atdl, these sources are usually not consideredto be independent.In many of
the cases, the Respondent just relies on anonymouswitnessstatementsor on articles
published in the Government-controlled Belgrade newspaper Politika. It is clear that
reliance on this sort of "evidence" cannot helpthe Respondentin its continuous
denial of facts that have been establishedby the authoritative sources referredto by
the Applicant in support of its Submissions.
26. Giventhe fact that the internationalcommunity,and morespecificallythe UN and
EU, have, over a period of around 5 years, consequentlyheld the Respondent
responsible forthe atrocitiescommittedagainstthe non-Serb population of Bosnia
and Herzegovina (whichis, among other things, clear byjust having a look at the
series of Resolutionspassed by the SecurityConcil, many of which irnposedand
confïmed sanctionsagainstthe Federal Republicof Yougoslavia)the Respondent
shouldhave at least offered a detailed explanationto this Court, based on a detailed
factual and scholarly analysis,clarieing why, in its view, the international
comrnunityhas been completelywrong over such a long spanof time.
The Counter-Memorial does not containanythingwhich could be consideredto be
eventhe beginning of such an explanation,while the 15Volumes of Annexes are,as
a consequence, but alsoon the basis of their own merits, nomore supportiveof the
positionthe Respondent wishesto defend.
27. In this Reply, the Applicant will respondto the contentsof the Conter-Mernorial,
while elaborating its case as it has been presentedto the Court duringthe earlier
phase of the proceedings. Chapter1- Section 3
The Counter-Mernorial
In doing so, the Applicant will expandthe factualbasis for its submissions, one
reason for this being thatsincethe fighting has ended,the Applicantis now in a
much better positionto properlyprepare and presentits case. The other reason is that
since the subrnissionof its Memorialon 15April 1994,many more genocidalacts
have been committedin Bosnia and Herzegovina against the non-Serb population,
includingthe massacrein and aroundSrebrenicainJuly 1995.
Part Two
If anything at dl, the counter-claims,as presentedby the Respondentin its Counter-
Memorial, demonstrate theentirelyasymmetrical nature of thetwo cases now before
the Court.While in its Memorial andin this ReplyBosniademonstrates that the
campaignof ethnicpurificationwas not only very well prepared,but also carried out
accordingto recognisablepatterns,while Bosnia demonstrates thatthere existed a
horrible logic to the genocidalacts committed againstits non-Serb population, while
it showshow strongly interlinkedthe efforts of the Respondent'sand "Republika
Srpska"'~authoritieshave been al1dong, the Respondentin its Counter-Memorial
merely sums up many(if true) indeedterrible incidents,without providingany
contextual, let alone direct, evidence whichcouldbring these incidentswithin the
range of the Genocide Convention;nor does the Respondentdemonstrateany
responsibilityon the part of the governmentof Bosnia andHerzegovinafor any
genocidal acts.
29. The explanation forthis asyrnmetryis clear:there is no basis, either in fact or in
law, to support the idea that the eventsrelatedby the Respondentcould be perceived
as amirror-imageof the systematic,ethnicallyinspiredatrocitiessaered by the
non-Serb populationof Bosnia and Herzegovina.
30. This asymmetryhas been confïrmedtirne and again by the SecurityCouncil, which
in its numerous Resolutionsregardingthe conflict repeatedlycalled upon "theSerb
side", "the neighboursof Bosnia and Herzegovina"and "the Federal Republicof
Yugoslavia"to refrain from violating internationalhumanitarianlaw, to respect the
temtorial integrity of Bosnia and Herzegovina,to refrain fiom providing the Bosnian
Serbs with military suppliesand to stop the abhorrent policy of"ethniccleansing".
31. This asymmetryis also reflectedin this Court's Ordersof 8 April 1993and 13
September 1993.In both Orders, theCourt called upon bothparties not to aggravate,Reply ofBosnia andHerzegovina
extend or complicate the dispute.However,the Court told,only oneparty, namely
the Respondent, to take al1necessary measures to prevent genocide fkombeing
committed(this part of the Order of 8 April 1993was given unanirnously), and the
Court told the same onepaty to ensurethat no acts of genocide(including
conspiracy, incitementand complicity)would be committedby any military,
paramilitary or armed units, directed or supportedby the Respondent,nor by
organizationsand persons whichmay besubjectto Respondent'scontrol, directionor
influence (this partof theOrder of 8 April 1993was givenby 13votes to 1).
32. Althoughthis asymmetryitself effectively respondsto the counter-claims and
clarifies whythey lack a relevantbasis for this case, Bosnia andHerzegovinawill in
this Reply respondextensivelyto the Respondent'scounter-claims.
The 730 pages spent on the counter-claimsmostly containlong lists of names of
people allegedly havingbeen killed &or wounded.Most of these allegations are
not supportedby independent sources; none of the allegationsare backedup by
independent evidencewhich could support,let aloneprove, an allegationthat
genocide was committed.
Accordingto the wording of the Counter-Memorial,most of the evidence allegedly
availableis to be found in Belgrade.The Respondent deemedit usefid to add a
footnote by wayof explanation ofthis peculiarway of proceeding on page352 of
the Counter-Memorial stating:
"~hetime limitfixedbytheOrderof theCourt23 July1996restrictedthe Respondent's
possibilityof submial1therelevantevidence.However,it is deposited,underthenumber
indicatedintheCounter-Memonal,iththeCornmittforCompilingInformation Crimes
againstHumanityandInternatiolaw and is availableto theCourtandthe~~~licant.".
Since the Respondentfails to submit its alleged evidence,it is impossiblefor Bosnia
and Herzegovinato assessthis evidenceor its existence thereof. Bosnia and
Herzegovina does not haveto explainto this Court thatthis is anentirely improper
way of proceeding.This approachwouldbe unacceptablein any sort of litigation
before an:court. It is entirelyunacceptablein a case inwhich theallegations are as
extremely senous as violationsof the Genocide Convention. Moreovert,his way of
proceeding is in direct violationof Article43 of the Statuteof the Court, in
combination with Article 50 of the Rules of Court.There is no doubtthat both State-
parties involvedin these proceedingsagreeabout this, sincethe Respondentalready
took this position early inthese proceedingswith regardto additionalAnnexes,
which in its view, should have been included with the BosnianMemorialof April
1994. ChapterI- Sectio3
TheCounter-Memorial
33. Bosnia andHerzegovinawould like to drawthe attentionof the Courtto the
correspondence sentto the Court by the Respondentregarding these issues
(Memorandumof 9 May 1994, handedto the Registraron 18 May 1994, and follow-
up letter of 6 June 1994).In this correspondence,the Respondent complainedabout
the fact that the Applicanthad not annexedcopies of public and readilyavailable
documents (mostlyU.N. documents)to its Memorial.
Somewhatto Bosnia and Herzegovina'ssurprise, the Court then instructedthe
Applicantby suggesting that "...you wouldthus do wellto make goodthis
deficiencyas rapidly as possible" [letterof the Registrarto the Applicant, 30June
19941.In spite of the fact that by this instruction the Court deviatedfrom the regular
practice in ICJ proceedingsaccordingto which readilyavailabledocuments,let alone
U.N. documents,never need to be annexed(either in full or in extractform) to
written pleadings,Bosnia and Herzegovina followed theinstructionand submittedthe
additionalAnnexesas rapidly as possible under the circumstances.
34. Itgoes without saying thatthe need for annexing evidenceto which a Party refers in
a written pleading is especially pronouncedif this evidence is only in this Party's
possession.The Respondenthas failedto meet this procedural obligation.There is no
excuse whatsoeverfor this failure, especiallysincethe Respondent has hadan
extensive time-limit (oneyear) for the preparationof its Counter-Mernorial,while it
was in a positionto startpreparingfor this Counter-Memorialas early as April 1994,
when the Memorialwas submittedto the Court.
Bosnia andHerzegovinadeniesthe truth of each and every allegationcontainedin
the Counter-Memorial which is not supportedby evidence annexedin one of the two
languagesof the Court. It Statesthat the Court needsto consider as unprovenal1of
the Respondent's allegationsbased on unsubmittedand not readily available,so-
called, evidence.
As far as therest of the allegationsare concerned,the ApplicantMer notes that
the Respondent has failedto provide for even the beginningof proof for Bosnian
responsibilityfor the alleged crimes that form thebasis of its counter-claims,let
alone that the Respondenthas proven any sort of genocidalintent on the part of the
Applicant State.
In Part V of this Reply, Bosnia and Herzegovina willfurther deal with the counter-
clallns.Reply of Bosnia andHerzegovina
4. General scheme of this Reply
36. This Reply is divided into six Parts. The generalintroductionto the Reply is to be
found in Part 1,while Part II and PartIII concentrateon facts and questionsof law
pertaining to the main issues ofthis case:the commissionof genocide and
Respondent's responsibility.In Part IV,the Applicantelaborateson the remedies
requested. PartV respondsto the conter-claims submittedby the Respondent.Part
VI containsBosnia and Herzegovina'sconclusions.
37. Whereverthe Applicant deemsit necessary,a responsewill be providedto the
allegationsput forth in the Counter-Mernorial. The mere fact that the Applicantdoes
not respondto each and every sectionof the Counter-Memorialmay in no way be
construed as an acceptanceof the truth andlorrelevanceof these sectionson the part
of Bosnia and Herzegovina.
While producingthis Reply,the Applicant was awareof the Court's disinclination
toward the enclosureof numerous and extensive Annexes to written pleadings.
Therefore,the Applicanthas only annexed copiesof documents whichmay not be
readily availableto the Respondent and theCourt. The Applicant has also deposited
two sets of books in the Registry,one set being for the Respondent, theother for the
Court. Whenever,in this Reply, the Applicantrefers to the contentsof one of these
books, the relevant pageis annexed,while it is indicatedthat the whole documentis
deposited.
39. In order to assistthe Court in obtaininga clearerpicture of events referredto in this
Reply, maps are included in its text. The basis forhese maps is to be found in the
UNHCR map of 1 March 1994, whichwas reproducedearlier by the Applicant
[Mernorial,page 161.
39. This Reply, exceptfor the separately relevantPart V regarding thecounter-claims,
needs to be taken as one integratedstatement,whichmeansthat al1of its Parts and
Chapters are closelyconnected andthat positions elaborated in one Chapteralso
serve to amplifi the other Chapters. Chapter2-Section 1
A "Balanceof Guilt"test is inapplicable to genocidal acts
CHAPTER2
FEDERALREPUBLICOF YUGOSLAVIA'S REPLY TOTHE APPLICANT'S
MEMORIALIS INADEQUATEAND ERRONEOUS
1. A "Balance of Guilt" test is inapplicable to genocidal acts
1. The Federal Republicof Yugoslavia's Counter-Memoriad levotesmore than three-
fifths of its pages (Part II) to assertinga "counter-claim"to the effect that Applicant
is responsible forgenocide against theSerb population of Bosnia and Herzegovina.
Respondent specifiesthat Applicantis responsiblefor "actsof direct and public
incitementto commit genocide" andcitesthe "IslamicDeclaration" and(numerous
times) a versepublished in a newspaperin October, 1991 [Counter-Mernorial2 ,3
July 1997,p. 349, paras. 7.0.1.0-7.0.1.2.;see alsoibid., p. 1084,para. 8.21.1.
2. If the Respondent really believedthat Bosniaand Herzegovinawas guilty of
genocide, Respondentwould havebeen able to bring anaction againstApplicant at
the time the allegedevents occurred:that is, in 1992-93. Indeed,its written
observationssubmittedto the Courton 1April 1993,after Bosnia andHerzegovina's
first request for provisional measures,requeststhis Court to take measures for the
protection of the Serb population
"sincethe genocideof Serbslivingin the Republicof Bosnia and Herzegovinais beingcarriedout
by the commission ofvery seriouswarcrimeswhich arein violation of the obligationnot to
infringeupon the essentialhumanrig[Applicationof the Conventionon the
Preventionand Punishmentof the Crimeof Genocide, Provisional Measures,
Orderof 13 September1993,ICJReports 1993,p. 325 at 33 1, para. 41.
3. Since that assertion,however,the Federal Republicof Yugoslaviahasbeen silent on
the matter of genocide.This is a strange strategy,given the seriousnessof such an
allegation.At the least, itaises questionsregardingthe good faithwith whichthe
allegationis now, more than five years after the occurrenceof many of the acts
alleged, being resurrected as a "counter-claim."
4. In reality, what Respondentis advancingis only superficially a counter-claim,but
actually a strategy thatasksthe Courtto considerthat two purportedwrongs canReply of Bosniaand Herzegovina
make a right. Respondentseeksto justifi its own genocideasa sort of permissible
counter-measureto a genocideallegedly comrnittedby Applicant.
This is evidentfrom the fact that Respondenttook more than four years since the
initiation of Bosnia and Herzegovina'sapplication,on 20 March 1993,to bring
forwardto this Court a substantial claim thatit hadbeen a victim of genocideby the
Complainant.It is also significant thatinmakingthis belated assertionof
victirnization,Respondent, more than four yearsafter mootinga charge of genocide
against Bosniaand Herzegovina without any evidence whatsoever,still offers neither
the Applicantnor the Court accessto real evidenceto supportits claim or to explain
why it has only so recentlybeen advancedas a counter-claim, ratherthan as an
action broughtagainst Bosnia and Herzegovina simultaneouslywith this case.
Moreover, the hugenurnberof unsupportedallegations indicate thatRespondent
cannot be seriouseven now in its allegationsof genocide,for the specificclaims
certainlydo not qualiQ as acts in violationof Articles1,II and III of the Convention
and are never accompaniedby evidenceof the necessary"intentto destroyin whole
or in part" thegroup to whichthe allegedvictirns belong.
6. What is most disturbing,however,is that Respondent,in effect, asks this Court to
decidethat one genocideisjustifiable in lawby another. Respondent seemsto
believethat if this Court were persuaded to establish,on the facts, that therewas a
"balanceof guilt" between the parties,this "balance" or "equivalence"would, so to
speak, wipe the slate clean.Or that it would lead this Court to effect a "quantum
meruit" weighingand assessing of theparties' comparativeguilt. Were this not
Respondent's intent, itsCounter-Memorialwouldhave soughtto meet Applicant's
specific allegations. Instead, itsCounter-Memorial concentrates,in Part 1,on
rearguing matters of law that, for the most part, havealreadybeen resolved bythis
Court in its judgment of 11July 1996 and then, in Part II, on pressing a so-called
"counter-claim."The discussionsregardingthe various electionsin Bosnia and
Herzegovina,for example [Counter-Mernorial, pp. 242-43p , aras. 2.20.1.-
2.20.1.41,indicate Respondent'sinability or unwillingnessto understandthis Court's
insistence that, Bosniaand Herzegovinabeing properly a party to the Genocide
Convention,its dornesticlegitimacycannot be placed in question VCJ,Judgmentof
11July 1996,p. 18,paras. 18- 191.For Applicantto reiterate at this stageof the
proceedingsits arguments in supportof the legitimacy ofits domesticpolitical
process wouldbe to give credence to Respondent's totally irrelevantand diversionary
tactics:tactics meant to disguiseits lack of a substantivereply to the allegations Chapter 2-Section 1
A "Balanceof Guilt"test is inapplicable to genocidal acts
advancedin Applicant'sMemorial, citing numerous independent and respected
authoritiesto support its claim.
7. Applicant denies emphatically the unproven aspersionsin Respondent's Counter-
Memorialthat try to suggest equivalence of guiltas between theparties. It even
more emphaticallyurges the Court not to be drawn into what, in effect, approximates
not so much a counter-claimas a bogus and inadmissible defence.Applicant strongly
urges the Courtto reject the Respondent'simplicittheories of comparative guilt and
of exonerationby mutuality of fault. Any state'sviolations of Articles 1,II and III of
the Genocide Conventionare directly actionable at theinstance of any other State
Party under Article IX and such violation can never be exonerated or evenmitigated
by any other violations allegedto have beencornrnittedby the complainingparty:
not even if such were to be proven by credible evidence. Genocidecan never be a
remedy of self-helpnor an instrument oflawful reprisa1or retortion. This Court, in
itsOrderof 17 December 1997,perhapstoo optimistically,concludedthat "the
Parties rightly recognizethat in no case could one breach of the Convention serve as
an excuse for another (..)"[KY Orderof December17, 1997, para. 351. Applicant
certainly agrees with this proposition of law and hopes, despitethe evidenceto the
contrary in its Counter-Memorial, that the Courthas correctly assessedthe
acceptanceof this proposition by the Respondent.
8. The defensive strategy of "innocenceby mutuality ofguilt" has other malevolent
legal implications.It emerges with terriQing clarity from the Respondent's Counter-
Memorialthat the Federal Republic of Yugoslaviabelieves that the obligation
imposed uponstates by the Genocide Convention shouldbe interpretedby this Court
as amenableto exonerationor mitigationif:
(a) the govemment of those persons againstwhom genocideis committed were
in some sense illegitimate [Counter-Memorial, paras.2.2.1.1-2.3.1.21.].
What other rationalewould explainthe Respondent's repetitive insistence
on reciting its long,wholly inaccurate,and, ultimately, irrelevant political
history of the "break-up"of Bosnia-Herzegovina?
(b) the genocide is a preemptiveresponseto alleged verbal incitementby some
public or private persons within the group subjectedto genocide. What
other rationalewould explain Respondent'srepeated recitation of
allegationswhich, even if true, would at most amount to verbal incitementReply of Bosnia and Herzegovina
by individuals,not topolicies actually carriedout by officiais?[Counter-
Memorial, paras.2.8.1.1-2.12.1.42.1.
9. The Applicantrejects as entirelyuntrue almost al1the facts,and, in particular, the
motives ascribedto its leadersin these parts of the Counter-Mernorial.The response
of Bosnia and Herzegovinato these allegationsis set out in detail in Chapter 13
(below). Here, however,it is necessaryto draw the Court's attentionto the fact that
Respondentsets forth no credible evidenceto support a chargethat Applicant
committedgenocide.Whilethe wholeof Part Two of theFederal Republicof
Yugoslavia'sCounter-Memorialconsistsof essentially unsubstantiatedallegations
that genocidewas committed againstthe Serbpopulation ofBosnia and Herzegovina,
the preponderanceof the evidenceto support these fanciful allegationsis not made
availableto Applicant,nor is it presentedto the Court. It is not in the Memorial or
its annexes,nor is itin one of the languages ofthis Court. It does not, moreover,
derive from sourcesof any probative weight,such as the kinds of findingsof fact
made by internationally-authorizedbodies. The Court shouldnote the contrast
betweenthe principal sourcesof fact-fmdingadducedby Applicant andthose
produced by Respondent.
10. Applicantwants no part of givingany semblance ofcredibilityto a manoeuvreby
Respondentthat appearsto revivethe legality of reprisals in general and as an
excuse for genocidein particular.Reprisa1is prohibited against civiliansunder the
1981 United Nations Convention on Prohibitionsor Restrictionson the Useof
Certain Conventional WeaponsWhich May be Deemedto be ExcessivelyInjurious or
to Have IndiscriminateEflects [AIConf.95/15 of 27 October 1980, ProtocolII, Art.
3(2)]. International lawhas exorcisedthe right of reprisal against civilians[I.
Brownlie,InternationalLaw and the Useof Force by States, 1963, pp. 219-231.
Thus, it surely also cannot be lawfulwhen directed againstinnocentpeople with the
savagery of genocide.
11. In sum: even if Applicanthad engagedin a large number ofdeliberate actsof killing
Serbs, of which there is no credibleevidence, and even if Applicantactuallyhad
harboured an intent to commit genocide - of which there is also no credible
evidence - this would in no way alter the Respondent's responsibilityand liability for
its violations of ArticlesII and III of the Convention.
12. This Court, in assessingthe evidencerelied upon in Part II of Respondent's Counter-
Memorial shouldalso keep in mind the U.S. Govermnent'swaming against Chapter2 -Section1
A "Balanceof Guilt"test is inapplicableto genocidalacts
"the practiof theSDS [Serb authoritieso]f issuingthroughtheSerbianNews AgencyA)a
floodof unfounded chargsf crimesby Bosniangovernrnetorces(......"As anexample,the
U.S. Govement citesthefollowing:'SRNAreportedin September[1992],forexample,that150
SerbshadbeenkilledinBihac....AninvestigationbytheUNPROFORin Bihacfailedto produce
anyevidenceof suchkillings.[US Departmentof State, CountryReports on Human
RightsPracticesfor 1992, Feb. 1993,p. 726,Annex 11.
Not only werethese reports of Applicant'smisdeedsfound to be false but the U.S.
contrary,that BosnianGovenunent officialshad intervened
authorities noted,to the
to save BosnianSerbs unjustly detained andhad punishedthose guilty of harassing
them [ibid., p.7251.
13. These evaluationsof the respective credibilityand hurnanityof the parties is echoed
in the report of the SpecialRapporteur of the UnitedNations Human Rights
Commission, Tadeusz Mazowiecki, which specificallydeniesthat the partiesto the
conflict share equivalent guilt,and warns that
"onecannotlose sightof the factthatthemainresponsibilitylies withtheSerbianforces(...)If
[UnitedNations,Situation of Human Rightsin the territory of theformer
Yugoslavia,report submittedbyMr. TadeuszMazowiecki,Special Rapporteur
of the Commission on HumanRights, transmittedby the Secretary-Generalto
the General Assemblyand the SecurityCouncil,Al471666;Sl24809, 17Nov.
1992,p. 16, para. 421.
Mazowiecki,the UnitedNations HumanRights Commission'sSpecial Rapporteur,
also reports that, while in "Bosniaand Herzegovina ethnic cleansingis practised
systematicallyby Serbs (...through the most cruel and mercilessmethods
imaginable"[ibid.,p. 10,paras. 19, 201in Muslim-controlledregions, whilesome
Serbs have left,they did so"not becauseof any ill-treatmenton the part of the
Muslim or Croat forces, but becausethey had been involved in the fighting, or
becauseof the hardshipsof living in besieged cities." [ibid.,p. 10, para.211.Ethnic
cleansing,as practisedby the Serb authorities,equals genocidebecause,in violation
of the Convention, it was a policy intendedto destroy a community.In sharp
contrast,the flight of Serbs as an unintendedconsequence offighting, the hardships
of war, or feelingsof guilt engendered bythe conductof some Serb leadersdoes not
remotely satisQ the legal test for genocide.
14. Al1Respondent's effortto establishequivalencebetween theparties, andto parlay
that untruth into a defenceto the charge of genocide,is thusconfoundedby the law,
the facts, and by those best positionedto evaluateevents as they occurred.RepIy ofBosniaand Herzegovina
2. Genocide can be directed to more than one group at a time
15. Respondent asksthis Courtto dismissApplicant'schargeof genocide onthe ground
that the acts complainedof were directedat members ofmore than one group. It
thus argues that
"~cts directedat a group composed of memof a numberof differentprotectedgroups do not
constitute actsof genoci[Counter-Memorial,p. 307, para. 4.9.1.3.1.
16. By this reasoning,the draftersof the Genocide Conventionmust be taken to have
intended to exempt Hitler'sholocaust, becauseits systematickillings and related
activities were directed at destroyingnot only the Jewsbut also the Gypsies,
homosexuals,and others deemed Untermenschen by the Nazis' ideology.The
argument advancedby Respondentis so repellantas to warrant but the briefest
examination.
The pattern of destructioninitiated and directedby Belgrade and visitedby the Serbs
upon non-Serb Bosniansdid, indeed, affect Croats,with the genocidalintent to
create a Croat-fiee Greater Serbia. The siegesand debauchment ofBosniantowns
and villages by regular and irregular Serbian and Serbforces alsoled to the death of
some Serbs, especiallysomewho were unsympatheticto the policy of ethnic
cleansing. Some Serbs, who continued againstgreat oddsto support a multiracial
Bosnia perhapswere deliberately targetedin order to stiflethe more humane
oppositionwithin Serbranks. But, while such speculationas to why Serbs killed
Serbs may be of historicalimportance,a confirmationof the FederalRepublic of
Yugoslavia's evidence thatthis occurredcan only confirmthe wrong-headednessof
the Respondent'suse of such evidenceas exculpation.For example,the Respondent
actuaily claims that
"~cts committed againsta group composed of membera numberof protectedgroups donot
constitute genocideif theperpetratorof the actcannotdirect itseffects againstthemembersof one
group only.hus,the bombingof settiementsinhabitedby membersof differentethnicand
religious groupsor the holding ofsuchsettlementsundersiegedo not constituteg[ibid.,."
p. 307, para. 4.9.1.41.
At the very least, such argumentationdemonstratesa deficitin Respondent'scapacity
to grasp the content of the law regardinggenocide.
18. By Respondent'sreasoningthere would be no responsibilityfor genocideif death,
harm, injury, or other actsenurneratedby Article II of the Convention,were Chapter2-Section 3
'YnclusioUniusest EjçclusioAlterius",
is inapplicable to the Genocide Convention
simultaneouslyinflicted on more thanone group ofvictims.It would be difficultto
imagine a more draconianattemptat the Convention'seviscerationthan this
proposition.Of course,there is not a scintillaof evidenceoffered by Respondent --
either from the Convention'stext or travaux --to compel, or even permit, such a
perverse reading of it.
3. "Inclusiounius est exclusio alterius",is inapplicableto the Genocide Convention
That an act is a violationof humanitarian lawdoes not excludethat it is also
genocide. Respondent'sCounter-Mernorial, however, routinely usetshe argumentthat
because certain actions areone form of international wrong, they cannot also be
characterizedas another (as in the maxim: "inclusiounius est exclusio alterius").
Thus, the Counter-Memorial[p. 306, para.4.8.1.21states of ethnic cleansing: "Such
acts are certainly not allowed andare grave breaches ofhumanitarianlaw, but they
do not constitute genocide."It goes on to explainthat "Onlythe intent to destroy a
group investsthe acts with a genocidal character." Omitted from this quotation from
Article II of the Genocide Conventionis the key phrase "in whole orin part," as
well as Article III's offenceof "attemptto commit genocide." Theacts Respondent
adrnitsare "grave breaches of humanitarian law" [Counter-Memoriap . 306, para.
4.8.1.21clearly are also actsintendedto destroythat large "part" ofthe Bosnian
Muslim communitythat had the misfortune tolive in those areas Respondent deemed
part of a futureGreater Serbia; and"ethniccleansing"is also genocide.Thus, it is
surelynot at all,as Respondentclaims, "unacceptable" [Counter-Memorialp ,. 306,
para.4.8.1.21to cite evidenceof an overwhelmingpattern of concertedethnic
cleansing as evidenceof a violation ofArticlesII and III of the Genocide
Convention. and such an allegationis not met by an attemptto classi@such acts
exclusivelyunder the headingof violationsof humanitarianlaw. The same wrongful
actsmay fa11under both categoriesof wrong,neither one excludingthe other. The
wrongful death of a child, or example,may be evidenceboth of a violation of the
laws of war and also of intended genocide.
19. This rather elementary pointhas been placed beyonddisputeby the ICTFY's
confirmed indictmentof RadovanKaradvéand Ratko Mladié [ICTFYI ,ndictment,
Prosecutor v.Karadzié & Mladié("Srebrenica'y,CaseNo. IT-95-18-1,16Nov.
19951which notes that the defendants arechargedwith "Genocide,Crimes against
humanity and Violationsof the laws andcustomsof war." [ibid., pp. 10-11, paras.
47-52]. These charges are based on the commission ofthe same acts, such as theReply of Bosnia andHerzegovina
surnmarymass executionof BosnianMuslimrefugeesat PotoCariin July 1995,and
areseparateprosecutorialcounts (counts1-3) in which essentiallythe same facts are
used to prosecute for thethree separate-but certainlynot mutuallyexclusionary -
offenses. In confirmingthese indictments, JudgeFouadRiad was clearthat "the facts
of the case disclose,bove all, the commissionof genocide."[ibid.,p. 41.He was
equally clear, however, that "the evidencealso discloses,prima facie, the commission
of crimes againsthumanity,and violations of the laws or customs of war." [ibid.].
20. Along the same lines, it must be understood that Respondentis entirelywrong in law
when asserting thatthe GenocideConvention'srequirementof intentionality excludes
the possibility of finding stateresponsibilityfor genocide. Respondentassertsthat the
"concept ofobjectiveresponsibilityof the State" excludeslegal responsibilityfor
genocide because "it wouldbe necessaryto establish theexistenceof appropriate
intent," whichis inconsistentwithobjective responsibility [Counter-Memoriali,bid.,
para.4.10.1.111.The nub ofthis argumentis that (1) intent is ordinarily irrelevantto
state responsibility; (2)genocidean only be found to have been committedif there
is demonstrable intent;(3) therefore genocide cannot bea wrong for whichstates
may beheld accountable.Respondentin effect asksthe Court to agree that any
wrongfulact, for the commissionof which an elementof intent is a necessary
component,cannot also entail state responsibility: anotherexampleof exclusio
alterius reasoning.There is no evidenceeither fiom the text or the travaux to support
this potentially disastrousproposition.On the contrary,pplicant'sMemorialoffers
irrefutableevidencethat Article IX of the Convention was introducedpreciselyto
ensurethat state responsibility wouldensuefrom violationsby statesof the
Convention's prohibitions[Memorial,15Apr. 1994, pp.200-204,paras. 5.2.2.1 -
5.2.2.91.The preambleof General Assembly Resolution180(II)makesclear the
drafter's instructionsto ensure "internationalresponsibilityon the part ofindividuals
and states" [emphasisadded]for genocide.To Belgiurn,as a sponsorof Article IX
of the Convention,the purposewas to bring states to accountbefore the ICJ, an
objective sharedboth by Britainand France[GAOR,6th Cttee, SummaryRecords,
21 Sept. - 10 Dec. 1948,at pp. 146,338, 339 and 4441.While it is tnie that
genocide can only be establishedby evidence of intent,there is no reason whystate
responsibilityfor genocideis excluded in an international instrument that specifies
state responsibility foractionsas to whichan elementof intent is also specified.
Indeed,the ICJ has alreadyupheldthis proposition.It stated in its ruling of 11 July
1996 that "ArticleIX. . .doesnot excludeanyform of Stateresponsibility." [ICJ,
Judgment, 11 July 1996,p. 23, para. 323. "InclusioUniusest ficlusio Alterius':
is inapplicableto the Genocide Convention
21. Perhapsthe most bizarre exampleof Respondent'sdialectical reasoningis the
argument that, ethnic cleansing,if proven, excludes - rather than demonstrates - the
allegationof genocide. Thepoint appearsto be that, when a state drives a population
out of its territory ofhistorichabitation,even if by killing, torturing and raping, this
signifiesnot an attemptto destroy that peoplein whole or in part, but a concernto
prevent their destruction @ygetting them out of hm's way, presumably).
Respondent urgesthe Court to agree that
"ethniccleansing..if thegoalof thatpolicyis to repulseby force, inkillingsandtorture,
mernbersof anethnicorreligiousgroupfroma certaintemtory..excludes'theintentodestroy,
inwholeor in part,a national,ethnical,racialorreligiousgassuch'."[Counter-
Memorial, ibid., pp. 7-8, para. 1.1.3.5.1.
Such reasoningmust tell the Court morethan Respondentmay have intendedabout
the state of mind of genocide'sperpetrators.
22. It is not at al1inconsistentor unusual for partiesembarkingon genocideto combine
a policy of harassment,torture, and killingwith one of driving out theremnants of a
hated group. There is nothing in the Genocide Conventionthat requiresthose
responsible forgenocideor attemptedgenocideto pursue their objectivesby only
one means. Yet that is what Respondent asksthis Court to accept: thatethnic
cleansing, per se, excludesa finding of responsibility for genocide orits attempt.
Again, the effect of Respondent'seffort to escaperesponsibility urgeson the Court a
definition of the GenocideConventionsuchas would mock its framers'original
intent and render it nugatoryin practice.As will be again demonstratedin Chapters
6-8, the object of Respondent'spolicieswas ethnic cleansing and genocide wasthe
means for, and obviousconsequence of,realizingthat goal. In the specificinstance
of Bosnia's case, ethnic cleansing and genocide becamesynonyrnous.
23. Adheringto its "exclusioalterius"legal strategy,Respondent's Counter-Memorial
dismisses out of hand Submissionto the UnitedNations bythe Government of
Austria [United Nations,LetterDated 5 March1993j?om thePermanent
Representative of Austriato the UnitedNationsAddressedto the Secretary-General,
S/25377, 6 Mar. 1993.presentedby the Applicantas Annex 2 to Part2 of its
Memorial].This documentcites a witnessto the effect that: "Once they[the Serbs]
shot 20 people whohad tried to flee. (...They wanted todemonstratethat it was
useless to flee.(...)"[Counter-Memorial,ibid ,p. 8, para. 1.1.3.8.1.To this theRepiyofBosnia and Herzegovina
Federal Republic of Yugoslavia replies:"If this was tme, it is evidentthat the
execution was not carried out with a genocidal intent." [ibid.] Evident? The Courti,n
other words,is being askedby the Federal Republic ofYugoslavia's Govemmentto
accept that the executingof personsin flight is adefense againstan allegationof
genocide, becausethese personswere being killed not for who theywere, but for
what they were doing (thatis, fleeingfor their lives). Applicantasks the Court to
corneto a far more probableconclusion:that civilianflight was causedby the
genocidal policies of ethnic cleansing.
24. In su.: Respondentargues that whenthe Serbforces causedpersons to flee they
demonstratedtheir innocence becauseto cause thegroup to flee is to promote its
survival.And to executethose fleeingfurther demonstratesinnocencebecausethe
intent must only have been todeter flight, not to attempt a destructionof the group.
Ttwould be difficult to think of a more disingenuous theoryfor the abnegationof
responsibility.
25. Likewise, Respondentarguesthat thepattern of systematickilling of Bosnian
Muslim leaders and persons ofmeansnot only doesnot demonstrateintent to
commit genocide, but, on the contrary, "proves thatthere was no genocidal intent.If
the killings did indeedtake place, they were motivatedby the struggleagainst
political adversariesand not an intention of killing membero sf an ethnic or religious
group." [Counter-Memorial, ibid.,p. 8, para. 1.1.3.7.1.To the Respondent,the fact
that persons were politicaladversariesinsulatestheir methodical killing fiom being
classifiedas genocide.This Court will surely not wish to accept so heinous a
crippling of the conceptof responsibilityfor genocide.It is difficult to believethat
the leadership in Belgradewould be startledto discoverthat this Court, and al1
decent publicopinion, considers the methodical killing of persons in flight, or of the
leadershipof a comrnunity,to be genocideitself, and not a defenseto the allegation
of genocide.
4. States are responsiblefor committinggenocideand other actsviolative of the
Genocide Convention
26. In paragraph 4.4.1.9. of the Counter-Mernorial, Respondent asserts that the Genocide
Convention "doesnot envisage a state asthe perpetratorof genocide." Fromthis
Respondent deducesthat the ICJ, under Article 9, cannothold a state responsible
under Article IX unless it can first "establishthat a crime of genocidehas been
committed,"apparentlyby someperson or entity other thana state. Chapter 2- Section 4
States are responsiblefor committinggenocide
and otheracts violative of the Genocide Convention
27. This contention entirelyrnisconstruesthe intent, purpose and effect of Article IX of
the Convention.Applicanthas askedthis Court, applyingArticle IX, to determine
that Respondenthas violatedArticles 1,II and III of the Convention.The travauxfor
Article IX made clearthat it was adoptedprecisely because it was envisagedthat
states are the most likely entitiesto commit,conspireto, inciteto, attempt, or engage
in complicityto commit genocide, or fail to prevent orpunish genocide.
It was clearly envisagedthat statesin particularcould committhese acts. Article IX
was adoptedto preempt what, given the historic context ofthe Convention, wasfar
more a likelihoodthan a remote possibility:that a state might violate the obligations
of the Convention. ThisCourthas already determinedthat "ArticleIX (...)does not
excludeany form of Stateresponsibility."[Case ConcerningApplication of the
Conventionon the Prevention andPunishmentof Genocide, Judgment (Admissibility
and Jurisdiction)of 11 July 1996,p. 23, para. 321.It has likewise determinedthat
the Conventiondoes not exclude "the responsibility ofa State for actsof its organs
(...).[ibid.].
29. The Respondent,being obduratelywrong in continuingto assert that states cannot
commit genocide, then goes on to draw a wrong conclusion about the law applicable
to an action against a stateunder ArticleIX. ArticleIX was adopted preciselywith
the understanding that,if acts prohibitedby the Convention were comrnittedby a
state, no tribunal of that statecould be expected toafford the necessaryredress. To
close any such loophole, thedrafters designedArticle IX to empower any stateparty
to bring an action before theICJ allegingthe failure of another stateparty to
interpret the Conventiondiligentlyand correctly,to apply it vigorously,and
othenvise to fulfil its obligations.ArticleIX authorizesthe ICJ to determine "the
responsibilityof a State for genocide orfor any of theother acts enumeratedin Art.
III." The languageis as unambiguousas its intent is clear. It holds states responsible
for violations not only of Article II of the Conventionbut also for violationsof
Article III.
30. Respondentnevertheless argues thatArticle IVof the Convention "envisagesthat
only physical persons are subjectto punishmentfor the commissionof genocideor
another punishableact enumeratedin article III." ArticleIV does not say anything of
the kind. It is Respondentwho has gratuitouslyadded the word "only"to Article
IV's requirement that "persons" cornrnittingthese acts "shallbe punished (...)"
Article IV in no way rescinds ArticleIX, which providesan entirely differentReplyofBosniaand Herzegovina
remedy "relatingto the responsibilityof a State for genocide orfor any other acts
enumerated in article I(...)Oas determinedby this Court. Whileit is true that
ArticleIX envisages a civilremedy,that remedy is availablefor anyviolationof any
of the Convention's obligationsby any state party.
In paragraphs4.10.1.5.-4.10.1.9.,the Respondentdrasticallymisrepresentsthe
travaux,making it appear thatthe effort of the United Kingdom'srepresentativein
the drafting AdHoc Cornmitteeon Genocide(Sir GeraldFitzmaurice) failed in his
efforts to secure a legal recognitionof states' responsibilityfor genocide.Respondent
summarizesthat "it can be concluded that the positionof the Ad Hoc Cornmitteeon
Genocideas well as the Sixth Cornmitteewas that a state couldnot commit the
crime of genocideor any other punishable act specifiedin Article III." Thisis so
blatantly a misrepresentationas to put in question the goodfaith of itsuthor. For
exarnple,it cites and quotes a British amendmentwhich at one stage of drafting,
narrowly failed to extendjurisdiction over disputesto the ICJ [Counter-Memorial,
ibid., p. 310,para. 4.10.1.6.1without so much as mentioningto the Courtthat the
Belgian-Britishamendment,to essentially thesameeffect, was later adoptedby the
draftingcornmitteeby 23 votes to 13with 8 abstentions[GAOR,6th Cttee, Summaly
Records, 21 Sept. - 10 Dec. 1948,p. 4471.
32. As has been made evidentin Applicant'sMemorial,Sir GeraldFitzmauriceand other
like-mindedrepresentativeswere entirely successJUIin establishingnot only state
responsibilityfor genocidebut in empowering theICJ to hear complaintsof such
alleged violationsof the Convention broughtby State Parties.That success took the
deliberatedform of Article IX. Actionsunder Article IX were clearly intendedto be
brought preciselyby one stateparty against anotherstateparty, with this Court
authorizedto determine state responsibilityif a violationof the Convention were
found to have occurred. In the wordsof Fitnaurice,
"~hen itbecameclearthatgenocidewasbeing committea,nypartytotheconvention corefer
thematterto theInternatiolourtof Just(...p]he inclusionof theideaof international
responsibilof StatesorGovemmentsw, asnecessarytotheestablishmtf aneffective
convention onen oc ide[ibid p..,441.
33. Respondent'ssummary is accurateonly in that it reports that"criminal"prosecution
of stateswere not envisagedwhen Article IXwas adopted.This Court has never
been chargedwith determiningcriminalresponsibility,but it most certainlywas
intended to determinethe responsibilityof a state for violationsof Articles II and Chapter 2- Section 4
States are responsiblefor committing genocide
and otheracts violative of the Genocide Convention
III. In giving the impression thatthe effort to establishsuch litigable state
responsibility had failed, the Respondent egregiously misleads the Court.
34. That the Belgian-Britishamendrnentwhich becameArticle IX of the Convention
succeededin the Sixth Comrnitteeis beyonddispute, exceptby the Respondent.The
adoption of Article IX created a competencewhich, in the words of the Belgian
sponsor, "couldnot, of course,be extendedto the pend sphere (...).[Memorial,
para. 5.3.2.3.]. The majority who voted for ArticleIX's concept of "responsibilityof
a state" did so in the keen and unchallenged understanding expresseb dy M.
Chaumont,the French representative,that France supported"the principleof the
international responsibilityof States aslong as it was a matter of civil, and not
criminal, responsibility." [ibid.].Sir Gerald Fitniaurice statedwith equal claritythat
"the responsibilenvisagedbythejoint BelgianandUnitedKingdornamendrnenw t asthe
internationalesponsibilof Statesfollowingaviolationof theConventio. hatwas civil
responsibilit, otcriminalre~~onsibili[ibid.].
35. Al1this has already been clearly statedin Applicant'sMemorial [pp.210-211, paras.
5.3.2.2-5.3.2.41. For the Federal Republicof Yugoslaviain its Counter-Memorialto
pretend it is producingnew evidence to a contraryeffect is egregious.For
Respondentto representthis evidenceas demonstrating the clrafters'intent to absolve
states of legal responsibility forgenocide, andfor Article III violations,is to state
preciselythe oppositeof what is unrnistakablyclear on the face of both the travaux
and the text of Article IX. By insertingthe tenn "criminal"into their effort to be
absolvedof responsibility as a state,Respondentmakes a point which is technically
true but utterly irrelevantand uncontested - that Article IX does not envisage
criminaltrials of states beforethe ICJ.
36. What matters is that Respondent'sconductentailslegal responsibilityand its
consequences,not whetherthe conductis "criminal,"a concept of murkysignificance
when applied to states.As is stated in Oppenheim:
"~helegal consequenceof state conduct beigategonzedascriminalin internationallawand
givingriseto aspecialregimeof internationarlesponsidifferentfromthatapplying toother
situationsinvolvingstate responsiba,nd inparticuthenatureof the sanctionswhichmaybe
takenagainstsuchconduct,arenotclear.Thereis notribunalwithappropriainternational
criminaijurisdictionoverstate[OppenheimSInternational Law, ninth ed., vol. 1,
pt. 1, Sir R. Jenningsand SirA. Wattseds., p. 5351.ReplyofBosnia andHerzegovina
However,although the legal consequences ofcharacterizingsome state responsibility
as criminalis, perhaps, "not clear" thepurpose of Respondentin trying to do so are
perfectly clear.Respondent seeksto convincethis Court that wherethere is an
agreementon crirninalizingcertain conductby individuals,there can have beenno
intent to impose otherkinds of responsibilityon states. Indeed, Respondent would
have this Court believe thatthe impositionof criminalresponsibilityon individuals -
or, more accurately,of a treaty imposingobligationon statesto criminalize
enumerated kinds of conduct -vitiateseven an expressedintent to make states
responsible for failing to cany out al1the obligationsenumeratedin the Convention.
To acceptthis specious exclusioalteriusargumentwouldprofoundly undermine the
law both of state and of individual responsibility.
37. Contraryto Respondent'sargument thatindividualresponsibilityvitiates state
responsibility, itis easy to demonstrate thatmany internationally-cognizablewrongs
can be committedboth by individualsand by states; and that whether responsibility
attachesto persons only, or to states only, or to both persons andstates is determined
by referenceto the text and, where necessary,the travauxof each relevant
internationalinstrumentcodiving and definingthe delict. There are instruments
which envisage onlythe responsibilityof persons and characterizethat responsibility
as criminaland others which envisagethe responsibilityof states. The Genocide
Convention does both. Its text imposesresponsibilityon statesto criminalizethe acts
of persons under its control or authorityand also imposes"civil"responsibilityon
statesto carry out the obligationsestablished bythe Conventionin Articles1,II and
III.
5. The onus of proving intent to commit genocide does not invariably rest with the
Applicant
38. Respondentseeksto "freeze"the list of the prohibited actsof genocide enumerated
in ArticlesII and III of the Convention.It asks this Courtto lirnitthe defuiitionof
genocideto acts perpetratedby means actually in the contemplationof the drafting
State Parties in 1948-49. Respondentstatesthat it "deniesany progressive
development ofthe definitionof genocide" [Counter-Memorial,p. 298, para.
4.2.1.1.] and rernindsthe Courtthat it "is obligedto adhere exclusivelyto the
provisions containedin the (..)Convention. " [ibid 1.
39. Applicanthas no difference withRespondent's assertion that the termsof the
Conventiongovem this case.It disagrees, however, that these terms are unamendable Chapter2 -Section5
Theonusofproving intentto commit genocide
does not invariablyrest with theApplicant
to interpretationin subsequentlitigation or in constructionplaced on its terms by
subsequent international instrumentsor institutions created forimplementing the
Convention.This point is developed in Applicant'sMemorial, Section 5.5.1,pages
235ff. Applicant disagrees, forexample, with Respondent'sinsistencethat the
"displacementf membersof a groupby forceis not includedintheactsprohibitedunderthe
Genocideconvention."[ibid.,p. 306, para. 4.8.1.4.1.
40. It is true that the Convention does not in so many words specificallyprohibit
intentional racial or ethnic purification of a land by the systematicdriving out of
hundreds of thousands of victims whose continued presenceis deemedundesirable
by the perpetrators.From this, Respondentargues that driving people fiom their
homes
"isnotanelementof the definitionof genocid[ibid.,p. 306, para.4.8.1.3.1.
But the Convention'sfailure to recite every possiblemeans for destroying a people
does not irnmunizethose means not specifically enumerated.Articles II andIII also
fail to list rape, and the systematicdestructionof placesof worship, history and
culture, as also many other innovativeways in which a plan of genocide can be
carried out. This does not preclude such innovativediabolicismsfiom being
prohibited means to a clearly proscribed end.As the Genocide Conventionis applied
by duly authorized instrumentalitiesof internationallaw to grizzly newemanations
of the fiendish imagination,its "progressive development," alas, is inevitable. Oddly,
Respondent seems to understandthis, for the Counter-Memorialcontains extensive
sections purporting to adduce evidence of Applicant'scommitting"ethnic cleansing"
[Counter-Mernorial,pp. 993-1034, paras. 7.3.1 .O.-7.3.25.0.1and "destructionof
places of worship" [ibid., pp. 1035-1078,Section7.4.1as acts of genocide.
41. The plain meaningof ArticleII is that the listed acts constitutegenocide. The plain
meaning of Article III is that the listed acts constitute elementsancillaryto genocide.
Together, these describethe effects which states and persons may not seek to
accomplish. Neither Article, however, attemptsan exhaustive list of the means by
which persons may be killed, caused seriousbodily or mental harm, or subjectto
conditions of life calculatedto destroythe group. For exarnple,"killing membersof
the group" may be accomplishedby shooting, torture,humiliation, starving or neglect
of other basic needs.Inflicting "bodilyor mental harrn"may take the form of rape,Reply of Bosnia andHerzegovina
torture or other humiliation. The"conditionsof life calculatedto bring aboutthe
groups physical destruction"may take the form of machine-gunningrefugeesor of
destroying the group'sculturaland religious institutionsand scatteringits members
al1over a reluctantEurope wheretheir communallife vanishes.The Convention
properly leaves flexible the definition ofeans,subjectto interpretationby courts
respondingto the evil of each time and place. This does not violate or arnend,but
puts into practicethe agreed commitrnentsassumedby Statesunder the Convention.
42. There is no ambiguityin the text. If the intentand effect of acts or omissionsis to
destroy "in whole or in part" an identifiablenational,ethnical,racial or religious
group, then genocideis committed.Unfortunately,each instanceof genocide will
deploy its own nefariousmeansto achieve itsaim. Fortunately,the Convention's
language is not preclusive, sothat it is capable ofembracing within its general
prohibition whatever means inhumanityis capableof devising.For a renegade
political-militarymovementto despoil a nation,kill its civilians,pillage its religious
and cultural institutions,imprisonits people, andrape its women, al1in a concerted,
planned effort to end foreverthe vibrantpresenceand life of an old, established
group defined by ethnicityand religion in its midst cannot be licensedby this Court
on the spuriousgroundthat the Conventiondid not foreseethis precise, horrendous
confluenceof meansto achieve the very endsit so specifically prohibits.In fact,
"ethniccleansing"wasforeseenas a means of genocideby atleast one of the
drafters of the Genocide Convention,the one representingYugoslavia. Mr. Bartos
put it thus:"Genocidecould be committedby forcing mernbersof a groupto
abandontheir homes." [3 UN GAOR,Pt. 1 (Sixth Cttee) at pp. 184-185(82nd Mtg.,
23 Oct. 1948)l. His views were shapedby the deliberatewartimepolicy of Germany,
dispersingthe Slav majorityfiom certain areasto facilitatethe establishingof new,
German demographic"facts."Thesenew "facts" were accomplishedby violence and
terror in which a part of the victirnizedgroupwas killed, maimed,tortured and raped
in order to effect the intendedtransfer of populations.
43. Theflexible responseof treaty instrumentsintendedfor the ages has been prornoted
by decisions of this Court. In theNamibia (LegaC l onsequences) AdvisoryOpinion
[ICJ Reports 1971,p. 311it concluded thata treaties
"interpretatnannotremainunaffectedbythesubsequendevelopmentof thelaw(..Moreover,
aninternationailnstrumtasto be interpredndappliedwithintheentirelegalsystem
prevaiiingatthethe of the interpretation." Chapte2 -Sectio5
Theonus ofproving intent to commit genocide
does not invariably rest with the Applicant
44. In any event, the Applicant does not seeka novel constructionof the terms of the
Genocide Conventionbut, rather, their strict applicationto new ways diabolically
devised to achieve the categoriesof acts specifiedin Articles II and III of the
Convention. Thus, for example,the meaning ofArticle II(c) -- "Deliberately
inflicting on the group conditionsof life calculatedto bring aboutits physical
destruction in whole or in part"- must be understoodto include the practice of
Respondentin systematicallydriving a million Bosniansfrom their homes, manyto
distant exiles where theirurvivalas a group is impossible.It must also be taken to
include systematic destructionof a group'shouses of worship andits cultural
institutions. Similarly,while systematic rapemay not have been in the minds of the
drafters as the probabilisticmeans for achieving"measuresintended toprevent births
within the group" [Genocide Convention,art. II(d)], it would certainly qualifj as a
form of genocide once shownto have been practised systematicallyas a matter of
deliberate policy.
45. As the ICJ pointed out in the AegeanSea ContinentalShelfCase [ICJ Reports 1978,
p.31,the meaning of an expressionin a treaty is presurnedto be
"intendedto followtheevolutionof thelawandto correspond meeaningattachedto the
expressionbytheiawin forceatanygiventime.[ibid.,p. 32, para. 771.
An example cited by this Court is the evolutionof a term such as "domestic
jurisdiction" employedby instruments, including the UnitedNations Charter [ibid.].
Other tribunals have similarlyconcludedthat terms in international agreements must
be given the meaning they have at the timea dispute has arisen. Thus, in Husserlv.
SwissAir TransportCo. Ltd. [(1972)ILR 60, pp. 442,4471the term "accident" in a
1929treaty was held to cover the modern phenomenonof hijacking [see also The
Netherlands (PTT )nd thePost Ofice (London) v. Nedlloyd(1977), ILR 74, p.
46. In his dissenting opinionin MaritimeDelimitation and Territorial Questions between
Qatar and Bahrain,Jurisdictionand Admissibility,JudgmentPCJ Reports 1995,p. 6
at 251,Judge Schwebelpoints out - citing Sir Hersch Lauterpacht,Lord McNair and
Sir Hurnphrey Waldock (as Special Rapporteur ofthe International Law
Commission's Third Report onthe Law of Treaties) -that the "paramount"or
primary object in treaty interpretation isto give effect to the intent of the parties.
The intent of the parties in concluding the Genocide Conventionwas to prevent forReply ofBosniaand Herzegovina
al1time the destruction "inwhole orin part of a national,ethnical,racial or religious
group, assuch (...)[Genocide Convention,Art.II], not merelyto prohibit the means
(such as gas chambers, massivedeportations,sterilizations)which had been
employedat that specifictime by the Third Reich. The parties' intent was to preempt
whatevernovel diabolical means a new demonic politicalforce might in the future
conceive,to pursue the same ends in a different temporaland political context.Such
"progressivedevelopment"does not alter but, rather, implements theoriginal intent
of the clraftersof the Convention and theratiQing parties.
47. That this Court acceptsits role in carrying out such an intent is evidentfiom its
definition, in 1950,f genocideas a denial of a group'sright to exist, "a denial
which shocksthe conscienceof mankind and resultsin great lossesto hume, and
which is contrary to moral law and tothe spiritand aims of the United Nations."
[Resewationsto the Conventionon Genocide, ICJ Reports 1951p ,. 231.This
formulationwas employed again, almost verbatim,in this Court'sOrder of 13
September 1993,page 348, paragraph 52, demonstrating the organicway in which
the precise but commodiousterms of a treaty achieve greater precisionfrom
precedentto precedent.
6. The obligationsimposed onStates by the Genocide Conventionare not limited
tothose defined in Article II
48. Respondentassertsin its Counter-Mernorialthat the
"prohibited acts areset forth iIIof the 1948Conventionon the Preventionand
Punishmentof the Crime of Genocide.The enumerationof the prohibitedacts is exhaustivein
Article II of the Convention[ibid.p..,99, para. 4.3.1.1.].
This statementof law is demonstrablyfalse.
49. Respondent,in this context - althoughlater contradictingitself[see Counter-
Memorial, p. 304, para. 4.6.1.1.- conveniently ignoresthe other prohibited acts
enumerated in Articles1,III and IV. These include,in additionto genocide:
- Failure to prevent and topunish genocide;
- Conspiracyto commit genocide;
- Direct and publicincitementto commit genocide;
- Attempt to commit genocide;
- Complicityin genocide. Theobligations imposedon Stabythe Genocide
Conventionare not limited to those defined iIIrticle
Bosnia andHerzegovinabases its claim againstthe FederalRepublicof Yugoslavia
50.
on each and al1of these. The wrongs enumeratedin Articles1,III and IV are just as
actionable under Article IX as are allegationsarisingunder Article II. Each provides
a separateand sufficientbasis for the claimsmade by Applicant.
51. This Court has already decided,in its dispositionof thejurisdiction and admissibility
phase ofthis case, that state responsibilityfor genocide includesresponsibilityfor the
acts enumeratedin Article III [Applicationof the Conventionon the Prevention and
Punishmentof the Crimeof Genocide(Bosnia and Herzegovina v. Yugoslavia), 11
July 1996(Judgment), p. 23, para. 321.Article IIIthus constitutesas much a basis of
the Court'sjurisdiction in thedetermination ofRespondent'sresponsibility asdoes
Article II. Each part of both Articles standson an equalfooting as, at the Merits
phase, this Courtexaminesevidenceof state responsibility for violationsof the state
responsibilitiesestablishedby those provisions.
52. Respondentdevotes an entire section [Counter-Memorialp , . 305, Section4.7.1 to the
erroneous proposition thatacts preparatoryto genocideare not genocide.This
assertion,in turn rests on the previouslynoted erroneousproposition:that Article III
of the Convention,much of which deals with suchpreparatoryacts as "conspiracy,"
"incitement," and"complicity," isnot a basis for establishing state responsibility.As
demonstrated above and in Chapter9 of this Reply,these Article III prohibitions
clearly were intendedto, and do, give rise to obligationsin law. When acts in
violationof these are cornmittedby persons, theyare "punishable"under the
expressedterms of Article III. Whencornmittedby statesthey give rise to an action
based on failure of "fülfilrnentof the present Convention,including (...genocideor
any of the other acts enumeratedinArticle III(...)[GenocideConvention,Art. IX,
emphasisadded] .
53. In addition,Applicanthas invokedArticle 1,which obligates parties "toprevent and
to punish" criminalviolationsof the prohibitionsagainst genocide, andArticle IV.
The obligationof Respondent"to prevent andto punish"the commissionof genocide
constitutesanother, third, treaty-based causeof action. Applicanthas charged
Respondentwith failureto carry out its responsibilityunder Articles 1and IV in
preventingpersons fiom engagingin acts enumeratedunder Article II and in
punishingthose who have committedsuch acts. Thischarge is further developedin
Chapter 9 of this Reply.Reply of Bosnand Herzegovina
54. These obligationsto prevent andpunish are not lirnitedto nationalsof the Federal
Republic of Yugoslaviabut, rather, are "notterritorially limitedby the Convention."
[Judgrnent,11 July 1996,p. 23, para. 311.
55. Applicant'sclaim, the factualbases of whichare set out in the Memorialand in
Parts II and III of this Reply, invokes Respondent'sailures,both malfeasances and
non-feasances -- in canying out responsibilitiesunder Articles1,II, III and IV ofthe
Convention,and in failing to do so not only in the temtory over which it exercises
lawfùljurisdiction but whereverit was in a positionto exerciseinfluence overthose
violating the Convention.
CHAPTER 3
EVIDENCE
1. The onus of proof
1. Respondent is correct instatingthat intentto destroya group is an essentialelement
in the commissionof genocideas definedby Article II of the Convention.
Respondentis wrong, however,in the conclusionsit drawsfiom this.
2. While the action broughtby a stateparty against anotherunder Article IX does
require the Court to make a findingof intent, the intentrequiredto be proven is the
intent to destroyinwhole or in part a national,ethnical,racial or religious grouas
such. Such intent to destroya groupmust be demonstratedon the balanceof the
evidence presentedby the parties,both inculpating andexculpating -- the appropriate
standard for any action based on treaty violation-and not, as in a criminaltrial,
beyond a reasonabledoubt.
3. Such legal conceptsas "proofbeyond a reasonable doubt"or the preclusion of
reasonable inferences,have no part in these proceedings.This is not a criminaltrial.
The ICJ is not a criminal court. The actual,usuallaw of evidence pertinentto
actionsin this forum applies:not a hypothesizedlaw of evidence applicablein some
other court to a hypotheticalcriminalindictment.As Sir Gerald Fitzmaurice
explained in proposingwhat becameArticle IX of the Convention,"the responsibility
envisaged (...)was civil responsibility,not criminalresponsibility"[6th Cttee, op.
cit., p.40.1.The InternationalLaw Commission'sFifrhReport on State Chapter 3- Section 1
Theonus ofproof
Responsibility (Ago,Rapporteur)takes ihis point, reiterating that the standard for
fulfilling the duty of statesto punish individualswho have committedvarious
internationally-designatedcrimes is not to be extrapolatedto "the 'specialform' of
international responsibility applicableto states"since "it would notbe justifiable in
any caseto refer to a 'criminal'responsibility ofa state" in instanceswhere the
feasancesor non-feasances ofthe state are at issue [ILC,Fifth Report on State
Responsibility, Doc. AiCN.41291and Add. 1 and 2, Yearbookof the International
Law Commission,1976,Vol. II, Pt. 1(1977),p. 3, and p. 33, para. 101,and n. 1541.
4. It is self-evidentthat states cannotbe indicted, arrested, and sentencedto prison. A
state, however, can be enjoined from actingunlawfullyand can be orderedto make
suitable restitution, pay damages, and other remediesapplicableto a suit for breach
of treaty or other violationof international responsibilitythat give rise to state
liability.
5. That it was the latter remediesthat were intendedby the insertion of what became
Article IX of the Conventionis fully supportedby the travaux. These make clear that
an action under Article IX was not to be construedas a criminal action.
6. From this it follows as a matter of law that while Applicant must proveits case, it
must do so in accordance with the usualdes of this Court. The Courtis not barred
from making reasonable deductionsfiom the facts or requiring that explanationsof
demonstratedfacts be provided by whichever partyis best positioned to do so.
7. This does not mean that intent need not be proven. It does mean, however, that
inferencesas to intent may properly be drawnby ihis Court from patterns of facts
and acts attributable to Respondentthat can be said reasonablyto raise a rebuttable
presurnptionof deliberateintent. It does mean that such inferences, if drawn, in
effect rnayshiftthe onus of proof, requiringthe Respondentto provide a reasonable
alternative theory that dischargesthat onus.
8. It is incorrect to deduce fiom the requirementthat Applicant demonstrate
Respondent's intent to violate the Convention that,in the words of the Counter-
Memorial, "the existenceof intent cannot be presumed, norcan the burden of
proving that there was no genocidalintent be shifiedto the defendant". [Counter-
Memorial, p. 303, para. 4.4.1.9.1.Indeed, Respondentitself has stated, in its Counter-
Memorial,that it is perfectly possible in law and practice "to prove that [intent](...)
existed on the part of the perpetratorsof alleged acts" by reference "to objectiveReply ofBosnia andHerzegovina
circumstances whichwould reveal theexistenceof the genocidal intent."[Counter-
Memorial, p. 7, para. 1.1.3.3.]. We agree.The existence of genocidalintent may be
deduced by this Court fiom "objective circumstances,"of which it has been apprised.
Proof of the destruction,torture and "cleansing"of a largenumber ofpersons of the
same ethnic and religious group --an "objectivecircumstance" -- is sufficient,
especiallywhen replicatedon a national scale and overa protracted period,to permit
an inference as to the intentionalityinformingthese "circumstances". Oncethe
objective factuality ofsuch evidence has been adduced to thesatisfactionof this
Court, it is up to the Respondentto demonstrate thatwhat appearsto be a deliberate
pattern directedat a specificpeople is not what it seems.As Judge Sir Cecil Hurst
noted in his dissent in the Oscar Chinncase, "directproof of intention is notusually
forthcoming:the proof must in most casesconsistof deductionsfrom admitted or
established facts.(...)[Z%eOscar Chinn Case, P.C.I.J.SeriesAIB,No. 63 1934,p.
116.1The ICTFY has likewisetaken the positionthat "intentcan be inferred from
circumstances".[ICTFY, Trial Chamber,Opinionand Judgment,Prosecutor v. DuSko
Tadii.,Case No IT 94-1-T, 7 May 1997,p. 262, para. 6761.
9. Moreover, as Applicant demonstratesin Chapter3 of this Reply,it is perfectly
plausible thatRespondent,at the time of the commission of demonstrated genocidal
acts, may havehad multipleintentions: theintent, for example,to visit revenge on
non-Serbs for purported historical wrongs, theintentto clear tenitories of non-Serbs
to facilitatetheaim of a Greater Serbia, and theintentto destroy in whole or in part
the BosnianMuslim (andCroat)populationsthat had not been driven out of those
areas. Thus, the intention to commitwar crimes, or offensesagainsthumanitarian
law, in no way can be proof that the acts were not comrnittedwith genocidal intent.
As long as the acts were committed deliberately,this Court may infer that their
precise consequences inlaw were intended in the absence ofconvincingevidenceto
the contrary.
10. The Respondent'sbrief deals with questionsof proof by requiringthat Applicant
demonstrate al1elementsof the case. This is incorrect. Whicheverpartyseeksto rely
on a fact is the one which bears the burden of provingit [Nicaragua v. United
States, ICJ Reports 1984,p. 437, para. 101.1.Applicanthas fully acceptedits share
of this burden, both in its Memorialand in this Reply.However,this does not help a
Respondent wbich has utterly failedto auswerthe evidence adduced by Applicant.
Applicant has presented the Court withinformation, statementsand fmdings by
various respected and impartial observers.The Respondentfarfiom disprovingthese
evidencesof "objectivecircumstances", simply dismisses al1the impartial observers Chapter3 -Section1
Theonusofproof
as unreliable.Arnongthose thus deemedunreliableare the Security Council
[Counter-Memorial, pp.80-82, paras. 1.3.7.2 - 1.3.7.5.1,the ICTFY [ibid.paras.
6.3.1 -6.3.1.3.1,the United Nations Commissionon Human Rights andits
Rapporteur [ibid. pp. 91-95, paras. 1.3.9.1 - 1.3.10.6.1,the United Nations General
Assembly [ibid.pp. 90-91, para. 1.3.8.1.1,the Human Rights Committee [ibid. pp
96-97, paras. 1.3.12.1 - 1.3.12.2.1and the Committeeon the Eliminationof Racial
Discrimination [ibid.p. 97, para. 1.3.12.2.1.
11. While the facts determinedby these respected internationalorgans, institutionsand
investigatorsmay, indeed, be fallible, they are an excellentsource of evidence due to
their accessto sources, resources, experience, expertnessand neutrality. When the
independentdeterminationsof key facts by al1these reputable sources are largely
congruent and synergistic - such as, for example,their unanimous conclusion
regarding the continuingrole of the Federal Republicof Yugoslaviain the activities
of forces of the "RepublikaSrpska"after May 19, 1992 -the weight of this evidence
cannot be neutralizedby the Respondentsimplyquestioningthe veracity ofthe
sources.Respondent mustput on the scalessomethingof equal or greater weight.
This it has utterly failedto do.
In an internationallitigation, the onus of proof normallyresting on the Applicantis
fùrther subjectto sensiblerules regarding access to evidence. Respondenti ,n relying
upon the Court's statementin the Nicaragua case that "it is the litigant seeking to
establish a fact who bears the burden of provingit (...)[quoted and citedin
Counter-Memorial,p. 346, para. 6.2.1.14.1,fails to note that this remark was
accompaniedby an important caveat, one deleted in Respondent'squotation, that
"the Court has in the past recognized andmade allowance"for a "situation (...in
which evidence of fact may be difficult to come by (...)[Militaryand Paramilitary
Activitiesin and against Nicaragua (Nicaragua v. UnitedStates ofAmerica),
Jurisdictionand Admissibility,Judgment,ICJ Reports 1984,p. 392 at 4371.To this
end, the ICJ in Nicaragua cites the Corfi Channel and TeheranHostages cases. Also
relevant is the Templeof Preah Vihearcase, in which the ICJ heldthat, as regards
various claims put forward by the parties, the "burdenof proof in respect of these
will of course lie on the party assertingor putting them forward". [Case concerning
the Templeof Preah Vihear (Cambodiav. Thailand), Merits, ICJ Reports 1962,p.
161.The Cor- and Hostages cases, too, are important instancesof judicial reasoning
concerning the balanceof conveniencein the production ofevidence, yet Respondent
dismisses Corfi as"completely inapplicable (...)"This inapplicability, RespondentRepiy ofBosnia andHerzegovina
claims, accruesfiom the fact that the allegedgenocidalacts in the present case "were
not comrnittedin the territory of Yugoslavia,or in a territory controlledby
Yugoslavia in any way whatsoever" . [Counter-Memorial, p. 346, para.6.2.1.15.] .
13. It will be for this Courtto decidewhetherthe territory,within which were
cornmittedthe acts allegedby Applicant,was "in a territory controlledby Yugoslavia
in any way whatsoever".If the actswere ones that occurredin territory overor in
which Yugoslavauthoritiesexerciseda measure of defacto control, then -even the
Federal Republicof Yugoslaviawouldseem to have conceded - the relevant aspect
of the law of evidence setout in the Corfi Channelcase wouldapply; and it would
be for the Republicof Yugoslavia to produce evidencebecauseits accessto such
evidence (whetherinculpatingor exculpating) would havebeen much greater than
that of the Applicant.
14. It is important,in this connection,to bear in mind that the Nicaragua case's
formulationregardingburden of proofto situations "in whichevidenceof facts may
be dificult to come by (...)."[Nicaragua, ibid.p. 437, para. 1011did not limit itself
to situationsof actual adverseterritorialpossession. Theactivitiesof UnitedStates of
America-trainedContras in Nicaragua,certainly,did not arise -to use the
Respondent'sformulation - "in the territoryof the U.S. or in a territory controlledby
the U.S. in any way whatsoever." [Counter-Memorial ,. 346, para. 6.2.1.15.1.
Obviously,what the Court meantwasthat it construedthat part of the Cor& decision
pertaining to "evidenceof facts (...difficultto come by"as generallyapplicableto
any case inwhich, for any reason whatsoever,one party is in a better positionthan
the other to provide relevant evidence.In any suchcircumstanceit is that party
which must assumeresponsibility foraidiig the Courtto receive and weighsuch
evidence.
15. In this connectionit is once again importantto bear in mind that Applicantis not
prosecuting a caseinvolving individualcriminalresponsibility,and that the usual
rules of evidence applicableto litigationbetween Statesapply here [a point fully
developed in the Applicant'sMemorial, Chapter5.3, at pp. 208ffl. Thus, the
applicable rule pertainingto burden of proof is the one correctlysumrnarizedby
Sandifer :
"Thebroadbasicruleof burdenof proofadopted,ingeneral,by internationatlribunaisresembles
the civil lawmle andmaybe simplystated:that theburdenof proofresthipowhoasserts
the affirmativeof a propositionthatif notsubstwill resultina decisionadverseto his
contention. Thburden mayrestonthedefendant,if there bea defendant,equallywiththe Chapter3 -Sectio1
Theonusofproof
plaintiff,astheformer may incheburdenof substantiatanypropositionhe assertsin answer
to theaiiegationsof thep~aint[Dward Sandifer,EvidenceBeforeInternational
Tribunals,rev. ed., 1975,p. 1271.
16. Thus, for example,the Courtof Arbitrationin the LighthouseArbitration (France
and Greece) held that the burden ofproof rested with the defendantGovernment
insofar as the relevant informationwas particularlywithin its control. [ClairnNo. 6,
24 July 1956,23 Int'l L. Reports 1956,pp. 677-78.See also 22 Int'l L. Reports
1955,pp. 966, 972.1.As the International Law Commission's Yearbooknotes,
roof (..constitutes aburdennon-compliance with whaybe automaticalpenalizedby the
loss of the suit.Theadageactoriincumbitprobatio rneansthattheburdenof proofrestsnotonly
onthe claimantbutalsoon thepartyadducinga factof anykind. Theburdenis distributed
betweenthetwo parties.[Scelle,ReportonArbitral Procedure,2 Y.B. Int'lL.
Cornm. 1958,p. 133;UN Doc. AlCN.4118,at 511.
17. It would also apply whereincontrovertiblefacts"speakfor themselves"(res ipsa
loquitur).In suchcircurnstances,the party against whose interestthe facts "speak"
must take the initiative,if possible, tocontradictthat whichis plainly spoken by
those facts: for example,by producing evidenceclearly contradictingthe
demonstrated factsor by presentingthem "in a new light". Thus, Applicantcontends
that it is not necessaryfor it to prove the state of mind or animus of persons
comrnitting rapeor sexual assaultwhen such acts constituteinstancesof a
widespread andvisible pattern. In such instances, theexistenceof a genocidalintent
can be inferred fiom the circumstances. Absentsuch logical inferences,genocide
could be demonstratedin law only in the most exceptional circumstancesI .t must be
remembered, however,that the effect of such an inferenceis not to prove that which
is logically inferablebut to do so only where those committingrape haveno
explanation capableof rebuttingthe inferencesdrawn fiom the prevalenceof raping,
the pattern of commission, andthe ethnichomogeneityof the perpetratorson the one
hand and of the victims onthe other.
18. The Applicantwantsto make it clear that motives arevery different from intent, and
that whatever themotives behindthe intent,what is importantin order to prove
genocide is the existenceof the intent to destroy thegroup in whole orin part. The
two being quite distinct, it is irrelevant,in the Applicant'sview, to trto "prove" as
does the Respondent,that there has been no intent to destroythe group,becausethe
motive ofthe acts of destructioncommittedis "revenge".In fact, if one reads with
attention theCounter-Memorial,the true significationof this position of theReply of Bosnia and Herzegovina
Yugoslav Governmentcomesto light.The idea underlyingthe defenseof the
Respondent couldbe summarizedin the following manner:there is no intent to
destroythe group, because there is an intentionto inflict revenge for former actsof
violence sufferedby the Serb group, either fiom the UstaSasor, further back in
history, fiom the "Turks".
19. In Respondent'sCounter-Memorial, theword "revenge"is extensively used.
[Counter-Memorial, p. 8, paras. 1.1.3.6and 1.1.3.9.1.The Respondentdenies any
intent to destroy the Muslirngroup, suggesting insteadthat the real intent was "only"
a desire to get revenge for acts committedduring World War 1or World War II, by
theUstaSas.For example,the RespondentStatesin refutationof the chargeof
genocide at Srebenica that "Thegenocide committedin the Communeof Srebenica
in World War One halved the Serbpopulation.The same crime was repeated in
World War Two". [Counter-Mernorial, 23 July 1997,p. 44, para. 1.3.2.26.1.In
another place, Prijedor, theametype of reasoningseemsto be suggested.According
to the Respondent,
"~tthe beginningof April1992,theMuslims seizedpowerin the coadministratiand
otherimportanteparîmentinPrijedor.The presidtf thecommunewasthesonof amember
of the DistrictUstashaCommit, hoin1941 orderedanhorrendoumassacreof ove3000
~erbs.[Counter-Memorial,23 July 1997,p. 51, para. 1.3.2.48.1.
Why is this "heritage"mentioned?To suggest that theSerbs'motive was revenge,
not an intent to destroy the Muslimgroup.
20. Revenge as an exclusivemotive is also explainedby referenceto the Turkish
occupation.No doubt there is validityin the positionsummarizedin the Opinionand
Judgment of the TadiCcase: "ForSerbsthe heroicbut unsuccessfulresistanceof the
Serb nation to Turkish invasion,culrninatingin their defeat in the battle of Kosovo,
remains an emotional event" .[ICTFY,Trial Chamber,Opinionand Judgrnent,
Prosecutor v. DuSkoTadiC,CaseNo. IT-94-1-T, 7 May 1997,p. 21, para. 571.But
revenge as a motive, whatever thetriggeringmechanism,does not negate a
presumption that systematicrape, killing and torture constituteprimafacie evidence
of an intent to commit genocide.It is no less genocide whenthese acts are fùeled by
a desire for revenge that emboldensordinarypeopleto seekto destroy, in whole or
in part, anentire cornmunitywith which, for centuries,those personshave
communicated,cohabited,traded andeven intermanied. As Judge Fuadhasdecided
in hisconfirmationof the indictmentsof Karad26 and MladiC, Chapter 3-Section 2
Sources,probity and weightof
presented evidence
"the policy of ethnic cleansing (...) presents in its ultimate manifestations,genocidal characteristics.
Furthemore,inthis case, the intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, which is specific to genocide,maybe inferred fiom the gravity of the
'ethnicleansing' practiced (DCTFY,Trial Charnber,Review ofindictment,
Prosecutor v. RadovanKaradZiC & RatkoMladii, Case No. IT-95-18-1,16
Nov. 1995,p. 41.
In that decision, theCourt was explicit in decidingthat other motivesthan genocide,
like the violationof otherinternationallawsbesidesthat prohibiting genocide, can be
found to arise out of the samefacts and actsof commissionor omission [Ibid].
21. The Applicant submitsthat there is no way this case can disentangleso-called
"autonomous intent"fiom "retributiveintent" noris there any reason to do so. A
desire for revenge does not exclude genocide.On the contrary, as actsof revengeare
aimed at persons becauseof their membershipin a group, the intentto maim, kill or
rape ceasesto be individual and becomes genocidal.
22. In sum: the Applicant acceptsthe onus of provingits case and has done so both in
its Memorial and its Reply:by extensiveproductionof documented and accessible
fact. It insists however, that,onceit has satisfied theonus of placing before the
Court evidence, thus establishingbreachesof Articles1,II, III and IV of the
Conventionand of the Respondent'sdirect and indirect involvementin those
breaches, it may well be for the Respondent,dependingon the circumstances,to
adduce exculpatoryevidence demonstratingthat (1) the facts are untrue, or (2) that
the breaches were not intendedto have theirnatural and actual effect, whichis to say
the destructionor attempteddestruction,"in whole orin part" of "a national,
ethnicallyracial or religious groupas such (...)".Any other de of evidence would
render the Genocide Convention useless excepa tgainstthe improbableoffender who
preserves a clear record of the intent with which wasundertakenthe destruction,or
attempted destruction,of a population.
2. Sources, probityand weight of presentedevidence
23. The Court, in weighingthe welter of evidencelaid before it, needs to contrastthe
probity and weight of the sourcescited by Applicantto those cited by the
Respondent.Applicant,in its Memorialof 15 April 1994,has presentedto this Court
findings of fact that demonstrate, ormandateinferences,of genocidecommittedin
Bosnia and Herzegovina.These findingsof fact have not been made by ApplicantRepIy of Bosnia and Herzegovina
but, rather, by the responsible agenciesof the international system.The Courtwill
surelywish to give these the full weight towhichthey are entitled:based, as they
are, on sober evaluationof the evidenceby the representative ofStatesin the General
Assembly ofthe United Nations,the Security Council, the UnitedNations
Commissionon Hurnan Rights andits Subcommission, as well as by independent
and informed sources such as the United Nations Secretary-Generalt,he Special
Rapporteuron Human Rights in the Former Yugoslavia, the United Nations
Commissionof Experts establishedby the Security Council, theexpert Committees
on Human Rights and on the Eliminationof Racial Discrimination.
24. Overwhelmingly,these bodies andpersons,responsiblefor findingsof fact and of
mixed fact and law, have acceptedas proventhe allegationthat acts were committed
in Bosnia and Herzegovina thatwere intendedto destroyin whole or in part the
Muslimpopulationin the areas occupiedby Serb forces. In severalinstancesthese
acts were explicitly categorizedas genocide. In others, thatcategorizationwas left,
inescapably,to be deducedfiom the evidence accepted and reportedby these
authorized fact-fmdingorgans, bodiesand individuals.Thesefmdingsare detailed in
Applicant's Memorial[Secs. 3.3.2 -3.3.8, pp.111 -1251and in this Reply [especially
chapters5, 6, 7, 8 and 111.
25. In addition, the ICTFY hashad occasionto assess thefacts and the perpetrators'
motives in the contextof adversarial proceedingsin whichthe evidentiarystandards
were extremelyhigh, as befits a criminaltrial. The ICTFYhas accepted,as true,
facts and motives that are also the factualelements demonstratingviolationsof the
Genocide Convention. This isso even when the factsand motivesare used to
establish the commissionof "crimes against humanity"for the purposes of the
ICTFY. For exarnple, Judge Riad in his Reviewof the Indictmentof Karadzicand
Mladic [ICTFY,Trial Chamber,Review of the indictment,TheProsecutor v.
Radovan KaradZic& RatkoMadiC, CaseNo. IT-95-18-1,16 Nov. 19951found that,
prima facie, the facts presentedin the indictment,disclose"aboveall, the
commissionof genocide"but "alsodiscloses,primafacie, the commissionof crimes
againsthumanity, and violationsof the laws or customsof war" [Ibid. p. 41.
26. Great weight should be accordedby this Courtto such eminentsources'
determinationsof fact, of motive or intent, and of mixed law-and-fact.In the Corfi
Channel case, the Court said of the report of expertssent to determinecertain facts:
"The Court cannot fail to give great weight tothe opinionof the Experts who Chapter3 -Section2
Sources,probity and weightof
presented evidence
examinedthe locality in amanner givingevery guarantee ofcorrect and impartial
information" [ICJReports, 1949,p. 4, at p. 211.
27. The methodologyused to prepare the Reports ofthe HumanRights Commission's
Special Rapporteur (Mazowiecki)and those of the Security Council'sCommission of
Experts (Bassiouni)are fully documentedin these Reports anddeservethis Court's
respect. Greatcare was taken to weigh incriminatory,exculpatoryand indecisive
evidence.Where the factswere incapable of being clearlyestablished, the experts'
Reports say so. For example,in United Nations,Final Report of the UnitedNations
Commissionof Experts, SI19941674lAdd.2(Vol. III), Annex VI, "Studyof the Battle
and Siege of Sarajevo",p. 824 n. 57,it is stated:
"A UN investigatiof themarketshelling[Sarajevo]wasinconcluAivfive-member
investigativeteamfoundt(...[tlheprecise locaof theweaponthatfiredtheroundcould
not beestablished."
Where, however, the experts,using evidence obtainedby them, deem a matter to
28.
have been established,or where judgesof the ICTFY so deem, such conclusions
carry substantialweight. At the least, it is for aparty seekingto deny the veracity of
such findingsto demonstratetheir inaccuracyby adducingcredible contradictory
evidence.
29. This pertains not only to facts, but also to evidence leadingto conclusions pertaining
to intent and to rnixedfactllawfmdings.Wherethese have been establishedby the
Special Rapporteur(Mazowiecki), the SecurityCouncil'sCommission ofExperts, or
the ICTFY, this Court is obligatedin law to treat such fmdings as evidenceto be
accordedthe greatestpossiblegravitas.
30. The ICTFY operatesunder des of evidencethat place the burden of proof on the
prosecutionand giveto each defendant apresumption ofinnocence. [Statuteof the
ICTFY, UN Doc. Sl25704,Art. 21(3); and SC RES. 827 (1993) of25 May 19931.
Its procedures includepresentationand cross-examination of witnessesB . oth
prosecuting and defendingattorneyshave beenable to deploy investigatorsin the
field. The Tribunal's findingsof fact and law are thussubjectto the mostrigorous
tests, and warrant, at least a presumption ofvalidity.Reply of Bosnia and Herzegovina
31. The ICTFY operatesunder a mandateof the SecurityCouncil actingunder Chapter
VI1of the UnitedNations Charterwhich makesits decisionsbinding onal1State
parties, subjectonly to the Tribunal'sown appellatejurisdictionand procedures.
[SRES1808(1993), 22 Feb. 1993 andSRES1827(1993),25 May 19931.It would
thus be unthinkableto regard theICTFY7sdeterminationsof fact,of motive or intent
and of mixed fact and law with anythingbut the utmost gravity,thus placing a very
heavy burden on anyparty challengingsuch determinations.As JudgeMohamed
Shahabuddeenhas observed,it
"hasto berememberedthatthe referento 'judicialdecisions'inAr38,paragraphl(d)[of
theICJ'sStatuteestablishthesourcesof itslaw],includesdecisionsof tribunalsotherthanthe
Internationcourt of ~ustic[M. Shahabuddeen,Precedents in the WorldCourt,
1996,p. 100, Annex 21.
As to determinationsof law, of course,this Court is not, strictly speaking, boundby
the decisionsof any other internationaltribunal, letalone of expertsappointedby the
United Nations system; yetas JudgeShahabuddeennotes [see especialZyibid. pp. 35-
391,it would be within the juristic tradition of the ICJ to accord significant
evidentiary statusto such determinations.
32. The evidenceadducedby the processes of the ICTFYmay originatein various stages
of its deliberations. Itmay assistthis Courtto indicatethe most importantof these
stages. Thus, evidencemay beadducedthat derivesfiom one ormore of the
followingphases ofa prosecution.
a. Prosecutor'sindictments
[Stat.Art. 18;Rules 47A]
b. Review andconfurnationof indictment (oneJudge)
[Stat.Art. 19;Rules4701
c. Chamberendorsementof indictment andissuanceof arrest warrant (3
Judges)("Rule 61 Hearings")
[Stat.Art.29; Rules 611
d. Chamberdecisionson preliminarymotions, such as protectivemeasures,
jurisdiction and teleconferencing(3 Judges)
[Rules72, 73) Chapter 3-Section 2
Sources,probity and weightof
presented evidence
e. Interlocutory appeals(5 memberAppeals Chamber)
[Rules 1081
f. Chamberdecisionspertainingto evidence;e.g., order to investigate falseor
insufficientevidence
[Rules91B, 981
g. Chamberjudgment onmerits (3 judges)
[Rules 881
h. Appeal of judgmentto AppellateChamber
[Stat.Art. 25; Rules 107-1181
i. Sentencing
[Stat.Art. 23; Rules 99-1041
j. ArnicusBriefs
[Rules741.
33. Each of these procedural phasesof the Tribunal'sprosecutorialprocess carries its
own probative weight,to be determinedby this Court for purposesof the case
brought by Applicant.The Applicant can best servethis Court by clearly indicating
the stage of ICTFY proceedings from which it derivesthe variousitems of evidence
it presentsfor theICJ's consideration.
34. Generallyspeaking,evidence derivedfiom the proceedings beforethe ICTFYpertain
to questionsof fact: evidencethat genocide wascommitted;that there are
ascertainable patternsof selective persecutiondirectedto the Muslimpopulationof
Bosnia and Herzegovina;that there was an intent to destroyal1or part of the Muslim
population;that the JNA, and later the VJ, played a significantrole in the wrongs
cornmittedin Bosnia and Herzegovina andthe Federal Republic of Yugoslavia
against its Muslim population;that paramilitarytroops and special police forces
deployedfrom the Federal Republic of Yugoslavia cornmittedatrocitiesin
conjunctionwith the JNAand VJ.
35. In respect of these and other questionsof fact, or mixed fact and law,this Court will
wish to give the most significantweightto determinationsmade by a Chamberor anReply ofBosniaand Herzegovina
AppellateChamber,supportedby thejudges' reasoning andevaluationof evidence
presented, rebuttedand weighedin open adversarial process.
36. Careiùl considerationshould alsobe given to otherstagesof ICTFY proceedings, in
particularto the prosecutor'sindictmentswhen confmned by a judge of the Tribunal,
the review of indictments,whenreasons are set outby the confirmingjudge, and to
Rule 61 decisionsby a Chamber.
37. Indictments arerelevant as evidence,as they containthe allegationsof fact that the
Prosecutor hasdeterminedto be of sufficientprobity to warrant an arrest and which
the Prosecutor believes can be proven beyonda reasonabledoubt at a subsequent
criminaltrial. While an indictmentis not by itself final proof of that which is
alleged,it is evidenceof what the Prosecutor,a senior official of the Court and
impartial procurerof evidence, believes is capableof being demonstrated. When
confïrmedby a judge of the Tribunal it becomes,in effect primafacie evidence: a
statement ofthe case against the defendant[see,para. 39, below].
38. This Court is askedto note thatthe ICTFY indictments,taken together, establishan
evidentiary pattern, typicallyassertingthat in
"eachparagrapchargingcrimesagainsthumani(...theallegedactsoromissionswerepartof a
widespreadorlarge-scaleorsystematicattackagacivilianpopulation,specificallytheMuslim
andCroatpopulation(...[ICTFY,Indictment3, TadiCand Borovnica, 1 Sept.
1995, para. 3.71.
Indictment 12 [ICTFY, Indictment12,KaradZiCand MadiC ("Srebrenica"),16Nov.
1995,para. 141is also significantbecauseit assertsthe commissionof genocideand
the supportingrole of the JNA. [Ibid. para.391.That the indictmentwas confirrned
by a judge of the Tribunal isevidentfiom its publication [See para. 39,below].
39. Reviewand conjrmation of an indictment,is a decisionmade by a single Judgeof
the ICTFYto establish thatthere is "primafacie" evidenceto supportthe indictment.
This may be directly relevantto Applicant'scase. Thus, in confirrningone
indictment [ICTFY,Trial Charnber,Review of theindictment,Prosecutor v.
RadovanKaraAZiC and RatkoMadié, CaseNo. IT-95-18-1,16Nov. 19951,Judge
Fouad Riad confmed "that thefacts of the case disclose,above dl, the commission
of genocide"and, moreover, "that notonly BosnianSerb soldiers,but also soldiers
from the Federal Republicof Yugoslavia (Serbia-Montenegro) were present during
the take-over of Srebrenica." [Ibid.at 3-4.1.Such a determinationby a Judge of the Chapter 3-Section 2
Sources,probity and weight of
presented evidence
Tribunal regarding amixed questionof law and fact and a key issue offact directly
relevantto Applicant's caseis of significant probative valuein demonstratingan
identicalissue raised in the presentcase.
40. Rule 61 decisions aremade by a 3-JudgeChamberof the ICTFY, on presentationof
further evidence and after hearingsin cases where the indicteddefendanthas not
been surrenderedby the stateto whichthe first indictmentis directed. Thissecond
confirmationof the indictmentby such a Chamberleadsto the issuanceof an
international arrestwarrant. The procedurehas considerablesimilarityto a trial. It
involvesa full examination,before the Judges, ofthe prosecution's case.Findings
thus made are of substantialevidentiarysignificance,forthey demonstratethat the
Tribunal is convinced"that there arereasonable groundsfor believingthat the
accusedhas committedthe crimes" allegedby the prosecution [Rule611,a
determinationsupportedby extensivefindingsof fact. To reach such a conclusion,
the Tribunal conductsits proceedingsin open court and witnessesmay be called.
Oncethe conclusionis reached,it assumes great solemnityin the international
system.And any state'sfailureto carry out the ensuing globalarrest warrantcarries
the potential for SecurityCouncil enforcement[Rule61Cl. These findings of the
Tribunal are of evidentiarysignificancefor Applicant'scase andare presented as
evidenceof fact to which significantweight shouldbe accordedby this Court. For
example,in the NikolicRule 61 decision [ICTFY,Trial Chamber,Review of
indictment pursuant to Rule 61 of the Rules of Procedure andEvidence,Prosecutor
v.Dragan Nikolit, Case.No. IT-94-2-R61, 20Oct. 19951,the Chamberfound that
therewas evidence of the deliberatesinglingout of persons for persecutionon
religiousgrounds [ibid. paras.21, 271,a finding corroborativeof violation of the
GenocideConvention. The Chamberalso accepted the probityof evidenceof the
involvementof the JNA and Belgrade[ibid.paras. 27, 301a finding corroborating
other evidence of responsibilityof the Federal Republic of Yugoslavia for acts
constitutinp~iolationsof the Genocide Convention.There are also factual findings
conceming rape[ibid. para. 331,ethniccleansingand genocide[ibid. para. 341in this
Rule 61 decisionthat are highly relevant to Applicant'scase.
41. Thedecisions on the merits by an ICTFY Chambermay include findingsthat bear
directly on Applicant's case.It is again importantto recall that the findings are those
of a tribunal specificallyauthorizedto make such determinationsunder the Chapter 7
mandatory authorityof the Security Council[Res. 808 of 22 Feb. 1993and Res. 827
of 25 May 19931,and that its decisionsare reachedby an adversarial processReply of Bosnia and Herzegovina
requiring proof beyond a reasonable doubt.The Tadi6judgment thus affords
evidenceof the highest level of probity [ICTFY,Trial Chamber,Opinionand
Judgment,Prosecutor v. DuSkoTadiC,7 May 1997, CaseNo. IT-94-1-T.].This
decisiondeals extensivelywith the questionof involvementof the Federal Republic
of Yugoslavia andits JNA. [Ibid.paras. 84,90, 92, 101, 103, 104-128, 137,592-
593, 600-601, 6021.Althoughthe TadiCcase deals with crimesagainsthurnanity,it
makes findingsboth of fact and of fact-and-law thatare directly relevantto the
determinationof genocidein the present case. This, the Tribunal examines and
makeshighly relevant determinationspertainingto the "intentto destroy in whole or
inpart" the Muslim and other groups in parts of Bosnia andHerzegovinaoccupied
by Serb forces. [Ibid.paras 143-153, 155,178.1.Its factual determinationsregarding
the prevalence andcontextof rape also bear directlyon the present case.[Ibid. paras.
165, 1751.Each ofthese findingsby the ICTFY bear directly onelementsof the
present genocidecase. Whencited by Applicantas findingsof fact and of mixedfact
and law, they are entitledto thestatus,if not of resjudicata, then certainlyof
evidencedemonstratingthat which has beenregardedas proven by the proceedings
in that Tribunal.
42. That genocidewas comrnittedin Bosnia may alsobe determinedby other, national,
tribunals, before which an individualmay be broughtto standtrial under national, as
well as internationallaw. In chapter6 of this Replya GermanCourt'sdecisionis
quoted and citedfor a seriesof important decisions pertainingto the exact
relationshipbetween ethnic cleansingas practicedin Bosnia and genocide,as also for
other matters. TheICJ will wishto give due weight, as usual, to such relevant
national jurisprudence.
43. Applicant has also hadrecouse to other sourcesof evidence,but relies on these only
as being of secondary orsupportingprobity.Includedin this secondary categoryof
evidenceare reports by print, visual and audio media, reports of non-governmental
organizations,and statementsby witnessestaken and transrnittedto UnitedNations
organs or agenciesby governments, media, and non-governmentao lrganizations.In
this category, as well, areundryWntingsin booksby individuals.This evidenceis
cited and analyzedthroughoutthis Reply.Applicanthasused cautionin presenting
this sort of evidence,emphasizingnot the probity of any one source,but the
cumulativeweight of so much thatis mutually corroborative.It is the fiequency and
commonalitythat marksreporting of key facts by such subsidiary sources,as well as
the objectivityfor which many of these sourcesare known, that givesto the facts
they assert their probativeweight. This is especiallytrue when such secondary Chapter 3- Section2
Sources,probity and weightof
presentedevidence
sources also corroborate the findingsof suchprimary sourcesof evidenceas United
Nations Experts,United Nations Rapporteur, and the ICTFY. Regarding the effectof
such multiple and mutually-corroborativereportsby media, theICJ decisionin
UnitedStates Diplomatie and Consular Sta8 in Teheranis enlightening.It makes
clear that the Court may take note of facts which "are, for the most part, mattersof
public knowledge which have receivedextensivecoveragein the world press and in
radio and television broadcasts (...)"[ICJReports 1980,p. 9, para. 121.
44. This Court has expressed itselfas to such secondarysources inthe Nicaragua case.
Thus, "reports in press articlesand (...extractsfrom books"quite rightly must be
treated "withgreat caution; evenif they seemto meet high standards ofobjectivity
(...)"Indeed, "the Court regardsthem not as evidencecapableof proving facts, but
as material which can nevertheless contribute, in somecircumstances,to
corroborating the existenceof a fact, i.e. as illustrativematerial additionalto other
sourcesof evidence." [Militaryand Paramilitary Activitiesin and against Nicaragua
(Nicaragua v. UnitedStates of America),Merits, Judgment,ICJ Reports 1986,p. 14
at 40, para. 62. Hereafter:Nicaragua case]. It is in this supportingrolethat such
other evidenceis presentedby Applicant:to supportfindingsmade by authorized,
official finders of fact and lawin the UnitedNations system.It is understoodthat the
Court must weigh, item by item, the probity of such evidenceand the extent, if any,
of the self-interestednessof each source [Nicaragua, ibid. p.41, para. 65. Seealso
Judge Schwebel's cautionarycritique of the application, in thatcase, ofthese
evidentiary principles. Ibid. pp.324-327, paras.138-1451.
45. Preciselyfor this reason, for exarnple, Applicanthas relied on witness-statement
evidenceoriginatingwithnational governmentsthat are not party to this dispute and
which reported not in self-interestbut in carryingout their responsibilityto the
SecurityCouncil. [The requestof the SecurityCouncil toStatesto supply such
informationis found in RES. 771 of 13 Aug. 1992 andRES. 780 of 6 Oct. 1992.
The Resolution (para.5) "Callsupon States and,as appropriate, international
humanitarianorganizationsto collatesubstantiated informationin their possessionor
submittedto them relatingto the violationsof humanitarianlaw (...)" (Emphasis
added)]. To the extent flndingshave been presentedfrom newspapers and other
media, Applicant has relied primarily on reports of mediaoutsidethe jurisdiction of
either party to the dispute, mediaknown for their objectivity.Reply of Bosnia andHerzegovina
46. Such evidencemay be usefid not only to corroborateprimary sourcessuch as those
authorizedby the SecurityCouncil and other UnitedNations bodies, butmay also
demonstrate the extraordinary degree of consensusamong informed and disinterested
observers, expertsand witnessesof variouskinds as to certain facts and eventsthat
were so widely notedas to constitutea fonn of what, in the Nicaragua case,this
Court has describedas "public knowledge ofa fact." [Nicaragua, ibid. p. 40, para.
631.This Court has been sensitiveto suchpublic "notoriety".In the Nonvegian
Fisheries case, it acceptedthat, in some circumstances,it may rely onch
"notoriety"of the facts [ICJReports 1951, pp. 138-39.1even without requiring other
evidence. Bosniaand Herzegovina is surelyone such circumstance,its images cruelly
etched ineveryone'smind. So blatant was the genocide andrelated acts there carried
out that their "notoriety"n be attestedby almosteveryone within reachof a
television or newspaper.
47. The evidenceand sourcespresentedby Respondentare entirely differentfrom those
presented by Applicant,both as to their credibility and gravamen.Much of
Respondent'sCounter-Memorial,in Par t and Par tI, makes no serious effort to
respond to Applicant's renderingof the facts. It instead,tendsthat this evidence
does not demonstrate a violationof the Genocide Convention.This line of argument,
far from denying the accuracyof Applicant'sevidence, moves,sub silencio,to
examine the legalconsequencesto be attributedto their validity. Forexample,at
various points in its pleadings, Respondent makes the argumentthat its acts of
"ethnic cleansing"shouldbe seen as efforts that lead to a conclusion that therewas
no intent to commit genocide:i.e. that the purpose of the acts constitutingethnic
cleansing were intended notto destroya people but to remove persons fiom hm's
way. "Even if these allegations[of killings,etc.] are true" Respondentargues, "that
proves that there was no genocidal intent". [Counter-Mernorial, July 1997,p. 8,
para.1.1.3.7.1.This defense,in one form or another is repeated on pp. 7-11, paras.
1.1.3.1- 1.1.3.17.
48. The Court in time will no doubtrule on this argument'slegal validity. However,it
alsohasevidentiaryaspects,ones examinedby this Court in the Nicaragua case.
There, the United Stateshad invokeda justificationof "collectiveself-defence".
[Nicaragua case, ibid. pp. 44-45, para.41.The Court observed"that the normal
purpose of an invocationof self-defence istojustifjconduct,which would othenvise
be wrongful. If advancedas a justificationin itself, not coupledwith a denial of the
conduct alleged, itmay well imply both an admissionof that conduct, andof the
wrongfulnessof that conductin the absenceof thejustification of self-defence". Chapter3 -Sectio2
Sources,probity and weight of
presented evidence
[Ibid I]the present case, the pleathat ethnic cleansingdoes not constitutegenocide,
when not accompaniedby the effective denial of the conduct alleged, "may well
imply both an admission of that conduct, and the wrongfulnessof that conduct" in
the absence of a finding by this Court thatethnic cleansing,far from intendingto
destroy a people in whole or in part, is indeedjustified, as Respondent proposes,as a
humane way of getting persons out ofhm's way.
49. The Court, in readingRespondent's Counter-Memorialm , ust also be struck not only
by the extraordinarydisparity of the facts allegedby the parties but, even more,by
the disparity in the weight of the sourcesfor the evidence adducedby each party.
Respondentrelies almost entirely on exculpatory evidencethat is precisely of the
kind this Court has stated must be approached with "greatcaution". Almost none of
Respondent's sourcesare the officialsor Commissionsauthorizedby the United
Nations specificallyfor the purpose of finding and reportingsome of the veryfacts
relevant to Applicant'sclaim.
50. When recourse is had by Respondentto the primary or principal sources, these are
deployed as evidence in a way that can only be dismissedas ludicrous, but perhaps
frighteningly indicativeof Respondent's continuingstate of mind. For example, in a
rare referenceto the MazowieckiReportof the UnitedNations SpecialRapporteur
[UN Doc. N471666; SI24809of 17Nov. 19921,the Respondentcites its evidence of
the executionof Muslim prisoners and theRapporteur's observation that these
murders may have been a reprisal for the deathin combat of a local Serbcombatant.
But Respondent usesthis evidence onlyto make the observation that: "If the
executionwas indeedcarried out, it is obvious that it was motivated by a reprisal
and not by being a member of an ethnic or religious group." [Counter-Memorial,p.
9, para. 1.1.3.1.].Obvious?The Court willnote that the Respondent,in every way
best positionedto present evidence demonstratingthat the executions reportedby the
Special Rapporteur never occurred, pointedlydoes not do so. Instead, Respondent
argues that ifthey occurredthey are evidence not ofan intent to destroy in whole or
in part the Muslim people of Bosnia and Herzegovina, but,rather, to avenge the
death in combat of a Serb. Such an explanation,implying demented,anti-humane
and grossly unlawful conductby the Serbexecutioners,might be exculpatoryof
genocide if the authoritieswere ableto demonstratethat the act was an isolated one
and had led to immediateactionby the authoritiesto punish or confine to psychiatrie
care the persons guilty of these acts. Unfortunately,the acts in question are not an
isolated instance of personsrun amok but,rather, as we have demonstrated [PartsIIReply ofBosniaand Herzegovina
and III of this Reply],part of a concerted, orchestrated patterconduct.Moreover,
Respondenthas produced noteven a modicumof evidenceto showthat the
perpetratorsofthese acts were arrested,punishedor treated.
For purposesof discussing theprobative weightof the evidence producedby
Respondent'sCounter-Memorialit is surely unnecessaryto proceeditem by tawdry
item. Citingthe Third and Fourth Reportson War Crimesin the Former Yugoslavia
produced by the UnitedStatesof America Governrnent, Respondent quotes evidence
produced by the UnitedStatesof America Departmentof State ofthe killing of 50
Muslimmen, women and children"allegedlyin retaliation forthe death of 12
Chetnikswho had been killed onthe front". TheRespondentdoesnot deny this
incidentbut, instead, dismissesit as follows: "Evenif this allegationweree, it
would excludegenocidebecausethere was no genocidalintent." [Counter-Memorial,
p.9, para. 1.1.3.1.]. Respondentappearsto believethat reprisa1killings of civilians
excludethe possibilityof genocidalintentbecausethe killers are "solely" engagedin
random revenge murders. It does not appearto occur to Respondentthat authorities
not themselves engagedin genocide would have taken actionto prevent orstop such
acts, particularlyas they becarnecommonpractice,notoriously evident,throughouta
region. Instead, Respondentasks the Courtto acceptthat the mere formula used in
the UnitedStatesof AmericaReport thatthe murders were perpetrated "allegedly in
retaliation for thedeath of 12hetnikswho hadbeen killed at the front" [ibid.]
constitutesal1the exculpationthis Court needs or deserves.
Another United States of AmericaGovernrnent'sReportthat the "Serbsmachine-
gunnedto death about200 newly arrivedprisoners"in anincidentat Keraterm
concentration campis dismissedby the Counter-Memorialwith the remark that:
"Evenif this statementof the witnesswere true, it cannotprove theexistenceof an
act of genocidebecause it is obviousthat reprisal was in question." [Counter-
Memorial,p. 10, para. 1.1.3.16.1.Reprisalfor what?For "heavycasualties"sustained
in fighting, it seems.But this is no answerat al1to a chargeof genocide.It may be
the reason mad persons embarkon genocide.It may establishwhy demented persons
engage in genocide.It may confirmthe intentto destroyin whole or in part an
innocent population.It may be al1of these, but it is not exculpatoryevidence.On the
contrary, it is an admissionagainstRespondent'sinterest.
53. This and much more makes evident severalpropositionsregardingthe exculpatory
evidence offeredby the Respondent: Chapter3 -Section 2
Sources,probiry and weight of
presented evidence
"(a) None of it is of primary weight, that is there is
no exculpatow evidence to support Respondent'scase in any Report by the United Nations
Special Rapporteur, the Security Council's Commission of Expertso,r thendings.
On the contrary, there are mounds upon moundsof evidence of culpability.
(b) Respondent does not even now seemto understandwhat constitutes evidenceof genocide.
Evidence of the wanton killingof Muslim non-combatants, forexarnple, is embraced, however
conditionally, by the Counter-Memorial, with the caveat thatrous, irrational,
inhumane and unlawful killing sprees against a discretegroup (Muslims) cannot be categorized
asgenocide so long as the killers labelit "retaliation,""reprisal[Counter-enge"."
Mernorial, para.1.1.3.21.] .
54. The actual weight of exculpatory evidence producedby the Respondentin the
Counter-Mernorialof 23 July 1997 is altogether minuscule. Respondenh t as had
recourseto only a few sources of minimal probityas to which "great caution" is
surelywarranted,the more so in view of the vastamountof evidenceof more
probativevalue to the contrary.
In Chapter 1,Respondent'sCaunter-Mernorialcites and annexes 9 evidentiary items
55.
that are self-serving statementsby the Federal Republicof Yugoslavia Government
or related instrumentalities[Counter-Memorial,Annexes 5,41, 46, 49, 54, 55, 59,62
and 70.1and 11by the "Republika Srpska" or relatedinstrumentalities[Counter-
Memorial, Annexes 22,23, 24, 25, 34,40, 47, 52, 53, 53%69.1,as well as 7
unsupportedstatementsby interested witnesses. [Counter-Mernorial, Annexes 21 2,3,
42, 43, 44, 45, 91.1.The sameChapter 1 contains 13 items of evidence fromvarious
self-servingSerb media and sources. [Counter-Memorial, Annexes11, 33, 35, 47%
48, 57,60, 65, 68, 76, 81, 84, 92.1.Al1of this evidence,offered not in support of
serious,independentsourcesbut as an alternativeto sourcesof seriousprobity,
shouldbe treated "withgreat caution".
56. ChapterII deals with matters irrelevantto îhis litigationor already decidedat the
jurisdiction phase. Much effort is expendedin ûying to demonstrate thatthe
"Republika Srpska" is in some senserecognizedby the Applicantand by the
international communityas a "state".Not surprisingly,this chapter featuresmore
than sixty items, annexedas evidence,from Serb newspapersalone [Counter-
Memorial, Annexes 99-104, 106-118, 120-123 ,26, 142-144,155, 157,166, 167,
168, 169, 172,211, 220-230, 232-235, 237-241, 243-244, 254-255, 265, 272, 277-
279, 281.1,as well as 20 othenviseunsupportedstatementsby Serb (Federal
Republicof Yugoslaviaand "Republika Srpska") experts, judges and witnesses.
[Counter-Memorial, Annexes 236, 2462 ,47, 248, 249, 250,251, 25la, 25 lb, 25lc,Reply of Bosnia and Herzegovina
251d, 251e, 252, 256, 257,258, 260, 261, 266,267.1.None of this evidence serves
to confm or elucidate evidenceof greater probity;it stands alone, is self-serving,
and must be treated with "greatcaution".
57. Chapter III of the Counter-Memorial deals withmatters of greatimportanceto this
litigation, which, as to its substance, willbe addressedin tII of this Reply. In
this Chapter,Respondentseeksto demonstrate thatthe Federal Republic of
Yugoslavia wasnot involvedin the actsof genocide, complicity or otherviolations
alleged by Applicant. To support itsexculpation, Respondent relieson 11 unilateral
statements,decisions,reports and declarationsby the Federai Republic of Yugoslavia
Governmentor its instrumentalities[Counter-Memorial, Annexes 288, 290, 2923 ,10,
315, 316, 320, 321, 323, 325,326.1,6 statementsof witnessesand decisionsreported
by Federal Republic of Yugoslaviacourts [Counter-Memorial, Annexes 298-300,
305, 329, 331.1,and 17items gleanedfrom Respondent's newspaper Politika.
[Counter-Memorial,Annexes 289, 293-297, 303-304,311-314, 319, 322a-b,3271.In
each instance theevidenceis not corroborativeof independentsourcesof greater
probity, but is unsupported,self-servingandthus to be regardedwith "great caution".
This evidence,in sum, is essentially valuelessin demonstrating theRespondent's
crucial assertionthat it was not involvedin the activities constitutinggenocide.
58. Against such meager evidencemust be weighedthe evidenceof culpability
marshalledby Applicantthroughout its Memorialand this Reply by recourse
primarily tosuch sourcesas the UnitedNations SpecialRapporteur,the Security
Council's Commission ofExperts,the ICTFY andsupportinglesser sourcesof
unimpeachableindependenceas well as of substantial probity.Although,in Par Vt of
this Reply, Applicant will demonstrate theobjective falsehoodof certain of
Respondent's ailegationsof fact, this Courtouldbe alert to the Respondent's
practice ofseekingto establish factsand intentby recourseto nothingmore than
self-serving evidenceproducedby Respondent'sown media or institutionsof
governent or those of the "RepublikaSrpska";evidence, moreover,that for the
most part is not reproducedin aformthis Court (or Applicant)can examine for the
purpose of refùtation. Chapter - Section 1
Thecontextofthe war
CHAPTER 4
INTRODUCTIONTO THE FACTSPRESENTEDIN THIS REPLY
1. The context of the war
1. In its Memorial of 15 April 1994Bosniaand Herzegovina endeavouredto provide
the Court with factual informationwhichwould helpto cl&@ the contextof the
central issueof this case, genocidecornrnittedagainst the non-Serb population of
Bosnia and Herzegovina[Memorial, Chapter2.31.In this Reply Bosnia and
Herzegovinawill elaborateupon this factual information and, ifnecessary, the
Applicantwill addressRespondent's responseas submittedin its Counter-Memorial.
2. For the purposesof this Reply,the Applicant uses "Serb" whenever this is meant to
refer toethnicity;this doesnot have a geographicconnotation.Whenever "Serbian"
is used by the Applicant,this refers to Serbiaproper. It shouldbe noted that neither
the Respondent,nor the SerbISerbianleadershipmakesthis distinction;they use
these terms indiscriminately.
3. The Applicant haspointed outthat the GreaterSerbianideologyhad been in the
minds of many, even learned,Serbs for many years, andhas demonstrated howthese
particular sentimentswere used andexploitedby the leadership inBelgrade. The
Applicanthas also shownthe Courtthat the rhetoricof the Bosnian Serb leadership,
i.e. RadovanKara&iC,went hand in hand with that of the Serbian leadership,i.e.
President MiloSeviC."Al1Serbsin one State"was the theme on which numerous
variationswere produced.
4. The Respondent'sreply to this seemsto be that "Thereis nothingcriminalin this
programme " [Counter-Mernorial para.1.3.18.1.]. Of course, a politicalprogramme
proposing one nation for one ethnic group cannot in and of itselfbe considered
incitementto genocide,but such a politicalprogrammecan easily beused as part of
a politicalropagandacampaignsupportingthe idea of an ethnicallypure State. This
is exactly what happenedin this case. The Respondentfurther acknowledgesthat,
indeed, SlobodanMiloSeviCdefendedthe position thatthe Serb peoplewantedto liveReply of Bosnia and Herzegovina
in one State, but adds that this one Statewouldbe the formerYugoslavia[Counter-
Memorial para. 1.3.18.5.1.However,this is not whatMiloSeviC s:aid:
"(...) we hold that each nation has the equal rightto decide fieely about its destiny. Such a right
can be constrained solelyby the same, equal right of other nations. As far as the Serb people are
concemed, it wants to live in one State. Hence, division intoseveral States which wouldseparate
the Serb people and force itto live in different sovereign States is,from our point of view,
unacceptable, that -let me specifi- out of the question. The Serbiannation will live in one state
and every nation wantingto live with the Serbian peoplein thetate onanequal basis is
welcome. For us, confederationis not a state.
Under the existing conditions,in our view, the onlybue solution is a modem, democratic
federation. We, of course, agree that we should discuss the functionsofate, i.e. such a
federation. But, as far as the Serbianis concemed, a solution accordingto which it would be
separated intoveral States,cannot be discusse[Tanjug 1939grnt 15 January 1991,
BBC Summaryof World Broadcasts,EE10972B113,[21], 17January 1991,
emphasis added, Annex 3; partly quoted in Memorial, para.2.3.1.4 and in
Counter-Mernorial,ibid.].
This statement is clear in its conditionality: ifotherswant to live in a separateState,
then they have the right to do so, provided that theSerbswill effectivelyobtain the
same equal right; anythingother thanthat is "out ofthe question".This statement
can only be interpreted asthreateningthat any proclamation of independenceby any
of the (then still existing) Republicsof the former Yugoslavia wouldbe answeredby
a claim for a Serb state for the Serb people.In this very same statement,MiloSeviC
first clarified that there is a distinctdifferencebetweenthe republics of the (now,
former) SocialistFederal Republic ofYugoslavia(SFRY)and the Yugoslavnations:
"(...) only Yugoslav nationscan decide about the future of Yugoslavia,because Yugoslavia was
created only by Yugoslavs and notbypublics,which did not exist in either 191943.
Administrative republicanborders cannot be simply proclaimedstate borders, and they do not
representoundaries within which Yugoslavnationslive[Tanjug,ibidem,emphasis
added] .
Whenever,in this type of statement, mentionis made of the SerbISerbiannation, this
refers to the Serbpeople in the formerYugoslavia(regardlessof the republicin
which they are living), notto the Serbian republiclstate,i.e. not to Serbia proper.
The Respondent also relies on the use of this particularlanguagein the current
proceedings:for example,in the counter-clairnsection of the Counter-Memorial,the
Respondent accuses the Applicantof the deliberate killing of persons of "Serb
nationalify" [Counter-Memorialpara. 7.1.] .
Of course, the Memorandumof the SerbianAcademy,whichwas mentionedin the
Memorial [Section 2.3.1, paras. 2.3.1.3-2.3.1.41and to whichthe Respondentrefers Chapter 4-SectionI
Thecontext of the war
in its Counter-Memorial[pp. 105-108, para. 1.3.18.2.-1.3.18.8.1does not cal1directly
for a genocidalwar againstnon-Serbsin the former Yugoslavia.The Memorandum
does somethingdifferent.At the outsetit seems to be a general andseriouscriticism
of the (then) current political situationin the former Yugoslavia.But as it proceedsit
turns into a long range ofcomplaintsabout the misfortunethat has corneover the
Serb people and about theextreme unfairnesswith which they have beentreated
throughout history,as well as underthe (then)present Constitution:
"~he flawswhich from the verybeginning were presentin this mode1have become increasingly
evident.Not al1the nationalgroupswere equathe Serbian nation,for instance,was not given the
right to have its own stat[Memorandum,page 118in Annex 92 to Counter-
Mernorial, emphasis added],
and
"~he attitudetaken to Serbia'seconomicstagnationshowsthat the vindictivepolicytowards this
republichas not lost any of its edgewiththe passingof time. On the contrary, encouragedby its
own success,it has grown ever stronger, to the pointof geno[Memorandum,page 125
in Annex 92 to Counter-Mernorial],
and
"~he physical,political,legal and cultural genocideof the Serbian populationin Kosovoand
Metohijais a worse defeatthan any experiencedin the liberation wars wagedby Serbia from the
First Serbian Uprisingin04 to the uprisingo1941."[Memorandum,page 128 in
Annex 92 to Counter-Memorial],
and, about the Serbianpopulationin Croatia,
"(...the Serbian populationin Croatiais notjust culturallycut off fiom their conationalsin Serbia;
.The integrityof the Serbian nationand its culturethroughout Yugoslaviapresents itself asthe
most cruciai questionof its survivaiand progr[Memorandum,page 131in Annex 92
to Counter-Memorial],
and
"~xcept for the time underthe IndependentState of Croatia, theSerbs in Croatia have never before
been asjeopardizedasthey are today. Solution oftheir nationalstatusis a questionof ovemding
political importance.If solutionsare not found,the consequences might wellbe disastrous,not only
for Croatia, butfor the whole of ~u~os~av[Memorandum,page 133 in Annex 92 to
Counter-Memorial],Reply of Bosnia and Herzegovina
and, about the two autonomousprovinceswithinthe borders of Serbia,Kosovoand
Vojvodina,
"The formallyproclaimed equalityof al1the republicsinthe Constitutionof the SFRY has been
negated by the fact thatthe Republicof Serbia hasbeen forced tohand over a large portionof its
rightand prerogativesto the autonomous provinces, whosestatushas been regulatedin detailby
the federal constitution. Serbiamuststate openly that this arrangementupon it,ced
especiallyas regardsthe statusof the provinces,in effect raised to thatof republics, which regard
themselvesmuchmore as a constituent unitof the federationthan a part of the Republicof Serbia.
On top ofits failureto provide for a state forthe Serbian nation, the ConstSFRYioalsothe
putinsurmountabledifficultiesin the way of constitutingsuch a state.It is imperative that this
constitutionbe amendedso as to satisfi Serbia's legitimate interests. The autonomous provinces
should become genuinelyintegralparts of the Republicof Serbia, while receiving thatdegree of
autonomy which does not disruptthe integrityof the Republicand which will be able tosatisfythe
generai interestsof the community atlar[Memorandum,page 139in Annex 92 to
Counter-Memorial] .
6. The Memorandumthus appearsto have given guidanceand supportto the Serb
political leadership, whichin the years followingits publication didwhat the
Memorandum calledfor. The first testing groundbeing the issue ofthe two
autonomousprovinces:in 1990Serbiamanagedto effectivelyincorporate Kosovo
and Vojvodina intoits state structures[ICTFY, Trial Chamber,Opinionand
Judgment,Prosecutor v.DuSkoTadiC,CaseNo. IT-94-1-T, 7 May 1997,p. 30, para.
841.Serbia did so, by changingits Constitution inSeptember1990.This change was
at the same time a breach of theConstitutionof the SFRY.However, the
ConstitutionalCourt of Yugoslavia was unable to adjudicatethis issueby lack of a
quorumto do so: the SerbianJudges refused to take part in the sessionson this issue.
Incidentally,the Applicant wishesto remark that preciselyas this Reply is being
drafted in March 1998,the non-Serbpopulationof Kosovois being oppressedby the
Serbian leadership inBelgradein ways sirnilar,albeit on a much smallerscale, to
those used to victhize the non-Serb populationof Bosniaand Herzegovina.This
similarityled the U.S. Secretaryof State, Madeleine Albrightto observe:
"We are not goingto stand by and watchthe Serbian authoritiesdo in Kosovo what theycan no
longerget away with doingin Bosnia[Steven Erlanger, "AlbrightWams Serbs on
Kosovo Violence",New YorkTimes,13March 1998, Annex 41. Chapter4 - Section 1
Thecontext of the war
Soon after this incorporationof Kosovo and Vojvodina hadbeen accomplished,the
other appeal of the Memorandumgot the full attentionof the Serbian leadership:
"~he establishmentof the Serbian people's complete national and iltegrity,regardlessof
which republic or provincethey mightbe living in,istheir historicaland democraticright."
[Memorandum,page 138in Annex 92 to Counter-Memorial].
There can be no reasonabledoubt that the messageof the Memorandumis 'Al1Serbs
in one State",nor can there be any doubt that the Serb political leadershipused this
very languagein the pursuit of anethnicallypure SerbState. The eventson the
territory of Bosniaand Herzegovinaprovide dramaticproof of this agenda.Radovan
KaradUChirnselfconfmed the centralityof this ideology whenhe stated on 22
October 1993, in the middle of the war,that:
"0ur objective isto unite in one stateto have onec-Belgrade -one assembly,one
governmentand one President.We are not interestedin princedoms.1thinkthat we the Serbs,
willunite even beforewe expect. It seemsthat a globalsolutionmust leadto the creation andReply ofBosniaand Herzegovina
recognitionof a large Serb st(...This war willbe brought toan end eitherat the conference
table, like1other warsare, or in a long,silentprocess of bleeding,in which the Serbs will have
to use weaponsto fort@ the bordersthey are currentlyholdi[Tony Barber,The
Independent,European News Page13, 22 October 1993, Annex51.
The same sort of languagewas used by GeneralMladié,quoted in April 1994as
saying :
"~he Serbianbordersare where Serbianblood has beenshed, thebloodof eachand every Serbian
soldier and officer,notjust in this war but in previousones.Thiswar will be overwhenthe
Muslemshand overtheir weapons to me." [TonyBarber, The Independent, European
News Page 9, 19April 1994, Annex 61.
8. These statementsmade by KaradvCand MladiCare entirelyin line with a
propagandacampaign which seemsto have started on 28 June 1989at the battlefield
site of Gazimestan,outsidethe capital of Kosovo,duringthe celebrationof the 600th
anniversaryof the battle of Kosovo[seealso belowpara. 88 of the TadiCJudgment].
There, President MiloSeviCof Serbiamade a public speechin front of several
hundred thousand Serbs inwhich hedeclared:
"~ix centuries,we are againengagedin battlesand quarrels.They are not armedbattles,but this
cannotbe excludedyet." [M.Glenny, TheFull of Yugosiavia,p. 35, Annex 7; T.
Judah, TheSerbs, p. 164, Annex81.
On 11 March 1991, during a speech before theSerbianAssembly whichwas quoted
by Belgrade home service, MiloSeviC warnedof the threats to the Serbs:
"~erbiaand the Serbian people areconfiontedwith one of theworst evils in the-rthestory
provocationof disunityandmutualconflicts.Thisevil -whichhas so manytimes in the pastcaused
damage,victims,and sufferingto Ourpeople as wellas weakenedtheir strengthand brokentheir
unity- benefited onlyosepeoplewho wantedto take our fieedomand dignityawayfiom us, to
subjugateus and subordinateutotheir interest[Belgrade homeservice 1711 gmt 11
March 1991,BBC Summaryof Worldbroadcasts,EEl1019BI12 [311,13
March 1991, Annex 91.
A few days later, again in a speech beforethe SerbianAssembly,he repeated the
presurnednecessityfor a defencestrategy,linking it to the Greater Serbiarhetoric:
"1have askedthe Serbian government tocarry out al1preparations forthe formationof additional
forces whose volumeand strengthwouldguaranteethe protection of theinterestof Serbiaand the
Serbian peopl(...The citizensof Serbiacan besurethatthe Republicof Serbia is capableof
ensuringthe protection of itsown interestsandthoseof al1its citizensand the entire Serbian
people. The Republicof Serbia,the citizensof Serbiaand the Serbianpeople will resistany act of Chapter4- Sectio1
Thecontext of the war
dismantlingourhomeland.[Tanjug 1637 gmt 16Mach 1991, BBC Surnmaryof
Worldbroadcasts, EEl1023BI14 [30], 18March 1991, Annex101.
In April 1991,again beforethe Assembly,Milosevi6said that the reservepolice
were mobilisedin order to
"(..enableus in everycaseto besecure,andto be ableto defendthe interestsof
OurRepublic,and,by God,the interestsof the Serbianpeopleoutside~[S.ia."
Milosevik,"Bogamicemo da se tucemo" (By God, We will Fight),
NIN, 12 April 1991,p. 40; fiom the StenographicRecord of the
SerbianParliament,Annex 1 11.
In December 1991he madea speech whichwas reported on BelgradeRadio, in
which he referred to:
"...a strugglewiththeforcesthataredestroyingbothSerbiaandYugoslavia,forcesthat are
revivinga worldthatdied alongtimeago.eseforcesaredark(...)[RadioBelgrade 1400
gmt 10 Dec. 1991,BBC Summary of Worldbroadcasts,EEl1253 Cl11 [l], 12
December 1991, Annex 121.
9. This same message was repeatedfiequentlyby high ranking officersof the JNA [see,
forexarnple,the Tadi6Judgment quoted below, para.901.On 21 February 1992,
Lt-Gen Negovanovic of theJNA is reported as having said that the JNA would not
withdraw from Bosnia and would notallow the Serbianpeopleto have an "Islarnic
state" forced upon them [Tanjug 1022gmt 21 February 1992,BBC Summaryof
Worldbroadcasts, EEl1312 Cl19 [20], 23 February 1992,Annex 131.And on 9 April
1992,the Acting Chief of the GeneralStaff of the SFRY, General&vota PaniCtold
a meeting ofreserve JNA officersin Belgradethat the taskof the JNAwas "to
prevent genocideagainstany nation, particularlythe Serbs, becausethey are the most
threatened.".He continuedto say that in Bosnia andHerzegovina"we are closer to
war thanto peace" and addedthat it was an irrefutablefact that "thereis a
Croatian-Muslimplot and a coalition againstthe Serbs." [Tanjug 1921gmt 7 Apr.
1992,BBCSummaryof WorldBroadcasts, EE11351Cl13 [5], 9 April 1992,Annex
141.
10. These types of statementsbegan to be deliveredin 1989(if not earlier) and
continued throughout1991 and the beginningof 1992,at a time when there was no
armed conflict in Bosniaand Herzegovina. Atthat point, theBosnianArmy did notReply ofBosniaandHerzegovina
exist. On the contrary, in 1991the TerritorialDefence ofBosnia and Herzegovina
complied witha JNA order to hand over al1weapons to the,then, national army,i.e.
the JNA [seebelow Chapter8, Section21.
11. In tmth, while deliveringthese statements, theSerbianleadershipin Belgradewas
getting prepared forwar. The Vice-Presidentof the former SFRY,Borisav JoviC,
reports in hisdiary, published in 1995in Belgrade,on a meeting ofthe so-called
"coordination" group of the Republicof Serbia, which, according tohis report, took
place on 26 March 1990:
"0ur assessmentis that a processof dissolution of Yugoslavia, resethe one of the SKJ
(YugoslavCommunist Party i)underway.It seems to us as irrepressible. Serbia will ctnduca
honest policy of maintaining the federal Yugoslavia,itill alsoget preparedto live without
Yugoslavia. Incase of possible dissolutionof the country, wen unitywith Montenegro. We
will not beg Macedonia. Should they appeal, theyfirst haveto apologisefor the sinsagainst
the victimsof theirst World War(whom theyconsideraggressors).Our aim is to avoid
bloodshed,to establishsuch a borderinsideof which there will beno war. Outsidethe borderwar
is inevitable,becauseBosnia and Herzegovina will te ableto surviveas a state, and it ishard
to imaginea fightover thatterritory without blood.
Serbia will notaccept the confederation.)
Anyhow,we assessthatYugoslavia will probably be dissolvdy a presumable technology:
republicsone by one(startingwith Slovenia) will pass new constitutions, which will be contratroy
the existing constitutionof Yugoslavia, andit will be impossibleto reach an agreementon a new
constitutionof Yugoslavia.us,Yugoslavia will disappear, and the ief confederation, which
will never come to existence, will be raised, bringing about btecausethe Serb peoplein
Croatia andB-H will disagree withsuchnational position(separationfromtheirhomelandand
transformationinto a national minority).
Serbia decidedto approachorthwiththe elaborationof iîs new constitution which will beable to
"cover" anew, independentSerb state. Fortunately,through constitutionalamencimentsto the
constitutionof thSR Serbia of28.02.1989a newstate competenceof the SR Serbia over its
entire temtory was established.Serbiahas to be prepared for the forthcoming developmenîs
imposedon it, without its wil[BorislavJoviC,FinalDays of theSFRY:the Daily
Diary of theperiod May 15, 1989 to July, 8 1992, English translation,
Belgrade 1995,p. 131-132, Annex 151.
It shouldbe noted that this meeting of theSerbianleadershiptook place in March
1990 and that theevents from 1991onward unfoldedjustas describedat this 1990
meeting.
12. The Serbian public statements,quoted above,must thereforebe appreciatedwithin
the contextof the Serbian assessmentof the future of Yugoslavia.Apparently,at
least from this March 1990meeting onward,the Serbian leadership was working on
a plan for this new Serb State. As the historianNoel Malcolmobserves inhis widely
acclairnedbook: Chapter4 - Section1
Thecontextofthe war
"~he steps taken by KaradZiCand his par-y'Autonomous Regions',the arming of the Serb
population, minor local incidents, non-stoppropaganda, the request for federal army 'protection',
the Serb 'parliament-matched exactly whathad been done in Croatia. Few observers could
doubt that a single plan was in operation. Any lingeringtainties about the nature of the plan
were dispelled at the congress ofoseviC'sSerbian Socialist Party atPec on 9 October 1991.
The vice-president of the party, the former dissident philosopher Mihailo Markovic, described very
clearly in his speech to the congress thenature ofthe carve-up which he and his master were
planning:
'In the new Yugoslav state therewill be at least three federal units: Serbia, Montenegroand a
united Bosnian and Kninregion [Le.a temtory consisting of some of the Bosnian 'Serb
Autonomous Regions'and the main Croatian one]. Ifthe Bosnian Muslims wishto remain in
the new Yugoslav state, they will be allowed to do so. If theysecede, they must know
that... the Bosnian Muslims' statewill be encircled by Serbian territory.'
Commenting on this speechat the time [19 October 19911,1wrote: 'Mr MiloseviC'splan, then, is
for a country which would be Yugoslavia inme, but greater Serbia in reality, with the option of
a sort of enfeebled Muslim Bophutatswanain the middle.'"e1 Malcolm,Bosnia a
Short History, 1996, new updatededition,pp. 228-229,Annex 161.
13. Thus, while developing their plansfor a Greater Serbia,the Serbian leadership
prepared its population with thetypes of statementsPresidentMiloSevi6fiequently
delivered,as demonstratedabove. These statementsconstituteda pure hate carnpaign
by senior officiaisof the SFRYgovernment,targeted at the non-Serbpopulation, i.e.
the Croat and Muslirnpopulation, of theformer Yugoslavia.Thus, the psychological
groundworkwas laid for an armed conflictwhich turned out to be the most atrocious
war Europe haswitnessed since World War II.
Whilethis ongoingpropagandawas being dispersed,military preparationswere
simultaneouslybeing made,as will be shownelsewherein this Reply [Chapter8,
Section21.In close concertwith the propaganda andwith this military planning, the
Serb side prepared for a substantialchange ofcivil and political structures.
14. Noel Malcolm was not alone in fmding,as quoted above,that the formingof so-
cailed "AutonomousRegions" wasa crucial factorin this change ofthe civil and
political structures; theICTFY came tothe same conclusion:
"97. The Greater Serbia theory was put intopractice after the 1990 elections and before the
beginning of the war. In April 1991 several cornmunitiesjoined a Serbian associationof
municipalities.hese structures were fonnein areas predominantly inhabitedby Bosnian Serbs,
generally by vote of the predominantly Bosnian SerbcalAssemblies.At first,thassociation
was a form of economic and culturalcooperationwithout administrative power. However,separate
police forces and separate Assembliesrapidly developed. In September 1991 it was announced that
several Serb AutonomousRegions in Bosnia and Herzegovina had been proclaimed, including
Krajina, Romanjija [sic] and Stara Herzegovina, withthe aim of separating fiom the Republican
government agencies in Sarajevo and creating a Greater Serbia.Reply ofBosniaandHerzegovina
98.Bosanski[sic]Krajina, as the SerbAutonomousRegionof Krajinawas initiallycalled, consisted
of the Banja Lukaregion and surroundingmunicipalitieswhere theSerbsconstituteda clear
majority. Severalof the municipalitiesthat the SDS leadershiphad plannedonjoining the
autonomousregion, including Prijedor, didnot in fact join it in 1991. Thisleft Prijedorvirtually
isolated, surroundedby other municipalitieswhich hadjoined the association.
99.In November 1991theSDS sponsored,organizedand conducteda plebisciteprimarilyfor the
Bosnian Serb population.Voterswere given differentballotsdependingupon whetherthey were
Serb or non-Serb.The differencebetweenthe two ballotswas significant:forBosnianSerbs, the
ballot asked: "Are you in favour of thedecisionreachedby the Assemblyof the Serbian Peoplein
Bosnia and Herzegovinaon 24 October 1991whereby theSerbianpeopleshall remainin the
common State of YugoslaviawhichwouldincludeSerbia,Montenegro, Serb Autonomous Region
Krajina, SerbAutonomousRegion Slavonija,Baranja,Western Sremalong with al1otherçwilling
to remain in sucha State?" while thequestion for non-Serbswas: "Areyou in favourof Bosnia and
Herzegovinaremaining arepublicwith equal statusin a commonState of Yugoslaviawithal1the
other republics which alsodeclarethemselveswillingto do so?" (ProsecutionExhibit97).The
great majoritywho did vote were Serbs;those Serbswho did not being brandedas traitors. Most
non-Serbs regarded the plebisciteas directed onlyto Serbs.
100.Theoutcome of the plebiscitepurportedto be 100percent in favour.The SDS leadershipused
this outcomeas a basis on whichto developthe separateSerb political structure.The plebiscite was
cited asjustification for al1subsequentmovessuch as the ultimatewalk-outof the SDS
representativesfiom the Bosniaand HerzegovinaAssembly,the variousnegotiationsconducted at
the federal and internationallevelsandthe proclamation,on 9 January 1992,of the Republicof the
Serbian People of Bosnia andHerzegovina. Itwas "usedas a pretext, as an excuse, explanation,for
everything thatthey did".
101.Alsoon the basisof the plebiscite,the SDS andmilitaryforces in each region includingthe
INA, paramilitary organizations,local TOunits, and special policeunits,began to establish
physical and politicalcontrolover certainmunicipalitieswhere it had not already gained controlby
virtue of the elections.In these regions, which includedopStinaPrijedor,the SDS representativesin
public office in some cases establishedparallelmunicipalgovernmentsand separatepolice forces.
Physical control wasssertedby positioning military unitst,anks andheavy artilleryaroundthe
municipalitiesand settingup checkpointsto control the movement ofnon8erbs.
102.11March 1992theAssemblyof SerbianPeople of Bosnia and Herzegovinapromulgatedthe
Constitution of the Serb Republic of Bosnia and Herzegovina aproclaimeditselfa distinct
republic. ThisAssemblysessionwas transmittedlive on television,aswere the final declarations.
In the course of the session,RadoslavBrdanin, a memberof the Serb Republicparliament,said:
"At long last1have livedto see Bosnian Krajinabecomewestern Serbia";and Radislav Vukic,
President of the Municipal Committeeof the SDS in Banja Luka,declared:"Now the Turks will
shake with fear fiom us", being a derogatoryreferenceto Bosnian~uslims."[ICTFY,Trial
Charnber,Opinion and Judgment,Prosecutorv. Dugko Tadit, CaseNo. IT-94-
1-T, 7 May 1997,pp. 35-36, paras. 97-1021.
The methods and the languageused make it clear thatfrom the very outsetthe
Serbian aspirationswere interlacedin territorial, politicaland ethnicalterms, though
al1with a view toward achievinga singleresult. Chapter 4-Section 1
Thecontextofthe war
15. After the military and political structureswere lined up, an executivebranch was
formed under the name "CrisisStaffs".The ICTFY establishedhow and why this
was done:
"103.Crisis Staffs were formed inthe Serb AutonomousRegionsto assume governmentfunctions
and carry out generalmunicipalmanagement.Membersof the Crisis Staffs included SDS leaders,
theJNA Commanderfor the area, Serb policeofficials,andthe Serb TOCommander.For
example,Lieutenant-GeneralMomirTaliC,Commander of the5th Corps (whichbecame the 1st
Krajina Corps),was a member ofthe CrisisStaff in Banja Luka ("ARK Crisis Staff'), thus
demonstrating the relationshipbetweenthe political andmilitarybranchesof the Bosnian-Serb-run
govemment. TheARK Crisis Staff, whichhadjurisdiction over opStinaPrijedor,was establishedin
April or May 1992as an organ of the Autonomouson of Krajina, thestatute of which
provided for the creation ofCrisis Staffs in the case of war or immediate danger ofwar. In early
May, after theofficialdecisionon its establishmentwas taken by the Executive Council of Krajina,
the ARK Crisis Staff took over al1powers ofthe govemmentand other agencies.It was the
highest-leveldecision-maker inthe AutonomousRegionof Krajinaand its decisionshad to be
implemented throughoutthe AutonomousRegion of Krajinaby means of municipalCrisis Staffs.
The municipalrisis Staffs hadto report to the ARK CrisisStaff daily regardingthe stepstaken to
impiement the decisionsof the Main Board located inBanja [ICTFY,Trial Chamber,
Opinion and Judgment,Prosecutor v. DuSko TadiC C ase No. IT-94-1-T,7 May
1997,p. 37, para. 1031.
Thus the military, political, civiland executive structureswere al1put in place to
servethe establishmentof Greater Serbia.
16. In its Counter-Memorial, the Respondenr tightly notes that not only the Applicant in
this case, but also the Prosecutor before theICTFY in the TadiCcase, had pointedto
the "Memorandum"as a relevantsourcefor the Greater Serbia ideology.However,
the Respondent then goes on to produce quotationsfrom a witness statement
delivered during the courseof the TadiCcriminalproceedingsto, presumably,show
that the Prosecutor's(and the Applicant's)assurnptionwas not correct [Counter-
Memorial para. 1.3.18.7-9.1.
In doing so, the Respondent completelyignoresthe fact that on 7 May 1997the
TadiCJudgmentwas deliveredand that the Trial Chamberin that Judgment accepted
the Prosecutor'sview on this issue in its entireiy. Becauseof the apparent
evidentiary valueof this Judgment[see Chapter 3 of this Reply], therelevant section
of the Judgment isreproduced here:
"85.The concept ofa Greater Serbia hasa long history.It emergedat the forefiont of political
consciousnessin closeto its modem-day formas early as 150years ago andgainadmomentum
between the twoWorld Wars.Kept in checkduringthe years of MarshalTito'smle, it became
very activeafter his death.Greater Serbia involvedtwo distinctaspects:first,the incorporationof
the two autonomousprovinces of Vojvodina and Kosovoo Serbia, alreadyreferred to; andRepiy ofBosniaand Herzegovina
secondly, the extensionof the enlarged Serbia, togetherwith Montenegro, intothose portions of
Croatia and Bosnia and Herzegovina containingsubstantialSerbpopulations.
86.Associatedwith the first of these aspectswas the Serbianoppositionto the equal representation
federally of each of the Republics,regardlessof population size. This, togetherwith the existence
of the two autonomous provinces, wasthe subjectof muchagitationand received strong supportin
the secondhalf of the 1980'sfiom the SerbianAcademyof Arts andSciencesin its widely
distributedbut not officially publishedmemorandum urging majorconstitutionalchange. As
mentioned above,the two provinceswere effectivelyincorporated intoSerbia in 1990 butthe move
to achieve federal representationby population ratherthan by Republics,with a resultingincreased
power for Serbia,was notachievedbeforethe breakup of thefederation.
87.The second aspect of a Greater Serbia wasstronglypursuedin the late 1980'sand oninto the
1990's,much encouragedby nationalistwritings of earlier days,some of which advocateda
Serbian state extendingthroughout Bosniaand Herzegovinaand includingthe Dalmatian coast and
parts of Croatia north of the riverava.It was promotedactivelyby Serb propaganda,a key
element of the campaign;by recallingthe atrocitiesof the Croat Ustda in the SecondWorld War
its proponentssoughtto arousethe fears of Serbseverywhereand inthe end have them seek
protection within a Greater Serbia.
88.The propaganda campaign that accompanied this movementbegan as earlyas 1989, withthe
celebrationof the 600th anniversary ofthe Battle of Kosovo.Duringthis celebration,the Serb-
controlled media declared thatSerbshad been letdownby others in the area when the Ottoman
Turks invaded. Through publicspeechesand the media, Serbian politicalleadersemphasiseda
glorious past,and informedtheir audiencesthat if Serbsdid not join togetherthey wouldbe again
subjectto attack by 'UstaSa',a term usedto inspirefear in Serbs. The danger ofa 'fundamentalist,
politicised'Muslim community wasalsorepresented asa threat. After the disintegrationof the
former Yugoslaviabegan,the themeof the Serb-dominated media wasthat 'if for any one reason
Serbs would becomea minority population .. .their whole existencecould be very perilousand
endangered ... [and therefore] they had nochoice but a full-scalewar againsteveryoneelse, or to
be subjectedto the old type concentration camp, thesymbolbeing Jasenovac'.
89.111the early 1990's therewere ralliesthat advocatedand promotedthe idea, with Serbian
leaders in attendance.In 1992 RadoslavBrdanin,President ofthe Crisis Staff ofthe Serb
AutonomousRegion of the Banja Lukaarea, declaredthat 2 percent was the uppertolerable limit
on the presence of al1non-Serbsin this region.RadoslavBrdaninadvocatedthree stagesof ridding
the area of non-Serbs: (1)creatingimpossible conditionsthat would havethe effect of encouraging
them to leave of their own accord, involving pressureand terror tactics; (2) deportationand
banishrnent;and (3) liquidatingthoseremainingwho would notfit intohis conceptfor the region.
90.The propaganda continued throughoutthe war in Croatia and Slovenia,which was fought
primarily by the JNA on the one side andthose seekingindependenceon the other. Colonel
Vukelic, the Assistantfor Ethicsof the Commanderof the 5th Corps of the 1st MilitaryDistrict of
the JNAin 1991and 1992,a Bosnian Serb responsible for moral and ethicalpreparationof military
units and for maintainingrelations with themedia,politicd bodies and socio-political
organizations,mademany declarations againstMuslimand Croat populations.He characterized
Croats and Muslimsas the enemiesof Serbs andproclaimedthat the Serbs in Bosniaand
Herzegovina were in danger and needed tobe protected,a need which should inspire Serbmembers
of the JNA tojoin the struggleto Savethe Serbs fi-omgenocide.
91.0ver time, the propagandaescalatedin intensityand beganrepeatedlyto accusenonBerbs of
being extremistsplotîinggenocide againstthe Serbs. Periodicalsfiom Belgrade featured storieson
the remote historyof Serbs intendcdto inspirenationdistic feelings.SlobodanKuruzovic,
Commanderof the TerritorialDefence("TO") of Prijedor,who becamethe head ofthe local
newspaperKozarskiVjesnikand the commander of theTrnopoljecamp, stated that the 'interestsof Chapter 4 - Section 1
Thecontextof the war
Serbian peoplein Republika Srpskawill be the main guidelinesfor my editorial policies'.In
articles, announcements, television programmes and public proclamations, Serbs were told that they
neededto protect themselvesfiom a fundamentalistMuslimthreat and mustarmthemselves and
that the Croats and Muslimswerepreparinga planof genocide againstthem. Broadcastsfiom
Belgrade caused fear amongnon-Serbsbecauseonlythe Serb nation was presented positivelya ,nd
it was represented thatthe JNA supported the Serbs. Thetheme that, for the Serbs,the Second
World War had notended was expressed on television and radio by VojislavSeSelj,ieljko
RaZnjatoviC,othenviseknownas "Arkan",and other Serb politicians and leaders.
92.Bythe springof 1992only Serb-controlled television channels and programmes were available
in many partsof Bosnia and Herzegovina. This was achieved by the take-over of television
transmittersthroughoutthe Serb-controlledareas, includingthe transmitter onKozara Mountain
which was taken over by the Wolves,a paramilitary unit actingin full cooperation withboth
military and political leaders.In consequence,by the springof 1992residents in Prijedor and
elsewherein eastem Bosnia and Herzegovina wereno longer ableto receive television from
Sarajevo or fiom Zagreb but onlyfiom Belgrade orNovi Sad in Serbia, and Pale or Banja Lukain
Bosnia and Herzegovina,al1of which broadcast anti-Muslim andantiCroat propaganda.
93.In opStinaPrijedor,duringthe days followingthe take-over of the town of Prijedor by JNA
forces on30 April 1992,as discussed below, Serb nationalist propaganda intensified. The 'need for
the awakeningof the Serb people' was stressed and derogatory remarks against non-Serbs
increased. Muslim leaders who attempted to speakon the radio werebarred while SDS leadershad
fkeeaccessto it. Even more open propaganda against Muslims and Croats begain n earnest after an
incident inthe Hambarineregionon 22 May 1992,discussed below.Examplesinclude statements
that a Croat doctor castrated newbom Serb boys and was performing sterilizationsurgery on Serb
women andthat a Muslim doctor intentionally administered the wrong dmg in an attemptto kill
his Serb colleague.
94.Thispropaganda campaign continued on into1993.For exarnple,on 6 August 1993an article in
KozarskiVjesnik,underthe headline "Preventinga Repetitionof the Serbian massacreof 1941",
extensively quoted SimoMiSkoviCt,he SDS chairman,as saying:
'The Serbian people had instinctively sensed the danger poseby the SDA and HDZ and have
formed Republika Srpskain time . ..Twoyears ago the Serbian people sensed instinctively
that once againthey were facedwiththe dangerof the samevillainswho in 1941 startedthe
extermination processof the Serbian peopleand therefore formed theirown party. On 2nd
August 1991we inthe Districtof Prijedor have formedthe SDS ...Prior to that we tried hard
to reach an agreement withthe Muslimand Croatianparty regarding our continued
coexistence.Althoughthey agreed toit in words they continuedto arm themselvesin order to
destroyus. The SDS leadership sawwhatthey were planning and startedto armtheir own
people inorderto preventthe tragedy of 1941 .. ..Quicklywe formed our army and our
police forcesand on 30 April 1992withouta singleshot being fired and withouta single
casualty,we establishedour authorityin Prijedor which we were ableto maintain [until]now
and we have to consolidate itthrougha democraticprocess.'(ProsecutionExhibit 100.)
The article also statedthat SimoMiSkoviCthen mentioneda womanwho had to watch herchildren
'being slaughteredby the UstaSabutchers'and continuedin editorial fashion:
'There were thousandsof such and sirnilarcases inthe BosanskaKrajina and this mustnever
be allowedto happenagain. SDS had preventedthis happening in Prijedorin May 1st year
when SDA and HDZ hatcheda devilishplan of retribution against the Serbsin Prijedor.'
95.Anotherarticle quotedMilomirStakiC,chair of the Serbian Municipal Assemblyof Prijedor,
who claimedthat questioning conductedat the camps where Muslimswho had been rounded upReplyofBosniaand Herzegovina
were imprisoned showedthat the Muslims were determinedtoy out a detailedplan for the
liquidationof the Serbian population of Prijedor. S,imoDrljaca, the Chiefof Police of
Prijedor,tatedthat he had proof that 1,500Muslimsand Croats participatedin the genocideof the
Serb people and thatnsteadof receivingtheirjust punishment,the white world mightymen
forced us to release themfrom Manjaca[a Serb prisoncamp].' (ProsecutionExhibit 92.)
96.The witnessEdward Vulliamysummedup the propaganda campaign,statingthatthe message
from the governmentin Belgrade was relentlessand wasvery 'cogentand potent. Itwas a message
of urgency, ahreat to your people,to your nation,a cal1to arms, and,yes, a sort of aninstruction
to go to war for your peop...It pushedand pushed.It was rather likea sort of harnmer
bashingon peoples'heads 1suppose.'EdwardVulliamy,ajoumalist for the GuardianNewspaper,
London, travelledto the areas in conflictin Bosniaand Herzegovinaduring 1992.AlthoughRoy
Gutman,author of the Pulitzer PrizebookentiAlWitnessto Genocide,was the firstto discover
the Omarska campthrough interviewswith peoplewho had beendetainedthere, Edward Vulliamy
was withthe firstroupof outsidejoumalists actuallyto enter the camp. The mediaattention
generated by Roy Gutman, EdwardVulliamy andothers regarding Omarska ultimaled to the
ciosure of the camp.[ICTFY, TrialChamber,Opinionand Judgment,Prosecutor
v. TadiC,CaseNo. IT-94-1-T, 7 May 1997, pp. 30-35,paras. 85-96].
The ICTFY wascorrect in combining the GreaterSerbia rhetoricwith the imrninent-
threat-to-the-Serbs rhetoric,becausethese are two sidesof the same coin. The right
of the Serbian nationto a Serb state was, accordingto this rhetoric, supportedby the
need for the Serb people to defendthemselves againstthe outside(non-Serb)world,
which, also accordingto this rhetoric, asusualthreatened to commit genocideagainst
the Serbs. Thiswas the key message of the Serb propaganda campaign It. was
designedto recall memories ofatrocities comrnittedagainst Serbs in order to arouse
fears in Serbs everywhereand prompt themto seekprotection within a Greater
Serbia.
18. This rhetoric also servedto set the tone forthe Serb agendawithinthe contextof a
disintegrating SocialistFederal Republicof Yugoslavia. Thefacts clearlyreveal that
the Serb leadershipin Belgradewas indeedengagedin an effort to unite the Serb
nation in one Serb State. That this was not just somepolitical programme but,rather,
a particular courseof conduct aimedto achievea specificresult, becameclear as
soon as the Serb leadership actuallyleft the stage ofrhetoricand enteredthe stage of
armed conflict.
2. The facts reveal a clear pattern of violations of theGenocide Convention
19. In its Mernorialof 15April 1994,the Applicant provided theCourt withan
overview of the facts relevantto its case mmorial, Part23.Due to circumstancesat
the tirne, the Applicantwas rather restrictedin its abilityto provide a complete
picture. In additionto this, at the relevant pointin time, the Applicantwasnot even
aware of the ovenvhelmingmass of atrocitiescornrnittedagainstthe non-Serbsof Chapter 4-Section 2
Thefacts reveal a clearpattern of
violations ofthe Genocide Convention
Bosnia and Herzegovina. Moreover,many of these atrocitieshad not eventaken
place by the date on whichthe Memorial wassubmitted.The genocidalcampaign
continued longafter that date and included the massacrein Srebrenicain 1995.
Shortly after Bosniaand Herzegovina submittedits Memorial,the Commission of
Experts submitted its Final Reportto the Human Rights Commissionin Geneva.
Also after this date, the SpecialRapporteur Tadeusz Mazowiecki continued his
reporting on the situation inBosnia and Herzegovina,a task taken over by Elizabeth
Rehn after Mazowieckiresignedin August 1995.Furthemore, after 15April 1994,
many additional citizens' organisations' (orNGO) reports were produced, aswell as
numerousbooks andarticleswhich focus on the war in Bosnia and Herzegovina.
Finally, and by no means less importantly,after April 1994the International
CriminalTribunal for the former Yugoslavia (ICTFY)becameeffective, resultingin
a continuingflow of well-substantiatedlegal documents. For al1of these reasons,the
Applicantis now in a much better positionto present its case than it was in April
1994.
The facts,as have been documentedby independent sources, provide a gruesome
account ofevents,which, unfortunately,easily fit the terms of the Genocide
Convention.
Par tI of this Reply deals with the factspertainingto genocide andthe legal
assessmentthereof. Therefore, PartII focuseson Article II of the Genocide
Convention, whichreads as follows:
"1nthe presenConvention,genocidemeansanyof thefollowingactscommittedwiththeintentto
destroy,inwholeorinpart,a national,ethnical,racialorreligiousgroup,as such:
(a) Killingmembersof thegroup;
(b) Causingeriousbodilyormentalhm to membersof the group;
(c) Deliberatelyinflictingonthe conditionsof life calculated toboutits physical
destructiinwholeorin part;
(d) Imposingmeasuresintendedto preventbirthswithinthegroup;
(e) Forcibly transfemngldrenof the groto anothergroup."
Chapter 5 will demonstratethat sections(a), (b) and (c) of this Article have been
violatedby the Serb side throughoutthe armed conflict in Bosniaand Herzegovina.
Chapter 7 will do the same, while focusingon "rape and sexual assault",which were
cornrnittedon a particularlyextensive scale.This chapter willalso demonstratethat
sections(d) and (e) were violated as part ofthe rape campaign.Reply ofBosniaand Herzegovina
Both Chapters5 and 7 make it perfectlyclear thatkilling, causingseriousbodily or
mental hm, deliberately infiicting conditionsof life calculatedto bring about
physical destruction,imposing measuresintended to preventbirths and forcibly
transfemng childrenwere continuously an integralpart of the way in which the Serb
side conductedthe anned confiict.These acts were not simplycommittedin the
context of a war of conquest aimedat seizingpower in certain territories;they
formed part of a campaignto establishan ethnically homogeneous,i.e. Serb, State
on, but not limited to, the territoryof Bosniaand Herzegovina. Thefact that the
Serb population of the thus conqueredareas was expressly nottargeted duringthe
anned take-over of towns, villagesand regionsand stayedthere to continue their
lives after the non-Serb population ofthe same areas was killed, tortured, raped,
detained or otherwiseforcedto leave, clearly illustrates the ethnicallymotivated
selectivityof the process.This is especially clearif one realizesthat the Serbs in
these areas usually formed the minority before the Serb take-over.The fact that the
destructionof non-Serb culturaland religious property at al1relevanttimes was part
of this patternmer supportsthe fact that this was not "merely"warfare in
violation of internationalhumanitarianlaw, which itwithout anydoubt also
consituted,but that the methodsused were specificallymeant to destroy, in whole or
in part the non-Serb population of Bosnia and Herzegovina.
23. The pattern was usually thesame al1over the territory of Bosnia and Herzegovina
and throughout the armed conflict:when the Serbforces would takeover a village,
town or region, on many occasions theSerb inhabitantswere warned in advanceand
would leave just before the take-over would begin, then the shelling would start,
apparently aimed at killing as many people as possible;followingthis, the remaining
inhabitantswould be detained, themen usuallybeing separatedfiom women and
children; during the course ofthe detentionprocess, andsometimesjust before it, the
social elite would be singled out, usuallyon the basisof lists which wereapparently
prepared in advance;the singled-outelite would bekilled immediatelyor tortured in
the worst possibleways; manyof the detained women would be randornly and
repeatedly raped and would,on some occasions,for these very purposesbe held in
special detentioncentres; the camps werenot restrictedto merely detainingpeople,
but turned out to be torture and killing centres;then either after sometime spent in
the detention centresor immediatelyafter the take-over,the remaining inhabitants
would be forced to flee their homesand property;the homes andproperty would be
eitherdestroyedor distributedto Serbswho wouldbegin using them as if they were
theirown; sometimesduring,but on many more occasions&r the armed take-over, Chapter4 -Section2
Thefacts reveal a clearpattern of
violations of the Genocide Convention
cultural and religious property and buildings wouldbe entirely destroyed,apparently
to make sure that no trace of non-Serb civilisationwould remain.
24. Al1of this would takeplace in a clearly organised way:the detention centreswere
apparently selectedbeforehand, thelists of elite were prepared beforehandand on
many occasions, busesand trucks came in immediatelyafter the take-overto
transport the remaining non-Serb inhabitantseither to detention centresor to places
outside the Serb occupiedtenitory. For the latter purpose, on some occasionstravel
documents werepreparedin advancein order to make surethat the non-Serbswould
be able to cross the border of Bosnia andHerzegovinaand to, forcibly, leave their
country altogether.Also, onmany occasionsnon-Serb houses were marked for
destruction beforehand.
25. Usually atleast severalof these elements,sometimesal1of these elements,were
present throughoutthe armed confiict,demonstratingthe organisednature of the
campaign. SometimesMuslimsand Croatswere even forcedto Wearidentification
marks to distinguishthem from the Serb population.
26. What becarneknown as "ethniccleansing"beganwith the cal1to unite "al1Serbs in
one State." It continued formany years in a practice of ethnicallybased massacring
and it found its horrific climaxwith the killingsin Srebrenica.As GeneralMladiC
clearly articulatedupon enteringthe fallen enclaveon 11July 1995:
"~erewe arein Srebrenicaon 1lth July1995.Ontheeve of yet anothergreatSerbian
holidaye presentthiscity tothe Serbianpeopleasa gift. Finally,after therebellion
againstheDahijas,thetimehascometotakerevengeon theTurk snthisregion.[cited
andtranslatedin ICTFY, Trial Chamber,CasesNo. IT-95-5-R61 & IT-
95-18-R61, Reviewof IndictmentPursuantto Rule 61, Transcript
testimonyRuez, 3 July 1996,p. 11,Annex 17; "therebellion againstthe
Dahijas"presumablyreferredto an uprisingin 1804in the Ottoman
Empireat which Serb officershad been killed].
27. The facts presentedin Chapter 5 and Chapter7 will not only reveal a clearand
detailed pattern,they will alsorevealthat the pattern reflectedthe destruction,in
whole or in part, of the non-Serb populationof Bosnia and Herzegovina.Reply of Bosnia and Herzegovina
3. The facts revealthat theFederal Republic of Yugoslavia bears responsibilifto yr
the acts committed
28. Part III of this Reply deals with theRespondent'sresponsibility for the genocidal
campaignin Bosnia and Herzegovina.In Chapter8 of Part III, Bosnia and
Herzegovina will present the factualbasis for its conclusionthat the Respondent
bears full responsibility for thegenocidalacts which have led theApplicantto
submitthis case to the InternationalCourt of Justice;this conclusionwill be
substantiatedin Chapter9 and, more specificallyin Chapter 10.In Chapter 8 the
Applicantwill not explicitlyaddress thefacts which pertain to the Respondent's
responsibilityregardingits obligations "to prevent" and "to punish"(includingto
extradite),since the Respondent'srelated violationsof the GenocideConventionare
largely similar to those establishing its responsibilunder Article III of the
Convention.Therefore, specific facts relatingto the failureto punish andprevent
will be included in Chapter 11,which addresses these violationsof the Convention.
29. As statedabove [Chapter 1, Section31the Respondentis never very specific in its
Counter-Memorialinits denial of facts and circumstancespresentedby the Applicant
in the Mernorial. Apartfiom this, the Respondent takes the position thatwhatever
atrocitiesor facts, be they genocidal ornot, may have occurred, these cannot be
attributedto the Respondent.This approachis, of course, untenable per se when the
obligations "toprevent" and "to punish"are at stake, sincethe allegations involved
immediately touchupon the Respondent's responsibility. But, as will clearly appear
fiom the facts presentedin Chapter8, this approachis equallyuntenablefor al1of
the Applicant'sother submissions pertainingto FRY'Sresponsibility.
30. Chapter 8 will demonstratethat in the relevantperiod of time (1991-1996)there has
not been one single instancein which the Respondentdid notplay a crucialrole.
31.
The preparationsfor the genocidalcampaign,amongwhichwere the provision of
anns to the Serb militia in Bosnia and Herzegovina,the transferralof rnilitary
equipmentto Bosnian Serb areas of Bosnia and Herzegovina,the reconstructionof
military warehousesin the same areas,the training and equippingof Serb
paramilitaryunits in Bosniaand Herzegovinaas well as in Serbiaproper, the
relocation and reorganizationof the Yugoslavarmy (JNA), al1of these were entirely
conductedby the Belgradeauthorities. Chapter -Section 3
Thefacts reveal that theFereral Rofublic
Yugoslaviabears responsibilityfor the acts committed
32. The sarnerole was played by the Respondentauthoritieswhen the armed conflict
actually broke out. The JNAplayed, mostlyin carefullyconcertedcooperation with
Serb pararnilitaryforces and the Serbian Democratic Part ySDS) of Bosnia,the key
role in the Serbtake-over of about seventy percent of theterritory of Bosnia and
Herzegovina,in the destructionof non-Serbcultural, religious, publicand private
property, in the organizedindiscriminatekilling of the non-Serb populationof Bosnia
and Herzegovinaand in the setting-up ofdetentioncamps. A substantialpart of these
actions took placebefore 19May 1992,on which date, accordingto the Respondent,
theJNAofficially "withdrew"from the tenitory of Bosnia andHerzegovina. The
JNAwas also indispensableto the creation andorganizationof the "Republika
Srpska"Army (VRS), which in practice was nothingother than a cosmetic operation
giving aface-lift to the 2nd MilitaryDistrictof the JNA.
33. Furthermore, Belgrade kept theJNAofficerson the Yugoslav pay-list,while lending
them to what became known as the "Republika Srpska" Army. Inadditionto their
payment, these officers were for al1practicalpurposestreated as officers of the
YugoslavArmy (VY). In additionto this support inthe form of officers, the
communication infrastructureof the former JNAremainedentirelyin place at the
disposalof the "RepublikaSrpska"Army,which thus was able to benefit from its
radar and other facilities throughoutthe armed conflict. Furthermorethe Yugoslav
Army kept sending troops acrossthe borderinto Bosnia andHerzegovinawhenever
the Bosnian Serbswould needadditionalfightingcapacity;this was the case with al1
major military operationsafter the so-called "withdrawal"on 19May 1992 and went
on until the very endof the anned conflict. Withoutthis continuedmilitary
involvement, the Bosnian Serbs wouid not have been able to carry on the armed
conflict for soany years; withoutthis support,the armed conflictwould havecorne
to an end long before themassacre atSrebrenicacould have taken place.
34. The Ministriesof the Interior of the Federal Republic of Yugoslavia and oS ferbia
played as crucial a roleas the YugoslavArmy. Before the war, the distributionof
arms to the Bosnian Serbs wascoordinated throughîhese state organs. During the
armed conflict, they directed thekilling carnpaignsof îhe Serbian paramilitary units.
Throughout thewar, theyinitiatedand executed militaryactions in Bosnia and
HerzegoWlathrough their armed policeunits. This Ministryalso saw to it that the
"Republika Srpska"Army retained its strength,for which purposethe Yugoslav
police would forcefullyapprehendyoungmen onthe territory of the Respondentand
hand them overto the Bosnian Serbmilitary.ReplyofBosnia and Herzegovina
35. Belgrade sawto it that its economyand the "RepublikaSrpska'"~economywere
entirely integrated.Among other things, theNationalBankof "RepublikaSrpska"
operated as a subordinatebranch ofthe NationalBank of the FRY. Fromthis
perspective, itisonly logical thattrade between thetwo entitieswas uninterrupted,
while, in particular,the trade relationsbetween BosnianSerbs and the weapons
industry in Serbiaproper were intense and ongoingthroughoutthe arrnedconflict. In
fact, in violation of the Dayton Accords,to thisry day the economiesof the two
entities are still completelyintegrated.
Al1of this shows thatthere is no basisin fact for the Respondent's repeatdenial
of its involvementin the genocide committedagainstthe non-Serb populationof
Bosnia and Herzegovina.If al1of this does not lead to the conclusionof State
responsibility,hen what is requiredto establishsuch a conclusion?In the Counter-
Memorial, especiallyin ChapterIII, the Respondent obviouslytries toturn things
upsidedom by complaining that theJNAwas a victim of Muslimand Croat attacks
and by promoting itself as aStatewhich called for peacethroughoutthe armed
conflict. Supportfor this totally unrealisticapproachis allegedlyto be found in the
sources referredto by the Respondentin this Chapter.More than half of these
sourcestuni out to be newspaperclippingsfiom Politiku, the Government-controlled
daily published inBelgrade.Many of the UN sourcesreferred tomerelycontain
statementsand letters fiom the FRYauthorities,reproducedfor UN purposes.None
of the sources referredto by the Respondentin fact contain any evidencedirectly
supporting the position that,indeed,the Respondentwouldnot have been directly
involved in the atrocitiesmmittedin Bosnia and Herzegovina against its non-Serb
population; letlone do any of these sourcesprovide evidence that the Respondent
does not bear any responsibilitywhatsoever,as is being argued in ChapterIII of the
Counter-Memorial.
In its denial of any and al1responsibility,the Respondent extensivelyquotes its own
statementsregardingthe Vance-OwenPlan [Counter-Mernorial,Section 3.5. A1.the
time of the Vance-OwenPlan, the FRY, accordingto its public statements, wanted
the "RepublikaSrpska"to acceptthis peace plan, sincethis acceptancewould lead to
the lifting of the Securityuncilsanctionsagainstit (to the SecurityCouncilit was
apparentlyclear that the behaviourby the "Republika Srpska"authoritieswas to be
attributedto Belgrade and vice versaH).owever, "RepublikaSrpska" leadership
apparentlyjudged this peace planas not being in the Serbinterestand rejected it.
Whateverthe relevanceof the statementsreproducedin this section ofthe Counter- Chapter4 -Section3
Thefacts reveal thattheFereraIRepublicof
Yugoslaviabearsresponsibilityfor the acts committed
Memorialmay be for this case, at least theycontaina clear, albeit understated,
acknowledgmentby the Respondent ofits role in the armed conflict:
"The citizensof Yugoslavia, Serbiaand Montenegro, have demonstthe highestdegree of
solidaritywithyou, going even beyondtheir mean[Counter-Memord, p. 285, para.
3.5.1.1.1.
This statementof 26 April 1993was elaborated uponin a subsequent statementof
the Governmentof Serbia, issued on6 May 1993:
"Since the conditionsfor peacehave been met, theGovemment also agreed, thatany further supply
of aid to the Republic of Srpskashouldbe limitedto food and medicinesin such quantitiesas the
competentministrieswill determine.The Govemmentof the Republic of Serbia also believes that,
as the conditionsfor establishingpeacehave been met,any further aid in funds, fuel,raw matenals
etc. provided untilnow witheat sacrificesby the Republic of Serbiaitself, is no longerjustified."
[Counter-Memorial,p. 288, para. 3.6.1.1.1.
Chapter 8 of this Reply explainsthat atthis point the Respondentis in actuality
misquoting itselfin a not so Freudianmanner by replacingthe word "space" with the
word "peace" [Reply, Chapter8, Section 101.The same Chapterwill also
demonstrate the true extent of this "solidarity"and of these "sacrifices"that
Yugoslaviahas made.
38. That the quoted statementswere false and that the"furtheraid" was not stoppedat
all, is demonstratedby the Respondentitself, where it relates that on 30 June 1994,
more than one year later, there was apparently the needfor a sirnilarstatementto be
issued by its govemment.This time the "Republika Srpska"leadershad rejectedthe
peace plan of the Contact Group, which led Belgradeto decide:
"- to break off political and economicrelations withthe Republic of Srpska,
- to ban the membersof the leadershipof the Republicof Srpska (the Assembly, the Presidency,
theGovenunent) fiom stayingin the temtory of the FR Yugoslavia;
- The border of the FR Yugoslavia shallas of todaybe shut to al1transports destined forthe
Republic of Srpska with the exceptionof food,clothing andmedici[CouIIter-
Memorial,p. 289, para. 3.6.1.4.1.
Apart from the fact that none of these three decisions havebeen executedin practice
(on the contrary,they have been blatantly disregardeda ,s will be demonstrated in
Chapter 8), the Respondentfails to explainthe need for this statement in light of the
earlier ones issued in 1993.Reply ofBosniaandHerzegovina
39. At best, these statementscan be seen as a sign of disagreement betweenthe
leadershipin Belgradeand in the "RepublikaSrpska"on some issues. Thefact that
the ties betweenthese two entitieswere never cut to anyextent whatsoevershows
thatthis disagreementis nothingmore than that whichsometimesoccurswithin the
ranks of any govenunent, political party orpoliticaimovement.The facts presented
in Chapter 8 will show the continued,stnicturedand substantiaiinvolvementof the
FRY authoritiesin the anned conflictin Bosnia and Herzegovina, an involvement
which did not cease even afterthe signingof the Dayton Accords. Chapter- Section 1
Introduction
PARTII
FACTS CONSTITUTING GENOCIDE
CHAPTER 5
THE BASIS IN FACT FOR FINDINGTHAT GENOCIDEWAS COMMITTED
1. Introduction
1. The armed conflictin Bosnia and Herzegovinais arguably the most extensively
televisedconfiictin history, especiallyas far as the media in Europe andNorth
Arnericaare concerned. However, notelevision imageis able to conveythe true
extent of the atrocitiescommitted againstthe non-Serbsin Bosniaand Herzegovina.
Neither are televisionpictures able to demonstrate thepattern and the level of
organisationof the crueltiescommitted.
2. Al1non-Serb citizensof Bosnia and Herzegovina havetheir own storyto tell about
this armed conflict.Very few have escapedvictimisationin the Serb assault on their
people. Almost each and everyoneof them sufferedlosses amongtheir family
members,relatives, neighboursand friends.Al1of these individual stories,taken
together, would without any doubt paint a horrific picture ofthe armed conflict and
also demonstratethe true intent and extentof the Serbassault.
3. In this Reply, the Applicant willnot try and rely on televisionimages,nor on
individualwitness statements. The Applicantwill focus on the accountsof
independent observerswho reported, in a systemisedmanner, on the atrocities
committed againstthe non-Serb population ofBosnia and Herzegovina.
The frameworkfor the presentationof the evidenceis, for obviousreasons, largely
4.
based on the Genocide Convention.In this Chapterthe presentation willfocus on
Article II and follow itsder. However,as a de, the facts related are not strictlyReply of Bosnia and Herzegovina
conhed to a specificcategory of ArticleII. In a sense,it is even somewhatarbitrary
to define certain behaviour as,for instance, "causingseriousbodily or mental hm"
or "deliberately inflictingon the groupconditionsof life calculatedto bring about its
physical destruction". TheApplicant has organisedthe materials inthis Chapter
under those provisionsof the Convention to which the presented facts are most
closelyrelated. This,however,may not be interpreted asa de of exclusion;in other
words, if the Applicant inthis Chapterrelates certain facts under, for exarnple,the
heading of "causing seriousbodily or mentalhm", this does not mean that these
very same facts are not relevant as supportive evidenceto violationsof other
categoriesof the Genocide Convention. Thefacts shouldbe interpretedon their own
merits and also as part of the overallpattern.
5. This Chapterwill, first of dl, establish violationsof the first three categoriesof
Article II:
(b) Causingeriousbodilyormentalharmto membersof thegroup;
(c) Deliberatelyinflictingon theconditionsof life calculatedto bringaboutitsphysical
destructioninwholeorin part;
The succeedingtwo categories of ArticleII:
(d) Imposing measureisntendedto preventbirthswithinthe group;
(e) Forciblyansfemngchildrenof thegroupto anothergroup;
are dealt with in Chapter7 of this Reply.
6. Chapter 7 is in its entiretydedicatedto "Rapeand sexualassaultas specificmeans of
cornrnittinggenocide". The Applicanthas decidedto devotea separateChapterto
these issues because of the enormityof the atrocitiesinvolvedand because of its
wish to Mer developthe legal significanceof rape underthe Genocide
Convention. The consequence ofthis approachis that thefirst three categoriesof
Article II areexaminedboth in this Chapter[Sections2, 3 and 41and in Chapter7.
The succeedingtwo categoriesof the mentionedArticle areby themselvesmore
closelyrelated to issues of rape and sexualassault. They,therefore, areonly
considered in Chapter7.
7. After exarniningthe facts in the context ofthe three separatecategones of Article II,
the Applicant will, in this Chapter,turn to a more thematicapproachby separately
addressing the nature,the scale and the pattern ofatrocities comrnittedby the Serbs Chapter 5-Section 1
Introduction
in the camps andin the other detention facilities[Section51.The camps,in many
ways, constitute the culminationof the campaign ofethnic purification.The cruelties
committed there continuouslyviolated every single category ofArticle II. The
genocidal intent of the Serbs becomes particularly clear in the descriptionof camp
practices, due to theirstrikingsimilarityal1over the territory of Bosnia and
Herzegovina.This similarity cm, amongother things, be inferred from the process of
selectingpeople to be detained(the only criterion for detentionbeing ethnicity),fiom
the fact that the detention facilitiesformed an indispensablelink for detentionin the
process of ethnic cleansing,fiom the fact that many of the campswere manifestly
operated as part of a destructionpolicy and fiom the fact that, as arule, the cruelties
against the non-Serbs detainedin the camps were committedin a discriminatorykey,
based onethnicity. TheApplicant is convinced that thehistory of the camps by itself
would sufficeto demonstratethat,indeed,the Genocide Convention has been
violated continuouslyand on a very extensive scale.As will be related in Section 5
the TrialChamberof the ICTFY cameto the sarneconclusion in its confirmationof
the KaradiiCand MladiéIndictrnentsfor genocide,in which corfinnation the Trial
Chamberfound that the highest politicaland militaryleaders actively participated in
these crimesof genocide [see below, Section51.
8. Although theSection on Camps readsas the ultimatehorror story,the story of the
suffering of the non-Serbs of Bosnia and Herzegovina is by far not restrictedto the
acts comrnittedin the camps. Eachvillage, town or region touchedby the Serb
assailantsis in itselfroof of the extensiveviolationof the Genocide Convention.
The Applicantwill not endeavourto begin to tell al1of these stories,but will devote
three Sectionson three areas which are relevantfor variousreasons:Zvornik
[Section61,since it was taken over by the JNA in the early monthsof the armed
assault; Prijedor [Section71,because it so clearlyprovidesthe pattern of the
atrocities,which was repeated whereverthe Serbswouldtake over towns or villages
in Bosnia andHerzegovina; Srebrenica[Section 81becauseit forms, towardsthe end
of the armed conflict, an indisputedmode1of genocideand at the sametime the
most horrible climax of the Serb campaign againstthe non-Serbsof Bosnia and
Herzegovina.In al1of these three regions al1categoriesof Article II have been
violated systematicallyand on a large scale.
9. This Chapterwill end by focusingon "ethnicpurification",with which conceptthe
armed conflict in Bosnia and Herzegovinais widely associated [Section 91.
In dl, this Chapterwill demonstratethat,whatever angleone choosesto analyzethe
acts comrnitted,every imaginableapproachto the facts inevitablyleadsto theReply oBosnia and Herzegovina
conclusion, thatthese atrocitieshave been cornmittedwith the intent to destroy, in
whole or in part, the non-Serbpopulationof Bosniaand Herzegovina.
2. Killing members of the group
Introduction
10. The evidenceprovided below demonstrates that during the war in Bosnia and
Herzegovina large numbers of non-Serbs werekilled. The killings of non-Serbswere
not confinedto any one time period during the war or any one area of Bosnia and
Herzegovina.The evidencedemonstrates that thousands of non-Serbs were killed
fiom 1992to 1995 - showinga consistent patternover four years. Theevidencealso
demonstrates thatmany non-Serbs were killedthroughoutthe territory of Bosnia and
Herzegovina. Killingswere a consistent patternin al1parts of Bosniaand
Herzegovinawhere Serbs mountedtheir attacks -from the north-westerntown of
BihaCto the north-easterntown of Bijeljina,throughoutthe Drina river valley in
eastern Bosnia, to Sarajevo in the centreand Mostarin the south. The patterns of
killings were consistent throughout thewar and throughout theterritory of Bosnia
and Herzegovina.
11. The killings of non-Serbs,as evidencedin this Section,demonstratethatit was not
merely the policy of the Respondentto arrest non-Serbs,to detainthem or to deport
them witha view to creating a homogenousspacefor Serbs.Rather, one can infer
fiom the facts that killing was apolicy, executedin a consistentway, to eliminate
part of the non-Serbpopulationin Bosnia and Herzegovina. Chapter5-Section 2
Killing membersof thegroup
In its Memorial,the Applicant has provided evidence, based on the then available
information, of the patternof killings of non-Serbs during the war in Bosnia and
Herzegovina [Memorial,Section2.2.2, pp. 30-3 71.That evidence showedthat
killings were an integral part of the policyto remove non-Serbs from what was
designatedto become GreaterSerbia. Since the Memorial,additional evidence has
become available of killingsthat occurred before thefinalization of the Memorial
(April 1994). Moreover, after theMemorial wasfiled, the killing of non-Serbs did
not stop. After April 1994,Serb forces continued to kill non-Serbs in large numbers,
culminatingin the dramatic eventsin Srebrenica in July 1995,where thousands of
Muslims were killed.Both the additional evidencerelating to the killings before
April 1994and the evidence demonstrating killings after April 1994are produced
below.
In the Counter-Memorial,the Respondentsuggests thatthe killings in Bosnia and
Herzegovinawere limitedin number and merely collateralto a policy of expulsion.
The Respondentstates that the events thattranspired in Bosnia and Herzegovina can
not be qualified as genocidebecausethe Serbs in fact onlytried to "rid certain
Bosnian areas of Muslims"and to have members of ethnic groups "expelledfrom
specific territories",and that, while these aims were accompaniedby "sporadicacts
of murder", there would have beenno attempt to exterminatemembersof the ethnic
groups [Counter-Mernorial,p. 12, para. 1.1.3.231.The legal flaws in this argument
are dealt with in Chapter 2 of this Reply. The evidence presented below
demonstratesthat this argument can neither be sustainedon factual grounds. The
evidence demonstratesthat the acts of killing were not "sporadicacts of murder" as
some sort of collateral effect os the expulsionof non-Serbs. Rather,it can be inferred
from the facts that large numbers of non-Serbs were killed by acts that followed
consistent patterns, thatthe killings aimed to eradicate, anddid so successfully,part
of the non-Serb populationin Bosnia and Herzegovina.
14. The Respondentalso arguesthat the destructionof Muslim lives "cannotbe an
element ofthe military and ethnocentricstrategy of the Bosnian Serb forces because
the loss of life is a consequence ofthe civil war" [Counter-Memorial,p. 39, para.
1.3.2.8.1.In what appearsto be a similarargument, the Respondentstatesthat
shooting and shelling "often occurredin responseto actions fiom abused non-
military"[ibid p,ra. 1.3.2.11.These argumentsseemto suggestthatnon-Serbs were
killed in a military contextand thattherefore, therewould exist some sort of military
explanationor evenjustification forthe killings. Again, the disputablelegal merits of
this proposition are discussedin Chapter2 of this Reply. Butthese propositions areReply of Bosnia and Herzegovina
also flawed on factual grounds.There is simplyno evidencethat could demonstrate
that largenumbers of men were killed in combat or werekilled becausethey poseda
military threat to the Serbs. Inany case, the abundantlyavailableevidenceof mass
executionsand killings in camps, detailedbelow,cannot possiblybe explainedin
terms of a rnilitarythreat. Referringto the killing of men in camps [see Section 5 of
this Chapter], the United Nations Commission of Experts stated that whii ereceived
many reports showingthat scoresof men were detained and subsequentlykilled,
"rarelydidreportsincludeanyinformatto suggestthatthoseconsidered capef fightinghad
everactuallycommittedhostileactsorhadorganizedto doso. Infact,manyMuslim villagers
simplysurrenderetheweaponstheyhadupon aninitialdemandbytheSerbforcesintheregion.
Afterthatsurrendert,hevillagerswerein manycasesdetain[United Nations,Final
Report of the Commissionof Experts, SI19941674fAdd.2 (Vol. IV), 28 Dec.
1994, Annex VIII, "PrisonCamps", pp.12-13, para.351.
The Respondentdoes not provide any credible evidenceto suggestthat the
Commissionof Experts wasmisinformedon this point. The lack ofsuch evidence
further strengthensthe conclusionthat thekillingsaimedto eradicate,and succeeded
in eradicating,part ofthe non-Serb populationin Bosniaand Herzegovina.
15. The remainderof the part of the Counter-Memorial dealing with "Allegedkilling"
[Counter-Memorial,p. 38, para. 1.3.21containsan array of propositionsto the effect
that the evidenceof killings is unreliableor simplyuntrue. Some of the specific
assertionsof the Respondentare dealt with below in connectionwith particular
incidents of killing [seeparas. 16and 171.Othersare reviewed and rebuttedin
Sections 6 and 8 of this Chapter, dealing withthe killingsin Zvornik and Srebrenica,
respectively. To remove any doubtsthat may exist as to the reliabilityand validity of
the claim that patternsof killing of civiliansexisted,additional evidencewill be
provided belowto supportthe existenceof suchpatterns.This evidencehas been
reviewed and foundreliable by distinguishedauthorities,as referred to below.
16. The killings of non-Serbs in Bosnia and Herzogevina showed certain consistent
patterns. The evidencepresented here willbe structuredaroundthree suchpatterns:
the killing of civilians,the killing of men, and thekilling of elite. Whilethese
categoriesto some extent overlap,they constitutedistinct patterns inthe killings of
non-Serbs in Bosnia and Herzegovina.
Killing of civilians
82 Chapter5 -Section2
Killing membersof thegroup
The killing of civilians occurred in most if not al1places that were targeted and
eventuallytaken over by Serb forces.The UnitedNations Commissionof Experts
describesthe common pattern as follows:
>t.
First, Bosnian Serb paramilitary forces, often with the assistance of the JNA, seize control of the
area. In many cases, Serbian residents are told to leave the area before the violence begins. The
homes of non-Serb residents are targeted for destruction andcultural and religious monuments,
especially churches and mosques, are destroyed. Second, the area falls under the control of
paramilitary forces who terrorize the non-Serb residentswithomkillings,rapes andlooting.
Third, the seized area is adrninisteredby local Serb authoritiin conjunction with
paramilitary groups.uring this phase, non-Serb residents are detained, beaten and sometimes
transferred to prison camps whererther abuse, includingmass killings,have occurred (...)"
[United Nations, Final Report of the UnitedNations Commissionof Experts,
S/1994/674 (Vol. l), 27 May 1994,Annex IV, p. 9, para. 28, emphasis added].
The indiscriminate killing of civilians lasted throughoutthe war. The Trial Chamber
in the Tadi6 case found evidenceof such killings in early 1992.Between March and
May 1992,before the announcedwithdrawalof the JNAon 19 May 1992,the JNA
attacked andtook over several areas that constitutedmain entry points into Bosnia or
were situated on major logisticsor communicationslines, such as Bosanski Brod,
Derventa, Bijeljina, Kupres, FoCa,Zvornik, ViSegrad,Bosanski Samac, Vlasenica,
Brcko andPrijedor. The Trial Chamber found thatin general, the military take-overs
involved shelling, sniping and the rounding up of non-Serbs in the area. These tactics
often resulted in civilian deaths [ICTFY,Trial Charnber, Opinionand Judgment,
Prosecutor v. Duib Tadik,CaseNo. IT-94-1-T, 7 May 1997,p. 46, paras. 125-1261.Reply of Bosnia and Herzegovina
18. The Trial Charnberin the case againstKaradz'ié andMladiéfound that more than
three years later, the indiscriminatekilling of non-Serbcivilianshad not stopped.
Through shelling before thetake-overof Srebrenicaand throughthe acts committed
during and after the take-over,thousandsof non-Serbswere killed [ICTFY,Review
of the Indictments Pursuantto Rule 61of the Rules of Procedure and Evidence,
Prosecutorv.KaradZié andMladié,Cases No. IT-95-5-R61and IT-95-18-R61, 11
July 1996,pp. 9-10, para. 251.
19. The killing of civilianswould start in the first stage of theattack on a certain areaor
town: the shellingof regions or towns before theywouldbe taken-over.It was a
consistentpattern that before aparticular area would fa11under the controlof
paramilitaryforces, it would be subjectedto shelling.This shellingcausedmany
deaths among civilians,throughout theterritoryof Bosnia and Herzegovina.The
evidence demonstrates that shelling killed non-Serb civilian is areas suchas
Srebrenica, iepa, and Zvornikin easternBosnia;in the capital Sarajevo;in the
toms Travnik, Turbe and Bugojnoin central Bosniaand Herzegovina; andin Bihak,
in the northwesternpart of Bosnia of Herzegovina. The pattern wasthus consistent
throughout the territoryof Bosnia and Herzegovina.The pattern was also consistent
in time, from 1992through 1995.
20. This pattern was identifiedby the Trial Charnberof the ICTFY:
"Throughouttheconflict,thestrategyof BosnianSerbforces consin indiscrirninatargeting
civilians.uchwas thecaseduringtheentiresiegeof Sarajevo,and attirnesinthesafeareasof
Srebrenica,pa, GoraZdeB, ihaCandTuzla.FromJuly 1992to July1995,manycivilian
gatherings,particulaatstadiurnorinpublicsquares,weresubjectto shellingbyBosnianSerb
militaryforceswith theobjectokillinterrorisianddemoralisingthecivilianpopulation."
[ICTFY, Reviewof the IndictmentsPursuantto Rule 61 of the Rules of Chapter5-Section2
Killingmembersofthegroup
Procedure and Evidence,Prosecutorv. Kara&iBand Mladit, Cases No. IT-95-
5-R61 and IT-95-18-R61,11 July 1996, pp. 9-10,para. 18, emphasis added].
An overviewof killings of civilians follows,showing the consistencyin time and the
consistency throughoutthe territory of Bosnia and Herzegovina.
21. Non-Serb civilianswere indiscriminatelykilled in April 1992in FoEaCountyin
south-eastemBosnia and Herzegovina.For example,the Commission ofExperts
reports:
"~etween15April1992and20 April1992,ninepeople werekilledinthevillageof SusjeSnoby
Arkan'smen.Theninevictimswere elderlyanddidnotwantto leavetheirhomespnited
Nations, Final Reportof the Commissionof Experts,Sl19941674lAdd.2, Vol.
1, Annex III.A, "Special Forces", 28Dec. 1994, p. 145,para. 4161.
22. In the early stageof the war, many civilianswere also killed in the northern Prijedor
area. In May 1992,the village ofHambarinewas attackedwith heavy artilleryfire
and tanks. Mazowieckireports that probablyas many as 1,000 people diedin this
attack [United Nations,Situationof HumanRights in the territov of theformer
Yugoslavia, sixthperiodic report submittedby Mr. TadeuszMazowiecki, Special
Rapporteurof the Commissionon HumanRights,Al4716661,Sl24809, 17Nov.
1992,p. 8, para. 17(c)].
23. On 24 May 1992, Serbforces shelled the predominantly Muslim town of Kozarac,
some ten kilometreseast of Prijedor.This attack wasalso mentionedin the
Applicant'sMemorial [Memorial,p. 32, para.2.2.2.1 11.In its Counter-Memorial, the
Respondentseeksto undermine the relevanceof the events inKozaracby statingthat
"the attack on Kozaracwas part ofthe armed conflict"and that anearlier statement
to the effect that 5,000 persons werekilledcould not be proven [Counter-Memorial,
p. 50, para.1.3.2.461.Sincethe time of the filing of the Memorial,a number of
sources have confmed the shellingof Kozarac.The Commission ofExperts reports:
"on 24 May[1992], Serbiantanks,mortarsandartillev barragedthevillage.Thissiegelastedfor
threedays,andsurvivorscalculatethat2,000villagerswerek[UnitedNations,Final
report of the UnitedNationsCommission of Experts,SI19941674(Vol. 5), 28
Dec. 1994, Annex IX,p. 39, para. 1731.
24. Since then, the Trial Chamberin the TadiCCasebefore the ICTFY, has made the
sarneassertion:Reply of Bosnia andHerzegovina
"on24 May 1992,thepredominantly Muslitownof Kozaracwasattackedby BosnianSerb
forces,withanartillerybombardmet hich lastedu26iMay 1992andextendedto surrounding
Muslimvillages. Asa resultof thisshellingmanydwellingsweredestroyed, overabitants
werekilledandtheremainder,includingthosefromsumoundiMuslimvillages,wereexpelled,
thetownanditvicinitythenbeing occupiedby BosnianSerbforce[ICTFY,Opinion and
Judgment, Prosecutorv. Duiko Tadik,Case No.IT-94-1-T,7 May 1997, p.
204, para. 5651.
25. The figure of 800 killed is likelyto be a conservativeestimateon the part of the
Trial Chamber,as comparedto the Commissionof Experts'figure of 2,000 and the
very early estimateof 5,000.However,whatever the exact number, thenature of the
attack as an indiscriminateassaulton the civilianpopulation of Kozarachas been
confïrmedby each of these authoritativesources.That the killings tookplace in what
the Respondent calls an "armedconflict"[Counter-Memorial,para. 2.2.2.111
obviouslycannot be relevant tojustie these killings,as it was the Respondentitself
that initiatedand effectuatedan armed attack.
26. In June 1992. Serb forcesshelled thevillage of Sivci, closeto Prijedor. The
Commission ofExperts reportsthat between 45and 120 people were killed during
that attack [UnitedNations,Finalreport ofthe UnitedNationsCommissionof
Experts, S!1994/674(Vol. 5), 28 Dec. 1994,hex X, p. 36, para. 2321.
27. In the sarnemonth, Kotor Var05county,locatedin the north-central partof Bosnia
and Herzegovina,60 kilometresouth-eastof Prijedor,wasbesieged.On 12 June
1992, artillerydestroyed thevillagesof HrvaCaniand Bilice.The Commissionof
Experts reports that over 500 people werekilled [UnitedNations, Finalreport of the Chapter 5-Section2
Killingmembersof thegroup
UnitedNations Commissionof Experts, SI19941674(Vol. 5), 28 Dec. 1994,Annex
X, p. 21, paras. 106-1071.
28. The shelling and killing would continuein 1993,and indeedby then had become a
consistent pattern. TheUnitedNations team in the Cerskaenclave reported that on
11 March 1993, in the villageof KonjeviCPolje, at least 150 women and children
were killed in the shellingof a group of people gatheredaround two UNPROFOR
vehicles [UnitedNations, Situation of HumanRights in the territory of theformer
Yugoslavia,report submittedbyMr. Tadeusz MazowieckiS ,pecial Rapporteur of the
Commissionon Human Rights, ElCN.411994135 , May 1993,pp. 5 and 7, paras. 12,
14 and 221.
29. On April 12, 1993, artillery attacks killed56 people andleft 106people wounded
[Situationof Human Rights in the Territoryof the Former Yugoslavia,Periodic
Report submittedby Mr. TadeuszMazowiecki,Special Rapporteurof the
Commissionon HumanRights, 5 May 1993,ElCN.41199413p , . 9, para. 381.At least
15 children were killed [United StatesDepartmentof State, Bureau of Public Affairs,
Dispatch, Vol. 40, Number 30, July26 1993,p. 546, Annex 181.
30. In themeantime, the capital city of Sarajevowas continuouslyshelled by Serb
forces. Asjust one example,on 9 and 10November 1993,mortar attacks by Serbs
killed 12people in Sarajevo [United Nations,Situation of Human Rights in the
territory of theformer Yugoslavia,Fzfthperiodic report submittedby Mr. Tadeusz
Mazowiecki, Special Rapporteur of the Commissionon Human Rights,
ElCN.411994147,17Nov. 1993,p. 4, para. 141.Reply ofBosnia and Herzegovina
31. The pattern of shelling and killing of civilianswould continue in 1994.On 23
January 1994,in the city of Tuzla in north-easternBosniaand Herzegovina,
civilians, including four children, were killed in attackswith clusterbombs and anti-
personnel rockets vnited Nations, Situation ofHumanRightsin the territory ofthe
former Yugoslavia, sixthperiodic report submitted by Mr. TadeuszMazowiecki,
Special Rapporteur of the Commissionon HumanRights,Ai491641,SI199411252,4
Nov. 1994, p. 10,para. 311.
32. Two months later, shelling killed civiliansin the town of Maglaj - located on the
banks of the river Bosna some 50 kilometrewest of Tuzla. In March 1994, some
1,300 shells landed in the town on a single day,killing, among others, five medical
personnel at a health-centre.On 26 July, 1994,it was reported thateight people were
killed in a mortar attack there [ibid.,p. 10,para. 301.
In June 1994,some 50 kilometre south-westof Maglaj,similar killings took place in
Travnik, Turbe andBugojno - located in centralBosniaand Herzegovina.
Mazowieckireported that Travnikhad been subjectedto:
"heavy shelling and other forms of attack during recent months. Shelling in the last week of June
1994claimed at least nine lives. Among the targets was the hospital.Heavy shelling of civilian
targetswas again noted in August. During the week of 8-14 June 1994,it was reported that some
15women and chiidreninnearby Turbe were killor injured in military attacks. In Bugojno,
during the same period, some eight people, includinga child, were killedin attacks by Bosnian
Serb forces...)[United Nations,Situationof HumanRightsin the territoryof
theformer Yugoslavia,report submittedby Mr. TadeuszMazowiecki, Special Chapter 5- Section2
Killing members of thegroup
Rapporteur ofthe CommissiononHumanRights,Ai491641, SI199411 252, 4
Nov. 1994,p. 10,para. 311.
34. Similar deadly attacks whichhad beencarried out in BihaC,more than 150kilometer
north-west of Travnik, in the northwestern cornerof Bosnia andHerzegovina,were
reported in November and Decemberof that year. Mazowiecki states:
"12. The intense attack concentratedon BihaEtown is being perpetrated primarily by Bosnian Serb
forces, with substantialtical (including air) support providedby the forces of the so-called
'Republic of Serb Krajina'. The assault onCtown is being conducted with no obviousconcem
for the safety of civilians.The town has been pummelledby shells and other missiles causing
considerable loss of life and injuries. late November [1994]the battle ftont came to a halt
within a few hundredetres of the town's onlyhospital and the safetyof some 2,000 patients were
endangered. On 13 December a mortar attack impacted near theHVO Brigade headquarters in the
tom, killing a four-year-old child andinjuring two civilians. Shelling, at the rate of two to three
attacks each day, has,nce then, continuedto claim the livesof civilians in thetown centre."
[United Nations,Situationof HumanRightsin the territoryof theformer
Yugoslavia,reportsubmittedby Mr. TadeuszMazowiecki,SpecialRapporteur
of the Commission on HumanRights,E/CN.4/1995/57,16 January 1995,pp. 5-
6, pars. 13-16].Reply of Bosnia and Herzegovina
35. In some places, shellingwas accompaniedby sniping.This was the cause ofthe
killing of thousandsof civiliansin Sarajevo.The Trial Chamberof the ICTFY found
that:
"[~lrom5 April1992to 31May 1995thecityof Sarajevowas besiegedby BosnianSerbforces.
Duringthisperiod,the citywas subjectedto a systematicand desnipingcarnpaignt,he
outbreakof which allegedlyoccurred6April1992 fromtheheadquartersf the Serbian
DemocraticParty(SDS) attheHolidayInn.Thesnipers, whowere memberof theBosnianSerb
army,usedverysophisticated weapontso shootpeople whileontheir dailybusiness.Casualties
includedwomen,childrenandtheelderly.[ICTFY,Reviewof the Indictrnents
Pursuant to Rule 61 of the Rules of Procedureand Evidence,Prosecutor v.
KaradZiCandMadiC, Cases No.IT-95-5-R61 and IT-95-18-R61,11July 1996,
p. 10,para. 191.
36. In the first six months of 1995,a combination of shelling and sniping killed many
civilians in Sarajevo.Mazowieckireportsthat 2 young girls were killed on 23 March
1995;that in late April civilianswere "killedor injured on an almostdaily basis by
shelling or sniping";that on 7 May shellingby Serbskilled 9 people; thatin the
whole month of May 1995,41 civilianshad reportedlybeen killed; that on 18 June
1995, 7 people were killed "whena shell fired by the Serb forces landed in the
western suburb of Dobrinja"; thatbetween 18 and23 June 1995,22 civilianswere
killed by shelling;and that shellingby the Serbsduringthe weekendof 1-2July
1995 killed 13 civilians.At the time Mazowieckiwrote his report, the targetingof
civilianareasresulting in deathand injuryto the non-Serb populationcontinued
[United Nations,Situationof HumanRightsin the territoryof theformer Yugoslavia,
Periodic reportsubmittedby Mr. Tadeusz MazowieckiS , pecialRapporteur ofthe Chapter5 -Section2
Killingmembersof thegroup
Commissionon Human Rights, ElCN.411996165 , July 1995,pp. 14-15, paras. 66-
701.
37. The above examplesshow a clear and consistent pattern ofkilling of civilians
throughout the war and throughoutthe territory of Bosnia and Herzegovina.The
above evidence might lead one to the interpretationthat the shellingwas only a
means to gaining controlover certainareas, toms or villages, and that the killings
by shelling were merelycollateralto the Serb strategy oftaking over parts of Bosnia
and Herzegovina.This interpretation wouldbe incorrect. Killingof civilianswas an
objective independentof the objectiveto control certain areas. This became fully
evident when the Serbs actuallydid gain control over a region, town or village. For
at that moment, the next stagein the pattern of killings would start. During and
immediatelyfollowing the take-over oftowns or cities, Serbswould randomly kill
large numbers of civilians. Many others, in particular men, were killed in camps
where they were brought afier the take-over. The UnitedNations Commission of
Experts describesthat once an area would fall under the control of paramilitary
forces, these forces would:
"terrorizthenon-Serbresidentswithrandomkillings,rapesandlooti(..theseizedareais
administereby localSerbauthorities,enin conjunction wiparamilitagroups."[United
Nations, Final report of the UnitedNations Commissionof Experts, SI19941674
(Vol. l), 27 May 1994,Annex IV, p. 9, para. 28, emphasis added].
38. Specificallywith regard to the activitiesof paramilitarygroups,the Commissionof
Experts found the following pattern:
"Uponenteringa village,sometimesunderthecoverof shelling,particuinthosecounties
wheretheywere operatingsimultaneouslywith the JNSe~elj'sandArkan's troos ouldbegin
theireignof terror.Inanoverwhelmingmajorityof thecountiesinwhichSe~elj'sand Arkan's
troopswereoperating,thereareallegationsof killingof civilians,rape,looting,destructionof
privateor culturalproperty,prisoncamps."[United Nations,Final report of the
UnitedNations Commissionof Experts, SI19941674(Vol. l), 27 May 1994,
Annex III.A, p. 27, para. 1051.
39. An illustrative and dramatic example of what happened oncea town had fallen, is
the attack on Kozarac. The attack andresulting killingshave been described in paras.
15 and 16 of this Section. Whenthe Serbian forcesenteredthe village at the end of
May 1992, it became clear that these killings were not collateralto the attempt to
gain control over the town.Many people were shotin their homes. Those who
surrenderedwere taken to the soccerstadium. Some men were randornly shot. UponReply of Bosnia and Herzegovina
their arrival at the stadium,the women and men were separated anddelivered to
camps. Many were killedin the process. In the camps many more would be killed
[UnitedNations, Final report of the UnitedNations Commissionof Experts,
SI19941674(Vol. l), 27 May 1994, AnnexIII, pp. 154-155,paras. 484-4851.
40. Similar events took place in many differentparts of Bosnia andHerzegovina. Like
the killing by shelling,the killing of civilians oncean area was taken over by Serbs
existed throughout the territory of Bosnia and Herzegovina.This can be visualized
by reports of killings by Se~elj'sand Arkan'stroops. These troops killed in Prijedor,
in the north of Bosnia and Herzegovina.They also killed in countiesof towns that in
a clock-wisemovement cover mostof the territory of Bosnia and Herzegovina:from
Prijedor, east to Banja Luka, Derventa,Maglaj,Bosanski Samac,BrCkoand to
Bijeljina, more then 200 kilometreeast of Prijedor, in the far north-easterncorner of
Bosnia and Herzegovina.FrornBijeljinato the southto Zvornik, Bratunac,
Srebrenica,Rogatica, ViSegrad,FoEaand Gacko inthe south-eastof Bosnia and
Herzegovina. From there, to the northand north-westof Gacko to VrapEiCi,Kupres
and Sarajevo [UnitedNations, Final report of the UnitedNations Commissionof
Experts, SI19941674(Vol. l), 27 May 1994, AnnexIII.A, p. 196,Note 1611.In al1
of these places, the killing appearedrandom, butit was the random killing of
civilians itself that was a consistent pattern.ecificdetails of killings include the
following :
41. In April 1992, Serbs took the eastern town of Zvornik. Pararnilitarygroups
committed random executionsafter enteringZvornik [United Nations,Final report of
the UnitedNations Commission of Experts, SI19941674(Vol. l), 27 May 1994, Chapter 5-Section2
Killing membersofthe group
Annex IV, pp. 10-11, para. 411.After the town was taken, paramilitarytroops
conducted a house-to-housesearch for Muslim men.A witness reported to Amnesty
International that Arkan's men rounded up a group of residents on 10April:
"They were taken out into the orchard and forcedto lie down. There were 15 captives in total, nine
women and six men.The men were killed, andthe women were locked in the cellar of a house.
After three days, peoplefrom a nearby village discovered the [UnitedNations
Commissionof Experts Established Pursuantto Security CouncilResolution
780 (1 992), Final Report, SI19941674lAdd.2(Vol. 1),Annex III.A, para. 5781.
The Commissionof Experts Statesthat "2,500men were killed on 9 and 10April
[1992]" [United Nations,Commissionof Experts EstablishedPursuant to Security
Council Resolution 780(1992), Final Report, S/1994/674/Add.2(Vol. 1),Annex X,
para. 3871.These killings are Mer detailedin Section 6 of this Chapter.
42. The next month, 25 kilometressouth of Zvornik, civilians were executed when the
village of Zaklopaca (near the town of Vlasenica)was taken. Mazowieckireports
that the village had a mainly Muslimpopulationof about 150prior to the conflict:
"on 16 May 1992,at least 83 Muslim men, women and childrenwere arbitrarily executed by Serb
forces there."nited Nations,Situationof Human Rights in the territory of the
former Yugoslavia,report submittedbyMr. Tadeusz Mazowiecki, Special
Rapporteur of the Commissionon Human Rights, E/CN.4/1993/50, 10 Feb.
1993,p. 10, para. 371.
43. In the same month of May 1992,towns in the north-westernPrijedor area were taken
and civilianskilled. Trnopolje wasattackedon 23 May 1992.The Commissionof
Experts reports:
"The local villagers were orderedto tum over their weapons, andthe Serbs began a campaign of
harassrnent against the population. Theyfired shots at Muslim houses, and the wealthy and
intellectuals disappeared. Many villagers were killed in th[UnitedNations, Final
report of the UnitedNations Commissionof Experts, SI19941674(Vol. V), 28
Dec. 1994,Annex X, pp. 34-35, para.2151.
44. In other villages in the Prijedor area similarrandom killings occurred. The
Commissionof Experts reports:
"483. On 24 May 1992,the villages of KozaruSaand Kozarac in Pnjedor county were surrounded
by a Serbian force, which includedunits of the Serbian Amy, Bosnian Serb irregulars, White
Eagles, andSeselj's men. The forces equippedwith tanks and armoured personnel carriers,Reply of Bosniaand Herzegovina
bombarded the villages for approximatelytwo hours with artillery androcket fire before entering
the village of Kozarusa. Upon entering the village, local Serbs beganidentifyingMuslimswho
were then shot in the Street.Muslim homes wereset afire after Serbian forces tossedgrenades into
them."[United Nations,Final report of the UnitedNations Commissionof
Experts, SI19941674(Vol. l), 27 May 1994,Annex III, pp. 154-155, para.
4841.
45. A week later, on 1 June 1992, 53 people werekilled by Serb paramilitaryforces in
Prhovo, a village about 7 kilometresnorth-eastof KljuCand about 50 kilometres
south-eastof Prijedor. The villageconsistedof 45 houses and had more than 150
inhabitants.The Serb paramilitarieshad enteredthe village on May 30, 1992. Some
residentshad fled into the surroundingwoods. On June 1the following occurred:
"~t about 6pm on June 1,the soldiers retume..used megaphonesto cal1people in from the
forest. They also went from house to house, pulling peopleout on the streets.The male residents
were beaten severely. At about, the soldiers began murdering the residents with automatic
weapons. They fired single shots,long bursts of automatic gunfire.
After the shooting stoppedthe soldiers had departed, the witness,who had fledto the woods when
the shooting started, retumed to the village. The murdered men, women and childrenlay in the
streets.uses where burning, and their roofs were collavtedg." States Department
of State, Bureau of Public Affairs,Dispatch, Vol. 4, No. 16, 19 April 1993,p.
260, Annex 191.
The United States published alist of the 53 people killed in this massacre [ibid.].
46. On 12June 1992, civilianswere killed in the village of VrapCiCi,some 150
kilometres south of Prhovo. Eighty-eightMuslim andCroat civilianswere rounded
up by Serb forces, taken to the stadiurnand then killed [United Nations,Final report
of the UnitedNations Commissionof Experts, SI19941674(Vol. l), 27 May 1994,
Annex III.A, p. 151,para. 4601.
47. In July 1992. killings continuedin Prijedor county. Civilianswere indiscriminately
killed in the area of BriSevo.The Commissionof Experts reports that after the Serbs
had shelled the village with mortars, they startedto move through the various
villages, killing the inhabitantsindiscriminately. Accordingto the report, seventy
bodies were buried [United Nations,Final report of the UnitedNations Commission
of Experts, SI19941674(Vol. 5), 28 Dec. 1994, Annex X, p. 42, para. 2651.
48. Three months later, Serb paramilitarygroups killedciviliansnear ViSegrad,more
than 200 kilometres east of Brisevo, closeto the border with Serbia.The
Commissionof Experts reports: Chapter5 -Section2
Killing membersof the group
"551. On 22 October 1992,Milan Lukic and his men allegedly abducted16 Sandzak Muslims fiom
the village of Sjeverin. Accordingto Amnesty International,eighand masked men boarded
the bus that the Muslims were travelling onas it entered BiH at the ViSegradmunicipality. The
men, identifiedsMilan Lukic's, then ordered the passengersoff the bus and ont0 an army truck.
The truck, which had no license plates, headed towards thef ViSegrad.At this time, the
passengers were told that they wouldbe exchanged for Serbswho were capturedthe previous
night. Accordingto the Belgrade newspaper Borba, which citesary sources in Serbia, these
Muslim hostages were killed near ViSegradthat same dllJnited Nations, Finalreport
of the United Nations Commission of Experts, SI19941674(Vol. 1),Annex III,
27 May 1994,p. 164,para. 5511.
49. Patterns of random killing continuedin the followingyear, 1993.Mazowieckireports
that:
"in the mainly Muslim villageof Cela near Prijedor, 10 viilagers have been shot and killedin their
homes in the last few months. Random shootings, bombings ande bumings are reliably
reported to be the nom here[United Nations,Situationof HumanRightsin the
territoryof theformer Yugoslavia, report submitted by Mr. Tadeusz
Mazowiecki,SpecialRapporteurof the Commission onHumanRights,
E/CN.4/1993/50,10Feb. 1993,p. 8, para. 271.
50. While most non-Serbshad been removedfrom Prijedor in 1992,non-Serbsthat had
continuedto live there continuedto be the targets of killings. The Commission of
Experts reportsthat in the last days of March,22 identifiednon-Serbs werekilled
and three went missing:
"(a) On25 March 1994:three identified non-Serbsfiom Prijedor went missing.
(b) On 27 March 1994:two identified non-Serbs fiom Prijedorwere killed on working obligations
for the Serbs.Reply of Bosnia and Herzegovina
(c) During the three days 29, 30 and 31 March 1994, 19 identified non-Serbs from Prijedor were
killed. Most of the people killed were couples and other immediatembers.
(d) The next day, onril1 1994:also an identifiednon-Serb, a 25-year old young man, died
from the injuries he sustained the previous daywhen his parents wevnited Nations,
Finalreport ofthe United Nations Commissioo nf Experts,SI19941674(Vol.
l), 28 Dec. 1994,Annex V, p. 120,para. 6381.
Civilianswere also killed during attacksby Serb forces on the enclaveof Gora2dein
51.
eastern Bosniaand Hezegovinain March and April1994. Mazowieckidescribedas
follows what he considered an indicative practice:
"The attacks on the villages of Stanici and Kordici are indicativeof practices of the advancing
troops. Inhese villages, a number ofresidents were summarily executed including elderly women
and a handicapped man. Bodies of thed were subsequently mutilatedand decapitated. The
Special Rapporteuras received information thattank rounds were fired directly into homes."
[United Nations,Situationof HumanRightsin the territov of theformer
Yugoslavia,seventhperiodic reportsubmitted by Mr. TadeuszMazowiecki,
SpecialRapporteurof the Commissionon HumanRights,ElCN.41199514,10
June 1994,p. 2, para. 71.
52. The pattern of killing of civiliansculminatedin the dramatic events in Srebrenica in
July 1995. When Srebrenica wastaken, hundredsof Muslimshad fled to PotoCari,
where they were killed. Thousandsof Muslimcivilians,mainly men, were rounded
up at PotoCarior were capturedduringtheir flight to Muslim-heldtemtory, brought
to execution sitesand executed.The evidencefor these killings is detailedin Section
8 of this Chapter.
53. As already indicatedabove, after theshellingand randomkilling during and
immediately following the take-overof towns or cities, a third stage in the process of Chapter5 -Section 2
Killing membersof the group
killings of civilians would start. Manynon-Serb civilianswere arrested and brought
to camps. Many civilians,in particular men,were killed in those camps. The United
Nations Commissionof Experts describesthe third phase of this pattern asfollows:
"terrorizethenon-Serbresidentswrandom killinrapes andlooting.Third,the seizedareais
administeredby local Serbauthorities,n conjunctionwithparamiligroups.Duringthis
phase, non-Serb residentasredetained,beatenandsometimestransferredto prison camps where
furtherabuse, inclumass killinghave occurre(...[UnitedNations, Finalreport of
the United Nations Commissioo nf Experts, SI19941674(Vol. l), 27 May 1994,
Annex IV, p. 9, para. 28, emphasis added].
54. As most of the evidence relating to campsconcerns killing of men, that evidence
will be discussed below.However,killing of civilians was not confïned to men. A
full account of the acts of killing in camps is provided in Section 5 of this Chapter.
Killing of men
55. Amidst the pattern of killing of civilians, a secondpattern emergedduring the war in
Bosnia and Herzegovina: killings targetedmale non-Serbs. The killing of men -
sometimes includingboys and old men - was part and parce1to the organized
campaign to destroy in whole or in part the non-Serb population of Bosnia and
Herzegovina.
56. Men were not "simply"killed asa proportionalpart of the non-Serb populationthat
was kilied. This can be demonstratedon the basis of quantitativedata. In January
1997,ProfessorManfied Nowak, Expert Memberof the Working Group on Enforced
or Involuntary Disappearances, reportedon the bais of al1available evidencethat of
the more than20,000 persons missingin Bosnia and Herzegovina, morethan 90 per
cent are men. Between80 per cent and 90 per cent of those men are Bosnian
Muslims [United Nations,Specialprocess on missingpersons in the territoryof the
former )irgoslm~iaR, eportsubmittedby Mr. Manjvd Nowak, memberof the Working
Groupon Enforced or Involuntar Dyisappearances, ElCN.411995155,15 Jan. 1997,
p. 28, para. 971.This means that between 14,400and 16,200 Bosnian Muslimmen
are still rnissingin Bosnia and Herzegovina.The large majority of these men must
now, in March 1998,be presurneddead. That 90 per cent of the rnissing personsare
men shows that men were specificallytargeted, singled out and killed.
57. That men were not "sirnply"killedas a proportional part of the non-Serb population
can also be demonstratedon the basis of credible reports of particular instancesofReply of Bosnia and Herzegovina
killing. These show that men were separated fromwomen and specifically singled
out for killing. Similarto the killing of civilians,the singlingout and killing of men
showed consistent patternsthroughout the time of the conflict in Bosnia and
Herzegovinaand throughoutthe territory of Bosnia and Herzegovina.
58. What was said in the introductionof this Section regardingthe ulterior motive
behind the killing of non-Serbs appliedeven more forcefiillyin the context of the
killing of men. The non-Serb men were not simply victims of arrest, detention or
deportation - acts that might be "explained"by the objective of Serbsto remove non-
Serbs from certain areas. Non-Serb men were also not victims ofaccidentalkillings
accompanying a processof expulsion. Rather,the evidencedemonstratesthat many
men were killed, rather than being arrested and deported.The evidence also
demonstratesthat thousands of menthat were arrestedand detainedwere not
detained as a prelude to deportationbut as a prelude to their death.
59. The evidence cited belowfurther demonstrates thatthis was not the caseof just a
few men being killed and that this did not happen atjust a few places in Bosnia and
Herzegovina. Thousandsof men werekilled between 1992and 1995 andwere killed
in al1places in Bosnia and Herzegovinawhere Serbsmountedtheir attacks on the
non-Serb population.
60. In many of the reports of the killing of men, mention is made of the fact that the
men singled out and killed were of militaryage. This fact should not be taken to
mean that there was some kind of military objectiveor even necessity involved in
the separation and killing of men. The Commission of Experts, havingreceived and
reviewed the availableevidence, concludesthat:
"35.[1]twasoftenreported that menetweentheagesof 18and60 wereseparatedfiom women,
children,andelderly men.Apparently, mebetweentheagesof 18(or younger)and60 were
consideredto be of fightingage, constita classof quasi-prisonsf warorperhapslegitimate
intemeesbecauseof their potentiaflorhostiHowever, rarely did reports includeany informa-
tion to suggest that those considered capableoffighting had ever actually committed hostile acts or
had organized to do so. Infact, manyMuslimvillagerssimply surreruieredthe weapons theyhad
upon an initial demand bythe Serbforces in theon.Afier that surrender,the villagers were in
many cases detained.hereportsindicatethatinmanyinstances, men between thaeges o18 and
60, were ultimatetransferreto heavilyguardedlargercamps wherekillingsortorturewere
prevalent.
(-->
49.SeveralBosnianSerbcontrolledcampsservedas placesof massandcontinuouskillingand
executionby variousmeans (...)
50. At the largercamps,prisoners wereportedto havebeenkilledon a dailybasis(...).Il
rCJnitedNations, Final Report of the Commissionof Experts, SI19941674lAdd.2 Chapter5- Section 2
Killing membersof tgroup
(Vol. IV), 28 Dec. 1994,AnnexVIII, "Prison Camps",pp. 11-14,emphasis
added].
61. It hardly needs mentioning that the large-scalekillings of non-Serb men had a
devastating effect on non-Serb cornrnunitiesas a whole. This was well-statedby Mr.
Tadeusz Mazowiecki, SpecialRapporteurof the Commission onHuman Rights:
"~hefateof themenfolkis a causeof greatanguishfortheirrelativesandfiiends.The
disappearancofsucha hugenumberof men posesparticulpractical problen a male-
dominatedsocietywhere thewomenarealmostwhollydependent omenfor theirlivelihoods."
[United Nations,Situation ofHumanRightsin the territory oftheformer
Yugoslavia, Jinalperiodic report submitted byMr. TadeuszMazowiecki, Special
Rapporteurof the Commissionon HumanRights,ElCN.411996192 , 2 August
1995,p. 1 1,para. 491.
62. Without a doubt, the most dramatickillings of male non-Serbstranspired in the town
of Srebrenica. When Srebrenicawas taken, hundreds of Muslims hadfled to Potocari
where they were killed [ICTFY, TrialChamber,Review of theIndictmentPursuant
to Rule 61 of the Rules of Procedure and Evidence,Prosecutor v.KaradZitand
Mladit, Cases No. IT-95-5-R61and IT-95-18-R61, 11 July 1996, para.351.
Thousands of Muslim civilians,also mainly men, whowere roundedup at PotoCari
or were captured during their flightto Muslim-heldterritory, were broughtto
execution sites and were executed at, among other places,Kravica, Branjevo,Nova
Kasaba, and Pilica [id., para. 161.These events will be detailedin Section 8 of this
Chapter. But this pattern was not confimedto Srebrenica.What happened in
Srebrenicawas a copy of patterns that had occurred at many other times and places.
63. More than three years before the separation andkilling of men in Srebrenica, sirnilar
events took place near the town of FoCa,some 80kilometre south-east ofSrebrenica.
In March 1992,many of the villagesaround FoCa,in south-eastBosnia and
Herzegovina, "sufferedlarge-scalesummaryexecutionsby Serb forces". Tadeusz
Mazowieckireports that:
"Awitnessfiomthevillageof Jelecreports ttl1themen wereroundedupandshotwith
machine-guns. hereportedlylostherhusband,herfive brothersandtheir foursons.Thewoman
andchildrenhadreportedlyescapedtothemountainsandretumedto thevillagefourdayslaterto
burythemen." [United Nations,Situationof HumanRights in the territory of the
former Yugoslavia, report submitted by Mr. TadeuszMazowiecki, Special
Rapporteurof the Commissionon HumanRights,E/CN.4/1993/50, 10 February
1993,p. 9, para. 331.Reply ofBosnia andHerzegovina
64. The followingmonth,Zvornik, more than 100kilometrenorth of FoEa,was attacked.
The Commission ofExperts statesthat in Zvornik "2,500men werekilled on 9 and
10 April [19921 "[United Nations, Commissionof ExpertsEstablishedPursuantto
Security Council Resolution 780 (1992),Final Report, Sl19941674lAdd.2(Vol. 1),
Annex X, para. 3871.Specificinstancesof separationof men from women and
killing of men aredetailedin Section 6 of this Chapter.
65. The next month, May 1992,similar eventstook place in Grbavci,north of
Srebrenica. The Commission ofExperts reports:
"on 18 May1992,Serb militiamen surroundedthe village and began shooting. Residents beganto
flee. Many of the male villagerswere rounded up, put into a line, and upon a order to 'killthe
UstaSa',where shotat with automatic weapons. Atleast 56 men we[United Nations,
Commission ofExpertsEstablished Pursuantto Security Council Resolution
780 (1992),Final Report, Sl19941674lAdd.2(Vol. 1),28 Dec. 1994, Annex X,
p. 59, para.3961.
66. Similarpattern of singling-outand killing of men emergedthroughout the territory
of Bosnia and Herzegovina. Between 29May 1992 and3 June 1992,Serbian forces
attacked the villagesof HasiCi,NeziCi,VoliCi,HadZiciand Castovi~i,close to
VelagiCi,more than 200 kilometreWestof Grbavci.The Commission ofExperts
reports that:
"male Muslimsfiom the villages of HasiCi,NeziCi,VoliCi,Ha&ici and CastoviCiwere taken to
VelagiCiand temporarily housed in the local sch250.of these individualswere killed."
[United Nations, Commission of ExpertsEstablishedPursuantto Security Chapter5 -Section 2
Killinmembers ofthe group
Council Resolution780 (1992),FinalReport, Sl19941674lAdd.2(Vol. 1),28
Dec. 1994,Annex X, p. 20, para. 1001.
67. In June 1992, a mass killing of Muslim men took place near VelagiCi.The
Commissionof Experts reports that:
"1nJune 1992, severalmen reportedly organized, oversaw, aexecuted a masskilling,in which
282 Muslimmen were killed in fkontof a schoolnear VelagiCiand then buried in a mass g...e
On the day of the killing,Serbiansoldiersdug a largeh..Muslimswere orderedto line up
along the edgeof the hole facing the school,whilethe women andchildren werebrought into
watch.Then, the person in charge orderedthe execution ofal1of the men.Though mostof them
were shotto death,some were stabbedwithknives." [UnitedNations, Commissionof
Experts Established Pursuantto SecurityCouncil Resolution 780(1992), Final
Report, Sl19941674lAdd.2(Vol. 1),Annex X, p. 19, para. 961.
68. In the same month of June 1992,men were singledout and killed some 150
kilometre south of VelagiCiin Mostar County in southernBosnia and Herzegovina.
The Commission reportsthe killing of men near Sutine landfill, locatedon the
northem edge of Mostar:
"129. On 13 June, abou200 Bosnian Muslimand Croatianmen,women andchildrenfkom
Mostar were roundedup by Bosnian Serb forces andtaken to Zalik. The males were separated
fkomthe women and childrenand takento the SjeverniLogor casem nearby. The men were
registered on a roster andplacedon trucks,whichter departedfor Sutine, severalkilometres
north of Zalik.
130. Upon aniving at Sutine,the prisonerswere taken to a buildingwhich belongedto a
cemetery andwhichwas near Sutine landfil..Prisoners weretaken, one by one, for their
interrogationsand beatings,and afterwards,were taken outsideand killed byeither apistol shot toReply of Bosnia and Herzegovina
the head or by automatic rifle f[UnitedNations, Commission ofExperts
Established Pursuantto SecurityCouncilResolution780 (1992), Final Report,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex X, p. 23, paras. 128-1301.
69. The United Statesreported on these sameevents as follows:
"one by one, the prisoners were led to one of the interrogation rooms, where they were beaten and
tortured by an inspector and or three guards. After being indiscriminately beaten and tortured,
the prisoners wereken outside and executedby either the inspector, with apistol shot to the head,
or by the guards, with a burst fiom their automaticrifles." States Departmentof
State, Bureau ofPublic Affairs, Dispatch,Vol. 4, No. 16, 19 April 1993,p.
259, Annex 191.
70. The Trial Chamber of the ICTFYin theTadiCdecisionmade the following factual
finding of the killing of men in the villageof JaskiCion 14June 1992:
"348.(...) Serb soldiers arrived at JaskiCiand ordered men outof their homes andont0 the village
Street,their hands clasped behind their heads; there they wto lie down and were severely
beaten. The villageuses were searchedto make sure that al1men were accounted for. Then the
men, otherthan three older men, were marched offin the direction of Kozarac and their families
have never seen or heard of them again. When they had left, the women found the bodiesof five
men who had been shot, theirrpses left to lie where they fell(...).
(...>
373. This Trial Chamber is satisfied beyond reasonable doubt that the accusedwas a member of the
group of armed men that entered the villageof JaskiCi,searched it for men, seized them, beat them,
andthen departed with them and thatafter their departure the five dead men (...) were found lying
in the village (..[ICTFY, Opinion and Judgment,Prosecutor v. DuSkoTadit,
Case No. IT-94-1-T, 7 May 1997, pp. 125 and 1321.
71. A middle-agedMuslim womanalso describedan attack on the village of Trosan,
near FoEa,on 3 July 1992.The capturedvillagers were separatedby sex and the men
were then summarilyexecuted,their familiesstanding about twentymeters away
[UnitedNations, Letter Dated 12April 1993fiom the Permanent Representativeof
the UnitedStates of America addressed to the Secretary-General, Sl25586, 13 Apr.
1993,p. 51.
72. The killing of men fiom the Prijedor area continuedthroughoutthe summer.
Mazowieckireports that:
"~uring the second half of August [1992],two convoys of Muslimswishiig to leave Prijedor were
organized. The first, consistingof some 500 persons loadedinto trucks, headed off towards
Travnik, in central Bosnia.It was joined en route by a second convoycontaining a similar number
of persons fiom theoms of Kluj and SankiMost. At some point during thejoumey, the men in
the convoy, some 20 in number, were separatedfiom the women and children andexecuted Chapter 5-Section 2
Killing memberofthegroup
forthwith,inthepresenceof theirwivesandchildr[United Nations,Situationof
HumanRightsin the territoryof theformer Yugoslavia, report submitted by
Mr. TadeuszMazowieckiS , pecial Rapporteur of the Commission ofHuman
Rights,A147/666,S/24809, 17Nov. 1992,p. 9, para. 17(h)].
The killing of men in Prijedor is further detailedin Section 7 of this Chapter.
73. As indicated above, the consistency of the patternof singling out and killing men
can be seen fiom the fact that almostthree years later, similar events,yet resulting in
even larger nurnbers ofmen killed, took placein Srebrenica,further detailed in
Section 8 of this Chapter.
The evidence cited above demonstratesthat during or immediatelyfollowing the
take-over of toms or cities, men weresingled out andkilled. Large numbers of men
suffered a differentfate, however; they werearrested and brought to camps. For
instance, Manfred Nowak reports that in eastern Bosnia, during the first months of
1992,between 2,500 and 3,000 persons disappeared.Most of these were middle-aged
men who were broughtto camps in the region [Specialprocess on missingpersons
in the territoryof theformer Yugoslavia, Report submittedto Mr. ManfredNowak,
expert member ofthe Working Group on Enforcedor Involuntary Disappearances,
responsible for the specialprocess, 15January 1997,ElCN.411997155p , ara. 1001.
75. More detailed informationon the campsin Bosnia andHerzegovina is provided in
Section 5 of this Chapter. Here it will be demonstrated thatthe camps were usedto
effectuatethe policy of separatingand killing non-Serb men.
76. The pattern of deportationof non-Serbmen to camps was surnrnarizedby the
Commission ofExperts as follows:
"230.(i)Menbetweentheagesof 16(oryounger)and60, whoareconsideredto be of military
age, areusuallyseparatedfiom older men,womenandchildren.Thesemenaretransfertod
heavilyguarded largramps wherekillingsandmtaltorture aerevalent.vnited Nations,
FinalReport ofthe Commission of Experts,SI19941674(Vol. 1),28 Dec. 1994,
p. 54, para. 2301.
77. This pattern took place on a massive scale in the Prijedor area- analyzed in greater
detail in Section 7 of this Chapter.The Commissionof Expertsreports that after the
villages in the Prijedor areaand Prijedor town were taken, the non-Serb survivors
were divided:ReplyofBosnia and Herzegovina
"168. Females, boysunder the age of sixteen (sometimesthe age limit may have been lower) and
elderly men (oldthan 60 or 65) made up one group, while the other men comprised the second
group.
169. The second grou-the men -were taken to hastily opened concentration campsin a
cerarnic tile factory, Keraterm,next to Prijedor town and on the premises of the iron ore mine and
processing plantatarsk ka[United Nations,Final Report of the Commissionof
Experts, SI19941674(Vol. 1),28 Dec. 1994,p. 40, paras. 168-1691.
78. The Commission of Experts concluded from a review of the evidence that "more
than 6,000 adult males" weretaken to the Omarska and Keraterm camps [United
Nations, Final Report of the Commissionof Experts, SI19941674(Vol. 1),28 Dec.
1994,p. 41, para. 1701.The Commissionof Expertsalso concludedthat fiom the
"more than 6,000 adult males" who weretaken to Omarska andKeraterm, few
survived:
"since only 1,503 were movedto ManjaEacam...a limited numbertransferred to the Tmopolje
camp and almostnone released, it may be assumed that the death toll wasextremely high."
[UnitedNations,Final Report of the Commissionof Experts, SI19941674(Vol.
1),28 Dec. 1994,p. 41, para. 1701.
79. The evidence that large numbersof male prisonerswere killedin the Omarska and
Keraterm camps was corroboratedby the Trial Charnberof the ICTFY. In the
Judgment in the TadiCcase, the TrialChamberfoundthat the Omarskacamp held as
many as 3,000 Muslirnand Croatprisonersat one time, of which only 36 to 38 were
women. The Chamberfound:
"157. (...) By al1accounts, the conditionsat the camp were horrendous;killings and torture were
fiequent.
(..->
166. (...) Many died as a result of these repeated assaults on them(...) Dead bodies of prisoners,
lying in heaps on thess near the white house, were a not infiequent s[ICTFY,..)."
Trial Chamber,Opinionand Judgment,Prosecutor v. Du& TadiC,Case No.
IT-94-1-T, 7May 1997, pp. 59, 60 and 621.
80. In the Keraterm camp, similarpatterns of killing of men occurred.The prisoners of
Keraterm were mostly male and number between1,000and 3,500 [UnitedNations,
Final Report of the Commissionof Experts, Sl19941674lAdd.2 (Vol. 4), 28 Dec.
1994, Annex VIII, "PrisonCamps",p. 225, paras. 1818, 18201.Evidencefor killing
of men in Keraterm campwas, inter alia, found in the Indictrnentagainst Sikirica &
others. The Prosecutor foundevidencefor 168killings committedin Keratermcamp
by the accused.He found thatthese killingswere committedwith the intentto
destroy, in whole orin part, the Bosnian Muslim and Bosnian Croap t eople as Chapter 5 -Section 2
Killinmembersof the group
national, ethnic or religious groups, and chargedthe accusedwith genocide [ICTFY,
Indictment,Prosecutor v. Duiko Sikirica & others, CaseNo. IT-95-8-1,18 June
1996,p. 41.
81. Further evidence of the killing of men in the camps in the Prijedor region is
provided in Section 5 of this Chapter ("Camps") and Section 7 of this Chapter
("Prijedor") .
82. The pattern of killing of men in camps in the northern Prijedor region is not unlike
that which occurred in the Luka camp in the Brcko area in north-easternBosnia and
Herzegovina.Scores of men who had been capturedwhen the Serbs took the town
and municipalityof BrCkowere held in the Luka camp.The ICTFY Indictrnentof
Goran Jelisic,a.k.a. "Adolf", who hadbeen the commanderof Luka at one point,
states:
"2. From about7 May 1992 until early July 1992, Serb forces confined hundredsof Muslim
and Croat men, and a few women,at Luka camp in inhumane conditions and under medguard.
From about 7 May 1992 until about 21 May 1992,detainees were systematically killedat Luka.
Almost every other day during that time, the accused, often assistedby camp guards, entered
Luka's main hangar where most detainees were kept, selected detainees for interrogation, beat them
and then often shot and killed them.
3. The accused, often assisbydguards, usually shot detaineesat close range in the head or
back ..The accused and guardsthen ordered other detaineesto move the bodiesto one or two
disposa1areas where the bodies were piled until they were later loaded on trucks andtaken to mass
graves outside the town of BrCkoor disposedof in other wa[ICTFY,Indictment,
Prosecutor v. JelisiCand CeiiC,CaseNo. IT-95-10-1,30 June 1995,p. 1,
paras. 2-31.Reply of Bosnia and Herzegovina
83. The Prosecutorof the ICTFY, like the Applicant, viewsthese killings as part of a
campaignof genocide.He found evidencethat the defendantintendedto destroy a
substantiaior significant partof the BosnianMuslimpeople as a national, ethnical,
or religious group and, in effect, systematicallykilled Muslimdetainees inthe Luka
camp in BrCko.By these actions, the Prosecutor found,the defendantinstigated,
ordered, cornmittedor aided and abetted genocide [ICTFYI ,ndictment,Prosecutor v.
JelisiCand CeiiC,Case No. IT-95-10-1,30 June 1995,p. 3, para. 171.
84. The pattern of killing of men in campsin the northern Prijedor region and in the
north-eastern Lukacamps can aiso be traced to the SuSicacamp near Vlasenicain
eastern Bosnia and Herzegovina.Whilethe camp held both men and women,there
are nurnerousreports that men were singledout and killed:
"2775. According to witnesses, executions took place regularlyat SuSicaCamp. Usually, about
eight men weretaken away from the warehouse at a time. Shortly afterward, people inside the
building would hear shooting.The men wouldver retum.
(-1
2788. An ex-guard reports that the small-scale executions took placeon the camp grounds. Male
prisoners were generallyed up against an electricity pylon justoutsidethe barracks and shot.
The largernes were carried out at a nearby ravine called HanPloEaon the road south toward Han
Pijesak. Menwere loaded into the back of a truck, up to the edge of the ravine about five
miles away, andhen shotasthey got out of the veh..The bodies fell into the ravine and
bulldozers wereater used to cover them u[United Nations,Final Report of the
Commission of Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex
VIII, "PrisonCamps",pp. 332-336, paras. 2775,27781.
85. Some of the events that occurredin the SuSicacamp were reviewedby the Trial
Chamber of the ICTFY in the Reviewof the IndictmentPursuantto Rule 61 in the
case againstDragan NikoliC.NikoliCwas the commanderof SuSicacamp during Chapter5 -Section2
Killingmembersof thegroup
1992.The Prosecutor chargedNikolid inter alia with the killing of eight men. The
Triai Chamber determinedthat there were reasonablegrounds for believing that
Dragan NikoliCcommittedthese eight killings FCTFY, Decision of Trial Chamber 1,
Review of IndictmentPursuantto Rule 61,Prosecutor v. Dragan Nikolié,CaseNo.
IT-94-2-R61,20 Oct. 1995,p. 231.The events in this camp are a clear example of
the killing of people based on a double selectioncriterion: ethnicity and gender. The
Trial Chamberalso noted thatthese killings were part ofa policy ofdiscrimination
implementedat Vlasenicathat "was specificallyaimed at 'cleansing'the region of its
Muslim population".The Chambercontinuedto state that:
"the constitutiveelement of the crime of genocide may be inferred from the very gravity of those
discriminatory acts[ibid.,p. 20, para. 341.
86. Another place in eastern Bosnia and Herzegovina where men weredetained and
killed was Bratunac. The Final Report ofthe Commissionof Experts reportedthat
after the town of Bratunac and surroundingvillages had beentaken by paramilitary
groups:
"382.On 10 May, Serbiantroops placed 4,000to 5,000 civilians in a newly established
concentration camp at the FC "Bratstvo"stadium. Others were taken to the playground. Civilians
were separated by gender andthe male Muslims transportedto the elementary school Vuk
Karadzic, where a number of men were beaten.One report states that between 600to 700 male
Muslimswere moved to Vuk KaradLi6Pnmary School Sports Centre(...) Most were killed by
gunfire, but in one day it is alleged that upto 150 people were killed from beatings. Reportedly,
individualerpetrators were responsible for the deathsof 20 or more people. Thecorpses were
eventuallythrown into the Drina River.
383. Eventually the remaining Muslims werebrought to the playground,where Arkan and Se~elj's
men stripped themof al1personal property. They were then separated by gender and the women
were taken to Kladanj by bus, while the men were retumed to the elementary schoolto be beaten
and tortured. Between 30 and 50 of the men were kil[United Nations,Final Report of
the Commissionof Experts, SI19941674(Vol. 1),28 Dec. 1994,Annex III.A,
pp. 140-141 paras.381-3831.Reply of Bosniaand Herzegovina
87. The evidencecited above showsa consistent pattern of singling out and killing men,
both in thetowns and cities that were taken-overby Serbsand in camps where men
who survivedthe attack were detained.The pattern is consistentin that it happened
in many different places throughoutthe territory of Bosnia andHerzegovina. The
pattern is also consistent inthat itcurredin the period from1992to 1995.From
the examplesmentionedabove,it is clear that theovenvhelming majorityof men
who were killed were non-combatants; they did not present an irnmediat tereat to
anyone.
Killing of elite
88. In addition to the killing of civiliansand the killing of men, a third pattern emerged
during the killing of non-Serbsin Bosniaand Herzegovina:throughout thewar,
political and religious leaders, businessmen,intellectuals agenerally, personsof
prominencein the communitywere singled outfor the purposeof killing. The
evidence detailed belowdemonstratesthat these people (hereafter referredto as
"leaders1'or "elite")were not victims of randomacts of killing, nor weretheir deaths
the result ofmilitary necessity.Rather,the evidence demonstratesconsistent patterns
of deliberate killingof the non-Serbelite throughoutthe war and in al1areas in
Bosnia and Herzegovinawhich were attackedby the Serbs.
89. There can be no doubt as to the airnof the singlingout and killing of the non-Serb
elite. The objective wasto removethe leaderswho could govem the non-Serb
communitiesand who couldlead an oppositionto the process ofethnic cleansing.
This objective is well statedby the joumalist David Rieff in his book Slaughterhouse Chapter5 -Section2
Killing members of the group
- Bosnia and the Failureof the Westwith respect toethnic cleansingin the Bosanka
Krajina:
"B~ ordenng the deaths oasmany educated Muslimsas possible, they [the Serbs] wanted to
ensure that, whatever else happened, any future BosnianMuslim state would be as berefi as
possible of people who couldke it work efficiently. The successof this cam-of what the
British joumalist Michael Nicholsonled "elitoci-can be inferred fiom the fact that apart
from a few thousand middle-classrefugees who made their way to Zagreb, and the small number
who got to Bosnian government-controlledas, the Muslimprofessional classesof the Bosanska
Krajinaail but disappeared[DavidRieff, Slaughterhouse:Bosnia andthefailure of
the west, 1995,p. 113,Annex 201.
90. Laura Silber and Alan Little, twojournalistswho extensively coveredthe eventsin
Bosnia and Herzegovina in their widely acclaimed book,TheDeath of Yugoslavia
also drew the conclusionthat the process of singling outthe non-Serb elitecould
have had no other objective than the destructionof the non-Serbcommunity:
"A common characteristic of the cleansing operation was this systematic eliminationof community
leader- prominent people, intellectuals, membersof the SDA, the wealthy. The existence of such
lists of names was in itself an instrumentof cleansing. The terror it instilled in neighbouring
communities, once newsof the atrocities spread, encouragedmany ofe who feared they might
be targeted to flee even before they were attacked.the conscious eliminationof an articulate
opposition, and ofpoliticaleration.It was also the destructiancommunityfi.omthe top
down." [Laura Silber and Alan Little, Death of Yugoslavia,revised edition 1996,
p. 244-245,emphasisadded,Annex 211.
91. In responseto the Applicant'searlier submissionsthat the victims of killing were
carefully selectedon the basis of their socialstatus, the Respondentattemptsto put
fonvard a different motive. TheRespondentsimply statesthat "[ilf the killings did
indeed take place, they were motivatedby the stmggle against political adversaries
and not by anintention of killing membersof an ethnicor religious group."
[Counter-Memorial,p. 8, para. 1.1.3.71.That this approachis untenablefiom a legal
perspectiveis already explainedabove [Chapter2 of this Reply]. Apart fiom that, the
Respondent fails to demonstratewhy "a stniggleagainstpolitical adversaries" could
ever serve as anexplanationfor the singlingout and consequentkilling of the elite
of an ethnically defmed group. Moreover, the evidenceavailabledoes not support
this 'explanation'of the Respondent.As will be shownin this Section,the selection
process wasbased on ethnicity,on the one hand, and on social status,on the other.
This is certainly not the same as the criterion, "political adversaries", appliedby the
Respondent. Rather, the social and ethniccriteria servedto decapitatethe ethnicallyReplyof Bosniaand Herzegovina
defined group -as part of the overall campaignto destroyin whole orin part the
non-Serb populationof Bosnia and Herzegovina.
92. Distinguishedand authoritativepersons andinstitutionswho reviewed thefacts which
occurredduring the war have confirmedthat the elite of the non-Serb population was
singledout for killings.In its decisionin the Reviewof the IndictmentPursuantto
Rule 61 in the case againstKaradVCand Mladic,the Trial Charnberof the ICTFY
made the followingfactual finding:
"17. Bosnian Serb military andpolice personnel persecuted leadersand members of the non-
Serbian political parties, especiallythe mainly Muslim Party of Democratic Action (SDA) and the
Croatian Democratic Union (HDZ), the main Croatian politicalParty, in the towns of Prijedor,
Vlasenica, Bosanski Samac, BrCko,and FoEa.Based on the lists drawn up by the Serbian
Democratic Party, the leaders were arrested, intemed, subjected to physical abuse and, in many
cases, executed."ICTFY,Trial Chamber,Reviewof the IndictrnentPursuantto
Rule 61 of the Rules of Procedureand Evidence,Prosecutor v.Kara&it and
MZadiC, CasesNo. IT-95-5-R61 and IT-95-18-R61,11 July 1996,p. 9, para.
171.
93. The UnitedNations Commission ofExperts also confmed that people were singled
out for the purpose of killing based on their social status.The Commissiondescribed
in the following wordsthe singling out of the non-Serbelite in camps thatfor the
most part held Bosnian Muslims,but also Bosnian Croats:
"(e) After a village, town or city is conquered, the local populationis rounded up
intemed in different locations.During the rounding-up process, membersof the populationare
frequentlyortured, raped and killed. Local religious, political, civic, professional, business leaders
and prominent personalities are singled out for the worst abuses.
(...)
(k) Prisoners who are targeted for torture or death at the larger camps include prominent
members of the community who are wealthy, educated ortically influential persons inthe
community. Guards usually have informationntiQing which prisoners fa11into these categories.
They obtain that informationm their own local population,through coercion and violence from
other prisoners or from other detention facilities thatare used solelyto interrogate displaced
popu~ations.[UnitedNations,Final Report of the UnitedNations Commissionof
Experts, SI19941674(Vol. 1),27 May 1994,pp. 53-54, para.230(k)and (e)].
94. This "singling-outpolicy" was further confirmedby the InternationalCommissionfor
the Balkans,a citizens' organizationestablishedin 1995to provide an independent
perspectiveon the events in the former Yugoslavia.The authoritativemembersof the
Commission includeLeo Tindemans, Lloyd Cutler,BronislawGeremek,John Roper,
Theo Sommer, SirnoneVeil and David Anders.Describingeventsin the first half of
1992,the Commissionstated that: Chapter5- Sectio2
Killingmembersofthe group
o oc aMluslim and Croat leaders were roundedup and often [Leo Tindemansa.0,
UnfinishedPeace, 1996,Aspen Institute, Berlin and Carnegie Endowrnent for
InternationalPeace, p. 40, Annex 221.
95. These general conclusions concerning thesingling out ofthe non-Serb elite for
killing and accompanyingacts of torture and other mistreatmentare corroboratedby
the following examplesof speczjîcinstances ofkilling.
96. Strong evidenceis availablethat the non-Serb elite was singled out and killed during
and following the attackon Prijedor [see Section 7 of this Chapter]. Mazowiecki
reports that when Prijedor was taken over by Serb forces, the elitewas specifically
targeted and detained.He reports that in late May, 1992:
"many leaders of the Muslim community,ascteachers, physicians andreligious leaders had
their homes searched and were detained."edNations, Situationof HumanRights
in the territory oftheformer Yugoslavia,report submitted byMr. Tadeusz
Mazowiecki, Special Rapporteur o the CommissiononHumanRights,
transmitted by the SecretaryGeneralto the General Assembly,AI471666,
Sl24809, 17Nov. 1992,p. 8, para. 17(a)].
97. During the attack onPrijedor, numerousnon-Serb leaderswere immediatelykilled.
The Commissionof Experts reportsthat:
"~umerous leading Muslim and Croatian citizens had notably been immediately targeted for
extermination whenill in their homes, towns and vi[UnitedNations" FinalReport
of the United Nations Commissionof Experts, S/1994/674(Vol. 1),Annex V,
p. 67, para. 3421.
98. With respectto the attack on Trnopol-jeon 23 May 1992,the Commissionof Experts
reports that:
"~he local villagerswere ordered to tum over their weapons, andthe Serbs began acampaign of
harassment againstthe population. They fired shotsat Muslim houses, and the wealthy and
intellectuals disappeared. Many villagerswere killed in t[United Nations,Final
report of the UnitedNationsCommission ofExperts,S/1994/674(Vol. V), 28
Dec. 1994,Annex X, pp. 34-35, para. 21 51.
99. The Omarska andKeratenn camps were usedto detain the non-Serb leadership fiom
the Prijedor region. The Commission ofExperts writes that "the entire non-SerbianReply of Bosnia and Herzegovina
leadershipwho survivedthe military attackswas brought for detentionin Omarska
or, alternatively, inKeraterm." [United Nations, FinalReport of the UnitedNations
Commission of Experts,Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex V, "The
Prijedor Report",p. 81, para. 4271.
100. The ICTFY alsoconfirmedthe fact that when Serbforces had roundedup non-Serbs
around Prijedor,many of Prijedor'snon-Serb intellectuals,professionalsand political
leaders who had survived the attackwere brought tothe Omarska camp [see also
Reply, Chapter 5, Section 51.
101. The Commissionof Experts also reportsthat the Omarska campwas used to detain
the non-Serb elite. Thiselite was subsequently subjectedto beating,torture and
killings. The Commission of Experts concluded thatthe main objectiveof the
Omarska camp was indeedto eliminate the non-Serbleadership:
"~es~ite the absence of a real non-Serbian threat, the main objectiveof the concentration camps,
especially Omarska but also Keratenn, seems to have been to eliminate the non-Serbian leadership.
Political leaders,officiais fkomthe courts and administration,academics and other intellectuals,
religious leaders,key business people an-the backbone of the Muslim and Croatian
comrnunitieswere removed, apparently with the intentionthat the removal be permanent."
[UnitedNations, Final Report ofthe UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,AnnexV, "ThePrijedorReport",p.
11, para. 271.
102. The Commissionof Experts found specificevidenceto supportthis conclusion,most
importantlythat there was:
"widespread killing at the camp and that political and religious leaders and professionals were
particuiariy singled out for exec[UnitedNations,Final Reportof the United
harions Commission of Experts,Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,
AnnexVIII, p. 213, para. 17241.
103. Mazowieckireports that anumber of witnesses"interviewedby different agencieson
different occasions"agreed thatmany prisoners were executedat this camp and that
"political and religious leaders and professionals wereparticularly singled outfor execution."
[United Nations,Situationof HumanRightsin the territoryof theformer
Yugoslavia, report submitted by Mr. TadeuszMazowiecki,Special Rapporteur
of the Commission onHumanRights,îransmittedby the SecretaryGeneralto
the GeneralAssembly, Al471666,Sl24809, 17Nov. 1992,p. 13-14, para.311. Chapter5 -Section2
Killingmembersof thegroup
104. A survivor fiom the Omarska camp describedthe pattern by which prisoners were
abused, taken away and killed:
"'after about 10-15 days, we understood their logic, andthen one could more or less guess who
would disappear fiom the Omarska camp. The logic was like this: first,the people who had been
accused of having fought with arms against the Serbgovemment would disappear.So the first ones
they finished off were those who had weapons.When they no longer existedat Omarska, the
intellectuals beganto disappear. Amongthe intellectuals,no doctorrvived to my knowledge.
After that,enowned citizens disappeared.By t1amean above all, rich people with enviable
possessions.When they too had disappeared, theyrted to kill at rando[UnitedNations,
Final Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2
(Vol. IV), 28 Dec. 1994, AnnexVIII, "Prison Camps", p.214, para. 17301.
105. Very similar events occurredin the Keratermcamp. Like Omarska,in the Keraterm
camp non-Serb leaders were singledout for abuse and killings. The Commissionof
Experts reports as follows:
"1twas widely reportedthat mostly wealthyand educated prisonerswere singled out for abuseat
the camp. One subject reported that after arriving at the camp in early July, 1992, therewas an
initial systematic removal and killing of al1educated individuals andthose who had held any sort
of civic or leadership rolein their communities.The camp guards reportedly used registration lists
initially obtained in May 1992to identi* individualsto be k[United Nations,Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
IV), 28 Dec. 1994,Annex VIII, "Prison Camps",p. 236, para. 19131.
106. The Commission had,as already citedabove, expressly statedthat the main objective
of the Keraterm campwas
"to eliminatethe non-Serbian leadership. Political leaders,officials fiom the courts and
administration, academics and other intellectuals, religious leaders, key busineartist-le and
the backbone of the Muslim and Croatian communiti-were removed, apparentlywith the
intention that the removal be permane[UnitedNations, Final Report of the United
Nations Commissionof Experts, SI19941674lAdd.2(Vol. 1),28 Dec. 1994,
Annex V, "The Prijedor Report",p. 11,para. 271.
107. One person cited by the Commissionof Experts statedthat guards would ask
prisoners to give their professions.He reportedthat:
"if they found someonewith a high positioaohigher educational degree, they would execute
them.1 think the intelligentsiaof Prijedor hasjust disap[UnitedNations, Final
Report of the UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol.
IV), 28 Dec. 1994, Annex VIII, "Prison Camps",p. 236, para. 19131.Reply of Bosnia andHerzegovina
108. Another camp for which the evidencedemonstratesthat leaderswere singled out for
killings is the Luka camp [United Nations,FinalReportof theUnited Nations
Commissionof Experts,Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII,
"Prison Camps",pp. 92-102, paras.747-8201.The Serbs detainedprisoners in this
camp between 8 May 1992and late July or August 1992 [ibid.,p. 92, para. 7471.
During this period, the Serbs specificallytargetedthe non-Serb elite in the camp:
"~urin~ his first days at the camp, the captors called out names of prisoners fiom electoral rolls.
Al1those who were members of the SDA (a Bosnian, primarily Muslim, politicalparty) or who
had held positions of leadership in business or industry were killed. Shootings at
4:00 a.m. The witness estimatesthat during his first weekat Luka more than 2,000 men were
killed and thrown intothea ~iver."[UnitedNations, FinalReportof the United
Nations Commission of Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps", pp. 93-94,para. 7551.
109. This account is consistentwith informationprovidedby the UnitedStatesto the
United Nations Secretary-General:
"LJponarriva1[in the Luka-BrEkocamp, May-June 19921,al1intemees were questionedby one of
the three inspectors who decided theirfate. For example if a person was a member of the Party of
Democratic Actionor the Croatian Democratic Community political parties, hewas executed at the
camp." [UnitedNations, Letter Dated 5 November1992JLomthe Permanent
Representativeof theUnitedStates ofAmericato the United NationsAddressed
to the SecretaryGeneral,Sl24791, 10 Nov. 1992,p. 71.
110. A 55 year-old Bosnian Muslimfrom BrEkodescribed how,after he had spent seven
days in the camp, "al1prisoners known to have beenpolitically active had already
been killed" [UnitedNations,Letter Dated 12April 1993JLomthePermanent
Representativeof the UnitedStatesof America tothe UnitedNationsAddressedto
the SecretaryGeneral, S125586,13 Apr. 1993,p. 61.
111. Al1over Bosnia andHerzegovinathe picture was the same. When Kozarac was
overrun by Serb forces during the spring of 1992, here,as everywhereelse, the
killing process was intendedto eliminatethe elite. The organizationMedicinsSans
Frontiers (Doctors without Borders) interviewed sixtyresidents fiom the Kozarac
region who had been held in the Omarskaand Keratermprison camps. The study,
cited by the Commissionof Experts, found that:
"prominent and well-educated citizins were targetedto -many were doctors, teachers and
politicai leaderwted Nations, FinalReportof theUnitedNations Commission Chapter 5 -Section 2
Killing membersof the group
of Experts,Sl19941674lAdd.2(Vol. 1),28 Dec. 1994, AnnexIV, "The Policy
of Ethnic Cleansing",p. 29, para. 1521.
112. The Commissionof Experts further reports on theevents that transpired after
Kozarac was taken by Serbs in May, 1992:
"172. (...) Serbs reportedly gave the people 10minutes to reach the town's soccer stadium. Some
were reportedly immediately executed.At the stadium, men and women were separated and taken
to separate camps. Allegedly, rich Muslims werea particular target, along with political leaders and
policeoficers."[United Nations,FinalReportof the United Nations Commission
of Experts SI19941674lAdd.2(Vol. V), 28 Dec. 1994, Annex IX, "Rape and
Sexual Assault",pp. 38-39, paras. 172-1 731.
113. One 42 year-old witness gave a first hand account and stated:
1>
They were pulling out private entrepreneurs and educated people, anyone who couldever
organize anyMuslim life in Kozarac again[United Nations,LetterDated 5 November
1992Rom thePermanent Representativo ef the United Statesof Americato the
United Nations Addressedto theSecretaryGeneral,S124791,10 Nov. 1992,p.
IO].
114. Sirnilarevents took place in BosanskiSarnac.The Commissionof Experts reports:
"378. On 17 April 1992, regular Serbian soldiers and Se~elj'smen occupied Bosanski Samac and
imprisoned wealthy and politically involved Muslims. The prisonerswere beaten with
sticks, truncheons, and shovels. At least seven died and seven others are st[Unitedsing."
Nations, FinalReportof theUnitedNationsCommissionof Experts
Sl19941674lAdd.2(Vol. V), 27May 1994, Vol. 1.Annex III.A., p. 140, para.
3781.
115. At Bratunac in eastern Bosniaand Herzegovina,on 9 May 1992, non-Serbswere
detained in an elementary school.Mazowieckireported:
"65. ..) after the mass arrest of about 2,000 Muslims by Serb police in Bratunac in eastern Bosnia
and Herzegovina on 9 May 1992,500 to600 men were detained in the hallanfelementary
school there. Those who could notfit inside were reportediy shot with automaticweapons in front
of the hall. Beatings were reportedlycarried out according to Iistsnamingthose most injluentialin
the community.Between 30 and 50 people reportedly diedfiom their injuries the fust night while
nine others suffocated in the casthe 500-600 detainees struggled to escape the beatings. An
imam was allegedly beaten and stabbed to deathin fiont of the 500-600 prisoners after refusing to
take the Christian faith and raise the three fingers in the Serpnited Nations,
Situation ofHumanRightsin the tewitory of theformer Yugoslavia,Report
submitted by Mr. TadeuszMazowiecki,Special Rapporteur of the CommissionReply ofBosniaandHerzegovina
on Human Rights, E/CN.4/1993/50,10Feb. 1993,p. 15, para. 65, emphasis
added] .
116. The pattern was widespreadand consistent.Human Rights WatchfHelsinkireported
for the whole of BosanskaKrajina that:
"~ost Muslim and Croatian community and political leaders were killedor detained in detention
camps and later fled the area in 1992,so that much of the Muslim and Croatian intelligentsiain
Bosanska Krajina were eliminatedduring the early stages of th["Bo~nia-Hercegovina:
'Ethnic Cleansing'Continuesin Northern Bosnia",Human Rights
WatcWHelsinki,Nov. Vol. 6, No. 16, p. 35, Annex 231.
117. The evidence cited above indicatesthat the non-Serb elite was singled outfor
killings. There is abundant other evidencethat leaderswere singled out fordetention.
For instance, Manfied Nowak, memberof the Working Group on Enforced or
Involuntary Disappearances, reportedon the situation in FoEa,Zvornik and
Vlasenica:
"100. (...) The first disappearances were reportedin late March and April in FoEaand Zvornik and
until the end of the year, on a regular basis,in municipalitiessenica. Most of the
persons who disappeared were middle-agedmen (members of the political party SDA, intellectuals
and businessmen)who weretaken to concentration camps,such as the Company"Novi izvor", and
cultural centreslopek" or "DrinjaEin Zvomik, the elementary school "VukKaradiic", in
Bratunac or the notorious camp,Sica"in ~lasenicamnited Nations, Specialprocess
on missing persons in the territory of theformer Yugoslavia,Report submitted
by Mr. ManJi.edNowak,memberof the WorkingGroup on Enforcedor
InvoluntaryDisappearances, ElCN.41199515 5, 15 Jan. 1997,p. 29, para. 1001.
118. While not in al1cases, for some, informationis availableas to what happenedto the
leaderswho were detained,the detention practice inand of itself being Mer
evidence of the pattern of removalof the elite of the non-Serb populationas part of
the campaignto destroy in whole or in part the non-Serb populationin Bosnia and
Herzegovina.
119. The evidence demonstratesthat the singlingout of the elite was not done without
prior preparation. Serbspossessedand used lists to identiQ and select the non-Serb
elite.These lists were compiledon the basis of various sources, includingelectoral
lists and informationprovidedby local Serbs. The existence anduse of these lists is,
of course, evidenceshowingthat the killing of the elite was planned and that the
killing carnpaignwas executedin a deliberatemanner. Chapter5 -Section2
Killing membersofthegroup
120. The existenceand use of lists was confïrmedby the Trial Chamber of the ICTFY.
The Charnber concluded thatleadersand members ofthe non-Serbianpolitical
parties, especiallythe mainly MuslimParty of DemocraticAction (SDA) were
persecuted in the toms of Prijedor, Vlasenica,Bosanski Samac, BrEkoand FoEaon
the basis of lists containingnames of the elite. The Trial Charnberconcluded:
"17....Based on the lists drawnup by the Serbian Democratic Partyt,he leaderswere arrested,
interned, subjectedto physical abuse and,in many cases, exe[ICTFY, Trial Chamber,
Review of the IndictrnentPursuantto Rule 61 of Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. Karadzii.andMadit, CaseNo. IT-95-
5-R61 & IT-95-18-R61, 11 July 1996,p. 91.
121. Such lists were alsoused in the Luka camp:
"During his first days at the camp, thecaptorscalledout namesof prisonersfiom electoralrolls.
Al1those who were membersof the SDA(a Bosnian,primarilyMuslim, political party)or who
had held positionsof leadershipin business or industrywere pnited Nations, Final
Reportof theUnitedNations Commission of Experts, S/1994/674/Add.2(Vol.
IV), 28 Dec. 1994, Annex VIII, "Prison Camps",pp. 93-94, paras. 7551.
122. Similarly, during the operation of the concentration camps Omarska and Tmopolje
from April to August 1992,lists were used to single out wealthy non-Serbs andnon-
Serb intellectualsfiom the Prijedordistrictfor particularlyharsh torture and
interrogation. The use of lists for killingsand mistreatrnentappears in the following
report:
"During the fiequent questionings, detaineeswere beatenwith andiron sticks, riflebutîs and
clenched fists.It is notable that manyof the former detainees reporthaving been questioned about
wealthy Muslims. Many ofthe witnessesdrawthe conclusionthat wealthy, butalso intellectual
Muslimswere the maintarget of persecution, torture and killings. In tht,40-year-old
witnessStates:'The soldiersoften came witha list of names.Those whom they readout had to go
withthem. Theynever came back.Mostof the peopleon these listswere in good positions before
the war, Iikemanagers, ownersof restaurantsetc.'
(-1
A 29-year-oldrefugee who was detainedin Omarskaas fiom 30 May 1992describes: 'It often
happened that theSerbs called personsbyeand broughtthem away. Duringthe 73 day[s] 1
stayed in the camp,1saw 1200to 1400dead bodies.Every moming,there were 15to 20 dead
bodies in the fields of the camp. Mostof the Muslimswere only killedbecauseof the ethnic
cieansingA great part of the victirnswas rich or educ[United Nations,LetterDated
5 March1993jFomthePermanentRepresentative ofAustriato the United
Nations Addressed totheSecretaryGeneral, Sl25377, 6 Mar. 1993, pp. 18-20].
123. In the Tmopolje camp as well, non-Serbs weresingled out on the basis of lists:Reply of Bosnia and Herzegovina
"~itnesses report that peop-mostly intellectuals and wealthy pe-were singled out on the
basis of lists of names and maltreated. Accordingto these testimonies a numberof those persons
died of their injuries. Another witness, whoetained in Tmopolje fiom 26 May 1oOctober,
reports that every day, onthe basis of a list,d educated people were singled outand brought
to the camp of marsk ka[." nited Nations,LetterDated 5 March1993fiom the
PermanentRepresentativeof Austriato the UnitedNationsAddressedto the
SecretaryGeneral,Sl25377, 6 Mar. 1993,p. 371.
It was noted above that once in the Omarska camp,the non-Serbelite was singled
out for killings.
124. The Commissionof Experts reported thatlists were also used for the attack on
Zvornik:
"~t a party held in April in the Tezeko Hotel in Zvomik, SeSeljread the names of local Muslim
intellectualsma list to an audience partly comprised of members of Arkanovici, SeSeljovci,and
White Eagles. The people on the list were to be k[United Nations,Final Reportof
the Commission ofExperts, SI19941674(Vol. 1), 27 December1994,Annex
III.A, "SpecialForces" p. 166,para. 5671.
125. The Commissionof Experts also foundthat listswere usedin ViSegrad:
"543. On 13 April 1992,the city of ViSegradwas occupiedby the UZiceCorps. This group
consisted of JNA soldiers, reservists,erritorial defence forces, and White Eagles.(...) Upon
the corps' siege,the civilian population fledthe city and was fired upon.The corpscast
a message instructing the residentsto retum to ViSegradandngtheir safety. When they
retumed, the village was in sharnbles,with many homes bumed.The JNA then blocked al1roads
leading out of ViSegradwith help fiom the White eaglesand UZiceCorps.ers at the
roadblocks would takeway Muslims,whosenamesappeared on a master list.[United
Nations, FinalReport ofthe United Nations Commissioo nf Experts
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex III.A, "Special Forces",p.
163, para. 543, emphasisadded].
126. Referencewas made above to the singlingout and killing of the non-Serbelite in
Bratunac in eastern Bosnia and Herzegovinain May 1992.Mazowieckireported that
there was evidence of a planned operation hereas well:
"65.(...) Beatings were reportedly carried outaccordmg to lists narningthose most influential in the
community." [UnitedNations, Situationof HumanRightsin the territory ofthe
former Yugoslavia,Report submittedby Mr. TadeuszMazowiecki,Special
Rapporteurof the Commissionon HumanRights,E/CN.4/1993/50, 10 Feb.
1993,p. 15, para. 651. Chapte5 -Section3
Causingseriousbodily ormental harmto membersofthegroup
127. The same holds for the events in Kozarac. When Kozarac wastaken over on 25 May
1992,the prominent non-Serb men wereassembled on thebasis of a list. They were
either immediately killed or taken to concentrationscamps at Omarskaand Keratem:
"253. When the first Serbian soldiers entered Kozarac town,they brought with them listsof names
of people who were called forward and killed. These people were the politicians, influential people,
police officers. andrve police officers. Otherintellectualsand prominent peoplefrom the
Kozarac area were incarceratLop;oOmarska andLono Keraterm. DuSanTadiC,who was a
localofKozarac, was among those who allegedly had producedsuch de[Unitedts."
Nations, FinalReport of the United Nations Commissio nfExperts
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,AnnexV, "The Prijedor Report", p.
52, para. 2531.
128. The above examples demonstratethat the non-Serb elitewas not targeted andkilled
at random or pursuant to isolatedinitiativeson the part of individual Serbs. The
above shows a consistent,coordinated patternof singlingout leaders of the non-Serb
communitiesfor the purpose of killing. The killing of the elite broke the backboneof
the non-Serb community,underminingand destroyingits capabilityto organize itself
and function effectively. The pattern of killingof elite was uniform throughout the
territory of Bosnia and Hergovina. The consistent andplanned nature of the targeting
of the elite is also demonstratedby the use of lists to carry out the screening process.
These factors al1point to a deliberatepolicy intended toachieve one objective:to
destroy the non-Serb Bosniangroup from the top down.
3. Causing serious bodily or mental harm to members of the group
Introduction
129. The systematicnature of the seriousharm that was causedto the non-Serb
population of Bosnia and Herzegovina in the period relevantto this case will become
evident hereafter. Thereemergesa clear pattern of facts,repeated in brutal sirnilarity
over tirne and al1major localitiesunder Serb control. Sirnilarly,it is clear that this
campaign was directly and specificallytargeted atthe non-Serb populationsunder
Serb control, especiallythe Muslirnpopulation,further strengthening indicationsof
intent as to a coordinated campaign of practice directed atgroups protected bythe
Genocide Convention.
130. The assertion, repeatedlymade in the Counter-Memorial,that the acts alleged were
only directed against men of military age will also be unmasked as being bothReplyof Bosnia andHerzegovina
irrelevant and untrue. It is irrelevant,inasmuchas the extermination,mutilation and
torture of men of any age can in itself amount to genocide.It is untrue, inasmuch as
the pattern of practice was in fact directedat al1segments of the non-Serb, mainly
Muslim population, includingwomen, children and the elderly. In fact, the use of
rape as an instrument of torture, often, althoughnot exclusively directedagainst
women, was so widespread,that it will be addressedin a separatechapter below
[Chapter 71.Such a broad spectrumof atrocities can only have been aimed at
destroying, in whole or in part, the groupas such.
131. The suffering inflictedon the innocent onthe basis of their appurtenanceto an ethnic
group, hundreds of thousandsof times over,was unbelievablyshockingin each of
these individual instances.But the sufferingof the individual served an even more
gruesome purpose. Individualtorture, mutilation and abuse, often resulting in death,
was part of a constructof terror. In the ultimate act of denying thevictims their
humanity, their individualfates were intertwinedin a consistentand constant patter -
a pattern so gruesome as to inflict widespread horror and terror amongthe non-Serb
civilian population as awhole. This overall goal of ethnic purificationwas the
desired consequenceof the individualacts of genocide.This careful creation of an
infrastructureof destructionin itself confms the intent that lay behind these acts,
evidencing the intent to achieve the destruction, inwhole or in part, of the
designated groups.It was envisaged thatthe individualatrocities,taken together,
would facilitate the accomplishmentof the actualdestructionof a large part of the
group and the permanent displacementof the remaining individuals.
It should also be noted that the factswhich follow will establish thatthere existed a
veritable infrastructure forcausing seriousbodily harm (and often death) of non-
Serbs throughout Serb held-territories.These organized practices were noaccidents,
no instancesof rogue troops going rampant. These were instancesof the application
of a machinery of maiming and destruction, ofdehumanizingindividualsand then
discarding them in the most brutalways, spanningal1areas held by the Serbs. The
existence of such an organized network of "permanent"factoriesfor torture and
killings in detention facilitiesand otherinstallationswill be established elsewherein
this Chapter [Section 51.This present section will evidence thesystematicpattern of
causing unimaginable serious bodily and mentalharm to non-Serbs, systematically,
continuously, everyday and night,throughout the Serb-heldtemtories, in facilities
created for this purpose, and outside of them. Chapter5 -Section3
Causingseriousbodilyor mentalharmto membersof thegroup
Purported defencesoflered by the Respondent
133. TheRespondentanswersthe detailed evidence of fact offered by the Applicant in
Section2.2.3 of the Memorial in a callous and almost surreal manner in section 1.3.3
of the Counter-Memorial.Ignoringthe testimony ofa Muslim man, reported to by
the Govement of Canada [Memorial,p. 38, para. 2.2.3.2.1,whose skull was pierced
and whowas mercilesslybeaten, the Respondent instead turns to testimony
assembled bythe United States Govenunent of the beating with iron bars of Muslim
men and the executionof 100women through shootingin the back [para.2.2.3.31,at
38). The Respondentargues that this would have beenimpossible, since the UN
SpecialRapporteur on Human Rights in the Former Yugoslaviahad attestedto the
fact that asignificantnumber of Muslimshad already beensystematicallyeliminated
in that region by the invading Serb forces [Counter-Mernorial,p. 55, para. 1.3.3.3.1.
The Respondentconcludes that:
tit was not possible for the Serb troops to round up, kill and maltreat men above 15 years of age
and 100of the most respectable women in the village of Biscani on 20 July 1992 (paras. 2.2.3.3.
and 2.2.3.4 of the Memorial).re did thesmen fit for military service and respectable women
come from afier the alleged massacre in the month of May? This allegationruns counter to the
import of the statement of the United Nations Special Rapporteurreferred to in para. 2.2.4 of the
Memorial in which it is said that there "usedto be six mountain villageshere." As the obvious
implication of this part of the statement these villages, including the village of Biscani, were
totally destroyedin May 1992, is hard to imagine that people wouldtolife in them in
substantialnumbers under these circumstancesal1over ag[ibid.]
134. It is difficult to comprehendthe cynicismof this response. The Respondent seemsto
rely on the total "success"of its campaignof ethnicpurification, and on its absolute
conclusionwithin a short period of the, in its defence againstthe allegationof
genocide.It appears to be incredibleto the Respondentthat, afier the first wave of
the genocide it committedin the region, there rernaineda number of men and 100
women in the village of Biscani who couldbe subjectedto Mer atrocities.
The Applicantdoes not disputethat there were prolongedand repeatedacts of
genocidc in this region. This, of course, is the essenceof the allegation that has been
put. The answerprovided by the Respondentdoes not underminethe validity of the
evidence that hasbeen produced.It addsto the evidenceof genocidalintent.
135. Similarly,rather thanassistingits case, the Respondent,implicitly, admits to its
carnpaignof genocidein this section,by confïrmingin para. 1.3.3.7that Serb forces
did indeed open fire at the village of Harnbarine,a place filled with civilianswhich
sufferedhombly in consequence.The Respondent,then, bluntly states "this is anReply of Bosnia and Herzegovina
armed confiict betweenrnilitaryunits" without offering evena beginning of proof for
this statement.
136. In answer to charges that non-Serbs were keptin inhurnanecircumstances likelyto
endanger their lives and cause harm,the Respondentfocuses on calculating how
many people would fit in a small room without addressingthe fact that non-Serbs
were incarcerated in impossible conditionswhich has been reliablyattested to, and
which forms the essence of theallegationof genocidalacts in this respect [Counter-
Memorial, p. 58, para. 1.3.3.14.1.
Furthermore, the Respondentquotes figures of the numberof Muslims andCroats
treated in Serbianhospitals, in particular a psychiatric hospitalin Sokolac,to show
that they bore no ill-willtowards these non-Serbs [Counter-Memorial,p. 58, para.
1.3.3.13.1.However, a recent ICRC report shows that ofthe Bosnian civilians treated
in this particular hospitaluring the war, seven are reported as missing persons,
narnely:AliSehovié Murat, catoviéAtif, DugaliéEdin, HusiéKada, JusiCSejfo,
Mufti6Mesud, MusliéEjub. This once again confïrmsthe Respondent'strue
intentions behind its facade [ICRC, Listof patients ofpsychiatric hospital Sokolac,
Annex 241.
138. In general terms, the Respondent alsoclaims that there existsno physical evidenceof
serious bodily or mental harm [Counter-Memorialp , . 59, para. 1.3.3.18.1.Infiiction
of pain does not necessarilyinvolvepermanentscarringor destructionof tissue, and
where it does, injury is not always permanent[e.g.European Commission onHuman
Rights in Denmark et al v. Greece: "(...physicaltraces of torture or ill-treatment
may with lapse of time become unrecognisable,even by medicai experts, particularly
where the form of torture itself leaves little externaimarks.", 3321-3167;3344165,
Report of 25 Jan. 19761.Seriousmental hm, long-lasting anddestructivein its
consequencesthough it tends to be, will also only rarely assumeconcrete physical
manifestations [Counter-Memorial,p. 59, para. 1.3.3.18.1.And, of course, there are
vast arnountsof reliably documented instancesof injury with permanent physical
consequenceswhich were caused systematically to non-Serbs, some of whicw hill be
reviewed below. Besidesthat, the Respondentmerely bases its propositionon the
opinion of its own, certainly not very independent, "experts".
139. In as far as the Respondentstatesthat Bosniaand Herzegovinahad, in its Memorial,
not subrnittedenough evidence,the Respondentis wrong, especiallywhen taking into
account that the Memorial was submittedin the rnidstof a war during which Chapter5-Section 3
Causingserious bodily or mental harm to members of thegroup
Respondent was responsiblefor the blockadeof the Applicant's capital.As
mentioned earlier inthis Reply the Applicantis now able to elaborateits position,
and will do so while, as in other sections,relying on objective, international sources
of the highestauthority.
Causingseriousbodily harm
140. The infliction of pain andthe administrationof torture were routine, throughoutthe
conflict. The campaign toterrorize non-Serbpopulations would commenceas soon
as Serb forces assumedcontrol over a given area, specificallywith the intent to
facilitateethnicpurification. "Killings,rape andtorture were carried out in a manner
that was designed tofiighten the non-Serbian populationinto leaving and never
retuming to the area." [UnitedNations,FinalReportof the United Nations
Commission of Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex IV, "The
Policy of Ethnic Cleansing",p. 31,para. 1611.
141. Elsewhere inthis Chapter the Applicantfocuseson certain geographicareas
[Zvornik, Section6; Prijedor, Section7, Srebrenica, Section81and on a retuming
phenomenon [Camps, Section51,al1of which provide gruesome andwell-
documented examplesof "causingseriousbodily harrn"in the senseof the Genocide
Convention. These sections speak for themselves.
142. Thepractice of terrorising thenon-Serb populationthrough rnistreatment of
individualsis also widely attestedto in other instances.At Bratunac, in East Bosnia,
an Imam was beaten and stabbed to deathin fiont of 500-600prisoners afterrefusing
to take the Christianfaith and raise three fingers in the nationalist Serbmanner
[UnitedNations, Situationof HumanRightsin theterritoryof theformer Yugoslavia,
submittedby Mr TadeuszMazowiecki,SpecialRapporteurof the UNCommissionon
HumanRights,E/CN.411993/50,10Feb. 1993,p. 16, para. 651.At Sukovac, Serb
forces beatandinterrogated theinhabitants,until they were readyto be convoyedout
of Bosnia [UnitedNations, Letterdated 12April 1993fiom thePermanent
Representative ofthe United States of America tothe United Nations Secretary-
General, (SeventhSubmission), Sl25586, 13 April 1993,p. 171.At Bileca,
individualswere subjectedto randombeatingsand were forced to eat fiom the same
cans in which they relievedthemselvesWS Departmentof State, Bureauof Public
Affairs, Dispatch, 12Apr. 1993,Vol 4, No. 15,p. 244, Annex251.In Zvornik, Serb
soldiersinvaded the hospitalsand brutallymaltreatedand massacredchildren [United
Nations,Letter dated 13 April1993j-om thePermanentRepresentative ofAustriatoReply of Bosnia and Herzegovina
the UnitedNationsAddressed tothe Secretary-General,Sl25613, 19Apr. 1994,pp.
9-1O].At Biscani, al1men were calledout of theirhousesand forced to lie down in
the center of town on the asphaltwhere they werebeaten withiron bars and forced
to sing patriotic Serbiansongs [US Departmentof State,Bureau ofPublic Affairs,
Dispatch, 2 Nov. 1992,Vol 3,No. 44, p. 803,Annex 261.Sirnilarpractices, coupled
with killings occurred in Rizvanovici.[US Departmentof State, Bureauof Public
Affairs, Dispatch, Vol. 3, No 52, p. 918, Annex271.
143. The gruesome natureof this practice, intendedto inflict excruciatingpain, to
humiliate withinthe contextof ethnicpurification, and toshockthe civilian
population is made evident in the following incident of June 1992,in the region of
Carakovo :
"~n estimated 40 Serb soldiers wearing JNA uniforms marched themen along the road to a spot
called 'Poljski Put' nearthe Sidro Kavana (Anchor Café), where they ordeto sit on the
ground. The Serboldiers then threw two pictures of Titoont0 the ground in fiont of the men and
told some of them to tear up the pictures and eatter this, the Serbs beganto take the men
one by one off to thee to beat them. The witness saw themcarve orthodox crossesinto the
chests of some of the me[United Nations,Letter dated 12 April 1993 fiom the
Permanent Representativeof the UnitedStates ofAmericato the United
Nations Secretary-General,(SeventhSubmission), SI255 86, 13 April 1993,p.
31-
144. This practiceof administeringrepeatedbeatingsagainstcivilianpopulationsso as to
make life untenableand secureethnically"clean"tenitories is illustrated onceagain
by the fate of the smallvillage of Prhovo,whichused to be inhabitedby some 150
people: Chapter 5- Section 3
Causingserious bodily or mental harmto members of the group
"~eanwhile, the soldiers attempted to coax back into the village those residentrunhintod
the woods when the soldiers arrived. The soldiers announced through megaphones that the residents
would not be harmed if they retumed. When these people retumed, the soldiers beat them severely;
about 10 were beaten into unconsciousness...) at about 6.00 p.m. on June 1, the soldiers returned
and again used megaphones to cal1people in fiom the forest. They also went fiom house to house,
pulling people out to the streets. The male residents were beaten se[UnitedNations,
Letter dated 12Aprit 1993j?om thePermanentRepresentativeof the Uyted
States of America tothe United NationsSecretary-General,(Seventh
Submission),S/25586, 13April 1993,p. 9. In fact, many Gere killed after this
treatrnent, ibid.].
145. The campaign ofterror and torture was also institutionalizedin theplaces that were
subjectedto ethnic purification.Non-Serbs were collected andbrought to local police
stations or other facilities. [UnitedNations, FinalReportof the UnitedNations
Commissionof Experts,S/1994/674/Add.2(Vol. IV), 28 Dec. 1994, Annex VIII,
"Prison Camps",p. 91, para. 7361.For exarnple,in the ICTFY Indictmentagainst
Slobodan MiljkoviC & others, thefollowingwas codirmed:
"25. On several different occasionsbetween 17 April 1992 and30 June 1992, at or near the
Bosanski Samac police headquarters (hereafter SUP) and TO buildings, SlobMILJKOVIC beat
Croat and Muslim detainees who were confined there, including Muhamed BiEiE,Esad DagoviC,
Dragan LukaE,Father Jozo PuSkaric,Sulejman TihiC,and Grgo Zubak by kicking them and hitting
them with many different implements,including a policeon, a large metal wrench, an
automobile shock absorber, and an automobilejack.
26. On about8 June 1992, SlobodanMILJKOVIC took Father Jozo PuSkariC,a Roman Catholic
priest, fiom the SUP building whereFather PuSkariCwas being detained to a nearby building
housing a raditransmitter, where Slobodan MILJKOVICbeat Father PuSkariCand broke a bone in
his face by striking him with a hard object.
27. On an occasion sometimebetween about 1 June and 30 June 1992, in the hallway of the
gymnasium of the BosanskiSamac primary school, Milan SIMIC and several others kicked
Muhamed BiEiCand beat him repeatedly with iron bars andchair legs.(...)Reply ofBosniaand Henegovina
29. On about 29 July 1992, in the hallway of the SUP building in Bosanski Samac, Stevan
TODOROVIC and others repeatedly beat and kicked Enver IbraliC,Hasan JaSareviC,Omer NaliC,
and Father Jozo PugkariCwith police batons and heavy boots, thereby causingthe victims physical
injury."
30. Onabout 15 July 1992,in the gyrnnasiumof the Bosanski Samac primary school, Stevan
TODOROVIC and others repeatedly beat Silvestar AntunoviCwith a large wooden club. As a result
of the beating, Silvestarvit suffered partial paralysis and other serious physical injury."
[ICTFY, Indictments,Prosecutor v. MiljkoviC & others, CaseNo. IT-95-9-1,21
July 1995, paras. 25-30,adding at para. 17 that al1such acts were "part ofa
widespread, systematicor large-scaleattack against the Croat and Muslim
residents of the municipalityof Bosanski Samac"].
In other instances, transit facilitieswere createdin or very near the places to be
ethnicallypurified. For example, Buk Bijela was used as a temporary detentionand
interrogation faciliîy for civilianwomen, children and the elderly who werecaptured
in various villages in the municipalityof FoEain July 1992 [ICTFY, Indictments,
TheProsecutor v. Gagovic' & others, CaseNo. 96-IT-23-1,26 June 1996,para. 5.21.
146. While detained at Buk Bijela for severalhours, al1the Muslim civilianswere lined
up along the river Drina and guardedby med soldiers.They were threatened with
being either killed or raped and were othenvise humiliated.The soldiers approached
each detained civilian,and took him or her to the abovementioned accusedfor
questioning.The soldiers separatedthe women fiom their children.Many women
suffered permanent gynaecological harm due tothe sexual assaults [ICTFY,
Indictments,Prosecutor v. GagoviC& others, CaseNo. 96-IT-23-1,26 June 1996,
pp. 7-14, paras. 5, 71. Chapter 5-Section 3
Causingserious bodily or mental harmto membersof the group
147. After having been arrested and penned up in provisional holdingcentres, individuals
were usually expelled or transportedto more permanent detentioncamps or other
facilities. However, their mistreatmentwould already commence beforetheir arrival
at these dark places of destruction.It is reported that detaineeswho had been
arrested by Serb soldiersas Bosanski Novi were heldin railway wagonswithout
water and foodfor three days. Theywere transported toDoboj, but then returned to
Bosanski Novi, where they "wereordered to eat grass." [United Nations, Letter dated
13April 1993 j?om thePermanentRepresentativeofAustriato the United Nations
Addressedto theSecretary-General, S125613,19 Apr. 1994, pp. 18-19;see also,
United Nations,Letterdated 9 March1993j?om theDepu~,Permanent
Representativeof the United StatesofAmericato the United NationsAddressedto
the Secretary-General, Sl25393, 10 Mar. 1993, pp. 11, 131.
148. The final stageof the transport, the arrival at detention facilities,was sirnilarly
horrific. The ICTFY confïrmedin its Order and Judgmentin the TadiCcase the
following practice:
"158. When prisonersarrived by bus at Omarska,they were usually searched, their belongings
taken from them, andthen beaten and kickedas they stood, legsapart and arms upstretched,
against the eastem wall of the administration building.The new arrivals were then sent either to
stayoutside on the pista or to rooms inthe hangar or in the small garages in the office blocks or,if
so selected, to the whitee."[ICTFY,Prosecutorv. Du3koTadit, Opinion and
Judgment, CaseNo. IT-94-1-T, 7 May 1997,p. 60, para. 1581.
149. On occasion, detaineeswere transferred fiom one place of detentionto another. In
the process, further il1treatrnentwas meted out. While being prepared for transport,
in Pale, for example, some 500 prisoners were tied in groups of 10 and had to pass a
line of soldiers who beat themwith cables, clubs and iron batons [United Nations,
Situationof HumanRightsin theterritoryof the formerYugoslavia,reportsubmitted
by Mr. TadeuszMazowiecki,Special Rapporteur of the Commissionon Human
Rights,E/CN.4/1993/50, 10Feb. 1993,p. 161.
150. In reviewing the Indictmentagainst DraganNikoliC,the commander of theSuSica
camp in Vlasenica, the ICTFY endorsed the following allegationof conduct:
"~ikret 'Cite' Arnaut [was forced]to put his hands behind his back and kneel on the floor,
spreading his knees open. DraganNikoliCkicked Fikret 'Cite' Amaut in the stomach and lower
back. DraganNikoliCforced Fikret 'Cite' Amaut to tilt his head back and he put a bayonet into his
mouth. Witnesses saw blood on Dragan NikoliC'sbayonet. Later, Fikret 'Cite' Amaut was spitting
and vomiting biood.[ICTFY,Trial Charnber, Reviewof the IndictmentPursuantReply ofBosnia andHerzegovina
to Rule 61 of the Rules of Procedure and Evidence,Prosecutor v.Dragan
Nikolit, 20 Oct. 1995, CaseNo. IT-94-2-R61,p. 8, para. 171.
151. Other techniques of medieval crueltyincluded slashingvictims and pouring
dangerous liquidsor hot water over themand their fi-eshwounds, or the dischargeof
the contents of afire extinguisher into themouth of a victim [ICTFY,Trial
Charnber,Opinion and Judgment,Prosecutor v. DuSkoTadit, 7 May 1997,CaseNo.
IT-94-1-T, p. 74, paras. 203-204, 316, and ibid., Indictment (Amended),14 Dec.
1995, Case IT-94-1-Tp. 7, para. 91.In another instance,a man was forced to sit on
a one litre Coca Cola bottle, forcingit into his anus and leadingto severe bleeding
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2, 28 Dec. 1994(Vol V), Annex IX "Rapeand Sexual Assault, p.
41, para.1831.Detaineeswere "forced tourinate in one another'smouth, and eat
feces." ["Warcrimes in Bosnia-Hercegovina:BosanskiSamac",HurnanRights
WatcWHelsinki,Apr. 1994,vol. 6, No. 5, p. 12,Annex 281.
152. At other concentrationor detentionand extermination camps, there werealso
prepared specific rooms for torturing non-Serbs, including onenear BrCkoin a
former slaughterhouse where the equipment for dismantling animal carcasseswas
used on prisoners Wnited Nations, Final Report of the UnitedNations Commission
of Experts,Sl19941674lAdd.2(Vol. IV),Annex VIII, "PrisonCamps",p. 91, para.
7381.
153. As some of the above cases alreadyindicate, interrogationsof detainees, whetheror
not they had participated in hostilities, routinely involved beatings, andn
subsequentkillings [United Nations,Final Report of the UnitedNations Commission
of Experts, Sl19941674lAdd.2(Vol. V),28 Dec. 1994,28 Dec. 1994,Annex X,
"Mass Graves", p. 23, paras. 128-129;US Departmentof State, Bureau of Public
Affairs, Dispatch, 19 Apr. 1993, Vol. 4,no. 16,p. 259, Annex 19;United Nations,
Situationof HumanRights in the territory of the former Yugoslavia,Report
submittedby Mr. Tadeusz Mazowiecki,Special Rapporteurof the Commissionon
Hurnan Rights, Transmittedby the Secretary-Generalto the General Assembly and
the Security Council, Al471666,Sl24809,p. 14,para. 321.In fact, the systematic
practice of causing bodily and mentalhami was closelylinked to the attemptto
destruction theindividuals,which was often achieved. Chapter 5-Section 3
Causingserious bodily or mental harmto members of the group
154. In several instances,civilianprisonerswere forced to torture andlor exterminate one
another [United Nations,Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2(Vol. IV), 28Dec. 1994, Annex VIII,"Prison Camps",p. 14,
para. 481.For example, at the Luka camp:
"(...) 500 additional civilians weretaken to the garrison that housedArkan's and Se~elj's
formations. Of these civilians,474 were reportedly forcedto beat each other to death. A major,
identified byame, cut off the ear of one prisoner and forced anotherto lick the blood. In all,the
prisoners were tortured for two days, which included placing apistol in prisoners' mouths and
using a bloodiedcomb to comb their hair.the end of the two days, only26 Muslims survived,
and they weretaken to Bijeljina and the Luka cam[UnitedNations, Final Report of
the UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol. 1),28 Dec.
1994,Annex III.A, "SpecialForces",p. 143,para. 4001.
155. Another account fiom a directwitness fiom the Luka camp indicates:
"TWO prisoners were required to slap each other. The one who didnashardwas killed. One
time, 1saw them cut off the ears of the weak slapper, then cut off his noskillhim by
cutting his throat[US Department ofState, Bureau of Public Affairs, Dispatch,
28 Sep. 1992, Vol. 3, Nr. 39,p. 733, Annex 291.
156. The example of Stara Rijeka, in Prijedor county, indicatesthat such torture, as part
of the process of slow and gruesomekilling, was by no means restricted to the
organized and efficient atmosphere ofthe concentrationcamps. There, nine members
of the same family were founddead, their throats slit. The backs of their knees had
been cut, al1body hairburned off. One victim had been scalped and his eyes had
been gaugedout [United Nations,Final Report of the UnitedNations CommissionofRepIy of Bosnia andHerzegovina
Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994, AnnexX, "MassGraves",p. 41,
paras. 260-2611.
157. The beatingswere by no means exclusively directedat the inflictionof pain, the aim
of permanentmutilation wasfiequentlyapparent:
"1nmanycases,ears,fingers,jawsornoses,andattimes evenbreastscutoff."[United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps", p.
176,para. 2335,p. 9, para. 25671.
"~hi~hswerestabbedwith knives to immobilise indivs.nited Nations,Letter dated
5 December1994$-om the Permanent Representativeof Liechtensteinto the
UnitedNations Addressedto the Secretary-General, SI199411 387, 7 Dec. 1994,
p. 131.
158. The link of these practices of mutilationto the ethnicappurtenanceof the victims is
also recorded in relationto instanceswhere "JNAsoldierscut off two fingers (the
little finger and the ringger) of each man's hand'so they couldmake the sign of
the cross.' Theythen cut off the men's noses and ears, andfinally cut their throats."
[UnitedNations,Letter dated 12April 1993from the Permanent Representativeof
the UnitedStates of America to the United NationsSecretary-General,(Seventh
Submission), Sl25586, 13Apr. 1993,p. 4; see also, United Nations,Letter dated 22
October 1992$-om the Permanent Representativeof the UnitedStates ofAmerica to
the UnitedNations Addressedto theSecretary-General, Sl24705,23 Oct. 1992,p.
101.
159. There exists a very consistent patternof genitalmutilation mostlyadrninisteredin
relation to Muslimmen [ICTFY,Trial Chamber,Opinionand Judgment,Prosecutor
v.Duib TadiC,CaseNo. IT-94-1-T, 7May 1997,p. 75, para. 206; United Nations,
Letter dated 16 June 1993+om the Permanent Representativeof the UnitedStates of
America to the UnitedNationsAddressed tothe Secretary-General, Sl25969, 18 June
1993,p. 16;United Nations, Letter dated 29 June 1993$-om the Charge d'&haires
a.i of the Permanent Missionof Canada to the UnitedNations addressedto the
Secretary-General, SI26016, 30 June 1993,p. 15;United Nations,Letter dated 5
November1992fiom the Permanent Representativeof the UnitedStates ofAmerica
to the UnitedNations Addressed tothe Secretary-General, Sf24791,10 Nov. 1992,p.
71.Men were forcedto "kneeldown and bite offthe penises"of other prisoners
wnited Nations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994, AnnexIX, "Rapeand sexualassault",p. Chapter5 -Section 3
Causingseriousbodily or mentalharmto membersof the group
40, para. 1791,or to "castrate men withtheir bare hands"or, in an even gruesome
scenewhich occurred at Omarska,with wire tied to a motorcycle whichsped off
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rapeand sexualassault", p.
40, para. 179;A similar such case is reported in, United Nations,Letter dated 22
October 19929om the Permanent Representativeof the UnitedStates of America to
the UnitedNationsAddressed to the Secretary-General,Sl24705,23 Oct. 1992,p.
13; see also United Nations,Letter dated 5 March 1993@om the Permanent
Representative of Austria to the UnitedNations Addressedto the Secretav-General,
Sl25377, 6 Mar. 1993,pp. 271.In one instance,in a camp at Celopek,guards cut off
a man's penis with aknife and made him eat it [United Nations,Final Report of the
UnitedNations Commission of Experts, Sl19941674lAdd.2 (Vol. V), 28 Dec. 1994,
Annex IX, "Rape and sexualassault",p. 54, para. 265; United Nations, Letter dated
29 June 1993j-om the Charge d'Affairesa.i. of the Permanent Missionof Canada to
the UnitedNationsAddressed to the Secretary-General,Sl26016,30 June 1993,p.
151.Often corpses would be found, with genitals or other body parts missing [United
Nations, Situation of Human Rights in the temtory of the former Yugoslavia, Report
submittedby Mr. Tadeusz Mazowiecki,Special Rapporteur of theUN Commission
on Human Rights, E/CN.4/1993/50, 10 Feb. 1993,p. 15, para. 63;US Department of
State, Bureau of Public Affairs, Dispatch, 19Apr. 1993, Vol.4, No. 16,p. 259,
Annex 191.
Causing serious mental harm
160. The non-Serb citizensof Bosnia and Herzegovina were, soonafter the beginning of
the armed conflict in April 1992,well aware that each and everyoneof them formed
possible targets for the deadlyampaignof the Serbs.They were aware that they
were possible targets regardlessof their age and gender.They wereaware that the
only criterion that mattered to the Serbswas: ethnicity.This, in itself, caused
tremendous mental harm to the non-Serbsin Bosnia and Herzegovina,because of the
utter inationality of the threat, becauseof the deeplyinsultingnature of such a threat
and because of the fact that it is impossibleto defend oneself against such a threat.
The mental harm thus caused increased with everyday that more details on the
atrocities andkillings became known within Bosnia and Herzegovina.
161. Next to this general mental harm inflictedupon al1of the non-Serbs ofBosnia and
Herzegovina, mental harm was also deliberately causedthrough specificinstances.
These practices were especially,although notexclusively,conductedin camps andReply of Bosnia and Herzegovina
other detention facilities.The Sectionson the Camps [Section51and on Prijedor
[Section 71provide exclusive andhorrific descriptionsof the relevant facts. These
practices includedforcing prisonersto sing songsin praise of Serbswhile being
tortured, the slashingof crosses across prisoners' backs, thf eorcible involvement of
prisoners in unspeakableacts of sexual assaultand mutilation, the creationof an
atmosphereof terror by killing, abusingand threateningdetainees, therebysubjecting
them to extremepsychological trauma, degradation and feao rf bodily injury and
death.
162. Oneparticularway of inflictinglastingpsychologicaldamageconsistedof forcing
prisonersto commit such acts against one another[UnitedNations,Final Report of
the UnitedNations Commissionof Experts, S/1994/674/Add.2 (Vol. IV), 28 Dec.
1994, AnnexVIII, "PrisonCamps",p. 346, para. 28841.Non-Serbs wereforced to
observe the killing,rape ortorture of their fiiends and lovedones or fellowinmates
or captives.In one instance,where a fatherwas forcedto observethe rape of his 12
year-old daughter vted Nations,Letter dated 7 December1992 From the Deputy
Representativeof the UnitedStates ofAmericato the UnitedNationsAddressedto
the Secretary-General, S/24918,8 Dec. 1992,p. 1O].In another instance:
"A key witness was detainedwith his farnily in Kula Butrnir, Sarajevo. He was forcedto watch
while groups of guards raped and sadistically tortured his wife andtwo da8and 13 (aged
years old). This occurred daily untilon the fourth day the younger daughter's throat wascut in
fiont of him. The witness was chainedat the legs and guards beathim to force him to watch,
breaking both his legs. On theh day his elder daughter's throatwas cut. His wife survived until
the 13th day, when her throat was The man committed suicideby hanging himselfon 7 Apnl
1994." [United Nations,Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994, AnnexIX.A, "Sexual
assault investigation",p. 20, para. 115; anothersuch instancerecounted at ibid.,
45, para. 2101.
163. The U.S. Departrnent ofStatereported an incident,that occurredin the soccer-
stadiurnat Bratunac:
"1manMustafa Mojkanovicwas tortured before thousandsof Muslim women, childrenand the
elderly at thewns soccer stadium.His mouth was stuffed with sawdust and his throat was cut."
[US Departrnentof State, Bureauof PublicAffairs, Dispatch, 2Nov. 1992,
Vol. 3, No. 44,p. 804, Annex 301.
164. The most drarnatic formof mentaltorture and of causing permanenttrauma is
related by Membersof the Commissionof Experts. "Childrenranging frombabies to
five year olds, werethrown into ovensby the guards (...those motherswho resisted Chapter5 -Section3
Causingseriousbodily or mentalharmto membersof thegroup
giving up their children were killed on the spot." [UnitedNations, Final Report of
the UnitedNations Commissionof Experts, Sl19941674lAdd.2 (Vol. IV), 28 Dec.
1994,Annex VIII, "PrisonCamps",p. 260, para.21901.
Systematicand widespreadpractice directed against non-Serbs
165. The torture, mutilationsand other means of causingseriousbodily and mental hm
have been recognized as part of the consistent campaign ofethnic cleansingand
genocide by authoritativeinternational bodies. InResolution471147of 18 December
1992,the General Assemblycondemnedthe specificviolationscaused by "ethnic
cleansing", including"killings, torture, beatings, rape, etcand recognizedthat the
Serbian leadershipin territoriesunder their control in Bosnia and Herzegovina, the
Yugoslav Army and the political leadership of the Republicof Serbia bear primary
responsibilityfor this reprehensible practice [UnitedNations, General Assembly
Resolution 47/147, 18 Dec. 1992,para. 3-41.Similar findings were adopted in
subsequentyears, with the specificaddition of the conclusionthat such practices
constitute "a form of genocide." [United Nations,General AssemblyResolution
48/153; ibid., Resolution49/196, 5 Mar. 1995;ibid., Resolution50/193, 11 Mar.
19961.The Commissionon HumanRights similarly condemnedsuch "atrocities
against civiliansand detainees, includingtorture, mutilationand rape", within the
context of "theabhorrentpolicy of ethnic cleansing [which is] a form of genocide",
noting thatthese "continuing massive and systematicviolationsof hurnan rights"
were occurring particularlyin the areas under Serbian controland that the vast
majority of victims are "the Muslimpopulation, virtually threatenedby
extermination." [UnitedNations, Commission onHurnan Rights, Resolution 1993/7,
23 Feb. 1993,para. 52-53].Again, this fmding was restated by the Commission,
emphasisingclearly that this practicewas systematic, directedagainst civilians,and
attributable to the Serb campaign ofethnic cleansing [ibid., Resolution1994/72,par.
203-204; ibid., Resolution1995/89,par. 262-2631.
166. The UN Commission ofExperts concludedin its fuial report that violations,
including torture,occur "on a large scale", ofien in camps which "are mostly in
Bosnia and Herzegovina and holdBosnian Muslims for the most part,but also
Bosnian Croats" [United Nations,Final Report of the UnitedNations Commissionof
Experts, SI19941674(Vol. 1),27 May 1994, p.53, para. 2291.A special report by
the Experts confirms:Reply ofBosnia andHerzegovina
"~he method by which the campaign of 'ethnic cleansing'was carried out ensured that,
comparatively,the most brutal andinhumanetreatment ofthose detained occurred withinthe
geographic arc following the Sava and Drina rivers of the former Yugoslavia.(...) for, it is within
thisegion of BiH that the Serbs requiredabsolute control in orderatseparate nation
with contiguousorders ananuncompromised geographic link with Serbia and Monten. hat
control required subjugation, if not the disappearanceof the non-Serb populationof the
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,AnnexVIII, "Prison Camps",p.
12, para. 321.
167. These systematic acts were found by the ICTFY Prosecutorto constitute
"mistreatmentand other physicaland mental harm calculatedto bring abouttheir
physical destruction." [ICTFY,Trial Chamber,Reviewof the IndictmentPursuantto
Rule 61 of the Rules of Procedure and Evidence,Prosecutor v. Radovan KaradZit
and RatkoMladit, Case No. IT-95-5-R61 & IT-95-18-R61, 11 July 1996,p. 6-7,
para. 13; ICTFY, Indictments,Prosecutor v.zeljko Meakii & others, Case No. IT-
95-4-1, 14 Feb. 1995,p. 5; ibid., Prosecutor v. Sikirica & others, IT-95-8-1,21 July
1995,p. 41.The Trial Chamberhas confïrmedthe "widespread basisand (...)
systematic fashionpursuant to a policy and theywere comrnittedin the context of,
and relatedto, armed conflict." [ICTFY, Opinionand Judgment,Prosecutor v.Duiko
Tadit, CaseNo. IT-94-1-T, 7 May 1997,p. 254-255, para.6601.
4. Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part
Introduction
168. This Section provides evidence demonstrating that, indeed, deliberately conditionsof
life were inflicted on the non-Serbs of Bosnia and Herzegovina calculatedto bring
about their physical destruction inwhole or in part.
It is evidentthat in any armed conflictthe population'sconditionsof life,
temporarily, deteriorate. Thisusually,though sadly, is the collateral effectof
warfare. However, in this Sectionthe Applicantwill show that in Bosnia and
Herzegovina non-Serb civilianswere continuously and expresslytargeted, with the
aim of making their lives altogetherand literally impossible.
169. Al1atrocitiescormnittedin this armed conflict againstthe non-Serb population of
Bosnia and Herzegovina could, effectively,be categorised under the heading ofthis
Section, since al1these atrocities are part of this one and overall pattern, usually
referred to as "ethnicpurification". This Sectionwill, however,focus on certain Deliberatelynzicting on the group
conditionsof life calculated to bring about
itshysical destructionin whole or inpart
specific features of this campaign.At the sametime, in doing so, this Sectionwill
further demonstrate and clariQ the existenceof the mentionedpattern.
170. The Serb war policy entailed the encirclement ofconcentrationsof non-Serb civilians
in villages,towns or entire regions. Thereare nurnerousexamplesof the kind, the
siege of Sarajevo being the best-known,but notper se the most poignant illustration.
While the encirclementprevented the populationfrom escaping, theywould be
continuouslyshelled or shot at, causing thousands of victims.At the same time life-
lines would be cut off as effectively aspossible,resulting in, again, many more
victims. In this Section detailed evidence ofthis policy willbe provided.
171. The policy of encirclementand consequent shellingand starvationwas only practised
if a yet further reaching goal was not realised: thedeportationand total expulsion of
non-Serbs fiom the occupiedterritory. That this particular goal wascentral to the
Serb armed campaign is show throughoutthis Reply. In this Section,the Applicant
will deal with this policy of deportationand expulsionat greater length, thus
highlighting this particular method used to sustainthe mentioned policyof ethnic
purification.
172. After having killed, starved out, deportedand expelled thousands ofnon-Serb
civilians, the campaign ofethnic cleansingwould be finalised through the eradication
of al1traces of non-Serb culture. The Serbswould taketo destroy historical, religious
and cultural property, includinghundredsof mosques and Catholic churches, which
destruction as a rule took place afîer a region was taken over and afîer the fighting
(if there had been any at dl) had stopped.This destructionwas in no way collateral
and cannot be explained in rnilitaryterms. It, on the contrary,Mer illustrates how
the intent of the Serbs was focused on the destruction,in whole or in part, of an
ethnically defmed part of the population of Bosnia and Herzegovina.
Encirclement, shelling, starvation
173. The campaign of ethnic purificationcan also be traced through the encirclement,
shelling and starvationof concentrationsof civilians.These were inhabitantsin
regions which had been principally overrunby Serb armed forces. They would be
cut off from the outside world andfrom essential servicesnecessaryfor their
survival. They would be deprived even of UnitedNations sponsoredhumanitarianReplyofBosnia and Herzegovina
assistance,and subjectedto armed attack,either throughsniper action, orthrough
shelling.In al1cases,the populationsof these places had been swelledby non-Serbs
who had been"cleansed"fiom outlying areas, renderingthe enclavesunsustainable.
174. By April 1993, the sufferingin these areas was so immense thatthe UnitedNations
Security Councildeclared several,althoughby no means dl, of these enclavesso-
called "safeareas" (Sarajevo,Tuzla,iepa, Gordde, Bihadand Srebrenica).
Accordingto the relevant Resolutions, adopted under ChapterVI1of the Charter,
"safeareas" were tobe sparedfiom armed attack andfiom constant military menace,
and they wereto be îully accessibleto humanitarianaid [United Nations,Securiw
Council Resolution819, SIRES18 19, 16 April 1993;Securiiy Council Resolution824,
SlRESl824,6 May 1993;Securiiy Council Resolution 836 S/RES/836,4 June 19931.
However,even the internationaldemandfor mercy for the abandoned peoplein these
regions was ignoredby the Serb forces,who continuedtheir campaign of
encirclement, starvationand directmilitary attack unencumbered,culminating in the
taking of Srebrenicaand zepa in the swnmer of 1995.
175. This policy ofthe deliberatecreationof conditionsof life calculatedto bring about
the physicaldestruction inwhole or in part of a group through encirclement, shelling
and starvationof population centreshas been addressedin section2.2.6 of the
Memorial. Inthe Counter-Memorial,the Respondentappearsto denythe existenceof
evidenceto that effect [Counter-Memorial, p. 73, Section 1.3.6.1.Instead of actually
engagingthe evidence produced, the Respondentt,hroughoutthis Section,tries to
tum things upside down and embarkson various accusationsof the Bosnian
Governmentauthorities.The accusationsregardingincitement [Counter-Memorial,p.
73, paras. 1.3.6.2.-1.3.6.6.1turn in almostthe samewording as part of the counter-
claims submittedby the Respondent.These allegations aredealt within Part V of
thisReply [Chapter 16, Section21.
176. The Respondentgoes so far as to suggestthat the Bosnian Governmentauthorities
were directly responsiblefor many atrocitiescommittedby Serbs.This assertion
includes the killing ofmentallyhandicappedchildrenand the attackingof the civilian
population ofSarajevo. TheRespondentoffers as evidence forits worst allegations
materials, reports,and statementsproduced in Belgrade.The Applicantdoes not
deem it useful to go into detail regardingthis "evidence", butwill provide the Court
with someadditional factual informationin the followingpages ofthis Section. The
Respondent goes so far as to clairnthat the sufferingof Sarajevo andits inhabitants
"has actually beenimposed onit by actionsof the Sarajevogovernment",even Chapter5 -Section 4
conditionsof life calculated to bring about
itshysical destructionin whole or inpart
claiming that "no seasonedobserverin Sarajevodoubts for a momentthat Muslim
forces have found it in theirinterestto shell friendlytargets"to "driveup the price
for black-marketgoods" andthat it was the government of Bosnia andHerzegovina
which interrupted thewater supplyto the city [Counter-Memorial, pp. 76-77, para.
1.3.6.19.1.
177. As will be Mer discussed below, the Commission of Experts hasproduced an
extensive reporton the siegeof Sarajevo,which leavesno doubt about the tmth of
thismatter [United Nations,Final Report of the UnitedNations Commissionof
Experts, S/1994/674/Add.2(Vol. III), 28 Dec. 1994,Annex VI,"Part 1, Studyof the
Battle and siege of Sarajevo"; ibid., Annex VI,"Part2, Study of theBattle and Siege
of Sarajevo"; ibid.,Annex V1.A"Incident Studyreport regardingmortar shelling
Dobrinja, Sarajevoon 1 June 1993:Investigation; ibid.,Annex VI.B, "TheBattle of
Sarajevoand the law of armed conflict"].The report shows that thesiege of Sarajevo
was, from a rnilitary point ofview, very well preparedby the Respondent'sanny
(JNA). It also showshow the entire city has beenkept locked-inby the Serb military
and how the populationwas terrorized, ifnot woundedand killed, by Serb snipers
throughout thewar.
178. Actually, but a few life-linesconnected Sarajevo tothe outsideworld: satellite,
telephones, TV and radiotransmittersand receivers, UnitedNations personnel,
UnitedNations transportsand the tunnel underneaththe airport of Sarajevo.Many
people were killed by Serb forceswhile trying to get into or out ofthe city. Many
people were also killed in accidentson the narrowroad onMount Igman which was
the only road giving accessto the city, since it was connectedto the tunnel
underneaththe airport. It is preposterousto use the mere fact that many Sarajevans
managed tosurvivethe siege (10,000 ofthem were killed by Serbsnipers and Serb
rnilitary) assome sort of "proof',that there was no siege of the capital at all. The
Applicant will elaborateon the situationin Sarajevo below.
179. In view of the Respondent'smanifestlyabsurd, and, in any event, entirely
unsupportedassertions,it is necessaryto review once again, howeverbriefly, the
ethnicpurificationcampaignthrough encirclement, shellingand strangulation
inflicted upon civilian concentrationsby the Serb authoritiesand their armed forces.
As throughoutthis presentation of theevidence, thiswill be done exclusively through
the review of duly attestedfindingsof the ICTFY andits prosecutorial office, theReply ofBosnia andHerzegovina
United Nations Commission onHurnanRights Special Rapporteuron the Situation in
the Former Yugoslavia,the UN Commission of Experts, theUN Secretary-General
and the most respected citizens'organizationsand publicists.
180. With regard to Sarajevothe Applicant wishes todraw attentionto the following.
The ICTFY Trial Chamberhas foundthat:
"during the whole siege ofSarajevo,the civilianpopulationwas subjectedto shellingwhich
concentratedon civilian gatheringsand to selectivesniping at individual victims. Furthert,he
minimum conditions forsubsistenceimposedon the inhabitants seem tohave contributed tothe
demoralisationandradualweakening ofthe populati(...."[ICTFY,Trial Chamber,
Review of the IndictmentPursuantto Rule 61 of the Rules of Procedure and
Evidence,Prosecutor v. RadovanKaradZiC & RatkoMladiC,CaseNo. IT-95-5-
R61 & IT-95-18-R61, 11 July 1996,p. 33, para. 631.
Similarly, in the Djuki6indictment,it was confirmedthat from "aboutMay 1992to
about December 1995,in Sarajevo, Bosnian Serb militaryforces, on a widespread
and systematicbasis, deliberately or indiscriminately fired on civilian targets that
were of no military significancein order to kill, injure, terroriseand demoralisethe
civilian populationof Sarajevo." [ICTFY, IndictrnentsT , heProsecutor v.Djordje
Djukic, CaseNo. IT-96-20-1,29 Feb. 1996,p. 2, para. 71.
181. The attacks on the cityof Sarajevo were directed towardresidentialareas. This was
no coincidence,as is illustratedby the following incidentthat took placeon 27 May
1992.It was reportedby the Commissionof Experts:
"~he BiH Govemment allegedly tapeda conversation betweJNA general andtwo Serbian
colonels over Serbianradio frequencies. It wasreportedthat General RatkoMladiCedtwo
Serbian colonels(identifiedonly by the Muslimcodenames 'Mustafa'and 'Zijo') toattack
residentialeas of Sarajevowith heavy artillery.The report statedthat MladiCwas probably
speakingfrom the Lukavica militarybarracks, in the south-westsuburbsof Sarajevo,to 'Zijo'in
Vraca, a hilly suburbto the southof Sarajevo,and to 'Mustafa'on Boje Mountainto the north-
east of the city. Specifically,it is allegedthat in the recording Colonel 'Zijo'arguedthat artillery
attacks shouldbe directedtowardsas with fewer Serbian residents.MladiCallegedly disregarded
the colonel'scomment and ordered histroops to bombtheSiCiand Pofali8 residentialareas of
Sarajevo.With regard toleSiCi,MladiCordered his troopsto 'burn it all'.MladiCalso ordered
his troopsto attack civiliantargets with the heaviestshellsin the Serbianforces' armory,namely
155millimetrehowitzershellsinstead ofthe lighter82-millimet120nmillimetreshells."
wnited Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. II), 28 Dec. 1994,AnnexVI, "Part1, Study of the
Battle and Siegeof Sarajevo", p. 193, para.2831. Chapter5 - Section 4
Deliberately inflictingon thegroup
conditionof life calculated to bring about
itshysical destructionin wholeor inpart
The siegeof Sarajevohad no militq justification at all. The purpose of the siege
was to "buni it dl", preferablythose areas with "fewer Serbian residents".
182. The encirclementand strangulationof Sarajevo has beenchronicledby the United
Nations SpecialRapporteurin his successivereports. Already in August 1992,he
reported:
"17. The siege, including the shellingof population centres and the cutting off of supplies of food
and other essential goods,is another tactic used to force Muslims and ethnic Croatians to flee. The
most dramatic and well-known case is Sarajevo.) The city is shelledon a regular basis, in what
appears to be a deliberate attempt to spread terror among the population. Snipers shoot innocent
civilians. The mission visitedthe hospital itself,which has been deliberately shelledon
occasions, despite the proper display of the intemationally recognized Red Cross symbol. Cultural
centres have also been targeted, leading some observersto the belief that the attacking forces are
determined to "kill" the city itself, and the tradition of tolerance and inter-ethnicharmony which it
represents.
18. The civilian population livesin a constantstate of anxiety, leaving their homes or shelters only
when necessary. Any movement out of doors is hazardous, and many persons and families spend
long penods in isolation. The public systemsfor distributionof electrical power and water no
longer function. Food and other basic necessities are scarce,andon the airlift organized by
UNHCR and protected by UNPROFOR." [United Nations,Situationof HumanRights
in theterritoryof theformer Yugoslavia,Report submitted bM y r. Tadeusz
Mazowiecki,Special Rapporteur otfhe Commissionon HumanRights,
ElCN4.19921S-1192 ,8 Aug. 1992,p. 4, para. 17-18].
183. Twomonths later, describing Sarajevoas a dying city,he reiterated:
"~he population is desperate.Cases of people dying in the streets fiom hunger and exhaustion have
been reported.(...) the constant shellingof the city is terrorizing the population.The delivery of
humanitarianaid is extremely difficu[UnitedNations,Situationof HumanRightsin
the territoryof theformer Yugoslavia, Repor stubmitted byMr. Tadeusz
Mazowiecki,Special Rapporteur of the Commissionon HumanRights,
ElCN4.1992lS-1/10,27 Oct. 1992,p. 5, para. 171.
184. Soonafterwards,the SpecialRapporteur hadto note that:
"~upplies of electricity, water and gasto Sarajevo have al1but stopped (...) a significant proportion
of theamage caused to the lines has been deliberate [UnitedNations, Situation of
HumanRightsin the territoryof theformer Yugoslavia, third periodic report
submittedby Mr. TadeuszMazowiecki, SpeciaR l apporteur ofthe Commission
on HumanRights,ElCN.411994162 ,6 Aug. 1993,p. 2, para. 61.Reply of Bosnia and Herzegovina
Aid, including medical aid was still being blockedand the shelling continued
unabated Civilianswere terrorised by a campaign of sniping[ibid.,pp. 4-7, paras.
16, 25-26, 36-37].
185. In reply to the absurd assertion that it was the Governrnentof Bosnia and
Herzegovinawhich inflicted these tortures upon its own people by destroyingthe
infrastructurenecessaryfor their survival. In August 1993 the SpecialRapporteur
actually visitedthe city. With referenceto the Serb practices,he indicatedthat:
"this trip had providedhim with first-hand ev(...[of] the starvation of a besieged
populationas a methodof warfare; The use of the civilian populationas militarytargets and their
deliberate killing and wound; hedenialand destructionof electricity, water andgas supplies,
of foodstuffsand of medicalsupplies which are essentiatlo the sunival of the civilian population;
the repeatedshelling ofhospitals; The detentionof civiliansas h[ibid.,p. 8, para.
441.
186. This campaign lasted throughout theyear, constraining the Special Rapporteurto
find early in 1994that:
"Sarajevo remains subjectto indiscriminate attack andto sniping, directedffomterbytory held
the Bosnian SerbBy early Januar1994there were an averageo1000 shellor rocket impacts
per day.any civilianshave lost theirlive[UnitedNations,Situationof Human
Rightsin the territory oftheformer Yugoslavias ,ixthperiodic report submitted
by Mr. Tadeusz Mazowiecki, Special Rapporteu ofrthe Commissionon Human
Rights,ElCN.1199411102 , 1 Feb. 1994,p. 11,para. 591.
187. Rather than abating, this carnpaign gainedin vigour and viciousnessthroughout
1994:
"~he extent of heavyweapons attacks hasalso increased, especiallysince mid-August. Attacks
occur in boththe city centre and the suburbs and have been directednces, pedestrianson
the Streetand moving vehicles,suchastrams packed with peo(..Attacksby Bosnian Serb
forces on the civiliansof Sarajevoalso manifestthemselvesby meansof blockingof services
essentialfor city life. Primarysuchactionsare the interference with humanitarianaid."
[UnitedNations, Situationof HumanRightsin the territoryof theformer
Yugoslavia,ninthperiodic reportsubmittedby Mr. Tadeusz Mazowiecki,
SpecialRapporteurof the Commissionon HumanRights,Transmittedby the
Secretary-Generalto the General-Assembly and the SecurityCouncil,A/49/641,
SI199411252,4 Nov. 1994,pp. 9-10, paras. 27-28].
188. In November and December 1994,he found there was a Mer intensificationof
attacks on Sarajevo: Chapter 5- Section 4
Deliberately injiictingon the group
conditionsof life calculated to bring about
itshysical destructionin whole or inpart
"1n one attack on 8November 1994three childrenand one adult civilian woman were killedby
sniper fire and mortars[United Nations,Situationof HumanRightsin the territory
of theformer Yugoslavia,tenthperiodic reportsubmitted by Mr. Tadeusz
Mazowiecki,Special Rapporteur of the Commission onHumanRights,
ElCN.4119951571 ,6Jan. 1995,p. 6, para. 131.
189. In late April 1995,the SpecialRapporteurhad to report that the level of firing
incidents increased evenfurther:
"and civilians were reported to havebeen killed orinjured on an almost daily bais by shelling or
sniping. On 25 April 1995, one civilian waskilled andfive others reported injured when small
arms fire was opened againstiwo buses in Sedrenik, a suburbof Sarajevo under the control of the
government of Bosnia and Herzegovina. (...) the first major assault took7pMay 1995
when the Bosnian Serb forces shelled the Sarajevo suburbofir, killing 9 people and
wounding 50 others, withirtually al1the victims being civilians. On 16May 1995, some of the
heaviest fighting in morean a year was reported resultin3dead and 26 wounded. Civilian
lives were heedlessly endangered asmortar shells were fired by the Bosnian Serb forces into
densely popuiated areas. (...) In an incident on 18June 1995,7 people were killed and 12 injured
when a shell fired by the Bosnian Serb forces landed in the western suburb of Dobrinja.
civilians were killed in a queue at a water supply point, having been compelledto ieave their
homes by the cutting of the water supplyby the Bosnian Serb for[United Nations,
Situationof HumanRightsin the territoryof theformer Yugoslavia,periodic
report submittedby Mr. Tadeusz Mazowiecki, Special Rapporteu of the
Commission on HumanRights,ElCN.411996165 , July 1995,pp. 14-15,paras.
67-70].
190. The United Nations Commission ofExpertsalso analysedthe campaignof terror
against Sarajevo. The Serb forces have "concentratedtheir efforts on weakeningthe
city through constantbombardment from thesurroundinghillsides",using up to
1,100artillery pieces,not including tanksand other weapons.There were from 200
to 300 impacts ona quiet dayto 800 to 1,000shell impacts on an active day.
[UnitedNations, FinalReportof the UnitedNationsCommissionof Experts,
S/1994/674(Vol. 1),27 May 1994,p. 44, paras.186-1871.They continued:
"189. An examination of the range of destruction in Sarajevo reveals a pattern of specific targeting.
The followingtargets were documentedin the chronoloasbeing arnongthe most fiequently
targeted sites in the city: the Kosevo Hospital; the Sarajevoradio andtelevision stations;the
Oslobodenje Newspaper building, which is still in operation; the publication system; the
Presidencyand Parliament buildings;the main city brewery; the flour mmain bakery; the
Olympic complex; the industrial area of Alipasin Most near the railway station and main television
tower; the Jewish cemetery; the Lion Cemetery; the city airport; the tobacco factory; the Dobrinja
apartment complex; the central district;Bascarsija (the old quarter of mosques); the Stari Grad
Section; New Sarajevo; the main thoroughfareon Marshal Tito Street; and the shopping district at
Vase Miskina.Reply ofBosnia andHerzegovina
190.The chronology confirmsthat certain areas of the city have also been systematically shelled
throughout the course of the siege, particularly cultural and religious structures and public utilities.
The city centre, theirport and southwestern suburbs had consistently been the mostoften targeted
areas. The historic old town area hadalso been heavily shelled.
191.A review of the incidents in the chronologyalso indicates a random processof shelling
throughout the civilianreas of the city. The shelling, which occursat different times of the day
without any apparent pattern or specific target,has a terror-inspiring effect onthe civilian
population. It is particularly telling that deaths, injuries and destruction havinoccurred
parts of the city and in such well-known non-military settasschools, open streets, public parks,
football and athletic fields, cemeteries, hospitals, and evenbread, water and relief the city.
(-1
194.The cumulative effectof the number of civilian casualties, the destructionof non-military
structures, attacks upon and destructionof protected targets,as hospitals, culturalproperty and
other impermissible targets, evidence a consistent and repeated pattern of grave brsf the
Geneva Conventions and other violationsof international humanitarianlaw. Theength of time
over which these violations took place and their recurrence clearly establish at least a large
number of incidents,those ordering and canying out these actions committedsuch violations."
[Ibid., pp. 45-46].
191. A specialteam from the Commission ofExpertsaddressedthe campaignof shelling
and sniping in even greater detail, especiallyin light of earlier Serb allegations that
some of the attacks had,in fact, been mountedby the government ofBosnia and
Herzegovina.It found clearlythat there was a deliberate tactic of using heavy
artillery "as a weapon ofterror" [United Nations,Final Report of the UnitedNations
Commissionof Experts, SI19941674lAdd.2(Vol. III), 28 Dec. 1994,Annex VI.B,
"TheBattle of Sarajevo andthe Law of Armed Conflict",p. 13,para. 451.Moreover,
the Experts concluded:
"~he weapons systemsbeing used by BSA forces in the siege of Sarajevo, predominantlydirect-
fire weapons, andartillery at point blank, frequently direct-fire range, are systems whichcan be
used with a highdegree of accuracy. A sniper rifle is normally aimedat a particular person in view
of the sniper.ortars and guns usedat short range normally fire projectiles which landquite close
to where they are aimed.hese are not inherently indiscriminate weapons, particularlyin the case
of sniper fire. If-combatantsare being killedor wounded, this occurs because the sniper
intends to kill or wound them.[Ibid., p.28, para. 821.
192. The Respondentapparently choseto just ignorethese independentfindingsand in its
Counter-Memorial bluntly repeats allegationswhich have been refutedlong ago. It
shouldbe noted once again that for most ofthe period of the siege,Sarajevowas an
official United Nations"safe area", which should have remained fiee fiom any
attackswhatsoever.In addition, humanitarian access should have been granted,but
was repeatedly denied, for exampleby "obstruction of the normaloperationof
Sarajevo airport, including the suspension ofthe humanitarianairlift, caused by
Bosnian Serb threats against UnitedNations aircraft and relief flights" Deliberately inficting on the group
conditionsof life calculated to bring about
its physical destruction in whole or inpart
[S/PRST/1995/25,3 May 19951.The UN Secretary-Generalhad to note that "snipers
targetedUNPROFORpersonnel on a nurnberof occasions, and repeatedviolationsof
the demands of the UN SecurityCouncil to respect the "safearea" eventually
triggered a United Nations military response." [United Nations,Report of the
Secretary-General Pursuant to Security Council Resolution982 (1995) and 987
(1993, Sl19951444,30 May 1995, paras. 8, 121.The "safe area" statusproved no
protection for the city,ust as it offered no salvationto other so-called "safeareas",
especiallyGoraiide,iepa and Srebrenica.
193. Unfortunately,Sarajevo is not the only telling exampleof how the Serb side
deliberately inflicted conditionsof life upon the non-Serbs of Bosnia and
Herzegovinacalculatedto bring about their physical destructionthrough
encirclement, shellingand starvation.Another well-knownexarnpleis, of course
Srebrenica. A special SecurityCouncil Mission concludedthat "Srebrenica istoday
the equivalentof an open jail, in which its people can wander around but are
controlled andtenorized by the increasingpresenceof Serb tanks and other heavy
weapons in its immediate surroundings."[United Nations,Report of theSecurity
CouncilMission Pursuantto Security Council Resolution819 (1993), Sl25700,30
Apr. 1993,p. 6, para. 181.
194. Becauseof the exemplary natureof the siegeof Srebrenica,which culrninatedin the
horrific massacre of eight to ten thousand Muslimsin July1995, a specific Section
of this Chapter will be devoted tothe atrocitiescornmittedby the Serbs in Srebrenica
[Reply,Chapter 5, Section 81.There :isno doubt thatSrebrenicarevealed exactly
what the intent of the Serbshad been.
195. The picture in Goraiidewas very similar to that whichprevailed in Srebrenica.The
town had a pre-war populationof 40,000. However, byFebruary 1993,the enclave
accommodated 70,000,includingthe outlying villages and those displacedfrom
surroundingareas. At that tirne, the United Nations SpecialRapporteur indicatedthat
the enclavewas being shelled andthat the encircling Serbforces denied the passage
of convoysof humanitarian aid for two months. Instead, food was being air-dropped,
but at insufficient levels to ensure the survivalof the population:
"1tis reportedthateverynightupuntilmid-April,between600 1,000people wouldmakethe
42-kmjourneyfromGorGdeto Grabacvillage toeatandto findsupplies tocany backto their
families.Thisrouteis reportedlynow c[United Nations,Situation of HumanRightsReply of Bosnia and Herzegovina
in the territoryof theformer Yugoslavia,periodic report submitteb dy Mr.
TadeuszMazowiecki,Special Rapporteur otfhe Commissionon HumanRights,
E/CN.4/1994/3, 5 May 1993,p. 10,para. 421.
196. In Spring 1994,GoraZdewas subjected toa military onslaught whichtriggered
widespread internationalcondemnationfor its viciousnessin targeting a concentration
of the displaced [see also Reply, Chapter 8, Section51.The carnpaign has been
described by the Special Rapporteur:
"~he early stages of the offensive were markedby the overrunningof a numberof villages (...)
The assaultson the villages involved widespreadterrorizationof the residents, evictionfiom and
the destruction of their homes, and the killigf livestock. Eye-witnesses havealso attestedto the
commissionof rape by groups of soldiers.The attacks onthe villagesof Staniciand Kordiciare
indicativeof practicesof the advancing troops.In thesevillages, a numberof residents were
summarilyexecuted including elderlywomenand handicapped men. Bodies of the dead were
subsequentlymutilated and decapitatedT . he Special Rapporteurhas received informationthat tank
roundswere fired directly into homes.At al1stagesof the offensive,villagersfled in fear of their
lives, leaving behind homes, land and possessionT s.he people subsequentlymade their wayto the
town of Goraiidewherethere were no resourcesto meeteventhe most basicof their needs for
shelter and food.The military attacksonthe town of Goraiide (...)includedthe deliberate targeting
of civilian and highlysensitivetargets like hospitals and interference with attemo bring care to
those who were wounded.Mostfatalities were causedby direct mortar and missile fire and
shrapnel. Later inthe offensivethe numberof sniper casualties rose.The hospitalwas deliberately
targeted on many occasions, causingheavylossof life and wounding. (...Duringthe fightingthe
city lost itslectricitysupply and the water supply was halted by Bosnian Serb wsho gained control
of the area surroundingthe water stationat Usanovic.They subsequently destroyedthis facility.
Lack of mnning water obliged peopleto line up for waterat wells, where theywere exposedto
sniper fire, and manywere killed.The water shortagealsopresented a grave riskto health. (...It
may be noted that the attack on thetown of Goraiideinvolvedthe use of weapons ofgreat
destructiveforce. These included 'aerosolbombs'and wire-guided missilesA . n attackon the
Vitkovici chemicalplant resultedin risksof damageto the healthof people and livestock and
environmentaldamagefollowingthe piercingof containersof ammoniumnitrate." [United
Nations, Situationof HumanRightsin the territory oftheformer Yugoslavia, Chapter -Section 4
Deliberately injlicting on the group
conditionsof Ife calculated to bring about
its physical destructionin whole or inpart
seventhperiodic report submitted byMr. TadeuszMazowiecki, Special
Rapporteurof the Commissionon HumanRights,ElCN.41199514,10 June
1994,pp. 2-3, paras. 7-12].
197. The UN Security Council stated thatit stronglycondemnsthe shelling and infantry
and artillery attacks by the besieging Bosnian Serbforces against the "safe areas" of
Goraiidein which many civilianshave losttheir lives and several hundreds have
been wounded." vnited Nations, Security Council Resolutio4 n00 (1994),
SI19941400,6 Apr. 1994,and Security Council Resolutio9 n13 (1994), SI19941913,
21 Apr. 1994. Also, among many, the Statemeno t f Governmentsconcerning the
situation in the Republicof Bosnia and Herzegovina, UnitedNations Document,
SPV.3367, 21 Apr. 19941.The United NationsHigh Cornrnissionerfor Refugees
reported that the "on-goingheavy shellingis causing increasingpanic among the
population of 65,000 people, two-thirdsof them displaced (...the situation has
become critical. Countless howitzerrounds are falling al1around the city centre and
into the south suburbs." ["Update",UNHCR,10Apr. 19941.Despite the active
involvement of the internationalcornmunityin this situation, andin defiance of the
demands of the SecurityCouncil, it was subsequentlyreported that "the situation in
GoraZderemains very tense (...local civiliansand UnitedNations personnel have
been targeted repeatedly.Attacks intensifiedduring July andAugust 1994,when the
use of weaponry such as anti-aircraftguns and mortars resulted in a daily toll of
dead and injured civilians." [United Nations,Situationof HumanRightsin the
territoryof theformer Yugoslavian , inthperiodic report submitted by Mr. Tadeusz
Mazowiecki, Special Rapporteuo rf the Commissionon HumanRights,Transmitted
by theSecretary-General tothe General-Assembly and theSecurityCouncil,
Al491641,Sl199411252,4 Nov. 1994,p. 9, para. 251.
198. Even after NATO threatened air-strikesto protect the enclave, its situation did not
irnprove markedly,humanitarianconvoyscontinuingto be harassed or turned back
[United Nations, Reportof theSecretary-GeneralPursuantto Resolution913 (1994),
Sl19941600,19 May 1994,para. 171.In fact, the encirclementand attacks lasted well
into 1995 [UnitedNations, Situationof HumanRightsin the territoryof theformer
Yugoslavia,periodic report submittedby Mr TadeuszMazowiecki,Special
Rapporteur ofthe Commissionon HumanRights,E/CN.4/1996/6,5 July 1995,p. 17,
para. 831.Reply of Bosniaand Herzegovina
199. Again, a similar pattern recurred in Bihaé.In August 1992, the UnitedNations
SpecialRapporteur hadto note that "Thecity and region of Bihaé (...is aiso
besiegedby ethnic Serbian forces.Shelling occurs daily. Thereare no significant
military targets in the city, and the main reason for the shellingappearsto be that of
tenorizing the civilian population." [UnitedNations, Situation ofHumanRightsin
the territov of theformer Yugoslavia, report submitted bM y r TadeuszMazowiecki,
Special Rapporteur of the Commissionon HumanRights,ElCN.4119921S-119 2,8
Aug. 1992, p. 6, para. 201.
200. Despitethe fact that Bihaéwas one of the so-called "safe-areas",this situation
continued unabeted.In 1994 the UnitedNations Security Council noted with alarm
the escalationin Bihaé and theflow of refugeesand displaced persons resultingfiom
it [S/PRST/1994/66,10 Nov. 19941.The UnitedNations Special Rapporteur noted:
"~he intense attackconcentratedon BihaCtown is beingperpetratedprimarilyby BosnianSerb
forces, with substantialcal (includingair) support providedby the forces of the so-called
'Republicof Serb Krajina'.The assaulton BihaCtown is being conducted withno obviousconcem
for the safety of civilians.Thetown has been pummelledbyand other missiles,causing
considerablelossof life and injuries.l-attestedreports indicate thatthe BosnianSerb
troops were destroyingvillageswhich theyencounteredin the course oftheir progressintothe
BihaCpocket" [UnitedNations, Situationof HumanRightsin the territoryof the
former Yugoslavia, tenthperiodic report submitte by Mr TadeuszMazowiecki,
Special Rapporteurof the Commissionon HumanRights,ElCN.411995157, 16
Jan. 1995,pp. 5-6, para. 121.
201. The Security Councilwas constrainedto condemnthe further escalationof attacks,
includingby aircrafi "which involvedthe dropping of napalm andclusterbombs in
southwest BihaC,in clear violationof Bihaé'sstatusas a safe area." Chapter5 -Section 4
Deliberately inflictingon thegroup
conditionsof life calculated to bring about
itsphysical destructionin whole or inpart
[S/PRDT/1994/69,18 Nov. 1994; see also, United Nations,SecurityCouncil
Resolution 959 (1994), SRESl959, 19Nov. 19941."Throughoutthis period, access
to the Bihaé pockethas remained extremely discult for UNPROFORand almost
impossiblefor humanitarianconvoys", theUN Secretary-Generalhad to note, as only
twelve out of 144 plannedconvoyshad reached thecity over the year. Evenair
drops were not possible, given the securitythreats [United Nations,Reportof the
Secretary-General Pursuantto SecurityCouncil Resolution 959 (1994), SI199411 389,
1 Dec. 1994,para. 171.Well into 1995, "the people of Bihaé [wereo ]n the verge of
disaster (...the lives of many men, women and childrenare at risk. If a tragedy is
to be avoided,regular and safe humanitarian accessmust resume." ["Update",
UNHCR,16 Feb. 19951.
202. By 1994,it was estimatedthat approximately 800,000 people livedin the greater
Tuzla region, 240,000 of them being displaced.The "entirepopulation [is] dependent
on humanitarian assistance forits survival"the UN Secretary-Generalnoted, whenhe
reported with equal relief and surprisethat an imrnediate humanitariandisaster over
the winter had beenavoided [UnitedNations, Report oftheSecretary-General
Pursuantto SecurityCouncil Resolution 844 (1993), 836 (1993) and 776 (1992),
Sl19941333,24 Mar. 1994,paras. 2, 41.
203. The area remained encircled, and the use of its airport for humanitarian flightswas
constantly deniedby the surroundingSerb forces. Tuzla was once more shelledon
25 May 1995by the Bosnian Serb forces, which:
"willberemembered asoneof theworstatrocitiesof thethree-yearwar.Theattacktookplace on
a latcspringdayin a cafe areaffequentedbythe youthof thetown,andresulted inthedeathof 71
personsandthewoundingof 151others,33 critical(..Thebarbarityof thisattackwas
highlightebytheyouthandvulnerabilitof theseparticuvictims. Eyewitneseportsgave
harrowingaccountsof limbsand otherpartsof bodiesbeingfound stacrossthearea."
[Unitedh'ations,Situation ofHumanRightsin theterritory oftheformer
Iirgoslmia,periodic report submitted by Mr. TadeuszMazowiecki,Special
Rapporteur ofthe Commissionon HumanRights,ElCN.411996165 , July 1996,
p. 17,para. 821.
204. If this is what happenedin areas which werenot formally designated"de areas", it
is not surprisingthat a similar pattern was to be found in towns and areas which
were encircledas well, but had not been given this special status.Reply ofBosniaand Herzegovina
205. The situation in Cerskawas typical ofmany other besieged places whicheventually
fell to sustainedbombardrnentand encirclement.
Mazowieckireported:
"9. In MayIJune1992 Serb forces surroundedthe area of Cerskausingheavy artillery,tanks and
aeroplanes (whichwere reportedlyin use until August).A confrontation line was thereby
establishedwhich remained virtuallyunchanged forsevenmonths untilDecembedJanuary 1993.
Infantry and heavyartillery attackson these harnlets arereported tohave beenvimially non-stop
after June 1992.
10. Accounts of lifein the Cerska enclaveduringthese seven monthsrelate how villagerswould
try to work their fields at nightin an attemptto avoidthe shellingand snipers.Supplyof foodwas
thus reported tobe one of the biggestproblemsin Cerskaprior toits fall and there are many
accountsof children dying ofhunger.People reportedlyate horsefodder,leavesand the bark of
trees. Shellingwas constant,and people soughtshelterfiom the winter in the corners ofruined
houses or basements,in very overcrowded conditions.Somevillagerslived in the woodsduringthe
summerand winterof 1992,returningto their homes onlyfor an hour or two whenthe winter cold
became unbearable at night.Al1the enclaves containeda large numberof displacedpeople whohad
fledethnic cleansingin their homeareas.
11.There are reports of there beingmanywounded.Medicalconditions were medieval, withlittle
or nodrugs or anaesthetics.Amputationswere carried out withoutanaesthesia.Bandages,when
available,were used andreused without detergent ordisinfectant.People diedof the simplest
injuriesbecauseof the lack ofmedicaltreatment whileskin diseases,lice,gastroenteritisand
hepatitis affectedch of the population.
12. One eye-witnessallegesthat aroundearly February,there were 300 displacedpeople fiom
Vlasenicain the primary schoolin Cerskawhen it wasshelled.About 10of those insidewere
killed imrnediatelyand50 injured.Thosewho tried to nui to shelternearby were allegedlyshelled
again.A male nursein Cerskareportedlyhad to use hacksawsto amputatethe destroyedamis or
legs of the wounded. There was nothing to cleathe woundswith excepthome-made brandy,
nappies and bedsheets.It is notknownhow manyof the woundedsurvived. Chapter 5 -Section 4
Deliberately injlicting onthe group
conditionsof life calculated to bring about
itshysical destructionin whole or inpart
13. The pattem of the previous seven monthswas changed when Serb forces reportedly wenton
the offensive against the Cerska enclavefiomJanuary 1993until the last village, Konjevic
Polje, fell on or around 10March 1993.One hamlet was taken at a time. Every day therewere
thousands of shells fiom the tanksin the surrounding hills. Inharnlets such as Gobelje it is alleged
that eachouse was individuallytargeted and people movedfiom house to house as the shelling
progressed. Govemment forces would reportedly fall backto the next village, moving civilians
back as they did so until that village was aboutto fall, too. Manyof the witnesses had fled their
homes with Serb forces right behindem. People who were unable to move, such as old people,
invalids andthe wounded, reportedly remainedin the villagesto be taken.
14. There are reports that some villages which had been very close to the fiont line, such as Velici,
Grbici and Hodzici, fellso quickly that people were jumping outof the second-storey windowsof
their homes to escape Serb forcestering the villages. It was reportedly particularly difficult for
women with small childrento escape and it is alleged that, aslt, 50 to 100people were killed
by Serb forces in the villages of Velici and ~uskvnited Nations, Situationof
HumanRightsin the territoryof theformer Yugoslavia,periodicreport
submitted by Mr. TadeuszMazowiecki,SpecialRapporteur ofthe Commission
on HumanRights,ElCN.411994135 , May 1993, pp.4-6, paras.8-17].
206. Maglaj fümishes yet anotherexampleof the long-term encirclement andgradua1
destruction of a local populationand the displaced.
"~erb and Croatian forces havelargely destroyed the town of Maglaj and have both preventedthe
delivery of humanitarian aid and killed civiliansto retrieve air-dropped parcels,the United Nations
Special Rapporteur noted.[UnitedNations, Situationof HumanRightsin the
territoryof theformer Yugoslavia, fiJthperiodic report submittedby Mr
Tadeusz Mazowiecki, Special Rapporteur o tfe Commissionon HumanRights,
ElCN.11994147,17Nov. 1993,p. 13, para. 931.Reply of Bosnia and Herzegovina
Earlier Mazowieckireported:
osni ni Serb forces have sporadically, but with deadly effect, tarnsMaglaj.Thus,n
onjust oneday in Marc1994,some 13000shellslanded inthe tom, hitting, interalia, a health-
care centre andkillingfive media1personn26.July it was reportedthat eight peoplewere
killed in a mortar a(...)[United Nations,Situation ofHumanRightsin the
territory oftheformer Yugoslavia,ninthperiodic report submitted by Mr.
TadeuszMazowiecki,SpecialRapporteurof the Commissionon HumanRights,
Transmitted bythe Secretary-Generalto the General-Assemblyand the Security
Council, N491641, Sl199411252,4 Nov. 1994,p. 10, para. 301.
In view of the gravity of the situation, theUnited Nations HighCornmissionerfor
Refugeesdenounced theblockingof humanitarianaid by the Serb sidesover several
months ["Update",UNHCR,10March 19941.
207. Travnik was also encircledand shelled. In 1994, the United Nations Special
Rapporteurhad to note that:
"~ravnik has been subjectedto heavy shelling and other formkuringrecent months.
Shellingin the last weekof 1994 claimedat leastnine lives. Among the targetswas the
hospital.Heavy shellingofiliantargetswas againnotedin August.Duringthe week of 8-14
June1994,it was reportedthat some 15 women and childrenin nearby Turbe were killedor
injured inmiiitary att(...)[United Nations,Situationof HumanRightsin the
territory oftheformer Yugoslavia,ninthperiodic report submitted by Mr
TadeuszMazowiecki, SpeciaR l apporteur ofthe Commissionon HumanRights,
Transmitted bytheSecretary-Generalto the General-Assemblyand the Securiy
Council,N491641, Sl199411252,4 Nov. 1994,p. 10,para. 311.
208. Mazowieckihas reportedon many other similar locations [see,e.g. UnitedNations,
Situation ofHumanRightsin the territory oftheformer Yugoslavia,periodic report
submitted byMr. TadeuszMazowiecki, SpeciaR l apporteurof the Commissionon
HumanRights,ElCN.411994135 , May 1993,pp. 10-12, paras. 41-51;A.1491641,
Sl199411252,4 Nov. 1994, pp. 10-11,para. 331.In the earlyphases of the conflict,
shellingand other means of attackagainstcivilianswere used to speed thecapture of
towns and the expulsionof residents andthe displaced.For exarnple,on about 23
May 1992, approximatelythree weeksafter the BosnianSerbs forcibly took control
of govemmentalauthority in themunicipality ofPrijedor, a coordinated attackwas
executedby Serbian forces, including JNAunits, territorial defence (TO)units,
paramilitaryunits, and police units, combiningintensiveartillery and tank shelling
followedby infantry assaultson BosnianMuslimand BosnianCroat areas in the
municipalityof Prijedor,the Prosecutorfor the ICTFYfound. Chapter5 -Section 4
Deliberately inflictingon the group
conditionsof li,fecalculated to bring about
itshysical destructionin whole or inpart
"~etween April and July1992,attacks following thesarnepattern were being conductedby Serbian
forces across Bosnia-Herzegov(...The final largescale militaryattackconductedby the Serb
and Bosnian Serb forcesin the municipalityoccurredon about20 July 1992against the
predominantly Muslim villagesin the hilly region knownas the 'the Westside of the
sana river.[ICTFY, Indictrnent,TheProsecutor v. SimoDrljac'aand Milan
Kovacévit,CaseNo. IT-97-24-1, 13 Mar.1997,no paragraphnurnberingin the
original].
209. In severalinstances,it was in the interestof the Serb forces to keep large nurnbersof
the displacedin such conditionsuntil they weredead, until it was convenientto
arrange for their deportation,or until Serb forcesjudged the tirne had come for the
completionof ethnicpurificationby finally ovemuuiing the remainingenclaves
where desperatenon-Serbshad gathered.The deliberate policyof creating unsanitary
conditionsthroughthe "destructionof installationsindispensableto the survivalof
the civilian population, such as water treatmentplants" was condemnedby the
International Comrnitteeof the Red Cross [ICRCPress ReleaseNo 93/14, 8 June
19931.
210. Again, as demonstratedabove, areas where civilianswould needto come out into the
open, such as market places, water supply and food distribution centreswere
particularly targetted.
rom July 1992to July 1995,many civiliangatherings,particularlyat stadiumsor in public
squares, weresubjectto shellingby BosnianSerb military forces withtheof killing,
terrorisingand demoralisingthe civilian popul[ICTFY,Trial Chamber,Review of
the Indictment Pursuantto Rule 61 of the Rules of Procedure andEvidence,
Prosecutor v. Radovan KaradZit & RatkoMadit, CaseNo. IT-95-5-R-61 &
IT-95-18-R61, 11July 1996, pp. 9-10, para.181.
These types of civilian gatheringplaceswere not only shelled ona regular bais,
they were alsovery fiequentlytargeted bySerb snipers.The Respondent is,of
course, entirely informed aboutthis. Therefore,it is even more outrageousthat the
Respondent,without anyreservation, acknowledgesthis and atthe same tirne, by
reproducingthe followingquotation, suggests thatit is the Bosnian Govemmentthat
is to blame for this:
"(...And, of course,the sight of Sarajevans lining upat water distrisometimes under
mortar and sniperfirwasa poignantimage.'[Counter-Mernorial,p. 77, para.
1.3.6.19.,emphasis added].Reply of Bosnia and Herzegovina
211. Food itself was used as a target, storesand transportsbeing subjectedto attack, and
as a weapon, by denying it to the needy. The UnitedNations SpecialRapporteur
noted:
"~hepurposeof the 'safeareas'was toprovidepeople withfoodandmedicinestheyneededin
placeswhere theircuritywasguarantee. elentlessmilitaryactionby BosnianSerbforces,
however,hastumedthemintoareasundersiege.In SrebrenicaandTuzlainparticu,uppliesof
food,waterandfuelhave been theprimeobjectsof att[UnitedNations, Situation of
Human Rights in the territoryof theformer Yugoslavia,jjph periodic report
submitted byMr. Tadeusz Mazowiecki, Special Rapporteurof the Commission
on Human Rights, ElCN.411994147,17 Nov. 1993,p. 4, para. 141.
Food deliveries,even to the so-called "safeareas" were fiequently interrupted,and
where they were possible, they required protractednegotiations.Even where
agreementswere finally procured (ofien through Belgrade),this did not ensure
humanitarianaccess. On occasion, "the Serbianauthorities in Pale, Belgrade and
Banja Luka1' withdrewtheir assentand required foodconvoysto turn back, others
were stopped atroadblocksor attacked [United Nations,Report of the Secretary
GeneralPursuant to Securiq Council Resolution752 (1992), Sl24000,26 May 1992,
paras. 8-9, emphasis added]. And, although"the population is heavily dependentof
food relief, yet flightsand convoys bringingrelief supplies continueto be attacked,
despite agreementsensuing their safety."vnited Nations, Situation of Human Rights
in the territoryof theformer Yugoslavia, Report submitted by Mr. Tadeusz
Mazowiecki, Special Rapporteurof the Commissionon Human Rights, Transmitted
by the Secretary-Generalto the General-Assemblyand theSecurity Council,
Al471666,Sl24809, 17Nov. 1992,p. 16,para. 411.Furthermore,the Commission
reported, that "[hlumanitarianconvoys have beenand still are being attacked,
harassed and preventedfiom reaching those in need;" [United Nations,Situation of
Human Rights in the territoryof theformer Yugoslavia, Report submittedby Mr.
Tadeusz Mazowiecki, SpecialRapporteurof the Commissionon Human Rights,
E/CN.4/1993/50, 10 Feb. 1993,p. 24, para. 108; seealso, United Nations,Situation
of Human Rights in theterritory of theformer Yugoslavia,seventhperiodic report
submitted by Mr Tadeusz Mazowiecki, Special Rapporteurof the Commissionon
Human Rights, ElCN.41199514,10June 1994, p. 3, para. 161.This practice has been
subjectto constantcondemation by the UnitedNations Security Council,the
General Assembly andthe United Nation Commissionon HumanRights [see below].
213. Other means of disruptingthe flow of aid includeddeliberate and direct military
attacks against humanitarianaid workers andthe United Nations ProtectionForce Chapter5 -Section 4
Deliberately inflictingon thegroup
conditionsof life calculated to bring about
itsphysical destructionin whole or inpart
[UnitedNations,Situation ofHumanRights in the territory oftheformer Yugoslavia,
Report submittedby Mr TadeuszMazowiecki, ElCN4.1992lS-119,28 Aug. 1992,pp.
10-11,para. 48-49; Situationof HumanRights in the territoryof theformer
Yugoslavia,secondperiodic report submittedby Mr. TadeuszMazowiecki,Special
Rapporteurof the Commissionon HumanRights; ibid., sixthperiodic report,
E/CN.4/1994/110,21 Feb. 1994,pp. 12-13,paras. 67-70; ibid.,final periodic report,
ElCN.411996165 , July 1995,pp. 15-16, paras.71-77]. In fact:
"a noteworthy feature of the BosnianSerb offensive was the deliberate targetingof international
personnel present in the town [Gor&de] and elsewhere in the enclave. It would appearthat the
building housing UNHCR personnel and United Nationsitary observers were deliberately
targeted,uch as on 18 April. Also clearly marked vehicles were targetedas were readily
identifiable United Nations personnel inthe course of their activities."ns,
Situation of HumanRights in the territoryof theformer Yugoslavia,seventh
periodic reportsubmittedby Mr TadeuszMazowiecki,SpecialRapporteurof
the Commissionon HumanRights, ElCN.41199417432 ,3 June 1994, para. 131.
In Tuzla, Sarajevoand other locations,humanitarianflights were interdictedby firing
upon them. For exarnple,"ICRCflightshave been suspendedsince 11March 1995
when a readily identifiableICRC aircraftwas hit while landingat Sarajevoairport"
[UnitedNations,Situation ofHumanRights in the territory of theformer Yugoslavia,
periodic reportsubmitted by Mr TadeuszMazowiecki, SpecialRapporteurof the
Commissionon HumanRights, ElCN.41199616, 14 July 1995,p. 16,para. 781.
Hence, overall, the SpecialRapporteurhad to conclude:
"some of the worst situationsof aid deprivation and associated suffering occurin areas where
access is controlled by the Bosnian Serbs.In this respect, areas such as Gordde, Tuzla, Zenica,
Olovo, Tesanj and Maglaj areng the most deprived in Bosnia and Herzegovina.(...) During
Januq 1994 UNHCR delivered just40 per cent of the targeted aid.The figure for December 1993
was29 per cent. Lack of fuel and medicineshave resulted in deaths in the local hospital.(...)
Deliveries of fuel, medicines andsurgical equipment to theinSarajevo have beenso
limited as to severely compromise their abilityto effectively. Theauthoritiesof the
Federal Republicof Yugoslavia (Serbia and Montenegro) havealso been responsiblefor
interference with aid destinedfor Bosnia and Herzegovina.nian Serb authoritiesalso
hinder the international humanitarian effortsbyring with the media1work of ICRC and the
medical evacuation programme[UnitedNations,Situation of HumanRights in the
territoryof theformer Yugoslavia, sixthperiodic reportsubmittedby Mr
TadeuszMazowiecki, SpecialRapporteur of the Commission on HumanRights,
E/CN.4/1994/110,21 Feb. 1994, pp. 12-13,paras.67-70, emphasis added;see
also his tenthperiodic report,ElCN.4119951572 ,6 Jan. 1995,pp. 10-11,para.
421.Reply ofBosnia andHerzegovina
And
"~nother methodof indiscriminatelyattackingcivilianswhichhas been used inthis conflict is
through threatened environmental disastersdueto militar(...the large chemicalplain
Tuzla hasbeen shelledmanytimes by Serb forces, threateningthe lives of the civilianpopulation
for miles around as well as an environmental diWnitedNations, Situationof
HumanRightsin the territoryof theformer Yugoslavia,Reportsubmittedby
Mr. TadeuszMazowiecki,SpecialRapporteurof the Commissionon Human
Rights,E/CN.4/1993/50,10Feb. 1993,p. 24, para. 1071.
216. The facts presented above leave no doubt as to the systematic, wide-spread and pre-
planned nature of this campaignof encirclement, attackand strangulation. The
evidence also leavesno doubt thatthis campaignwas targeted specificallyand
exclusivelyat non-Serbs.In fact, the ICTFY has expressly found in its Opinionsand
Judgmentsand Rule61 Hearings, that the discriminatory targeting of non-Serbs lay
at the heart of this campaign.
217. Hence, the United Nations GeneralAssemblyrepeatedlyidentifiedand condernned
this campaign of terror and destruction against civilian concentrationsinal1its
aspects, expressing itsgrave concern at the situation throughout Bosnia and
Herzegovinaand the rapidly deteriorating situationin the "safe areas" of Sarajevo,
Tuzla, GoraZde,iepa and Srebrenica,and in particular theflagrant and blatant
violations of the "safe areas" of Bihat, which has been subjectto continuedattack
and condemning
"the attacks on the safeareas of Srebrenica andiepa by BosnianSerb forces,which ledto gross
abuses of human rights and grave breachesof internationalhumanitarianlaw and the disappearance
of thousands of persons.the indiscnminateshellingof civiliansin the safe areas of Sarajevo,
Tuzla, BihaCand GorâZdeandthe use of clusterbombson civiliantargets by Bosnian Serb and
Croatian Serbforces.[United Nations,GeneralAssemblyResolution50/193
(1995), 22 Dec. 19951.
The Assembly alsocondemned"al1deliberate obstructionof the deliveryof food and
medical and other suppliesessentialfor the civilianpopulation" andal1attacks on the
United Nations Peace Forces and on personnel workingwith the Officeof the United
Nations High Cornmissionerfor Refugeesand otherhumanitarianorganizationsby
parties to the conflict.
218. Also, the Trial Chamberof the ICTFYconfurnedthat the sieges were specifically
designed and carriedthrough "inthe contextof the policy of'ethniccleansing"',
having al1the features of an instrumentairnedat making Sarajevoand other towns
"an ethnicallyhomogeneousterritory" [ICTFY, TrialChamber,Reviewof the Chapter 5 -Section 4
Deliberately inflictingon the group
conditionsof life calculated to bring about
ifsphysical destructionin whole or inpart
Indictment Pursuantto Rule 61 of the Rules of Procedurean Evidence,Prosecutor v.
Radovan KaradZit & Ratko MladiG,CaseNo IT-95-5-R61 & IT-95-18-R61, 11 July
1996,p. 33, para. 631.
Deportation and expulsion
219. This Sectionwill focus on a number of specificinstances whichillustrate how the
Serb side deliberatelyinflicted conditionsof life on the non-Serbsin Bosnia and
Herzegovina, calculatedto bring aboutits physicaldestructionby organising their
expulsion and deportation. In section1.8.5 of the Counter-Memorial the Respondent
suggests it is responding to these issues.However,this section only contains the
Respondent'susual propaganda.Therefore,the Applicant will not go intothe
Respondent'sallegations,but will, instead, elaborateon its own position.
220. The Trial Charnberof the ICTFY hasauthoritatively confirmed that:
"thousandsof civilianswereunlawfullyexpelled ordeportedto other placesinsideand outsidethe
Republic of Bosnia and Herzegovina..The resultof these expulsions wasthe partial or total
eliminationof Muslimsand Bosnian Croatsin some of Bosnian Serb-heldregionsof Bosnia and
Herzegovina.In the municipalitiesofijedor,FoEa,Vlasenica,BrEkoand BosanskiSamac,to
name but a few, the oncenon-Serbianmajoritywas systematically exterminatedor expelledby
force or intimidatio[ICTFY,Trial Charnber,Review of the IndictrnentPursuant
to Rule 61 of the Rules of Procedure and Evidence,Prosecutor v. Radovan
KaradZiC & RatkoMZadiCC , aseNo. IT-95-SR61 & IT-95-18-R61, 11 July
1996, p. 9, para. 161.
The ICTFY noted thatthis policy resulted in a radical change in the make-up of the
population:
"~he Municipalityof FoEahad40,513 inhabitants,of whom51,6per cent were Muslim Bosnians.
Accordingto the Serbian authorities,there were onlyMuslims inthe city in Augu1993.
BosanskiSamachad 32,835 inhabitants,of who45 per cent were Croat41 per cent Serbs and7
per cent Muslims. Accordingto the Prosecutors Office, ten Cro250 Muslims were still
presentinthe municipaiityin Marc1995.In the PrijedorMunicipalit88per centof the Muslim
populationof abou49,000 populationwas killed or deport(...in Jul1994,about 750.000
non-Serbs were displacedfkomnorthem and eastem Bosniathepopulationof the Republicof
Bosnia and Herzegovina i1991 being4.4million.(..At Srebrenica,the take-over of the enclave
in July1995entailedthe executionor deportationof40,000 inhabitants.[ibid., pp. 31-32,
para. 601.Reply of Bosnia andHerzegovina
221. In the following pages theApplicant will reviewsomeexamplesof casesin which
the intent to expel anddeport can be demonstrated easily.The Applicantdoes not
endeavourto exhaustivelylist al1the incidents.
222. The systematic natureof this ever repeating pattern of expulsion and deportation is
clearly shownin Prijedor. Sincethe eventsin this area are so exemplary to theway
the Serb side acted throughoutthe entire armed conflict, a specificSection willbe
devotedto Prijedor [Reply, Chapter5, Section 71.
223. The campaignof ethnic purificationwas particularlysustainedovertime in Banja
Luka. By August 1992, the United NationsHigh Cornmissionerfor Refugeesnoted a
"patternof brutality againstpeople"in towns north of the city:
"Peoplefleeingthe areaSaygangsof irregularsrace thestreetsatnightshootingandreport
randomkillings. Before sithepetitions tobe "voluntarily"evacuated atrseforcedto
signovertheir la, omesandcarsto thelocaladministrat["Update", UNHCR,13
Aug. 19921.
In June 1993, for example,the InternationalCommitteeof the Red Crosshad to
interveneon behalf of 2,000 displaced people from that city"stilltrapped in no-
man's land betweenthe lines [ICRCPress Release, 10 June19931. In June 1994,
Helsinki Watchprepared a fortypage report onthis city, concludingthat over two
years, "non-Serbshave been cleansedthrough systematicpersecution that includes
torture,murder, rape, beatings, harassment, de jure discriminationi,ntimidation,
expulsionfiom homes, confiscation of property, bombingof businesses (..."
Helsinki Watch notedthat therewas no fighting in thearea whichwas fully under
Serb control "indeed,the sweepinginstitutionalnature of the "cleansing"would not
be possible without such control." ["WarCrimesin Bosniaand Herzegovina: UN
Cease-fireWon't Help Banja Luka",HumanRights WatcWHelsinkiJ ,une 1994, Vol.
6, Issue 8, pp. 1-2,Annex 311.
224. After the initialwave, an escalationin the rate of"ethniccleansing"was observedin
Banja Luka fiom November 1993on. Indeed, "it has beenreported that a fonn of
housing agencyhas been establishedin the municipality,which chooses
accommodationfor incorningSerb displaced persons,evictsMuslimor Croat
residents (...)[UnitedNations,Situation of HumanRightsin the territory of the
former Yugoslavia,sixthperiodic report submittedbyMr. TadeuszMazowiecki,
Special Rapporteur of the Commission onHumanRights,E/CN./1994/110,2 1Feb.
1994, p. 5, para.81. Chapter - Section 4
Deliberately injlicting onthe group
conditionoflife calculated to bring about
its physical destructionin whole or inpart
225. In March 1994,the UnitedNations Special Rapporteurhad to report that
"thepatternof terrorizatinBanjaLukahasnotchanged (...Therehave beenrepeated reports
duringrecent monthsof thebombinganddestructioby fireof thehomesof Muslimsandother
non-Serbsinthe BanjaLukaarea.Withinthecityof BanjaLuka (...the buildinghousingthe
Muftiof BanjaLuka,theImananda farnilyof refugeeswasbombedon 15July1994.The remains
of themosquesdestroyedin 1993areinthe processof beingclearedawaybythecityauthorities.
Thus,in July1994,thesitesof the MehdiBegova,SeferBegovaandHadziKurtovamosqueswere
levelledandal1the remainintombstonesdestroyed(..Thedisplacementsareoften verywell
organised,invoivingthe busingof people."ited Nations,Situationof HumanRights
in the territory oftheformer Yugoslavia,ninthperiodic report submittedby
Mr. TadeuszMazowiecki, Special Rapporteuo rf the Commissionon Human
Rights, Transmitted bythe Secretary-Generalto the General-Assemblyandthe
SecurityCouncil, Af491641,SI199411252,4 Nov. 1994, pp. 6-8,paras. 11, 14,
23; see also ibid., TenthPeriodic Report,ElCN.411995157, 16 Jan. 19951.
The United Nations Security Council strongly condemned"this practice of 'ethnic
cleansing"'in Banja Luka, in Resolution941 [United Nations,Security Council
Resolution 941 (1994), SlRESl941,23 Sep. 19941,as did the United Nations General
Assembly vnited Nations, GeneralAssemblyResolutionA/49/10 (1994), 8
November 19941.Nevertheless,as late as April 1995, the United NationsSpecial
Rapporteurwas constrainedto devote a separatereport to the campaign"takingplace
in the Banja Luka region of Bosnia and Herzegovina,which threatens to force from
the territoryvirtually the entire remainingnon-Serb population." [United Nations,
Situationof HumanRights in the territoryof theformer Yugoslavia,periodic report
submittedby Mr. Tadeusz Mazowiecki,SpecialRapporteurof the Commissionon
HumanRights, ElCN.411996132 , 1 Apr. 1995,p. 1, para. 31.The persecutionof non-
Serbs in and aroundBanja Luka reached acritical point in February 1995,he
indicated, whencertain towns suffered sustainedcampaignsof violencedirected
principally against the Muslim inhabitants,and also, increasingly, againstBosnian
Croats. There were systematic,house-to-housesweeps, plunderings and beatings,
including of women and the elderly. Intimidation was rife in towns, and those in
outlying villages were cut off from communicationsand subjectedto attacks [ibid.,
pp. 2-4, paras. 8-181.
227. The impositionof forced labour obligationsas well as the "virulenceof the ongoing
campaignof violence"had resulted in the authorities"being verycloseto attaining
their apparent aim of achieving 'ethnicpurity' in temtory under their control".Non-
Serbs have been subjectedto unrelentingterrorisationand discrimination,and itReply ofBosnia andHerzegovina
appears thatvirtually none wishto remain in northem Bosnia and Herzegovina.
[ibid.,pp. 5-6, paras. 24, 291.The campaign,it was found, continuedto be organised
centraily, includingthe administration ofthe exodusthrough officiai agencies
charging feesfor forcibleexpulsionfrom the victims and includingthe requiringof
the relinquishing"inwritingtheir claim totheir homes, without reimbursement"
[ibid,pp. 6-7, paras. 26, 311.
The comprehensive nature ofthis practiceis also displayedin the evidence,
determinedto be strong enoughfor convictionby the ICTFY Prosecution in the
MiljkoviCIndictment,relating to thearea of BosanskiSarnac.The Prosecutorsof the
Tribunal found that therehad existedfor a period of some six months a planned and
well prepared campaignfor
"the unlawfuldeportationand forcibletransfer of hundredsof Bosnian Croat andMuslimresidents,
including women, childrenandthe elderly,fromtheir homesin the BosanskiSamacmunicipality
to other countries orto other partsof the Republicof Bosnia and Herzegovina nobycontrolled
Serb forces.[ICTFY, Indictments,TheProsecutor v.SlobodanMiIjkoviC &
others, CaseNo. IT-95-9-1,21 July 1995,p. 4, para. 201.
229. The Indictment describesthe systematic nature ofthis campaign ofethnic
purificationasfollows:
"1. In 1991,almost 17,000Bosnian Croats andMuslims,of a total populationof about33,000,
lived in the municipalityof Bosanskibain the Republicof BosniaandHerzegovina.By May
1995, fewerhan 300 of the Bosnian Croat and Muslim residents remained.
2. On 17April 1992,Serb militaryforcesfrom Bosnia and elsewherein the former Yugoslavia
seized controlof the town of BosanskiSamac. Chapter5 - Section 4
Deliberately inflictingon the group
conditionsof life calculated to bring about
its physical destructionin whole or inpart
3. Because of its location at the northwestern edgeof the "PosavinaComdor," control of Bosanski
Samac was importantto Serb efforts to create a Serb-controlled land bridge between Serbia and the
Krajina Serbs in Croatia and western Bosnia and Herzegovina.
4. After seizing control in the military takeover, Serb authorities undertook acampaign of terror
designed to force most Bosnian Croat and Muslim residentsto leave the area.
5. Begiming on 17 April 1992, Serb military and political authorities coordinated and carried out
the following actionsas part of that campaignofrror:
a) arrested and detained mostof the Bosnian Croat and Muslimmen in the municipality,
particularly the political, economic, professional, academcivic leaders;
b) established and operated, primarilyunder the authority of the Serb police, detentioncamps
where prisoners were killed, beaten,tortured, sexually assaulted,and otherwise mistreated;
c) permitted unitsofaramilitq soldiers fiom Serbia to enterthe detention camps to kill and beat
the prisoners;
d) forced Bosnian Croat and Muslim residentsto leave their homes, and permittedSerb residents to
move into the vacated homes;
e) expelled, through forceor intimidation, Bosnian Croat and Muslim residentsof the municipality
to other countries and other partsof Bosnia and Herzegovina;
f) required BosnianCroat and Muslim men, women, and childrento work on forced labor projects,
such as digging trenches and other workat military confrontationlines;
g) robbed Bosnian Croat and Muslim residentsof their cars, cash and valuables, and looted their
homes;
h) looted and dismantled equipment and inventoriesfrorn Bosnian Croat and Muslim businesses;
i) issued orders prohibiting Bosnian Croats andMuslims fiom congregating in public and requiring
Bosnian Croats and Muslimsto Wearwhite arm bands to identiQ themselves as non-Serbs;
j) confiscated thebank accounts of many Bosnian Croats and Muslims and blockedthe funds in
those accounts;
k) mobilised Bosnian Croat and Muslimmen into the Bosnian Serb arrny and sent them to the front
lines;
1)created such an atmosphereof fear and oppression among the non-Serb populationthat most
Bosnian Croat and Muslim residents fled the area[ibid.,pp. 1-2,paras. 1-51.
The Indictrnentalso confïrmsthat this sophisticatedinfrastructurefor the ethnic
purificationof this region was intended tobe permanent. Oneof the indictees,
Miroslav Tadil, was in fact appointedChairmanof the BosanskiSarnac"Exchange
Commission" [ibid.,p. 3, para. 91.The functionof that Commission inthis, as in
other areas w.as to re-distribute formerlynon-Serbproperty to Serbs who were to be
brought in to colonizethis part of thenewly created GreaterSerbia.Once again, in
relation to thiscase, it shouldbe noted that the ICTFY'sofficers found it reliably
attested, by criminallaw standards, thatal1acts and omissionscharged as crimes
against hurnanitywere part of"a widespread,systematicor large-scaleattack against
the Croat and Muslimresidentsof the municipalityof BosanskiSamac"[ibid., p. 3,
para. 171.Reply ofBosnia andHerzegovina
A similarpattern was to be found at Bijeljina. Betweenmid-Juneand September
1994, some4,700 non-Serbs were displacedinto Governmentcontrolledterritory
fiom the Bijeljinaand Janja regions. Accordingto international sources,ingust
alone the expulsion figurewas some 1,000. In thefirst week of Septemberthe
displacementfigure jurnped to some 1,300.InternationalsourcesSaythat there
remained, as of 17 September 1994,some 1,300 out ofa total Muslimpopulation, as
measuredin December 1993,of 6,000.Many of the displaced peoplemoved
"voluntarily"having paid for the privilege of being involvedin population
exchanges. However,many of the displaced, whether forced or choosint go depart,
were subjectto harassmentand thefi by the Bosnian Serb forcesorchestratingthe
displacement.There aremany reportsof physical abuse, including rape,comrnitted
by BosnianSerbs supervisingthe displacement [United Nations,Situationof Human
Rightsin the territoryof theformerYugoslavia,ninthperiodic report submitted by
Mr. TadeuszMazowiecki,Special Rapporteur ot fhe Commissionon HumanRights,
Transmittedby the Secretary-Generalto the GeneralAssemblyand theSecuri~
Council,A1491641,Sl199411252, 4 Nov. 1994,pp. 7-8,paras. 17,20-211.The
"systematicprogram" of expulsionof "theremainingMuslims"has also been detailed
in a report by AmnestyInternational["Bosnia-Herzegovina: Livingfor the Day -
Forced Expulsionsfiom Bijeljina and Janja",AmnestyInternational,AI Index: EUR
63/22/94,Dec. 1994,p. 2, Annex 321.The report detailsthe roundingup of several
hundred Muslims in the middle of the night, giving thema few minutesto pack.
Thosewho failed to leaveinstantlywere forciblyexpelled. Similarly detailed
accounts, basedon the extensiveanalysisof witnessstatements, havebeen provided
by Helsinki Watch. These measureswere specificallycondemnedby the United
Nations SecurityCouncil vnited Nations,Statementby the CouncilPresident,
SI199411023, 2 Sep. 1994; United Nations,Security Council Resolutio941 (1994),
S/RES/941,23 Sep. 1994;see also, United Nations,General Assembly Resolution
A/49/10,8 Nov. 19941.
The so-calledCerska enclaveconsisted ofa cluster of smallharnlets dottedlike
satellitesaround the village of Cerska properin a valley ineastem Bosnia and
Herzegovina (the villageof Cerska itselfconsistsof upper, lowerand rniddle
Cerska),as well as the village of KonjeviCPolje [see immediatelybelow] and
surrounds. Chapter5 -Section 4
Deliberately inflictingon the group
itsphysical destructionin whole or inpartt
The area was subjectedto sustainedand horrible shellingby artillery and even air
attacks for a period of seven months. Then,just before most of the Cerskahamlets
fell they were swollen with displaced people from placeslike Vlasenica, SadiCand
Kamenica which had fallen to Serb forcesby mid-February1993.Mien the time
came to leave the village of cerska proper, a memberof the local civil defenceis
reported to have visited each house and calmly told peoplethat the lines could not be
held andthat everyoneshould leave thatnight. It is reportedthat almost everyone
who remained in Cerska village lefi in a group of about 10,000 people on thenight
of 1 or 2 March, usingthe trail towardsKonjeviCPolje dong the river. As the
Special Rapporteurnoted, there appearto have been a smallnurnberof wounded and
elderly peoplewho could not be moved fiom Cerskavillage before it fell. The fate
of those persons is unknown, includingof those who were reportedly left in or near
the prirnary school [UnitedNations,Situation ofHumanRights in theterritoryof the
former Yugoslavia,periodic reportsubmitted byMr. TadeuszMazowiecki,Special
Rapporteurof theCommissionon HumanRights,ElCN.411994135 , May 1993, pp.
4-6, pi ira^8-17].
234. Even those who did manageto escapefiom the initial destruction werenot safe, as
the permanenceof the displacementwas supposedto be ensuredby rnilitaryattacks
againstthe fleeing civilian population:
"25.Manyciviliansarereportedto havetriedto escapetheencirclementof the Cerskaenclave,
especiallyin thedirectionofla,sincethebeginningof thewar.Thereareallegationsthat Serb
forcesarnbusheciviliansatCmi Vrh,Baljkovica,DebeloBrdo,Susica, RogosijaandIlijino Brdo.ReplyofBosniaandHerzegovina
26. In the summer of 1992, a group of several thousand civilians are reportedto have tried to leave
the enclave of Cerska, walking slowly with wounded people and children, heading for alesijce.
After two days andtwo nights of mountain trails and when only20 minutes from their goal, the
group was allegedly surroundedin the woods at Balcovici by Serb forces. Witnesses report being
attacked by aeroplanes mounted with machine-guns, with "bulletslying everywhere." Some people
were allegedly captured by Serb forces, while 150are alleged to have died in the attack. The group
scattered and up to 15 dayslater people were stillarriving back in Cerska after wandering in the
forest.
27. At the end of December, a groupof about 2,000 civilians were allegedly attacked with
machine-guns at the village of Baljkovica and when people startedtoun, they were followed into
the woods by their attackers. Women with more than one small child reportedly hadto leave the
others behind in order to run. It is not known how rnany people died in this attack.
28. Using another routeto tryto reach central Bosnia, one witnessleft Cerska on 14 February 1993
with a group of 34 people. They had passed Vlasenica and corneto Debelo Brdowhen they were
allegedly ambushed.Serb forces are said to have jurnped outin front of the group and to have
attacked them with automatic weapons.The witness' father, mother andsister were allegedly killed
in the ambush.Aller a joumey of five days anda second ambushat Kljestani, fourof the original
group are reported to have reached Kladanj.
29. There were apparently onlywo routes by which to reach Konjevic Polje from Cerska: one was
through the village of Babici and over Udrc mountain(1042 m) and the other was around the other
side of Cerska valley via Ilijino Brdo, wherethe trail through the woods on theside of the
mountain was better and flatter.It is alleged that people from the Cerska hamletsst to the
front line, which fellrst, tried to reach Konjevic Poljeby this route in early February.It is
reported that entire villages wouldto leave this way and one testimony estimatesthat 2,000 or
3,000 people had tried to use this route beforeit becamewn as an ambush point towards the
end of February. Survivors alleged that onthe trail they saw about 100bodies of people who had
recently diedof shelling and smallrms fire, before being attacked themselves[United
Nations, Situationof HumanRights in the territory of theformer Yuguslavia,
periodic reportsubmittedby Mr. Tadeusz Mazowiecki, Special Rapporteuo rf
the Commissionon HumanRights,E/CN.4/1994/3,5 May 1993,pp. 7-8, paras.
25-29].
235. According to this accountby the UnitedNations Special Rapporteur,the taking of
Cerska by Serb forces, hamletby hamlet, lasted fiom Februaryto early March 1993.
Women and childrenhad fled Cerska in greater andgreater nwnbers as the hamlets
were taken. Around 5,000 people made it to Tuzla on foot during JanuaryIFebruary
but the majority leftlater and fled in the direction of Srebrenica,many stoppingin
Konjevic Polje[ibid].
236. The shelling of KonjeviCPolje was conductedunder the very eyesof the United
Nations. It intensifiedon 6 March 1993:
"On 11 March 1993a group of United Nations reliefworkers escorted by two armoured personnel
carriers (APCs) ffom the British Battalion of UNPROFOR were allowed to enter Konjevic Polje.
The aim was to evacuate those wounded personswho urgently required treatment andwho had
been identifiedon the earlier visit. However,Serb forcesfused to allow UNHCR to bring in
ambulances or trucks, (...)
22. The United Nationsteam reported finding thousandsof people clamouringto be evacuated
while preventing the British troopsfiom leaving. A crowdof at least 2,000 civilians gathered Chapter 5 -Section 4
Deliberately inflictingon the group
conditions oflife calculated to bring about
its physical destructionin whole or inpart
around the two UNPROFOR vehicles and both the crowd and the vehicleswere deliberately shelled
by Serb forces. One of theAPCs was destroyed by an almost direct hit just momentsafter its
occupants had movedto the other APC. According to eye-witnesses,at least 150 women and
children, most of whom had fled intense shellingin Cerska in the previous days, were killed
outright by this bombardment.Several children were decapitated.There is no accurate figure for
the number of wounded who lost arms and legs.
23. After one day and one night the British were ableto leave when a brief breakin the shelling
was negotiated toallow them to do so. The destroyed APC remained in the village. In the event,
no-one was evacuated - neither those on the original list of urgent casesdrawn up during General
Morillon's earlier visit northose freshly wounded fiom thelatest bombardment.
24. Witnesses said that when peoplesaw that there was no protection from the United Nations, they
decided to leave Konjevic Polje. After theNPROFOR vehicle lefi, people reportedly ran in al1
directions and couldn't help the woundedor bury the dead. They lefi with their childrenon foot
over the mountains, heading towards Srebrenica, seeking safety. Accordinto an eye-witness: 'The
crowd was so huge that you couldn'tsee the end of the people. There wasshelling from
everywhere. It was incredible, a shell wouldfall behind you and members ofthe sarne family
would leave their child on the road and takeare of the other children oncethey were sure that the
other child wasdead'.
The field staff of the Special Rapporteur met a 77-year old woman inTuzla who had been "left
behind" in such a manner in Konjevic Polje withher husband and six other old peoplein a house.
Serb forces came into Konjevic Polje thenext moming and took themby lony to a house at an
unknown location. Forabout one month, the group was detained, interrogatedand fiequently told
they should have been killed.The witness,her husband and another old woman were beaten.One
moming, the group was told that they would be killed at midday. Instead, theywere put on a lorry
and delivered to thefront line near Tuzla. At the time ofthe interview, thewitness had bruises on
her face and hands while her husband wasin Tuzla hospital with severe head injuriesas a result of
thebeatings." [United Nations,Situationof HumanRightsin the territoryof the
former Yugoslavia,periodic reportsubmittedby Mr. TadeuszMazowiecki,
SpecialRapporteurof the Commissionon HumanRights,ElCN.41199413,5
May 1993,pp. 6-7, paras. 21-24].
237. The brutal expulsion campaignin Bratunachasbeen describedby the Commissionof
Experts:
"on 5 May 1992, Arkan'sand Se~elj'stroops surroundedthe entire village of Bratunac and upon
theirattack, 10000Muslims reportedly fled small towns along the Drina River. The villages of
HraCa , logovo, andMihaljeviéiwere burned. During the attacks, an estimated 500 Muslims
houses were bumed, and 50 people killed. The bodies of the villagers were found on the banks of
theDrina. Two thousand Muslims were arrestedon 9 May 1992.Some were taken to the police
station, whichwas then allegedly under the control of Arkan and SeSelj,aided by the army. On 10
May, Serbian troops placed 4000to 5000 civiliansin a newly established concentrationcamp at the
FC 'Bratstvo' stadium. Other were taketo the playground. Civilianswere separated by gender, and
the male Muslims were transportedto the elementary school Vuk Karadzié,where a nurnber of
men were beaten. One report Statesthat between 600 and 700 male Muslimswere moved to Vuk
KaradZiCPrimary School Sports Centre. Arkan and$eSelj7smilitary troops and local "Cetniks
tortured and killed scores of them (...) the corpses were eventuallythrown into the Drina River.
Eventually the remaining Muslims were broughtto the playground,where Arkan and Seselj's men
stripped them of al1persona1property. They were then separated by gender and the womenwere
taken to Kladanj by bus, while themen were retumed to the elementary school to be beaten andReply of Bosnia and Herzegovina
torhued.Thesurvivingpnsonerswerethentransporto Pale,where the prisoners erced to
watch thebodiesofeadprisonersbeing bumed.[UnitedNations,FinalReport ofthe
United NationsCommissionof Experts, SI19941674lAdd.2(Vol. 1),28 Dec.
1994, Annex III.A, "Special Forces",pp. 140-141, paras.381-3831.
238. The United Nations Special Rapporteurconfirmsthat afterthe mass arrest of about
2,000 Muslimsby Serb police in Bratunac,500 to 600 men were detainedin the hall
of the elementaryschool. Thosewho couldnot fit inside were reportedly shotwith
automaticweaponsin fiont of the hall,he adds.Between 30 and 50 people
reportedly diedfiom their injuries the first night while nine others suffocatedin the
crush as the 500-600 detaineesstruggledto escapethe beatings [UnitedNations,
Situation ofHumanRightsin the territoryof theformer Yugoslavia,Report
submittedby Mr TadeuszMazowiecki,SpecialRapporteurof the Commission on
HumanRights,ElCN.4/1993/50,10 Feb. 1993,p. 15, para. 651.
239. The caseof Srebrenicacombinesmany of the horrible featuresdisplayedin the
practices noted above. As in the other instances,the facts cannotbe subjectto
dispute. Becauseof its exemplary nature, belowa specificSectionis devotedto
Srebrenica [Reply, Chapter5. Section 81. Chapter - Section 4
Deliberately inficting on the group
conditionsof Ife calculated to bring about
itsphysicalsh-uctionin whole or inpart
240. The situation in iepa was much similarto that of Srebrenica.Again, the enclave
enjoyedthe status of a so-calledUnited Nations "safe area".It had been encircled,
deprived of humanitarian aid and subjectedto direct military attack. Whenthe
enclave, whichhad been fully disarmed,fell, there were between6,600 and6,700
people in the pocket before the evacuation.Of this number,4,800 mostly women,
children and elderly, were "evacuated".These womenwere deported in buses bearing
licence plates of the Federal Republic of Yugoslavia,while the men were kept
behind, many of them missingto this day [United Nations, Specialprocess on
missing persons in theterritoryof theformer Yugoslavia,Reportsubmittedby Mr.
ManfredNowak,Member ofthe WorkingGrouponEnforcedor Involuntary
Disappearances,ElCN.4119961364 , March 1996,p. 18,para. 661.Most ofthe men
were taken to camps in the temtory of the FRY [seeReply, Chapter8, Section 121.
241. The effectivenessof this strategyof ethnicpurification isalso well attestedin
relation to the area of FoCa,againon the basis of evidencethought by the ICTFY
Prosecutor strongenoughto supporta criminalindictrnent.The city and municipality
of FoCaare located south-eastof Sarajevo,near the borderwiththe FederalRepublic
of Yugoslavia.Reply of Bosnia and Herzegovina
EOSIIIRdSEC5ENCY
BOSNinNcCOb+T
INHL1MIIWUYt
242. Accordingto the 1991 census,the populationof FoEaconsistingof 40,513persons
was 51.6 % Muslim,45.3 % Serbianand 3.1 % others. The political and rnilitary
take-over of the municipality ofoCastartedwith the first military actions inthe
town of FoCaon 7 April 1992. Regularmilitaryunits fiom the JNA,together with
paramilitary unitsrom Serbiaand Montenegro, supportedby artilleryand heavy
weapons, proceededto take over FoEa,sectionby section.The occupationof Foca
town was completeby 16or 17April 1992.The surroundingvillagescontinued to
be under siegeuntil mid-July 1992.As soon as the Serbforces hadtaken over parts
of FoEa tom, the Prosecutor found, military police accompanieb dy local andnon-
local soldiersstartedarrestingMuslimand Croat inhabitants.This processwas then
expanded out fromFoEatown outto the outlyingvillages.Men and women were
separatedand confinedby the thousandsin various detentionfacilities,beaten,
tortured, subjectedto sexual assault,or killed [ICTFY, Indictments,Prosecutorv.
Dragan Gagovikand others, CaseNo. 96-IT-23-1,26 June 1996, para. 1.11.
243. This processwas administeredwith the orderlinessof bureaucrats implementinga
long-laidplan, beingable to draw upon the resourcesof the armed forces and local,
now purely Serb, administration. TheProsecutorexplicitlyfound that "the actsor
omissionswere part of a widespread or large-scale orsystematic attack against a
civilianpopulation,specificallythe Muslimpopulationof the municipalityof FoCa."
[ibid., para. 1.3-1.4and 4.71.
244. The permanent "expulsion"of individualsfiom places surroundingFoEaare also
documentedby other sources. Forexarnple,the village of Trosanhad been encircled
from April to July 1992.There, capturedvillageswere directlyfired upon, leadingto
several deaths. Chapter5 -Section 4
Deliberately inflictingon the group
conditionsof life calculated to bring about
itshysical destructionin whole or inpart
"~hevillagerswerethenseparat-d menin onegroup,womenin another. Whenapproximately
35 womenandchildrenwere led awayabout20 metres, theSerbsopenedautomaticweaponsfire
onthe men.Thewomenandchildren,whowere notallowedto burythedeadorseewhowas
killed,were ledaroundTrosanthroughthewoodsandobservedthe bumingof al130 homesinthe
village[UnitedNations,Letterdated 12April 1993>om thePermanent
Representativeof the United States ofAmericato the UnitedNations Secretary-
General(SeventhSubmission),Sl25586, 13April 1993,p. 51.
245. Beforethe conflict, 62 percent of the 11,000inhabitantsof Gacko, in the south-east
of Bosnia and Herzegovina, wereSerbs and 35 percent Muslims.In June 1992,
when Serb forces took the town, houses were burnt and Serbforces systematically
combedthrough the area, searchingfor non-Serbswho hadnot yet fled into the
woods [United Nations, FinalReportof the UnitedNationsCommissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex III.A, "Special Forces",p. 146,
para.4231.Local authorities issuedcertificatespurporting to allow unhindered
passage to Macedonia.A convoy of 100 cars was organizedby those wishingto
leave. Five orsix kilometres outside the town, Serb forces were waiting.The men
were reportedly dragged out oftheir cars and severely beatenabout the head with
iron rifle butts,jurnped on by soldiers, forced to beat eachother and set onfire with
petrol. Women and children were watching from the cars. Others werebused to
Skopje [UnitedNations, Situation ofHumanRightsin the territoryof theformer
Yugoslavia, Report submitted by Mr TadeuszMazowiecki, Special Rapporteur otf he
Commission on HumanRights,E1CN.4119931501 ,0Feb. 1993, p. 22, para. 97,see
also US Department of State, Bureau of Public Affairs, Dispatch,26 July 1993,Vol
4, No. 30, at 540, Annex181.
246. The town of Bileca, in the south-eastof Bosnia andHerzegovina,had a population
of over 13,000 pior to the conflict, of whom 80 per cent wereSerb. There were
reportedly three waves of detentionof Muslimsin the town: in June, October and
December 1992. Inthe latest wave, women and children were detained and deported
[United Nations, Situationof HumanRightsin theformerYugoslavia, Report
submittedby Mr Tadeusz Mazowiecki, Special Rapporteur o tfe Commission on
HumanRights,EICN.4/1993/50,10Feb. 1993,p. 14, para. 611.Pressure on the local
population was so seriousthat the InternationalCommitteeof the Red Crosshadto
arrange for the deportationof over 100civilians. [ICRCPress Release,No. 92, 28, 9
October 1992.1Reply oBosnia and Herzegovina
247. The Applicantdoes not pretendto be exhaustivein the listingof these eventsin this
Section. However,it is clear that al1the examplesgiven here further clariQ the
policy through which the Serbsdeliberately infiictedconditionsof life on the non-
Serbs of Bosnia and Herzegovina calculated to bring about their physical destruction.
Further evidenceof this policy is to be found in the followingpages andalso in the
Section, specificallydevotedto "ethnicpurification"[Reply, Chapter5, Section91.
Destruction of historical, religiousndculturalproperty
248. One ofthe most telling aspectsof the confiict inBosnia and Herzegovinahas been
the deliberate destructionof its unique architectural, culturaland religiousheritage.
In this Sectionof the Reply,the Applicant will demonstrated that this odious
vandalismwas not accidental, collateral damageof armed conflict,but rather the
result of an organised, systematiccampaignby the Serb side, designedto eradicate
the physical manifestationsof the shared, multi-ethniccultural and religious history
of the people of Bosnia and Herzegovina.This operation was expressly directed
against non-Serbs, mainly against the Muslimreligious traditionof Bosnia and
Herzegovina.By religiousheritage, the Applicantrefers to churches,mosques,
graveyards, residencesof religiousleaders. Culturalheritage includesmonuments,
historic towns and districts,museums,librariesand archives.
249. The religious and culturalheritage of Bosnia andHerzegovina demonstratesits
centuries-oldtradition as a multi-ethnic,muiti-confessional,pluralist socieîy.It is
marked most distinctively architecturally,by the three centuriesof Ottomanrule
from the fifteenthuntil the eighteenthcentury.The cities with their mosques,
medresses, bazaars and residentialmahalladistrictshad retainedtheir character until
modem times. Later, after Bosnia and Herzegovina was absorbedinto the Austro-
Hungarian empire, therewere intensive buildingcampaignsleavingtheir distinctive
imprint on the architecture. Thenew rulers broughta Viennesetaste for the eclectic
to their efforts to moderniseBosnia'scities. Erecting schools,museurnsand civic
institutions,hey soughtto bring their new territory into the modem age. The third
stage of Bosnian architecturewas the expansivebuildingprogramme whichbegun
after the end ofthe SecondWorld War and the resultof the policies of Tito, who
encouragedthe strengtheningof the BosnianMuslimidentity, as testifiedby the
constructionof religious edifices duringthis tirne. Orthodoxchurchesand Catholic
heritage, especiallyin the fonn of Franciscan establishments, have been presenftiom
the 16th Century.In addition, therehas been a SephardicJewish comrnunityin
Bosnia and Herzegovina sincethe 15thcentury,when large numbersof Jews fleeing Chapter5 -Section 4
Deliberately inflictingon thegroup
conditionsof life calculated to bring about
itsphysical destructionin whole or inpart
Spain settled in Sarajevo and thesurroundingregion. The result is uniquely Bosnian
in its blend of culturalinfluences. Thehistory that the Serb forceshave tried to
erase, by targeting both its buildingsand its vast archiveof records, speaks
eloquentlyof centuriesof shared pluralismand tolerancein Bosnia andHerzegovina.
250. An instructive exampleof the religioustoleranceof Bosnia and Herzegovinaover the
last centuriesis the relativepositions ofthe places of worship of the major faiths
making up the populationof Sarajevo. One of the expert witnessescalledto testify
before the Commission of Security andCo-operation in Europe (CSCE)on 4 April
1995 was And& Riedlmayer, Bibliographerfor IslamicArt and Architecturein the
Fine Arts Library of Harvard University.In his testirnony,he illustrated themulti-
ethnic traditions of Bosnia and Herzegovinaby referenceto the capitalof Sarajevo:
"~hehistoryhereis reflectedinthebuildings: Musl, hristian Jewishtownspeople lived,
workedandworshippedside by side.Inthe centreof Sarajevo,the GaziHusrevBeg mosque
(1531), the Sephardicsynagogue(builtinthe 16th ceto serve Jewishrefugeesfleeing Spain)
theold Orthodoxchurch(ca. 15391,andthemorerecent RomanCatholiccathedraal1standwithin
anareaof lessthanhalfa squarekilometrThesiting of architectureis an intentional,thoughtful,
political act. People who cannotabide thesite of each other will not buildthe housesand
monumentsof their religiouse in the shadows of those ofthe o[HearingBefore the
Commissionon Securityand Co-operation in Europe, 4 April 1995,"Genocide
in Bosnia-Herzegovina"; testimonyby Andràs Riedlmayer, HarvardUniversity,
p. 51, emphasisadded, Annex 331.
251. It has been this very tradition of shared respectfor the diversityof the religious
communities in Bosnia and Herzegovinathat the forcesunder the control of the
Respondenthave attempted to destroy.
252. The tactics of the Serb forceshave beenbrutally simple.In those areas under their
control, the mosques and Catholicchurcheshave been burned, dynamitedor
bulldozed. The purpose of this destruction has been to ethnicallypurifj those regions
under their control,not only of the living populationbut also of the physical
manifestationsof the historicallegacy of non-Serbsliving there. Those buildings of
religious or cultural significanceoutsidetheir control but within artilleryrange have
also been deliberately targeted and shelled.
253. These tactics and the strategy that theymanifesthave beenrecognisedand
condemnedby ICTFY,the General Assembly ofthe United Nations, TheUnitedReply of Bosnia and Herzegovina
Nations Commission ofExperts, The United Nations Special Rapporteur for Human
Rights, the Councilof Europe, citizens' organisations and those authors and
journalists who werepresent at the siteof the destructionduringthe conflict in
Bosnia and Herzegovina.
254. In its Opinion and Judgment inthe caseof DuskoTadit, the trial member of the
ICTFY consideredthe treatmentof non-Serbsin those areaswhich had beentaken
over by the Serb forces:
"149.The difficulties sufferedby the non-Serb populationof the autonomousRegions of the
Krajina havebeen well-docurnented.eport of the InternationalCommitteeof the Red Cross
('ICRC') found thatthe minoritycivilianpopulationof the Banja Lukaarea was repeatedly beaten,
tlueatened and robbeNon-Serbculturaland religious symbolswere targetedfor destruction and,
as an additionalansfor minimisingthe non-Serbpopulation of the area, a state agencywas
created to facilitate the exchangeof the non-SerbpopulationforSerbs.
(...) Throughoutthe opstina mosquesand other religiousinstitutionswere targetedfor destruction
and thepropers, of Muslimsand Croats, worth billionsof dinar, wa[ICTFY,Trial
Chamber, Opinionand Judgment, CaseNo. IT-94-1-T,Prosecutorv. DuSko
Tadit, 7 May 1997,p. 57, paras. 149-150, emphasis added].
When reviewing the Indictmentsof KaradZicand MladiC,the TrialChambermade a
brief summaryof these tactics:
"Throughoutthe territory of Bosnia Herzegovinaunderthe control ofthe Bosnian Serb forcesthey
destroyed Muslim andCatholicheritage, in particularsacrAdtotal of 1,123 mosques,504
Catholic churchesand five synagogueswere destroyed or damaged,for the most part, inthe
absence of military activityor after the cessationthereof. In the Banja Luka area, al1of the
mosquesand Catholic churcheswere destroyed.The mins and mbble wereown in the public
dumps inorder to eliminateany vestige ofMuslimpresence. Other religious andcultural symbols
like cemeteriesand monasterieswere the targets of a[ICTFY,Trial Chamber,
Review of the IndictmentPursuantto Rule 61 of the Rules of the Procedure
and Evidence, Prosecutorv. RadovanKaraduC & Ratko MladiC,CaseNo. IT-
95-5-R61 & IT-95-18-R61, 11July 1996,p.8, para. 151.
255. In Resolution471147of the GeneralAssemblyof the United Nations,the Preamble
notes:
"~larmed that, althoughthe conflictin Bosniaand Herzegovinais not a religious conflict,it has
been characterisedby the systernaticdestructionand profanationof mosques,churchesand other
places of worship, as well as other sites of culturalheritage,in particular inor
previousiynder Serbian controlor BosnianCroat[Resolution471147GA Third
CommitteeAl471678lAdd.2,18December 1992, Preamble].
256. The Final Report of the Commission ofExperts,publishedin May 1994,containsan
overviewof the pattern by which destructiontookplace: Chapter 5- Section 4
Deliberately inflcting on the group
conditions oflife calculated to bring about
itsphysical destruction in whole orinpart
"~lthough 'ethnic cleansing'occurred to some extent in the conflict in Croatia, it was in BiH that
a distinct pattern of 'ethnic cleansing'could be discerned. First, Bosnian Serb forces,it.
ofien with the assistance of the JNA, seize control of the area. In many cases, Serbian residents are
told to leave the area before the violence begins.s of non-Serb residentsare targetedfor
destruction and religiousmonumentsespecially churchesandmosquesare destroye".rCJnited
Nations, FinalReportof the UnitedNationsCommission of Experts, SI1994
16741Add.2,(Vol. 1), 28December1994, AnnexIV, "The Policyof Ethnic
Cleansing",p. 9, para. 28, emphasis added].
Furthemore, the Commissionmade it clear that the patternof destruction showed
that it was the product of a deliberate, clear policyby the forces under the control of
the Respondentto eradicatecultural,socialand religious tracesthat identie the
ethnic and religious groups:
"110. The vast majority of reportsreceived by the Commissionallege that Serbian forces have used
means suchas the mass killing of civilians, rapeand sexual assault,torture, the bombardment of
cities, the destruction of mosquesand churches,the confiscation of private property, unlawful
detention of civilians in harsh and sometimesinhuman conditions, and other unlawful practices
designed to eliminate Muslim and Croatpopulationsthat lie within Serb-claimedterritory. Unlike
the violations committed by the othering factions, "ethniccleansing"by the Serbs appears to
be theresult of a highly-developed policythat has beenplanned, CO-ordinated,andjnanced by
Serb oficials with supportfrom the FRYand the JNAwhichwas, at times, directIy involved in
some of these operations[United Nations,FinalReportof the United Nations
Commission of Experts, SI199416741Add.2( ,Vol. 1),28 December 1994,
Annex IV, "The Policy of Ethnic Cleansing", p. 21, para.110, emphasis
added] .
257. Annex V of the Final Reportof the Commissionof Expertswas prepared by Judge
Hanna Sophie Greve and entitled"ThePrijedor Report".She concludesthat
practically every Muslim religious building was damagedor destroyedin opStina
Prijedor, while no Orthodoxbuildings were damaged. Theexplanationpostulated by
Judge Grevc for this destructionis as follows:
"552.Thcrcis no real distinctionin biologicalterms among the three main 'ethnic' -theps
Se&. the Croats and the Muslims- in opBtinaPnjedor the region and in BM at large. Differences
amongst the groups arenmarily related to culture and religion. This is probably one reason why
thevarious expressions of cult-rreligion includ-becarne an explicit target for the Serbian
military campaign.
553. The cultural heritage and the expressionof a flourishimgculture give people a strong sense of
attachent also to a specific geographical Byeerasing the cultural$-ame, the Serbsfurlher
estranged the non-Serbsfrom the distri[United Nations,FinalReport ofthe United
Nations Commission of Experts, SI19941674lAdd.2,(Vol. 1),28 DecemberReply of Bosnia and Herzegovina
1994,Annex IV, "ThePolicy of Ethnic Cleansing",p. 105, paras. 552-553,
emphasis added] .
258. The campaignof culturaland religious destructionwas also notedby Tadeusz
Mazowiecki,SpecialRapporteurof the Commission onHumanRightsin his report
of 17November 1992:
"DUM~ the present conflict many mosques, churches and other religious sites, including cemeteries
and monasteries have been destroyed orprofaned. AI1faiths have suffered damage, including
Muslims, Catholics,rthodox Christians, Protestant denominations and the Jewish Community.On
his travels the Special Rapporteurwasparticularly distressed by the systematic destructionof those
areas currently orpreviously underSerbian control. Thesystematic destructionof such holy sites
suggests a deliberate effort not only to expel the Muslimand Catholicpopulation,but also to erase
the traces of theirpresence. Religious leaderof the Muslimsof Sarajevo indicatedthat the
number of mosques destroyed was in the hundreds. In the diocese of Banja Lukaatholic
sources provided the Special Rapporteur with a list ofches which were completely
destroyed adding that other churches had been wantonly darnagewnited Nations,
Situationof HumanRightsin theterritoryof theformer Yugoslavia,Report
submitted byMr. TadeuszMazowiecki,SpecialRapporteur ofthe Commission
on HumanRights,Transmitted bytheSecretary-General tothe General-
Assembly andthe Security Council,Al471666,Sl24809, 17 Nov. 1992,p. 12,
para. 26, emphasis added].
259. A Committeeestablishedby the Parliamentaq Assemblyof the Council ofEurope
also investigated the destructionof cultural heritagein Bosniaand Herzegovina.It
produced ten reports fiom March 1993 onwards, thelatest available being on 24
January 1997.Whilstthe reports acknowledgethat informationis incompletedue to
the inaccessibilityof somelocations under Serb control, nevertheless, they clearly
establish thatmosquesand Catholicchurches were deliberatelyand systematically
destroyed.In the Sixth Report dated 31August 1994,Dr Colin Kaiser,the consultant
to the Cornmitteereported, interalia, on destruction inCentralBosnia. He
considered various localitiesand consistently foundthat mosqueshad been
deliberately targetedby Serb forces:
oncl cl usionrstowns and villages on BSA fionts
The worst damage to Bosnian towns and villages has occurred to those places that are of strategic
importance to BSA-Gradacac and the villagesto the east, Konjic, Olovo and Maglaj. It is
especially in the first two areas that culturaYsacra1heritage has sufferedthe most (...).
It would appear that the BSA resorts mainly to wasteful tenor-shooting, with deliberate, if
somewhat inconsistentrgeting on mosques in order to send a political messageto the Moslem
population."Councilof Europe, ParliamentaryAssembly,"SixthInformation
Reporton War Damageto the Cultural Heritagein Croatiaand Bosnia-
Herzegovina", Doc. 7133, 31August 1994,p. 11, emphasis added, Annex341. Chapter5 - Section 4
Deliberaret'yinflictingon thegroup
conditionsof lge calculated to bring about
itsphysical destructionin whole or inpart
On the previouspage, the Report describesthe destructionof the town of Olovo:
"~onse~uently,like Gradacac,it is one of the worst damaged towns on the front with the BSA
[Bosnian Serb Amy], and is continuouslyundergoing bombardment;its eastem end,of which the
consultant couldget onlya short glimpse,s genuinely reminiscentof Vukovar, but there isdamage
nearly everywhereelse, with onlythe district right beneaththe Orthodox church beingspared.
The consultant visited the mosque,upon which BSA hadenjoyed direct visibility. Local people
claimed thatthe mosquehad been targeted on 1Febmary 1993; three powerfulprojectiles pierced
the north facade, another piercedthe southeastfacade, and there were other hitsin the roof (since
partiallyrepaired) and thebrick minaret was damagedby shrapnelGiven that the immediate
surroundingswere little damaged, it isa clear case of deliberate mosqueshooti[Councilof
Europe, ParliamentaryAssembly,"SixthInformation Report on Var Damage to
the CulturalHeritage in Croatia and Bosnia-Herzegovina,Doc. 7133, 31
August 1997,p. 10, emphasis added,Annex 341.
260. Investigators of theICTFYhave done in-depth researchinto the background,the
nature and thepattern of the armed conflictin Bosnia and Herzegovina.During the
course of the TadiCcase, one of the investigators,John Ralston,was extensively
examinedas an expert witness.He providedthe Trial Chamberwith a detailed
exposéeon the destruction of townsand villages, givingspecific attention tothe
destructionof cultural and religiousproperty:
"Q. Mr. Ralston, letme tum now your attention to another featurein the patterns thatthe
Prosecutor's investigationshave revealeda,ndthat is the destructionof Muslim villages. Canyou
please explainto the court whatyou mean by that and we willtum to someof the exhibitsin a
minute?
A. Yes. In general as the Muslim populationhad been removedfrom villages, Bosnia Serb forces
would comethrough anddestroy theirhomesto prevent theirreturn. In Vlasenicathe attack started,
as 1said, on22 April. Followingthe officialdeparhue of thJNA and their replacementby
Bosnian Serb troops, Bosnian Serbarmy troops,Muslim villages continueto be destroyed.The
attacks onthese villages met with little orno resistance.In manycases people had handed in their
weapons.In the Prijedormunicipalitythe followingvillages suffered from bombardment or totaolr
partial destruction by the Serbianmilitary,paramilitaryand policeunits:Hambarine and Ljubijaon
22 May, Korazac,Alici,Brdjani, Donji Forici, Hmici, Jakupovic, Kamicani, Kevljani,enjari,
Kozarusaand others,and Prijedor,Tukoviand Stari Grad on 30th May.In a Mer wave of
attacks on20th July the following villages suffered wide-spdamage:Biscani,Karakovo,
Rizvanovici, Sredice, Zidovci, Brisevo, Donji Ljubi, omija Ljubija,Raljas and Lisina.
Q. Mr. Ralston, let me ask you to referto Exhibits554 and 55,and please expandon your
testimony usingthose exhibits,if you would.Beforeyou startwe need to get onthe video screen.
Perhaps the lightscouldbe dimmedas well.No they had better stayas bright asthey can. Go
ahead.
A. 1will refer you firstly tothe colourcodingon the map.The blue indicates populatedareas, the
yellow, destruction from shelling and tred destructionfromfire or explosives. You willsee in
this area here thereis also a heavy concentrationof red showing large numbersof homes have beenReply of Bosnia and Herzegovina
destroyed. Our evidence showtshat the majonty ofthese houseswhich have been destroyedfiom
either fires or explosivesare in areaswhich were predominatelyMuslim.
If we moveto the next exhibit,if 1 can showthat more graphicallyin relationto this area here and
to later this areahere. Now this mapis a portionof easternand central Bosnia. Theareas in green
which are shownin the 1991censushave been a predominately Muslim population Y.ou will see
in those areas you have indicatedby red againwherethe houseshave been destroyedby either fires
or explosives. You willsee the concentrationof destructionof housesby fire and explosives is
extremelyhigh and similarto that whichoccurred inthe Prijedorarea.
Q. For this we need thelightsdimmed. Couldwe have them dimmed.
A. O.K. this map here isthe area in north western Bosniaand it encompassesthe Prijedorarea
which 1have previously given evidence about, parotf Banja Luka andSanskiMost. Whatthese
concentrationsshow are what are called ethnicallycleansed towns. The blue occurredfrom mid-
April to mid-May. You will seehere, here and Prijedor town.In Mayyou see the concentrationof
villages outside of Prijedor I spoke about.From late May to early June you will see that these
villages in this area here sufferedfrom ethnic cleansing,andfrom late June you will see the
concentrationsin these areas here.
Q. Mr. Ralston, in many of these villages there were Serbianpeople. Bosnian portions of the
Muslim community were essentially obliteratedandportions of the community that were Bosnian-
Serb remained intact?
A. That is correct.
Q. In that regard, Mr. Ralston,1would liketo showyou, please,Exhibit56A andB. 1would ask
you once it getsput on the elmoto explainwhat this isan exampleof.
A. OK. This is an aerialphotograph. What itshowsyou, and this is in the cify of Fota which I
havepreviously given testimony about, this area here is describedas the Serb section of Foëa. A
short distance awayyou have a Muslim section. It is not quite so clearfiom thisphotograph, but I
will show you in a moment. There is no destruction in this area whilstal1buildings in this area
have been destroyed.I have twofurther photographs whichshow, sorry, afirrther photograph
which shows a focus on these two areas. So in thisphotograph shows theirproximity. On this
photograph you can see that the Muslim homes are totally destroyed and the mosque has been
damaged In the Serb section a short distance awayyou see the OrthodoxChurch totally intact and
al1the buildings totally intact.
Q. Mr. Ralston would you now refetro Exhibit56C.Your honours, we will beaskingthe usher to
passto your honours copiesof thesephotographs which youdo not have inyour collection. That,
your Honours, is56C. Mr. Ralston would youexplainwhat 56C represents?
A. Yes.This is a photographof a village near Cerska. Youwill seein this photographsthe signs of
houseswhich have been destroyed.1am advisedthat thesetwo houseswere Muslimhouses.
Nestled inthe middleof them here and here aretwo Serbian style homeswhich sufferedno
damageat all.
Q. Mr. Ralston,I would nowlike to turnyour attention to Exhibit No. 57, and to askyou to
identijj what Exhibit 57 is?
A. Exhibit 57 depictsfor us thefate of many ofthe Muslim mosques throughout the Serb controlled
areas of Bosnia-Herzegovina.In Brcko in this site the early July1992 we see a mosque.
Q. That is a graphic description of the mosque, is that correct?
A. That is correct, of the mosque and the accompanying minaret.By May 1994 that area had been
levelled completely. Not only had the mosque been destroyed, but any of the remanents of the
mosque had been totally removed I think the next exhibit will show that a little more graphically.
Thisis the same area as I waspointing to in the previous exhibit, and this is the area where the
mosque had stood Al1traces have been removed.
Q Mr. RaRaln, was there a systematic destruction of religious sites in some of the locations that
you have testijied about?
A. Yes, there was.
Q. Let me refer your honoursto ExhibitNo. 58.We will displaythat onthe elmo injust a minute.
1will ask you, Mr. Ralston,to identiQ it and explainwhat itis once it cornesup on the screen?
A. This exhibit is a graphic representationof the Banja Luka area. It is signijicant in that Banja
Luka was a Serbian majority population and, as such, there was no armed conjlict in the area. Chapter 5 -Section 4
Deliberately injiicting on the group
conditions of Ife calculated to bring about
itsphysical destruction in whole or inpart
Despite thefact that there wasno armed conflict in the area, many of the Muslim mosques were
destroyed. Thisgraphicplots the Muslim mosque locationsand showed the ones that had been
destroyed by September 1993. There are 14depicted here in total, andince that graphic was
prepared I am told that threefurther mosques have been deshoyed and Iam also told that that
means the sum total of mosques in the Banja Luka area have been destroyed."[ICTFY,Trial
Chamber,Prosecutor v. Radovan Karadzit and Ratko MladiC,CasesNo. IT-
95-5-R61 and IT-95-18-R16,TestimonyRalston, CaseNo. IT-95-18-R61and
IT-95-5-R61,p. 73, emphasis added,Annex 351.
261. The systematicand deliberate natureof the destructionof mosquesand homes was
also noted at the "JointHearing before the Select Cornmittee OnIntelligence of the
United States Senate and Cornmitteeon Foreign Relations of the United States
Senate", in August 1995. Following a written testimonyfrom Ted Holt, an Imagery
Analyst expert witness,the exchangebelow betweenHolt andthe Chairman of the
Cornmitteetook place:
"~escription of aerial photographyshowing evidenceof ethic cleansingby Bosnian Serbs.
Besnjevo Vosnik,located near Sipovo in west-centralBosnia, is in Bosnian Serb-controlled
territory. Theouses were thoroughiydestroyed byfire in an apparentiy systematic manner; only
masonry walls andfoundations remain. The extent to which the debris of the mosque is scattered
indicates thatower-1 explosive charges were used to level it. According to the 1991 census, the
town was 70percent Muslim. This is one of well over 3,000 settlements in Bosnia destroyed in this
manner.
The village of Gunjevici, nearthe town of Goradzein the southeastem Bosnia,was razed during
the April1994 offensiveby the Bosnian SerbAmy under the direct commandof GeneralRatko
MladiC.This town, alongwith 14 other Muslimsettlementsof Drina RiverValley,was bumed for
no apparentmilitarypurposeas Bosnian Serb troops withdrewfiom the area.
The town of Trebinje,in southern Herzegovina,had a majority Serb population, according to the
1991 census. The destructionseen in this old Muslim cemetery is typical of that directed ut non-
Serb cultural sites and art$acts by Bosnian Serbs; the debris of the mausoleum indicates that it has
been destroyed by explosives,andgraves were likely hmaged as well. Such destruction aims ut
eradicating signs of a Muslimpresence and deterringMuslims who areforced outfrom returning
to thearea. Thisdamageprobably wasprior to Spring 1993.
These mostly Muslimtowns in the south-eastemBosnian townof Gozardeare locatedon the lefî
bank of the Drina River.That so many, butnot dl, of the houses were burneddom to their
masonry wallsand foundations indicatesa patternof calculated destruction inconsistentindicated
with thatresultingfiom battledamage.The houseswere destroyedduringthe 1992-1993
timeframe.
This settlement,nea. the cityof Zvomik on the Drina river in eastem Bosnia,is one of several
Muslimvillagesin the area destroyedby explosives inearly 1993.Again,the extent to which
debns is scatteredindicatesthe use ofowerfulexplosivecharges.
Openingstatementof TED HOLT, ImageryAnalyst,National Photographie InterpretationCenter.
Mr. HOLT. 1have fourgraphicspresent.A map which depictspart of east central Bosnia, which
director Gannonjust referenced; Srebrenicaand Zepa are in this area. This map depictsnearly a
couple ofthousandof, well over 3,000 settlementsin Bosnia-Herzegovinawhich havebeen
completely burnedto the ground since 1992 and 1993 time he. Most of the information1am
presentinggoes back to that time-he.Reply of Bosnia and Herzegovina
Besnjevo, the graphicbehind me, is typicalof that large numberof settlementswhich were
destroyedbyfire deliberately.The buildingsare reducedto merelythe masonry foundations. They
were apparentlyset onfire deliberately.Themosquein the village,typicalof al1the mosquesin the
areas of this type, wasapparently destroyed byexplosives,fiom the debrispattern. Thereis an
enlargementon thegraphic thatshows the downed minaret.
Chairman SPECTER. Mr.Holt, what isthe basis for your conclusion that that this is ethnic
cleansing and contrasted withsimple war damage.?
Mr. HOLT. Wecan tell the difference between battledamage and deliberate destruction.
Charman SPECTER. In which waydo you make that determination.
Mr. HOLT. There is away to tell if the damage is from shelling.The damage pattem is completely
different. You can tell-
Chairman SPECTER. What is the damage pattern here?
Mr. HOLT. Sir, thisdamage is completely by fire. Had there been battle damage, a lot of roofs
would be present. You can actually see the damage from entry of shells into the building. That's
fiom overhead as well as from ground level.
Chairman SPECTER. Please proceed.
Mr. HOLT. Thank you.
The last comment 1have on Besnjevo Vosnik is, accordingto the 1991census,the population was
approximately 70 percent Muslim. Our maps depicts census information behind the red damage as
well and you can see that most of the red portions do fa11in areas which had ethnic Muslim
majorities. Theareas in the pink color are controlledby the Bosnian Serbs. Besnjevo Vosnik isin
an area that is still controlled by the Bosnian Serb forces.
The village of Gunjevici is in southeastem Bosnia, notfar fiom Goradze. This villageis1 of 15
which were bumed after the combat action that occurredin the Spring of 1994,1believe, in March.
This campaign was led personally by General Ratko MladiC.And after the period of the action, as
the Serbs were withdrawing, typically thatis the time in which the villages are destroyed. This
graphic shows a before and after imageof that village,1 of 15.
Chairman SPECTER. What is your basis for the determinationthat this is ethnic cleansingas
opposed to battle damage?
Mr. HOLT. Thiswas a purely civilian location, sir. There wasno combat actionsin this particular
area, and thiswas to prevent the residents of those villages fiom retuming to homes.
Chairman SPECTER. Please proceed.
Mr. Holt. Thank you.
Myfinal graphic depictsa cemetery in an areaof southern Herzegovina near thecity of Trebinje.
There havebeen many ground reportsof people in the country seeing thingseven more detailed
than thisgraphicdepicts. Thisgraphic depicts a mausoleum that waa slso destroyedby explosives.
Wecan determinethatfrom the rubblepattern.Wecannottell exactlywhatthegraveyarditself:
but it is very likely has also beendamagedin a similarfashion. Trbinje is-wasthen and is todaya
majority BosnianSerbpopulation.
ChairmanSPECTER Wouldyou amplrfjtthepurpose of desecrating theMuslimgraveyard aspart
of ethnic cleansing?
Mr. HOLT. Yes,sir.
Thisis a typical pattern,especiallyhosethat are conductedagainstmosquesand Catholic
churchesin Croatpopulated areasin Bosnia,to cut culturalties to the residentsof that areaso
they will not have a reason ta returnto their original home,much-
ChairmanSPECTER So whatyou aresaying is that it is a systematicpart of an eflort to drive
thesepeople outof theirhomelandand to eliminate theBosnianMuslimsfiom continuingto live
there?
Mr. HOLZ Exactly,sir.
Thisis thepattern throughoutal1of the BosnianSerb controlled territory.I know ofonly one
mosque thatremainsstandingin that area.
ChairmanSPECTER Outof how manymosques?
Mr. Holt. It is -the number-we don't have theresourceor evidenceto actuallycount, because it is
hard to tell the diyerence berweenthe rubblein some of thesmallermosquesfiom that of houses.I
can make aguess of it, ifyou wish. Thenumber- Chapter5 -Section 4
Deliberaiely injlictingon thegroup
conditionsof lge calculated to bring about
itsphysical destructionin whole or inpart
ChairmanSPECTER.Cive us an estimate of the total numberof mosques.
Mr.HOLT. Thenumbers havereported uI,believe around-between1,000 and 2,000-more like
1,600.
ChairmanSPECTER.And only one remains.
Mr. HOLT. Onlyonethat1amawareof.
ChairmanSPECTER.Anyspeculation onwhytheylefi thatone?
Mr.HOLT.It'son a highplateau, verydifficult toreach.That'stheonlyreasonhat itmay
remain.
ChairmanSPECTER.AnythingMer to add?
Mr. HOLT.No, sir.
ChairmanSPECTER.Thankyouverymuch." ["War Crimesin the Balkans", Joint
Hearing Before the SelectCornmittee onIntelligenceof the UnitedStates
Senate and Cornmittee on Foreign Relations of the United States Senate. One
Hundred Fourth Congress,First Session,9 August 1995,pp. 9-17, emphasis
added, Annex 361.
262. The following paragraphscontain a demonstrativecollectionof somevaluable
examples of culturaland religiousheritage which have been lostto the world
through the actions of theSerb forces.
263. Sarajevo began to function as an urban entity in the middle of the fifteenth
century. The new Ottoman settlementwas establishedalongside the pre-existing
medieval area as was the usual Ottomanpractice. Thefirst stage of Sarajevo's
urban developmentwas markedby the erectionof a series of religious
monuments to the memory of Gazi Isa-beg Ishanovic, whichrepresent the
earliest sacral monumentsin Sarajevo, builtin the Ottoman townstyle, and
which influencedthe Mer architectural development ofthe town. The entire
town centre came into shape around the time of the building of the Emperor's
mosque and included bridges, caravanseraih ,amam baths, hans, shops,
fountains and other constructions.The second stage of the developmentof the
town was again marked by a campaignof sacral buildingfiom the endowrnent
of Gazi Husref-beg erectedduringthe third decadeof the 16th century.In fact,
most of the monumental structuresin Sarajevowere erected before the end of
the 16th century.
264. The trading and businesscore of the town formedits centre, andis the best
preserved in the Balkans. Sacrai buildings, aswell asshops andwarehouseswere
laid outwithin the market cornplex,and amongthem were those which were
dedicatedto al1confessions - mosques, SerbianOrthodoxand Catholic churches,andReplyofBosnia and Henegovina
synagogues.These were alongsidea nurnber of buildings dedicatedto the cornmunity
as a whole and its economicneeds.
265. Sarajevoas a typical feudal town was toundergo crucial change at the endof the
19thcentury with thebuilding of new structuresin a pseudo-medieval,historicising
sîyle, and subsequentlywith the introductionof elecûicity and building in the style
of Art-Nouveau.The Bascarsijais for al1that, a unique example of the intenveaving
not onlyof a variety of architecturaltrends, but also thetastes of those representing
varying civilisations,to befound in the town's population. For this reason, the
Bascarsija wasproposed to UNESCOin 1988 for registration ontheir list of world
heritage sites [Councilof Europe, ParliamentaryAssembly, FourthInformation
Report on war damage to the culturalheritage in Croatiaand Bosnia-Herzegovina,
Doc. 6999, 19January 1994,p. 36, Annex 371.
266. It was precisely this historical architecturalcore of Sarajevo,set out in the very
centre of the tom, which was marked fordevastationand annihilation.Al1the
cultural monuments within this complexare damaged or were destroyed:the
Emperor'sMosque, the Gazi Husref-beg Mosque, the Bascarsijaand Ferhadija
Mosques,the Old Serbian OrthodoxChurch, the CatholicCathedral,the Synagogue,
the Kursumli School,the Dervish House, the bridges, Morica Han, the Gazi Husref-
Beg Bezistan,the old shops, the emporium"MagazinDaire", the Vrecina Library,
the hotel "Evropa"and many publicand domesticbuildings of Austro-Hungarian
date [Councilof Europe, Parliamentary Assembly,SecondInformationReport on
War Damage to the CulturalHeritage in Croatiaand Bosnia-Henegovina,Doc.
6869, 17 June 1993, pp. 10-12,Annex 381.
267. Perhapsthe most brutal exampleof this cultural devastationwasthe destructionof
the building which housed the Parliament ofBosnia and Herzegovinauntil 1918,
then the Sarajevo City Hall and. for the last fiftyyears, has been the National
Library.In August 1993it was shelled forthree days by Serbartillery using
incendiarygrenades. The Library and its contentswere reducedto ashes. This has
been describedby AndràsRiedlmayerof Harvard University:
"~helargestsingleactof bookburninginmodemhistor[HearingBefore the
Commissionon Securityand Co-operationin Europe, 4 April 1995 "Genocide
in Bosnia-Herzegovina."Testirnonypresented by Andràs Riedlmayer(Harvard
University), p. 51, Annex 331. Chapter 5-Section 4
Deliberately injlicting onthe group
conditionsof lfe calculated to bring about
its physical destructionin whole or inpart
268. The Libraryheld 1.5million volumes,including 155,000rare books and
manuscripts, 100 years of Bosnian newspapers anp deriodicals,and the collectionof
the University of Sarajevo.Whilethe Library was on fire, the citizensof Sarajevo
formed human chains to pass books from the flamesT . he Serb snipers firedat them,
killing one. Unfortunately,ninety percentof the Library's irreplaceable collection
was destroyed.
269. One item whichmanagedto be salvagedwas an ancient Jewish prayer book used for
the celebrationof the seder or Passover feast.The SarajevoHaggadah was created in
fourteenthcentury Spainand features exquisiteHebrewcalligraphyand coloured
illustrations.Jewishrefugeesfiom the Inquisitionbrought it to Bosnia. During World
War II the SarajevoHaggadah had been preservedby a Muslimcurator who hid it
from the Nazi soldiers. In 1992 it was savedby the bravery of theworkers of the
National Museum, arnongthem a Muslim,an OrthodoxSerb and a Catholic.It has
thereforesurvivedthree historicpersecutions [MichaelA. Sells, TheBridge
Betrayed: Religionand Genocidein Bosnia, Berkeley 1996, pp.1-51.
Another irreplaceableloss to Bosnian culture was thedestructionof the Institute for
Oriental Studies.The collectionof the Institutecontained 5,263Arabic, Turkish,
Persian, and Bosnianmanuscripts(encyclopedias, works ofhistory, geography,
politics, theology,Islamic philosophy and Sufi works, works in natural sciencesand
and mathematics, law,dictionaries, collectionsof poetryby Bosnian and Ottoman
poets) fiom the 1lth to the beginningof the 20th Century. Thearchives contained
7,000 documents (16thto 19thcentury)comprising thesultan's orders(ferman) and
edicts (berats), thehart (bujuruldy)of the govemors,court andland certificates,
accountsand fuiancialreports. In addition, therewere sixty seriesof Bosnianand
Herzegovinian judges' (kadi) and judges assistants' (naib) reports. The archivof
the Vilajet contained 200,000different documents andcertificatesof land ownership
for the entire temtory of Bosnia and Herzegovina (second half otfhe 19thcentury).
Al1of this was lostto future generations whenthe Institutewas shelled and
completely destroyedin May 1992 [Councilof Europe, ParliamentaryAssembly,
SecondInformationReporton War Damage to the Cultural Heritage in Croatia and
Bosnia-Herzegovina, Doc. 6869, 17 June 1993,p. 11,Annex381.
271. Anothertarget of the Serb forces' artilleryin Sarajevowas the Museumof the XIV
Winter Olympic Games,which was thefirst cultural institutionto be deliberatelyReply ofBosniaandHerzegovina
targeted and destroyed.The museumwas also the pre-war centre for contemporary
artI.t was hit by five direct grenade impactson 28 April 1992and was totally
gutted. The directortold the bizarre story of how, as the museumbunied, officers of
the JNAliving nearby came out and shot at the building withtheir revolvers,such
was their hatred ofal1it symbolised.In spiteof the destructionof ten years of work,
the museurn held anexhibition in 1994to celebratethe 10thanniversaryof the
Winter Olympicsand its spiritof multi-culturalism[Councilof Europe,
ParliamentaryAssembly,NinthInformationReport on WarDamage to the Cultural
Heritage in Croatia and Bosnia-Herzegovina, Doc. 7464, 18 Jan. 1996,p. 18, Annex
391.
Zvornik was known for its heritage of Bosnian poets,saints, rebelsand mystics.
Zvornik was also one of thefirst Bosniantowns to be capturedby Serb forces
[Reply, Chapter 5, Section61.From April throughJuly 1992,the Serbmilitary killed
or expelled theentire Muslimpopulation. Afteral1the mosquesin the primarily
Muslim town were dynarnited and ploughed over, the new Serb nationalist mayor
declared: "Therewere never any mosquesin Zvornik. Destroyedwith those
mosques was the evidencenot only of the Muslimheritageof Zvornik, but also of
fivehundred years of sharedliving betweenChristiansand Muslims.In 1993,to
celebrateZvornik's status as 100percentethnicallypure, the mayor dedicateda new
church, renamed a new local,formerlyMuslimvillage "Saint Stephen" and kissed a
crucifix [MichaelA. Sells, TheBridge Betrayed,p. 4, Annex 401.
The destructionand eliminationof the mosques andCatholic churchesin Banja Luka
showsthat these were not isolatedacts of vandalism. Clearly, given the scale, speed
and pattern of the destructionof the places ofworshipand the eliminationof traces
of their existence,they were neitherspontaneousnor incidental.Rather,they were an
integral part of the sequence ofeventswhichwere designedto have the effect of
wiping out al1traces of the non-Serb population.Indeed, Banja Luka isan example
of how much of the destructiontookplace in areas which werenot the scene of
conflict, oroccurredwell after the territoryhad been occupiedby Serb forces.
Opstina Prijedoris another sad illustration[Reply,Chapter 5, Section71.As
demonstratedat the beginningof this Section,in the Judgmentof the TadiCtrial, the
TrialCharnberat ICTFY recognisedthis deliberate destructionof non-Serb cultural
and religious symbolsthroughoutthis region.
The destructionof BanjaLuka was also describedby HumanRights Watch,the
largest US-based hurnan rights monitoring organisation,in 1994: Chapter 5- Section 4
Deliberately injlicting on the group
conditions of Ive calculated to bring about
itsphysical destruction in whole or in part
"(...the scene of much of the mostsevere and systematicethnic cleansingundenv(...for the
pasttwo years, non-Serbs have been "cleansedt"hroughsystematic persecutionthat includes
torture, murder, rape, beatings, harass,eejurediscrimination, intimidation, expulsion from
homes, confiscationof property, bombingof businesses, dismissalfromwork, outlawingofl1
scripts exceptthe Cyrillic in public institand the destruction of cultural objects such as
Mosques and Catholicchurches." ["war crimes in Bosnia-Herzegovina:UN Cease-
Fire Won't Help Banja Luka",Human Rights WatcWHelsinkiWatch,June
1994, Vol. 6, No. 8, pp. 1-2,emphasis added,Annex 411.
Later in the same Report, theterrible scale of destructionof religious sites is
ascertained, statingthat it was never the result of combatand occurred long after this
territory had been occupiedby the Serb forces:
ri oto the war, 202 mosquesstood in the Banja Luka area; now only two remain. Between April
and September 1993, six sixteenth century and seven seventeenth century mosques were destroyed
in and around Banja Luka. Of the Roman Catholicchurches and ecclesiasticalbuildings in the
diocese of Banja Luka, over 50per cent have been destroyed, 21 per cent have beenily
damaged and 25 per cent have beenpartially damaged.An increasingnumber of Catholic
graveyards arealso beingplundered. Whenthe remains of two mosques and two Muslim cemeteries
were blown up and bulldozers were sent to desecrateand remove the debseveralUNHCR staff
personswere arrestedand temporarily detainedby the Bosnian Serb policefor attemptingto
investigate and stopthe desecration.TheN. reported that VitomirPopovik,the 'vice-president'
of the Banja Luka municipality, told a local newsptrat the mosqueswere cleared because it
was the only way 'toteach minoritiesto respect Serblaw.["WarCrimes in Bosnia-
Herzegovina:UN Cease-FireWon't Help Banja Luka",Human Rights
WatcWHelsinkiWatch,June 1994,Vol. 6,No. 8, pp. 15-16, emphasis added,
Annex 411.
275. The date of destructionof the two oldest and most celebratedmosques in Banja Luka
was recordedby the United StatesDepartment ofState:
"17 May 93BosnianSerbsblew up the 1587FershadPasha mosque andthe 1587Amaudija
mosque, both located in BanjLuka.(...)
On May 26-28 1992SanskiMost was subjectedto an intense bombardment.Up to 400 buildings
were destroyed andal1the mosques weredynamited." [United States Departmentof State,
Bureau of PublicAffairs, Dispatch, 26 July 1993,Vol. 4, No. 30, pp. 547-548,
Annex 181.
276. The destructionof mosquesin the BanjaLuka area was reported upon by the
corespondentof the Daily Telegraphof London, Patrick Bishop:Reply of Bosnia and Herzegovina
"~edrudin Gosic pointed outof the windowat the spectacular pileof ancient rubble heapedamong
the trees. 'Lookat the eviltside.A rnosque,450years old which has withstoodwar after war.
Al1my childhood I spent there.Now itS destroyed'
The Fershad Pasha rnosque,ajewel of religiousarchitecture, was blown up early one Friday
morning thismonth.
'Whodid it ? The same people who blew up the other 800 mosquesaround Bosnia'said Mr.
Gosic,president of the Ferhad Pasha community.The Serb authorities have announcean
investigationinto the blowingup of the mosque which sits 100yardfkomthe police headquarters.
OfficiaisSaythat the likeliest explanation was that Islamic extrtsere responsible.
The destructionof the mosque is an unnecessary remainder ofthe 20,000Muslimsstill livingin
and aroundthis Serb strongholdof the Bosnian Krajina that they have futurehere andto linger
is dangerous,even fatal.[PatrickBishop, TheDaily Telegraph,20 May 1993,
Annex 421.
277. The HumanitarianLaw Centreis a Belgrade-basedorganizationfor the study of
human rights and their violation onthe territory of the former Yugoslavia.Arnonga
number of reports published on humanrights violations is a reportof August 1994,
which includeda section onthe culturaldestruction inthe BanjaLuka area:
"2. Destructionof Historical, Cultural and religious landmarks.
2.1 Mosques
Of the 202 mosques in the Bosnian Krajina before the war, onlytwo now remain in the Serb held
region. One is in Baljvine, a village in Mrkonjik Grad township.According to the Mufti of Banja
luka, it was savedfrom destructionby Serbsfrorn the neighbouringvillage of Bregovi. The other is
in Konjuhovci in Prnjavor Township.
In the townof Banja Luka, there weresixteenmosques, four Roman Catholic and two Serb
Orthodoxchurchesbeforethe war. Al1the mosques were destroyed between Apri 6l and September
9, 1993.No Catholicor Orthodox church has been attacked.
The sitesof eight of the mosques were levelled bybulldozers belongingto Put corporation
betweenDecember 15 and December 24, 1993.Leaders of theIslamic Community have repeatedly
appealedto the local authorities for the sites and resf the destroyed mosquesto be placed in
the Community'scare. The most recent appealwas on May 23, 1994.The lasttraces of several
more destroyed mosques have been removesdincethen. The sitesof the medhiBegova, Sefer
Begova and HadZiKurtovamosques were bulldozedduringthe first half of July 1994. The graves,
fences,paths and lawnsof thesemosques were destroyedat the sametime.
Today, the only remains of the cultural and religious monuments of the Bosnian-Muslimcommunity
in Banja Luka and the townSislamicpast are parts of the wallsStupnifka, Hadii Salihija and
Pobrdjanska mosques, iwo towers of Gazanferija mosque andseveral graveyards with a total of
about15,000graves." [The HumanitarianLaw Centre,SpotlightReport,No. 14,
August 1994, pp. 143-1441.
278. Nowhere hasthe destructionof non-Serbreligiousand culturalmonumentsbeen
more exactlyrecordedby competent legal authoritiesthan in opitina Prijedor,both
by the ICTFY andby Judge Hanna SophieGreve of the United Nations Commission
of Experts. As recorded in Section 7 of this Chapter,op3tinaPrijedor was taken over
by the Serbforces in the month of May 1992.The main town of the district was
taken over in a bloodlesscoup on thenight of 30 April 1992 andalthoughthere was
some fighting in outlying areas, the Serbforces overwhelrninglywell-equipped and Chapter5 -Section4
Deliberately injlictingon the group
conditionsof life calculated to bringabout
its physical destructionin whole or
organized, capturedthese areas with few losses among their own troops. Prijedor
neatly illustrates the destructionof churches and mosques during the Serb take-over
and the continued destructionof these buildings after any perceivablethreat to the
Serbshas disappeared.
279. Kozaracwas one of the outlying areas in opStinaPrijedor destroyed by the Serb
forces in May 1992.The Commissionof Experts describedthe attack onthe village
thus:
"The attack on Kozarac lasted three days and caused many villagers to flee to the forest while the
soldiers were shooting at 'every moving thing'.Survivors calculated that at least 2,000 villagers
werekilled in that period. The villagers' defencefell on 26th May. Whenthe Serbianforces
entered the village, they began destroying the villageS 14 mosquesand n[Unitedarets."
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994, 28 December1994,Annex III. A,
"Special Forces", pp. 154-155, paras. 484-4851.
280. As referred to in Section 5 of this Chapter, the Serb forcesused Muslimand
Catholicplaces of worship as detention centres, ofien desecratingthem before
destroying them. In the village of Carakovo somethingeven more terrible tookplace.
On 27May 1992,the mosque was usedas an incinerator for capturedMuslim
prisoners. This was describedby the United States Departmentof State:
"Radio Pnjedor had announced that Muslirns shouldnot be afiaid, that the soldiers were only
looking for extremists. Both witnesses were hiding in the village during the attack. The attack
began at 8.15 am. The Serbs first killed two older men by slittingtheir throats. The witnesses then
heard gunfire and afterward saw a pile of 15-20bodies in the Street.Seventeen people wereforced
into a local rnosque.Thesoldiers then burneddown the mosque withthepeopl[Unitede."
States Departmentof State, Bureau ofPublic Affairs,Dispatch, 19April 1993,
Vol. 4, No. 16,p. 261, Annex 191.
281. During these attacks, it was the practice of the Serb forces to markthe Serb-owned
property uith inscriptionssuch as "Serb house, do not touch". Suchproperty
invariablyrernainedunhanned, whereas everythingelse was deliberately destroyed.
This fact was noted by the ICTFY in its Judgmentin the TadiCcase [ICTFY, Trial
Charnber,Opinion and Judgment,Prosecutor v. Mko Tadii C aseNo. IT-94-1-T, 7
May 1997,p. 54,para. 1441.Reply ofBosniaand Herzegovina
282. The Commissionof Experts, in its "Prijedor Report", described in great detail the
destruction of non-Serb cultural property:
"554. In Prijedor town, the following five mosqu-sand ail objects and buildings belonging to
them such as mausoleumsand religious schools, etc.were destroyed:
(a) the mosque in the centre of the town in Marsala Tito Street:
(b) the mosque in Starirad;
(c) the mosque in Muharema Suljanovica Street, theZagrad;
(d) the mosque in the suburb of Donja Puharska; and
(e) the mosque in the suburb of Gomja Puharska.
555. It isaid that in the Korazac area al116 mosques have been destroyed.
556. It is actually claimed that not a single mosque,or other Muslim religious buildingin the
whole of opstina Prijedor has been sparedand remains intact.Most religious constructions are not
only damaged but reduced torubble. The sacral edifices were allegedlynot desecrated, damaged
and destroyed for any militaryurpose noras a side-effectof military operatioas such.
Conversely, most of the destructionwas due to later separate operations of dynamiting. At leaston
one occasion, some non-Serbs and Serbs concemed alertedthe local Serbian police thatmosque
in Prijedor seemed to be inthe process of being dynamited.The police reportedlyfused to take
any action and even state that the police were not opposedto the destruction in progress.
557. Also, other buildingsand habitations consideredas typically Muslim have been demolished.
The Old Town in Prijedor town, Stari Grad, was one such area with a strong Muslim architectural
influence.Afier the Serbian forces purged the area, Stari Grad was levelled almost completely,
including a number of new houses which had been erectedaccording to Muslim traditions.
558. The Catholic churches and religious buildings in opstina Prijedor listed below have been
destroyed and damagedas follows:
(a) the parish church in Prijedor (built in 1896)was destroyedon 29 August 1992;
(b) Kozarac church, afiliated with the Prijedor parish, was heavily damagedin June 1992;
(c) the parish church in Ljubija was damaged andlooted in the period between July and August
1992;
(d) the pastoral centre in Ljubija was bumed down and heavily damaged in the June 1992;
(e)BriSevochurch, afiliated with the Stara RijekaParish was bumt down in July 1992;
(0 the Sunday school hall and rectory in BriSevowas bumt down in July 1992.
(g) the parish church in Surkovac was destroyed in March 1993;
(h) the pastoral centre inrkovac was heavily damagedin the period between January and March
1993;
(i) TomaSicachurch, aEliated with the Sasina paris,was destroyed in November 1992;
Ci D)oanja Ravska church,affiliated with the Ravska Parish was destroyinJuly 1992.
559. The sacral institutionswere allegedly desecrated, destroyed and damagedfor no military
purpose and not in connection with any military activity assuch.
560. A Serbian oficial in BanjaLuka ,ho was later asked about the destruction of mosques and
churches,responded that a number of such buildingshad been misused asconvenient places for
battle. Beingta11and of solid construction, mosquesand churches were suitable for snipers to shoot
fkom, 'fkomthat point on,' these buildings cease to have sacred importance,"he added. Obviously,
every buildingfitting a sniper has not been razed in opStinaPrijedor. On the contrary, there is no
report of any general communal or Serbian constructionin the district which levelled to
prevent snipers fkommisusing it. Chapter5- Section 4
Deliberately inflictingon the group
conditionsof Ife calculated to bring about
its physical destructionin whole or inpart
561. According to an article printedby the Ministry of Information of the Republic of Serbia (i.e.
Serbia proper), not a single Serbian sacredobject has been destroyed or damaged in opStina
Pnjedor. The map which is attached to the article, shows destruction anddamage related to
Eparchy seat,monasteries, religious service objects (cathedrals, parischapels) andnd
parish seats and other church objects.
562.Save for buildings not specificto the non-Serbian-especially in Prijedor -om
most of the non8erbian homes and habitations have been seriously damaged, if not completely
destroyed. Large scale devastationis the case in the Kozarac area and in the villages in the lefi
bank of the Sana River. Heavily damaged arenot only the variety of the architectural expressions,
but also theter he for the sociological and anthropological expressionsof the pluralistic
culture of the dist[UnitedNations,Final Report of the Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994, AnnexV, "The Prijedor Report",pp.
106-107, paras.554-5621.
283. In the Memorial at paragraph 2.2.5.15t,he Applicant notedthe destructionof
mosques in Bijeljina. The fate of the ruins of these mosques was discussedby
Andrà s iedlmayerin his testimony beforethe United States Congress:
"~he next day, bulldozers were clearing away therubble and a long lineof trucks and buses stood
ready to take away the town's temfied Muslim residents.Two months later, in May 1993, Western
reporters visitingthefound grass and trees planted on the levelled sites;it was as if the
mosques and Muslims hadever been there[Hearing Beforethe Commissionon
Securityand Co-operationin Europe,4 April 1995 "Genocidein Bosnia-
Herzegovina" Testimony presented by Andrà s iedlmayer, HarvardUniversity,
p. 51, Annex 331.
284. The destructionof the physical manifestations of Muslim life in Bijeljinawas
followedby a systematic programwhich was clearly airnedat expellingthe
remaining Muslirnsand extortingproperty andmoney fiom them. This programme
was noted and recordedby AmnestyInternational.The expulsions,and many events
surroundingthem, were organizedby anofficial or semi-official"exchange
commission"working in Bijeljina["Bosnia-Herzegovina:"Livingfor the Day",
Forced Expulsion fiom Bijeljina and Janja",AmnestyInternational, AI Index: EUR
63/22/94, Dec. 1994;See also: United States Departmentof State, Bureau of Public
Affairs, Dispatch, 26 July 1993,Vol. 4, No. 30, p. 547, Annex 181.
285. That this policy hasbeen in force up until the end of the conflict in Bosnia and
Herzegovina can be demonstrated by theexarnpleof BihaC,described in the Eighth
Report of the European CornmunityMonitoring Mission(ECMM)which presented
its Cultural HeritageReport, having visited areas in what is now the FederationReply of Bosnia and Herzegovina
entity, accesshaving been severelyrestrictedin areaswhich are now part of the
"Republika Srpska":
"45. The worst recent damage was encountered in the BihaCarea, in the villages of Sokolac and
Zavalje when RSK pepublika Srpska Krajina] and BSA withdrew -in the former the mosque was
destroyed by dynamiting, probablyin November 1994, andthe Catholic church in the latter badly
damaged by projectiles, including artillery,and perhapsby set explosives,and the inside
was emptied and the bones thrown about, along with othervandalism to the interior (November
1994-Febmary 1995).
46. The pattern for Bosnia correspondsto earlier fin-ithe worst damage is caused by setting
of explosives, in this case by RSK and BSA forces; theretensive damage though sometimes
'intensive'fiom mortars and artillery in fiont areas, and there is even more widespread damage
fiom vandalism that takes the form of firing by troops or other elements and wrecking of
interiors.
47. The damage perpetrated by RSK and forces in the BihaCarea (which also includesthe firing
and vandalising of the villages of Sokolac and Zavalje) is especially worrisome, because it reveals
continuing indifferenceto the laws of and deliberate destructionof other peoples' sacral
heritage."[Councilof Europe,ParliarnentaryAssembly,Eight Information
Report on War Damage to the Cultural Heritage in Croatia and Bosnia-
Herzegovina, Doc. 7341, 28 June 1995,p. 11, Annex431.
286. The destructionof mosques,libraries,churches, graveyardswas an essential part of
the policy of ethnicpurification.In Serb-controlledareas of Bosniaand Herzegovina,
the destructionof Muslim and Croatian homesand cultural and religious objects is
pervasive:
"~osques, and to a lesser extent, Catholic churcheshave been bulldozed in city centres during
daylight hours. Such public displays of destruction suggestthat local andregional Serbia authorities
issued orders,rganised or condoned efforts to destroy Muslim and Croatian cultural and religious
institutions.man Rights WatchMelsinki knows of no case in which the Serbian authorities have
made even a half-hearted effort to arrest those guilty of such de(...).["WarCrimes
in Bosnia Herzegovina",HumanRights WatcWHelsinkiJ ,une 1994,Vol. 6, No.
8, p. 15, Annex 441.
It is clear,thatafter the destructionof part of the non-Serb population andthe
expulsion of the remainder,the Serb forcessoughtto prevent the expelledfrom ever
returning. Where mosquesstood for centuries, thereare now car parks. Indeed,in
some localities, such as Zvornik, whichhad a substantialMuslimpopulationand
nineteenmosques,the messageactuallybeing sent outnow is that there never were
any mosquesor Muslimsthere in the first place. Here, as elsewhere,there is no trace
left of a Muslim presence whatsoever.And this is exactly what theSerb campaign
was al1about: the eradicationof non-Serb society,includingits cultural manifestation
and, for that matter, includingits people. Chapter - Section 5
Camps
5. Camps
Introduction
In the following pages of this Section,the Applicant willelaborate on a phenomenon
particularly prevalent in the conflict in Bosnia and Herzegovina: the widespreaduse
of camps by the Serbs. The Applicantwill show the Courtthat these camps werenot
the by-product of the Bosnian orYugoslavconflict, but the direct consequence ofthe
Serb aim to create an ethnically pure Greater Serbia and as such, an important and
necessary link in the policy of ethnic purification.The camps, which held notonly
men, but also women, the elderly and children, were erected al1over the territory
under Serb control at the momentthe fighting in Bosniaand Herzegovina erupted.
The treatment of the non-Serbpopulation ofthe camps wasoften beyond the scope
of human imagination. The Muslimand Croat prisoners weresystematicallyand
routinelytortured, raped, mutilated, starvedor simply killed. The onlycriterion for
being imprisoned in these camps wasethnicity, or in the case of camps erected
exclusively for women: ethnicity andgender.
Memorial
288. In theMemorial, the Applicant referred tothe widespreadmanner in which the Serb
forces used campsto detain,torture and kill Muslim andCroat civilians [Memorial,
Section 2.2.1, pp. 17-29].By way of example,the Applicantfocused on three
specific cases:the camps in Omarska and Keraterm, bothin the Prijedorregion, and
Luka, the detention facility inBrCko,in northeasternBosnia and Herzegovina.The
overview given in the Memorial of these camps clearly illustratedthat the treatment
of the non-Serb inmates was indeed "so shockingas to almost de@description"
[Memorial,p. 22, para. 2.2.1.31.
289. In the introductionto the Sectionon camps in the Memorial,the Applicant listed the
names and location of 173detention facilities.Out of these 173 camps, 14 were
located in the Federal Republic of Yugoslavia.As the Applicant willdiscuss the
atrocities comrnittedon Yugoslavterritory in a separateSection of this Reply [Reply,
Chapter 8, Section 121,this category willnot be dealtwithhere. It is importantto
note, however, that the nature of these camps and the treatrnentof the detaineeswere
in fact thesame.Non-Serbs detainedin camps in the Federal Republic of Yugoslavia
were treated no differently thanthose imprisonedon the other side of the river
Drina, separatingthe Federal Republicof Yugoslaviafrom the "RepublikaSrpska".Reply of Bosnia and Herzegovina
Counter-Memorial
290. The Respondent's reactionto the evidence presentedin the Memorialis confusedand
ambiguous.This ambiguityis largely reflectedin the terminologyused by the
Respondent when describing the various campsin Bosnia and Herzegovina.
291. The Respondentfirst advancesthe propositionthat "concentration camps"never
existed on territory under Serb control.In responseto the abovementionedlist of
camps presentedby the Applicantin the Memorial, the Respondentstatesthe
following:
"~herewereno concentraticampsontheSerbian[sic]sideandtheassertionsof theApplicant
thattherewere170'suchcamps'implythat, inadditionthethreeof which only superficial
chargesaremade,thereexistedanother7,whichis absurdandcannotbeprovedatall."
[Conter-Memorial, p. 29, para. 1.3.1.6.1.
After having deniedthe existenceof "concentrationcamps"on the "Serbianside",the
Respondent in one and the samebreath fiankly admitsthat the "Serbian authorities in
the Republicof Srpska" indeed "operateda numberof detentioncentres" [Counter-
Memorial,p. 29, para. 1.3.1.4.1.It further accepts that the Serbsin Bosnia and
Herzegovinaran "investigation"[ibid.,p. 32, para. 1.3.1.13.1and "protection"
facilitiesibid, p. 36, para. 1.3.1.26.1.
292. It is interestingto note that the Federal Republic of Yugoslavic aonsiders itself
capableof making categorical pronouncements oneventsin which it alleges it played
absolutelyno part.
293. The foregoingstatement, quotedfrom the Counter-Memorial, and theterminology
used by the Respondent give the impression that an important distinctionshouldbe
made between concentrationcamps on theone handand other campsor centreson
the other. Inspite of the apparent importancethe Federal Republicof Yugoslavia
attachesto the distinction (itvehemently deniesthe first ever existedbut candidly
admits the latterwere established), nowherein its Counter-Mernorial does the
Respondent explainhow to distinguishthese two categories.
294. What is the differencebetweena concentration campand a detentionor investigation
centre? Chapter5 -Section 5
Camps
295. The Applicant is of the opinion that the answerto this question is not relevant to the
issues involved. It is at best an academic question, without relevanceto events that
took place during the armed conflict in Bosnia and Herzegovina.The Applicant will
demonstrateto the Court that the Muslim and Croat prisonersin the Serb-run camps
were aIwaysmaltreated, if not simply killed, whateverepitheton or euphemismthe
Federal Republic of Yugoslavia uses to describethese camps.
TheBosnian archipelago
296. Someeight months after the submission ofthe Memorial,the Commission ofExperts
published its Report on "prisoncamps". It compiled lists of camps, after reports had
been investigatedand corroboratedby independent sources.The Commission's
Report was publishedafter the Applicant submittedits Memorial. The Report
identified no less than 960 campsoperatingin the territory of former Yugoslavia
during the conflict [United Nations,Report of the Commissionof Experts,
Sl19941674lAdd.2(Vol.IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",p. 9, para.
91.
297. While 84 detention centreswere identifiedas having been operated by the Bosnian
government, the Commissionfound that there were no systematicabuses of human
rights of detainees in such camps:
"[tlheCommissionhasnotbeenableto detectanyparticupattern rolicyof wrongdoing. The
Commissionhas,however,ascertainthattheGovernmentof BosniaandHerzegovina has
expressedtsoppositiontotheseindividualviolati[United Nations,Final Report of
the Commissionof Experts, Sl19941674,27 May 1994,p. 52,para. 2271.
In stark contrast, the camps operatedby the Serb forceswere found to be "by far"
the ones "where the largest number ofdetaineeshave been held and wherethe
harshest and largest numberof violations occurred" [United Nations,Final Report of
the Commissionof Experts, S/1994/674/Add.2(Vol.IV), 28 Dec. 1994, AnnexVIII,
"Prison Camps",p. 9, para. 101.
298. Out of the mentioned 960 camps, 466 ofthem turned out to be operatedby Bosnian
Serbs or the Federal Republic of Yugoslavia, almost three times asmany asthe
Applicant was able to mention with sufficientcertainty at the the the Memorialwas
subrnitted.Reply ofBosniaand Herzegovina
299. The Commission ofExpertsused a great numberof sourcesto compilethe list of
camps run by the Serbsin Bosnia and Herzegovina.In spite of the fact that it proved
extremelydifficultto inspect possibledetention siteson the territory under Serb
control, the Commission corroborated the existence of some 200 campswith
evidence suppliedby sources fromoutsidethe former Yugoslavia.
300. The InternationalCornmitteefor the Red Cross,for example,confirmedthe existence
of atleast the following21 campson territory under Serb control:
-ManjaEa,Banja Luka;
-Mali Logor, Banja Luka;
-Banja Luka hospital, Banja Luka;
-Tunjice, Banja Luka;
-BatkoviC,Bijeljina, northeast Bosnia;
-Police station,BileCa,south Bosnia and Herzegovina;
-Civilianjails, BileCa;
-Old Police building, BosanskiSamac, north Bosnia;
-Omarska, Prijedor, northwest Bosnia;
-Tmopolje, Prijedor;
-Podosoje, Rogatica,east Bosnia and Herzegovina;
-Prison, Rudo, east Bosnia;
-Krings factory, SanskiMost, northwest Bosnia;
-Kamenica, Titov Drvar,WestBosnia;
-MiliCi,Vlasenica, east Bosnia;
-Vlasenica camp, Vlasenica;
-Police station, Vlasenica;
-Local prison, Vlasenica;
-Factory, Vlasenica;
-Glinica factory, Zvomik, east Bosnia;
-DiviEstadium, Zvomik. Chapter5 -Section 5
Camps
The ICRC is perhaps the most reliable sourceused by the Commission ofExperts to
corroborate reports,as the organisation occasionally managed to visit the sites of
Serb-run camps.
301. The Commission,however, also reliedon other internationalsourcesto confirm its
reports on suspected campsused by the Serbsto detain Muslimsand Croats.The
CSCE, for example,confirmedthe existence of, amongothers, the following camps:
-RipaE,Bihaé,northwest Bosnia;
-Unidentified detention facility, Trebinje, eastem Herzegovina.
The EuropeanUnion alsoconfirmedseveralreports on camps:
-Agricultural school, Bijeljina, northeast Bosnia;
-"Home Ghettoes",Celinac, east of Banja Luka;
-Police station, Gacko, south-eastem Bosniaand Herzegovina;
-Hotel Rudnik, Gacko.
Various other UnitedNations sources, otherthan the Commissionof Experts,
corroborated the existence of, for example,the followingsites:
-Coffee house near Skijana, BrEko,north Bosnia;
-Private house in GrEica,BrEko;
-Power plant, Gacko, south-eastem Bosniaand Herzegovina;
-cela, Prijedor, northwest Bosnia and Herzegovina;
-Jajce, Prijedor.
302. Nurnerouscamps were also reportedby UnitedNationsmember states. The United
States governmentwas the most important corroboratingsource for the Commission
of Experts. It confirmed theexistence of, amongother camps,the following
facilities:
-ManjaEa,Banja Luka;
-DubiEkaGora, Banja Luka;
- Mali Logor, Banja Luka;
- Paprikovac Optical hospital; Banja Luka;
-Novoselija, Banja Luka,
- Batkovié,Bijeljina, northeast Bosnia;
- Storage facility, Klis, Bijeljina;
- Militarbarracks,Bijeljina;
- Popovi, Bijeljina;
- Slaughterhouse, Bijeljina;
- Spanac JNA Barracks, Bijeljina;
- Velika Obarska, Bijeljina;Reply of Bosnia and Herzegovina
- Civilianjails, BileCa,south Bosnia and Herzegovina;
- DjaEkiDom, BileCa;
- Reserve officers school, BileCa;
- Stara GradiSkaprison, BosanskaGradiSka,north Bosnia;
- Red Cross community centre, BosanskaGradiSka;
- Local school,Bosanska GradiSka;
- The Praktikum, Bosanska GradiSka;
- Podgrace school, BosanskaGradiSka;
- Donja Nova Topola, Bosanska GradiSka;
- T.O. facility, BosanskiSamac, north Bosnia;
- Elementary school, BosanskiSamac;
- Secondary school,Bosanski Samac;
- JNA casem, BrEko,north Bosnia;
- Police station,BrEko;
- Hotel Galija, BrEko;
- Bimex agricultural complex, BrEko;
- Unidentified detention facilities,BrEko;
- Laser factory, BrEko;
- Three mosques, BrEko;
- Es Naselje ghetto, BrEko;
- Hotel Posavina, BrEko;
- Brezovo Polje village, BrEko;
- Mostina hunting lodge,CajniEe,east Bosnia;
- Shipping container,CajniEe;
- Milos Dujiéelementary school, Celinac, north Bosnia and Herzegovina;
- Stanari coal mine,Celinac;
- Grain mill, Derventa, north Bosnia;
- Red Cross refugee camp, Doboj, northBosnia and Herzegovina;
- Bare military barracks, Doboj;
- Military barracks at Sevarlije kod Doboja, Doboj;
- SUP building complex, Doboj;
- Secretariat for Intemal Affairs, Donji Vakuf, central Bosnia;
- Vrbas-Promet detention camp, Donji Vakuf;
- Police station, Donji Vakuf;
- KP Dom, FoEa,east Bosnia;
- Buk Bijelo workers banacks, FoEa;
- High school, FoEa;
- Partizan sports hall, FoEa;
- VeleEevowomen's prison,FoEa;
- Military casem Avtovac, Gacko,south Bosnia and Herzegovina;
- SamaEkihotel, Gacko;
- Secretariat for Intemal Affairs, Gacko;
- Hotel Kosuta, Gacko;
- Hotel, Gacko;
- Jedinstvo school,KljuE,central Bosnia and Herzegovina;
- Jezerce, KljuE;
- Vrbanja lumber factory, KotorVaros, near BanjaLuka,
- Omarska, Prijedor, northwest Bosnia;
- Keraterm, Prijedor;
- Tmopolje, Prijedor;
- BreziEani,Prijedor,
- Ljubija soccer stadium, Prijedor;
- Miska Glava village hall, Prijedor;
- Police station, Prijedor;
- Prison, Prijedor; Chapter5 - Section 5
Camps
- Prijedor sports centre, Prijedor;
- Village of Pmjavor, Pmjavor, north Bosnia;
- ChurchiPriest's garagelpriory, Rogatica, east Bosnia;
- Veljko Vlahovic high school, Rogatica;
- Hasan Kiki6 pnmary school, Sanski Most, northwest Bosnia;
- Police headquarters, Sanski Most;
- Sportski centar, Sanski Most;
- HadZiCisports centre, Sarajevo;
- Trapare, Sarajevo;
- Hotel Park VogoSCa,Sarajevo;
- Sase mine, Srebrenica, east Bosnia;
- Stara OpStina,TesliC,north central Bosnia;
- Police station,TesliC;
- Elementary school, Titov Drvar;
- SuSica,Vlasenica, east Bosnia;
- Kindergarten, Zvomik, east Bosnia;
- Courthouse, Zvomik;
- Unknown house in Zvomik, Zvomik;
- Central prison, Zvomik;
- "Novi 1zvor"-ownedbuilding, Zvomik;
- JNA barracks at Karakaj, Zvomik;
- "Alhos"textile plant, Zvomik;
- Movie theaîre in Celopek, Zvomik;
- Lumber factory, Caparde, Zvomik;
- Vidikovac hotel in DiviE,Zvomik;
Other govemmentswere also mentionedby the Commissionof Experts as the
corroborating source, such as France:
-SekoviCiwomen's camp, Sekovi~i,eastem Bosnia and Herzegovina;Reply of Bosnia and Herzegovina
Austria:
-FK "Bratstvo"Stadium, Bratunac, east Bosnia;
- "Vuk StefanoviCKarad2iCWprimary school,Bratunac;
-Mostina hunting lodge,Cajni~e,south-eastemBosnia;
-Omarska, Prijedor;
-Keraterm, Prijedor;
-Stadium, Zvomik, east Bosnia;
-Glinica factory, Zvomik;
-"Gathering points", Zvomik;
Canada:
-Central prison, Doboj,northBosniaandHerzegovina;
-SUP building, Prijedor;
-Concrete factory, Sanski Most, northwest Bosnia;
-Narodni Front school, Sanski Most;
or the United Kingdom:
-Forest camp near Jasenica, Bosanska Krupa, northwest Bosnia;
-Sports Hall,KljuC,northwest Bosnia andHerzegovina;
-Omarska, Prijedor;
-Keraterm, Prijedor;
-Kevlani, Prijedor;
-Ljubija mine,Prijedor;
-Mrakovicamountainbarracks,Prijedor;
-Mrakovica mountainhotel, Prijedor;
-Puharska district, Prijedor.
303. The existenceof numerous Serbcampsin Bosniaand Herzegovinawas also
confmed by organisationssuch as AmnestyInternationaland Human Rights Watch.
304. The international mediaaiso played an important role inexposingthe camps. The
existenceof the Bosnianarchipelagoof campswas first publicisedby Roy Gutman,
foreign correspondent forthe United States daily Newsday in the summerof 1992.
For his reporting on Bosnia and Herzegovina,particularlyfor exposingthe existence
of the Omarskacamp andfor publicisingsome of the first testimoniesof women
who had been held in camps and repeatedlyraped, Gutman was awardedthe
prestigious Pulitzer Prize in 1992.Ed Vulliarnyof TheGuardianand a Britishfilm
crew fiom ITNwere the first foreignjournalists to be allowedto enter both the Chapter5 -Section 5
Camps
Omarskaand Trnopoljecamps with a camerain August of 1992 [see: David Rieff,
Slaughterhouse: Bosniaand the Failure of the West,Reading, 1995,p. 91.It is
largely due to the efforts ofjournalists like Gutman and Vulliamy thatthe Serbs
were forced to close some ofthe most infamouscamps.
Pattern
305. As soon as the conflict erupted in April and May 1992, a networkof camps
emerged, which remained in place until the end of the conflict. Thewidespread
pattern of camps was establishedby the Trial Chamberin the Rule 61 Review of the
Indictments against MladiCand KaraduC:
"~uring the period in question (April 1992-July 1995), a network of camps which were managed
and organised by civilian and military personnel andBosnian Serb police, and which were located
across thentire territory of Bosnia-Herzegovinaunder Bosnian Serb occupation (Omarska,
Keraterm, Tmopolje, Luka, ManjaEa,SuSicKP Dom, FoEa,Livade, BatkoviC:etcwas used to
intem thousands of civilian Bosnian Muslims and Bosnians, including women, children and
elderly people who had been systematicallyselected and assembled for national, ethnical, political
or religious reasons."TFY,Trial Chamber,Review of the IndictmentPursuant
to Rule 61 of the Rulesof Procedure and Evidence,Prosecutor v,Radovan
Karad2iC & RatkoMadiC, CasesNo. IT-95-5-R61 & IT-95-18-R61, 11July
1996,p. 6, para. 1.31.
The camps appeared suddenlyand proliferated rapidlythroughout Bosniaand
Herzegovina.They were located "across theentire territory of Bosnia-Herzegovina
under Bosnian Serboccupation" andwere usedto detain Muslim and Croatcivilians,
"includingwomen, children and elderly people whohad been systematicallyselected
and assembledfor national, ethnical, politicalor religiousreasons".
306. Thereupon,the Trial Chamberoutlined whatwas to becomethe fate of many of
those non-Serb men, women,children and elderly people interned in the camps:
"~etained for weeks, months or even years under inhuman living conditions (involving inadequate
rations and lack of medical care and proper hygiene),the civilianswere then either executed,
subjected toistreaûnent and other physical andmental calculated to bring about their
physical destruction, or usedman shields against other troops. After their execution, the
remains of the victirns from the KP Dom and Luka camps were thrown into the nearby Drina and
Sava nvers respectively. In the Omarska inJuly 1992, many detainees were said to have been
bumed alive by soldiers celebrating St. Peter's Day, a Serbian family's [ibid., pp.."
6-7, para. 131.Reply of Bosnia and Herzegovina
307. In the same case, the Trial Chamber,in reviewingthe Indictment,was satisfiedthat
there was enough evidenceto concludethat the settingup of the detention facilities
had been planned atthe highest level:
"~he Trial Chamber is of the view that the evidenceand testimony su(..demonstratethe
active participationof the highest politicalandryleadersin the commissionof the crimesby
Bosnian Serb military and police forcesin the detentionfacTheuniformmethodsused in
committingthe said crimes, theirpattern,theirpervasiveness throughoutal1of the BosnianSerb-
held territory, the movementofprisoners betweenthe variouscamps, and the tenor of some of the
accusedS statementsare strong indications tendingto show that RaKARAD&C and Ratko
MLADIC planned, ordered or othenviseaided and abetted in theplanning,preparation or
execution of the genocide perpetrated in the detentionfac[ibid.,p. 47, para. 84,
emphasisadded] .
The Trial Chamberof the ICTFYthen confied both KaradZiCa.nd MladiC's
Indictrnents for genocide.
308. The pattern that led the Trial Chamberto confirmthe Indictmentsfor genocidewas
also found by the Commission of Expertsin their Final Reporton the conflict in
Bosnia and Herzegovina[UnitedNations,Final Report of the Commissionof
Experts, Sl19941674,27 May 19941.The Report was published on27 May 1994.It
is importantto note that the Commissionof Expertsused the present tensewhen
describing the patternsunderlying the Serb campsin Bosniaand Herzegovina and
elsewhere in the formerYugoslavia.Many Serb-runcamps continued tofunction
throughout the entire conflict;they were thereforenot "dissolved"after "a short
time", as falsely claimedby the Respondent[Counter-Mernorial,p. 29, para.
1.3.1.4.). When the Report was published,two years after the fightinghad started,
numerous camps werestill operational.
309. The Commissionof Experts describedthe generalcharacteristicsof the Bosnian
archipelagoin great detail. The Final Report readsas follows:
"'Bosnian SerbRepublic'cms
229.The Commissionhas information that Bosnian Serbs areoperatingcampswhere grave
breaches of the Geneva Conventionsand otherviolationsof international humanitarianlaw,
includig killing,torture and rape reportedlyoccur on a large scale.These camps are mostly in
Bosnia and Herzegovinaand holdBosnian Muslims forthe mostpart, but also Bosniants.The
Bosnian Serbsuse campsto facilitateterritorialand politicalcontrolof a geographicregion and to
expel and eliminateotherhnicand religious populations fiom thatarea.
230.The followingpatterns have reportedly emerged fthese camps: Chapter 5- Section 5
Camps
(a) Camps are ultimately intendedto achieve'ethniccleansing' (...);
(b) Groups of camps areestablishedand operatedin clustersin variousgeographicalareas and are
fiequently part of a network. Prisoners are fiequentlymoved fiom one facilityto another.Different
facilitiesoften haveseparatespecificpurposeslikemass killing,torture, rape and exchangeand
holding of civilianprisoners;
(c) Detainees are sometimes transportedform camps withina given region to campsin another
region becauseof overcrowding, anticipatedICRC inspection,visitsby the media,exchangeof
prisonersand as a result of triagefor unlawiülpurPoses;"
[UnitedNations, Final Report of the Commissionof Experts, S/1994/674,27
May 1994, p. 53, paras. 229-2301.
The camps were thus linked to each other as if they werepart of a grid. The fact
that prisonerswere regularly transferred from one camp toanother is an indication of
the high level of organisation.
310. The Commission ofExperts then described thetreatment of the Muslim andCroat
detainees. They weresystematicallytortured and often killed:
"(d) Purposehl humiliationand degradationof prisonersis a commonfeature in almostal1camps;
(e) After a village,town orcity is conquered, the local populationis rounded up en masse and
intemed in different locations.Duringthe rounding-up process, members of the populationare
fiequentlytomired, raped and killed. Local religious,political, civic,professional,business leaders
and prominentpersonalitiesare singled outfor the worstabuses.On the captors'side, local civil
servants,political leaders andarticularlythe police participate or are involvin the rounding-up
process;
(f) Prisoners are forcedto surrendertheir moneyand valuables totheir captorsand, if released,
these valuables are not returned;
(g) In most instances,captors interrogateprisonersfor information aboutmiiitaryand strategic
information, politicalaffiliationand political belief.orsalso interrogatedetainees conceming
thepersonalwealth and family connectionsof other detainees.Mostof the time,the questioningis
unrelatedto militaryor security matters.Almostalways,interrogationis accompaniedby brutaiity
and humiliationand, in many cases, by torture and murder;
(h) The smallercampshousethe populationtemporarilyuntil the captors dividethe prisoners into
smallergroups and transportthem to larger campsor to separated sectionsof large camps.When
prisonersare transportedto larger camps, they areoften packed tightly into buses,lomes or fieight
and cattle trains and are subjectedto physicaland mental abuse. Whilebeing transported,prisoners
are often killed atandom and are denied food, waterand accessto toilet facilities.When the buses
or fieight cars reach their destinations,whilethe prisonersare unloaded,severalprisoners are often
killed. Sometimesprisoners aretransportedby car to campsby locals;
(i) Men betweenthe agesof 16(or younger) and 60, who are consideredto be of militaryage, are
usually separatedfiom older men, women and children.These men are transferredto heavily
guarded larger campswhere killingsand bmtal torture are prevalent;Reply ofBosniaand Herzegovina
Cj)At the larger camps, prisoners are subjectetdo randombeating.Many prisoners are beatenunder
the guise of being interrogated. Beating, more severe torture agscalatewhen therehas
been a Bosnian-Serbmilitarysetbackandwhen there are Serb casualties;
(k) Prisoners whoare targeted for torture ordeath at the largercamps include prominent members
of the communitywho are wealthy, educatedor politicallyinfluential personsin the community.
Guardsusually have informationdentifiing which prisonersfa11into these categories. They obtain
that informationfiom theirn local population,throughcoercion and violencefiom other
prisonersor fiom other detention facilitiesthat are used solelyto interrogate displaced populations;
(1)In several instances, prisoners havebeen forced to inflictinjury on each other, sometimesas
entertainment forthe guards.In other instances, prisoners aremass executedby machine-gun fire;
(m) In most camps(particularlyringthe secondhalf of 1992and the first halfof 1993),
prisonersare killedon a daily basis. Their bodiesare sometimes leftto rot on camp grounds,
disposedof in mass graves abutting the cand throwninto rivers, ravines,mine shaftsand
mining pits.The Commission hassomeinformation concemingthe locationsof manyof these
mass graves(...);[ibi dp.,53-54,para. 2301.
The Commissionof Expertsfound that camps often "specialised".Afier their arrest,
prisonerswere divided accordingto genderand age andtransferredto different
detention facilities. TheSerb campsystem was m with great efficiency:
"(n) Women, children andmen over 60 years of age are usually separatedfiom others andtaken to
separatecamps.These camps are guardedand surroundedby fences, but prisoners are usually
allowedto walk fiom buildingto building withinthe camp compound. Although fewer killings
occur atthese camps, torture and particurape are commonplace;
(O)Rape is prevalentin the camp(...Captorshave killedwomen who resisted being raped, often
in front of other prisoners.Rapeswere also committedinthe presenceof other prisoners. Women
are fiequently selectedat randomduringthe night.Theserapes aredone in a way that instillsterror
in the women prisoner population. The Commission has information indicatingirslsyoung
as 7 years old and womenas old as 65have been raped while in captivity.The groupmost targeted
for rape, however, is young wombetweenthe ages of 13 and 35. Mothersof young children are
often rapediniont of their children and are threwiththe death oftheir childrenif they do
not submitto being raped. Sometimes yowomen are separatedfiom older women andtaken to
separate camps wherethey are rapedseveraltimes a day, for many days, oftenby morethan one
man. hlany ofhese women disappear,or after they have been rapedbrutalizedto the point
where the. are traumatized, they arereturnedto the camps andare replacedby other young
women.There have alsobeen instancesof sexualabuse of menas well as castration and mutilation
of maie sexuai organs[ibi d..,5, para2 .301.
Whateverthe"specialisation"of the camp, prisonerswere severelymaltreatedas a
de:
"(p) Prisonersin al1campsare subjectedto mental abuse and humiliation, including barrageosf
ethnic slurs. Prisoners are detainedin unsanitaryenvironmentswhere dysenteryand lice epidemics
are rampant. Prisonersare often denied theuse of toilet facilities. Often, of fightingers
age are packedso tightly in the prison facilitiesthat they do not have roomto lie downor sit, or
sometimes evento breathe.In addition, prisoners are nearlystarvedto death and,at best, are given Chapter 5- Section 5
Camps
one meal a day consistingof meagre portions of thin soup and bread. In instances where food is
delivered to a camp by the ICRC, the food not distibuted to prisoners as intended. Instead, food
is retained forthe Bosnian-Serb fighting forces oris consumed by the camps guards. Furthemore,
medical attention is, for the most part, non-existentat the camps, and often thesick and wounded
prisoners are buned alive in mass graves along withthe corpses of killed prisoners.
231. The Commission concludesthat grave breachesof the Geneva Conventions and other
violations of international humanitarian law have been committed over a long of time, on a
large scale, andvery fkequently inthe most brutal, inhuman and degrading manner. These
violations are orderedby or known to the camp commanders, the local political leadership and
police. Amy units may or may not be involved. However, theydo not interveneto stop these
violations, thereby implying responsibilityby omissi[United Nations,Final Report of
the Commissionof Experts, Sl19941674,27 May 1994,pp. 53-55, paras. 229-
2311.
311. In the separate Annex entirely dedicated to camps, the Commissionof Experts
further elaborated on the systemof camps setup by the Serbs in Bosnia and
Herzegovina. The camps were foundto be an integral aspect of the Serb campaign of
ethnic cleansing:
"29. The reports indicate that Bosnian Serbs used campsin BiH to facilitate temtorial and political
control of geographic regions and to expel and eliminate other ethnic and religious populations
fkomthat area. In essence, the BosnianSerb forces, includingformer Yugoslav National Amy
(NA) officers and soldiers, paramilitary units, police forces, civilians, and the political leadership
of the Serbs ofiH, apparently with a significant degree of participationby and cooperation with
the Serbs and Montenegrinsof FRY, incorporated and exploited the detentionof civilians as an
integral aspect of their campaignof "ethnic cleansing". Whilearmed, uniformed soldiers of the
forces opposed to the Serbs were incarceratedin significant numbers,the vast majority of
imprisoned by Serbs in BiH appear to have been civilian[UnitedNations, Final Report
of the Commissionof Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "Prison Camps",p. 11,para. 291.
The vast majority of the prisonersin the Serb camps werethus civilians - men,
women, elderly and children - and not former soldiers, as falsely allegedby the
Respondent in its Counter-Mernorial [Counter-Memorialp , . 36, para. 1.3.1.26.1.It is
true, in fact, that many camps, especially the better-knownones, were established
mainly for men. As the Commissionof Experts rightly pointed out, however, these
men are not to be consideredas prisoners of war:
"1t was often reportedthat men between the ages of 18 and 60 were separated fkomwomen,
children, and elderly men. Apparently, men betweenthe ages of (or younger) and 60 were
considered to be of fighting age, constituting aclass of quasi-prisoners of war or perhaps legitimate
intemees because of their potential for hostility. However, rarely did reportanynclude
information to suggestthat those considered capableof fighting had ever actually committed hostile
acts or had organizedto do so. In fact, many Muslim villagers simply surrenderedthe weapons
they had upon an initial demandby the Serb forces in theion. After that surrender, the villagersReply ofBosnia andHerzegovina
wereinmanycasesdetained.Thereportsindicatethatinmanyinstances,menbetweentheagesof
18and60, wereultimatelytransfeto heavilyguardedlargercampswherekillingsortorture
werepreva~ent."[ibid,p. 12-13,para. 351.
312. In the followingparagraphsof this subsection toChapter 5,the Applicantwill
illustratethe pattern describedbovewithsome notoriousand more well-known
camps, also referredto in the Mernorial,and witha few less noted facilities.
Together they will show both the enormousmagnitude of the phenomenon andits
atrocious character.
Batkovit
313. The Batkovibcamp was locatednear Bijeljinain north- eastern Bosnia.It was
establishedin June 1992 and consistedof two large barnsor.warehousespreviously
used to store grain. The campwas surroundedon three sidesby a barbed wirefence
and on one side by a sheet-metalwall. Peoplewere kept fiom lookingeither into or
out of the compoundby piles of hay and straw. The campwas operatedby
paramilitaryforces involved in the Serbian Democratic Party (SDS). The camp was
cornmanded, however,by a Serb army oficer [UnitedNations, Final Report of the
UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps", pp. 61-62, paras.462-4651.The estimatesof the total
camp population, which consisted ofMuslimsand Croats,Varybetween 740 and
2,000 [ibid, para. 4671.Many, if not dl, of the detaineesin the camp werecivilians,
as was later also adrnittedby the campcommander,Colonel PetarDmitroviC[ibid.,
p. 63, para.4751.Most ofthe prisoners who were notkilled were eventually
exchangedfor Serb prisonersof war. Chapter5 -Section5
Camps
314. BatkoviCwas the first camp refened to by the Respondentin the Counter-Memorial.
It is mentioned in a quote fiom one of the earlier reports submittedby Special
Rapporteur Tadeusz Mazowiecki.The Counter-Memorialreads as follows:
"~he Special Rapporteurgoes on to state: 'The camps in BatkoviCcontained approximately 1.000
Muslim prisoners at the time of the visit, housedin two storage buildings. The prisoners did not
complain of ill-treatment and, in general, appearedto be in goo[Counter-Memorial,
p. 29, para. 1.3.1.5.1.
By quoting the given passage,the Respondent wasprobably attemptingto show that
the "Muslimprisoners" in the Serb camps in Bosnia andHerzegovinawere treated
relatively well. However, the impression the Respondent is trying to create is in
sharp contrast with the truth. This becomesirnmediatelyclear when one reads the
quote in its full context, where the Special Rapporteurdescribesthe difficulties he
encounteredwhen visiting "Serbian-controlled areas":
"28. The Special Rapporteur has had onlylimited access to prisons and other places of detention in
Serbian-controlled Bosnia.During his first mission,he was denied access to prisoners in Manjaca
military prison. During his second mission, the delegationwas allowed to visit BatcoviC[sic]
detention facility, inh-easternBosnia. However, membersof the delegation who intended to
visit detention facilitiesnear Prijedor were not allowed int[UnitedNations,
Situationof HumanRightsin theterritory oftheformer Yugoslavia,Report
submitted by Mr. Tadeusz Mazowiecki,SpecialRapporteurof the Commission
on HumanRights,A/47/666, S/24809, 17November 1992,p. 13, para. 28,
emphasis added] .
With the exceptionof BatkoviC,the Mazowieckimission was therefore not allowed
to visit any of the indicated camps. The Respondentfailed to quote the entire
paragraph on the BatkoviCcamp:
"29. The camp in Batcovic contained approximately 1,000 Muslim prisonersat the time of the
visit, housed in two storage buildings.The prisoners did not complainof ill-treatment and, in
general, appearedto be ingood health.However, theysleep on straw bedding onthefloor or
cuvernousunheated buildings,where living conditions will become intas cold weather
arrives."[ibid.,p. 13, para.29, emphasisadded].
The emphasised passageat least casts a different light on the situationin the
BatkoviCcamp, which was obviouslynot as cornfortableas the Respondent implied
by only citing the first two sentences.In spite of this,it is without any doubt that
Mazowieckiwas shown a "model" camp, especially preparedfor the visit. The
situation in the camps was much worse than the MazowieckiReport suggestedand,Reply of Bosniaand Herzegovina
in addition,not representativeof the conditionsin the many other Serb-nui camps,
which the mission wasnot allowedto enter. Special Rapporteur Tadeusz Mazowiecki
was wellaware of the fact thatthe conditions inBatkoviCcould notbe consideredto
be illustrativeof the other campsin Bosnia and Herzegovina [ibid.,pp. 13-14,paras.
30-331.
315. On 19 April 1993,that is, after the visit of Mazowieckito BatkoviC,the United
StatesBureau of Public Affairs publishedone of its Dispatches,in which it explained
how the Serb guardsof the camp succeededin rnisleadinginternational observers
visiting the site:
"Between July15and September23,the ICRCvisitedBatkoviccamptwice. One visit was on or
about August 15.Each time, pnor to the arriva1of Red Cross personnel, the guardswouldtake
away the beaten prisonersand childrenunder the age of 14 and hide them. The prisonerswere
taken to the town of Raca, where therivers Sava and Drinajoin together. The prisoners were
brought back aftertheeparture of the Red Crosspersonne[US Departmentof State,
Bureau of Public Affairs, Dispatch,19April 1993, Vol.4, No. 16,p. 262,
Annex 191.
316. The treatment of the prisoners inthe "model"campof BatkoviCwas hardly better
than in the othercampsunder Serb control. In another Dispatch, the Bureau of
Public Affairs recounted the story of two Muslimmen who were arrestedin May
1992and detained in various Serb-nui campsin Bosnia and Herzegovina:
"The witnessessaid Batkovicwas the worstof the campsin which theyhad been held.There had
been about 1,600prisonersin Batkovicwhen theynived, al1of them fiom northeastemBosnia. A
number of children and elderly men were moved out of the campin closed truckst was
announcedthere would be an ICRC visitto the camp.
Beatingrs]were commonat Batkovic. Zulfo Saracevic,aged 55, died of beatings. Ajeweller fiom
Bijeljinadied aft3rnights of beatings,the purposeof which wasto get him to tell wherehe had
hidden goldand jewelry. Several elderlymen died fiom thebad conditionsat the camp. One of the
witness's cousinsdied of gangrenein a leg wound for whichhe (had) receivedno medicalcare.
On several occasions,they and other prisonerswere forcedto removetheir clothesand perform sex
acts on each other and on some of the guards."partmentof State, Bureauof
Public Affairs,Dispatch, 26 July 1993,Vol. 4, No. 30, p. 538, Annex 181.
317. The beatingsof detaineeswas standardpracticein the camp.The Commission of
Experts reported the following:
"469. Abuse is invariablyindicatedin accountsregardingtreatment of prisonersprior to
September.Accordingto one detainee,prisonerswere forcedto perform sexual actswith each
other, andometirneswith guards.Detaineeswere beatenregulariy untilnew guards arrived in
September [1992].Reports of the frequencyof beatings varyfiom daily beatingsto beatings 10
times each day. Prisoners arrivingfrom SuSica[campnear Vlasenica,eastem Bosniaand Chapter5 -Section5
Camps
Herzegovina]were beaten upon exiting theirbus.Uponarriva1on 15 July, anothergroup of
prisonerswere beaten withsticks. Thereafier,they were beaten regularly. Thirty-fguards 'had a
go' at each memberof a group broughtin July. Beginningin July, 15 Muslims, consideredto be
extremists,were beateneveryday until they were transferredto Doboj in September. In one
incident, four men were beatenoutsideof the camp. Two of them managed to get into the camp,
one was beatenso muchthat he could later not recognizehis own father(a fellow prisoner), and
the fourth man, about20 years old, was killed.
470. Prisoners werealso forcedto labour. This did not excuse thefiom otherabuse, and,as one
prisoner reported, they were beaten whilet work tomakethem work harder.
471. One detaineereportedthat it was not the guards,but rather soldiersgoingto or comingfrom
the front that abused the prisoners. Thiseman claimed thatPOWs received worst treatment,
whereas civilian prisoners were not treatas badly.Another prisoner allegedthatthose prisoners
from areas in which Serbshad sufferedlosseswere most harshly treated.
472. Because of the levelof mistreatment, many prisoners died. One man statedat duringhis
stay, mid-Julyto mid-August, 13 prisoners were beaten to death. Another prisondried becausehe
had gangrene which went untreatedF .ive moremay have diedfrom hunger. Allegedly, 20 prisoners
died priorto ~e~tember." [United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex
VIII, "PrisonCamps", pp. 62-63,paras. 469-4721.
The situationin the camp improvedin the beginningof September.Local Serb
villagers protested, afterhaving heardreports and nunours of the atrocities in the
camp [ibid., p. 63, para. 4741.
318. After the situation in the camp had improved,foreignjournalists were allowed to
visit. Roy Gutman, foreign correspondentfor the United States daily Newsday,
visited the camp on 24 January 1993. His vividaccountwas later published:
"1nthe dark voidof the vast sheds, pigeons fly between their percheisn the rafters while on the
concrete floor below,the soundof coughing men punctuatesthe chi11air. Herein two hangars
where grain was once stored, hundredsof Bosnian Muslim and Croat detainees, survivorsof
BosnianSerb death camps, huddle together or lieunder layersof blanketson their lice-infested
straw mattresses.
There is neither heat nor electric light,and between Christmas andNew Year's Daythe
temperature insidethe sheds droppedto about zero. Water canteensfioze underthe detainees'
pillows, andtheir blankets 'practically stood up nnd,' a Red Crossofficia1said.Now the
temperature hoversjust abovefieezing.
'We couldn't sleepbecauseit was so cold,' saidKemal Sobani,23. One elderly man died, and in
their fiozen stupor, detainees,as well as wardens,left himthere for two days.
In the outdoor latrines, which consistof planksplaced over aditch,ice formedon the boards,and
more than a few men slipped intothe pit of humanwaste.
( 0 . 0 )
The 970 men here rangein age from 18to over 60. Some are veteransof four camps in the past
eight months, and three Croats held here wererrestedby Serbs 15months ago,during a different
war. Al1are civilians. Witnessesto the murderand tortureof thousandsof fellowMuslims and
Croats, theystill have no idea why they are being held.RepIyofBosnia and Herzegovina
(...)
According to Lt. Col. Petar Dmitrovic,in charge of the camp here, 532 Manjaca [camp near Banja
Luka] detainees werebrought to Batkovic; 130of them were taken to Sarajevo and freinan
exchange, while 401 stayed in Batkovic.The Red Crosshas beenunable to confirm the release of
the 130 and lists them as disappeared.
(.o.)
Bosnic, a salesman and cafe owner,said he was arrested along with41 others in his hometown of
Bosanska Dubica [north Bosnia]1st June 25. 'Theytook al1the people who owned businesses.
None of us were even asked about the war.None of us had any weapons. They toldus we'd be
freed in ten to fourteen days.' He stayed in Manjaca almost six months,then was transferred to
Batkovic.
Zlata Jakupovic, 19, was arrestedin the town of Kozarac [near Prijedor]in early May. Batkovic is
hisfourth camp. First he was taken to Keraterm, outside Prijedor, where he said he was beaten
daily.Then he went to Omarska, whereU.S. govemment interviewers believeas many as 5,000
men were slaughtered. Omarska was closedat the beginningof August, andhe was taken to
Manjaca. There, hesaid, he waited with other prisonersin buses before the camp gates and saw
guards kill eightmen by slitting their throats.'They wereery rich, and the guards wanted to
know where they had their money.'
(-1
Josica Cendric, a 31-year-oldcar mechanic from the Croatian townof Slunj, was arrested by the
Serb army on November 18, 1991, along withtwo other Croats, while nding a bus from Cazin to
Zagreb. They were taken to a Serb prisonat Stara Gradiska [Croatia], and then early last June to
Manjaca. 'We weren't soldiers. There wereever any charges againstus,' he said.
(--)
Dmitrovic [the camp commander] admitted thatal1the detainees at his camp are civilians. 'We do
not have prisonersof war,' heaid. So why have they beentaken into custody and held herein
defiance of the Geneva conventionson war, which prohibit the arbitrary detention ofcivilians?
According to Dmitrovic, their townsand villages happenedto be in a war comdor. 'Manyfought
as civilians,' heserted, 'and were arrested.' Meanwhile, thouses 'have been destroyedin the
fighting, and they have nowhereto go.'"RoyGutman,A Witnessto Genocide,The
First InsideAccountof theHorrorsof 'EthnicCleansing'in Bosnia,
Shaftesbury, 1993,pp. 137-1401.
The inmatesRoy Gutmanmet and spoketo had al1been in various other Serb-
controlled camps inBosnia andHerzegovina. Oneof the intervieweeshad apparently
been arrestedin Croatia, by the JNA, as early asNovember 1991, that is,more than
a year before being questionedby Gutrnan. Thepresence of this Croat fiom Croatia
proper in the BatkoviCc .amp showsthat the rnilitarycampaigncarried out by the
Respondent - aimed atthe creationof a GreaterSerbia - was neither restrictedin
time nor in territory.
319. Particularlyin the period before September1992, manyprisoners diedas a result of
the treatmentby the Serb guards. Mostdeaths would occur at night and corpseswere
normally wrapped in sheetsand then removedby a militarytruckevery evening
[UnitedNations, FinalReport ofthe UnitedNationsCommissionof Experts,
S/1994/674/Add.2(Vol. V), 28 Dec. 1994,Annex X, "MassGraves",p. 9, para. 301.
According to a witnessinterviewedby the Commissionof Experts,a mass grave
with former prisonersof BatkoviCwas locatednext to the camp and at least fifieen Chapter5 -Section 5
Camps
bodies wereburied next to a cow stable that stood approximately two hundred
metres fiom the camp'sbuildings [ibid., p.9, para. 311.
Trnopolje
320. The Trnopoljecamp in the Prijedorarea was mentionedtwice by the Applicantin
the Memorial [Memorial,p. 22, para. 2.2.1.2 and p. 25, para. 2.2.1.121.In reaction
tothese short references, the Respondent stated the following:
"protectioncentreinTmopoljewasa placewherelocal civilianpeoplegatheredto findshelter
frommiiitaryoperationstakeninthis are[Couter-Mernorial, p. 31,para. 1.3.1.8.] .
Then, after having adrnittedthat 1,500prisonerswere transferredfrom the Keraterm
campto Trnopolje,the Respondentexplained that these persons:
"weretransferrto Tmopoljeforthefamilyreunion,whilethosewhowantedto leavethe
Municipalityof Prijedorwerethertransfertothetemtoryunderthe controlof theMuslim
side.[Counter-Memorial,p. 33, para. 1.3.1.15.1.
According tothe Respondent,Trnopoljewas a camp were the localcivilianswere
protected against "militaryoperations"taking place in the area. The Respondent
failed to mentionthe precise nature of these operations,which were in fact carried
out by the Respondentitself [seeReply, Chapter8, Section31.By the timethe
Tmopolje camp wasup and running,the Prijedor areahad been taken over by a
combinationof JNA forces and Serbparamilitariesunder their control.
321. The Respondent'sdescriptionof Trnopoljeas a place "forthe family reunion"is an
outrighteffrontery,most of al1to the victimsof the camp. It also illustrates its
utmost contempttoward the Applicantand, for that matter, toward the Courtas well.
The followingpages of this Section will demonstrate why.
322. Trnopoljeis a small villagenear Kozarac,in the Prijedorarea. Beforethe Serb take-
over, the villagehad a predominantlyMuslimpopulationof some5,000people. The
camp in Tmopolje was establishedin late May 1992, whenthe fust group of
Muslirnsarrived in the villageunder the escort of armed Serb soldiers mnited
Nations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28Dec. 1994,Annex VIII, "PrisonCamps",p. 240,
para. 19501.Replyof Bosniaand Herzegovina
323. The locationand lay-out of Trnopoljewas describedby the Trial Chamberof the
ICTFY in the Tadi6case:
"172.The Tmopolje camp was located near theKozaracstation,on the Prijedor-Banja Luka
railway line. The campheld thousandsof prisoners, mostof whomwere older menand womenand
children.nned soldiersguarded the camp. The commarf the camp was SlobodanKuruzovic.
173.The campconsistedof a two-storiedformer school buildingand what had been a municipal
centre and attached theatre,knownas the "dom".An areaof the camp wassurroundedby barbed
wire."[ICTFY,Trial Chamber,Opinionand Judgment,Prosecutor v. DuSko
TadiC,Case No. IT-94-1-T, 7May 1997,pp. 63-64,paras. 172-1 731.
Accordingto the Commission of Experts, thecamp's population consistedmainly of
three categories. Thefirst were non-Serbswho were transferredto the camp after
being ethnicallycleansed fromtheir homesin the area. This group consisted
primarily of women, childrenand elderly men. The other men were detained at
Omarska or Keraterm,al1campsin the Prijedorregion [seebelow]. The second
category wereprisonerswho were transferredto Tmopoljeafter Omarska and
Keraterm closed down. Thesepeople were separatedfiom the rest of the detaineesat
first.The thirdand 1st category were non-Serbswho voluntarilyabandonedtheir
villages in theregion, after the Serb occupation, and thought it would be safer to be
in the campthan to remain intheir homes. Accordingto the Commissionof Experts,
these Muslims and Croatswere underthe impression thatthey would be registered
by the Red Cross and resettledin third countries[UnitedNations, Final Report of the
UnitedNations Commissionof Experts, SI19941674fAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps",p. 242, para. 19661. Chapter5 -Section5
Camps
325. The Trnopoljecamp differed from the otherinfamouscampsin the Prijedor region,
as the barbed wire fencingwas removedin early August 1992, after the first visit by
internationaljournalists. With the removalof the fencing,Trnopolje gavethe
appearanceof an open camp.However,strategicallyplaced guards, armedwith
automatic rifles, preventedthe prisoners from escaping[ibid.,p. 242, paras. 1963-
19641.Moreover, Serbtroop movementsin the area made leaving the campequally
or even more dangerous.
326. In the TadiCJudgment,the camp was indeeddescribedas an "openprison":
"176. Tmopolje was, at times at least, an openprison but it was dangerous forinmates to be found
outside, where they mightbe attacked by hostile groups in the neighbourhood, and this,in effect,
amounted to imprisonment in the camp. In the beginning,the Serb informed the inmates
that they were being held therefor their own protection against Muslimextremists. However, the
camp actually provedto be rather a point where the civilian population, men, womenand children,
would be gathered, collected and deportedto other parts of Bosniaor elsewhere.
177. Because of the lack of food and the insanitary conditionsat the camp, the majority of inmates,
one estimate ashigh as 95 percent, sufferedfrom dysentery. Therewas no mnning water at all,
and only limitedlavatory facilities. There was almostno water to drink, as only one pump existed
for the whole camp. Lice and scabies were also rampant.At one the the buildings at Tmopolje
proved insufficientto house al1the inmates,many of whom were forcedto camp outdoors in the
grounds in makeshift shelters of plastic sheeting an[ICTFY,Trial Chamber,
Opinion and Judgment,Prosecutor v.DuSkoTadii.,CaseNo. IT-94-1-T, 7 May
1997,pp. 63-64, paras. 172-1731.
To Mer discouragethe flight of the campinmatesat night,the guards constantly
fired shots over the heads of the people sleeping in the field after the evening curfew
[United Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps",p. 244,
para. 19911.
327. In the TadiCcase, the Trial Chamberalso described the regimein Trnopolje,which
was less monstrousthan other campsin the area, such as Omarska andKeraterm
[ICTFY, Trial Chamber,Opinionand Judgrnent,Prosecutor v. DuSkoTadit, Case
No. IT-94-1-T, 7 May 1997,p. 64, para. 1751.Inmateswere, however,subjectedto
interrogations, beatingsand killings,albeit not regularly. Moreover, Trnopolje was
notorious for thenurnberof women andgirls who were either taken to another
facility or brutally raped there, usually at night.Reply ofBosniaandHerzegovina
328. The violent interrogations inthe Trnopolje camp werereported by the Commission
of Experts:
"2083. (...There are reportsof interrogationsof detainees at Trnopolje. Reported,n office in
one of the main camp buildingrs]was usedfor interrogationsand torture.
2084. One subjectreports thathe was interrogatedby a man wearing a blackhat with the letters
SDS affixed. He was interrogatedand beatenby this man and three otherswho were present.They
beat him with steelrods, tablelegs, and îruncheons.He waseven hit over thehead witha rocket-
propelled grenade launcher,and was stabbed witha knife in his left leg.
2085. One subjectreports thatevery day various maleswere taken to one of thehousesnear the
camp that were used for interrogation. There they were interrogated aoften had their achilles
tendons cut. The subjectspeculatedthat sincethe men were of fighting age,this was done so they
would be physicallyunableto fight Serbsin the future.
2086. Anothersubjectreportsthat the officeused for interrogationswas locked whennot in use,
and at night the prisoners could hear theearnscomingfiom the room. He claimsthat none of
the men taken for interrogationwould returnto the camp as al1were killed fiombeatings."
[United Nations,Final Report ofthe UnitedNations CommissionofExperts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex VIII, "Prison Camps", pp.
251-252,paras. 2083-20861.
The Commissionof Expertsalso recordedthe many rapes whichtook placein the
camp. Here the Applicant will list but a few examples:
"2097. The incidents areusuallyreportedas occurringat night when drunksoldiersenteredthe
rooms wherethe women andchildrensleptand by the light offlashlightchoosethe women who
would be taken away.
2098. Onesubjectreports thatSerb soldierswith flashlights came around midnighe tvery night for
at least 20 nightsin July [1992].Approximately 10young womenwere taken each night, andwere
raped across the hall fiom where thewomen slept. Subject claimsthat she submittedecausefive
girls whorefused were shot in fiont of her.
2099. Accordingto one subject everynight at about9.00 p.m., drunk soldierswould come into the
camp and take two or three younggirls over 12 and rape them. They wouldbrîng the girls back
&er a few hours or early in the morning.Many of the girlswere taken to a hospitalin Pnjedor
after being raped.Some werenever returned;after being raped they were killedand buried near the
lake locateda few hundredyards fiom the village.
2100. Some reportsstatethat it was the camp guardswho raped the women.However, other
reports attnbute the rapesto Serb soldierswho were not associatedwith the camp. Severalreports
describethe perpetratorsas tanksoldiers.
2101. Accordingto two subjectsdrunkentank driverscame intothe campon 6 June 1992,between
10:OOp.m and midnight.Theytook iron rodswith themand used flashlightsto choosewomen,
especially girlsup to 18ears old. This group of girlswere returnedat aroundmidnightand the
soldierswent intothe hall and got more. The womentold the subjectsthat the soldiershad
threatenedthem ifthey reported whathad happened. Chapter5 -Section5
Camps
2102. Accordingto one report,on an unrecalleddate in midJuly, two T-55 tankswith about 20
dmnken soldierson each, arrived at Tmopolje from the directionof Kozarac. Foursoldiers(one
describedas wearing a hat with a cockard displaying a two-headagle) entered the former
Community Hall and selectedthree females (identified). They wereen away and retumed the
next moming by car." [ibid.,p. 253, paras. 2097-21021.
Because of the large nurnberof women andgirls in the camp, there were probably
more rapes in Trnopolje than in any other campin Bosniaand Herzegovina [ICTFY,
Trial Chamber, Opinion and Judgment, Prosecutor v. DuSkoTadii, CaseNo. IT-94-
1-T, 7 May 1997,p. 64, para. 1751.
329. Rapes were also reported by the United States Departmentof State. Young girls were
exceptionally vulnerable, as is illustratedby the followingexarnple:
"A 15-year-old Bosnian Muslimgirl fiom Kozarac described being gang-rapeby at least eight
Serbiansoldiersand guards near Tmopolje.
The witness wasin high school whenthe Serbian forces took chargeof herwn in Kozarac. She
fled on foot intothe surroundingwoodsbut waslater captured and imprisonedinthe Tmopolje
camp.
Three days after her arriva1at the prison,she wentwith a large numberof women andother girls
to fetch waterfiom a well abou50 meters fiom the prison gates.Returningfiom the well,
Tmopolje guards heldbacksix girls, including the witness, and stopped fiom re-enteringthe
prison gates. Theywerethenjoined by four more female prisoners.
Prison guards tookthe 10girlsto aouseacrossthe meadow. Theywere taken to the side yard of
thehouse,out of sight ofthe roadway.Thirty Serbiansoldie-sincluding 'some dresselike a tank
crew' -were there and theytaunted the girls, calling them 'Turkish who'he girls were
orderedto undressor have their clothes pulled off. Three girls rdr hesitatedfiom their fear.
Their clothes werecut off with knives.
The Serbian soldierstold thenaked girlsto parade slowlyin a circle.The men sat at the ouîsideof
the circle smoking, drinking, and calling ouftou1names.The witnessestimatesthe 'parade' lasted
about 15minutes.
Thrce soldierstook one gir-one to rape her while thetwo others held her down. Thethree men
took tums.A soldier approachedthe witness and mocked her, sayhe had seenher before.
Though she did not recognize him,he pulledout a photoof the witness with her 19-year-old
Sluslimboyfiiend,whom he cursed for beingin the BosnianTemtonal Defense Forces.
The man with the photograph rapedher first. The witnesssaid shefought and pulledhis hair, but
hc bitherand hit her face. Herlips bled. He hit her hard with thebutt of his gunon her cheek,
causingcmme pain. Anotherrapistran the bladeof a knife acrossher breasîsas if to slicethe
skin off, lcaving bleeding scratc. fter that, shewas raped by eight moremen before losing
consc~ousness."[US Departmentof State, Bureauof Public Affairs, Dispatch, 12
April 1993, Vol. 4,No. 15, p. 248,Annex 461.
330. Killings were reported as well. The Commissionof Experts found Muslim and Croat
inrnateswere regularly killed while scavengingfor food outsidethe camp [United
Nations, Final Report of the United NationsCommissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps",p. 254,
para. 21201.Prisoners would also be taken away andnever be seen again. At timesReply of Bosnia and Herzegovina
guards would readfrom liststhe namesof those prisonersto be taken. They would
also shootmen at random. Muslims manied to Serbswere routinely singled outfor
harsh treatment [ibid.,p. 255, paras.2122-21231.It was estimatedthat fiftyto sixty
people died in Tmopoljeevery day [USDepartmentof State,Bureau of Public
Affairs, Dispatch, 12 April 1993,Vol. 4, No. 15,p. 245, Annex 461.
331. One particularly cruelkilling was reportedby Roy Gutmanin his acclaimedbook on
the Bosnian tragedy, A Witnessto Genocide.The incidentwas recountedby Began
FazliE,shortly after being released from Trnopolje, uponhis arriva1in Croatia:
"ln the detention centre[Tmopolje],Fazlic says he witnessedthe execution of hisnext-door
neighbors, Hadzic Ilijazand his wife Ismeta.Ililjazhad beenthe local chairmanof the MuslimSDA
party, whichhad organizedthe town'sresistance.'Theydemanded thathe providethe namesof al1
Muslimactivists,' Fazlicsaid. Ilijaz refused.Fazlic spokematter-of-factly ashe described whathad
happened tothe Ilijaz family.
'They [theilitxy] took electric drillsand bore them intotheir chests,'he said. The three children,
ages 13 and 5 were irnpaledon spikes.'We saw it withOurown eyes,' he sa[ROY
Gutman,A Witnessto Genocide,TheFirst InsideAccountof the Horrors of
'EthnicCleansing ' in Bosnia, Shaftesbury, 1993p , . 411.
1sthis what the Respondentmeanswhen it diabolicallystatesthat Trnopoljewas
meant for "farnilyreunions"?
332. Two other incidentswhichresulted in the violentdeath of Trnopoljeinrnateswere
describedby the Commission of Experts:
"2125. One subjectreportsthat on an unrecalleddate in July, men who hadbeen sleepingin the
schoolwere requiredto sleeputside(2,500women andchildren fiomthe Kozaracarea were being
held one night at the camp).round 1:00a.m. four or five soldierscame to where themen were
sleepingand took away sixmen fiom KamiEani,al1with the same surname.The next day seven
prisonerswere selectedto dig the mass grave. Accoto the men who dugthe grave,he men
fiom KamiEanihad had crossescarved ontheir chests,knivespushedthroughtheir chin and tongue
with wire insertedthroughthe hole in the tongue.
2127.One subjectreportsthat manypeople werekilledby shootingor havingtheir throat slit.He
also reports witnessingtwo little children killedby Cetniks,by beingthrowninto a rotating cement
mixer while the mother watched,and a prisoner led aroundby a wire driven throughhis tongue."
[United Nations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",p.
255, paras. 2125and 21271. Chapter5-Section5
Camps
The bodies of killed prisoners were buried at the cemetery in nearby Sivié,in the
park in Trnopoljevillage or simplyin the fields aroundthe camp [ibid., p. 255, para.
21301.
333. Most of the Muslim or Croat detaineeswere allowedto return to their homes. If not
killed, they were eventually al1transportedto Croatia orto territory still under the
control of the Bosnian government [United Nations,Final Report of the United
Nations Commissionof Experts, SI19941674lAdd.2(Vol. IV), 28 Dec. 1994, Annex
VIII, "PrisonCamps",p. 256, para. 21331.Trnopoljewas not a centre for "family
reunion", but it was, as the Trial Chamberof the ICTFY establishedin the Tadié
Judgment, "theculminationof the campaign ofethnic cleansing" [ICTFY,Trial
Chamber, Opinion and Judgment,Prosecutor v. Duiko Tadit, CaseNo. IT-94-1-T, 7
May 1997, p. 65, para. 1781.
Keraterm
334. In the Memorial,the Applicant supplied evidence onthe atrocities cornmittedin the
Keraterm camp [Memorial,pp. 25-27, paras.2.2.1.11-2.2.1.151.The Keraterm camp
was also located atthe site of a former ceramic factory nearPrijedor in the
northwest of Bosnia and Herzegovina.
335. The Respondent,in its Counter-Memorial,admittedthat the Keraterm camp existed,
but only after having complainedfirst aboutthe "unscrupulousmedia smear
campaign"of which the Serbs supposedly were the"victims" [Counter-Memorial,p.
33, para. 1.3.1.14.1.This remark illustratesthe cynical approach of the FederalReply ofBosniaandHerzegovina
Republic of Yugoslavia[seee.g., Counter-Memorial,p. 33, para.1.3.1.16.1.The true
victims of Keraterm were, of course, not the Serbw s ho ran the camp, but the
innocent Bosnian Croatsand Muslims who hadthe misfortuneof endingup in it. As
will be show below, many inmatesdid not survivetheir stay in the camp, despite
the fact that Keraterm wasforcedto be shut dom in August 1992,after having been
discoveredby international joumalists vnited Nations,Final Report of the United
Nations Commissionof Experts, SI19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex
VIII, "Prison Camps",p. 230, para. 18601.
336. In the Counter-Memorial, the Keraterm camp was portrayedas "a detention centre in
which investigation was canied out of war crimescornrnittedby the persons brought
to this centre" [Counter-Mernorial,p. 33, para. 1.3.1.14.1.The Respondentfailed,
however, to present any evidence of "war crimes investigations"carried out in the
Keraterm camp.
337. Below,the Applicantwill demonstrate that the explanation offered by the
Respondentfor the existenceof the Keraterm camp is nothingmore than a simple
ruse.
338. As stated in the Memorial, theKeratermprisoners wereal1put on a starvationdiets
[Memorial, p. 25, para.2.2.1.1 11.In reaction tothis statement, theFederal Republic
of Yugoslavia responded with the following:
"1.3.1.1TheApplicantallegesthat incampsand othplacestheSerbsresortedto a policyof
starvationwhich,inadditionto beingunfoundesynicalaswellAtthattimealmosttheentire
populationof theRepublicof Srpskawasstarving.Thesituationhadbeencreated eivilwar,
aswell asbythesanctions imposbythe UnitedNationsSecurityCouncil,so that itwasnot
possibletorovidemorefoodto campprisoners.[Counter-Mernorial,p. 33, para.
1.3.1.16.1.
The Respondentthus acknowledges that the fooddistributedwas insufficient,but
adds to itthat "it was not possibleto providemore food to campprisoners". The
Applicant wi11show that hereagain,the Respondentsimplydistortedthe truth.
339. On 21 July 1995, the Prosecutor at the ICTFY indictetd hirteen Serbswho were
responsible forthe nuining of the Keratermcamp[ICTFY,Indictrnents, The
Prosecutor v.DuSkoSikirica & others, CaseNo. IT-95-8-1,21 July 19951.Arnong
the accused are the commanderof Keraterm,DuSkoSikirica,three shift commanders, Chapter5 - Section5
Camps
four guards or interrogatorsand five fiequent visitorsto the camp. Thecharges
against Sikirica include,among others, genocide.
340. In addition to the thirteen indicteesmentionedabove,the Prosecutor indictedtwo
Serbs, SimoDrljaEaand Milan KovaEeviC,on 13 March 1997 [ICTFY,Indictment,
TheProsecutor v. Simo Drljac'a & Milan KovaCevii,Case No. IT-97-24-1,13March
19971.Both held important positions in the local Crisis Staff [see Reply, Chapter8,
Section 31.This organ was responsiblefor the establishment andrunning of al1
camps or detention facilities in thePrijedor region, including Keraterm. The
Indictment describes the responsibilitiesof the indictees for the atrocitiescomrnitted
in the camps:
"10. Beginningin the Springof 1992,the Crisis Staff of the municipalityof Prijedor, including
SIMO DRLJAC and MILANKOVACEVIC,planned,organized and implementedthe creation of
a numberof detention facilitiesor camps, including the Omarska, Keraterm admopolje camps.
These campswere staffed and operatedby military and police personnel and their ages,nder the
control of the BosnianSerb military and civilian membeof theCrisis Staff. In addition,other
Bosnian Serb police, military and civilians not directly assignteodthe guard staff ofthe campshad
unfetteredaccessto al1of the detention facilities and opein conjunction withthe personnelin
control ofthese detention facilities.
11.In none of the campswere the detainees afforded proper judicial process and their internment
was not justifiedby military necessity.y were detainedprimarilybecauseof their religious and
ethic identification.The conditionsinthe Omarska, Keraterm and Trnopolje camps were abject and
bmtal. BosnianSerb military and police personnelin chargeof these facilities, their staff, and other
persons who visited the camps,l1of whom were subjectto the authority and controlof the Cnsis
Staff, killed, sexually assaulted, tortured, andisephysically and psychologically abusthe
detaineesin the camps.
12. At Omarska and Keraterm,the camps were deliberately operatein a manner designedto inflict
upon the detainees conditions intendetdoing about their physical destruction the intentto
destroy, in part,the Bosnian Muslim and Bosnian Croat peopes national,thnicor religious
groups.Seriousviolationsof international humanitarian lof a similar pattern were committed in
both Omarska and Keraterm camps. Detainees were continuously subjecttoedor forcedto witness
inhumaneacts, includingmurder, rape and sexual assaults, torture, beatings and roas, well as
other forms of mental and physical abuse. Daily food rations provd detainees amountedto
starvation rations.dicalcare for the detaineeswas insuflicientor non-existent andthe general
hygienic conditions prevalentathese campswere grosslyinadequate.
14.Keratermcampwas locatedat a former ceramicsfactory in Prijedor. Conditionsfor prisoners
were similarto those in Omarskacamp. Detainees wereso crowded in the four rooms that, n
many occasions, they couldnot lie down.The detainees were not permittedto movearound fieely
in the camp.Whetherdetained in the roomsor on the openarea outside,they were only allowedto
move when specificailypermittedto do so, usually onlyto receive their starvation rationsor to go
to the toilet. On a daily basis,the camps leadership, the camp gu, ho were both police and
military personnel, andothers who cameto the campto abusethe detainees, subjectedthe detainees
to inhumanconditions,.physical violence,onstanthumiliation, degradation and fof death.Reply ofBosniaand Herzegovina
Many detainees were executedin the camp. Onone nightin July, 1992,mor150amilitary-
aged men fiom the 'Brdo'regionwere executed. Severe beatings were common.l1manner
of weaponswere usedduringthesebeatings, including wooden batons,metal rods, baseballbats,
lengthsof thick industrialcable,rifle buttsand knives. The beatings, sexualassaults,tortures, and
otherscmel and humiliating actions were generally in full view of other detaineesand
were accompaniedby derogatory and humiliating commto the victimsor theirniliesand
generalthreats to the other detainees.Afterthey were beaten,tortured, or sexually assaulted, the
detainees werecarried, draggedor forcedto crawl back into their rooms, withoof careform
for their injuries. Hundredsof detainees,whose identitiesare knownand unknown,did not survive
the camp."
16. Between30 April 1992and 31 December 1992, SIMDRLJACAand MILANKOVACEVIC,
in concert with others, planned, instigated,and ordered the enft the campsat Omarska,
Keraterm and Tmopoljeandthe detentiontherein of Bosnian Muslims and Bosnian Croathefiom
municipalityof Prijedor underconditionscalculated tobring about the physical destructionof the
detainees, with theintentto destroypart of the BosnianMuslimand Bosnian Croatgroups,as such.
Further,between 30 April1992 and31 December 1992, SIMDRLJAC And MILAN
KOVACEVIC,knew orhad reason toknowthat their subordinates who staffedthe detention
facilities werekillingor causingseriousphysicalor mentalharm to Bosnian Muslims and Bosnian
Croats withthe intentto destroythem,in part, as a national,ethnicor religious groupor haddone
so and failedto take necessaryand reasonablemesures to preventsuch acts or to punish the
perpetratorsthereof.
By these acts and omissions, SDRLJAC And MILAN KOVACEV wICre complicit inthe
commissionof GENOCIDE (...)[ICTFY,Indictrnent,TheProsecutor v. Simo
DrljaCa & Milan KovateviC,Case No.IT-97-24-1,13March 1997, pp. 5-8,
paras. 10-16, capitals in original].
The Prosecutorconcluded thatSimoDrljaeaand MilanKovaCeviCb , y establishing
camps such as Keraterm,had intendedto destroypart of the non-Serb communityof
Bosnia and Herzegovina.Both Serbs were thus indictedfor genocide.
341. The Keratermcamp was also discussedby the Trial Chamberof the ICTFY in the
TadiCcase. Its fmdingsconfirmthe deplorableconditionsat the camp. After having
describedthese conditions as "atrocious",the Trial Chamberestablishedthe
following:
"170. Food consistedof a dailyplate of watery soup and ascrap of bread and the sufferingfiom
hunger was acute. Beatings were veryfiequent, prisoners being called out,attackedwith barsand
batons and madeto beat eachother.There was muchcalling-outand beatingof prisonersat night
and those who returned werebloody andbruisedal1over, somedied of their injuries.Somewho
were called outever returned, andprisonersassumedthat they had diedas a resultof the beatings.
Dysenterywas rife and there was noicalcare for illnessor for the injuries inflictedby
beatings. Interrogations were conducted, accomdy beatings. Some prisoners were questioned
about moneyandtaken to their homesandmade to searchfor money,to be handed overto the
guards ifound." [ICTFY,Trial Chamber,Opinion and Judgment,Prosecutor v.
DuSb Tadii, Case No.IT-94-1-T,7 May 1997,p. 63, para. 1701. Chapter5 -Section5
Camps
342. The findingsof the Trial Chamberat the ICTFY wereconfhmed by numerous other
sources.Below, the Applicantwill give a few examplesof the indeed atrocious
conditions within the Keratermcamp.
343. The food rations in the camp were highly insufficient. The Commissionof Experts
reported that prisonersat the camp received one meal per day, composedof two
slices of bread and a kind of soup or a couple of scoops of beans or peas [United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28Dec. 1994, AnnexVIII, "PrisonCamps", p. 233,
para. 18881.Frequently, prisonerswere denied food anddrinkaltogether for
extended periods of timeas a punitive measure[UnitedNations, Letter Dated 5
March 1993fiom the Permanent Representativeof Austria to the UnitedNations
Addressedto the Secretary-General, Sl25377,6 Mar. 1993,p. 241.The water which
was handed out occasionallywas often polluted [UnitedNations, Final Report of the
UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. IV), 28Dec. 1994,
Annex VIII, "PrisonCamps", p.234, para. 18921.The Commission ofExperts
related that prisoners suffered an average weightloss of twenty kilogramsduring
their stay in the camp [ibid.,p.235, para. 19061.
344. At times, the camp guardstolerated visitors at the camp, who wouldtalkto prisoners
through the fence and handover foodparcels:
"1910. Members of a family, whose homewas reportedly locatedin the vicinity of the Keraterm
camp stated that they witnessed people bringing foodto their relatives who were imprisonedat the
camp. It was reported thaton one occasion, an old man who brought food forhis three sons was
not allowed to give food to them and was deniedaccess to the camp. According[to] the report, the
man was stopped approximatelymetres fiom the camp by drunk soldiers who beat himto
death."[ibid., p. 236, para. 19101.
People werethus "discouraged fiom bringing life-savingfood to the prisoners in the
camp. The Commissionof Experts alsoreportedthat raw cattle offal was thrown to
the prisoners, who in their hunger wouldtear it up and subsequently eatit [ibid p.,
237, para. 19231.
345. Upon their arrival, the new inmates of the camp would beadrninistereda beating
before being put into one of the crowdedrooms in which prisoners were kept:
"1873.It was reported that during intake, prisoners hadto leave their buses andgroups of five
were beaten with heavysticks to the head. Itwas also reported that after arriving in the evening,
the prisoners hadto walk to the camp buildingthrough rows of soldiers who beat them. OneReply ofBosniaandHerzegovina
subject who arrived on 9 July 1992 reportedthat two prisoners died thesame night dueto their
injuries. Another subject, whoalsoived at the Keraterm campo9 July 1992, reportedthat the
aniving prisoners hadto line up and sing Serbian songs, and thatsoldiers shot around in order to
make them sing louder."[United Nations,Final Reportof the UnitedNations
Commissionof Experts, SI19941674lAdd.2(Vol. IV), 28Dec. 1994,Annex
VIII, "PrisonCamps",p. 231,para. 18731.
After being beaten at their arrival,al1new prisoners were selected and categorised by
the camp guards:
"one subject fkomTrnopolje who was heldat the weratem] camp fkom 27 May to late July 1992
reported that there was a systemat the Keraterm campto process, identi@,and house three
categories of prisoners. The subject statedthat at the end of May 1992, newlyisoners
were taken into a room to be interrogated individually. Accordingto the subject,the questions most
fiequently asked dunng interrogation concerned thenames of persons selling and buying weapons;
persons who had fought against the Bosnian Serbs; persons who were memof the Muslim
Part yor Democratic Action (SDA); policemen; professionals and highly educated individualssuch
as doctors, lawyers and teachers, and engineers. Afterthe interrogationwas completed, the
prisoners were reportedly classified intoone of the following three categories: Category
Prisoners who had not confessed toany crimes, were not membersof the SDA, and were not
professionals or highly educated individuals. (Category A was reportedly entered on their
administrative records and their clothingwas marked with green paint); Category B: Prisonerswho
had confessed during their interrogationto having fought against the Serbs,or who were members
of the SDA, were policemen, or were professionalsor highly educated individuals. (Category
was reportedly enteredon their administrative records and their clothing was marked with black
paint); Category: Prisoners who were female,men over the age 65,and boys under the age of
14 or 15. (Category Cwas reportedly entered on their administrative records and theiwaslothing
marked with yellow paint). Accordingto the subject, once the prisonerswere categorized, they
were sent to the holding area for their assigned category.Thesection was reportedlythe
holding area for the Category C prisoners,the second section, the holdingarea for the Category A
prisoners, and the third the holding area forthe Category B prisoners. Accordingto the subject,
each day a group ofeîween 30 to 40 prisoners from holding area threecontaining the CatBgory
prisoners were led away with their hands tied behind their backs with wire and placedont0 military
trucks. The subject reported that the trucks would leaveat night and return empty several hours
later and the prisoners were not seen or heard from a[ibid.,pp. 225-226, para.
18241.
Al1prisoners were subjected to "interrogations" upon their arrival at Keraterm.The
questionsposed didnot focus on supposedlycomrnitted"war crimes"; beinga
doctor, teacher, engineer,policemanor politician sufficedin order to be treatedas a
"suspect" andto be singled out for the harshesttreatment.
346. As shown above, women were also keptin the camp, albeit occasionally andin small
numbers. Keraterm was no exceptionto the rule that femaleinrnateswere
systematicallyraped in Serb-runcamps [ibid.,p. 225, para. 18221. Chapter5 -Sectio5n
Camps
347. During the interrogations,the inmateswere routinelytortured, usually in the form of
beatings. It was commonpractice for guardsto singleout a group of men from the
same region and interrogate them collectively:
"1883. One subject similarly reported thaton his second day in the camp in mid-June 1992,40
prisoners fiom the village of KamiEaniwere called out by an identified guard, who screamedat
them and beat themoutside the dormitory with a baton. The subject reported further that the
prisoners were askedwho had keptirearms at home and that the subject was identified andwas
beaten repeatedly with thick electrics and truncheons. The subject reported that threedays
later, two of the guards who had beatenhim, yelled at him about his supposed involvementin the
attack on a Serb village. The subjectreported that he tried to defend himself and that an identified
guard pulled out knife to gouge outhis eyes, but that subject managed to push awaythe guard's
arm and instead had the right side of his neck slashed.The subject reported that the guard then
pulled the trigger of an un-loaded pistol point-blank at subject's temple, whereuponthe subject
confessed to havingfired onthe Serb village, althoughhe had not done so. The subject reported
that the identified guard unsuccessfully attemptedto cut off his ear and thereafter stabbed both
of the subject's thighsand twisted the knife, taking out pieces [ibid., p. 233, para.
18831.
The citation above illustrateshow "confessions" from theprisoners were extracted
during interrogations.
348. Inrnatesat the camp werealso tortured without the excuseof the "interrogation"
being used:
"1926. One subject reported that he was(...) attacked by an identified guard at the campwho cut
his left foot with a knife and forced him to sew it with a 'twist'.The subject further alleged
soldiers cut a 'U' for 'UstaSe'into his back.
1927. One subject reported that the camp guards would often torture prisonersby extinguishing
cigaretteutts on naked parts of their bodies, oron their faces.
1928. Another subjectwho arrived at the camp in mid-June 1992,reported that he witnessed as one
brother was forced to bite the testicles off of another brother. Thesubject also reportedly witnessed
a prisoner who was forced to sit naked upon a one litre Coca-Cola bottle and was beaten upon his
shouldersuntil blood pouredout of his anus and he bled to death. Other subjects similarly reported
that prisoners had to take off their clothes and sit on bottles and were subjected to other 'games'by
theguards." [ibid p. ,38, paras. 1926-19281.
349. The Austrian govenunent reported on a similarlygruesomeincident, which at the
same time shows the Serbs' disdaidid attitude toward authoritative international
organisations such as the InternationalCornmitteefor the Red Cross. Abouttwenty
persons chosen arbitrarily among the prisoners wereforced to lay on the floor. A
truck from the SerbianRed Crossthen drove over their legs [UnitedNations, LetterReply of Bosniaand Herzegovina
Dated 5 March 1993 jiom the Permanent RepresentativeofAustria to the United
Nations Addressedto the Secretary-General, Sl25377, 6 March 1993,p. 271.
350. In late July 1992, a large group of prisonerskept in sectionthree of the Keraterm
camp were executed.This incidentwas also referred toin the Memorial [Memorial,
pp. 26-27, para.2.2.1.1 51.In reaction, the Respondent denied thatthe incidenttook
place and statedthat it had "notbeen proved in an appropriate way" [Counter-
Memorial,p. 33, para. 1.3.1.17.1.On the next page, however, the Respondent
admittedthat the killing incident did indeed happened,but claimed thatit should be
seen asthe reactionof the prison guardsto a "rebellionof the prisoners".The
dubious legal merits of this sort of reasoningwere dealt withabove [Reply, Chapter
21.In the followingpassages, the Applicantlets the factsspeakfor themselves.
351. The following descriptionof the incidentwas givenby the Prosecutorat the ICTFY
in DuSkoSikirica'sIndictment:
"14.1.About20 July1992,detaineesffom an area of the opStinaPrijedorknownas 'Brdo,' which
included the villagesofbarine,Carakovo,Rakovcani, Biscani, and Rizvanovici, were brought
to Keraterm camp.The detaineesfromthe Brdo areawere crowded intoro3.The previous
occupantsof room3,had earlier beentransferredto other rooms.
14.2.About24 July1992,the detainees in ro3were not allowed out ofthe room.Duringthe
day andearly evening, machine guns were sein ffont of the rooms. That nightsoldierswere
brought into thecamp andormeda semicircle aroundroo3.
14.3Later that night,the guards and soldiers, includZIGICor,egan firing into the room
with machine guns andeavy calibre guns.The firing continuedoff and on over a periodof several
hours, altematingbetweencontinuous fire andshort burstsof fire. The fire was directed toward
room 3.However,some ofthe bulletswent into at leastone of the other [ICTFY,
Indictments,TheProsecutor v. DuSb Sikirica & others, CaseNo. IT-95-8-1,
21 July 1995,p. 7, paras. 14.1-14.31.
The Prosecutorestimatedthat at least 140non-Serbswere killed in this "rebellion".
The identitiesof 48 of the victimswere revealed inthe Indictment.After the
shooting had stopped,the bodies werepiled "likewood" into a truck, aswas
recountedby the Commissionof Experts.When it pulled away,there was "asound
like water was spilling" [United Nations,Final Reportof the UnitedNations
Commissionof Experts, S/1994/674/Add.2(Vol. IV), 28 Dec. 1994,Annex VIII,
"PrisonCamps",p. 238, para. 19291.
352. The incident describedby the Prosecutorwas reportedby numerousother sources
mnited Nations,Letter Dated 5 March 1993 fiom the Permanent Representativeof Chapter5-Section5
Camps
Austria to the UnitedNationsAddressedto the Secretary-General, Sl25377, 6 March
1993,pp. 28-31; US Departrnentof State, Bureauof Public Affairs,Dispatch, 19
April 1993, Vol. 4, No. 16,p. 258, Annex 19;US Departmentof State, Bureauof
Public Affairs, Dispatch, 8 Feb. 1993,Vol. 4, No. 6, p. 75, Annex 47; US
Department of State,Bureauof Public Affairs,Dispatch, 26 July 1993,Vol. 4, No.
30, p. 542, Annex 181.
353. The Commissionof Experts estimated that thenumber of prisoners killedat
Keraterm was at least ten per day during the approximatelythree months that the
camp was operated [United Nations,Final Report of the UnitedNations Commission
of Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, Annex VIII,"PrisonCamps",
p. 239, para. 19321.Other sourcesestimated that between 400and 500 prisoners died
at Keraterm fiom early July until 5 August 1992 [US Departrnentof State, Bureauof
Public Affairs, Dispatch, 12 April 1993,Vol. 4, No. 15,p. 244, Annex461.
354. The remains of the camp inrnateswere transportedaway by truck and disposed
of invarious mass graves in the area. The prisonerswhich were appointedto
remove the corpses often went missing after carryingout their duties [United
Nations, Final Report of the United NationsCommissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "Prison Camps",p.
239, para. 19401.
Omarska
355. The Omarska camp near Prijedor was arguablythe cruelest camp in Bosnia and
Herzegovina.In the Memorial,the Applicant gave various examplesof the daily
atrocities comrnittedin the camp [Memorial,pp. 22-24,paras. 2.2.1.4-2.2.1.1 O].Reply of Bosnia and Herzegovina
356. In response tothe evidence presentedin the Memorial, the Respondent stated the
following :
"~he way they have been made,none of thesestatementscan be sustainedas court evidenceand
the immense differencesin the perceptionof the same eventswhich occurred within thesame
period of time cast a seriousdoubton their veraciîy.The Respondentdeniesthe veraciîyof the
presented statementsof the witnesses."ter-Mernorial,p. 32, para. 1.3.1.1O.].
The Respondentthen characterised Omarskaas an "investigationcentre"for persons
who had "participatedin war operationsand cornmittedwar crimes" [Counter-
Memorial,p. 32. para. 1.3.1.13.1.In doing so, the Respondententirely ignoredthe
fact that almost three months beforeit submittedits Counter-Memorial,the Trial
Chamberat the ICTFY had concluded the caseagainst DuSkoTadi6 and had
convicted him for, amongother things, atrocitiescomrnittedin Omarska,after
months ofpublic hearings [ICTFY,Trial Chamber,Opinion and Judgrnent,
Prosecutorv. DuSb TadiC,CaseNo. IT-94-1-T, 7 May 19971.In its Judgment, the
Trial Chambergave a detailed description ofthe camp and the terrible conditions
under which the detaineeswere held.This descriptionwas based on evidence
presented during the course of the mentionedpublic hearingsby thirtyfomer
inmatesof the camp. Their accountscan thus be "sustainedas court evidence".
357. The Trial Chamberat the ICTFY first describedthe location,the layout and the
population of the Omarska camp:
"155. Perhaps themost notoriousof the camps,where the mosthomfic conditions existed,was the
Omarskacamp.It was locatedat the former Ljubija iron-ore mine, sometwo kilometresto
thesouth of Omarska village. Thecampwas in operationfrom 25 May 1992until late August Chapter5 -Section 5
Camps
1992when the prisoners weretransferred to Tmopolje and other camps. Omarska heldas many as
3,000 prisoners at one time, primarily men, but also had at leas383women. With little
exception, al1were Muslims or Croats.The only Serb prisoners sightedby any of the witnesses
were said to have been there because they were on theside of the Muslims. The commanderof the
camp was ieljko MeakiC.The camp consistedof two large buildings, the hangar andthe
administrative building, and two smaller buildings, knownas the "whitee" and the 'red house'.
156.The hangar was a large oblongstructure, running north-south, along theeastem side of which
were a number of roller doors leading into a large area extending the lengthof the building with
the ground floor designedfor the maintenanceofeavy trucks and machinery usedin the iron-ore
mine. The westem side of the hangar consisted oftwo floors of rooms, o40rin all, extending
over the whole north-south lengthof the building and occupying rather lessone half of the
entire width of the hangar. Accessto these rooms could be gained eitherfiom a door on the
western side or, intemally, fiom the large truck maintenancearea described above. The bulk of the
prisoners were housed in this building.To the north of the hangar and separatedfiom it by an open
concreted area,known as the "pista", wasthe administration building, where prisonersate and some
were housed, with rooms upstairswhere they were interrogated. The whiteuse was reserved for
especially brutal treatrnent of selected prisoners.The other small building, the reds also a
place to which prisoners wereaken for severe beatings, andfiom which most often theydid not
leavealive. The administration buildingwas in part two-storied, the single storiedwestem portion
containing akitchen and eating area. There weretwo small garages forming partof the extreme
northem end of the building. To theWestof the hangar building was a grassedarea on the westem
side of which lay the white house, a small rectangular single-storied building, having a central
comdor with two rooms on each side and one small roomat its end, not wider than the comdor
itself. The small reduse was on the same side as the white house, and across fiom the end of the
hangar building."[ICTFY,Trial Chamber,Opinion and Judgment,Prosecutorv.
DuSb TadiC,Case No. IT-94-1-T, 7May 1997,pp. 59-60, paras.155-1561.
With some 3,000 inrnates,Omarska wasone ofthe larger campsin Bosnia and
Herzegovina.The camp held mainly Muslim andCroat men, but some womenwere
also detainedunder horrendous conditions.
358. The TrialChamberthen describedthe treatrnentof prisonersat their arrivalin the
camp. If they survivedtheir "welcome",the new inmateswere put in one of the
buildingsbelongingto the camp. The room in which the prisoners wereheld were
too cramped and severely overcrowdedas a de:
"157. The Trial Chamber heard fiom 30 witnesseswho survived the bruîaiity to which they were
systematicaily subjectedat Omarska. By al1accounts,the conditions at the camp were horrendous;
killings and torturewere fiequent.
158.When prisonersarrived by bus at Omarska, theywere usuaily searched, their belongings taken
fiom them, and then beaten and kickedas they stood, legs apart andarms up stretched, against the
eastern wall of the administration building.The newvals were then sent either to stay outside
on the pista or to rooms in the hangar or in the smallgarages in the office blocks or, ifso selected,
to the whitehouse.
159.Prisoners were held in large numbersinvery confined spaces, with little roomeither to sit or
lie down to sleep. Sometimes200 persons were heldin a room of40 square metres; an300Reply of Bosnia and Herzegovina
prisonerswere confinedin one small room. Others spent the time crowded together tine
lavatories. There,aswell, however, prisoners were packed onoen top of the other and often had to
lie in themidst of excrement.The doorsof the overcrowded garagewere often kept closedeven in
the heat of the summer. As manyas 600 prisoners were madeto sit or lie prone outdoorson the
pista, some staying there continuously regardsf the weather for manydays and nights on end,
and occasionally foras long as a month,with machine-guns trainedon them."[ibid., p. 60,
paras. 157-1591.
359. As in al1camps under Serb control in Bosnia andHerzegovina,food and water
rations were minimaland ofien unfit for hurnanconsurnption andwhen coupledwith
profoundly unsanitaryfacilities,made conditionsfor the prisonersunbearable:
"160. Onlyone meal a daywas providedat Omarska for prisoners, consistingof a plate of watery
potato soupand a smallslice of bread orjust rotten beans,andthe sufferingfiom hunger was
acute. The prisoners were fedinatchesof about30 at a time and hadto run to and fiom their
dailymeal, ofien being beatenby guardsas they came andwent.They were then allowedonly a
minute ortwo in which to eat. When they first arrivedat the camp,someprisoners did not
however, receive either foodor water foreveraldays. Manyof those confinedin the white house
received no food at al1duringtheir time there. Some prisoners, particularltyhose already badly
injured by beatingsin the camp, often choseto miss their dailymeal for fearof Merbeatingson
the way to, or retum fiom, themeal. Some prisoners lost 20to 30 kilogramsin body-weightduring
their time at Omarska, others considerably more.
161.Drinkingwater at Omarska was often denied to the prisonersfor long periodsand was, in any
event, unsuitable formanconsumption, causing sickness. There was very littlein the way of
lavatories; prisoners hadto wait hours before being allowed tothem, and sometimes risked
being beaten if they askedto usethem.Prisoners were often forcedto excrete andurinate in their
rooms. There wereno effective washing facilities, amen and theirclothesquicklybecarnefilthy
and skindiseaseswere prevalent,as were acute cases of diarrhoea and dysentery.
162. The crowded rooms were stiflinign the summer heat and often guardrefusedto open
windows inrooms crowdedto overfiowing or demanded the handing oveorf any possessions
prisoners had managedto retain as the priceof an open windowor a plastic jarof water."ibid.,
pp. 60-61, paras. 160-1621.
360. Al1prisoners at the camp wereinterrogatedat somepoint. The Trial Charnberfound
that these interrogationswould generallybe accompaniedby beatings. Beatingswere
also administeredby people from outsidethe camp,who were allowedto visit the
camp fieely. Many inmates succurnbedto the inflictedbeatings:
"163. Prisonerswere calledout for interrogation,usuallysomedays after theirarrival, and would
be taken by a guardto the first floorof the administrationbuildimg;guards wouldbeat and kick
them as they went.Some prisoners were very severely beatenduring interrogation, aguard standing
behindthe prisoner,hittingand kickinghim, ofienknocking hi off the chair inwhich he sat;
there were instanceswhere prisoners knockedto the floor wouldbetrodden andjumped on by
guards and severely injured;al1of this whilethe interrogator lookedon. Treatmentvaried fiom
prisoner to prisoner and seemedto dependrather more on the brutalityof the individual
interrogator and guards ratherthan on the behaviour of the particular prisoner. Prisonertreirte Chapter5 -Section 5
Camps
interrogation, were often made to sign false statements regarding their involvementin acts against
Serbs.
164. The calling-out of prisoners was not only for thes of interrogation. In the evening,
groups from outside the camp would appear, wouldcal1out particular prisonersfiorn their rooms
and attack themwitha variety of sticks, iron bars or lengths of heavy electric cable. Sometimes
these weapons would have nails embedded in them so asto pierce the skin.On occasions knives
would be used to slash a prisoner's body. The prisoners as a whole feared groupsof men from
outside the camp even morethan they did the regular camp guards.These groups appeared to be
allowed free access to the camp and theirtsgreatly increased theatrnosphereof terror which
prevailed in thecamp. Frequently prisonerswho were called out failed tond witnesses who
were their close relatives gave evidence that they hadnever been seen since, and were assumed to
have been murdered.
165. Women whowere held at Omarska were routinely called outof their rooms at night and
raped. One witness testified thatshe wasn out five times and raped and after each rape she was
beaten.
166. The white house was a place of particularhorror. One roorn in it was reserved for brutal
assaults on prisoners, who were often stripped, beaten and kicked and otherwise abused. Many died
as a result ofese repeated assaults onthem. Prisoners who were forcedto clean up after these
beatings reported findingblood,teeth and skin of victims on the floor.Dead bodies of prisoners,
lying in heaps on the grass near the white house, were a not infiequent sight.Those bodies would
be thrown out of the white house and later loaded into trucks and rernoved from the camp.
167. The red house was another srnall building where prisoners weretaken to be beaten and killed.
When prisoners were required to clean the rede, they often found hair, clothes, blood,
footwear and empty pistol cartridges. They also loadedont0 trucks bodies of prisoners who had
been beaten and killedin the house." [ibid.,pp. 61-62, paras. 163-1671.
361. The fmdings of the Trial Chamberare reaffirrnedby evidencegatheredby, among
others,the Commissionof Experts,who dedicateda long sectionof their Report on
prison campsto Omarska. In the following passagest,he Applicant will illustratethe
conditions under which theprisonerswere heldwith examplesprovided by various
authoritativesources.
362. Accordingto the Commissionof Experts, the newlyarrivedprisonersof the
Omarskacamp were divided into three categories.Thesecategories roughly
corresponded with the selection made at theKeratermcamp [UnitedNations, Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. IV),
28 Dec. 1994, Annex VIII, "PrisonCamps",pp. 189-190,paras. 1552-15571.Croats
and Muslirnswho had defended themselvesagainst the Serbforceswhich attacked
their towns and villagesin the region, were specificallytargetedfor the cruellest
treatment.Most rich and educatedpersonsbroughtto the camp were,in addition,
killed before the camp was abandonedin August 1992 [ibid pp,. 213-214, paras.
1724-17301.Reply ofBosnia andHerzegovina
363. Afier their arrival at the camp, the prisonerswould be "intenogated"at least once.
The "interrogations"were generally heldon the top floor of the administration
building, also described above by the Trial Chamberof the ICTFY,and wereseized
as anideal opportunityto torture the detainees and to extract false confessions.The
following example of such an "interrogation"was given by the Commissionof
Experts:
"1677.One subjectreportedthat on 27 July 1992, he wascalledout of the 'whitehouse'by two
soldiersand then takento an upstairsroom in the buildingwherethe kitchenwas located.He stated
that in the interrogationroomthe chiefsat behind a table and two mensat one on eachide. One
of the twoasked questions, and the othertwo wrote them down. Aftertaking personaldata,the
chief saidhe wantedto eat his lunch,andthe other two men reportedly tookthe subject into
another room where therewere other soldiers: a totalof five men. Each man reportedly held an
objectfor use in a beating.The objectswere reportedto be: a police stick; a whip; a rubber stick; a
metal stickthat was squarein shape;and a metal bal1on a chain.The subject was reportedly told
to get onhis knees and hands and each manhit him onthe back, legs, and neck with oneof the
objects.The refugee statedthat he hadheard fiom the other prisonersthat it was important notto
fallflat on the floor becausethen al1of the men wouldhit him at the sametime. He statedthat he
was then hit repeatedly aboutthe legs withthe metalstick until his legsgrew numb. After the
beating hewas reportedlyreturnedto the interrogationroom. The chief then reportedly askedthe
subjectif he was readyto hear his accusation, which stated that the suwtas accusedof having
said in Donja Puharskathat Muslimmen would kill al1Serbian men and would keep the Serbian
women foruse in reproductionpurposesand for sexual training ofyoung Muslim boys." [ibid.,
pp. 207-208, para. 16771.
364. The prisoners were not only beaten during the so-calledinterrogations;in the
Omarska camp,there were no safe havens:
"1686.One subjectreportedthat on 6June 1992, an identified prisoner lookthroughthe camp's
kitchenwindowwhen eating and was shotdead for doingso by a guard on the outside.The subject
also reportedat on the sameday anidentified prisonerwas eatingby the kitchenwhen hewas
asked by a guard what hewas doing. The prisoner reportedly replied am eating cheese(Bojrum)
would you like some?'. Asthe word 'Bojrum'was of Turkish originthe guard reportedly took
exceptionto its use and beganto beat the prisoner.He was thereafter joined bytwo other guards
who reponcdly beat the prisonerto death.This sarneincidentwas reported by another sourcewho
statedthatscveral prisoners witnessed the beating and kilgf an identified prisoner.Accordmg
to thesource,the prisoner-victimreceivedhis daily slice of bread after which a guardsaid 'Dobar
Tek' (good appetite)to whichthe prisonerspontaneouslyreplied 'Bujum'(the Muslim equivalent).
According tothis source,severalguards beatthe prisoner senseless.He thereafter layon his back
and vomitcdand suffocatedas guards reportedly prohibited othersiom turning him over. Another
source reported that on July1992, a prisonersaid 'bujrum'to one of the guardswasthen beaten
until he died ('they were jumping on hisest until they broke his breastplate'[ibid., p.
209, para. 16861.
The forgoing statement clearly illustrates theway beatings and killings were
motivated by anti-Muslimand anti-Croatsentiments. Chapter5 -Section 5
Camps
365. The Omarska camp containedtwo small buildings which were exclusivelyused for
torture: the "white house" and the "redhouse". Thesebuildings were describedby
the Trial Chamberas places were people weretaken to be tortured and killed. The
Commission ofExperts reported that the conditionsat the "whitehouse" were
terrible, but that on occasion,prisoners would returned from it. From the "red
house", however, no one ever cameback [ibid., p. 216, para. 17461.Former inrnates
of Omarska estimated thatup to forty persons werekilled per dayin the "redhouse"
[ibid., p. 216, paras. 1749-1 7501.In the "whitehouse", an average of fifteen
prisoners was killed each night [ibid., p. 217, para. 17601.
366. Prisonerswere usuallynot shot; the Serbguards and daily visitors to Omarskahad a
sadisticpreference for other methods ofkilling. The followingwas reported by the
Commission ofExperts:
"~ccording to one subject, a prisoner beggedto be killed by a gun and the answerwas 'no', a
bullet is too expensive. Accordingto the subject, the victim was thereafter torturedto death.
Another subject similarly reportedthat executionsat the camp were usually carried out with knives
or by beating and seldomly withfireanns. He stated that a BiH Muslim prisoner survived three
beatings and afier the fourth beating he lay dying on the floor. One of the guards reportedly asked
'what is your last wish?'The prisoner reportedly first asked forsome water and then to be killed
with a bullet.The guard reportedly gave theman water and let the man diefiom hiss.I1
[ibid., p. 222, para. 17961.
367. The United States goverment recounted thefollowing incident that took place atthe
Omarska camp:
"~he brothers were reluctantto estimate how many killings they had personallyobserved that fmt
week, but suggested itwas about 50. They saw five of their fellow prisoners stabbed inthe face
and cut across the throat until their heads werevirtually severed. Others had the Serbian (Orthodox)
crosscarved into their chestsor arm[United Nations,Letter Dated 5 November
1992fiom the Permanent Representativeof the UnitedStates of America to the
UnitedNations Addressed to theSecretary-General, Sl24791, 10 November
1992,p. 101.
The Americanjoumalist Roy Gutman reportedthat in late July a prisoner was
poured over with gasolineby a Serb guard and subsequentlyset alight [Roy Gutman,
A Witnessto Genocide, Shaftesbury, 1993, p. 981.
368. The Commissionof Experts reportedmany castrations.Serb guards and visitors
repeatedly engaged in sexualtorture resulting in the castrationof prisoners:Reply of Bosnia and Herzegovina
"A young Bosnian Muslim subject whoowned a Suzuki motorcycle was reportedlytortured in
fiont of the other prisoners,after which time his teeth were knocked out. Accordingto one subject,
the guardsthen tied one endof a wire tightly around the prisoner's testicthen tied the other
end of the wire to his motorcycle. A guarden reportedly got on the motorcycle andsped off.
1769. According to one subject, a prisonerannunspecifieddate asked an extreme guard if he
could sneak him a bit of bread. The prisoner reportedlysaid 'I'm hungry' to the guard. The guard
then reportedly ordered another prisonerto take off his pants andthen told the first prisoner to
kneel in fiont of the other man. 'Ifyou're hungry, now you'll eat eggs', the guard reportedly said.
'If you don't eat,1'11cut your throat', the guard added. The subject said that the prisoner bit off
the testicles of the other man who died shortly thereafter.
1771. A television media reportfeatured prisoner eyewitnesses and a prisoner participantin an
often reported castration incident allegedto have occurred on approxim17eJune 1992 . he
report contained interviews with a witness who reported that Serb guards startetdhe incident by
calling up names. Q, the participant, confirmed thatat ar5:15p.m., Serb soldiers in
camouflage uniforms came in to pick out a cafe-owner andactive policemen to beat them up. He
also reported that the guardster dragged out two truck-owners and three policemenand thereafter
beat them and carved crosses on their bodies with bayonets mounted on automatic r. stated
that he wasthen told to go outsidewith the other prisoners and thathe had to drag them through
the hall, half-dead. One witness reportedthat he witnessedas the guards first forced Q to jump into
a duct filled with waste oil and shout,'1am a pig, 1love pigs!' Q confirmed that he was forced to
drink motor oil from his hand and later fiom a beer bottle. Another witness statedthat while Q was
doing this, the guards were beating the others and trampled. Q reported that he was then
forced to tear off the testicles of the other prisonerswith his teeth and that the men were screaming
in pain. The witness stated that onevictim died immediately and thatthers gave some final
screams and that they were thereafter taken away in a truck. The witness stated that he and others
had to clean up the blood. Q stated thathe was orderedby men to tear off the other prisoners'
testicles. The witness stated that the guardsat the time werethe command of one who was a
supervisor at the camp and whose shift wassaid to have been the worst. The witness statedthat
there were about 15guards on this individual's shift. Q statedthat the guards witnessed the
incident and werelaughing, and the next day they told inthe 'galleries'what he had done."
[United Nations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV),28 Dec. 1994,Annex VIII, "PrisonCamps",pp.
218-219, paras. 1768-17711.
The Commissionof Experts describedother castrationincidentsas well, which
illustratesthe comrnonnature ofthis specifickind of torture in the Omarskacamp.
369. The estimatesof prisonerskilled at OmarskaVarybetween atleast 1,000and 5,000
[ibid., p. 222, para. 1795;Roy Gutman,A Witnessto Genocide,Shaftesbury, 1993,
p. 1391.At some point, thecamp authoritieseven lost track of who was still alive
and who had alreadybeen slaughtered:
"~hey wanted to kill me too, but their greatestmistakewas they were killing but had no records,
nothing. They'd cal1out names of people they'd already killed.Later, when we realised what was
going on, we didn't answer. They missedme. We'd no papers, they didn'tknow who we were."
[ibid., p. 220, para. 17821. Chapter5- Sectio5
Camps
The remains of the inmateswho were killed weredriven away in trucks to mass
graves near the camp. Prisonerswho were forced to load bodies onthe trucks were
often executed later [ibidem, p.223, para. 18061.
370. On 13February 1995, the commanderof the camp,ieljko MeakiC,was indicted for
genocide by the Prosecutorof the ICTFY [ICTFY,Indictments, TheProsecutor v.
ZeZjhw MeakiC, & others, CaseNo. IT-95-4-1,13 Feb. 19951.Sometwo years later,
Simo DrljaCa & Milan KovaCeviCt,he two leading membersof the Crisis Staff in
Prijedor and as such, responsiblefor the establishment andrunning of Omarska, were
indicted for genocideas well [ICTFY,Indictment, TheProsecutor v. SimoDrZjaCa &
Milan KovaCeviCC , ase No. IT-97-24-1, 1March 19971.
371. On 7 May 1997, the Trial Chamberat the ICTFY convictedDuSkoTadiCfor the
atrocities he cornmittedin Omarska.He was one of the "visitors"who were allowed
into the camp and whom the prisoners on some occasionsfeared even more than the
regular guards.
372. TadiCwas convictedfor actively beating, stabbing andkilling Muslim prisoners in
one of the Omarska hangars between1 June and 31July 1992 [ICTFY, Trial
Chamber, Opinion and Judgment,Prosecutor v. Duiko TadiC,Case No. IT-94-1-T, 7
May 1997,p. 86, paras. 235-236and p. 3001.The Trial Chamber additionally found
beyond reasonable doubt thatTadiCwas part of a group of Serbs who beat and
kicked another Muslim prisoner until he wasunconsciousin the "whitehouse" on 8
July 1992 [ibid., p. 95, para.11.TadiCwas convicted for another beating on 10
July 1992. The Muslim victim diedas a result of the maltreatment [ibid., p. 100,
para. 279 and p. 3001.Around late July, a number of Serbs fkomoutside the camp
severely beat and kickedseveral Omarskainmatesbehind the infàmous "white
house". TadiCwas one of these Serbs.For his contributionto this beating as well,
TadiCwas later convictedby the Trial Charnber[ibid., p. 108, para.303 and p. 3001.
373. In March 1996,Prof. ManfredNowak, expert member of the Working Group of
Enforced orInvoluntaryDisappearances, reported thata number of inmates of the
Omarska camp hadbeen transferredto the FederalRepublic of Yugoslaviato
undertake forced labour in the mines of Aleksinac [UnitedNations, Specialprocess
on missingpersons in the territory of theformer Yugoslavia,Report submitted byReply of Bosniaand Herzegovina
Mr. ManfredNowak,expertmemberof the WorkingGrouponEnforcedor
InvoluntaryDisappearances,ElCN.4119961364 , March 1996,p. 15, para.521.
ManjaCa
374. In the Counter-Memorial,theRespondent acknowledged the existence of the ManjaCa
camp in the Banja Lukaarea and continued describingit as a centre "wheremainly
war criminalswere gatheredshortlybefore exchange" [Counter-Memorialp ,. 31,
para. 1.3.1.8.1.
375. The ManjaCacamp was describedby the Commissionof Experts.It was situated
some 25 kilometres south of the city of Banja Luka.It was locatedin a training
centre of the JNA. There werethree main detention buildings, surroundeby a fence
erectedto prevent the prisonersfrom escaping.The surroundingarea was rnined for
thesame reason. Each of the buildings housed between600 and 700 prisoners.
Duringthe peak of its operation,in the summerof 1992,ManjaCaheld
approximately3,700 prisoners. Thesenurnberswere, accordingto the Commissionof
Experts,confirmedby the InternationalCornmitteefor the Red Cross. Themajority
of the prisoners were men; some eighty percentuslim,the remainingtwenty
percent Croat.The inrnateswere of al1ages, butmostly betweenthe ages of eighteen
and sixty [UnitedNations,FinalReportof the UnitedNations Commission of
Experts,Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,AnnexVIII, "PrisonCamps",
pp. 33-35,paras. 254-257, 259, 267 and 2711.
376. The Commission ofExperts also reportedon the statuosf the prisoners: Chapter 5 -Section 5
Camps
"~eports indicatethat the majority of the prisoners at the ManjaEa campwere civilians. CSCE
mission member John Zerolis, a U.S. Foreign Service officer assigned to theUS Embassy in
Zagreb, inspectedtheManjaEacamp and reported that he observed several thousand prisoners, none
of whom were wearing any type of uniform. He stated that he was told by the prisoners that they
were noncombatants and that they had been arrested fiom their homes. The CSCE Mission further
reported that the vast majority of the ManjaEa'sprisoners claimed to be civilians or were arrested at
their homes for no apparent reason except as angral part of 'ethnic cleansing' operations. One
subject who was held at the camp said that ManjaEa wasnot a POW camp as claimed by Serbian
authorities and that an estimated 95 per cent of the prisoners there were[ibid., p. 35-
36, para. 2731.
The findings of the Commissionof Expertswere confïrmedby the Special
RapporteurTadeusz Mazowiecki[ibid.,p. 36, para. 2741and the United States
Department of State [US Departmentof State,Bureauof PublicAffairs, Dispatch,
28 September1992, Vol.3, No. 39, p. 734, Annex 291.
The camp was establishedby the YugoslavArmy (NA) as early as the summeror
auturnnof 1991.It was initiallyused to detain Croatscapturedin the war in Croatia.
The camp remained under rnilitarycontroluntil its closure in December 1992
[UnitedNations, Final Report of the United NationsCommissionof Experts,
Sl19941674lAdd.2(Vol..IV), 28 Dec. 1994, AnnexVIII, "Prison Camps",pp. 36-37,
paras. 280-2811. Manjacawas closed dueto intenseinternationalpressure, as was
also found by the Trial Chamberof the ICTFY in the TadiCcase [ICTFY,Trial
Chamber, Opinionand Judgment,Prosecutor v. DuSkoTadit, CaseNo. IT-94-1-T, 7
May 1997,p. 34, para. 951.
378. Many of the prisoners weretransferredto Manjacafiom other camps [United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,AnnexVIII, "Prison Camps",p. 40,
para. 3021.When Omarskawas closed in August 1992,for example,the surviving
inmateswere transportedto Manjacaen masse[ibid.,pp. 42-44,paras. 314-3181.
During their transportto the camp and at their arrival,the inmateswere regularly
maltreated:
"328. One subject reported that during his transfer fiom Omarska in early August 1992, the
prisoners were made to stay on the buses until 7:00 the following moming. He added that they
were ill-treated and that nine prisoners were taken off the bus by guards and beaten to death. He
identified four ofse men and stated that they were killed for no apparent reason otherthan the
fact that they had raised their heads.ing to the subject,the first of the identified individuals
was beaten to death after first begging to be killed swiftly. Subjectfter beating this
victim to death, guardsnated on the body. The subjectalso described and identified another
prisoner who was stabbed to death after looking out of the bus window. The subject stated that the
prisoners were thereafter called out of the busesbynd formed into groups of 100.He saidReply of Bosnia andHerzegovina
they were marched into barnsoutsideof the fenced camp areawhere theywere madeto strip naked
and adopt the Islamic positionof prayer and shout blasphemies. Headded thattheir clothingwas
searched and itemssuch as razor blades and toothbnishes were confiscated.
329. One subjectwho was transferredto ManjaEafiom Omarskainarly August statedthat on the
moming of 7 August, the guardsat ManjaEacaliedout thenamesof about eight prisonerswho
weretaken fiom the buses and shot or beaten andslashedto death.He stated that severalprisoners
insidethe bus were able to peekthroughthe curtainand witnessedthe killings.He statedthat once
removed fiom the buses, the prisoners were seated on the n two groupsof 600 men each.
Each group reportedly formed60 rows of 10men. Accordingto the subjectthere wasno water and
each prisonerwas requiredto sitwith his head between his . e saidthat the first 600-man
group entered ManjaEaat about3:00 p.m. andthat the second groupfollowedtwo hourslater.
Once insidethe camp, he stated that for the first time prisonemdedicalattention.He
added thatthose who were sick, veryold, very Young,or injured,were sentto Tmopolje in two
buses."[ibid., p. 45-46, paras.328-3291.
The horrendous receptionof the newinmatesat the Manjaëacamp was also related
by the United StatesDepartment of State [US Departmentof State, Bureau ofPublic
Affairs, Dispatch, 26 July 1993,Vol. 4, No. 30, p. 544, Annex 181.
379. Manjaëa was visited by the InternationalCornmitteeof the Red Cross (ICRC).
Special RapporteurTadeusz Mazowiecki, however, was denied permissiotn o visit
the camp when he tried to inspectit duringthe 1st week of August 1992:
"33. Despitebeing denied accessto the Manjaca prison campt,he Special Rapporteur has received
ample information about conditions there. Most sources give theefrdetaineesas being
approximately4,000 men, who are housedin large, open buildingsformerly used as stables.
Physical conditionswere especiallybad duringthe firstseveralmonthsafier the detentionfacility
was opened. Evidenceof seriousmalnutrition, harsh disci,trictlyrationed water, poor
sanitation, overcrowding, of propermedicalcare and beatingof prisoners has been received
form a varietyof credible sources. Physical conditions have iomewhatd sincethe camp
began to be visitedby international bodiesin ~ug[UnitedNations, Situationof
Human Rights in the territory of theformer Yugoslavia,report submittedby
Mr. TadeuszMazowiecki,SpecialRapporteur of the Commissionon Human
Rights, A.1471666S ,l24809, 17November 1992,p. 14,para. 331.
380. In spite of the regular visits of the ICRC,the conditionswithin the campremained
atrocious. Food rations were far below thenecessaryminimum.Inmateslost between
ten and forty kilogramsduringthe first months oftheir detentionin the camp
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps",p. 50,
para. 3601.
381. During their stay in Manjaea,the inrnateswere routinelysubjectedto beatings: Chapter5 - Section 5
Camps
"386. One report quotes a subject who statedthat every day guards took him and the other
prisoners out of thestables at 7:00 a.m., and forced themto sit in the sun holding their heads down
with their hands behind their backs.He stated that Serb guards forced themto stay in that position
until3:00 to 4:00 p.m. He added that Serb guards, soldiers and civilians came to beat them with
bats,pieces of wood, metal bars, hoses, wire cables, and that they kicked them, andhit them in the
kidneys, across the neck, back, and over the head.He stated that Serb civilians were let into the
camp, including women and children, andthat they spiton the prisoners, stoned them and beat
them with various objects. He stated that someof them even cut fingers fiom the prisoners' hands,
ieaving only three fingers (the Serb salut[ibid., p. 53, para. 3861.
Testimony presentedby a former camp inrnateto the United States Senate
Cornmitteeon Foreign Relations provideda harrowingaccountof the prisoners'
treatrnentat Manja2a:
"when we arrived, almostal1of us knew where we were: in Manjaca, a placethat was in the pre-
war penod used as a militq ground of a tank division forthe Yugoslav Peoples Amy. Six barns
were a part of the complex...) As we arrived, 1noticed that this huge place was surrounded by
barbed wire and soon1realized that mine-fields wereset up around the camp in order to prevent
our escape.1estimated that it tookseveral months to set up the camp. Soon 1realized that people
from cities of KljuC,Sanski Most, MrkonjicGrad were being broughtto Manjaca, and later-asthe
camp at Omarska was closeddown, the detaineesfiom Prijedor were also shipped to Manjaca.
Barns in Manjaca could hold between 650-700 people.We were told to sit on the concrete floor,
Ourheads down, hands behindOurbacks. They started taking people away alreadyon the first
evening.Those people were systematically beatenin a separate room, hours at a time. Soon we
found out that there was a system behindthe beating procedure; a policeman wouldhold the
detainee, while three others were beating him with police batons and sticks or kicked with
soldier boots. Us detainees were not ableto help the beaten peoplewho were retumed to the barn.
The only thing we could do and that was only sometimes,s to hand them some water (...) None of
use [sic] could sleep,nce night after nightwe were listeningto their moaning and screaming.
None of us knew when itwas going to be his tum. They were especially vicious toward
intellectuals and well-respected people.ember the case of Omer Filipovic, a respected Muslim
fiom KljuC,who was beaten with metal sticks throughoutthe night to death. If a police guard
would think that one manwas not following theirrules in the camp, men in the whole barn were
beaten that day. Very soon we realizedthatrtorturers were men highly trained forsuch violent
sadism. The commander of the camp was Bozidar Popovic.1found out he was fiom Monte Negro
and he was a lieutenant colonelin the Yugoslav~rmy" [War Crimes in the Balkans
SenateHearing 104-448, JointHearingbefore the SelectCornmitteeon
Intelligenceof the UnitedStates Senateand Cornmitteeon Foreign Relationsof
the United States Senate, 104th Congress,first session,9 August 1995,pp. 61-
621.
The ManjaCacamp thus fell under the commandof the YugoslavArmy, until
December 1992,when the facilitywas abandoned.
382. The camp helda limitednurnberof women.Duringtheir stay in ManjaCathey were
raped repeatedly.One young girl was raped in fiont of her mother anddied soon
afterwards.Musliminmateswere also coercedto rape female prisoners. A 14year-Reply of Bosniaand Herzegovina
old boy was, for example,forcedto have sex with a 60 year-old woman[United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28Dec. 1994,AnnexVIII, "PrisonCamps",pp. 53-54,
paras. 393-3941.
383. Both the ThomsonCSCE Missionand the Commissionof Expertsfoundthat in the
ManjaCacamp, numerousdeliberate killingsof prisonerstook place [ibid.,p. 51,
paras. 368-3691.Some incidentswill be related in greaterdetail below, as described
by the Commissionof Experts:
"370.One subject stated that almost everydayin the late afternoon, six to eight 'MartiCevci'[Serb
paramilitaries fiom Republika Srpska Krajina] would cometo the prisoner housingand pick from
five to 10 prisoners to torture them in a building whichthe prisoners called Samica (meaning single
prison cell). The subject was never personally beatenin this manner but reported that other
prisoners were made to stand atthe wall and were beaten with bats,rubber clubs, metal wires,
electric cables, and other objects. According to the subject, prisoners werealso kicked about the
head and face when they were unable to walk. The subject said that someof these prisoners died
and some were shot in the Samica. He stated that prisoners who were pickedup after 8:00 p.m.
were almost always beaten to death and didnot retum fiom the Samica.
371. A subject who was broughtto ManjaEain late May 1992, stated that every nightafter dark,
several guards would cometo the barn witha list of names to remove approximatelyfive to six
prisoners whose names were on a list.Those prisoners werethen taken to the Samica building
which was approximately 50 metres from the barn where the subject washeld. The subject stated
that the prisoners in the adjacent barn could hear the screams of the prisoners wthey were
being tortured. He said that the prisoners onthe lists were generally either peopleof standing or
members of the Party for Democratic Action (SDA - Stranka DemokratskeAkcije).
372. Another subject who was brought to the camp in early June said that every second day the
camp guards beat him in the evening afterthe prisoners hadgone to bed. He said that the guards
walked past his housing stall and read out about10names. The prisoners followedthe guards to a
room near the kitchen, and each prisoner was beaten for 20 minutesto a half-hour. He said, 'We
were beaten untilwe fell over.It was best to stay up as long as you could. It was easier to take
body blows than to be kicked.' Itwas also reported that one prisoner earned thenickname 'mbber
man' because he never let himself be knockeddown.
373. One subject described beatingsat the camp withhigh voltage wire. The subjectsaid that once
the prisoners fell, they were kicked until they died.
374. Another subject reportedly witnessedthe guards at the camp shoot a man and then jump on
his head. The prisonerdecedent was not identified. Thesame subject also reported prisoners being
forced into genital biting.
375. One report quotes a subject who said that prisoners at the camp were fiequently beaten. He
reportedly lost 11teeth in three days dueto beatings. He alleged that Serbian soldiers were 'taking
out' the skilled people and the 'intelligentsia'fiamlist. He alleged that when a new group of
prisoners arrived at the camp the soldiers selected 10persons at random and cut their throats.
376. One subject who was transferred to the camp fiom KljuEin late June 1992,said that on 27
August 1992, he was severely beaten. Hesaid that on 28 August 1992,he witnessed the President
of the Party for Democratic Actionin Prijedor andtwo other men beingkilled. He said that the Chapter 5-Section5
Camps
prisonerswerebeatenianareathatwasusedfor solitaryconfinementof prisoners,100ut
metresfiomthebarn."[ibid., pp. 51-52,paras. 370-3761.
Although prisoners were regularly beaten and killed by the guards during their stay
in the camp, inmates generallyremarkedthat the conditionsat ManjaCawere far
better than those at Omarska [ibid.,p. 52, para. 3771.
384. In September 1995,mass graves were discovered nearKrasulje in northwest Bosnia
and Herzegovina.The graves contained 540(five hundred and forty) bodies of
persons previously detained at ManjaCain 1992 [United Nations,Specialprocess on
missingpersonsin theterritory of theformer Yugoslavia,Report submittedby Mr.
Manped Nowak, member ofthe WorkingGroupon Enforcedor Involuntary
Disappearances,ElCN.4119961364 , March 1996,p. 15,para. 521.
Luka
385. The Luka camp was located in the BrCkoarea on the southernbank of the Sava
River, which serves as the boundarybetweenBosnia andHerzegovinaand Croatia.
386. In the Memorial,the Applicantreferred to the treatmentof Muslims and Croats in
this area and the Luka camp operatedby Serb forces from May until JulylAugust
1992 [Memorial, pp.27-29, paras. 2.2.1.16-2.2.1.201.In response, the Federal
Republic of Yugoslaviastated that the evidence presentedby the Applicant is "of
such scope and characterthat they escapeseriouscourt control".Al1"allegations"Replyof Bosniaand Herzegovina
with regard to the Luka camp are denied "asuntrue and unproved" [Counter-
Memorial,pp. 34-35, para. 1.3.1.21.].
387. In the Memorial,the Applicantalso explained howthe remainsof the victimswere
at times disposedof [Memorial,p. 28,para. 2.2.1.181.Bodies were destroyedin a
meat processingplant orburned in nearby factory furnaces.In its Counter-Memorial,
the Respondent didnot deny that these acts were cornrnitted,but it most vehemently
repudiated the evidence showing that the remainswere also thrown in the Savariver:
"such allegationsare impossibletoprove withoutcorpsesor eyewitnesses.Thereis no witnessin
Bosnia-Herzegovinaand the FR of Yugoslaviathathas seen sucha corpse.Whenthe Serbs were
killed and thrown intothe Savariver in WorldWarTwo, corpsescouldbe seen along the entire
course of the Savariver and it was notpossibleto hid[Couter-Mernorial, p. 35,
para. 1.3.1.22.1.
The Applicantcannottake denials ofthis type seriouslyin light of al1available
evidence.The statementquoted above shows, however,that the Respondentis aware
of the fact that bodies thrown into ariver remain visibleas corpora deiicI tfithat is
indeed what historytaught the Respondent,it is remarkablethat it has not denied the
"procedure"followed at Luka, which implied tham t any corpseswere first destroyed
in a processing plant before theremainswere thrown into the river Sava.
388. In the followingpages, the Applicant will show that the non-Serb inmatesof the
Luka campwere tortured,raped and killedin greatnumbers.It will also show that
the corpses of the prisonerswere indeed disposed ofin the most inhumaneways.
389. On 30 June 1995, the Prosecutorat the ICTFYindictedtwo Serbsfor the part they
played in the atrocitiescommittedin the Luka camp: Ranko Ce5iCand GoranJeliEiC,
also known as the "SerbAdolf'. JelisiCwas the acting commander ofthe camp. In
the Indictment,the Prosecutorgave an overviewof events in the BrEkoregion in
May 1992and the role of the accusedin the months following the Serbtake-over:
"1. Beginning on abo30 April 1992, Serb forcesfkomBosnia and elsewherein the former
Yugoslaviafoughtto obtaincontrolof BrEko,a town and municipalityinthe Republicof Bosnia
and Herzegovinain the formerYugoslavia. Serb forcesforciblyexpelled Croatand Muslim
residents fkomtheir homes, and,with the assistanceof local Serbauthonties,held them at
collection centres, wheremany were killed, beatenor otherwiseed.Many of the women,
children and elderly wereconfinedat the nearbyvillage of BrezovoPloje. Mostof the men of
military age, and a few women,were taken to Luka camp.
2.From about 7May 1992until early July 1992,Serb forcesconfined hundredsof Muslirnand
Croat men, anda few women,at Luka campininhumaneconditionsand under armed guard. From Chapter 5 -Section5
Camps
about 7May 1992 until about 21 May 1992, detainees were systematically killedat Luka. Almost
every day during that time, the accused, often assistedby camp guards, entered Luka's main hangar
where most detainees were kept, selected detainees for interrogation, beat themandoften shot
and killedthem.
3. The accused, often assistedby camp guards, usually shot detainees at close range in the head or
back. Often, the accused and camp guards forced the detainees who were tobe shot to put their
heads on ametal grate that drained intothe Sava River, so that there would be minimal clean-up
after the shootings.The accused and guards then ordered other detaineesto move the bodiesto one
oftwo disposa1areas where the bodies were piled until they werelater loaded on trucks and taken
to mass graves outside the town of Breko or disposed of in other ways.
4.From about 21 May 1992 until early July 1992,the detainees were subjected to beatings and,
lessffequently than before, killings.
5.In early July 1992,the surviving Luka detainees weretransferred to another detentioncamp at
BatkoviC.
6.During the time Luka camp operated,the Serb authoritieskilled hundreds of Muslim and Croat
detainees"[ICTFY,Indictments,TheProsecutor v. Ranh Ceiit and Goran
JeliSit, CaseNo. IT-95-10-1, 21June 1995,pp. 1-2,paras.1-61.
After having summarised theatrocitiescornmittedin the camp,the Prosecutorstated
that
"[al11acts and omissions chargeas crimes against humanity were part of a widespread, systematic
or large-scale attack directed against the Muslim and Croat civilian populationof" [ibid.,
p. 2, para. 141,
and charged GoranJelisiCwith genocide:
"1n May 1992, Goran JELISIC, intending to destroy a substantial or significant partof the Bosnian
Muslim people as a national,thnical, or religious group, systematically killed Muslim detainees at
the Laser Bus Co., therEkopolice station and Luka camp. He introduced himselfasthe 'Serb
Adolf, said that he had come to BrEkoto kill Muslims,and often informed the Muslim detainees
and others of the number of Muslims he had killed (...) By these actions, JELISIC
instigated, ordered, committed or aided and abetted:(.en oc ide[.bid , p. 3,para. 171.
Despitethe fact that JelisiCused to boast about the nurnberof Muslimshe had
slaughtered,the true extent of the atrocitiescornmittedby the "SerbAdolf" remains
unknown.
390. The Commissionof ExpertsdescribedLukacamp in its Report on prison camps and
found that it was the largest Serb camp operated in the BrCkoarea. It was situatedat
the brick factoryand portfacilitieson the river Sava and consistedof three hangars,
where most of the prisonerswere kept, and someother buildings.The populationofReply ofBosnia andHerzegovina
the camp ranged from 1,000to 5,000 inmateswith the total nurnberof people who
passed through unknown. The majority of the detainees wereethnic Muslims and the
remainder Croat. The camp population consistedmainly of men, butwomen were
also detained wnited Nations, Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex VIII, "Prison Camps",p.
92, para. 7481.
391. In its Report on prison camps, the Commission ofExperts describedthe conditions
under which the prisonerswere held.Internees in the largest hangar wereforced to
sleep standing because of the limited space. In the othertwo hangars the internees
were allowed to sit along the wall, but their legshad to remain straight out along the
ground. The prisonerswere allowedto use the toilet, once a day, for no longer that
one minute. At times blood would be ankle deep from behind thethird hangar where
the dead bodies were usually kept until disposed of.Food rations in the camp were
insufficient; each prisoner initially receivedno more than fifty grams of bread and
one small cup of thin bean soup per day. Later the rations were drastically cut [ibid.,
pp. 95-96, paras. 775-7771.
392. The detaineesof the camp weretortured, raped and killed systematically. The
systematicnature ofthe atrocitieswas describedby the Commissionof Experts with
the example of a Bosnian Muslim from BrEkowho had beenarrested when Serb
forces stormedhis neighbourhood. Afterhis arrest he was taken to Luka:
"755. Duringhis first days at the camp, thecaptorscalled outnamesof prisonersfrom electoral
rolls.l1those who were members ofthe SDA (a Bosnian,primarilyMuslim, politicalparty) or
who had held positions of leadershipin business ortrywere killed. Shootingsoften occurred
at4:00 a.m. The witnessestimatesthat duringhis first weeksat Lukamore than 2,000 men were
killed and throwninto theva River.
757.The witnesswas interrogatedon the seventhday of his captivity. Thiswasthe stagewhen
detainm with property or moneywere subjectedto questioning and torture.The witness,who was
affluent would not describehis own beating.By this point, al1prisonersknownto have been
politicallyactive had already been killed.
758. Following his secondweek in the Lukafacility,the witness sawguardstorture or kill Serbs
who had hiddenor helped Muslirns.Thecampcommander designateda Bosnian Serbwho had
been a waiter ata Breko hotel to seek out specificethnic Serb prisoners for interrogationbecause
he knew most ofthe BrEkoarea residentsby name.
759. After the witnesshad been interrogated,he was taken with other prisoners to HangerTwo of
the loading dock, where they were forto look at a pile of moren200 corpsesor torsos.
Most of the body parts had been choppedoff: hands,axms,and genitals.The prisonersstanding Chapter5 -Section 5
Camps
outside Hangar Two were told they would end up like that if they told lies while being
interrogated.
760. Looking out of the window during one of his interrogations, the witness saw the soldiers
gang-rape a woman whom hehad known since his high school days, andmurder her husband. A
Brliko school teacher among the guards, anethnic Serb, was shot dead for refusing to join in the
torture and killing of thispie." [ibid.,pp. 93-94, paras. 755-7601.
393. After having killed al1of the non-Serbelite, the Serb guards startedtorturing and
killing the prisonersat random:
"777. Apparently,murder and torture were a daily occurrence. Such activity often appeared to be
random. Reports received described a plethoraof various acts of violence and degradation. For
example, witnesses reported ears and noses cut off and eyes gouged out. Some of the intemees
were killed for such slight infiactions of camp ruassraising a leg off the ground. Many prisoners
were killed by being shot in the back of the head.ch killings were usually carried out near floor
drains which emptied into theSava River. Knives were reportedto be used to cut into the skin of
the intemees al1the way to the bone and others had their fingers cut off.
778. Guards regularly beat prisoners with different types of clubs. Some prisoners were reportedly
beaten with clubs to the point that their faces caved in and weren simply left to die. Another
fonn of maltreatment was to jump from tables ont0 intemees breaking their ribs and other bones.
Many men were allegedly castrated. Such atrocities were almost always reported to have been
committed in fiont of other detainees. The bodiesof the dead or dying intemees, were ofien taken
to the camp dump or moved behindthe prisoner hangars. Other intemees were required to move
the bodies. Sometimes the prisonerswho carried the dead were killed while carrying such bodies to
the dump. The dead were also taken and dumped outside the Serbian Police Station located on
MajeviEkaBrigada Road in BrEko." [ibid.,p. 96, paras. 778-7791.
394. The most monstrousacts were committedby Serbianparamilitariesand special
soldiersfiom the Federal Republicof Yugoslavia,thus illustrating the direct
involvementof the Respondentin the camp:
"779. One source indicates thatthese daily atrocities were committed by 10-15 Serbian paramilitary
soldiers and an unknown number of Arkanovci, Se~eljovci,and Yugoslavian Federal Specijalci
soldiers, as well as by Serbian police. Intemees were often told to sing and those that did not sing
loud enough were shot point blank. After the singing started the guards wouldoften come in and
start randomly shootingthe intemees. In one undated incident, approximately50 men, women and
children were killed. The intemees were told that this was in retaliation for the deat12of
Serbian paramilitary soldierskilled at the front. This type of random shootingwas reported to have
occurred on a daily basis with anywhere fiom 15-50victims.
780 There was also reported to be a torture room at the camp, and those intemees taken there never
retumed. Those tortured were either killed immediately or leftto bleed to deaîh in pooof their
own blood. No other prisonerswere allowed to help them and if they did not die on their own
within two to three days, they too were then shot to death.Reply of Bosnia and Herzegovina
781 It was reporteddozensof Muslim prisoners had crosses engraved into their foreheads with
knives and were then givenOrthodoxnamessuch as Aleksander andthen requiredto repeat, for
example,'1am Aleksander'." [ibid., p. 96, paras. 779-7811.
395. Thefemale prisonersof the campwere not spared.Their treatmentwas as bad as the
treatment of the men, if not worse. The United States Departmentof State related the
atrocitiescornrnittedto youngnon-Serbwomen:
"A 55-year-old Bosnian MuslimfkomBrckowas a prisonerat Luka camp duringwhich time he
sawteen-aged girls being brought, eightto ten at a time, into the camp commander's office
buildingon Wednesdaysand Saturdays,betweenabout 2 and6 pm. The teenagerscame onlythose
2 days of the week.
Monika, a Serbian womanin her early 20s,would say 'We've brought the'he camp
commander wouldtake histime selecting a girl,who wouldthen be escortedupstairs.Oncethe
commander had made his choice, threr four guards would select another girla,nd so on. Only
the commanderhad a girltohimself.
The witness identified Monikaas the well-knowndaughterof Brcko's leading prostitute. She
bragged about herjob of going aroundtownto 'buy and prepare' the a,nd she was assistedby
three menwho participated inthedeliveryservice',as well as servingas 'police'at Luka prison.
The witness identified1of the afore-mentioned people and provnamesof girls knownto be
dead and presumedto have died from being gang-rapat Luka camp.
Monikabrought a nurseto Luka to 'preparethe girls andmakethem calm.'The girls apparently
had no idea what wasgoingto happento them,becausethey were onlyslightlyfiightened. The
witnessimpliedthat the nurse was coerced into 'treating' the girls. The witness observed Monika
beatingyoung men on the genitals repeatedly for extended periodsof time.
The nurse, also allowrefugee, saidthat Monika had stabbedone girl, who had resisted being
sent to the soldiers, on the breain theaginawith the broken neck of aglass bottle;the girl
bled to death. The nurse personallywitnessed thisinci[US Departmentof State,
Bureau of Public Affairs, Dispatch, 19April 1993,Vol. 4, No. 16,p. 264,
Annex 191.
The above mentioned "Monika"alsoparticipatedin the abusing ofyoung Muslim
and Croat men. Young menwere routinely linedup in rows of three or four, Croats
against Muslims.The prisonerswere then forcedto perform sodomyon one another
while being taunted by laughingguards [ibid.,p. 2621.
396. Between100and 150 Serbs from Serbiaproper werein charge of the daily operation
of the camp, carrying out most ofthe interrogation,torture and killing of prisoners
[United Nations,Final Report ofthe UnitedNations CommissionofExperts,
S/1994/674/Add.2(Vol. IV), 28 Dec. 1994,AnnexVIII, "PrisonCamps",p. 97,
para. 7891.Local Serbs were, however, engagedas guards aswell. The Commission
of Experts related the story of one of these local Serbsworking in the Luka camp:
"793. One of the more notorious incidentsto have occurredat the Luka-Brtko camp was related by
a Bosnian Serb whojoined the Serbian forcesand workedas aardat the camp.On 17May
1992,in the aftemoon, six guards at the Serb detention campin BrEkopuka], selected 12 female Chapter 5 -Section 5
Camps
prisoners betweenthe ages of12 and 25andtook themto what was knownas the rape room. A
smallroom attachedto the corner of one of thetwo warehouses used for housing prisonest the
camp.The room had no furnishings. Part of the floorwas covered with cardboard. Fiveof the
guardswere fiom a group thathad come fiom Belgrade.The sixthwas fiom Bosnia.Once inside
the room the girls were forced against of the walls.Two of the guards grabbeda12 year old
girl, removedher clothes and pinned herto the floor.One held her hands whilethe other held her
legs.The Bosnianguardwas orderedto rape her.The other guards watchedto ensurecompliance
with theorder. After the rape, the victim dressed and the prisoners were removed.
794. About an hour afterthe rape, a group 80 male Bosnian prisoners, [Muslims] and Croats
betweenthe ages of 20 and 50 were linedup againstthe wall of a ruinedbuilding locatedcloseto
the river and in linewith a pointlfwaybetweenthe two warehouses. Three prisoners between the
ages of35 and 40 who were standingclosestto the guards, were separatedfrom the groupand
broughtto the Bosnian guard about20 metres away.One of the other guardsgave the Bosnian
guard aknife about 30-35centimetres longand orderedhimto kill al1three by slashing their
throats. The Bosnian hesitated.The other guard grabbed his hand and forcetdhe knife throughone
prisoner's neck below the ear.he knife was pulled outandthe victim fell into convulsions for
secondsbefore death. The Bosnian guard was orderetdo kill another prisoner inthe samemanner,
he again hesitatedso another guardpushedthe knife into the prisoner's killingthe man
instantly. The Bosnian guardhen tried to killthe third prisoner with the knife, faileds,o finished
him off withhis rifle. The three bodies were loadedont0a militarytruck. The Bosnian guardwas
then orderedto kill the remainin77.He didso with his rifle.The bodies were placedon trucks
and broughtto the Kafilerija farm for disposa[ibid., p. 98, paras. 793-7941.
397. The Bosnian Serb guard figuring in the passageabove was not the only local guard
being forced to commit atrocitiesby specialforces fiom the Federal Republic of
Yugoslavia. Newguards were ragged likefreshers:
"795 A Bosnian Serb forcibly conscripted inthe Reserve Contingentof the Serbian Territorial
Military Policeby 'Specijalci' [Yugoslv my special forces] describeda situation indicativeof
the atmosphereat the Luka campand amongstthe guards.He was assignedto the camp on 15 May
1992 becauseof a shortageof guards. Uponarrival at the camp,he was picked upby a 'specijalci'
soldier in the camouflageunifom and postedon an open Streetabout50 metresfiom the
warehouses.He replaced another guard who left withthe 'specijalci'. After abouttwo hours on
guard around 9.00 am another soldierin camouflage cameto the guard post and told himto follow.
This soldierappearedto be one ofthose in charge. About10metresfiom a hangar,the other
soldiertold him it was time to have somefun.He was told that as a Serb it is his dutyto rape
severalBosnian Croatianor BosnianMuslimwomento show his patriotismto the govemrnentin
Belgradethat had sent'Specijalci'to BrEkoto liberatelocal Serbs.He was told that unless hegot
his handsdirty like the resthe would be shotas a traitor. After threatened with, e agreed to
commitrape.
796. He failed in his first attemptto rape a youngwoman abo25 who seemedto be Muslim.He
successfully rapeda 15year-old girl who foughtback and had to be helddownby four soldiers.
Ten to 12 'specijalci'stoodoutsidethe warehouse indifferentor bored,jeering and cursingthe
conscriptwhen heprotested.Over a period of onehour, he raped five women betweenthe ages of
15and 22. Not totally convincedof his loyaltyand sayingthe rapes werejust for the soldiers
informed himthat he must now do somethingmore serious.
797. At about 1,000,two well dressed men between theages of30 and 50 were broughtout fiom
one of the warehouses and placedin fiont of its wall. The conscriptwas orderedto shoot. He
resisted.He was then threatened witha pointed rifle,at whichtime he didthejob. Then to furthe1Reply of Bosnia and Herzegovina
prove his loyaltyto the Serbiancausehe was toldto cut somethroats. He couldn'tdo it sothe
soldiersguidedhis hand to cut the two throats of the pris[ibid.,pp. 98-99, paras.
795-7971.
398. Special Rapporteur TadeuszMazowieckiestimated thatup to 3,000 (three thousand)
of the inmates were killedin the monthsthe camp wasoperated pnited Nations,
Situationof HumanRightsin the territory oftheformer Yugoslavia,Report
submitted by Mr. TadeuszMazowieckiS , pecialRapporteur ofthe Commissionon
HumanRights,E/CN.4/1993/50, 10Feb. 1993,Annex II, p. 93, para. 7493.Other
sources put the number of people slaughteredbetween 3,000 and 5,000 [United
Nations, FinalReportof the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex III. A, "Special Forces",p. 142,
para. 3961.
399. The Report on prison camps by the Commission ofExperts shed somelight on the
final destination of the bodies of those killed in the camp,thus illustratingthe
methodical manner in which even the bodies were eliminatedso as to leave no trace,
wherever possible:
"813. Many of the prisonerskilled in Luka-BrEkowere allegedlyburied in a seriesof massgraves
situatedbehind a localinkingestablishment onthe road betweenBrEkoand the villageof
Brezovo Polje.The roadmns parallelto and isabout 500metres from the Sava River. The mass
graves lie in a wooded area betweenthe road andthe river.
814. The bodiesofintemees from the Luka-BrCkocamp werealso reported tohave been
transportedto and burnedat the old 'Kefilerija'animal feedand rendering factoryinThis
factory was approximately four milesfiom the camp and located whereBijeljinskaCesta eandd
Vase Pelagica Streetbegan.Refiigeratedand TAM-110trucks were reportedto leave Luka-BrEko
camp at 4.00 am each morning with approximately20 bodies each. Additionalrefiigeratedtrucks,
fiom otherunknownlocations,alsoanived at this factory.Whenthe bodiesamved at the factory
they were first dumpedby 10-12intemeesinsidea building wherethree large fumaces were
located.Unnamed Serbianpararnilitaryforcesthen strippedthe bodiesof valuablesbefore dumping
them intothe fumaces. This facilitywas also guardedby un-named 'Se~elj's'forces.The buming
of the bodies started in May 1992and pnor to this time the bodieshad been dumpedinto the Sava
River until the number of bodies needing tobe disposedof becametoo high.
815. Apparently,the ECMMreportedan allegationthat Serbsin BrCkodestroyedthe cadaversof
theirMuslimvictirnsby throwingthem into machinesdesignedto grind up dead animalsto make
animal feedfor cattle. Other Muslims were allegedly fto operatethis machine andlater
allegedlyalso killed.This may very well be a descriptionof the Kafilerijaplant.
816. It seems that yet another sourcehad heard that childrenLukahcamp hadbeen killedand
then thrown into cementmixers;their remainsused as food forpoultry. Chapter5 -Section 5
Camps
818. Another witness who allegedly spentsome time at the Luka camp claimed that from 9-11 May
1992,he and three other Luka pnsoners were taken to the BrEkohospital to load dead bodies into a
hace. According to this witness,the bodies had been cut into pieces and placed into 50 kilogram
nylon sacks. He saw body parts fimen, women and childTen,most with civilian clothing. The
sacks were brought to the hospital in small trucks. The witness claims that he personally loaded
about 200 such sacks into the fumace over the two day penod. When his group left, they were
replaced by another groupof four men. The men were always under arrned gu[United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",pp.
101-102, paras. 813-816, 8181.
400. The conclusionsof the Commission ofExperts were confirmedby other sources. The
corpses of the Luka inmateswere indeedthrown in the river Sava, however, only
afterbeing "processed" first:
"A pnsoner who was transferred from the Luka camp inBrEkoto the Batkovic campin early
September 1992 stated that while at the Luka camphe was assignedto a working party whose
daily mission was to destroycorpses. The working party would collect the corpses from a freezer
located at a meat processing plant anddump them into a meat processing machine. After the
corpses were ground up, the working party would load the processed corpses into the trucks and
dump them intothe Sava ~iver."[US Departmentof State, Bureau of Public Affairs,
Dispatch, 19 April 1993, Vol. 4, No. 16,p. 262, Annex 191.
401. The Luka camp combinedal1the horrors of the ethnic cleansingcarnpaign.It was a
camp where people would be tortured, raped and eventuallykilled. Being Muslim or
Croat and living in territory which the Serbs consideredto be part of the future
Greater Serbia, was a sufficientreason to end in the Luka camp.
402. The Su5icacamp was locatedin a formerrnilitary depot in Vlasenica,in eastern
Bosnia. The camp was not mentioned in the Memorial, as little was known about it
at thetime it was submittedby the Applicant.The Respondentdid not mention the
camp in its Counter-Memorial,althoughit dedicated severalpages of its counter-
claims to the Vlasenica area [Counter-Claim,pp. 586-589, para.7.1.42.0.1.One may
therefore assume that theexistenceof the campwas known to the Respondent.Reply ofBosniaand Herzegovina
403. SuSicaconsistedof two warehouses andone smallbuilding.At full capacity,it held
an estimateof 560 to 700 prisoners [United Nations,Final Report of the United
Nations Commissionof Experts, S/1994/674/Add.2(Vol. IV), 28 Dec. 1994,Annex
VIII, "PrisonCamps",pp. 332-333, para.27711.Al1prisoners werecivilians,as was
found by the Trial Chamberof the ICTFYwhen itreviewedthe Indictmentof
Dragan Nikolié,the commanderof SuSica,on 20 October 1995:
"~ccording to the writtenstatementsas well asthe oral testimony presentedto the Chamber, large
numbers of people were detained atSuSicacamp duringthe per1oJuneto30 September 1992.
The regular population ofthe camp is saidto havebeen about 500 persons.The majonty of the
detainees were men butwomen andchildren were also partof that regular population.Over the
entire period in questi8,000peopleare saidto have been detainedat SuSicacamp in total.
Al1the witnesseswho testifiedto having beendetained atSuSicacamp emphasizedthat, at the time
of theirrest, they had not beenparticipatingin a resistancemovementagainst the authonties who
had seizedpower in Vlasenicaand who were responsible for the camp. Itnot seemthat such a
movement couldhave taken shape in Vlasenicaregion,where the detaineeswere locals,duringthe
period in which the campwas operational. Thearrestsseem tohavetaken place only after the
populationhad beentotally disarmed.Thus it would appear that theestablishmentof SuSicacamps
was aimed at detaining a defencelesscivilianpopulation which was notorganised into a resistance
movement." [ICTFY,Trial Chamber,Review ofthe IndictmentPursuant to Rule
61 of the Rules of Procedureand Evidence,Prosecutor v. Dragan Nikolii,
CaseNo. IT-94-2-R61, 20Oct. 1995,pp. 9-10, para.201.
The population of the camp consistednot only of civilianmen, but also of women
and children,who detained in considerable numbersaswell [UnitedNations, Final
Report of the UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol. IV),
28 Dec. 1994,Annex VIII, "PrisonCamps",p. 335, paras. 2796-27971. Chapter5- Section5
Camps
404. The civiliansin the campwere al1Muslim.Their persecutionwas, acoordingto the
view of the Trial Chamberof the ICTFY, solely motivatedby a "discriminatory
intent based principally, ifnot exclusively,on the religious characterisationof the
targeted population"[ICTFY,Trial Chamber,Reviewof the IndictrnentPursuantto
Rule 61 of the Rules of Procedureand Evidence,Prosecutor v. Dragan Nikolit, Case
No. IT-94-2-R61,20 Oct. 1995,p. 10,para. 211.
405. The atrocious conditions inthe campwere describedby the Commission ofExperts
in its Report on prison camps:
"2772. Food wasvirtually non-existent at the camp. Each prisonerwas given only oneslice of
bread per 24 hour period. Asthe summer progressed,soup was occasionally givenin addition to
bread, but prisoners still commonly lost consciousnessas a result of malnutrition.
2773. Prisoners whohad to use the bathroom were madeto run to a toilet outside the warehouse in
the corner of the fenceda. In such a case, other prisoners were givensticks and forced to beat
the individual while they were defecating or urinating. The prisoners were not allowetdo wash, and
in the summer the smell isd to have been 'overwhelming[UnitedNations,Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
IV), 28 Dec. 1994,Annex VIII, "Prison Camps",p. 333, paras. 2772-27731.
The Muslimdetaineeswere regularlytortured:
"2774. Prisoners were also beaten with timber and iron rods andslashed with knives at the camp.
Men were regularly strippedto the waist and beaten.One ex-prisoner relatesthat he and others
were called 'Balija' [derogatory termfor Muslims] and forcedto sing Serbian songs. HeStatesthat
he was beaten three and fourtimes a day.rs were even beatento death. One such victim died
in the hangar on or near 15 June 1992.Another older manwho was believed by guards to have
hidden weapons in Vlasenicawas also beatento death shortlyfter. Apparently, adead body
would sometimes lie in the hangar for hours beforethe guards took [ibid.,p. 333,
para. 27741.
In SuSica,rape occurredas well,just as it did in al1Serb camps containingwomen
and girls [ibid.,p. 333, para. 27771.After having been raped,the women were
usually killed[UnitedNations,Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. V), 28Dec. 1994, AnnexIX, "Rapeand Sexual
Assault",p. 53, para. 2571.
406. An ex-guardof the camp related detailsof the activities which tookplace in SuSica
to international organisationsand the Western media.The former guarddesertedthe
Bosnian Serb Army, whichhe hadjoined when the conflictin Bosnia and
Herzegovina brokeout, and fled the city of Vlasenicaon 1 January 1993.TheReply of Bosnia and Herzegovina
Commission ofExperts recordedhis statements,in which he revealed thesystematic
killing in the camp:
"2785.According to him, the camp opened on2 June 1992 and closed four monthslater. During
this entire time, Muslims were executed everynight at the command of Dragan NikoliC,a man who
now works for the Bosnian Serb secret policeand was in charge of the day-to-day mming of the
camp. He estimatesthat he personally witnessedthe execution of closeto000 Muslims fiom
Vlasenica at the SuSicaCamp and watched thousands more pass throughit. He Statesthat al1of the
prisoners at the camp were civiliansaken from their home.
2786. The ex-guard describes how the 'selection process' for killingand transfer worked at the
camp. Apparently, men suspectedof having some political influenceoraflicking in arms were not
taken for exchange and were generally executed; others were exchanged andheld for transfer to
Batkovik camp.
2787. Despite these general guidelines,the 'selection process' was oftenmuch more random than
planned. Sometimes,one brother of a family was executed while another wastransferred for
exchange. In short, prisoners had noarantee that they would stayalive.
2788. An ex-guard reports that the small-scale executions took placeon the camp grounds. Male
prisoners were generally linedup against anectricitypylon just outsidethe barracks and shot.
The largerones were carried out at a nearby ravine called Han PloEaon the road toward Han
Pijesak. Men were loaded intothe back of a truck, taken up to the edge of the ravine about five
miles away, andthen shot as they got out of the vehicle. Apparently, groupsof young soldiers were
brought in to perform the executions. The bodies fell intothe ravine and bulldozers were later used
to cover them up.
2789. An ex-guard personally witnessedthe mass execution o25 people at the ravine. He claims
that on this occasion one of the prisoners got away by mming to the woods once he got of the
truck. In all, at lest 1,000 prisoners were executed at theravine. At first, the killings took place
during the day but later were carried out only at nig[ibid.,p. 334, paras. 2785-27891.
Most of the 3,000 (three thousand) Muslims massacredin SuSicawere men. Women,
however, were also killed [ibid., p. 335,para. 27961.
407. As mentionedabove,the commanderof the SuSicacamp, DraganNikoliC,was
indictedby the ICTFY.NikoliC7sIndictrnent, whichwas reviewedby the Trial
Chamberon 20 October 1995, consistsof 24 counts.Thesecountsincludethe torture
and killing of prisoners.NikoliCwas, for example,indictedfor the murder of Durmo
HandZiCand Azim ZildZiC:
"6. A nurnber of witness statements, both written and oral, of persons detained in SuSicacamp
reported the murder of Durmo HandZiCand Asim ZildZiC.Those testimonies indicate that,
allegedly, onevening in June 1992, Dragan NikoliCand some camp guards approachedthe hangar
and called out Durmo HandZiCand Asim ZildZiC.Shortly after leavingthe hangar, these two men
were subjectedto senous physical assaultsfor more tha45 minutes by Dragan NikoliCand the
guards. They were punched and kicked andstruck with truncheons and rifle butts. Some pnsoners
actually witnessed parts ofese assaults and others heardthe victims cry out, scream, moan and
beg for and end to their torture. DurmondZiCand Asim ZildZiCwere then brought back intothe Chapter5 -Section5
Camps
hangar. Accordingto the eyewitness testimony of other prisoners, their bodies were covered with
bruises and their clotheswere soiled and tom. Azim Zild2iChad been beatenso violently that his
face was unrecognizable and one eye had come out of its socket. He died shortly after having been
brought back. DraganNikoliCordered his bodyto ben away and two prisoners, Hasirn and
Alija FerhatoviC,to bus, it.
Dragan NikoliCcame into the hangart moming and approachedDurmo Hand2iC.The latter was
suffering intenselyfiom [the] beating the night before and DraganNikoliCprohibited prisoners
fiom helpingim. Durmo HandZiCthereupon begged DraganNikoliCto kill him to put an end to
his suffering. DraganNikoliCanswered that a bullet wasore than Durmo HandZiClife, that
it would be wastedon him and that he shouid suffer before dyinHandZiCdied shortly
afterwards. He was buried the day by Hasim and Alija ~erhatovi[ICTFY,Trial
Chamber, Reviewof the IndictrnentPursuantto Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. Dragan NikoliC,CaseNo. IT-94-2-R61,
20 Oct. 1995, pp. 3-4, para. 61.
After having reviewedthe Indictment,the Trial Chamberinvitedthe Prosecutorto
pursue his investigation"with a view to indicting DraganNikoliCfor complicityin
genocideor acts of genocide [ibid, p. 20, para. 341.
408. During its existence, United Nationsobserversand the ICRC managedto visit the
SuSicacamp. In its Report, the Commissionof Experts explainedhow the Serb
guards succeeded in misleadingthe international visitors:
"~ometime in July 1992,tUN apparently arranged a visitto SuSicaCamp, but the prisoners
were taken into the woods and forcedto lie down for three hourUNunhad left. A French
Red Crossteam turned up at the camp unexpectedly, and a young Musiimboy in the camp who
could speak French told them thatit was a detention facility. The RedCross did not do anything
and shortiy thereafterthe boy was ki[United Nations,Final Report of the United
Nations Commissionof Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps", p.335, para. 27991.
409. When SuSica was closed in the autumn of 1992,the decisionwas taken to execute
the two hundred survivingprisonersof the camp [United Nations,Final Report of
the Cnited.VationsCommissionof Experts, Sl1994/674/Add.2(Vol. 1),28 Dec.
1994, Annex IV, "ThePolicy of Ethnic Cleansing",pp. 31-32,para. 1661.
410. The bodies of the Muslimskilled in the camp were buried in the Han PloCaravine or
on a waste landat a nearby aluminiumfactory [ibid.,p. 335, para. 27901.The
MraEnicaQuarry, two kilometresfiom Vlasenica,has also been mentionedas the site
of a mass grave for victims of the SuSicacamp [UnitedNations, Final Report of the
UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. V), 28 Dec. 1994,
Annex X, "MassGraves",p. 50, para. 3341.Reply of Bosniaand Herzegovina
Foc'a KP Dom
411. FoCais atown located somesixty kilometresto the southeastof Sarajevo and the
FoEaarea borders the Federal Republicof Yugoslavia onits western border.
In FoCaas elsewhere,mistreatment of theciviliannon-Serb population held
particular consequencesfor women,who were imprisonedin variousrape camps in
the area. The Prosecutorat the ICTFY in The Hague indicted a group of Serbs for
their involvementin these campsand in numerousacts of rape [ICTFY,Indictments,
TheProsecutor v.Dragan Gagovii & others, CaseNo. IT-96-23-1,26 June 19961.
The FoCaKazneno-popravniDom (KP Dom) was nota rape camp, however,as it
was mainly used to irnprisonnon-Serb men.WhileMuslimwomen, children and the
elderly were generally detainedinuses,apartrnentsand motels in the town of FoEa
or in surroundingvillages,the men wereusually separated andtaken to KP Dom.
This selectionprocess was describedin the Indictment[ibid.,p.paras. 1.1-1.51. Chapter5-Section5
Camps
413. The camp at the KP Dom wasextensively portrayedby the Commissionof Experts
[United Nations,Final Reportof the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,AnnexVIII, "PrisonCamps",pp. 128-
132,paras. 1048-10781.The Commissiondisplayedthe way in which the former
prison facility wastumed into a torture and killingcentre for non-Serbcivilians.
414. Before the outbreakof the conflictin Bosniaand Herzegovina, theKP Dom usedto
be one of the largestprison facilitiesin the former Yugoslavia,with a 2,000 inrnate
capacity. Onor about 1 April 1992,FoCaprison guards set an unknown number of
inmatesfiee, most probablyin orderto make roomfor new non-Serb prisonersto be
ethnicallycleansedfrom the surroundingareas.Accordingto the reports receivedby
the Commissionof Experts, al1but twenty of the originalinmates left the prison
compound [ibid.,p. 128,para. 10481.In early April,the Muslim guards of the prison
were al1dismissed.At the sametirne,the emblemon the cap worn by the prison
guards was changedfrom a red starinto the Serbianflag [ibidem,p. 128, para.
10491.
415. Accordingto the Commission of Experts, the KP Dom consisted oftwo four storey
buildings and one L-shaped one storey building.l1three buildingswere surrounded
by two walls. One of thebuildingswas used for the interrogationof prisoners and
for the administrationof the camp [ibid.,pp. 128-129,para.0501.The number of
prisoners in the camp fluctuated,but decreaseds the ethniccleansingof the area
progressed.In early August 1992,when the area was still being cleansed,the camp
held an estimateof 570 inmates.Reply ofBosniaand Herzegovina
416. Upon their arrival at the camp, the non-Serb prisoners wouldbe "interrogated"and
subjectedto beatings. Thebeatingswere, accordingto the view of the Commission
of Experts, part of the daily routine. TheCommission basedthis conclusion,arnong
other sources,on reports received from HelsinkiWatch:
"1064. Helsinki Watch includethe storyof another alleged prisonerof Serb forces inFoEa.He
reported that detaineeswere beaten inthe prison.This individual claims thate interrogated
were alsothreatened.He Statesthat for three anda half monthshe was held inone room. The
number of prisonersin that room, he stated,duallyincreased from about 30to 75. Accordingto
this man,a police officer would cometo the room inthe eveningand read out thenamesof some
men who wouldthen be taken fiom the room and beaten. Althoughhe was not beaten, heclaims
that some werebeaten severely.Some men who weretaken out reportedlyneverretumed." [ibid.,
p. 130, para. 10641.
(...>
osni ni Serbs capturedhim [a Muslim school teacher] and intemhim inthe men'sprison fiom
May to December 1992, whenhe was releasedin a prisoner exchange. Between12June and 20
June 1992,at least five or six prisoners weretaken nightlyfromtheir cellsand interrogatedin the
administration building opposthe detention building. Prisoners cseetheir fellowinmates
taken intothe two interrogation roomson the ground floor of the administration building opposite
and were ableto see individualsfiom the waist up through windows looking into theooms.
Two prisonerswere taken intothe interrogation rooms while theotherswaitedoutsideunder guard.
Prisoners in the detention building heardscreamsfor 20 minutes,after which a second pairof
prisoners were brought into two rooms." [ibid.,p. 130,para. 10661.
The interrogationsof the prisoners in the campdid not serve anyinvestigative
purpose. At times, even the guards did not know what they were supposedto ask the
persons being interrogated [ibid., p. 129,para. 10581.Whenever theinmates were
questioned,however, theinterrogatorswanted the prisonersto relate thenames of
people who allegedly possessedweaponsand the identityof membersof the Party
for Democratic Action (SDA) [ibid.,p. 131,para. 10741.
417. The beatings during the so-calledinterrogationsof the prisoners were also reported
by the United States Departmentof State:
"A 59-year-oldBosnian Muslim fromFoEawas at homeon April 27, 1992,whenSerbian special
forcesentered his home and forcedhim and his sonto gooutside. Thesoldierswore camoujlage
ungorms and blackheadbanrisand were completestrangersto him.Heassumes they came j?om
SerbiabecausetheyspokeintheEkovskidialect.
The witness, his son, and18other men fiom the neighborhoodwere taken by busesto the local KP
Dom, a criminalrehabilitationcenter near the railwaybridge onthe Drina River. Accordingto the
witness,560 Muslirnmen, al1fiom the greater FoEaarea,were intemed aKP Dom. The Serbs
runningthe campkept written records andbiographiefiles onal1those intemed. Interrogations
focused primarilyon uncoveringwhich Muslimsintown had weapons.
Those runningthe center instilledfear in the Muslim prisoners by secertainprisoners for
beatings. Fromhis windowin Room 13,the witnesssawprisoners regularly beingtaken to a Chapter 5 -Section 5
Camps
building where beatings were conducted. This buildingwas close enoughfor him to hear the
screams ofthose who were being beaten.
The witnesssaid about four menwere beaten almostevery night between midnight and 1 am. From
his window in Room 13,he saw prisoners, covered with blood, leavingthe building. The witness
remained at KP Dom until his release on August29, 1992."
[US Departmentof State, Bureauof Public Affairs, Dispatch, 19April 1993,
Vol. 4, No. 16,p. 262, emphasis added, Annex 191.
418. The KP Dom camp was mainly used to detainmen. Sometimes however, women
were also imprisoned.They were not treated any better than their male counterparts,
as was related by the United States Departmentof State:
"A 43-year-old Bosnian Muslimfiom FoEawas in Sokuvac on April 18,1992, when she witnessed
Serbs setting fire tothe homes 500 metresbelow her mother's home.
The witness was arrested at thee time by these men who shouted at her, 'Do youknow who
we are? We are Cetniks!' They wore stockings over theirfaces toeal their identity.
The soldiers brought the witnessto KP Dom, a detention facility, to be interrogated. Followingthe
interrogation, she was beaten with a rifle buttand bled fiom her ears andShe then was
thrown into ace11where she was the only woman. A half an hour later, a Muslim man,who had
been wounded by a bullet and beaten on thehead, was thrown intothee cell.
Two other prisonerscame into the cell; one vomiting blood, theother barely recognizable
because of his beating. The witnesssaid the guards threatenedto cut her up and throwher into the
Drina river. She was also forced to hand over her wedding ring when aSerb fighter threatened to
cut off her finger. The witness eventually was released and put on a convoyos nia."[US
Department of State, Bureauof PublicAffairs, Dispatch, 19April 1993, Vol.
4, No. 16,pp. 262-263, Annex 191.
The women detained in KP Dom were also rapedwhile in the camp [UnitedNations,
Final Report of the United NationsCommissionof Experts, S/1994/674/Add.2(Vol.
IV), 28 Dec. 1994, Annex VIII, "PrisonCamps",p. 131, para. 10721.
419. After being taken away for "interrogation",many prisoners in the camp were never
heard from again:
"1053 Approximately 200 inrnateswere taken fiom the prison for unknown reasons in late August,
most inmates believed they were killedby the guards.Thirty-five prisonerswere taken away on 15
September and 12more at the end of theame month, allegedly for a prisoner exchange. Prisoners
releasedsince that time failed to locate any of these men. Prisonerson the fourth floor observed
guards canying blankets containingwhat seemedto be human bodies and dumping them inthe
Drina river."[ibid., p. 129, para. 10531.
Partly as a result of the killing, the number of inrnatesdecreasedfiom 570 in early
August 1992,to 130 two months later [ibid.].ReplyofBosnia andHerzegovina
420. The bodies of the prisoners whichwere thrown into the Drina washedashore in
Gorazde,which remainedunder the control of the Bosniangovernmentuntil the end
of the conflict:
"1071. Several witnessesdescribebodiesdumped into the Drina River and washingup on the
shores oforaZde,many, former inmatesof the KP Dom. Corpseswhich are believedto be those
of Muslims executedin FoEaprison campwere seen daily in the River Drina atGora2de.Amongst
them were children asyoung as seven.Corpseswere frequentlymutilated andcarried signsof
torture. There were seven to eightcorpsesa day as late as end of July 1992, althoughSerbs
claimedFoEa [was] ethnicallyclea[ibid.,p. 131,para. 10711.
Whenreviewingthe IndictmentsagainstRadovanKaradZiCand RatkoMladiC,the
Trial Chamberat the ICTFY found thatthe remainsof the victims of the campwere
routinely thrown into theDrina river [ICTFY,Trial Chamber,Review ofthe
Indictment Pursuantto Rule 61 of the Rules of Procedure and Evidence,Prosecutor
v. Radovan KaradZiC& RatkoMladiC,CaseNo. IT-95-SR61 & IT-95-18-R61,11
July 1996,p. 7, para. 131.
421. Not al1killed prisonerswere thrownin the river Drina. Some were also buried in
nearby mass graves.The United StatesDepartmentof Staterelated the story of a
Muslim womanwho witnessedthe regular executionsof KP Dom inmatesin July
1992:
"A 40-year-old Muslim womanwitnessedthe killingof FoEaMuslimsin earlyJuly 1992.
One nightat9 pm, the witnesssaw Serbsleading a groupof seven peopleup to the 'Tito' sign on
a hi11overlookingFoEa.She said (that) the group wasdriven upthe hi11in a yellow mini-van.The
group includedezir Hatibovic, a dentist,and his wife,Majda. She saw the Serbsmakethe group
strip, take their money andidentificationcards, and murderthem with knives. The bodies were
thrown into the DrinaRiver.
During the next 4 to 5 days,the witness sawthe sameyellowmini-vanbringingpeople tothe sarne
site where they were slaughteredin the samefashion. She saw some bodiesthrown in the Drina,
and others thrown intotnicks that were driven away.
The witnessaidthe van camefiom the directionof the men'sprison at the KP Dom and she
suspected (that) the victimswereprisonersfrom that camp. She believes thereis a mass grave
under the 'Tito' sign,andtwo or three massgraves near theoutdoorstadiumiEUSoEa."
Departmentof State, Bureauof Public Affairs,Dispatch, 19April 1993, Vol.
4, No. 16, p.258, Annex 191.
Blueprint
422. Thevarious camps singled outaboveexpose a precisepattern. As explainedat the
beginningof this Section,this pattern was describedin detail by both the ICTFY and
the Commissionof Experts. Accordingto the Commissionof Experts,this pattern Chapter5 -Section 6
Zvornik
also revealedan underlyingblueprint,an "overallplan", in which Yugoslavarmed
forces and paramilitaryfiom Serbiaand Montenegro proper playeda cardinalrole:
"31. The Bosnian Serb implementationof practically identical strategies andtactics for the
conquest of temtories and subsequent detentionof non-Serb populations suggest an overall plan
devised pnor to the conflict and carried outlocally. There seemsto be a similarity in the structure
of camps which might suggest a degree of pre-planning before the warwas started. The notion of
clusters of camps, triage camps, distribution camps,er persons and women and childrenheld in
established minimum security facilities, and menof fighting age held in established maximum
security facilities, suggests a plan. The similaritiesof the allegationsof camp usage also
strongly suggeststhat a plan did exist andwas carried out across theboardgraphically. Reports
suggest a common methodof initial apprehension and identificationofhose non-Serbs detainedfor
ultimate disposition (either long-term detention, deporta, r execution).common plan isalso
suggested by the implementationof a system whereby prisoners were detained, classified, and
subjected tosimilar types of abuse (e.g., it was ofien reported that intellectuals,politicians, police,
and the wealthy were regularly tortured and killed in certain camps). Thereis also a similarity in
the command and controlof the camps, whereby there was amix of civilian, political,A,
paramilitary, and local Serb reservists and civilians involvedin camp operations. With regardto
practical aspectsof camp operation, largeitable facilities appearto have been selectedand
prepared, to some extent, indvance. Whether a planwas establishedby the military, police, or
politicians, is something that could notbe ascertained.
32. The method by which the campaign of 'ethnic cleansing' was carried out ensured that,
comparatively, the mostbmtal and inhumanetreatment of those detained occurred withinthe
geographic arc following the Sava and Drina Rivers of the former Yugoslavia.See examples,
camps in Prijedor,ViSegrad,Zvomik, BrEkoand FoEa,and Bijeljina. For, it is within thisregion of
BiH that the Serbs required absolute control in order to establish a separate nation with contiguous
borders and an uncompromised geographic link with Serbia and MontenegroT . hat control required
the subjugation, if not the disappearanceof the non-Serb populations ofthea. In large part,that
subjugation and eiimination was accomplishedby wholesale detention of those populations in
various places of detention.[United Nations,Final Report of the Commissionof
Experts, Sl19941674lAdd.2(Vol.IV),28 December 1994,AnnexVIII, "prison
Camps",p. 12, paras.31-32].
Withoutthis "overallplan" it would not have been possibleto set up the intricate
network of campswithin days after the outbreakof the fighting.The plan as
describedby the Commission ofExperts was in fact the sublimationof the Greater
Serbia ideology. Thecamps werean importantand necessarylink in the policy of
ethnicpurification.
6. Zvornik
Introduction
423. The eventsthat transpiredin Zvomik in April and May 1992illustratehow the
Muslimpopulation waserased fiom easternBosnia and Herzegovinain the early partReply of Bosniaand Herzegovina
of the armed conflict. In April and May 1992,five centuriesof Muslim life and
culture in Zvornik were eradicated.Beforethe attackson the area of Zvornik,a
majority of the inhabitants(48,173,or 59 %) were Muslims.In August 1996,only
100 Muslims lived in Zvornik.They wereoutnumberedby almost 70,000 Bosnian
Serbs: "theethnicity of the populationis now almostexclusivelyBosnian Serb"
["Bosnia and Herzegovina. Repatriation Information ReportsU",NHCR,Aug. 1996,
pp. 84, 871.Many Muslims werekilled. Many more Muslimswere subjectedto acts
that caused seriousbodily and mentalhm, includingtorture and rape. More than
40,000 Muslims fledZvornik. They nowlive in Tuzla,elsewherein the Federation
or inthird countries [ibid.,p. 871.Others have disappeared. Peoplewho disappeared
in Zvornik were part of the between 2,500and 3,000 personsthat accordingto the
ICRC disappearedin easternBosniaand Herzegovinain May andJune 1992vnited
Nations, Specialprocess on missingpersons in the territory of theformer Yugoslavia,
Report submittedby Mr, Manfied Nowak,expertmemberof the WorkingGroup on
Enforced or Involuntary Disappearances, ElCN.4119971551 , 2Jan. 1995,p. 29, para.
1001.
424. Thekillings, torture, rape and expulsion ofMuslimsin and around Zvornik have
been chronicledin an in-depthstudyby the Ludwig BoltzmannInstituteof Human
Rights [HannesTretter e.a., '"Ethniccleansingoperations'in the Northeast-Bosnian
City of Zvornik from April throughJune 1992",Ludwig BoltzmannInstitute of
Human Rights, 1994,Annex481.A largenumber of intensive,preparatoryinterviews
and 31 in-depth interviewswith expelleesfrom Zvornik were conducted forthe
purpose of this study. The strengthof its methodologymakes it a reliable sourceof
factual information.This studywas found credibleand was relied on by the United
Nations Commissionof Expertsand annexedto its Final Report[UnitedNations,
Final Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
1),28 Dec. 1994, Annex IV, "The Policy of EthnicCleansing"].The Commission of
Experts also provided otherevidence for the factsdetailedbelow. Chapter 5-Section 6
Zvornik
A brief history of thefa11of Zvornik
425. Zvornik is a town in the eastern partof Bosniaand Herzegovina.It is situated
directly at the river Drina, which formsthe border between Bosnia andHerzegovina
and Serbia. Zvornik town was inhabitedin 1991by around 14,000people. The town
of Zvornik is part of thedistrict of Zvornik.In 1991,the district of Zvornik had a
population of 81,111. 48,173 of the inhabitants were Muslim, 30,822 werS eerb
["Bosniaand Herzegovina. Repatriation InformationReports", UNHCR,Aug. 1996,
pp. 84, 871.
426. Zvornik was one of the toms that was attackedin the wave of violence in eastern
Bosnia and Herzegovinain April 1992.The evidence demonstratesthat the attackon
Zvornik and the followingexpulsionof its Muslimpopulationwas carefullyplanned.
Around the turn of the year 199111992,troops of the JNA were for the first time
assembled in the region of Zvornik [HannesTretter e.a., "'Ethniccleansing
operations' in the northeast-BosnianCity of Zvornik fiom April through June 1992",
Ludwig BoltzmannInstituteof HumanRights, 1994,p. 7, p. 18,Annex 481.Official
maps of theMA show that until then, there had not been an official ganison in the
district of Zvornik.New JNA troops were also stationedon the Serbianside of the
Drina river, suppliedwith tanks, artilleryand anti-aircrafiweapons [ibid., p. 71.
About two to three monthspnor to the attack,military exercises in the vicinityof
Zvornik were conducted. They were organised by the JNA and only Serbs were
invited [ibid., p. 181.In the sarneperiod,the JNA initiated the distributionof arms
amongthe Serb population [ibid.,p. 18; see also Reply, Chapter8, Section21.Reply of Bosnia and Herzegovina
In late March 1992, paramilitaryunits ledby VojislavSe~eljinformedthe Muslim
residents that theyhad ten daysduring whichto turn in their weapons [United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,AnnexIII.A, "Special Forces",p. 166,
para.5671.On April 4, 1992, Serbs erecteda barricade toseparatethe tom fiom the
industrialarea of Karakaj,north of Zvornik [HannesTretter e.a., "'Ethniccleansing
operations'in the northeast-Bosnian Cityof Zvoniik from April through June1992",
LudwigBoltzmannInstitute of HumanRights, 1994,p. 19, Annex481.Two days
later, Serbmembers of the police force vacated thepolice headquartersin Zvornik,
taking with them weapons and equipmentand movingthem to the Karakajindustrial
area [ibid.,p. 201.On 7 April 1992, oneday beforethe attack, BelgradeTV claimed
that an attack by "Muslim extremists"was imminent[ibid.].The Respondenthas not
producedany evidence thatmakes lends credibilityto the claim that such an attack
was indeedabout to occur. The factthat at the tirneof the attackby the Serb forces,
the Muslimpopulation couldnot and didnot defenditself makesit most unlikely
that Muslimsindeed had preparedtheir own attack.In any case, if a plan for an
attack had in fact existed,which,again, is highlyunlikely,this would in no way
justie the facts that are detailedbelow.
428. On 8 April 1992,Zvornik was attacked.Units fiom the JNA andparamilitaries
shelledZvornik fiom the Serbianside of the Drina. According toseveralwitnesses,
destruction causedby artillery and tank fire was rather insignificant:"The aimwas
not to destroythe town, butto forestallal1potential resistanceactivitiesand to
frighten and terrorise the inhabitants"[ibid.,p.1.On 9 April 1992, Arkan,
commanderof the paramilitaryunit known as "Arkan Tigers",issuedan ultimatumto
the Muslimsof Zvoniik to hand over weapons andto surrender.Whenthey failed to
do so, Arkan'sparamilitary groupmoved into Zvornik. Infantryunits of the JNA and
other paramilitary troopsfiom Serbiaproper (the Se~eljevciled by Vojislav Se~elj
and MirkoJoviC'sWhiteEagles) followed [ibid. , pp. 21-22].Zvornik fell on 11
April 1992 paura Silber and AllanLittle, TheDeath of Yugoslavia,Revisededition,
London 1996, pp. 222-223, Annex 211.After Zvornikhad beentaken, some Muslims
continuedto offer resistancefrom the fortressof Kulagrad,situatedin the north of
Zvornik. The fortress was conqueredon 26 April 1992,in a concertedattackby JNA
troops and paramilitaryunits relying on JNA air support [HannesTretter e.a.,
"'Ethniccleansing operations'in the northeast-BosnianCity ofZvornik from April
through June 1992",LudwigBoltzmannInstituteof HumanRights, 1994,p. 20,
Annex 481.After the fa11of Kulagrad, the town ofDiviCwas attacked.DiviCwas
alrnostexclusively inhabitedby Muslims[UnitedNations,Final Report of the United Chapter5 -Section 6
Zvornik
Nations Commissionof Experts, Sl19941674lAdd.2(Vol.N), 28 Dec. 1994,Annex
VIII, "Prisoncamps", p. 47, para. 3421.It was occupied bythe JNA on 26 April
1992 [HannesTretter e.a., "'Ethniccleansingoperations' in thenortheast-Bosnian
City of Zvornik fiom Apnl through June 1992",Ludwig BoltzmannInstitute of
Human Rights, 1994,p. 23, Annex 481.
429. After the attack on Zvomik, severalthousand Muslims fledeither acrossone of the
bridges over the Drina to Mali Zvornik (located in Serbia)or via Kulagradto Tuzla.
Jose Maria Mendiluce,UNHCR'smost senior official in the region, who had
happened topass through Zvomik at the time of the attack, reported that he found
many refugees in a narrow valley:
"~hen 1amved in the car1was surroundedby 1000people.Theywere al1over me, begging
'Save us! Saveus!' with suchdespairthat1 stayedtherefor anhourWng to calmthemdown.
Therewere lots of deadpeople,woundedchildrenon thefloor lookingte-absolutely
temfied- andwe couldhearthe soundof mortarfire approachi[Cited in Laura Silber
and Allan Little, TheDeath of Yugoslavia,Revised edition, London 1996, p.
223, Annex 211.
430. Those who stayed behindbecame the target of a policy of terrorisation by
pararnilitarygroups [HannesTretter e.a., "Ethnic cleansingoperations' in the
northeast-Bosnian Cityof Zvornik fiom Apnl through June 199211L ,udwig
BoltzmannInstitute of Human Rights, 1994,p. 25, Annex 481.Some of those who
had fled returned after a few weeks, faced with the threat that their property would
be takenaway [see Mer below]. In the months that followed,the Muslim
populationof Zvomik was erasedby a combinationof forced relocation,i-
mprisonrnent andkillings, accompanied byterrorisation,torture and rape. Thedeeds
by whichthe ethnic cleansingwas effectuatedare detailedbelow.
431. It is evidencedby the facts set out below thatwhile before the war 29% ofthe
population wasSerb, only the Muslimswere targeted bythe attack on Zvornik. This
was foreshadowed bythe fact that the Serb populationof Zvornik had been infonned
about the imminent attack. Atthe time of the attack, "theoverwhelmingpart of Serb
families(...) had left the city for theweekend" [ibid.,p. 19, Annex 481. That it was
the Muslimswho were targeted by the attack onZvomik became fully manifest
when in May and Juneof the same year, mostof the remaining Muslim population
was deported [ibid., p. 29, Annex 481.In view of the facts detailed below,there can
thereforebe no doubt that the Serb activitieswere an attempt to erase the Muslims,
as a group, fkomeastern Bosnia and Herzegovina.Reply ofBosniaand Herzegovina
Killings
432. The attack on Zvornik was part of a sequence offightingthat started on 1 April
1992in north-easternBosnia and Herzegovinaand spread towardthe south [Jan
Willem Honig and Norbert Both, Srebrenica:Record of a War Crime, London, 1996,
pp. 72-73, Annex 491.In this gulf of violence,"upto 40,000 peopleare believedto
have been killed" [UnitedNations,Specialprocess on missingpersons in the
territory of theformer Yugoslavia,Reportsubmitted by mr. Manped Nowak;member
of theWorkingGroup on Enforcedor InvoluntaryDisappearances,E/CN.4/1995/37,
12 Jan. 1995,p. 13,para. 361.
433. Exactly howmany of these 40,000 personswere inhabitantsof Zvornikis not
known. Numbers that are cited by authoritativesourcesdiffer. The Commission of
Experts states that "2,500men were killed on9 and 10 April 19921"[United
Nations, Final Report of the UnitedNationsCommissionof Experts,
S/1994/674/Add.2(Vol.V), 28 Dec. 1994,Annex X, "MassGraves",p. 56-57, para.
3871.Elsewhere,the Commissionof Expertscites a reportthat states that some
1,000 Muslimswere killed in the attackat Zvornik[ibid., (Vol. IV),28 Dec. 1994,
Annex VIII, "Prisoncamps", p.342, para. 28531.
434. The Commissionof Expertsalso reports that"twohundredhouseswere burned, and
76 people were killed",but it must be inferredfiom the othernumbers cited by the
Commission that this concerneda specific, yetunspecified,incidentduring the first
days of the occupation of Zvornik [ibid.,(Vol.V), 28 Dec. 1994, AnnexX, "Mass
graves",p. 57-58, para.3871.
435. Some Muslimswere killedwhen, after the town was taken, paramilitarytroops
conducted ahouse-to-housesearchfor Muslimmen. A witnessreportedto Amnesty
International thatrkan'smen roundedup a group of residentson 10April:
"Theyweretakenoutintotheorchard adorcedto liedown.Therewer15captivesin total,nine
womenandsix men.Themen werekilled,andthe women were lockin the cellarof a house.
Afterthreedays, peoplefioma nearbyvillagediscoverwomen."[ibid, (Vol. I), 28
Dec. 1994, Annex III.A, "SpecialForces",para. 5781.
436. Mazowieckireports what maybe the same incidentas follows:
"aSerbwoman,herMuslimhusbandandseveralneighbourswereforcedto lie downintheir
orchardby agroupo30 SerbparamilitarT.hewoman'shusbandt,wo eldersonsandthree Chapter5-Section 6
Zvornik
neighbours werethen allegedly strangledby the Serb[UnitedNations, Situationof
HumanRightsin the territoryof theformer Yugoslavia,Report submitted by
Mr. TadeuszMazowiecki,SpecialRapporteurof the CommissiononHuman
Rights,E/CN.4/1993/50,10Feb. 1993,pp. 9-10, para.341.
437. On 18 May 1992,shootingin Zvornikresumed.This forced mostremainingMuslims
to flee to other villagesor to the woods at the edge of the village. The Commission
of Experts reportsthat some of those who fled returned, followingSerbian
instructions [seeMer below]. The Commissionreports that "The menwho
returned were shot in frontof their families."[ibid.,para. 5851.
438. Many Muslimsfiom Zvornik were killedafter they wereimprisonedin camps or
other locations. TheCommissionof Experts has identified oneof those locationsat
the cinema in celopek. The Commissionreports severalinstancesof torture and
killings at ~s location.In one incident,two men were "brutallybeaten and then
stabbed" [UnitedNations,FinalReportof the United Nations Commission of
Experts, S/1994/674/Add.2(Vol. IV),28 Dec. 1994,Annex VIII, "PrisonCamps",p.
346, para. 28841.In anotherincident,
"a youngboy was madeto identifi his Mer, after which,a Serb soldier,put a rifle in the boy's
mouth and killed him as his kther looked on.This sarne Serb soldierthen turned his semi-
automaticrifle ont0those on stage and those seatedin the audience.This behaviour resultedin the
death of0 men." [ibid.,p. 346, para.28851.Reply of BosniaandHenegovina
439. In May 1992, Serbian forcesmoved into the Zvornikvillage of DjuliCi,killing 60
residents [ibid., (Vol. 1),28 Dec. 1994,Annex III.A,"Special Forces",p. 169, para.
5881.
440. Strong evidence of massive killings in Zvomik is provided bythe reports of Jose
Maria Mendiluce, senior officia1of the UNHCR.While he was in Zvomik at the
tirne the town was attacked,he witnessed the massacresand reported as follows:
"1could see trucks full of dead bodies. 1could see militiamen taking more corpses of children,
women and old people from their houses and putting them on trucks. 1saw at least four or five
trucks full of corpses. When 1anived the cleansinghad been done. There were no people, no one
on the streets. It wasfinished. They were looting, cleaning up the city after the massacre."
[Laura Silber and Allan Little, TheDeath of Yugoslavia,Revised edition,
London 1996,p. 223, Annex 211.
441. Reportsof killings were corroboratedby findingsof bodies. The Commissionof
Experts reports that
an^ Muslims killed in the siege of Zvomik were later found floating in the Drina River. Some
of the bodies had their throats cut and black Muslimberets nailed to their[United"
Nations, Final Reportof the United NationsCommission ofExperts,Sl1994-
1674lAdd.2(Vol. V), 28Dec. 1994, AnnexX, "MassGraves",p. 57/58, para.
3871.
442. Further evidence of killings is provided by findings of mass graves.While not al1
bodies in al1graves can be traced to killings in Zvomik, they are evidence of the
widespreadkilling in the region. Findingsof the Commissionof Experts include the
following:
Kazambdi Cemetery: "The KazambaSiCemetery is just outside of Zvomik proper, approximately
two kilometres north-east of the city. The site is on the north-west side of the road that branches
offWestto Tuzla and north-east to Belgrade. It is believed to be a Muslim cemetery. In mid-April
1992, Serbian forcesegan using a bulldozer in the cemetery to dig larg..Afier the pits were
excavated, buses and trucksnived at the site up to three times peOn&ysome days, no bodies
were dumped, but a bulldozeroperator was always on site.
The excavation and burial at the cemetery was witnessed by several people. Residents of Little
Zvomik (on the Serbian side of the Drina River) observedthe digging of the graves and bodies
being dumped into them asearly as April. Another report noted that 600 Muslims,who had been
detained at theelopek and DiviCcamps, were killed, loaded ont0 trucks by Muslim and Croatian
prisoners, and taken to the cemetery for buOna26 May, seven boys, whowere detained in the
Karakaj district, were walking past the cemetery with a 'CeOnithat &te, they observed
approximately 600 bodies being dumped into the pits from trucks. The boysibed the
gravesitesas being onboth sides of a road trannorth-west through the cemetery and about 100 Chapter5 -Section 6
Zvornik
metres from the main road." [ibid., (Vol. 1),28 Dec. 1994,Annex X, "MassGraves",
p. 58, paras. 388-3891.
Ravnaie Stone Quany: "The Ravnaje rock quany is located three kilometres east of Zvomik, near
theHotel Drina, in Serbia. Muslimsfiom Zvomik reported seeing a convoy of refrigerator trucks
driving on a road which leads to Ravnaje. The trucks had been loaded with the bodies of 60
prisoners, who had been shot and killed at the loading dock of the Karakaj camp slaughterhouse.A
prisoner who had been one of those shot survived, watched the loading of the trucks, and was able
to escapeto Bosnian Muslim held territory. He joined the Muslim Defence Forces and viewed the
convoy of trucks during his service with the organization. Another resident of Zvomik, who is now
a reiügee, also stated that she had heard of burials occumng in the grave1pits below the Drina
River from Celopek." [ibid. p. 58, para. 3911.
Snagovo. 'Cmi Ves': "Snagovois a village in Zvomik county, eight kilometres fiom Zvomik
proper. Itis situated along the road that leads from Zvomik to Pale and Sarajevo. A former captain
with the Yugoslav Temtonal Defence stated that in April and May 1992, at least 500 people were
buried in a mass grave at Cmi Ves, which is near the village of Snagovo."bid., p. 59, para.
3941.
Snaaovo: "On 1 May 1992, Serb troops in the village of Snagovo killed42 civilians, including a
pregnant woman and a two year-old child. The bodies were transported to a truck garage, placed
inside, and the building was set on fire. The remains were taken to bulldozers and taken to an
unidentified mass grave."[ibid.,p. 59, para. 3951.
Grbavci Cemetery: "Grbavci is located two kilometres from Zvomik. On 18 May 1992, Serb
militiamen surrounded the village and began shooting. Residents began to flee. Many of the male
villagers were rounded up, put into a line, and upon ander to 'kill the UstaSay,were shot at with
automatic weapons. At least 56 men were killed. Three days later, some of the villagers retumed
from their hiding places and buried the victims on the edge of the cemetery, between rows of
houses, near the spot where they died.[ibid., para. 3961.
As will be further detailed below, deportationsfiom Zvornik continuedthrough May
and June. There is evidence that alsoduring this later period, killings continued:
\'~dakovaNiiva Suburb: "VidakovaNjiva, a suburb, is just south of Zvomik proper. The alleged
gravesite 1slocated ona 1.5 kilometre stretch of land alongthe Westside of the Drina River. A
formercsptainwith the Yugoslav Territorial Defence statedthat from 9 June to 5 August 1992,
becn two and seven dump trucks came at night to this location and dumped corpses in trenches
thathad been excavated by a bulldozer during the day. It was estimated that at least 2,000 to 3,000
bodies wm buried in this area." [ibid., para. 3921.
443. There is thus strong evidence that during and followingthe attack on Zvomik,
substantialnumbers of Muslimswere killed. As noted above, the Commissionof
Experts estirnated that about2,500 non-Serbs werekilled on 9 and 10 April 1992
alone [UnitedNations, Final Report of the UnitedNations Commissionof Experts,Reply ofBosniaand Herzegovina
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,AnnexX, "MassGraves",p. 58, para.
3871.
Rape and sexual assault
444. There is compelling evidence thatduringand following theattack on Zvornik a large
nurnberof women, andalso some men, were subjectedto rape andother formsof
sexualassault. The Commission ofExpertscompiled35 reports of rape in the area.
The incidents reportedby the Commission include the following.
"1nMay of 1992,Serb forces aîtacked the area of Zvornik.In conjunctionwith the attack,women
in the villages oftijarevoand DrinjaEawere allegedlyraped after 25 to 35 men were killed in
fighting.Another reportstatesthat12year old girl was raped andstrangledin SalihoviEi,
Zvornik... nother report, whichmay be describing the sarne inc,tatesthat an identified Serb
soldier kidnappeda16 year-old girl, took her to Papraca,and kept heras his sexual slave."
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
SI19941674lAdd.2(Vol. V), 28 Dec. 1994,AnnexIX, "Rapeand sexual
assault,p. 54, para. 2601.
445. Most ofthe reported casesof rape took placein the campsin whichMuslims were
detained:
"1nMay 1992,nearly 400 residents were reportedlyheld in the home of a prominent Muslimby
Serb forces.uringtheir captivity,young womenwere allegedly repeatedly raped.One man stated
that he wasraping girls[blecause [they were]Muslimsand there [were]too many of [them]'.
Another statedthat they were planting 'theseedsof Serbsin Bosnia'.Oneyoung girl was raped by
two 'Cetniks'in front of herfather[ibid.,p. 54, para.2611.
In what appearsto be an account of rapein the sameplace, it was reported that:
"an 18 year-old Muslimgirl was raped consecutivelyfor five nights,each nightby three different
Serbian men. Oneach occasion,(...two of them held herdownwhile the third rapedher.
Thereafter, they switched pla(...On the sixthnight of raping, the 'Cetniks' forcetdhe victim's
father to watch as they rapedher. Her fatherwas then takento a toilet and h24ghours by
his neck, legs,and handsuntil a neighbour rescuedhim[United Nations,Final Report of
the UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. 1),28 Dec.
1994,Annex VIII, "Prison Camps",p. 349, para. 29091.
"0ther reports allegedthat a camp was set up in a schoolin SalihoviEi.That camp allegedly held
470 inmates.Reportedly,the youngestwomenwere raped first,and then older women wereraped.
One reportaiiegesthat a girl was rapedin fiont of her fam[UnitedNations, Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
1),28 Dec. 1994,Annex IX, "Rape and sexual assault",p. 54, para. 2621. Chapter5 -Section6
Zvornik
"~eportsalso allegethatBosnianMuslimwomen fiomBrcko were heldina lumberfactoryin
Caparde,Zvomik,and 40weretakenoutand raped bAyrkan'stroops.[ibid., para. 2631.
"Severalreportsdescribea campina shoefactoryin Kara. herea femaleguard,a memberof
Arkan'stroops,orderedmen to have sexuailntercoursewithher. Wherefused,sheshot
them.Onereportcalledthe factorythe'Glinica'factory,andstate48girlsandwomenwere
rapedthere.[ibid., p. 54, para. 2641.
446. The rapes andother forms of sexualassault followingthe attack on Zvornik are
illustrativeof the widespread and consistentpattern of rape and sexual assaultin
Bosnia and Herzegovina.As in other parts of Bosnia and Herzegovina, rape took
place in and outside camps, was comrnittedrepeatedly andwas committedwith
particular bmtality. These acts are detailed in Chapter 7 of this Reply [Reply,
Chapter 7, Section 11.
Camps
447. Both the Commissionof Experts and the Ludwig BoltzmannInstitute have provided
facts concerning theexistenceof detentioncamps in and around Zvornik.The camps
were used to detain non-Serbs fiom Zvornik [UnitedNations, Final Report of the
UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps",p. 342, para. 28521.The Ludwig BoltzmannInstitute
states that the informationon campsis "based onconsistentwitness testimonies"
[HannesTretter e.a., "Ethnic cleansingoperations"in the northeast-BosnianCity of
Zvornik fiom April through June 1992",Ludwig BoltzmannInstitute of Human
Rights, 1994,p. 19, Annex481.
448. The Commissionof Experts identified28 detention facilitiesin the Zvornik area:
"nine in the city of Zvornik, seven in the village of Karakaj, two in the village of
Celopek,two in DrinjaEa,two in DiviS,and one each in the villages of Pilice,
Caparde,Baljkovica, SalihoviCi,Liplje, and NovoSelo" [UnitedNations, Final
Report of the UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. IV),
28 Dec. 1994, AnnexVIII, "Prison Camps",p. 342, para. 28541.The Ludwig
BoltzmannInstitute names eleven camps, withoutclairningthe list to be exhaustive
[HannesTretter e.a., "Ethnic cleansingoperations"in the northeast-BosnianCity of
Zvornik fiom April through June 1992",Ludwig BoltzmannInstitute of Human
Rights, 1994,Annex 1,Annex 481.Reply of Bosniand Herzegovina
449. Many Muslirns heldin placesof detention were subjectedto acts of inhumane
treatrnent, torture,rape andkilling. In the above sections,the Applicanthas already
provided evidencethat killingsand rape were cornrnittedin certaincamps around
Zvomik [see above]. Theseaccountscan be supplemented withthose that follow.
450. Multiple sourceshave corroborated the existence ofa detention facility in a
"stadium" inZvomik. The Commissionof Experts reportsthat after Serb forces had
moved into the villageof DiviC,womenand childrenwere sent to fiee territory. The
men were detainedin the Zvornik city stadiumfor severaldays. During the
detention, themen "were subjected to severe physical mistreatment[" UnitedNations,
Final Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
IV), 28 Dec. 1994,Annex VIII, "Prisoncamps",p. 342, para. 28561.The
Commissionof Experts also reports that Muslirnswere detainedin the "Central
Prison". It reports as follows:
"~ccording to a Bosnian Muslim man, he 183other Muslimswere detainedat the central
prison on 29 June 1992.The prisoners were beaten daily. Reportedyo to three hours Serb
guards enteredtheellsand removedasmanyas 10 inmatesat a time for interrogation.The report
suggest[s]that throughout the interrogation thienmateswere physically abusedby four or five
guards at a time.The guards reportedlyctedseveralinmatesand subjected themto
mistreatmen--beating them with riflebutts,axes, or shovel . hoseinmateswho did not
retum were believedto have diedasa resultof the beat[ibid.,p. 343, paras.2862-
28631.
451. An unknown number of peoplewere detai2nedat the "facilityof the Municipal
Police Force".The Commission of Expertsreportsthat "interrogations,abusesand
killings occurredhere." [ibid, para. 28661.In the detentionfacility "Novi Standards
Shoe Factory", located in the northernregion of Zvornik,"Individualswere
reportedly subjectedto severe mistreatment" [ibid.,p. 344,para. 28691.The Ludwig
BoltzmannInstitute reports thatmen arrestedin Zvornik were detained andtortured
here [HannesTretter e.a., "'Ethniccleansingoperations'in the northeast-Bosnian
City of Zvornik from April throughJune 1992",LudwigBoltzmannInstitute of
Human Rights, 1994,Annex1,Annex481.It was notedabovethat in this facility,
Muslirn women hadbeen raped. Severalsourceshave reportedon a detentionfacility
in a garment and textile factory called "AlhosTextile Plant".The facility was
initially used as accommodationsfor the police. One witness reported how he and
another prisoner were
"subjectedto severebeatingsfor severalhours.Followingthe initial phaseof beatings, a short
reprievewasgiven atwhichtimethe victimswere madeto cleantheir ownbloodfrom the floor
and walls.Thereafierthe beatings resumed. Accordintgo the witness, thwere so severe Chapter5 -Section6
Zvornik
that bothhischeekbonesweresmashedandtheentirebonestructurenclosing hisupperteeth
were loosenedso muchthattheteethprotrudfiomhismouth." [United Nations,Final
Report of the United NationsCommissionof Experts, Sl19941674lAdd.2(Vol.
IV), 28 Dec. 1994,AnnexVIII, "PrisonCamps",p. 344, para. 28691.
452. Reports of some of the facilities indicatethe existence ofa coordinatedprogram for
the detentionand transfer of prisoners. The Commission of Experts notes that reports
relating to theabove mentioned Central Prison
"suggestthe existenof a systemaprisonertransferprogra. outinely, arrivaof new
prisoners resulnthetransferralf anequalnumberof residentdetaineestotheBatkovic
faciiity[ibid.,p. 343, para. 28631.
453. Al1of these camps were nui by Serbs. Sometimesthese Serbs are identifiedas
members of paramilitaryorganisationsfiom Serbia. Thereis evidenceof at least one
detentioncentre which was run exclusivelyby regular JNAunits (JNA Barracks at
Karakaj) [ibid.,para. 28761.Guardsworkingin the other campswere sometimes
members of JNA units [HannesTretter e.a., "'Ethniccleansingoperations'in the
northeast-BosnianCity of Zvornikfiom April throughJune 1992",Ludwig
BoltzmannInstitute of HumanRights, 1994,p. 33, Annex 481.Further evidence
concerning the camps is providedin Section5 of this Chapter.
454. For the Muslimswho survivedthe camps,their stay in these detention facilitieswas
one step on the way toward their eventualdeportationto non-Serb held areas. For
instance, the detention facilityknown as "NoviStandards ShoeFactory", located in
the northem region of Zvornik, was"convertedinto holdingareas for Muslim
prisoners followingthe creationand institutionof a mass deportationprogram"
lCJnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1), 28Dec. 1994,AnnexVIII, "Prison Camps",p.344, para.
28691.
Destruction of culturalproperty
455. During and after the attack, the Serbsdestroyed ordamagedmosques in and around
the town of Zvornik. At leastfiftywere demolishedin other towns and cities nearby.
It isreported that
"the Serbforces, withoverwhelmifirepower,apparenttargetedmosquesforreasonsthat had
nothingto do withmilitarystratAggreatmanymosques,includingsomeof the bestknown,Reply of Bosnia and Herzegovina
wereblownupafter Serbsoccupiedthetowns,numerousBosnian sourcessa[ROYGutman,
A Witnessto Genocide, Longmead,1993,p. 81, Annex 501.
Looting and destruction ofproperty
456. There is evidence that demonstrates thatduring and followingthe attack on Zvornik,
the property of Muslimswas looted, destroyed or simply taken by Serbs. The
Commission ofExperts reportsthat in April 1992, membersof Arkan's units were
looting empty houses and apartmentsin Zvornik and taking the goods away [ibid.,
para.5831.Some Muslimswere forced to sign statements wherein theysurrendered
al1of their property [ibid.].On 17May 1992, "_e~eljovicentered DiviCin Zvornik
County and beganto loot and pillage Muslim property fornine days." [ibid., para.
5861.Much of the Muslimproperty was taken during a process of forced relocation,
described below.
Forced relocation
457. The final stagein the plan for theethnic cleansingof Zvornik was the massive
deportation of Muslimsfiom Zvornik. Asthe Applicanthas noted above, between
1991and 1996,the nurnberof Muslims inZvornik was reduced fiom 48,173 to 100.
The deportationsfiom Zvornik were part of a seriesof deportationsthat led to the
result that "by the end of the sumrner[of 19921at least 300,000 Muslimshad been
'cleansed'fiom the easternpart of the country." [UnitedNations, Specialprocess on
missingpersons in the territory of theformer Yugoslavia,Report submittedby Mr.
Manfred Nowak,memberof the WorkingGroup on Enforced or Involuntary
Disappearances, ElCN.411995137,12 Jan. 1995,p. 13,para. 361.The deportations
were canied out by a seriesof administrativemeasuresagainst a continuous
backdrop of terror and violence.
458. After Zvornik had been taken, Serb rule was established. Around 10 April 1992,a
provisional governmentof the "SerbianCornmunityof Zvornik" was founded
[HannesTretter e.a., "'Ethniccleansingoperations'in the northeast-BosnianCity of
Zvornik fiom April through June 1992",LudwigBoltzmannInstitute of Human
Rights, 1994,p. 24, Annex 481.
459. Shortly after the occupation, proclamations were broadcasb ty Radio Zvornik,
appealingto the refugees, who had fled town, to return to their workplaces [ibid.,p. Chapter5 - Section6
Zvornik
24, Annex 481.The study of the Ludwig BoltzmannInstituteof HumanRights
concludesthat
"the experiences of those who did follow the appeal to return to the workplace showedthat the true
purpose of this app-aand of others that foll-was to monitorthe male Muslim population."
[ibid.,p. 24, Annex 481.
460. In announcementsin late April and early May 1992, the "SerbianCommunity of
Zvomik" announcedthat any persona1propertyhad to be registeredby 15 May 1992,
and that al1unregistered property wouldfa11to the "SerbianCommunityof Zvornik".
The Ludwig BoltzmannInstitute study surnmarisesthe message of the appealas
follows:
"~he situation in town was now back to normal and everybody would be able tocome back
unharmed. Any persona1property would have to be registered with the Zvomik police by May 15
as al1unregistered property would otherwisefa11to the 'Serbian Community of ~v[ibid.,"
p. 26, Annex 481.
461. Followingthese announcements,a large numberof the refugees indeedretumed to
Zvornik [ibid., p. 26, Annex 481.It can be concluded thatthis was an essential stage
in the processof forced relocation:only now was it possiblefor the aggressorsto
prepare and actuallycarry out the final stagesof "ethniccleansing".This conclusion
was also drawnby the The Ludwig BoltzmannInstitute [ibid., pp. 26-27].
462. The obligatory registrationof property served thepurposeof registeringthe male
Muslimpopulation. Only men wereeligible for registration, even ifthe property was
registeredunder the wife's name [ibid., p. 281.An "Agencyfor the Exchangeof
Houses"was set up, to which the Musliminhabitantswere to transfer their homes. In
return, the Muslims were prornisedhouses belonging toBosnian Serbs(e.g. in the
Tuzla region) who supposedlyhad also assignedtheir homesto the agency [ibid., p.
281.Muslims wereonly allowedto leave the townon the conditionthat they
renouncedtheir propertyand transferred itto the "Serbian Communityof Zvornik".
The LudwigBoltzmann Institute Statesthat the following pattern emergesfiom a
large number of consistentcases:
"~fter their return, the refugees were first forced to register. This registration had no immediate
consequences for the organized deportations. It was however a prerequisite for the subsequent
transfer of property, which also had to bedone before the SUP and which in many cases
immediately preceded thectual deportation. The forced transferof property to the 'Serbian
Community of Zvomik' madethe former house-ownerseligible for obtaiannofficial stamp onReply of Bosnia and Herzegovina
theirID-cardindicatinga changeof domicile.Thisstarnpwasanindispprerequisitefor
being allowed to letownlateron.[ibid, pp. 28-29].
463. Thereafier, large-scale deportationsstarted.It is reported "that therewere days on
which the Muslimpopulations ofentiremunicipaldistrictsor neighbouringvillages
were deported ...[to] Mali Zvornik,and from there via Loznicato Suboticaor ont0
the Bosnianterritory of Tuzla." [ibid.,pp. 28-29]. Forced deportationswere canied
out in cooperationwith paramilitarygroups [ibid.,p. 351.
464. Muslim witnessesfrom Zvornik reported "that their registration as residentswas
cancelledat the local policestation aftertheregion was taken by Serb forces."
[United Nations,Situation of HumanRightsin the territory of theformer Yugoslavia,
Report submittedby Mr. TadeuszMazowiecki, SpecialRapporteur of the Commission
on Human Rights,E/CN.4/1993/50,10Feb. 1993,p. 22, para. 981.One witness
reported thatthe words "deregistered fromZvomik, departingfor Subotica"were
written on his identity card at the policestation [ibid.].The Muslimsfrom this
witness' village"were reportedlygivenan ultimatumto leave, accompaniedby the
burning of severalhouses and the firing of shots into the air as warnings." [ibid.].
465. The Commissionof Experts reportsthat the Muslimcitizensof Zvomik were bused
to locationsasclose asMali Zvomik - acrossthe river, andasfar away as Subotica
at the Serbian-Hungarianborder rCJnitedNations, Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol. IV),Annex VIII, "Prisoncamps",p.
342, para. 28521.Those who were deportedto the Serbian-Hungarian border were Chapter5 -Section 6
Zvornik
issueda "Yugoslav passport"by the SerbianRed Crossand subsequentlysent off to
Austria via Hungary [HannesTretter e.a., '"Ethniccleansing operations'in the
northeast-Bosnian City of Zvornik from April throughJune 1992,Ludwig Boltzmann
Institute ofHumanRights, 1994, pp. 35-36,Annex 481.The Commissionof Experts
describedas follows a deportationon 26 June 1992:
"~uslim men, women and children were rounded up by what were beiieved to be Se~eljasmen,
well as White Eagles. They weretaken to the centre of town where they wereput on trucks that
took them to Loznica. In Loznica, they boarded a train that took them to Subotica. After spending
several days on the train in Subotica, the Muslims were movedto a campsite at Palic, where they
were issued Yugoslav passportsamped by the Ministryof Intemal Affairs. Then they were taken
in groupsto the Hungarian border and acceaserefugees.[United Nations,Final Report
of the UnitedNations Commission of Experts, Sl19941674lAdd.2(Vol. 1),28
Dec. 1994, Annex III.A, "Special Forces",p. 170, para. 5911.
466. Mazowieckireports the following account of theforced deportationof Muslims from
Zvornik to Hungary:
"~uslim families were told that they had six hoursto pack their belongings andgo to a certain
gathering point. In the case of Zvomik, it was a farmyard. Atthering points,the names of
the deportees were put on a list, and everyonewas individually orderedto sign the list. Theywere
informed that by their signature theyntarily'gave up al1their belongings.The deportees were
then ordered, some at gunpoint,to board buses and trucks andlater trains until theyarrived at Palic
(Vojvodina) where they were put up at the local camp site. Althoughthe deportees apparently did
not so request, they were provided with Yugoslavpassports after photographers cameto the
campsite for this purpose. For some deportees, the issuing authorityof their Yugoslavpassport was
'MUP (Ministryof Intemal Affairs) of the Republic of Serbia, Secretariat in Subotica'. Deportees
reported that between June and1 July 1992 therewere about 1,200persons fiom Kozluk and
another 1,800fiom Zvomik at the Palic campsite.After being taken to the border, these persons
were admitted to Hungary as refugee[United Nations,Situation ofHumanRightsin
the territoryof theformer Yugoslavia,Report submittedby Mr. Tadeusz
Mazowiecki, Special Rapporteu orfthe Commissionon HumanRights,
E/CN.4/1993/50,10 Feb. 1993,p. 22, para.991.
467. The Respondentstates in the Counter-Memorialthat the allegationthat the Federal
Republic of Yugoslavia"wouldhave aidedthe 'ethniccleansing'of the Muslim
populationof Kozlukand Zvoniik by issuhg passportsto Muslimrefugees" and
would have "transferredthem to Hungaryarbitrarily" (...)"are not true" [Counter-
Memorial,p. 67, para. 1.3.5.18.1.To substantiatethis statement,the Respondent
statesthatthe Muslimpopulationfiom Zvoniik "expressedthe wishto be allowed
the transit on their way to Western-Europe"[ibid.,para. 1.3.5.19.1.This observation,
forwhich the Respondentfails to deliver any evidence,is simply irrelevantto the
claim of the Applicant that theMuslimswere being drivenfrom their homestoReply of Bosnia and Herzegovina
places where theywould no longerbe threatenedby Serbs.It has been shownabove
that by a combinationof terror, force and administrativemeasures,Muslimswere
expelled. Even if, arguendo, it couldbe show that Muslirnswould haveexpressed
the 'wish'to leave Zvornik or the country, againstthe backgroundof terror, rape,
torture and killings, this would notat al1be surprising - no one wouldexpect them
to wish to stay. Indeed, theRespondentitself acknowledges that the refugees "stated
that they wanted to leaveZvornik becauseof the outbreakof the war" or "for
personal securityreasons" [ibid.,para. 1.3.5.20.1.This part of the Counter-memorial
is a flawed and objectionableattemptto present a forced expulsionas the "wish" of
the population.
468. The Respondentalso statesthat Yugoslavpassports wereissuedbecause Hungarian
authorities stopped the convoyas the refugeeshad notravel documentsand that the
"only way to deai with the situation"was to put the refùgeesin the camp at Subotica
until travel documentswere issued [ibid., paras. 1.3.5.19 and 1.3.5.211.This is
statingthe obvious. Thoseresponsiblefor the deportationswould hardly have
expectedthat Hungarywould havewaivedthe normalrequirementsfor travel
documents. The Yugoslav provisionof passportswas an intended andanticipated
step in the process of expulsion of Muslims to "third countries" -whether Hungary
or other countries.
469. Equallyirrelevant is the observationof the Respondentthat the Federai Republicof
Yugoslavia wouldbe under an obligationto issue travel documentsto the refugees
[ibid., p. 69, para. 1.3.5.271.Whateverthe legal merits of that proposition,it turns
the facts upsidedown. The Respondentcreatesthe suggestionthat it simply complied
with its legal obligationsto help refugees.However,as the Applicant shows in this
Reply, it was the Respondentitself that induced theflight of the refügees in the first
place.
470. The Ludwig BoltzmannInstitute concludesfrom the reports on deportationsthat
"there can be no doubtthat the measuresdescribedabovepursueda tàr-reaching goal:the
systematicexpulsionof the Muslim population.For it wasonly der their retum and the registra-
tion of their property and, as a result, the 'gathering'of the Muslirninhabitantsnot only of the
town but of the entire Zvomik regionthat their total and final expulsionbecame possible.This
enabledthe aggressorsnot only to removethe populationaffected fkomthe Zvornik region in an
organizedand comprehensivemanner,but alsoto deportthem beyond theboundariesof the former
Yugoslavia. Dueto the locationof Zvomik onthe border to Serbia,the Bosnian Serb leaders had
no problem transporthg the people outof Bosnia-Herzegovinaand Mon to another country."
[ibid, p. 351. Chapter 5-Section 6
Zvornik
Thefate of intellectuals
471. There is evidencethat those responsiblefor the attack on Zvornik andthe subsequent
expulsion specifically targeted intellectualsamongthe Muslirnpopulation.
472. The Commissionof Experts reports that
"~t a partyheldinApril attheTezekoHotelinZvomik,SeSeljreadthenamesof localMuslim
intellectualsma list toanaudiencepartlycomprisedof membersof Arkanovici,Se~eljovci,and
WhiteEagles.Thepeopleonthis list wereto be killed."edNations, FinalReport of
the UnitedNations Commission of Experts, SI19941674lAdd.2(Vol. 1),28 Dec.
1994,Annex III.A, "Special Forces",p. 166, par. 5671.
473. The Commissionalso reports that intellectualswere the first to be imprisoned [ibid.,
p. 167, para. 5751.
Involvementof theRespondent
474. There is abundant evidence that the Respondent wasactively involved in the attack
on Zvornik and the expulsionsof Muslimsthat followedit. The involvementof the
Respondent is discussed in detail in Chapter8 of this Reply [Reply, Chapter8,
Section 31.The LudwigBoltzmannInstitute concludesthat while a detailed
assessment of the level of involvementof the JNAin the attack on Zvornik is only
possible to a certain degree,it "is certainthat JNAunis were involved." [Hannes
Tretter e.a., "'Ethniccleansingoperations'in the northeast-BosnianCity of Zvornik
from April through June 1992",LudwigBoltzmann Institute of HumanRights, 1994,
p. 30, Annex 481.The same report concludesthat the attack on Zvornik "was
planned, coordinated and directedby the formerJNA"[ibid.,p. 311.
475. Nowak reports îhat the ethnic cleansingin Zvornik was carriedout by JNAforces
from Serbia proper, the Novi Sad and UVce Corps, and Serb paramilitaryforces,
especially Arkan's, Se~elj'sand the White Eaglespnited Nations, Special process
on missingpersonsin the territory oftheformerYugoslavia, Report submitted to Mr.
ManfiedNowak,expertmemberof the WorkingGroupon Enforcedor Involunta?y
Disappearances, responsibleforthespecial process,ElCN.411997155,15 Jan. 1997,
para. 1001.The Commission ofExperts also statedthat the attack on Zvornik on 8
April 1992 was carried out by JNA forces andpararnilitarygroups led by Arkan and
Se~elj[United Nations,FinalReport ofthe United Nations Commission of Experts,Reply of Bosnia and Herzegovina
Sll9941674lAdd.2(Vol. 1),28 Dec. 1994,AnnexIII.A, "Special Forces", par.5691.
Evidencethat corroboratesthese conclusionsincludesthe following:
476. War-experiencedcommanderswere assigned toZvornik already before theattack.
The two responsibleJNA officers,Lieutenant ColonelPejiCand Colonel Marko
PavloviC,had beeninvolvedin combat in Croatia [HannesTretter e.a., "'Ethnic
cleansingoperations' inthe northeast-Bosnian Cityof Zvornik from April through
June 1992",LudwigBoltzmannInstitute of HumanRights, 1994,p. 31,Annex 481.
Serb infantryreservistswere recruited and stationedin barracksin the town of
çelopek near Zvornik before the attack[ibid].
477. JNA units from various Corps were stationedunder the commandof the 1st Military
District in Belgrade both on the Bosnianand Serbian sidesof the Drinariver [ibid].
JNA units attackedZvornik fiom the Serbianside of the river [United Nations,Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28
Dec. 1994,Annex III.A, "Special Forces", p.167, par.5721.The Commissionalso
reports that
"~erbianforcespositioned acrostshe Drinain Serbiabeganshellingthe Muslimvillageof DiviC,
twokilometresnorthof Zvornik. villagewasthenoccupiedby Serbianforces, whoforcedthe
residentsto tum intheirweapon[ibid.,para. 5741.
478. Jose Maria Mendiluce,senior officia1of the UNHCR,also reported thatZvornik was
attacked fromthe Serbian side of the Drina [BBC-seriesby Laura Silber, TheDeath
of Yugoslavia, Vol. 4:The Gates of Hell,Annex 511.Also the town of DiviCwas
attackedfiom the Serbian side of the Drinariver [United Nations,Final Report of
the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. IV), 28Dec.
1994, AnnexVIII, "PrisonCamps", p.3411342,para. 28501.
479. Military documents indicatethat JNA airplaneswere used in the attackson Kulagrad
[Support-action;requestfor action of the light combatairforce, request from Com-
mand Post of the 17th Corpsaddressedto the 2ndMilitaryDistrict Command, 10
April 1992,Annex 52;see Reply, Chapter8, Section 31.
480. The Commission ofExperts reportsthatafter the town had been taken, relief
workers statedthat "Arkan'sforces controlledZvomik's centre,while Yugoslav
army forces were stationedaround thearea." [United Nations,Final Report of the
UnitedNations Commission of Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,
Annex III.A, "SpecialForces",p. 168, par. 5821.Se~eljhasstated thatthe attack on Chapter5- Section 7
OpStinaPrijedor
Zvornik was planned and organisedin Belgrade [Laura Silber and Allan Little, The
Death of Yugoslavia,Revised edition, London 1996, pp. 223-224, Annex211.He
also stated that special units of theSerbian Interior Ministryparticipated in the attack
[ibid.,p. 2241.Taped on video, he stated that "Milosevic himself askedme to send
my fighters" [BBC-series,TheDeath of Yugoslavia,vol. 4: the Gates of Hell, Annex
511.
481. Later in this Reply, the Applicant will show thatthe Serbian paramilitaries that
played such an importantrole in the expulsionof the Muslimsfrom Zvornik were
controlled and directedby the Yugoslav andSerbian Ministries ofInterior in
Belgrade [Reply, Chapter 8, Section71.
Conclusion
482. The above presented evidence demonstrates thatthe non-Serb population in Zvornik
was subjectedto an organized pattern ofkillings, torture, and rape. At least 2,500
Muslims were killed.More than 48,000 Muslims were removed,involuntarily, from
Zvornik. Their property was looted, destroyed or taken by Serbs.Non-Serb life in
Zvornik waseradicated.
7. OpgtinaPrijedor
Introduction
483. In the years betweenthe take-overof Prijedor in April 1992 andthe signing of the
Dayton Peace accords,most of the non-Serb population livingin opStinaPrijedor
was destroyed or expelled.This was achievedby killing, the causing of serious
bodily and mentalhm - includingtorture, imprisonmentin concentrationcamps,
rape and other inhumanetreatment.The Prijedor Muslirnsand Croats who were not
killed in the months followingthe Serb assaultwere forcibly expelled fromtheir
homes by useof terror and the threat of torture, includingrape and sexual assault.
484. The facts detailed below are shockingin their brutality. They are al1the more
terrible considering the Serb take-over of Prijedorwas achievedpractically without a
shot being fired and there was almost no resistanceto the Serb coup. The narnes of
Omarska, Keraterm andTrnopoljehave joined the ignoble list of campswhich stains
the memory ofthis century.Reply ofBosniaandHerzegovina
485. The killings,torture, rapes and expulsionsof non-Serbs have beenextensively
chronicledby the ICTFY in their Opinionand Judgmentin the caseof DugkoTadiC.
In addition,the United Nations Commission of Experth sad an entire Annex of their
report devotedto opitina Prijedor,writtenunder the supervisionof Judge Hanne
Greve. It is this Annex whichformed the basisfor the findingsof facts includedin
the foregoingJudgrnent of the ICTFY. The considerationisn it clearly echo Greve's
impressivestudy.
Geographicalpositionand brief history
486. Opitina Prijedor is a municipalityin north-westBosnia,an area which is part of the
Bosnian Krajina. It is locatedin betweenthe town of SanskiMost (to the south),the
Bosnian-Croatian border townsof Bosanski Novi (to the west) and Bosanska Dubica
(to thenorth), and the regionalcapitalof BanjaLuka (to the east). With the notable
exceptionof the area of SanskiMost, theother neighbouringdistrictshad a Serb
majority population beforethe armed conflict startedin April 1992 [United Nations,
FinalReport of the UnitedNations Commission of Experts,Sl19941674lAdd.2(Vol.
1),28 Dec. 1994, Annex V, "The Prijedor Report",p. 13,para. 421.
487. The district Prijedorhas one maintown, called Prijedor,two smailer towns called
Ljubija and Kozarac and nurnerousvillagesand hamlets.The Sana river flows
through the district fiom the Westtowardsthe centreand then bends southwards.The
district isountainousespeciailyin the northern and westernparts withthe peaks of
KozaracMountainand Mandanska Mountain, bothof which are forested. Chapter5- Section 7
Opitina Prijedor
488. Prior to the take-over,opitina Prijedorwas an ethnicallymixed area. Accordingto
the 1991 census, Muslims constituted the largest ethnic group in this opitina, with
49,700 (44%) out of a total population of 112,000.There were 44,000(42.5%) Serbs
in themunicipality.The remainder ofthe populationwas made up of Croats(5.6%),
Yugoslavs (5.7%)and others (2.2%).This representeda slight change comparedto
1981, when there were still fivepercentmore Serbs than Muslims [ICTFY,Trial
Chamber, Opinionand Judgment,Prosecutor v. Duih TadiC,CaseNo. IT-94-1-T, 7
May 1997,p. 47, para. 1281.
489. Prior to the outbreakof the hostilitiesin Bosnia and Herzegovina,opitina Prijedor
was one of the areas in Bosnia andHerzegovinawhere relationsbetween theethnic
groups and in particular Serbsand Muslims was best. It was a mixed area ethnically
and characterised with significantintermarriageacross ethnic lines. During World
War II, it was a staunchlyanti-fascistregion.It is significantthat opitina Prijedor
had an extremely high percentageof partisans(fiom al1different ethnic groups)
during World War II. As a result the districtwas the first to be declared a liberated
Partisan area in 1942.Kozarachad one of the most impressivewar monumentsin
the former Yugoslavia andboth World War II heroes Esad MidCiC,a Muslim, and
Mladen StojanoviC,a Serb,were locals.Onewitness,whosetestimonywas recounted
in the Judgmentof the ICTFY in the TadiCtrial described the town of Prijedor as a
symbol of:
"thebrotherhoounityof theformerYugoslaviaatlarge,becausewhencomparedto othertowns
in BosniaandHerzegovinat,herewerenomajorinter-ethnicconfli[ibid., p. 48, para.
1311.
490. However, if one considersthe strategyof "Al1Serbs in one State",it is clear that
opitina Prijedor would be indispensableto link the Serb-dominatedKrajinaregions
in Croatia to the west with Serbiaand Montenegroin the east and south [ibid., p. 47,
para. 1271.As such, it was the only route for the Serbsto supplythe Bosnian Serbs
in the west of Bosnia and Herzegovina andthe Serbsin the Croatian Krajina with
armaments and material fiom Serbiaproper. Themain obstacleto this corridor was
the multi-ethnicnature ofopitina Prijedor,which would contest any Serb demands
for the territory of the region [UnitedNations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex V, "The
Prijedor Report",pp. 13-14, para. 431.
Preparation for the take-overReply of Bosnia andHerzegovina
491. The take-over of opitina Prijedorby the Serb forceswas not a spontaneousuprising,
but rather a well-planned and well-executed rnilitaryand police operation.In the
sumrnerof 1991 elementsof a heavy armoured brigade,the Panëevo Brigadeof the
JNA, arrived in Prijedor from Serbia. Although thepretext fortheir arrival was the
confiict in Croatia,it did not become involvedin the fightingthere at dl. Instead, it
establisheditself at the aerodromeUrije near Prijedor. Inearly 1992,an artillery unit
of the JNA which had taken part in the fightingin Croatiatook up a strategic
position in Benkovacon the Kozarac mountain.In the first monthsof 1992,also, a
large nurnberof tracked vehicleswere brought to Prijedorby rail. Around this time
some 200 JNA soldiersfiom a well-disciplined specialforces unit came to Prijedor
quarteredin Hotel Prijedor [ibid., pp.26-27,para. 115-1181.
and were
492. In March 1992, the JNA and some localparamilitaryorganisationstook control of
the relay station and television transrnitteron the KozaracMountain.At the same
time, the Serbs strengthenedtheir controlover the televisionstudioin Banja Luka.
The transmitter was re-programmedto receivebroadcastsfrom Serb controlled
stationsonly, either Belgradeor Pale, and as a result the peopleof opitina Prijedor
could not longer receive programmesfiom Sarajevo. The inflammatorycontentsof
the programmesbroadcasted was describedby JudgeHanne Grevein her report on
Prijedor:
"129. Like in the preparation forother wars,the programmestransmittedbecamemore and more
militant.ch propaganda wasalso broadcast.It wasrepeatedly broadcast that oneoughtto be
tembly afraid of Muslims,Albanians, Croatsand Slov-only Serbsand Montenegrins were
notdangerous.The Serbs and Montenegrins were the defendersof Yugoslavia.Non-Serbs will
insist that the latter was nott people favoured Yugoslaviaas s-but leading Serbs
were striving for Greater ~er[United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2(Vol.1),28 Dec. 1994,AnnexV,
"The Prijedor Report", p. 28,para. 1291.
On Serb television,Muslims and Croats wereconsistentlyportrayedas the source of
al1economic andpoliticalproblems:
"132.The Muslimswho made up the majority ofthe politicalleaderswere blamed foreverything
thatcame witheconomic crises,especially unemploymentand inflation.In addition, they were
branded as extremists,meaning Muslimfùndamentalistsor ratherviolentfanatics.The Croatswere
discreditedas UstaSewanting revenge over Serbs forwhat hadhappenedinthe war in Croatiawith
Serbstaking power in Kninand Vukovar and otherareas.Non-Serbs wereportrayedas savagesto
be feared at the sametime asthey were usedas scapeg[ibid"p.,28, para. 1321. Chapter5 -Section7
OpitinaPrijedor
493. In the six months before the take-overof Prijedor, the members of theSerbian
Democratic Party (SDS)set up governmentalstructuresparallelto the existing
legitimate institutions.Theseparallel structures includeda Serb Assembly,the first
chairmanof which was the DeputyMayor ofthe official Municipal Assembly.In
addition, policeand security organisationswere set up, includinga Serb Secretariat
of Internal Affairs (SUP). Al1Serb parallelstructureswere closely linked to Serbian
officiais outside the opitina [ICTFY,Trial Chamber,Opinion and Judgrnent,
Prosecutor v. DuSkoTadit, Case No.IT-94-1-T,7 May 1997, p. 50, para. 1341.
Planning for the take-over took place at Prijedor rnilitarybarracksand al1of the Serb
employeesof the legitimatePrijedor SUPparticipatedin the preparations [ibidem].
494. These parallel politicaland security structures werelinkedto those of the SDS in the
rest of Bosnia and Herzegovina.The SerbAssemblyin Prijedor,for example,joined
the Serb autonomous region of Krajina,part of the "RepublikaSrpska".In a 1993
interviewto a local newspaper, the chiefof police, Simo DrljaCa,statedthat the
police workedhand in hand with other so-called Serbauthorities andthat he took his
orders from the Ministry of Interior of the "Republika Srpska"in Bijeljina,in the
east of Bosnia and Herzegovina. According to this interview, reproducedin the
Prijedor reportof the Commission of Experts, theSerb coup in Prijedor wasa well
CO-ordinated effort:
"~he~[thepoliceforce (includithesecretservices)]carriedoutmy ordandthe orderof the
CSB [thePublicSecurity Centre]anjaLuka andtheMinisterof Interior.
( - 0 . )
the cooperationwasexcellentwiththearmyof RepublikaSrpskaandwiththeofficersof that
army.Thecooperationwasmanifestedin thejointcleansingof the teof traitorsj,ointworkat
thecheckpoints,ajointinterventionupagainst disturbanef publicorderandin fightingof
terroristgroups[Interviewof SimoDrljaCaby Sinik VujakoviCin Kozarski
Vjesnik,9 April 1993,as reportedin: United Nations,Final Report of the
United Nations Commissionof Experts, S/1994/674/Add.2(Vol. 1),28 Dec.
1994, Annex V, "The Prijedor Report", p.12. para. 311.
495. The foregoing interview, inwhich SimoDrljaCaadmittedthat the take-over of
Prijedor had been a well-plannedand coordinated endeavour,was also referredto by
the ICTFY in the TadiéJudgment[ICTFY,Trial Chamber,Opinion and Judgment,
Prosecutor v. DuSko Tadit, CaseNo. IT-94-1-T,7 May 1997,pp. 50-51, para. 1351.
On March 1997, the Prosecutor atthe ICTFYindictedDrljaCaand his right hand
man, Milan KovaCeviC, for their contributionto the eventsin Prijedor [ICTFY,
Indictment, TheProsecutor v. Simo Drljac'a& Milan Kovac'evit,Case No. IT-97-24-Reply ofBosniaand Herzegovina
1, 13Mar. 19971.DrljaEawas charged with genocide,but escapedconvictionin July
1997,when shotby British SFOR troops, whichtried to arrest hirn.
496. Thetown of Prijedorwas taken over by the SDSwith theaid of the local police and
the military forces of the JNA in a bloodlesscoup in the earlyhours of 30 April
1992. Armed Serbstook up positionsat checkpointsal1over Prijedor, militaryposts
were set up and the Serbflag was flown from the city hall. JNA soldiersoccupied
al1the prominent institutionssuch as the radio station,the bank and the medical
centre. Milomir StakiC(the formerVice Chairmanof the multi-ethnicMunicipal
Assembly and later Chairmanof the Serb Municipal Assembly)went to Radio
Prijedor and madea radio broadcastin which he explainedthe take-overof the town
and the intentionsof the SDS in regard to opSfiMPrijedor.The opitina was renamed
"SrpskaopgtinaPrijedor (Serbianmunicipalityof Prijedor)"[ICTFY,Trial Chamber,
Opinion and Judgment,Prosecutor v.DuSkoTadiC,CaseNo. IT-94-1-T, 7May
1997,pp. 51-52, para. 1371.
497. The pretext for thetake-overwas a telefax supposedly receivedfiom the Commander
of Bosnia and HerzegovinaTerritorialDefenceforces (TO), instnictingthe local TO
to attack the JNA asthey retreatedto Serbiaand Montenegro. However,the fax was
immediately denouncedas a forgeryby the authorities inSarajevo and Milomir
Stakikhimself later admittedthat the Serb coup in Prijedorwas not a spontaneous
reactionto the facsimile,but rather the final stageof an establishedplan [ibid.,p. 52,
para. 1381.The text of the telefax was integrallyreproducedby Judge Hanne Greve
in the Report on the Prijedorregion. Her Report leaveslittle doubt as to the
invalidityof the document:
"154.Thereis noevidence tosustaina claimthata telefaxliketheabovemeneverwas
producedbythe legitirneuthoritiesof BiH.Conversely,theyhadeveryreasonto facilitatethe
departurof theJNAas soonas possible.ForthelegitimateauthoritBiHto havedeclared
waragainsttheJNAatthetime,wouldhavebeensuicidai.Moreover,if theleadershipinBiH
would havewanted toconfionttheJNAbyforce,thereis everyreasonto believethatthey would
havetakencertaincarefullyplannedstepsandnotitdl materialiebymeansof a rathercasuai
telefax.WnitedNations,Final Report of the UnitedNations Commissionof
Experts, Sf1994f674lAdd.2(Vol. 1),28 Dec. 1994,AnnexV, "The Prijedor
Report",p. 33, para. 154).
498. It is extrernelyimportantto note that duringthe take-overof the town of Prijedor
there was absolutelyno resistanceto these actionsby the non-Serbs ofPrijedor. The Chapter5 -Section 7
Opitina Prijedor
initial coup was immediate,total and unopposed.This was confïmed by the report
of Kozarski Vjesnik,a Serb-controllednewspaperin opitina Prijedor:
"~he man (Simo DrljaEa),who[m] the Serbian Democratic Party ofthe OuStinaPrijedor put in
charge of forming the Serb policeafter half a year of illegal work, had done hisjob so well that in
13 police stations 1,775well armed persons were waitingto undertake any difficult dutyin the
time which was coming. In the night between29 and 30 April 1992,he directed the takeover of
power (by the Serbs), which was successfully achievedin only 30 minutes, withoutany shots fired.
The assembly ofthe Smske OvStinePriiedor, at the end of March last year (1992), appointed him
Chief of the public security station charge of the secret police). Hewas in charge of thisjob
during the most demanding period and remainedin the position until January 1993.These days he
has been Vice-Minister of theIntemal Affairs of the Serbian Republic ["Republika Srpska"].He
will commence his new functionin Bijeljiond da^ [.ozarskiVjesnik,9 Apr. 1993,
as quoted in United Nations,Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex V, "The Prijedor
Report", p. 8, para. 61.
The town of Bijeljinais situated notfar fiom the borderwith Serbia proper.In the
view of the Commission of Experts, the town was selected as seat for the Bosnian
Serb "Interior Ministry"becauseof its geographicallinkagebetweenthe Federal
Republic of Yugoslavia and the Serb-held territoriesin Croatia and Bosnia and
Herzegovina[ibid.,p. 34, para. 1631.
499. Shortly after the take-over,the Serbsofficiallyestablishedthe so-called Prijedor
Crisis Staff. This local Crisis Staff beganto implement thedecisionsof the regional
Crisis Staff in Banja Luka.Irnrnediatecontrolwas taken of the two local media
sources,Radio Prijedorand the newspaper Kozarski Vjesnikthat henceforthbecame
disseminatorsof propaganda. The Crisis Staff also supportedthe mobilisationof the
Serb populationand within two weeksnearly al1Serbshad been mobilised into
either the JNA, the army reserveor the policeforce [ICTFY,Trial Chamber,
Opinion and Judgment,Prosecutor v. Du,fb TadiC,CaseNo. IT-94-1-T, 7 May
1997,p. 52, para. 1391.
500. When the Serbs took over Prijedor, theJNA was still under the authorityof
Belgrade. The JNA indeed playeda cardinalrole in the take-over of the city.
Withoutthe assistance and approval of Belgradet,he coup would in fact not have
been possible at dl. The Serbswhich were mobilisedin close cooperation withthe
local Crisis Staff al1cameto fall under the authorityof the JNA [see also Reply,
Chapter 8, Section 41.Reply ofBosnia andHerzegovina
501. Variousrestrictionswere then placed upon the livesof the non-Serbsin Prijedor.
The treatment of non-Serbs in the Prijedorarea was also describedby the ICTFY in
the TadiCJudgment.The regionalARKCrisis Staff in Banja Luka playedan
importantpart in formulahg the instructions:
"~mmediatelyupon its formation, theARKCrisis Staff [inBanja Luka] beganto make decisions
about the treatmentof non-Serbs.The Presidentof therisis Staff, Radoslav Brdanin, held
extreme viewswith regardto Greater Serbia and the acceptof other nationalities living
withinthat temtory. His position, which was continually repeateidn the media,was that the largest
percentageof non-Serbs acceptablein the temtory designatedas Greater Serbia was 2 percent. In
order to securethis percentagehe advocatedon Radio Banja Luka a directstniggle, includingthe
killing of non-Serbs.ilarlyRadislavVukiC,Presidentof the MunicipalSDS Committeein
Banja Luka and Presidentof thegionalBoard of the SDS,as well as an elected memberof the
SDS Main Boardof Bosnia and Herzegovina,was also anextremist,presentingthrough the media
his decisionnot to allow any non-Serb womento give birth at Banja Luka Hospital.He also
assertedthat al1mixed marriage couples should be didr that al1mixedmarriagesshouldbe
annulledand that childrenof mixed marriages 'were onlyfor makingsoap.'The position
expressed bythesetwo prominent Serb leaders, once thought oafs extreme, had,by 1992, become
the predominant viewsof the SDS leadership,acceptanceof which was a prerequisite for
advancementwithinthe SDS." [ibid.,pp. 55-56,para. 1471.
502. Non-Serbswere fired fromtheir jobs and their childrenrefusedentry atthe local
schools. A constant strearnof propaganda andethnichatredwas heard on the radio
directed against Croats and Muslims. Non-Serbs werebarred fiom movementoutside
the opitina and within the opitina there werecontrolsand checkson al1movement
to the extent that the non-Serbshad to recordtheir movementsinsidetheir own
apartmentblocks. In addition, therewere daily searchesin those apartrnentblocks
inhabitedby Muslims and Croats [ibid.,p. 57, para, 1501.Significantly,any non-
Serbs in possessionof arms were forcedto surrendertheir weapons,leaving the non-
Serb populationas a whole utterly defenceless, eventhough therehad been no
resistanceto the Serb take-over [ibid.,p. 52, para. 1393.
Theattacks on outlyingareas
503. After having consolidatedtheirpower in the town of Prijedor, theSerbs started their
attacks on the towns and villagesin the surroundingareas. Someof these towns and
villageshad large Muslimmajorities.
504. The village of Hambarine,for example,was attackedsomethree weeks after the
take-over of Prijedor with the helpof paramilitaryunits fiom Serbia proper [see
UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1), 28 Dec. 1994,AnnexV, "The Prijedor Report", pp.49- Chapter 5-Section 7
OpitinaPrijedor
50, paras. 231-2391.The attack was precededby an intenseartillery bombardment
which lasted severalhours. The main attack consistedof pararnilitary infantry troops
supportedby tanks and armouredvehicles. After a brief periodof fighting, the
inhabitants,hopelessly out-nurnbered and out-gunned,surrendered.One of the first
buildings to be destroyed after the attack,was the Hambarine mosque.The Serb
conquerorsrenamed the village Petrovo Brdo, "Peter'sMountain" [ibid., pp. 49-50,
paras. 235 and 2381,a Christianversion of its original name.
505. At this tirne the Prijedor Crisis Staff authoritiesalso issued an ultimatum to the
authorities of Kozarac - an overwhelminglyMuslim area located eastof Prijedor
with almost 27,000 non-Serbinhabitants -requiring the Territorial Defence (TO)and
the police to surrendertheir weapons and pledgeallegianceto the new authorities of
the Srpska opitina Prijedor. Negotiations wereheld betweenthe citizens of Kozarac
and the Prijedor Crisis Staff, but to no avail. On 22 May 1992, the telephone lines to
Kozarac were disconnectedand a blockadewas instituted [ICTFY,Trial Chamber,
Opinion and Judgrnent,Prosecutor v.Duiko Tadii, Case No. IT-94-1-T, 7 May
1997,pp. 53-55,para. 142-1461.
506. The attack on Kozarac began on 24May 1992, in the early afternoon. As with the
attack on Hambarine, it was precededby an intense artillery bombardmentand the
main attack consistedof tanks and variouspararnilitaryunits. The Serb infantry
burned most of the houses in Kozarac. However, theytook care not to destroy the
apartments of ethnic Serbs. The inscription"Serb house, do not touch" was written
on Serb property and the Orthodoxchurchwas not damagedwhile the mosque wasReply ofBosniaandHerzegovina
destroyed.On 26 May 1992,an agreement was reachedfor the surrenderand
removal of the survivorsof the attack [ibid.,p. 54. para.41.
507. The exact number of non-Serbskilled during and shortly afterthe attackon Kozarac
remains unknown. Mien asked about howmany civilianshad diedin the military
operationin the area, Serbleaders relatedthat it probablywas many,but that they
had no records. Lists were, however,used to selectprominent non-Serbs to be
executed. Some sourcesput the numberof killed civiliansat 5,000.Shortlyafter the
assault, a non-Serbcamp prisoner was orderedto assist in the collectingof dead
bodies in Kozarac.He himself counted 610dead people [United Nations,Final
Report of the UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. 1), 28
Dec. 1994,Annex V, "ThePrijedor Report",pp. 52-53, paras.253, 262-2631.
According to Serb militarysources,quotedby the ICTFYin the TadiCJudgment,
800 people were killedin the take-overof the town and an additional 1,200had been
captured. Casualtieson the part of the Serbnits were four soldierskilled andfifteen
injured [ICTFY,Trial Chamber,Opinion and Judgment,Prosecutor v. DuzkoTadit,
Case No. IT-94-1-T, 7 May 1997,p. 54, para. 1451.
508. Followingthe assaulton Hambarine and Kozarac, the other non-Sert bowns and
villages inthe Prijedor Municipality were conquered.This carnpaignwas also
describedby the Commissionof Expertsin the Report on Prijedorand again resulted
in thekilling and torturing of many innocent non-Serbcivilians [United Nations,
Final Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
1),28 Dec. 1994, AnnexV, "The Prijedor Report", pp. 58-63,paras. 293-3 191.
Thea$ermath of the attacks on the non-Serbareas
509. The survivorsof the attack on Kozaracwere not allowed toreturn to their homes but
were instead divided accordingto gender andage. The young and rniddle-aged men
and a small number of women were taken to Omarska and Keraterm,whereasmost
of the women andthe elderly were taken to the Tmopoljecamp [ICTFY,Trial
Chamber,Opinion and Judgment,Prosecutor v.DuSKoTa&, CaseNo. IT-94-1-T, 7
May 1997, p. 55, para. 1461.
510. One month after the takeover,on 30 May 1992,there was an ill-fatedattemptby a
small group of non-Serbsto regain controlof the town of Prijedor.Lightly armed
and badlyorganised, they wereeasily defeatedby the Serb forcesand most were
killed. After the attack, which was seizedas the opportunityto accelerate the ethnic Chapter5 -Section7
OpitinaPrijedor
cleansing ofPrijedor,the Serb authoritiesdividedthe non-Serbpopulationof the
town into men betweenthe agesof 12 and 65 and women,childrenand elderly men.
The men were taken to the Keratenn or Omarska camps and theothers to Tmopolje
camp. The predominantlyMuslimold part ofPrijedor,the Stari Grad, was destroyed
and the few non-Serbs who remainedwere requiredto identifythemselves asnon-
Serbs in public by wearing white armbands[ibid, pp. 57-58, para. 151-1521.
Thecamps
511. Right after the Serbtake-over on 30 April 1992,three large camps were openedin
opitina Prijedor: Omarska, Keraterm and TrnopoljeT . he establishmentof these
notorious campswas also found by the ICTFY in the TadiCJudgment:
"154. Afterthe take-over of Prijedor and the outareas,the Serb forces confined thousofds
Muslim and Croat civiliansin the Omarska, KeratermandTmopolje camps.The establishmentof
these campswas partof the Greater Serbiaplanto expel non-Serbsfiom opStinaPrijedor.
Generallythe campswere established andrun either at the directionof, or in cooperation with,the
Crisis Staffs,the armed forces and the po. uring confinement,both male and female prisoners
were subjectedto severe mistreatrnent,which included beatings,sexualassaults, torture and
executions. They werealso subjectedto degrading psychologicalabuse,by being forcedto spit on
the Muslim flag,sing Serbian nationalistic songsor to give the Serbian three-fingered
Prisoners were guardedby soldiers, police forces, local Serb yr TO units, or a combination
thereof, who were dressedin uniformsand generallyhad automatic rifles and other weapons on
theirperson.They cursed the prisoners, refeto them as 'balijas'or 'Ustd(...Membersof
paramilitary organizations and local Serbs were routinely allowteodenter the camps toabuse, beat
and killprisoners.[ICTFY,Trial Chamber,Opinionand Judgment,Prosecutor v.
DuSkoTadit, CaseNo. IT-94-1-T,7 May 1997,p. 59, para. 1541.
The same camps werealso describedby Judge Hanne Greve,who referredto them
as both "concentration" and "death" camps:
"~fter the Serbs took poweron 30 April 1992,they opened threeconcentrationcamps in OpStina
Prijedor. No concentration camps had exin OvStinaPrijedorat the time of the Serbian
takeover, or forhat matter, in the region sinceWorldWar II. Two of the concentrationcamps
were de facto kath camp- Logor [camp] Omarska and Keraterm.The third-Logor
Tmopolje -had anotherpurposeas it hctioned as a stagingarea for massivedeportationsof
primarilywomen, children, and elderlym(...Whereasthe death campswere under the
authorityof the Serbianmilitary and the Serbian police, mopolje had more of a civilian
image, notablywith the local SerbianRed Cross having atalfùnction.[United Nations,
FinalReport ofthe United Nations Commission of Experts,Sl19941674lAdd.2
(Vol. 1),28 Dec. 1994,Annex V, "ThePrijedor Report",p. 66, para. 337,
emphasisadded (italics)].Reply of Bosnia andHerzegovina
512. Judge Hanne Greve also described thegeneral characteristicsof the camps in the
Prijedor region:
"493. On 23 May 1992, Serbianspokesmenofficially announced the establistf the first
detention centre near Prijedorin northem BiH.
494. Soon aller the Serbs took power,in late May 1992,Muslim and Croatian leadersin Prijedor
startedto 'disappear', olater it becameknownthat they had beentakenLoao Omrarska and
Logo r eraterm. Political lea, fficiaisfiom the courts andthe administration (inclusivethe
police),cademicsand other intellectuals,religiousleaders, leadersfkomenterprises and businesses
- the backboneof the Muslim and Croatian communities th-were no more toleratedat liberty,
or rather they wereaken away apparently with theintentof their removal being per. efitL
behind without guidance anthe strengthof leadership were themuchbewildered ordinary Muslim
and Croatian people. This waygor Omarska andin a similarway, but not to the sameextent,
Logo r eraterm became instruments of the overall destructive policy.
(.->
495. Amongthose deîainedin the camps were former non-Serbian policennd other law and
order people such asjudges andjuristsin general. Moreover, former military pl,uch as
people enrolledin the TO,werearticularlytargeted.This left the non-Serbsalso withoutany legal
or armed protection.
496. As the campsof Omarska, Keraterm and Trnopolje were opened, onlaw casesfiom there
were openedfor investigation although thecriminalsectorof the legalsystemwas functioningin
its own exclusiveSerbian way.
497. In ruming the concentration camps, the Serbian polihe Serbian military cooperated.
As in the militarympaignagainst the non-Serbian habitationst,he police and the militarytook
advantageof the assistanceof quasi-military elements andgathered manpower (forexarnple,
fkomthe villages nearby Omarska) alsointhe concentration camps. A numberof the camp
guards may have been recruitedinto the police or the militaryfrom the reserve, others were
possiblynew recruits. Whetherto have assistancein exterminatingees, or to give anoutlet
for general aggression andto legitimize aggression against non-Serbs, or a of theseio
purposes,the Serbian leadersfurthemore opened up the campsto the most brutal people-round
belongingto paramilitaryforces orjust anybody. EspeciLogoinrmopolje, butalso in the
other camps,Serbianoldierson leavefiom their ordinary service seemto have gratifiedboth their
greed and whatever sadisticinclinations they[ibid.,p. 92, paras. 493-4971.
During their confinementin the camps,both male and female prisonerswere
subjectedto severe mistreatmentwhich included beatings,sexualassaults,torture and
execution [see also Reply, Chapter 5, Section51.
Theatrocities committedin opStinaPrijedor
513. In the above,the Applicantin rough lines sketchedthe developmentsin opitina
Prijedor shortly before, during and after the Serbtake-over in April and May 1992.
It is against this backgroundthat the atrocities,ensuingthe Serb coup in Prijedor,
should be considered. Chapter 5-Section 7
Opitina Prijedor
514. In the following,some examplesof these atrocitieswill be singledout and divided
into various categories:(1) killingsof the civilianpopulationduringthe attackson
non-Serbs areas and while takingthe non-Serbsto the concentrationcamps, (2)
killings in the concentration camps,(3) killing of the Muslim and Croatelite, (4)
torture, (5) rape, (6) inhurnanetreatrnent and(7) the destructionof Muslimand
Catholic religiousand cultural heritageof opitina Prijedor.
Killing ofthe civilian populationin attackson non-Serbareas
515. Large numbers of non-Serbcivilianswere killed in opitina Prijedor for the simple
reason that they were Croatsor Muslims.Much of the killing occurredduring or
shortly after the actual take-overby the Serbs.
516. The horrendousexampleof Kozaracwas already mentionedabove, includingthe
estimatesof the Muslims and Croats killed by the Serb forces,ranging fiom 800, the
"official"figure givenby the Serb authorities,to 5,000,the number mentionedby
Judge Hanne Greve in her Report on Prijedor.The Trial Chamberat the ICTFY
describedthe following incident,involving among others,DuSkoTadiC:
"(...) Nihad SeferoviCtestified that on the afiernoon of 26 May 1992, on his way back home fiom
the hills iniCi,he stopped at the orchard of a house across fiom the Serbian Orthodox church.
infiont of the church he saw approximatelysix Muslim policemenfrom Kozarac, including Edin
BeSiE,Ekrem BeSiC,Emir KarabaSiCand one Osman with their hands behind their necks standing
in line. fiont of them were the accused, Goran Borovnica,'Dule' [TadiC]a15 other
Serb paramilitaries who had weaponspointed at the Muslim policemen. Hesaw the accused pull
two of the policemen, Osman and EdinBeSiC,out of the line and kill themby slitting their throats
and stabbing each one severaltim[ICTFY,Trial Chamber,Opinion and Judgment,
Prosecutorv. Du& Tadit, CaseNo. IT-94-1-T, 7 May 1997,p. 141, para.
3931.
The Trial Chamberfound beyondreasonabledoubt that TadiCindeed killed the two
Muslim policemenas depictedabove.
517. The Serbs did not only kill men, they also targetedwomen and childrenwho had
followedthe instructionsbroadcastedby Radio Prijedorand were leaving the area of
Kozarac in a long column.Serbsfired grenadesat the columnrepeatedly, killing
several women. Some womenand childrenwere pickedout and killed at the roadside
by Serb soldiers. Other colurnnsof fleeing civilianssufferedthe sametreatment
[United Nations, Final Reportof the UnitedNationsCommissionof Experts,Reply of Bosniaand Herzegovina
Sl19941674lAdd.2(Vol. 1), 28Dec. 1994,Annex V, "The PrijedorReport",p. 52,
para. 2551.
518. Civilianswere massacredin great nurnbers,often after having beensubjectedto the
most outrageous torture. On27 May 1992,for exarnple,eight elderly peoplefrom
Kozarac were shepherdedinto a cellarand slaughtered[ibid.,p. 53, para. 2611.
519. In Prijedor town a similar massacretook place which was reportedby Special
Rapporteur Tadeusz Mazowiecki.The massacre took place shortlyafter the above
described attemptof a small group of Muslims and Croatsto retake Prijedor. The
Serb forces immediatelystarted to ethnicallycleansethose Prijedor neighbourhoods
with large Muslim populations:
"(e) The night 29 May tanks and infantrytook up positionsaroundPrijedor, citing the sarne
pretext as at Hambarineand Kozarac.Whenthe attack began, Serbs fiom the village [Prijedor]
guidedthe tanksto the homes of certain Muslimsand the inhabitants wereaskedto come out and
showtheir identity documents.Manyof those who did were summarilyexecuted.Accordingto
witnesses, some200 residentsof a singlestreet (PartisanSt.) wereexecutedand a hundred homes
were destroyed.Duringthe attack the local radio contto cal1for the surrenderof arms, yet
not one shothad beenfired by the Muslims.
(f)When the artillery barrage stoppedaround noon,groups ofexîremists,probablyunder the
control of the paramilitaryleader Arkan, beganexecutingpeople,takingtheir victimsto the street
and slitting theirthroats,accordingto witnesses.The bodiesof the deadwere carried awayby
trucks, which lefi a trail of bl[United Nations,Situation ofHumanRightsin the
territory oftheformer Yugoslavia,periodic reportsubmittedby Mr. Tadeusz
Mazowiecki, Special Rapporteur o the CommissiononHumanRights,
Transmitted bytheSecretary-Generalto the General Assemblyand theSecuri~
Counsil,Al471666,Sl24809, 17Nov. 1992,pp. 8-9, para. 171.
520. Another brutal killing took place in a Prijedor suburb, shortlyafter the Serbs started
the ethnic cleansing of the town:
"one survivorfiom the area relatesthat an identified Serbcommanderof a so-called intervention
unit...)in June1992,hadcome together withthree or four other Serbiansoldiersto arrest four
brothers in their home in the suburbTukovi.Whentheir mother startedto weepseshe did
not want her sonsto be arrested,the Serb commander ofthe so-called intervention unitshot dead
both the mother and herfour sons[United Nations,FinalReport ofthe United
Nations Commission of Experts, S/1994/674/Add.2(Vol. 1),28 Dec. 1994,
Annex V, "ThePrijedor Report",p. 58, para. 2901.
521. Anotherkilling incident in Prijedor tom was reportedby the United States
Department of State: Chapter 5 -Section 7
Opitina Prijedor
"A 57-year old Bosnian Muslim witnessetdhe ethniccleansingof Prijedor in late July 1992.
The Serbsin Prijedor killed large numbersof Muslimsinthe Muslimsection locatedin the city
centre. Thewitnesssawthem massacre 18 Muslim men at the homeof Mustafa Ceric, who was
one of the victims.NA soldierscut off two of his fingers(the littlefinger and the ring finger) 'so
they could makethe sign of the cross.'They then cut off the men'snoses and ears and finally cut
their throats.
The bodiesof these 18men were put on atrucktogether with40 or 50 bodies of other men killed
in PartizanankaUlica and wereburied inthe old coal minesat Tomasica,south of Prijedor.[US
Departmentof State,Bureau of PublicAffairs,Dispatch, 19Apr. 1993,Vol. 4,
No. 16, p. 258, Annex 191.
522. On 20 July 1992, Serbforces startedtheir attack ona larger area of predominantly
non-Serb villageson the left bank ofthe Sanariver. These villages suffered the
terrible fate of Harnbarineand Kozarac:
"303. Very hard hit in this major Serbianmilitaryattackon villageson the left bankof the Sana
river were, among others,the villagesBiSCani,Carakovo,RizvanoviCi,Sredice, and Zekovi. A total
of more than 1,500 people were allegedly killed on 20 Jy992alone.The mass killingsin
ëarakovo first startedon 23 July.
304. In Sredice andRizvanoviCi,for example,the Serbian infantry,paramilitarysoldiers,and other
Serbs with them reportedlywent fiomhouseto housemutilating, killing,and deportatingthe
inhabitants and otherivilianshaving sought shelter th(...Within afew days, no living beings
were left in the villages, butin numerous places there wereof dead men -often fathers and
sonstogether. Manyof the deadbodies aresaidto have beentembly mutilated, 15dead persons
had been chained together, many smaller piles contained approximatl0dead bodies each.
Smaller pileswere found even on the doorsteps ofivatehomes, largerones were in more central
locations.Infiont of one particularhouse,in a sandpit,there was a relatively larger pile. From
here, the Serbs had intendedtoake numerous captivenonBerbs by bus for detention. But,as the
bus was totally overcrowded,it is claimed that the Serbs forced almoshtalf of the passengersto
leave the busand executed themon the spot.
305. Carakovowas encircled on23 July 1992atabout3:00a.m. by Serbs comingin fiom al1
directions, not only fiomthe mainroad along the Sana River.The majorityof the Serbswere
wearing the uniformof the Serbian army. Some weredressedin the light-blue uniformof the
reserve police. Some ofthose inthe army uniformin addition worered ribbons and red berets.It
was believedthat the latter belongedto thertiCevci- among themwere Serbs fiom
neighbouringvillages.Somesoldierswere wearingwhite ribbonson their shoulders -they may
have been White Eagles. Allaroundwere the soundsof bombs andgrenadesexplodiig and
machine gun fire. Some of the Serbsgave commandssuchas 'Burndown!' and 'Kill'.It was like
a hunt, as one survivorrecounts,in whichalso the nearbyforest was searched fornon-Serbs.
Hundredsof people were killed -shot, burntalive,beatenor torturedto death in otherways."
[UnitedNations,Final Reportof the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994, AnnexV, "ThePrijedor Report",pp.
60-61, pm. 303-3051.
Nurnerousnon-Serbs were killedin other villagesin the area. Judge Hanne Greve
listed the villages in her Report and added thenumberof victirnsslaughteredbyRepIy of Bosnia andHerzegovina
Serb forces in the months followingthe take-overof Prijedortown. At the end of
July, for example,between 100and 120 Muslimciviliansfkomthe village of Jugovci
were killed on a crossroad nearLjubija. At the sametime, Serb military murdered
between 70 and 100civiliansin Lisina, in a nearby forest. In the villageof Redak,
200 Muslimcivilianswere killedin a single executionin the beginningof August
1992 [ibid.,pp. 62-63,paras. 312-3 161.
523. Those Muslims or Croatswho had not been killedwere then taken to the above
mentioned campswhich had beenset up in the opitina by the Serb forces.Many
were killed on the marchesto the camps. This practicewas also describedby the
Prosecutor atthe ICTFY in the Indictment of ieljko Meakié,the commander of the
Omarskacamp:
"1nMay, 1992, intensiveshellingof Muslimareas in the opStinaPrijedor causedthe Muslim
residentsto flee their homes. Theityof them then surrenderedor were capturedby Serb
forces. As the Serb forces roundedup the Muslimsand any Croat residents,they forcedthe
Muslimsand Croatsto march incolumnsboundfor one or anotherof the prison campsthat the
Serbs had establishedin thetinaTheSerbsforces pulled many of theMuslimsand CroatsJLom
the columnsand shot or beat themon the sp[ICTFY, Indictrnents,TheProsecutor V.
ZeljkoMeakiC & others, CaseNo. IT-95-4-1,13Feb. 1995,p. 2, emphasis
added] .
Similarincidentswere also reportedby the Commission ofExperts [United Nations,
Final Report of the UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol.
1),28 Dec. 1994, Annex V, "The Prijedor Report",p. 60, para. 3001.
524. Prisonerswere evenkilled as they were evacuatedfiom the concentration campsin
opitina Prijedor. The Commissionof Experts reported thefollowingmassacre on
VlaSiéMountain:
"598. On 21 August 1992,a convoy ofvehicleswith peopleleavingPrijedor forTravnikstopped
by Lopc oropolje and prisoners fiom the camp couldfieely enter the buses. More prisoners
wanted tojoin the convoyan there wasspace for on the buses. Oneelderly womanwarned the
prisonersagainst goingsayingthat she had 'heardhomble things'.Whenthe convoy reachedthe
VldiC Mountainthe prisoners fiomTmopolje were separatedfiom thepeople fiom Prijedor. The
prisoner- men only-were crampedintotwo buses, conceivab100men in each bus.The totai
numberwas probablyno lessthan250.Nearby a mountaintop, perhapscalled KoricanskeStijene
(or KocinskeStjen),the prisonershad to leavethe buses next toa cliff abovethe Ukrina (or
Ugljenka)River.Theprisoners were lined up in two rows and ordkneeldown andface the
river. It was several hundredmetres down to the river. Theclzflas such was very steep, but there
was also a slope next to it. Therewas a houseon the otherside of the valley. It was notfarfrom
Skender Vakuf-where some military andparamilitary Serbs had entered the buses. Chapter5 - Section7
OpitinaPrijedor
599. Afiring squadofsome 15Serbiansoldiersstartedshootingtheprisoners,of whoma limited
fav jumped of the mountainbeforebeingshot. One ofthesurvivorshidhimselflayingsome 50or
60 metresdowntheslope, underthebodyof anothermanwho was alreadydead. Serbiansoldiers
were alsothrowinggrenades down theslopefrom above. Somesoldierseven camedown theslope
to see to it thatal1theprisoners weredeThe next day, dead bodies were piled up and put on
fire by Serbs in camouflageiforms. One of the soldiers was wearing a badge with a white eagle
on hiscap." [ibid.,pp. 113-114, paras. 598-599, emphasisadded].
Killingof civilianswithin the camps of Omarska,Keraterm and Manjac'a
525. Thousandsof non-Serbs werekilled in the camps establishedin the Prijedor region.
The atrocitiescommittedin the camps of Omarska,Keraterm and Tmopolje has been
discussedat length in a previous Sectionof this Chapter [Reply, Chapter 5, Section
51.In the following,the Applicant willnot list the atrocitiesspelled outearlier in
this Chapter again. It will, however, give a few examplesof massacres committedon
civiliansfiom villages mentioned earlierin this Section and located in the Prijedor
Municipality.Many of the non-Serbswho had survivedthe first cleansing operations
in these villages were simply murdered upontheir arrivai in the camps.
526. The following incident, involvingsome 150 Muslirnsfrom the village of Hambarine,
was established bythe Trial Chamberin the TadiCcase when describing the
atrocities committedin the Keratenn camp:
"171. There was testimonyreceived of a mass execution of prisoners believed to have come from
Hambarine. One night prisonersheard bursts of machine-gun-fire, followedby individual shots.
Witness Q testified that the followingmoming they were called out to load over 150 bodies ont0 a
large truck andrailer which then left the camp with blood dripping from it. Machine-gun-firewas
repeated the following night with, according to evidence, over 50 bodies taken away the following
moming. Two fire trucksanived later and hosed down the area to wash away the blItseems
that the shootingtook place through the closeds of the room in which those prisoners were
confined;hose doors had large bullet holes pierced through them. Another account by a witness
speaks of a total of about 250 people beingkilled in thi[ICTFY,Trial Chamber,
Opinion and Judgrnent,Prosecutor v. DusuSb Tadii, Case No. IT-94-1-T, 7 May
1997,p. 63, para. 1711.
527. A similar slaughter was recountedby the Commissionof Experts. It alsohappenedin
the Keraterm camp and may bethe same massacrereferred to by the ICTFY:
"445. One of the former irirninKeratemnrelates the following about the by far largest alleged
massacre taking place in camp:Reply of BosniaandHerzegovina
'On 20 July 1992, HalNl o. 3 was emptiedfor prisoners.Thesedetainees weredispersedintothree
other detention halls.Later in the day, new bus loadsof captives arrivedto the camp.At this time
detainees inLogor Keraterm could observethat it was burningin the Hambarine area (...The
newcomerswere detainedin Hall No. 3.Startingat the sametime the prisoners inthe three other
halls were orderedtourinatein plastic barrels only.
In HallNo. 3 the doorswere firmly closed and there was nofresh air for the prisonerssqueezedin
there. No food andno water was provided forthe newly arriveddetaineesas long as they stayed in
Hall No. 3. A door fiom the toilet area to the hall was firmlyblocked by Serbiancamp officials.
Thenceforththe barrels with urine were emptied nextto the blockdoor to flow intoHall No. 3.
On the night of 24 July 1992, one campcommander'sshift (inthe following referredto as shift
A) came to the camppossiblyat about 19.00 hours, later also another commander'sshift of camp
guards(in the following referredto ashifiB) appeared. (...Earlier inthe day some 15 people in
military uniforms hadcometo the camp. Therewere four machineguns postsoutsidethe front of
the factory building, now the weapons were al1aimedat Hall No.3. Inthe eveningthe guards on
shift took outin front of the factory buildingsometen prisoners, had themkneel in a circlewith
their hands behindtheir heads.The guardsthen ran around thecircle screamingas they beat the
prisoners severely.One of the peoplethus maltreated was subsequently thrown nextt Hall No. 2
by the guards, and died theresome 15minutes later. Othersmay have encounteredsimilar
consequences.
At about mid-nightit could be heard that windows highup on the front of the wallto Hall No.
were broken. Someone cried out, 'Do not shoot unless the command oefrshift A instructs that.'
(Shift Awas on duty that night.) Thensomeoneelseyelled out, 'They [the detaineesa]re fleeing.'
Then heavy machine gun fire started. The commandeo rf shift A yelledthat the shooting should
stop. His instruction was ignored, and someone mockehdim sayingthat, 'A Serbian mother has
given birthto anUstaSason.'At first the prisoners like himself detaioutsideHall No. 3.
thoughtthat the long lasting shootingwasmerelyto terrorizethe prisoners.At dawn he was told
by fellowprisonersthat it seemed that the prisonersin HallNo3 had been killed.A little later he
himself saw a huge pile ofead bodiesoutsideof Hall No. 3. Atabout 05.00hours a large lorry -
FAD 1620,24 tons -drivenby an identified man (...arrivedto the camp. Some prisoners
probably fiom hall No. 1 and Hall No. 4 (hwas detainedin Hall No. 2 himself) and afew who
appearedto be survivorsfiom HallNo. 3,were orderedto heap the dead bodieson the lony. First
they had totake out the dead prisoners from Hall No.3, thereafterto removethe pile of corpses
laying outsidethis hall. One prisoner participatingin loadingof the d-and withthe corpses
also wounded prisoners -on the lony, afterwards toldhimthat he had counted98 dead and 62 or
63 woundedprisoners. Others claimedthe total of death was150,and that the wounded numbered
between 30 and 40. Later in the day,two fue trucks came and hoseddown hall No. 3 andthe area
outsideit to remove al1the blood there.
The night of the mass killingand the next daythe mainroad (fiom Prijedorto Banja Luka) passing
the camp was closedfor traffic."Vnited Nations, Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex V,
"The Prijedor Report",pp. 84-85, para.4451.
528. The villagers fiom Hambarine and thevictims describedin the incidentabove were
shot. However, for the majority of the prisonerskilled in these camps shooting
would have been a relativelymercifulway of being killed. Most ofthose who were
killed died fiom much more primitivemeans. They werebrutally beatento death
with rifles butts, basebailbats, bottles, industriaicable, iron bars or fists. According
to the Report of Judge Greve, for every five deathsin Omarska,four were dueto
torture and one was due to shooting [ibid.,p. 78, para. 4081. Chapter5 -Section 7
Opitina Prijedor
529. In July 1992, for example,a number ofciviliansfiom BiSCani,the ethnic cleansing
of which was referredto above,were killedjust after their arrival in Omarska:
"1n July 1992, some 40 prisoners fiom BiS6aniwere kiLogoriOmarska, according to other
camp inmates. It was gruesome. The prisoners fiom BiSCanicried out in agony as they were pulled
out of the bus and thrown head first against a brick wall.There heads were allegedly smashed into
the wall for each of them to 'dig' out a five centimetresdeep hole, the Serbian perpetrators
announced." [ibid.,p. 60,para. 3011.
530. After having discussedthe atrocitiescommittedin Omarska,Judge Hanne Greve
concludedher report on the campas follows:
"all information available Lonot Omrarska seems to indicated that it was morethan anything
else a death camp. The detainees were not there to work or serve a specific purpose. There is no
information toustain a claim that the detainees were in transit to somewhere else. As far as the
prisoners were concemed, the interrogationled nowhere out of the camp, and the camp conditions
were such that very few, if any, prisonerswould have survived a long-term [ibid.,p.."
80, para. 4241.
In the Prijedor Report,the Keratermcamp wasdescribedas "a smaller,but basically
not better, extensionof Omarska"[ibid., p. 81, para. 4251.
531. As was noted earlierin this Chapter[Reply,Chapter5, Section51,the Prosecutorat
the ICTFY indictedthe commander of Omarska, ieljko MeakiC,and Keraterm,
DuSkoSikirica, for the atrocitiescommittedin the campsunder their authority.Both
MeakiCand Sikiricawere indictedfor genocide.
Killing of elite
532. As in other areas under Serb control, thenon-Serbelite of Prijedor was specifically
targeted for destruction[seeaboveReply, Chapter5, Section21.As soon as Serb
forces would enter a village or town, they would start selectingMuslirnand Croat
leaders. The followingaccountrelated by Judge Hanne Greve illustratesthe
treatmentthe Serbsreservedfor presumedpoliticalopponents:
"306. The Serbs were also lookig for some civilianssuch as the leader of the Muslim political
party, the SDA, in Prijedor (...) and the party's secretary. In Carakovo, there was a very large
family with a name similar to that of the SDA leader. The Serbs mixed up this name with the
family name of the SDA leader and for this reason allegedly killed every memberof that family
which they could find. Two elderlynon-Serbs fkomthe area registered 268 people whom they
knew by name, killed in Carakovo on 23 and 24 July 1992. On their31iidentified persons
with the surname of the family mistaken for that of the SDA leader (...). Reportedly, a total ofReply of Bosnia andHerzegovina
approximately100 membersof this familywere extenninatedduringthe attack. There isalso a
hamlet namedHopovCiin the area, where peoplehad the sarnefamilyname as the SDA secretary.
The elderly men have19identified personswith this name onthei(...The SDA secretary is
not on the list. On the listthere are,however, other large family groups included,
people sharinga common familyname.Altogether thereare only 30 sumameson the list,Savefor
an identified murderimam (...whosesumarnewas unknownto the two elderly men."[ibid.,
p. 61, para. 3061.
When killing, the Serb slaughterersapparently preferredto remain on the "safe side"
and intentionally madesure that, indeed,the destruction ofthe groupas such would
be accomplished.
533. The Omarskaconcentrationcamp had, as one of it's main functions,the elimination
of the leadersof the non-Serbs ofopitina Prijedor.By murdering the educatedelite
of the Muslim and Croat communities theSerb nationalists aimedto permanently
extinguish the functioningof the non-Serb society. Inher Prijedor Report, Judge
Hanne Greve demonstratedthat the Serbsin controlof the area consideredmany
persons to be part of the group to be separated forextermination:
"~mong the prominent citizens of Prijedorwho had survivedthe initial phaseof the devastation
and whowere detainedin Omarska, are long listsof identified personswhoseare not
disclosed forreasonsof confidentiality or prosecutorial reasons. Amongmention but
some) :the mayor; politicians from theSDA and the HDZ in Prijedimamanj;dges and
lawyers;employeesfrom themilitaryandcivilianssectors;a veterinarian, a physiotherapist, a
dentist,and a numberof medicaldoctors; an engineer and some economists; headmasters and
teachers fiom schoolsat different levels;journalistsand an editorof Radio Prijedorand of
KozarskiViesnik;an authorand an actor; directors and memof RudnikaLiubiiamanagement
board; directors and managBosnamontaZa,Kozaracturist,Celuak,and the biscuitfactory
Cikota; thedirector and the secretaryof the Prijedor Red Cross,the presidentof Merhamet(the
Muslimcharity organisation) in Prijedor; restaurant owners, business men and entrepreneurs;
leaders of sportsclubsand footballplayemted Nations,Final Report of the
UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28 Dec.
1994, Annex V, "ThePrijedor Report",p. 67, para.3431.
534. Politiciansand academics, judgesand religious leaders, merchants andartists - the
backbone of the Muslimand Croat communities - were removedwith the intention
that the removal wouldbe permanent. Similarly,law enforcementand military
personnelwere targeted for destruction.This was significantin that their
disappearance renderedthe group as a whole defenceless.In the opinionof the
Commissionof Expertsthis was the main objectiveof the concentration camps
[ibid., p. 42, para.1751.
535. This was entirely deliberateand plannedby the Serb authorities,accordingto Judge
Hanne Sophie Greve:Reply of Bosnia and Herzegovina
the take-overof the area. In the TadiCJudgment, theTriai Chamber,for instance,
described the brutal attack on two smallvillages in theKozaracarea, JaskiCiand
Sivci, where a number of non-Serbshad sought refuge after the take-over of
Kozarac:
"346.On 14 June1992 both villages were attacked.In the morning the approachingsoundof shots
was heardby the inhabitantsof Sivciand soon after Serb tanks and Serbsoldiersenteredthe
village. Theouseswere searched oneby one and al1the men were orderedout ont0the road that
ran throughthe village.There they were madeto run along thatroad, hands claspedbehindtheir
heads,to a collecting pointin the yard of one of thes.On the way there they were repeatedly
made to stop,lie down onthe road andbe beaten andkickedbysoldiersas they lay there,before
being madeto get upagain and run some distancefurther,where the whole performance wouldbe
repeated. Their wallets, identification cards and any valuabyad on them weretaken from
them as they lay on the road. In al1s350 men, mainlyMuslimsbut including a few Croats,
were treatedin this way in Sivci.
347. On arriva1at the collectingpoint,beaten andin manycases covered withblood, somemen
were called outand questioned about others,and were threatenedandbeaten again. Soonbuses
arrived, fivein all, and the men were madeto run to them, hands behindthe head, andto
crowd on tothem.They were then takento the Keraterm camp.
348.The experienceof the inhabitantsof the smaller villageof JaskiCi,which containe11only
houses,on 14 June 1992was somewhatsimilarbut accompaniedby the killingof villagers. Like
Sivci, Jaskikihad receivedrefugeesafter the attackon Kozarac bu14June 1992 many of those
refugees had left for other villages.In the after14oJune 1992gunfire washeard and Serb
soldiersarrived in JaskiCiand orderedmen out of their homes andont0the villageStreet,their
hands clasped behind their heads; there they were made to liednd were severelybeaten."
[ICTFY,Trial Chamber,Opinion and Judgment,Prosecutor v. DuSkoTadit,
CaseNo. IT-94-1-T, 7 May 1997, pp. 124-125, paras.346-3471.
The Trial Chamberestablished that theattack on the villages of Jaskiti and Sivci
indeed occurred and that DuSkoTadit was one of the Serbs involvedin the
consequent beatingsof the villagers.
539. Like the mencapturedin the village ofSivci, thousandsof the non-Serbsthus
arrestedwere taken to the various campsin the area. As demonstratedearlierin this
Reply [Reply, Chapter5, Section 51,extremeill-treatrnent,brutality and deliberate
torture were also cornmonplacein these camps. These incidents involving torture
were also found by the Trial Chamber.In Omarska,Emir BeganoviCwas severely
beaten:
"~fter the Serb assurnptionof power F'rijedorhe [EmirBeganoviC]had been arrestedandtaken to
Omarskaprison camp where, after some 10days outdoorson the pista andtwo dayinthe white
house,he was placed in a roomin the hanger.Apart fromwhat he describesas routine beatings
and maitreatment, heas three times beaten individua(...Emir Beganovic was cailed out from
an upstairsroom in the hanger, made togo ont0the hanger floor, being beatenas he went, and
there for upto half an hour was kickedand beaten by a group of soldiersarmed withmetalrods Chapter5 - Section 7
OpStinaPrijedor
and metal cables.Then he was suspended upside downfkoman overhead gantry forsomeminutes
until hisfeet slidee andhe fell to the floor;he wasthen beaten again and toldto return to his
room, where he fainted. As aresultof this andof previous beatings Emir Beganovic suffered head
hctures, a wastedhandwhich he cannotuse, an injuredspineand damageto one leg and to his
kidneys."[ICTFY, TrialChamber,Opinion and Judgment,Prosecutor v. DuSko
Tadit, Case No. IT-94-1-T, 7 May 1997,p. 73,para. 2001.
The Trial Chamberwas satisfiedbeyond reasonabledoubt that the incident indeed
took place andthat DuSkoTadiCwas of the group ofmen who severelybeat Emir
BeganoviC[ibid., p. 86, para. 2351.The Trial Chambercame to the same conclusion
in the case of Senad MuslimoviC:
"~e [SenadMuslimovi6]had alreadybeenbeatenmuchand on the sameday as these other
incidentshe was called outof the room in the hanger, beatenas he went downtheirsto the
hanger floor and metby a groupwho beat him severely, tied himto a largetyre biggern
himself and there beat and kicked hintounconsciousness. Whenhe regained consciousnesshe
was on his knees and a man was holding a knifeto histhroat and threateningto cut it butwas told
to 'leave it forthe end'. That manthen madeto cut off his ear but insteadstabbedhim twice in the
shoulder.He was then beatenagain into unconsciousness and when cameto found himself
hanging upside down suspendedfkomthe hangar roof,in which position hewas again beaten and
kicked untilhe fainted. When hecame togainhe was lyingon the floor, was beaten again, fainted
yet again, came to once more and thistimefound himself lying in an inspection pit let into the
hanger floor.He was taken out of the pit and was allowedto retum to his room in the hanger.He
suffered knife woundsto his right shoulder, knifecuts along hisarms and feet, bmising,head pains
and a brokenjaw." [ibid.,pp. 73-74, para.2011.
DuSkoTadiCwas not only convictedfor the above described incidents, he was
charged and found guilty for various other incidents involvingtorture of non-Serbs.
540. The Muslims and Croatsin the campswere not simplymaltreated. The prisoners
were tortured because of their ethnicity.In its Judgment in the TadiCcase, the Trial
Chamber gave various examplesof this humiliating practice:
"~ase Ici6(...testifiedthat while at the Omarskacamphe was forced alongwith otherprisoners
to lie onhis stomach with his arms outstretched over hisdithwhree fingers together inthe
Serb salute.If a prisoner's fingers were noitn the correct positionhe was beaten by the guards
with riflebutts and the prisoners weredl madeto shout: 'Be agreat Serb,you Serb.' Some of the
Serbs slashedtheprisoners' clothes andt crosses in prisoners' bac. e testifiedthat at one
point he was called out and forcedtoeetthe groupof Serbsby saying: 'Godbe with you,
heroes', before aoosewas put around his neck and pulleas he was being beaten.[ibid., p.
168, para. 4711.
541. In addition to being maltreatedthe non-Serbs wereridiculed for their religion. This
was, arnong others, explainedby the Trial Chamber:Reply of Bosnia andHerzegovina
"467. The abusesagainstnonSerbs were motivatedby religious and political reaso. he curse
directedat Muslimsmost often was the derogatory term, 'bali,s well as 'Fuckyour Alija',
refemng to the SDAleader Alija IzetbegoviC.Theseindicated the motivations of the perpetrators.
Abuse wasalso directed towardsCroatsfor political reasons.There was repeated testimonythat
men were forcedto hold their hands inthehree-fmgerSerb salute,which is a traditionalSerb
greetingand has meaning within the SerbianOrthodoxchurch, andseveralwitnessestestified that
crosseswere carved on men's bodies. Numerous witnesses testifio hearing discriminatorycurses
such as 'balija mother','Ustda mother', and 'Alija mother', usuyassociation with a beating.
Many were requiredto sing Serb nationalistic songs and soof the camp guardswore the
'Chetnik kokarda', the two-headed eagle describedequivalentto wearing a Nazi swastika. A few
specificexamplesare sufficientto indicate thehorrendous treatment infiicted on the non-Serb
populationof opStinaPrijedor on the basisof religion and politics.
468. UzeirBeSiC,a Muslim, testified that afiewas beatenat the Prijedor militarybarrac(...),
he was taken along with two othersto the Keraterm camp where they wertumed over to a Serb
soldier named Zoraniigi6, who immediately asked theirnationaliîy.When theysaidthat they were
Muslimshe orderedthem to demonstratehow Muslimspray andto removetheir trousersto see if
they were circumcised, threateningthat if they were nothe wouldperformthe operation. Afier they
did sohe beat them withthe butt of his rifle anderwardstook themto Room 1. UzeirBeSiC
testifiedthat he sawothers being treatedin the samemanner andthat he and otherswere called out
and beaten and forcedto sing Serbian songs.[ibid.,pp. 166-167, paras.467-4681.
Therefore, the aim of the abuseswas not only to cause as much pain as possible, the
aim was also sheer humiliation,while the humiliationwas expresslyethnically
motivated.
Rape and sexual assault
542. The non-Serb residentsof the Prijedorarea were regularly subjected to rape and
other sexualabuses [seealso Reply, Chapter71.Many sexualassaultswere
committedin the Prijedor camps: Trnopolje, Omarska and Keraterm.
543. Although conditions in the Trnopoljecamp wereless worsethan either Keratermor
Omarska, thefemale inrnatesof Trnopoljewere regularlysubjectto rape and sexual
assaultby members of the Serb forces. After having notedthat the women of
Trnopoljewere regularly abused, Judge Hanne Greve describedone typical incident:
"476. On 6 June 1992,to givejust one exampleof what isreported, Serbiantank drivers came into
the camp and seizedsome 30-40youngfemalecamp inmates.Amving between 10.00 p.m. and
midnight,the soldier(...were moreor less dnink. Theyforced thegirls and womenout with
them. When thefemale prisoners were returnedto the camp, they had beenraped and mistreated,
and their clothinwu in tatters.[UnitedNations,Final Report of the United
Nations Commission of Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,
Annex V, "ThePrijedor Report",pp. 88-89,para. 476, emphasisadded]. Chapter 5- Section 7
Opitina Prijedor
544. Rape and sexual assault ofprisonerswas an integralpart of the regime in the
Omarskacamp, certainlyfor the smallnurnberof womenheld there.These rapes
were combined withother abusesand often were cormnittedby more than one
perpetrator :
"401. Starting fiom the very begiming of the camp, female prisonerswere allegedly raped by
Serbian camp guards, Serbian campfficials, and other Serbs. Rapes were reportedly often
combined with beatings and other abuses. Often rapes were committedbyeral perpetrators one
after the other. Sometimesthe rapist had an audience, sometimesit was merely fellow perpetrators
waiting to take tums. Like the rest of the prison population the womenwere not asotected
against eitherl-treatment or torture.
402. Two of the youngestwomen spent most of the time in the White House where they were
raped and tortured. Almost1the women were badly tortured when inthe camp. Most women
were subjected to sexual assaultey were hurniliatedby being promised privileges and threatened
that if they did not obey, they would not survive.", pp. 76-77, paras.401-4021.
545. The guards also forcedor attemptedto force prisonersto have intercourse with each
other for the entertainmentof the guards:
"403.The guards reportedly tried to force one prisoner (...) to rape his fellow prisoner(...), a
young woman. He did not want to. He had anpina ~ectoris [a heart condition].The guards stripped
both. The male prisoner begged and screamed, cannot, 1cannot, she could have beenmy
daughter'. The guards beat him, his heart could probably not .n any event, he was carried
outside where it was raining heavily. The next morning other prisonerssaw the male prisoner's
dead body laying outside of the White House.
404. Men were also reportedly sexually abusedin the camp. Prisoners were, interalia, forced to
have homosexual intercourse with one another,close relativese fathers and s-namong
them." [ibid., p. 77, paras. 403-4041.
546. The prisonerswere additionallysubjected tovariousdegreesof inhumanetreatrnent
of a sexual nature. Thisincludedforced sexual assault andcastrationand genital
mutilation.One such incident,for example,involvinga Muslimprisonerwho was
forced to bite off the testicles of another prisoner,was describedby the Trial
Charnberat the ICTFYin the caseof DuSkoTadiC[ICTFY,Trial Chamber,Opinion
and Judgment,Prosecutor v. DuSkoTadit, CaseNo. IT-94-1-T, 7 May 1997,p. 75,
para. 2061.
Destruction of religious and culturalproperty
547. As was explained earlier in this Chapter [Reply, Chapter5, Section41,the
destructionof religious and culturalproperty was an inherentpart of ethnicReplyofBosniaandHerzegovina
cleansing.opitina Prijedor,unfortunately, wasno exceptionto this mie. In Prijedor
practically al1Muslim sacral building havebeen destroyed,dong with a number of
Catholic sacralbuildings.
548. The result of this deliberateSerb policy were described extensively by Judge Hanne
Greve. The five main mosquesof Prijedor town were completely destroyed shortly
after the Serb assault.In the Kozaracarea al1sixteenmosqueswere demolishedas
well. Not a singleMuslim religiousbuilding inthe entire Prijedorregion has been
spared and remains intact. Most religious constructionsare not only darnaged,but
reduced to rubble:
"557.Also,other buildings and habitations consds typically Muslimhavebeen demolished.
The Old Townin Prijedor town,tarGrad, was onesucharea with strong Muslim architectural
influence.fter the Serbian forces puthe area, StariGrad was levelled almost completely,
including a numberof new houseswhich had been erected accordintgo Muslim traditions."
[UnitedNations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,AnnexV, "The Prijedor Report",p.
106, para. 5573.
Catholic churchesand other religiousbuildingsin the area encountered thesame fate;
many, if not all, were destroyedby Serb forces afterthe take-overof Prijedor [ibid.,
pp. 106-107, paras. 554-5621.
549. The Serb authorities in Prijedoroften stated that religiousbuildingshad to be
demolishedas they were being used by snipers "as convenientplaces for battle [ibid.,
p. 197, para. 5601.Judge Hanne Greve, however,firmly dismissedthese claims as
false:
"~he sacral edifices were allegedly not desecrated, damaged and destroyed for aaposeliptu
nor as a side-effectof the military operationsas such.Conversely,most of thedestruction was due
to iaterseparateoperationsof dynamitin[ibid.,p. 106, para.5561.
550. In sharp contrastwith the enormousand irreparabledamagecausedto Muslim and
Croat property, not a single sacred Serb objectwas destroyedin the entire opitina
Prijedor [ibid.,p. 107, para.5611.
Conclusion
551. The key to understanding thegenocidalnature of the campaignin opitina Prijedor is
that the non-Serb populationwas not destroyedor deportedas the result of prolonged Chapter5 -Section 7
Opitina Prijedor
fighting. As mentioned earlierin this Section,the Serbtake-overwas effectuated
within thirty minutes, almostwithout a shot being fired. The subsequent
exterminationin part anddeportation in totalwas thereforenot the inevitable side
effect of an armedconflict.
552. After the Serbtake-over ofPrijedor,the self-appointedauthoritiesused the military
and police to systematicallycleansethe opitina of al1non-Serbs.The aimof al1
armed operationscarried out in Prijedor,Kozarac,Hambarineand the other villages
mentioned abovewas not the eliminationof any Muslimor Croat armed forces;
those simply did not exist.The Serb authoritiesused their ovenvhelmingmilitary
power to kill, torture, rape andsexualassaultthe non-Serbpopulationand to
terrorise them into fleeing.
553. The core of this ethnic purificationwas the treatrnentof al1non-Serbsas suchand
not as individualsin theirown right. Everyonewho was not a Serb couldbe
subjectedto persecutionat any time. After the take-overof 30 April 1992,the non-
Serbs lost their general legal protection anthe courtsstoppedfùnctioning.The
entire police structure wasreplacedby a pre-organisedfülly Serb police force.The
non-Serbs were disarmed physically, intellectually and spiritually whentheir leaders
and defenderswere taken away to the death camps of Omarska and KeratermI.n
running the camps, theSerbian policeand the Serbian militarycooperated. Whether
to give assistance in exterminatingdetainees,to give an outlet for general aggression,
to legitimise aggression againstnon-Serbs, oras a combinationof these purposes,the
Serbian leaders furthermoreopened up the campsto the most brutal people around -
those belongingto paramilitaryforces or just anyone whowould participate.Men
and womenprisonerswere subjectto the will of any one of these persons.
554. The campaignagainst the non-Serbswas bitterly successful.By the month of June
1993 the figure of killed and deported persons was 52,811 of which 43,330 were
Muslims, 3,313 Croats. In the followingmonthsthe number of non-Serbsfurther
decreased,as was establishedby Judge Hanne Greve:
"Theextremepersecutionto whichnon-Serbsaresubjectedandtheir almost totallackof protection
inthe districtis illustratedbythefactthattheICtheUNHCRaskedpermissionfiomthe
Serbs,ltirnoMarch1994,to evacuateal1remainingnon-Serbsfiom OoStinaPrije[United
Nations, Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2(Vol. 1),28 Dec. 1994,Annex V, "ThePrijedor Report",p.
7, para.51.Reply of BosniaandHenegovina
The request of the InternationalCornmitteeof the Red Cross and the United Nations
High Cornmissionerfor Refugeesto evacuate theremainingnon-Serbsmarked the
final stage of thethnic cleansingprocess as canied out by the Serb authonties in
opitina Prijedor.
8. Srebrenica
Introduction
555. This Sectionof the Reply containsa strong and indeedincontestablefactual basis for
the finding that genocidal actswere cornmittedin the Srebrenicaregion, in east
Bosnia and Herzegovina. In the three years and four months between April 1992and
July 1995, part of the Muslim populationliving in Srebrenicawas destroyed. This
was achieved by mass killings, the causingof seriousbodily and mental harm to
members of the Muslim population, including torture, rape and other inhumane
treatment, and the forced relocationof the survivingpopulationof Muslims by
starvation,terror and the threat oftorture, killing and rape.
556. The facts that are recited below are gruesome. JudgeRiad of the International
Criminal Tribunal for the Former Yugoslavia (ICTFY)captured the horror of the
facts detailed bysaying that "Theseare tmly scenesfiom hell, written on the darkest
pages of human history" [ICTFY,Trial Chamber,Review of the Indictment,
Prosecutor v. RadovanKaradfit and RatkoMladii ("Srebrenica '9,CaseNo. IT-95-
18-1,16Nov. 1995, p. 11.
That the deeds cornmittedin Srebrenicaindeed wereof a genocidalnature was
confirmed by the Trial Chamberof the ICTFY in its Review of indictmentagainst
MladiCand KaradZit pursuantto Rule 61. The Charnberstated that many of the acts
descnbed below can be characterisedas genocide. This holds true for the killing of
members of the Muslim group, the causing of seriousbodily harm to members of the
group, whch "occurredthrough inhumanetreatment,torture, rape and deportation",
and the deliberate inflicting on the group conditionsof life calculatedto bring about
its physical destructionn whole or in part "throughthe siege and shellingof cities
and protected areas" [ICTFY,Trial Chamber,Review of Indictmentpursuant to Rule
61, Prosecutorv. RadovanKaradZié andRatkoMladié,Case No. IT-95-18-1,11 July
1996,p. 52, para. 931.Al1this took place in Srebrenica.The Chamber added that Chapter5 -Section8
Srebrenica
"T'henumberof victimsselectedonly becauseof their memberin agroupwould leadone to
the conclusionthatintentto destroythe group,at leastin part,was ~re[ibid.,para.
941.
A briefhistoryof thefa11of Srebrenica
558. Srebrenicais a small town in the eastem part of Bosnia and Herzegovina.It is
located in the valley of the Drina river which forms the border between Bosniaand
Herzegovinaand Serbia. The prewar population of thetown was 9,000. Muslims
comprised 74,8 per cent of the population[UnitedNations, Final Reportof the
United Nations Commission of Experts,Sl19941674lAdd.2(Vol. V), Annex IX, p.
471.
WUIRN PRSIOENCY
6OSUiLC0I)T
559. Srebrenicawas attacked in April 1992.Paramilitarygroups fiom Serbia crossed the
border into Bosnia and Herzegovinain April 1992 and attacked Muslim communities
in towns north of Srebrenica. Theparamilitarygroup known as the "Arkan
TigersW[see Chapter 8, Section 7 of this Reply] took Srebrenica in the same monîh.
Unlike most other towns in the region, in SrebrenicaMuslimssucceededin mounting
resistance and in May 1992they retook Srebrenica Together 6th 2epa and
GoraZde,Srebrenica was one of the few areaswere the initialSerb onslaughthad not
succeeded.For the Serbs, Srebrenicabecame an enemy island within what they
consideredto be their temtory. The Applicantinfers fiom what followedthat the
Serbs had the intent to cleanse them asunwelcomeethnic areas in what otherwise
was pure Serbtemtory. This cleansingwas effectuatedby a pattern of killings,Reply ofBosnia andHerzegovina
torture, rape,inhurnanetreatrnentand forced relocationof those who survivedthese
acts.
560. In late 1992,the Serb forces launched anoffensiveon the enclave.Thousandsof
Muslims from neighbouringvillages fled into Srebrenicatown to seek refuge. In
early March 1993, 60,000 people lived in Srebrenica. Respondentstates in the
Counter-Memonalthat the figure of 60,000, which the Applicant has also mentioned
in its Memorial, is exaggerated "inorder to present a distortedpicture of their
suffering"andthe actual number would befar lower [Counter-Memorial,p. 45, para.
1.3.2.31.1.Applicant has not made up the number of 60,000. Rather,it relies on the
carefullyresearched report of the United Nations SpecialReporters of the
Commissionon Human Rights [UnitedNations, Situationof HumanRightsin the
Territoryof the Former Yugoslaviap ,eriodic report submittedby Mr. Tadeusz
Mazowiecki,Special Rapporteurof the Commission onHumanRights,
E/CN.4/1994/3,5 May 1993,p. 8, para. 301.The Security Council Mission
establishedpursuant to Resolution 819(1993)put the numberin April 1993 even
higher at 70,000 [United Nations,Reportof the SecurityCouncilMissionEstablished
Pursuantto Resolution819 (1993), S125700,30 Apnl 1993,p. 5, para. 81.The Serb
forces insulated Srebrenicafiom the outsideworld. On 1 April 1993,GeneralMladiC
informed theUnited NationsHigh Cornmissioner forHuman Rights that he "would
not permit any more aid to be brought into Srebrenica,but wouldallowUNHCR to
continue the evacuation only" [UnitedNations,Letterdated 2 April 1993Ji-omthe
United NationsHigh Commissioner forRefugeesaddressedto theSecretary-General,
S125519,3 Apr. 1993,p. 23.
561. In view of the deteriorating situationin Srebrenica, on 16 April 1993,the Security
Council, acting pursuant to ChapterVI1of the United Nations Charter, adopted
Resolution 819 (1993). In this Resolution,the Security Councildemandedthat al1
parties to the conflict in the Republicof Bosnia and Herzegovinatreat Srebrenica
and its surroundingsas a safe area that should be free fiom any armed attack or any
other hostile act.
562. One daylater, the Govenunent of the Republic of Bosnia and Herzegovina and the
Bosnian Serb leadershipconcludedthe Agreementfor the Demilitarizationof Sre-
brenica wnited Nations, Report of the SecurityCouncilMissionEstablished
Pursuantto Resolution819 (1993), S125700,30 Apr. 1993,Annex II]. The Agree-
ment provided interalia for evacuationof the wounded anddeploymentof a
Companygroup of UNPROFORinto Srebrenica. Chapter -Section8
Srebrenica
563. In accordance with the Agreement, the evacuation ofwoundedtook place and more
convoyswere granted accessto Srebrenica. RespondentStatesthat the fact that
evacuationwas allowedwould attest tothe fact "that thereexisted no genocidal
intent" [Counter-Memorial,p. 45, para. 1.3.2.331.As has been elaborated in Chapter
2 of this Reply,this argument fallsbelow legalcriticism. The argumentthat ethnic
cleansing byremoving part of the populationthrough killing, starvation, rape and
torture would excludea finding of responsibility for genocidecannot be upheld in
view of the contentsof the Genocide Conventionand the intention of its drafters [see
further Chapter 21.
564. After the evacuations,seriousproblems remained,particularly in view of the
overcrowdingof the area [UnitedNations, Situationof HumanRights inthe
Territoryof the Former Yugoslavia,Periodic Report submittedby Mr. Tadeusz
Mazowiecki, Special Rapporteurof the Commissionon HumanRights,
ElCN.41199413,5 May 1993, p. 10,para. 391.After the evacuationsthere were still
some 40,000 Muslims in Srebrenica. These 40,000 people couldnot survivewithout
outsidehumanitarian aid. The Serbs, however,did not allow such aid. The
consequencesare detailed below.
565. This situationof an overcrowdedtown with totally inadequatesupplies of water,
food and medicine lasted for two more years.On 5 and 6 July 1995, Serb soldiers
enteredthe enclave. On 11 July, the town wastaken by Serbs and the paramilitary
group the Arkan Tigers.
566. At that point, the population split in two groups.A large part of the population
(about 15,000Muslims)tried to flee to Tuzla. Many of those would be killed or
captured.The 25,000 Muslimsthat had stayed behindin Srebrenica fled to the
UnitedNations Compoundin PotoEari[United Nations,Situation ofHumanRights in
the Tem'tov of theFormer Yugoslavia,FinalReport by Mr. TadeuszMazowiecki,
SpecialRapporteurof the Commissionon HumanRights,ElCN.411996192 , 2 Aug.
1995,p. 41. On 12 and 13 July, these 25,000 peoplewere eitherkilled or deported.
Men were separatedfrom the women. Thousands ofMuslims,both of the group that
fled to Tuzla and the group that stayedin Srebrenica, werekilled, tortured and
otherwise subjectedto acts that, asApplicantwill showbelow, qualiG as genocide.ReplyofBosniaand Henegovina
567. The genocidal acts for which Applicant holds Respondent responsiblecan be grouped
in the following categories: rape, tortureand inhurnanetreatment.
Certainerroneousand misleadingstatementsof theRespondentconceming
Srebrenica
568. First, however,it is necessaryto rebut certain statementsthat the Respondenthas
made on the situation of Srebrenicain paras. 1.3.2.26 - 1.3.2.29 ofits Counter-
mernorial.The Respondentproduces a rather confusingseries of propositions.The
Respondentapparently triesto show thatMuslirns wouldhave had plans for "new
destructions" that wouldfollow alleged genocides in World War One and WorldWar
Two [Counter-Mernorial,p. 44, para. 1.3.2.26.1.It is not quite clear what, according
to the Respondent, the legalrelevance of these statementsis. But it is clear that the
Respondent does not provide any credible evidenceof such plans. The Annexes to
which the Respondentrefers contain no authenticdocuments thatwould suggestsuch
plans. They only contain a non-authenticdocument of what the Respondentitself
calls an illegal organisation[ibid. para. 1.3.2.26.1and an intemal documentof the
SerbianDemocratic Pariy[ibid., para. 1.3.2.27.1that obviouslycannot serve as proof
for anythingother than the fact that these documentswere written.
569. The Respondentalso allegesthat Muslim groups attackedand destroyed"some 100
Serb villages" around Srebrenicaand Bratunac, and thatpeople would be killed and
expelled [ibid., p. 44, para. 1.3.2.28.1.However,the Respondentfails to provide any
independent andcredible evidenceof these allegations.This holds equallytrue for
the statementthat "al1the attacks on the Serbs" would be "preparedin advanceand
carriedout accordingto plan" [ibid.]. Respondentdoes not provide a singlepiece of Chapter5- Sectio8
Srebrenica
evidenceto substantiatethat statement.The same holds, fmally, for the statement that
when Serbs had fied to Bratunac "the same fate awaitedthe Serbs in Bratunac as like
the Serbs in Srebrenica" [ibid.,p. 45, para. 1.3.2.29.1.This is a rather preposterous
statementin view of the clear evidencethat thousandsof Muslims were killed,
tortured and expelledfiom Srebrenica [see Reply,Chapter 5, Section21.The
Respondent does not provide any evidence,either in this part of the Counter-
Mernorialor in its counter-claimsthat anyîhingremotely similar has happened to the
Serbs.Moreover, it must be repeated that evenif, arguendo, evidence on any of the
above statementswould be produced,that would be immaterial in this context as it
could not possible justifi genocidalacts of the Respondent[see Mer Reply,
Chapter21.
570. What the Respondentfails to mentionis that anyincidentsthat may have occurred
when Muslims attemptedto break through the encirclementwere directly due to the
Serbs themselves. The Serbshad cut off Srebrenicafiom other Muslim-heldparts of
Bosnia and Herzegovinaand systematicallyblocked convoys of food and medicines.
The policy of starvationwas already,in general, discussed above [Section 4 of this
Chapter] andwill also be considered belowwith regard to the Srebrenica area. It is a
gross distortion of the facts to presentwhat can only be seen as an attempt to re-
establishlife-lines that were cut by Serbs,as a planned attack for destructionsand
killings.
Killings
571. The absenceof any evidenceto supportthe statementsof the Respondentas to
alleged killings of Serbs in Srebrenicacontrasts sharplywith detailed evidence,
collected andverified by independent andauthoritativepersons and institutions,of
killings of Muslims in and around Srebrenica. Thatevidencewill be presented in six
categories:(1) killings by shellingand paramilitary groups before 1995;(2) killings
by preventing humanitarianaid into Srebrenica;(3) killings in Srebrenicaand
PotoEariin July 1995;(4) killings during the trek to Tuzla; (5) mass-executionsites;
and (6) other evidenceof killings following the fa11of Srebrenica.
Killings through shelling and by paramilitary groups before 1995
572. While most of the killingswould occur in July 1995, significantnumbers of civilian
Muslimsin Srebrenicawere killed even earlier. The Commissionof Experts has
reportedkilling of civiliansin Srebrenicaby the paramilitary groups of SegeljandReply ofBosnia andHenegovina
Arkan [United Nations, Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2(Vol. 1),Annex III.A, "Special Forces",p. 271.
573. There are witness reports fiom Muslim civilians,which show that already in rnid
1992,the organized killing of the Muslirnpopulationin Srebrenicawas very
substantialindeed:
"Reportsfromthe eastof BosniaandHerzegovina inthetestimonyof a wimessfrom
Srebrenicawhogives 21 Apn1992asthe datewhen'organizedkillingof the Muslimpopulation
beganwiththe emphasis on younger peenddistinguishedMuslims'.According totheaccount,
dozenswere killed.Anotherwitnessfiom the nearbyvillageof Gostiljereportsthathe witnessed
thebeatingto deathof hisneighbour when Serfborcestookthevivnited Nations,
Situation ofHuman Rights in the territory of theformer Yugoslavia,Report
submitted by Mr. TadeuszMazowiecki,SpecialRapporteur of the Commission
on Human Rights, E/CN.4/1993/50,10Feb. 1993,Annex II, p. 101.
574. Throughoutthe period between April 1992and July 1995Srebrenicawas shelled, in
varying degrees of intensity,killing many Muslirns.A few exarnplesfollow. When
in March 1993evacuationswere allowed,Serbs shelledthe place where evacuations
took place, killingeveral of those being evacuated[ibid., Periodic Report,
ElCN.41199413,5 May 1993,p. 9, para. 371.It was stated in an UNPROFORletter
that "(BosnianSerb) forces are deliberately impeding themedical evacuationfiom
Srebrenica" [UnitedNations, Letter dated 12 April 1993 fi-omthe Permanent
Representativeof the UnitedStates of America to the UnitedNations addressed to
the Secretary-General, Sl25586, 13April 1993,p. 231.
575. On 12 April 1993 artillery attackskilled 56 people andleft 106people wounded
[UnitedNations, Situation of Human Rights in the Territoly of the Former
Yugoslavia,Periodic Report submittedbyMr. Tadeusz Mazowiecki,Special
Rapporteur of the Commissionon Human Rights, E/CN.4/1994/3,5 May 1993,p. 9,
para. 381.At least 15 childrenwere killed [US Departmentof State, Bureau of
Public Affairs, Dispatch, 26 July 1993, Vol. 40,nr.30, p. 546, Annex 183.
Respondentdenies that this event occurred or in any case that fifteen childrenwere
killed [Counter-Memorial,p. 47, para. 1.3.2.39.1.The evidenceproves otherwise.
The fact was not only cited by the officia1fiom the UNHCRbut also by the Security
Council Missionthat visited Srebrenica in April 1993 [UnitedNations, Report of the
SecuriS, CounciZMission EstablishedPursuant to Resolution 819 (1993), 30 Apr.
1993, S/25700, para. 201. Chapter -Section 8
Srebrenica
576. When about 25,000 Muslimshad gatheredin and around the UnitedNations
compound der the Serbs took Srebrenica, the Serbs shelled thecompound [ICTFY,
Trial Chamber,Prosecutor v. Radovan KaradZié & Ratko Mladié,Cases No. IT-95-
5-R61 & IT-95-18-R61, TestimonyKawemans, 4 July 1996,pp. 4-6, p. 3, Annex
531.There were reports of casualtiesand at least oneperson killed [United Nations,
Situation of Human Rights in the Tenitory of the Former Yugoslavia,Final Report
by Mr. Tadeusz Mazowiecki, Special Rapporteurof the Commissionon Human
Rights, EICN.411996192, 2 Aug. 1995,p. 4, para. 71.ProsecutorHannon of the
ICTFY had found evidence that when many civiliansfled to the United Nations
compound in Srebrenica, beforethey fled toPotoCari,the BosnianSerb Army
shelled it, "killingand woundingmany of the refügees" [ICTFY,TrialChamber,
Review of Indictment Pursuantto Rule 61, Closing Arguments ofthe Prosecution,
Prosecutor v. Radovan Karadfi6 & Ratko Mladié,CasesNo. IT-95-5-R61 & IT-95-
18-R61, 8 July 1996, p. 61.
Killings by preventing humanitarianaid into Srebrenica
577. Mer Apnl 1992, the Serbsinsulated Srebrenicafiom the outsideworld.
Mazowiecki, Special Rapporteur of theCommissionon Human Rights, wrote on 23
February 1993 that since 31 December 1992 "no humanitarianaid had been allowed
in by Serb forces"[UnitedNations, Situation of Human Rights in the Tewitory of the
Former Yugoslavia,Periodic Report submitted by Mr. TadeuszMazowiecki, Special
Rapporteur of the Commissionon Human Rights, ElCN.411994135 , May 1993,p. 8,
para. 301.Convoyswere continuously stopped on theirway to Srebrenica [United
Nations, Letter dated 12 April 1993j?om the Permanent Representativeof the United
States of America to the UnitedNations addressedto the Secretary-General,
231255861 ,3 April 1993, p. 231.This policy can properly be calledethnic cleansing
by starvation.
578. This is an apt characterization, asthe blockades forcedMuslirnsto relocate [see
fbrther below]. But the characterizationis even moreappropriatesince the blockades
were directly responsible for deaths amongthe Muslimpopulation. Commander
Kanemans of the Dutch forces in Srebrenicatestified beforethe ICTFY that refügees
died by starvation [ICTFY, Trialhamber,Review of IndictrnentPursuant to Rule
61,Prosecutor v. RadovanKaradZié & Ratko Mladié,CasesNo. IT-95-5-R61 & IT-
95-18-R61, TestimonyKawemans, 4 July 1996,p. 2, Annex 531.Dr. Mardel of the
WHOreported "that 20-30 people werestarvingto death each day" vnited Nations,
Situation of Human Rights in the Temitoryof the Fomer Yugoslavia,PeriodicReplyofBosnia and Herzegovina
Report submittedby Mr. TadeuszMazowiecki,SpecialRapporteur of the Commission
on Human Rights, E/CN.4/1994/3,5 May 1993,p. 8, para. 331.In the hospital in
Srebrenica,320 people were reportedto have died because of lack of medicine
["WarCrimes in Bosnia-Herzegovina",Human Rights Watch/Helsinki,Vol. II, p.
287, Annex 541.
579. When aid was suppliedby air to circumventthe blockades, Serbforces fired on
Muslimswho attemptedto collect air-dropped humanitarianaid [US Deparhnent of
State, Bureau of Public Affairs, Dispatch,26 July 1993,Vol. 40, No. 30,p. 545,
Annex 181.Serbs also prevented specialistsfrom enteringthe town to restore the
water purification supply [ibid.].The contaminated watercontributedto the
detoriationof themedical situation, already critical because of lack of food and
medicine. Scabieswas rampant, particularly among children [ibid.,p. 5461.The
water supply and electricity was cut off. No medical support was allowed to enter
the town. In April 1993,the United Nations SecurityCouncil Mission to Srebrenica
stated that:
"TO impedemedicalassistanceis a crimeof genocide.Thisaction,togetherwiththecuttingof the
watersupplyandelectricity,havebeento putintoeffect a 'slowmotiongen[United"
Nations, Report of the SecurityCouncilMissionEstablished Pursuant to
Resolution 819 (1993), 30 Apr. 1993, Sf25700,para. 191.
580. The blockades continuedto be directly responsiblefor deathsuntil the fa11of
Srebrenica. Of the seventy-sevenhumanitarianconvoys slatedto go to Srebrenicain
1995,only nineteen actually reached the enclave ["TheFa11of Srebrenicaand the
Failure of U.N. Peacekeeping",Human Rights Watch/Helsinki,Oct. 1995, Vol. 7,
No. 13, p. 9, Annex 551.
The killings in Srebrenicaand Potocari inJuly 1995
581. The above killings of Muslims in Srebrenicaprovedto be just the prelude to the
massive and gruesome acts that wereto follow. The Serbs dramaticallyintensified
the pattern of genocidal acts that graduallyhad become discernable.When on 11
July 1995 Serb forces entered Srebrenica, the Serbsencounteredan unarmed civilian.
Commandingofficer Pelernis ordered one of the Serb soldiersto kill the man. The
soldier obeyed and slit the throat of the man [ICTN, Trial Chamber,Prosecutor v.
Radovan KaradZié & Ruth Mladib, CasesNo. IT-95-5-R61 & IT-95-18-R61,
Testimony Erdemovié,5 July 1996,p. 42, Annex 561.What would becomethe final
and most blatant phase in the genocide in Srebrenicahad begun. Chapter5 -Section 8
Srebrenica
582. On the 12 and 13 July, Serbs entered the compound atPotoCari andseparatedmen
from women.At meetings with the Dutch CommanderKarremans, GeneralMladiC
demanded to seeal1men between 17 and 60 [ibid., TestimonyKawemans, 4 July
1996,p. 14,Annex 531.While MladiChad stated thathe wished to see whether any
war criminalswere among those men, factsmake clear thatthis is certainlynot what
subsequently happened: the men were separated from the women, and most if not al1
of the men were simply killed.
583. Someof the men that were separatedwere taken to other locationsand executed
there [see below]. Others were killed at PotoCari.Information providedin the
debriefmgof the members of the Dutch UNPROFOR Battalion, as well as
information providedby other witnesses,provides clear evidenceof the killings in
and near PotoCari.
584. Mazowieckireports that:
"~n international observer described the execution of a civilian man near the place where the buses
where standing. He watched as the victim was forcibly removed froma large goup of people. A
short time later he heard screams and on investigation saw a Bosnian Serb soldier shootthe man in
the head. The same incident was reported by another internatio[UnitedNations,
Situation ofHuman Rights in the Tem'tov of the Former Yugoslavia,Final
Report byMr. TadeuszMazowiecki,SpecialRapporteur of the Commissionon
Human Rights, ElCN.41199619,22 Aug. 1995,p. 5, para. 141.
585. Mazowieckireports that otherinternationalwitnesses recountedhow they saw and
heard various events which led them to the conclusionthat executionshad taken
place. One witness described:
"how he saw a man being beaten with rifle butts and then dragged into a house. He then heard one
shot and concluded that the man had been killed. Another witness describedthe same chain of
events on two other occasions.There were reports of the sound of shots and screams throughout
the night, particularly in they of the comfield behind the house where the men were
detained.[ibid., p. 5, para. 151.
586. A Dutch soldier who testifiedbefore the ICTFY reported that throughoutthe 13thof
July he heard "approxirnately20 to 40" single shots anhour [ibid., Testimony
Groenewegen,4 July 1996,p. 64, Annex 571.
587. Dutch soldiers found nine or ten bodies of civilianmen outside the compound.There
appearedto be gunshotwounds in the back at heart level wted Nations, Report ofReplyof BosniaandHenegovina
the Secretaly-GeneralPursuant to Security Council Resolution1019 (1995)on
Violationsof Intemational Humanitarian Law in theAreas of Srebrenica,Zepa,
Banja Luka and Sanski Most, Sl19951988,27 Nov. 1995,para. 161.One international
observer witnessed 10 men being taken in the directionof the place where these
bodies werelater fomd [UnitedNations,Situation of Human Rights in the Tem'tory
of the Former Yugoslavia,Final Report by Mr. TadeuszMazowiecki,Special
Rapporteur of the Commissionon Human Rights, ElCN.411996192 , 2 Aug. 1995,p.
51.
588. A number of Netherlands Battalionpersonnel saw Serb soldiers force at least five
men into a factory oppositethe compound.Shortly aftenvards, they heard five or six
shots.A Serb soldier later emerged fiom the factory, armed with a pistol [United
Nations,Report of the Secretaly-GeneralPursuant to Security CouncilResolution
1019 (1995) on Violationsof International Humanitarian Lawin the Areas of
Srebrenica,zepa, Banja LukQand Sanski Most, Sl19951988,27 Nov. 1995,para.
171.
589. In another account of killings, a Netherlands soldiersaw five men disembarkfiom a
Serb minibus near the compound.Two of the men tried to flee. The Netherlands
soldier heard shots and saw both men fa11to the gromd [ibid.].
590. Mazowieckireports that on one occasion, Serbsoldierscame into a factory complex,
and took away a few men. None of these men cameback, exceptone who returned
covered in blood with very senous injuries to his face [UnitedNations, Situation of
Human Rights in the Tem'toryof the Former Yugoslavia,Final Report by Mr.
TadeuszMazowiecki, Special Rapporteurof the Commissionon Human Rights,
ElCN.411996192 , 2 Aug. 1995,p. 6, para. 171.
591. The killings of men was not confinedto men of military age. Mr. Ruez, the lead
investigatorof the Srebrenicainquiry for the ICTFY, testified for the Tribunalthat
witnesses reportecithat they saw Serbskill a baby in the factory at PotoCari:
"A witness whowasthere inthefactory1lth Marchsawseveralsoldiersenteringthefactory.
baby.Thewomansaidit was a boyandirnmediatethesoldierkilledthe bawitha knife.The
motherfell unconsciousandeverybodytriedto f[ICTFY,TrialChamber, Prosecutor
v. Radovan KaradZii & Ratko Mladii, CasesNo. IT-95-5-R61 & IT-95-18-
R61, TestimonyRuez, 3 July 1996,p. 24, Annex 171. Chapter5-Section8
Srebreica
592. A Muslirnwoman descnbed in an interview byHuman Rights WatchMelsinki
Representativeshow her sonwas killed. This may bethe same incident described
above. The woman stated that after "Serbian soldiers" tookher husband away, her
son was killed:
"~nd then my son Esmir (...) It is just so hard to talk about this, 1can't, it just breaks my heart.
(...) 1was holding him in my arms (...) We were hugging, but they took him away. They grabbed
him and just slit his throat. They killedhim. They made me dnn["The Fa11of"
Srebrenica and the Failure of U.N.Peacekeeping", Human Rights
Watch/Helsinki,Oct. 1995, Vol.7, No. 13,pp. 19-20,Annex 551.
593. Severalwitnesses reported seeing bodiesin houses surroundingthe compound. One
woman interviewedby Human Rights WatchIHelsinkireported that she had seen
three to four bodies in a house. Another said she had seen altogether fifty bodies, al1
men and boys. One witness reported thatwhen she went to get water with a fhend
she saw ten bodies with their throats slashed. She recognized some of the men and
their clothes ["The Fa11of Srebrenicaand the Failure of U.N. Peacekeeping",Human
Rights Watch/Helsinki,Oct. 1995, Vol.7, No. 13, p. 21, Annex 551.
594. Mr. Ruez, mentioned above, testified thatseveralhundred people were selected and
cruelly massacred with knives [ICTFY,Trial Chamber,Prosecutor v. Radovan
KaradZiC & Ratko Mladii, CasesNo. IT-95-5-R61 & IT-95-18-R61, Testimony Ruez,
3 July 1996,p. 15, para. 35, Annex 171.
The killings during the trek to TuzlaReply of Bosniaand Herzegovina
595. ûn the 10th of July and subsequent days,about 15,000 peoplewho did not want to
fa11in the hands of the Serb forces decidedto flee kom Srebrenicato Tuzla [United
Nations, Situation ofuman Rights in the Territoryof the Former Yugoslavia,Final
Report by Mr. TadeuszMazowiecki,SpecialRapporteur of the Commissionon
Human Rights, ElCN.41199619,22 Aug. 1995,p. 7,para. 291.This group consisted
mostly of men. Between 3,000and 4,000 were reported to have some weaponsand
approximately 10,000were unarmed [ibid., pp. 7-8,para. 291.Survivorswho reached
safety in Tuzla reported that Serbs were positioned atrious locationson the route
and killed many of the 15,000Muslimswho startedthe trek. The authorities,cited
below, who reviewed the witness reports found themcredible. Evidence collectedat
various sites along the trek corroboratesthese reports.
596. The Serbs attacked these 15,000people by using artillery shells, anti-aircraftguns,
automatic weapons andthe like. These attackscaused enormousloss of life [ICTFY,
Trial Chamber, Review of the IndictmentPursuantto Rule 61 of the Rules of
Procedure and Evidence, TheProsecutor v. RadovanKaradfiéand RatkoMladié,
CaseNo. IT-95-18-1,16Nov. 1995,p. 21.ûnly about a third of this colurnnevaded
or fought its way past the trap line [ICTFY, Trial Charnber,Review of Indictments
Pursuant to Rule 61 of the Rules of Procedure and Evidence, ClosingArgumentsof
the Prosecution, CasesNo. IT-95-SR61 & IT-95-18-R61,8 July 1996,p. 71.
Incidents that have been reported include the following.
597. A large arnbushtook place aboveKamenica,the first place encounteredby the men
who were in the north-eastem direction, heading for Tuzla. Ruez,investigator forthe
ICTFY in Srebrenica states: Chapter - Sectio8
Srebrenica
"The mainambush took place above KamenicaWhen the column of refugees was massively
concentrated at that point, there was a severe ambush thathas been described by a number of
witnesses. People were surrounded. They tried to flee andthey were mowed down there. Alot of
them were killed. The bodies are stilA lot of joumalists have gone there and seen that a lot
of bodies areill there, corpses; amongst them rnilitarypeople as well as a large number of
civiiians[ICTFY, Trial Chamber,Prosecutor v. Radovan KaradZik & Ratko
MladiC,Cases No. IT-95-5-R61 & IT-95-18-R61,Testimony Ruez,3 July 1996,
pp. 18-19, Annex 171.
598. A witness interviewedby Human Rights Watch/Helsinkireported that he left
Srebrenicaon 12 July with approximately6,000 to 7,000men. 5,000 to 6,000 had
left earlier. He said:
"~fter about three kilometres, we encountered our first ambush at a Stream.The centre of our
column was hit by anti-aircraft machine guns and mortars; around 200 people died just from that.
The Cetniks then came down from thehills, and about 2,000 men in the middle of the column got
caught in the line of fire. The people at the front and the back of the columns scattered
everywhere.1was in the middle and saw how the Serbs were shooting everyone and slaughtering
USwith bayonets."["TheFa11of Srebrenicaand the Failure of U.N. Peacekeeping",
Human Rights Watch/Helsinki,Oct. 1995,Vol. 7, No. 13, p. 31, Annex 551.
599. People who survivedthe ambushat Kamenica encounteredmany attacks at other
parts of the trek. One witness described a shelling incidentat KonjevicPolje, a few
kilometres fiom Kamenica. A shell landedin this witness' group, leadingto
countlessdead and wounded. This witness saw "peoplewith arms and legsblown
away" [UnitedNations, Situationof Human Rights in the Territoryof the Former
Yugoslavia,Final Report by Mr. TadeuszMazowiecki,Special Rapporteur of the
Commission onHuman Rights, E/CN.4/1996/9,22 Aug. 1995,p. 8, para. 321.ReplyofBosnia and Herzegovina
600. Onewitness interviewedby HurnanRights WatchIHelsinkidescribedhow he and his
group tried to cross a road near KonjeviCPolje:
"~uddenl~there was a burst of weapons fire, and some rockets fell into a meadow (...) There was
massive panic among the thousands of us. It was completely dark, and manypeople were being
killed.""The Fa11of Srebrenicaand the Failure of U.N. Peacekeeping",Human
Rights Watch/Helsinki,Oct. 1995,Vol. 7, No. 13,pp. 30-31, Annex 551.
601. ManyMuslims that were not imrnediatelykilled by shells were captured and then
killed. A witness reported that he was in a group, at leastone third of which was
composed of civilian men, thatwas forcedto surrender onthe road between Kravica
and KonjeviCPolje. This witness described how the Serbsoldiers killed people at
random, "grabbingthe hair of the victims andslitting their throats" [UnitedNations,
Situation ofHuman Rights in the Tewitoryof the Former Yugoslavia,Final Report
by Mr. TadeuszMazowiecki,SpecialRapporteur of the Commissionon Human
Rights, E/CN.4/1996/9,22 Aug. 1995,pp. 8-9, para. 331.In his testimonybefore the
ICTFY, Ruezdescribed severalof such executions, includingone near Nova Kasaba
[ICTFY, Trial Chamber,Prosecutor v. Radovan Karadfi6 & RatkoMladii, Cases
No. IT-95-SR61 & IT-95-18-R61, TestimonyRuez, 3 July 1996,pp. 30-32, Annex
171
602. A man who tried to flee from the region hid in the hills. This witness saw
"A group with some 30 prisoners running up to the cross roads there at Janovici (...) The men are
lineup along the road facing three armoured vehicles, includiUN APC.stOnce they
are lined up the armoured vehicles open fire with theirnegunand execute that group
of30 [ibid.].
603. Another location where many refbgeeswere killed was near NovaKasaba. One
witness reported how he hid near the main road for 48 hours, during which time
Bosnian Serb soldiers forced detainedmen to dig largepits for graves and then
executed them. The witness reportedthat 500 people were killed during the firstday
[United Nations,Report of the Secretary-GeneralPursuant tu Security Council
Resolution 1019 (1995) on Violationsof International Humanitarian Law in the
Areas of Srebrenica, Zepa, Banja Luka and SanskiMost, S/1995/988,27 Nov. 1995,
para. 131. Chapter5- Section 8
Srebrenica
604. Other men whowere captured were killed near Cerska.Ruez reports as follows:
"A witness who was on a hill overlooking the area,specificaliy the intersectionat KonjeviCi,saw
three buses painted white,filled with people, that tumed on to a small road leading towards Cerska
in theills, into a valley. The three buses were fanarmoured vehicle. Shortly after that
vehicle passed byexcavator followed thecolumn. There was heavy firing heard ffom the
direction thatthe buses had taken. Irnmediately afterwards,they were seen going back towards
KonjeviCPoljeaswell as the armoured vehicle.The excavator reappeared 30 minutes later. The
fate of those prisoners at that point, the prisoners in the buses, were notyet known; but in the
evening some witnesses were able to get through that area and in themoming along the road rising
to Cerska they saw a row of bodies lined up in the grass along the ed[ICTFY,he road."
Trial Chamber,Prosecutor v. Radovan KaradZit & RatkoMladii, CasesNo.
IT-95-5-R61 & IT-95-18-R61, TestimonyRuez, 3 July 1996,p. 39, Annex 171.
605. This accountis conoborated with the findingsof investigationsby the ICTFYin the
area. Investigatorsidentified a mass grave in the CerskaValley [ICTFY,Review of
Indictmentspursuant to Rule 61 of the Rules of Procedure and Evidence,Prosecutor
v. Radovan KaradZit & Mladit, CaseNo. IT-95-R61 & IT-95-18-R61, 11 July 1996,
P. 16, para. 381.
606. After16 July 1996, several groupsof Muslims whowere still trying to reach Tuzla
were killed by Bosnian Serb soldiers.Half of a group of 150people was killed at
KonjeviCPolje, and another group of 150people at UdrC,near Cerska.The ICTFY
describedhow on 17July 1995, 250 peoplewho were capturedwere gathered around
what was to be their grave andwere pushed into it alive by an excavator [ibi pd.14,
para. 331.Replyof Bosniaand Herzegovina
607. The gruesome conditionsunder which the trek to Tuzlatook place, the killingsand
the torture [see below] causedmany individualsto commitsuicide to avoid capture
[ICTFY, Trial Chamber,Review of the IndictrnentPursuant to Rule 61 of the Rules
of Procedure and Evidence,Prosecutor v. Radovan Karadfit and Ratko Mladié,Case
IT-95-18-1,16Nov. 1995, p. 21.Mazowieckireports a particularlyhmowing case
where a witness described "how a man shot himselfin the face but failedto hl1
hirnself and pleadedwith othersto finish thejob" [United Nations,Situation of
Human Rights in the Tem'toryof the Former Yugoslavia, Final Reportby Mr.
TadeuszMazowiecki, Special Rapporteurof the Commissionon Human Rights,
ElCN.41199619,22 Aug. 1995, p. 9, para. 361.
Mass-executionsites
608. The factual account ofthe killings in and aroundSrebrenicatakes yet a more
drarnatic and gruesome tum. Irrefutableevidence demonstrates that menwere
collected and killed at mass-executionsites. The men killed at these mass executions
for the most part were capturedduring the trek to Tuzla. Otherswere separatedand
captured at the compound at PotoEarior taken from the buses thatevacuatedthe
25,000 people from PotoCari[UnitedNations, Situation of Human Rights in the
Tem'toryof the Former Yugoslavia, Final Reportby Mr. Tadeusz Mazowiecki,
Special Rapporteur of the Commissionon Human Rights, E/CN.4/1996/9,22 Aug.
1995, p. 6, para.211.Clear evidenceis availablethat mass executionstook place at
Kravica, GrbavciKarakaj, Nova Kasaba, and Pilica.
609. A large group that was captured on their trek to Tuzlanear Kamenicawas taken in
the direction of Kravica. The entire group contained, according toinvestigatorRuez, Chapte5 -Section8
Srebrenica
between 500and 1,000 individuals [ICTFY,Trial Chamber,Prosecutor v. Radovan
KaradZié& RatkoMladiC,CasesNo. IT-95-5-R61& IT-95-18-R61, Testimony Ruez,
3 July 1996,p. 29, Annex 171.A witness cited by the Secretary-Generalputsthe
number at 2,000 Wnited Nations, Report of the Secretary-GeneralPursuantto
Securiq CouncilResolution1019(1995) on Violationsof internationalHumanitarian
Law in the Areas of Srebrenica,2epa, BanjaLukaand SanskiMost, S/1995/988,27
Nov. 1995,para. 121.The group was forced to enterinto a hangar that in other
reports was described as a warehouse.In his testimony before the ICTFY,Ruez
reported what followed:
"The people were forced to sit down. When the last one entered into the hangar, there was not
enough space for him to sit down. Theers ordered him to sit down and since he did not act
fast enough, he was beaten. Immediately,the soldierswho were around the hangar fired into al1the
openings of the hangar. Grenades weren into the hangar. Those who tried to escape by the
openings were beaten by thediers at the outsideof the hangar. Once the smoke was in the
hangar, the finng started again. After the finng the soldiers on the outside asked if there was
anyone who still was alive, some answered. They were asked to leave tassoon as and
theyleft the hangar you heard shots on the outside of the hangar as well. Nevertheless, some
people managed to survive from this execution which took place hanga[ICTFY,
Trial Chamber,Prosecutorv. RadovanKaradZié & RatkoMladiC,CasesNo.
IT-95-5-R61 & IT-95-18-R61,TestimonyRuez, 3 July 1996,pp. 29-30, Annex
171.
610. A witness who survived the massacre statedthat once the men were packed into the
warehouse, soldiersbegan £king automatic weapons andgrenades into the building.
The witness survived the incident by pretendingto be dead. The United Nations
Secretary-Generalnotesthat this statementis corroboratedin part by the report of
another man, who told a journalist that he saw trucks filled with decomposingbodies
coming from the direction of Kravica in mid-August 1995 [UnitedNations, Report of
the Secretary-GeneralPursuantto SecuriîyCouncilResolution1019 (1995) on
Violationsof InternationalHumanitarianLaw in the Areas of Srebrenica,2epa,
BanjaLukaand SanskiMost, S/1995/988,27 Nov. 1995,para. 121.
611. The Trial Chamber at the ICTFY noted that"with a few rare exceptions,the group
was exterminated" [ICTFY,Trial Chamber,Review of the IndictmentsPursuant to
Rule 61, Prosecutorv. RadovanKaradZiCandRatkoMladiC,CasesNo. IT-95-5-R61
& IT-95-18-R61, 11 July 1996,p. 13, para. 281.Ruez introduced as evidencebefore
the ICTFY photographsthat showed signs of gunshots,blood on the walls of the
hangar, bloodstainson the 3 meter high ceilings andhuman remains splashed against
the wall in the hangar [ICTFY,Trial Chamber,Prosecutorv. RadovanKara&ik &Replyof BosniaandHenegovina
RatkoMladii, CasesNo. IT-95-5-R61 & IT-95-18-R61,Testimony Ruez,3 July
1996,p. 30, Annex 171.
612. Other massexecutionstook place near the small villages of Grbavciand Karakaj,
close toZvornik. The United Nations Secretary-General considered the eyewitness
informationof these executions "detailed and consistent"[UnitedNations, Report of
the Secretaiy-General Pursuant to Securi~ CouncilResolution1019 (1995) on
Violationsof International Humanitarian Law in the Areas of Srebrenica, gepa,
Banja Luka and SanskiMost, 27 Nov. 1995,Sl19951988,para. 111.On 13 and 14
July, large numbers of Muslims were taken to schoolsin Grbavci and Karakaj. It
appearsthat several schoolswere used as detention centres. From theschools,people
were broughtto two sites in the area, one of which is describedas a meadow neara
forest and the other as a grave sitenear a dam [ibid.].
613. An anonymouswitness testifiedbefore the ICTFYhow he, after being separated
fiom the evacueesat PotoEari,was brought toa school at Karakaj. He estimated the
number of menthere at 2,500. The witness describedwhat ensued as follows:
"~hen we got to a field we saw to the left, dead, a lot of dead people. Then we realised where we
were going. We passed those corpses and the truck went on across some Pasture land and when it
tumed we saw to the right the same number of dead. The truck stopped. The small car went back.
Two Serbsoldiers opened the back. Theytold us to come down quickly, not to look, not to look,
just come out. So we came out. We were lined up. As soon as the small lony went off, they started
firing at us from behind. There were some people standing behind me and they fell on top of me.
So 1fell on my stomach and they fell on top of me. Then the firing stopped and then they started
shooting individually. If anybody gave any signs of life he would be killed. 1kept quiet. They
moved away and again they would refill their automat[ICTFY,Trial Charnber,
Prosecutor v. Radovan KaradZii & RatkoMladii, CasesNo. IT-95-5-R61&
IT-95-18-R61, TestimonyWitnessA, 5 July 1996,p. 11, Annex 581.
614. Reports of executions at the meadow near Karakajare also described byHuman
Rights Watch/Helsinki.One witness reported how he was brought with a truck to the
meadow:
"There were twelve of us in the small truck. We were driven for about two to three minutes, and
when the truck stopped we were ordered to get outby twos. My cousin Haris called for me. When
we jumped we were directed to go lefi. 1 saw grass underneath the blindfold. Haris took my hand.
He said, 'They're going to execute us'.asshe said that, 1heard gunfire from the right side.
Hariswashit and fetoward se, and1fell with him. 1heard moaning from people who were
about to die, and suddenly Haris's body wen["TheFall of Srebrenicaand the
Failure of U.N. Peacekeeping",Human Rights Watch/Helsinki,Oct. 1995,Vol.
7, No. 13, pp. 42-43,Annex 551. Chapter 5 -Section8
Srebrenica
615. Anotherwitness described the executionsite at a plateau ofgravel located near a
dam. One witness describedwhat happened there:
"~e were driva for about two kilometres (...) When the truck stopped,they told us to get off in
groups of five. We immediately heard shooting next to the trucks.f with Kradrija ont0 a
gravel field full of dead bodies. About ten Cetniks with automatic rifles told us to lie down on the
ground face first. As we were getting down, theyted to shoot, and 1fell into a pile of corpses. 1
felt hot liquid running down my face. 1realized that my head was only grazed. As they continued
to shoot more groups,kept on squeezingmyself in between the dead bodie[ibid., p. 441.
616. Mazowieckialso reports an execution that appearsto have taken place at these sites.
One witness reported that some 2,000 men surrenderednear Kravica. After capture
they were moved to an unidentified outdoor location. Groups of5 to 10men were
taken out of the trucks at a time, put in line and shot by Bosnian Serbsoldiers. The
witnessnoticed that around 100men had already been shot whenhis turn came. He
reportedthat shotswere fired and that a bullet hithis leg. He pretended to bedead,
and later escaped [UnitedNations, Situationof HumanRights in the Tem'toïyof the
Former Yugoslavia,Final Report byMr. TadeuszMazowiecki,SpecialRapporteurof
the Commissionon HumanRights,E/CN.4/1996/9,22 Aug. 1995, pp. 9-10, para.
401.
617. These accounts are corroboratedby aerial photographs andinvestigations.Aerial
photographstaken by the United States on 27 July 1995showedthree areas of
"disturbed earth''near the town of Sahaniciin the vicinity of Karakaj. Photographs
of the same area taken on 5 July showed nodisturbanceof the earth [United Nations,
Report of the Secretary-GeneralPursuantto SecurityCouncilResolution1019(1995)
on Violationsof InternationalHumanitarian Lawin theAreas of Srebrenica,2epa,
BanjaLukaand SanskiMost, S/1995/988,27 Nov. 1995, para. 291.Investigationsby
the ICTFYidentified mass gravesat the executionsite in Lazete near Krajava. The
investigationsfound human remains at both sites where executions hadbeen canled
out -the meadow and nearthe dam. Ruez comrnentedas follows on photographs of
the investigations near the dam:
"On this plateau executions are reported to have taken place. We saw and collected several bones
that were strewn on the ground. We also (...) collected bullets that we found on the site, over
1,000, 1,030.The part hereaipossiblemass grave. According to the statements of swivors, the
bodies werelater loaded on to a truck. So we cannot exclude the possibility of a mass grave in this
part here because the soi1here was heavily disturbed, and many of the bones we discovered were
found in this area. The executionstook place over the entire plateau. The cartridges we found were
found over thentire area. A more specific area where there were many cartridges is here. Many
pieces of skull were found in this area as well. Here is an example of the bones we found at theReply of BosnandHenegovina
partwhmethe soi1was heavilydistu. l1thesebonescornefiomhumanbeings.Thereis a bit
of theskull,thespine,differentbones,th[ICTFY,Trial Chamber,Prosecutorv.
Radovan Karadiié& RatkoMladié,CasesNo. IT-95-SR61 & IT-95-18-R61,
TestimonyRuez, 3 July 1996,p. 47, Annex 171.
618. The journalist David Rohde visited the sites of the executionsnear Grbavci, without
permission,in October 1995.He had held extensiveinterviewswith witnessesof
executions, including those at Grbavci.The results are laid down in his acclaimed
book Endgame.TheBetrayal and Full of Srebrenica:Europe's Worst Massacre
Since World WarII (1997). When visiting Grbavci, Rohde foundthat everythingat
these sites matched with what survivorshad told him and that "[bloth sites appeared
not to have been tamperedwith". Thejournalist was arrested at the site and the
photographshe had made were seized [David Rohde, Endgame.TheBetrayal and
Fa11of Srebrenica: Europe's WorstMassacre Since World WarII (1997), p. 343,
Annex 601.
619. Thereis strong evidencethat since the first reportsof the mass executionsites
became public,the human remains at these sites were dug up. The investigatorsfor
the ICTFY foundevidencethat both sitesnear Grbavci were disturbed aftenvards
and that themajority of the bodies was removed to otherlocations [ICTFY,Trial
Charnber,Prosecutor v. RadovanKaradiié & RatkoMladié,Cases No. IT-95-5-R61
& IT-95-18-R61, TestimonyRuez, 3 July 1996,p. 46, Annex 171.David Rohde
retumed on April 2, 1996to the sites and found that"[nlearly 70 per cent of the
grave had been recently dugup" and concludedthat thepublicity on mass graveshad
prompted the Serbs to destroythe evidence [DavidRohde,Endgame.TheBetrayal
and Full of Srebrenica: Europe'sWorstMassacre Since World Var II (1997),p.
346, Annex 601.
620. Another locationof mass executionswas near Nova Kasaba, some20 kilometres
Westof Srebrenica. There aretestimonyreports that a certain number of prisoners
were executed near the soccerstadiumin Nova Kasaba[ICTN, Trial Chamber,
Prosecuror v.RadovanKaradiié& RatkoMladié,CasesNo. IT-95-5-R61 & IT-95-
18-R61, TesrimonyRuez, 3 July 1996,p. 43, Annex 171.Indirect evidence
corroboratessuch reports. Netherlands soldierswho were forced to spendthe night at
Nova Kasaba on 13 July heard continuousshootingfiom the direction of the soccer
field,eginning at approximately02.30 hours and lasting45 minutes to one hour
Vnited Nations,Report of the Secretary-GeneralPursuantto SecurityCouncil
Resolution 1019 (1995) on Violationsof International HumanitariaLnaw in the
Areas of Srebrenica,Zepa, BanjaLukaand SanskiMost, Sl19951988,27 Nov. 1995, Chapter5 -Section8
Srebrenica
para. 211.Mazowieckireports that a displacedperson saw a pile of bodies nearby the
football field at Nova Kasaba [United Nations,Situation of Human Rights in the
Temetoryof the Former Yugoslavia,Final Report byMr. TadeuszMazowiecki,
SpecialRapporteur of the Commissionon Human Rights, E/CN.4/1996/9,22 Aug.
1995,p. 9, para. 391.A Dutch soldier describedwhen he was transferredpassed the
football ground at Kasaba andsaw a tractor with a cart on which there were corpses
[ibid. p. 10,para. 421.He also saw shoes andrucksacksof an estimated 100men.
Further along he saw a truck carrying corpses on an excavator. Finally,he observed
a body in the bend of the road [ibid.].
621. Evidencethat mass executionstook place at Nova Kasaba wasprovided when in
early 1996 field investigators forthe ICTFY examinedsites next to the soccer field
at Nova Kasaba. The investigators dug athree-meterhole by two meters which was
about 80 centimetresdeep. They found at least five layers of bodies in that hole
[ICTFY,Trial Chamber,Prosecutor v. Radovan KaradZit. & RatkoMladii, Cases
No. IT-95-5-R61 & IT-95-18-R61, Testimony Ruez,3 July 1996,pp. 43-45, Annex
171 R.uez testified about one of the photographstaken at the investigation.This
particularphotograph showed a body:
"one can see that the person was wearing civilian clothes. He is wearing a civilian shirt. This body,
we see the back, the back here and the head there. We can see that the hands, the anns, have been
tied behind the back with a small [ibid.].
When Mr. Ruez showed other results of the investigations,he said:
"This man is also wearing civilian clothes. He was wearing a bright blue, blue, green, white jacket.
His hands are also tied behind his back, actually lying on the head of the person under him. In the
next picture we will see that moreInthis photo we can see that the person's hands were
tied with iron wire which is here. Here are thehands with the fingers and here is his
weddingring which you can see here. They found bodies of killed civilians,with hands tied behind
the back.[ibid..
622. Aerial photographs of the Nova Kasaba area provide corroboratingevidence.
Photographstaken around 13 and 14 of July 1995 show non-disturbedearth at the
sites as well as a largeumber of people crowded at the soccer field ["TheFa11of
Srebrenicaand the Failure of U.N. Peacekeeping",Human Rights Watch/Helsinki,
Oct. 1995,p. 35, Annex 551.Pictures taken days later show an area of disturbed
earth 100metres square. Thereare tracks fiom heavy vehicles leading fiom the road
to the disturbed earthin both photographs [UnitedNations, Report of the Secretary-Reply of Bosnand Henegovina
GeneralPursuant to SecurityCouncil Resolution1019(1995o )n Violationsof
International Humanitarian Law in the Areas of Srebrenica, zepa, Banja Luka and
SanskiMost, S/1995/988,27 Nov. 1995,para. 281.
623. A fourth site of mass-executionsis near Pilica. Here executions took place on 16
July 1995. These executionswere reportedby DraZenErdemoviébefore the ICTFY.
Erdemovié,a member of the Bosnian Serb Army,plead guilty tocrimes against
humanitybefore the ICTFY in June 1996.The factsto whichhe plead guilty are as
follows:
"on or about 16th July 1995,DraZenErdemoviCand other members of the 10th Sabotage
Detachment of the Bosnian Serb army were ordered to a collective farm near Pilica. The farm is
located northwest of Zvomik in the Zvomik Municipality.bout 16thJuly 1995,DraZen
ErdemoviCand other members of his unit werermed that bus loads of Bosnian Muslim civilian
men from Srebrenica,who had surrendered to Bosnian Serb military or police personnel, would be
aniving throughout the day at this collective farm. On or about 16thJuly 1995,buses containing
Bosnian Muslim men amved at the collective form in Pilica. Each bus was full of Bosnian Muslim
men,ranging fkomapproximately 17-60years of age. After each bus arrived at the farm, the
Bosnian Muslim men were removedinroups of about 10,escorted by members of the 10th
Sabotage Detachmentto a field adjacent to farm buildings and linedup in a row with their backs
facinDraZen ErdemoviCand members of his unit. On or about 16thJuly 1995,DraZenErdemoviC
did shoot andll and did participate with other membersof his unit and soldiers from another
brigade in the shooting and killing of unarmed Bosnian Muslimmen at the Pilica collective farm.
These summary executions resulted in the deaths of hundreds of Bosnian Muslim male civilians."
[ICTFY,Trial Chamber,Prosecutor v. DraZenErdemoviC,CaseNo. IT-96-22-
D, Hearing of 31 May 1996,pp. 4-51.
The ICTFYsentencedErdemoviCto five years imprisonrnent.
624. Aerialphotographsand investigationsforthe ICTFYconfirm the above accountand
identifi a mass grave at the farm in Branjevonear Pilica [ICTFY, Reviewof
Indictrnentspursuant to Rule 61,Prosecutor v.ErdemoviC,CaseNo. IT-96-22-D,
para. 381.Photographsof July 5, 1995,shownothingparticularin the wooded area
were the executionswere to take place. Photographsof July 17, 1995,the day after
the executions described abovetook place, showmachine activity,severalgroupsof
bodies, anddug out soi1[ICTFY,Trial Chamber,Prosecutor v. RadovanKaradfit &
RatkoMladik, CasesNo. IT-95-5-R61& IT-95-18-R61,Testimony Ruez,3 July
1996,pp. 47-48, Annex 171.There is strong evidence that thesites were disturbed
and bodies wereremoved. Photographsof 21 and 27 September 1995 showactivities
on the same site where the mass gravewas previously identified.A deep hole and an
excavatorwere seen [ibid.]. When investigatorsanived at the scenein March 1996,
only a limited number of remainswere found. Chapter5- Sectio8
Srebrenica
Other evidence of killings followingthe fa11of Srebrenica
625. Inaddition to the evidence cited above, a number ofwitnesseshave reported seeing
incidentsof dead bodies not expressly connected to executions citedabove. These
reports further corroboratethe reality and magnitudeof the killings.
626. On July 11, members of the NetherlandsBattalion saw two trucks, each carrying
approximatelyforty to fiftymen, travellingin the directionof Bratunac. Shortlyafter
the trucks had passed the bendat Yellow Bridge, approximately100 shots were
heard [UnitedNations, Situationof HumanRights in the Tem'toryof the Former
Yugoslavia,Final Reportby Mr. TadeuszMazowiecki,SpecialRapporteurof the
Commissionon HumanRights, ElCN.411996192 ,2 Aug. 1995,p. 6, para. 191.
627. Some of those being evacuatedon the buses reported seeingdead bodies on the
journey, particularly on the road betweenBratunac,KonjeviCPolje and Nova
Kasaba. Some of the bodies were reported tobe in civilian dress with slit throats or
gunshotwounds. One woman reported seeingfour dead bodies of civilians during
her walk from the bus to Kladanj [ibid., p. 7, par251.
628. Two Netherlands soldiersreported seeing between500 and700 bodies on the way
fiom Nova Kasaba to Bratunac on July 14. On July 15,Dutch military personnel saw
approximatelythirty bodies on this road, as well as teams of people wearing rubber
gloves. They also saw tipper trucks and trucks carryingorpses.Dutch soldiers also
reported seeing dead bodies in various other places. During the early moming of 17
or 18 July, Dutch soldiers saw approximately100bodies lying on two trailers
coming fiom the directionof SrebrenicaVnited Nations,Report of theSecretary-
GeneralPursuantto Security Council Resolution 1019(1995) on Violationsof
InternationalHumanitarianLaw in theAreas of Srebrenica,zepa, BanjaLukaand
SanskiMost, S/1995/988,27 Nov. 1995, para. 221.
Conclusionas to killings
629. The facts cited above - the number of witnessreports, thesimilaritiesbetween them,
the authonties that have reviewed the credibilityof these reports, andthe technical
evidenceprovidedby aerialphotographs and exhumations -leave no trace of doubt
that thousands of male, mostly unarmed, civilians,were deliberatelykilled in
Srebrenica.ReplyofBosniaand Herzegovina
630. The above evidenceof killings is confirmedby independentauthorities.Surnmingup
his specificfmdingscited above,Mazowieckiconcludes:
"~here is significant direct and circumstantialevidence indicating that sumrnaryexecutionstook
place, both of individuals andgroups of peop[United Nations,Situationof
HumanRights in the Temetoryof theFormer Yugoslavia,FinalReport by Mr.
TadeuszMazowiecki,SpecialRapporteurof theCommissiononHumanRights,
ElCN.411996192 , 2 Aug. 1995,p. 12,para. 511.
The above demonstratesthat there is equally strong evidencefor the fact that mass
executionstook place.
631. ProfessorManfredNowak, expert member of the Working Group on Enforced or
Involuntary Disappearances,concludedon 4 March 1996that anumber of persons
reportedmissing from the region must be presurnedto have been victimsof mass
executions[UnitedNations, Questionof Enforcedor InvoluntaryDisappearances,
Reportsubmittedby Mr. ManfredNowak, ElCN.4119961364 , Mar. 1996,p. 18, para.
651.ElisabethRehn, SpecialRapporteurof the Commissionon HurnanRights, stated
that
"~ll evidence which has come available in recent months provides increased support for the
conclusion that at least 3,000,and possibly as many as 8,000 persons, mostly men unaccounted for
afier the faIl of Srebrenica, were the victims of mass killings committed by BosnianSerb forces."
[United Nations,Situationof humanrights in the tem'toly of theformer
Yugoslavia,Report submittedby Ms. ElisabethRehn,Special Rapporteurof the
Commissionon HumanRights, ElCN.4119961631 , 4March 1996,p. 3).
632. On the basis of the debnefing of the membersof the DutchUNPROFORBattalion,
the Dutch Ministry of Defence concludedthat thereis strong evidence to suggest that
Muslirnmen of fighting age were murdereden masseby Serbs outsidethe enclave
[UnitedNations, Report of theSecretary-GeneralPursuantto SecurityCouncil
Resolution1019(1995) on Violationsof InternationalHumanitarianLaw in theAreas
of Srebrenica,Zepa, BanjaLukaand SanskiMost, Sl19951988,27 Nov. 1995,para.
141.
633. Exactlyhow many persons werekilled inthe events precedingand followingthe fa11
of Srebrenicarernains uncertain.Thousandsare still missing and the process of
exhumationis fa. from complete;only relatively few bodies have been found.After
revelationsof the massacrescame to the attentionof the world, theBosnian Serb
Armybegan systematically excavating siteswhere they buried the victims. However, Chapter5-Section8
Srebrenica
the bottom line is that accordingto carefullyprepared estirnatesby the ICRC, 7,079
people are missing [David Rohde, Endgame.TheBetrayalandFa11of Srebrenica:
Europe 's WorstMassacre Since World WarII (1997), p. 348, Annex??].In June
1997the ICRC reported that it had requested theBosnian Serb authoritiesto provide
informationof about 8,000 people who are unaccountedfor. 3,000 of those were
known to have been arrested. The 5,000 other narneswere of people whofled the
tom before it fell and have not surfaced anywhere.Only a smallnurnber (some
thirty people) had reappeared during the release process [InternationalCommittee for
the Red Cross, Annual Report 19961.Also, Prof. ManfredNowak, expert member of
the Working Group on Enforcedor InvoluntaryDisappearancesof the Commission
on Human Rights, concluded thatsome 8,000 people remain unaccounted for [United
Nations, Report submittedby Mr. Manfi-edNowakon missingpersons in the territoly
of theformer Yugoslavia,ElCN.4119961364 , Mar, 1996,p. 3, para. 11.
Rape, tortureand other acts of inhumanetreatment
634. With these gruesome accounts of killings, the factual overviewof deeds that are
relevant to a finding of genocideis not complete. There is evidence that bothat
Potoëari and during the trek toTuzla, Muslims weretortured, raped and subjectedto
other acts of inhumanetreatrnent.
Torture
635. Severaiwitnesseshave described seeing living or dead bodies with noses, ears and
lipscut off. InvestigatorRuez of the ICTFYreports that at Potoëari:
"Onebody wasfoundhanging, accordintgo onewitnesswho wasthereatdawnwhoworked for
theparkingcompany,whichwas abus companyt,herewasa mutilated bthatwasfound
hanging.Thenosewascut,theearswerecutoff, thelipswerecutoff[ICTFY, Trial
Charnber,Prosecutor v. RadovanKaradZii & RatkoMladié,Cases No. IT-95-
5-R61 & IT-95-18-R61, TestimonyRuez, 3 July 1996,p. 27, Annex 171.
Ruez aiso reported that on the trek to Tuzla:
"Oneprisonerwhowas hidingin thewoods,observedthecaptureof anotherwhowasimmediately
tortured. He hdisnoseandearsandlipscutoff beforehe hadhisthroatsïit."[p 19,,
Annex ?].Reply of Bosnia and Henegovina
636. Displacedpersons who sawbodies along the road reported that these bodies had their
throat cut or had been mutilated [United Nations,Report of the Secretary-General
Pursuant to SecurityCouncilResolution1019(1995) on Violationsof international
Humanitarian Law in the Areas of Srebrenica, zepa, Banja Luka and SanskiMost,
S/1995/988,27 Nov. 1995, para.231.There are many reports of incidentsof torture.
Survivorstold how a man was forced to eat the liver of his grandson and the throat
of whom had been cut before his eyes by a Serbian soldier [ICTFY, Review of
IndictrnentsPursuant to Rule 61,Prosecutor v.RadovanKarad% & RatkoMladit,
CasesNo. IT-95-5-R61 & IT-95-18-R61, 1996,11 July, p. 12,para. 271.A baby
was executed by stabbingwith a bayonet before the eyesof the mother [ibid.]. In his
testimonybefore the ICTFY,Ruez reported that:
"One soldier approached a woman inthe middle of the crowd whowto get on to a bus.
Her child was crying. The soldier asked why the child was crying. She explained that he was
hungry. The soldier made a comment saying, 'Oh, well, the child will not be hungry any more' and
slit the child's throatinof everybody and then she îiied to flee by getting on to a bus."
[ICTFY, Trial Charnber,Prosecutor v. Radovan Karads & Ratko Mladit.,
Cases No. IT-95-SR61 & IT-95-18-R61,Testimony Ruez,3 July 1996,p. 27,
Annex 171.
Apart fiom constitutingmurder, these acts are to be characterised as tortureand the
inflicting of mental harm on members of theMuslimpopulation.
Rape
637. There is also evidencethat in the circurnstancespreceding andfollowing the fa11of
Srebrenica,Muslim women were raped. These acts will be detailed in Chapter 7 of
ths Reply. Witnessreports provided evidence that women were raped at PotoCari
[ICTFY, Reviewof IndictmentPursuant to Rule 61, Prosecutor v. Radovan KaradzlC
and RatkoMladiC,Case No. IT-95-18-1,16Nov. 1995,p. 21.Rape was also reported
in the debriefing of the Dutch soldiers at PotoCari.Mazowieckireports that a number
of rape cases have been registeredinTuzla Hospital.He also reports a case where a
girl of fourteenyears old cornrnittedsuicideafler having been raped by Serbian
soldiers.He mentions another confinned case in which a nineteen-yearold victim
was raped on her way to the confrontationline as partof a medical convoy [United
Nations, Situation ofHuman Rights in the Tem-toryof the Fomer Yugoslavia,Final
Report by Mr. Tadatsz Mazowiecki,SpecialRapporteur of the Commissionon
Human Rights, E/CN.4/1996/9,22 Aug. 1995, pp. 10-11,para.451. Chapter5- Section8
Srebrenica
"TWO took [the victim's] legs and raised them up in the air, while the third began raping her.Four
of them were taking turns on her. People were silent, no one wasescreaming and
yelling and begging them to stop. They put a rag in her then we just heard silent sobs
coming fi-omher closedps."[ibid.,p. 261.
Other acts of inhumanetreatrnent
638. In addition to the above, Serbs have comrnittedin Srebrenica a continuousStreamof
acts that caused seriousbodily or mental harm to members of thegroup and served
to dismember the group.
639. The blockades of Srebrenica, referredto above, caused greatphysical and mental
sufferingto the civilians trapped there.Dr. Mardel of the WHO stated that the
conditionswere "indescribablyappalling" [UnitedNations, Situation ofHuman
Rights in the Temitoïy of the Former Yugoslavia,PeriodicReport submittedby Mr.
TadeuszMazowiecki, SpecialRapporteurof theCommissionon HumanRights,
ElCN.41199413,5 May 1993, p. 8, para. 331.The SecurityCouncil Mission that
visited thetown in April 1993reported that
"The prevailing conditions of overcrowding,lack of drinking water, which has been cut off, the
absence of electncity, sanitation and basic medical assistancerepresent an exiraordinarily dramatic
and cruel situation for the pe~rebrenica."[United Nations,Report of the Securizy
CouncilMission EstablishedPursuantto Resolution819 (1993), Sl25700, 30
April 1993,para. 81.
640. The condition of refugees at the compoundin PotoEari,after the fa11of Srebrenica,
can be equally qualified as inhumane. Mazowieckireports that "the general
atrnospherewas one of panic and one international observerpresent cornmentedthat
she had never seen so much fear in a group of people" [United Nations,Situationof
HumanRights in the Temitoryof theFormer Yugoslavia,FinalReport by Mr.
TadeuszMazowiecki, Special Rapporteurof the Commissionon HumanRights,
ElCN.41199619,22 Aug. 1995,p. 6, para. 181.The pattern of inhumanetreatment
continuedwhen Muslimswere evacuatedafter the fa11of Srebrenica. Thewomen,
children, and the elderly were put ontrucks which were coveredwith plastic. The
temperaturewas very highand there was little ventilationin the truck. An
international observercomrnented "thatthe people were herded together like cattle
and showedgreat fear in their eyes" [ibid., para. 201.Particularly cruel was the
treatment of the wounded. On Wednesday 13 July about65 wounded people were
taken from PotoCariin a convoy of seventrucks accompanied bymedical staff andReply ofBosnia andHenegovina
UNPROFORescorts. The convoy was halted at a Bosnian Serb checkpoint near the
confrontationline. Some 30 men were removedfiom the vehicles.It was reported
that the sick and wounded
"were beaten, kicked and pushed by the Bosnian Serb soldiers.At least one man was severely
beaten with an automatic weapon and a man with a brokenleg was made to walk without
assistance."bid, p. 7, para. 261.
Forced relocation
In April 1993the Security Council:
641.
"condemned and rejected the deliberate plan of the Bosnian Serb party to force the evacuation of
the civilian population from Srebrenica and its surrounding areas as part of its overall abhorrent
campaign of ethniceansing."[UnitedNations, SecurityCouncilResolution819
(1993), S/RES/819, 16April 19931.
642. In large part, this plan of ethnic cleansingwas executedin Srebrenicaby killing
Muslim men. Addmorally, ethnic cleansing wasexecutedby forced massive
deportationsof Muslims. In combinationwith the abovementioned casesof killings,
torture and rape, these forced deportationsprovide a critical step in the destructionof
the non-Serbpopulation in eastem Bosnia.
643. The forced relocation tookplace in several stages- partly after the establishmentof
the "safe area", partly by thefleeing of 15,000Muslimsafier the fa11of the town,
and partly by the evacuationof 25,000 people out of PotoCariwhich was executedon
the 12th and 13thof July. This last massive relocation took oneand a half daysto
complete; 300 buses were used. As waspointed out by Ruez in his testimonybefore
the ICTFY, the amount of people evacuated andthe number of buses that wereused
for this purpose clearly demonstratedthat "the preparationof the evacuationhad
been carried out in quite some detail" [ICTFY, Trial Chamber,Prosecutor v.
Radovan Karadz'ii& RatkoMladié,CasesNo. IT-95-5-R61& IT-95-18-R61,
Testimony Ruez,3 July 1996, pp. 54-55,Annex 171.
644. The forced relocation wasan integral element of the policyto destroyMuslim life in
Srebrenica.In his closing argumentsin the Rule 61 procedurein the case against
MladiCand KaradnCM , r. Hannon fiom the office of the Prosecutorconcluded:
"~ithin three days of July 1lth to July 13ththe entire Muslimpopulation of the enclave had either
fled, been deportorbeen killed. The pattern of ethnic cleansingpreviously perfected by the Chapter5 -Sectio8
Srebrenica
forcesof Dr.Karad2andGeneralMladiCinthemunicipalitiesof Prijedor,BosanskiSarnac,
BrCko,FoCaandVlasenica achievmorbidperfectionin Srebren[ICTFY,Trial
Chamber, Closing Arguments of the Prosecution,Prosecutorv. Radovan
KaradZié & RatkoMladié,CasesNo. IT-95-5-R61 & IT-95-18-R61,8 July
1996,p. 71.
Involvement ofthe Respondent
645. Thereis evidencethat the Respondent wasdirectly involved in the acts detailed
above. According to reliable sources,the fighting, expulsion and subsequent
massacreswere undertakenby Serb forces fiom both sides of the river Drina as well
as by Serbian paramilitary groupssuch as the Arkan Tigers [David Rhode,Endgame.
The Betrayal and Fa11of Srebrenica:Europe's WorstMassacreSince World WarII,
1997, pp. 29, 59,Annex 601,the Seielj Militia and the White Eagles [United
Nations, Questionof Enforcedor InvoluntaryDisappearances,Report submittedby
Mr. Manfi-edNowak,report ElCN.411996136 , Mar. 1996,p. 18,para. 65; "TheFa11
of Srebrenicaand the Failure of U.N. Peacekeeping",HumanRights Watch/Helsinki,
Oct. 1995,Vol. 7, No. 13,p. 11, Annex551.
646. Displacedpersons and men who had been detained also reported the involvementof
pararnilitary forcesandsoldiers from the Federal Republicof Yugoslavia. Oneman
interviewedby the United Nations,who was held in the Karakaj gymnasium,said
that the soldiers in the gymnasiumstated that theywere fiom Serbia. Another man
descnbed seeingunits of the "Black Wolves"a paramilitaryunit at Snavago as his
group attemptedto walk to Bosnian-Govenunentheld temtory. Other displaced
persons said they believed some of thesoldierswere fiom Serbia and Montenegro
because of their accents [UnitedNations,Report of the Secretary-GeneralPursuant
to SecurityCouncil Resolution1019(1995) on Violationsof International
Humanitarian Lawin theAreas of Srebrenica,Zepa, BanjaLukaand SanskiMost,
Sl19951988,27 Nov. 1995,para. 361.In his confirmationof the indictment against
RadovanKaradZiCand Ratko MladiC,Judge Riad also pointed to the apparent
involvementof troops fiom the Federal Republicof Yugoslaviain the events at
Srebrenica.Witnesses had statedthat the take-overof Srebrenicaand the events
followingit were not only carried out by Bosnian Serbs but also by soldiers from the
Federal Republic of Yugoslavia. These soldierswere recognizedby their clean-cut
appearance,distinctiveuniforms and use of Serbian dialects[ICTFY, Review of
IndictmentPursuant to Rule 61, Prosecutor v.RadovanKaradfiéand RatkoMladié,Reply ofBosniaandHerzegovina
16Nov. 1995,CaseNo. IT-95-18-1,p. 31.The involvement ofthe Respondentin the
genocidal actscornmittedin Srebrenicais Mer detailedin Chapter8 of this Reply.
Conclusion
647. The evidencecited above has been collectedby the international agenciesof the
highest calibre. These factual findings are entitledto the utrnostrespect [seeMer
Chapter 3 of this Reply].
648. The above presented evidenceindicatesthat theMuslimpopulationwas erased from
Srebrenicaand that that result was effectuatedthrough the killing or disappearanceof
more than 7,000 Muslims,through torture,rape andforced relocation.
649. The victims of the deedsdescribedabovewere selectedbecause of their ethnicity.If
the facts would leave any doubtthat the Muslimswere targeted as a group, such
doubt would be erasedby statementsmade by GeneralMladiC.When MladiCentered
Srebrenicaon 11July 1995,he openly statedfor Serbian television:
"~ere we are in Srebrenic1lth July 1995. Onthe eveof yet another great Serbian holidaywe
present thistto the Serbian people as agift. Finally,afier the rebellion against theDahijas,the
time hascorneto take revenge on the Turksin this[cited andtranslatedin ICTFY,
Trial Chamber,Prosecutor v. RadovanKaradZit & Ratko Madit, CasesNo.
IT-95-5-R61 & IT-95-18-R61,Testimony Ruez, 3 July 1996, p. 22,Annex 171.
The rebellion againstthe Dahijasreferredto an uprising in 1804 inthe Ottoman
Empire at which Serb off~cershad beenkilled [ibid.].This "revenge"on the Muslims
led to the gruesomeresults detailedabove.
650. Chapter 6 willclariQ that the eventsrelated in this Sectionof the Reply without any
doubt meet the criteria of the Genocide Convention.
9. The policy of ethnic cleansing
Thepicture that emergesfiom the evidence
651. In Bosnia and Herzegovina,visions of hell cameto life in the period between 1992
and 1995: fiagmentedbody-partsdurnpedin rivers, in mineshaftsor in the open
roads of areas that were subjectedto the ethnicpurificationcampaign;literally
millions driven fiom their homesto make way for the colonizationof their lands; Chapter5 -Section 9
Thepolicy of ethniccleansing
thousandsof people killed, becausethey happenedto belong to a specific ethnic
group; killed in camps andin citieswhere they wereencircled,starved and finally
massacred, throughshellingor mass executions;thousandsmore killedat fields of
execution,where fiightened civilianswere bused and carted,by day and night,
anticipatingtheir end when confronted with the mass gravesexcavatedby heavy
machinery;othersbrought toa horrible deathin detentioncamps, where the
infliction of pain wasoften onlythe precursorto ever more grotesqueways of
slaughter;tens of thousands of non-Serbs, mainly women butalso menand children,
raped and abused, toinjure, to dehurnanize,to destroythe existenceand sou1of a
people; and, no less fiighteningly,the wholesale expungingof the reminders ofthe
culture and religionof the people thathad been driven out, the bulldozing of ancient
gravesites,the demolitionof mosques.
652. The fate of each individualwho enducedsuch sufferingin itself reflects thestory of
this genocide. The fate of the non-Serb peopleas a whole reflects the strategy that
underpinnedthis campaign ofhorror; it is testimonyto the exclusiveideology ofa
territory whichhad to belong to just a singlegroup, to be united under the banner of
a Greater Serbia controlledby Belgrade.It is testimonyto the grand strategy of
using military, paramilitaryand policeforcesto achieve control over territory,and to
exterminateor permanently removethe undesirables.It fùrnishesevidenceof the vast
effort in planning and logisticalpreparedness necessaryto committhis Mer crime
of thecentury, to destroy, onceagain, in whole orin part, anentire segment ofa
population.
653. The evidenceof such a fate of the dispossessed andof the dead, the injured, maimed
and orphanedcries out againstBelgrade'ssmugdisclaimersof facts and
responsibility.It cries out so strongly,thatespitethe protestationsof the Yugoslav
government, the organsof the international community have already left no doubt in
their appreciationof these facts. This was no tribal conflict among uncivilised
peoples who know no better (if armedconflicts whichcould be describedin these
terms ever didoccur). This, as it has been authoritativelyconfirmed,was a
consistent,well-organised campaign on the part otfhe governmentof Yugoslaviato
fulfil itsream of ethnic puritythrough a Greater Serbia.
654. This section willreview some of these authoritativefmdings,placing the ethnic
purificationcampaigninto the contextof the creationof this Greater Serbia.It will
confïrmthe systematicplanning andexecutionof this campaign andidentiQ the
horrific and ever-repeatingpatterns of genocidalacts. This sectionwill also relate theReply of Bosniaand Herzegovina
findingsby the organs of the internationalcommunitythat these acts were
emanationsof official policy, ratherthan private acts of unspeakableinhumanity.
Achievinga Greater Serbia throughethnicpurification
655. Earlier in this Reply, the Applicant explained how the Greater Serbiaideology needs
to be seen as the overall motive for the Serb assault onthe non-Serbsof Bosnia and
Herzegovina [Chapter 4, Section 11.The campaignof ethnic purification,reviewed
and recordedas it was by the highestUnitedNations bodiesconcemed with
international peace and security,by an InternationalCriminalTribunal, and by the
most authoritativeinternational humanrights organs,has beensquarelyplaced in the
context of this strategyof achievinga Greater Serbia. The ICTFY found that:
"84.The objectiveof Serbia, tJNA and Serb-dominated political par, rimarilythe SDS, at
this stage was to create a Serb-dominated western extensionof Serbia,n Serb-dominated
potions of Croatia and portions,too, of Bosnia and Herzegovina. Thiswouldtogetherwith
Serbia, itwo autonomous provincesand Montenegro,form a new and smallerYugoslavia witha
substantially Serbpopulation.(his concept was espousedby SlobodanMiloSeviC,with ethnic
Serbs widely adoptingit throughoutthe formerYugoslavia,including Serbpolitical leadersin
Bosnia and Herzegovinaand in Croatia[ICTFY, TrialCharnber,Opinionand
Judgment, Prosecutorv. DuSkoTadit, CaseNo. IT-94-1-T, 7 May 1997,p. 30,
para. 841.
656. The Commissionof Experts also clearlylinked ethnicpurificationto the ultimate
goal of establishinga Greater Serbia:
"~ith respect to the practicesby Serbs in Bosniaand Herzegovinaand Croatia, 'ethniccleansing'
iscommonlyused as a term to describea policyconductedin furtheranceof political doctrines
relating to "Greater Serbia".The policy is putinto practiceby Serbs inBosniaand Herzegovina
and Croatiaand their supportersin the FederalRepublicof Yugoslavia. Thepoliticaldoctrine
consistsof aomplexmixture of historicalclaims,grievancesand fears and nationalisticaspirations
and expectations,as well as religiousand psychological elements. Thedoctrineis essentiallybased
on ethnic and religiousexclusivityand the dominance of Serbs over other groupsin certain
historically claimedareas. These views contrast with ethnicand religious pluralism.This doctrine
breedsintoleranceand suspicionof otherethnic and religious groupsand is conduciveto violence
when it is politicallymanipulated,as has beenthe c[United Nations,FinalReport of
the United Nations Commission of Experts,SI19941674(Vol. 1),27 May 1994,
p. 33-34, para. 1311.
657. The Serb airnof a GreaterSerbia obviouslyclashedwith the historically-grown
reality of the multi-ethnicBosnia and Herzegovina.As was also recognisedby the
United Nations Commission of Experts: Chapter5 - Section9
Thepolicy ofethnic cleansing
"~he Serbs 'ethnic cleansing'carnpaignwas shaped byseveralfactors. First, the demographicsof
the region ensured that any attemptto establish 'ethnicallypure7areas would entai1tremendous
dislocations.InBiH, the pre-war populationwas approximatel40 per cent Muslim,32 per cent
Serb, and 18per cent Croat. Theareas of Serbpreponderance areprimarily locatedin the north-
east,south-eastand north west portionsof the country. However,these areas are neither
homogenousnor contiguous. The areas in whichSerbs are numerically dominantinclude substantial
populationsof Muslimsand ~roats." [UnitedNations, Final Report of the United
Nations Commissionof Experts, S1199416742 ,8 Dec. 1994, (Vol. 1),Annex IV,
"The Policy of Ethnic Cleansing",p. 9, para. 311.
658. However, as the Tribunal Trial Chamberruled, the demographicobstaclesto the plan
of a Greater Serbia did not appear insurmountable.They wouldbe overcomethrough
the policy of ethnic cleansing:
"~owever, among obstaclesin the way were the very large Muslimand Croat populationsnative to
and living in Bosnia and Herzegovina.Todealwith that problemthe practiceof ethnic cleansing
was adopted.This was no new concept.As mentionedearlier, itwas familiar to the Croat wartime
regime and tomany Serb writerswho had longenvisaged the redistribution ofpopulations,by
force if necessary,in the course of achievinga Greater ~erb[ICTFY, Trial Charnber,
Opinion and Judgment,Prosecutor v.DuSkoTadib,Case No. IT-94-1-T, 7May
1997, p. 30, para. 841.
659. The link between the aim of establishinga Greater Serbia,and the perceived "need
to destroy populationsapparently standingin the way has also been specifically
confirmedby the Tribunal'sTrial Chamberin the Rule 61hearings in relation to
KaradVCand MladiC:
"ln this case, the plans of the SDS in Bosniaand Herzegovinacontainelementswhich wouldlead
to the destructionof non8erbian groups.The project of an ethnically homogeneoState
fonnulated against abackdrop ofmixedpopulations necessarilyenvisagesthe exclusionof any
group not identified with the Serbian o. he concrete expressionsofhese plans by the SDS
before the conflictwould confim the existence ofan intentto excludethese groupsby violence.
The project does not excludethe use of force againstcivilianpopulations.Furthemore, it appears
that a certaingroup which had been targetedcouldnot, in accordance withthe SDS plans, lay
claim to any other specific temtory. In this case,the massivedeportationsmay be construed as the
first step in a processof elimination.These elements,taken together, wouldconfinn that the project
which inspired theoffences beforethe Trial Chamber,contemplatesthe destructionof the non-
Serbian group,and specificallythe BosnianMuslimgroup, as the ultimate step.
In addition, certainmethodsused for implementingthe project of"ethnic cleansing"appearto
reveal an aggravatedintentas, for example,the massivescaleof the effect of the destruction.The
number ofvictimsselectedonly becauseof their membershipin a group would lead one to the
conclusionthat intentto destroythe group, atleast in part, was present.Furthemore, the specific
nature of some of themeansusedto achievethe objective of "ethniccleansing"tendsto underscore
that the perpetrationof the acts isignedto reach thevery foundationsof the group or what is
consideredas such. The systematicrape ofwomen,to whichmaterial submittedto the Trial
Chamber attests,is in somecasesintended to transmita new ethnicidentityto the child. In otherReply ofBosniaand Herzegovina
cases, humiliationand terror serveto dismemberthe group.The destruction of mosquesor Catholic
churches is designedto annihilatethe centuries-long presence ofthe group orgroups, the
destructionofibrariesis intendedto annihilatea culturewhichwas enriched through the
participationof the variousnational componentsof the population.
This intent derivesfiom the combined effect ofspeechesor projects layingthe groundwork forand
justieing the acts, fiom the massivescaleof their destructiveeffect and fiom their specificnature,
which aimsat underminingwhat is consideredto be the foundation of thegroup. The national
Bosnian Croat, and, especially,Bosnian Muslim national groupsare thef those acts."
[ICTFY, TrialCharnber, Reviewof IndictrnentPursuantto Rule 61 of the
Rules of Procedure and Evidence,Prosecutor v. RadovanKaradzit & Ratko
&dit, CasesNo. IT-95-SR61 & IT-95-18-R61,11July 1996,p. 53, paras.
94-95].
660. Thus, in the TadiCOpinion and Judgment,the Trial Chamberniled that there had
been "a policy to commit inhumaneacts against thecivilianpopulation of the
tenitory, in particular thenon-Serbpopulation,in the attemptto achievethe creation
of a Greater Serbia.In furtheranceof this policy these inhumaneacts were
committedagainst numerousvictims and pursuantto a recognisable plan." [ICTFY,
Trial Chamber,Opinion and Judgrnent,Prosecutor v.DuSkoTadit, CaseNo. IT-94-
1-T, 7 May 1997 p. 254, para. 660; seealso ibid.,p. 208, para. 574confirmingthe
strategicaims of the "RepublikaSrpska"to create a purely SerbianState]. The
Tribunal addedthat in Prijedor,non-Serbs were "subjected to gross abuses,
seerninglyas a means of attaining the historicalgoal of a Greater Serbia" [ibid., p.
166, para. 4661.
661. This directlink betweenaim and methodhas alsobeen emphasisedby the Special
Rapporteuron HumanRightsin the former Yugoslavia,who indicated that:
"(...the principal objective of themilitaryconflict in Bosniaand Herzegovinais the establishment
of ethnically-homogeneous regions. Ecleansingoesnot appear to the consequenceof the war
but rather its goal.This goal,arge extent, hasalreadybeen achieved throughkiliiigs,
beatings,rape, destructionof housesand thrpnited Nations,Situationof Human
Rights in the territoïy of theformer Yugoslavia,Report submittedby Mr.
Tadeusz Mazowiecki,Special Rapporteur of the Commissionon Human Rights,
E/CN4.1992/S-1/10,27 Oct. 1992,p. 3, para. 61.
Ethnic cleansing as a strategy directed against non-Serbs
662. It is intrinsicto the very essence of the concept ofethnic cleansingor purification
that itis an exclusive doctrine,airnedat particulargroups. The UnitedNations
Commissionof Experts defmesethnic cleansingas: Chapter5 -Section9
Thepolicy ofethniccleansing
"a purposefulpolicy designedby one ethnicor religious groupto remove by violent and terror-
inspiringmeansthe civilianpopulationof anotherethnicor religious groupfrom certain geographic
areas. To a large extent, it is carried outin the name of misguided nationalism,historic grievances
and apowerful driving senseof revenge. Thispurposeappearsto be the occupationof territory to
the exclusionof the purged group or gro[United Nations,Final Report of the
UnitedNations Commissionof Experts, Sl19941674,27 May 1994,p. 33,para.
1301.
The United Nations Secretary-Generalconfirmedthat:
"the purpose is to create areas ovenvhelmingly populatedby a single ethnic group, apracticethat
hascome to be known as 'ethnic cleansin[United Nations,Report of the Secretary-
General Pursuant toparagraph 15 of SecurityCouncilResolution 757 (1992)
and Paragraph 10 of SecurityCouncilResolution758 (1992), SI24100, 15
June 1992, para. 151.
663. In this case, it is clear that ethniccleansingwas conductedin a way specifically
targeted at the groups to be expungedfiom territoryclaimedby the ideology ofa
Greater Serbia. The patternof atrocitiesreviewed throughoutthis Chapter, always
against non-Serbs, is too ovenvhelmingto permit any doubt. Hence, the Trial
Charnberfound beyond reasonable doubt that the impugnea dcts were committedin
full awarenessof the policy of and discriminationagainstnon-Serbs, andacting on
the basisof religious and political grounds [ICTFY,Trial Chamber,Opinionand
Judgment,Prosecutor v. DuSb TadiC,CaseNo. IT-94-1-T,7 May 1997,p. 171,
para. 4771.
664. The discriminatory natureof the actionsis also evidencedin the selectionand
registrationof victims accordingto ethnicity,the requirementimposedupon non-
Serbsto distinguishthemselvesby wearingarmbandsand the takingof preventative
measuresto ensurethat damageto Serbpopulations and property would be avoided
[ICTFY,Trial Chamber, Opinionand Judgment,Prosecutor v. Du& Tadit, Case
No. IT-94-1-T, 7 May 1997,pp. 165-166, paras.465-4671.For example,in relation
to Kozarac, it was establishedby the Trial Chamberthat:
"care was taken to to avoiddamageto Serb property.Azra BlaZeviCtestified that after an
agreement was reachedallowingpeopleto leave Kozarac26 May 1992the only Serb woman
who had remained behind atthe hospitai was orderedby soldiersafnliated with the Serb forcesto
indicatewhich apartmentwas hersso that it would notbeharmed. Evidencewas alsopresented of
the use of the inscription'Serbe,do not touch' on Serb property and, unlike the mosque,the
Serbian Orthodoxchurch survivedthe attack and subsequentdestruction.Similarly, Serb-dominated
villagessuch as RajkoviCiand Podgrade wereeithernot shelledat al1or only shelledaccidentally."Reply ofBosnia and Herzegovina
[ICTFY,Opinionand Judgment,Prosecutorv. DuSkoTadit, CaseNo. IT-94-1-
T, 7 May 1997,p. 54, para. 1441.
665. As the Commission ofExperts stated,an additional factor alsoconfirmsthe existence
of a policy of ethnic cleansing:
"the wholesaleand surreptitiousdepartureof the Serbian population livingin certain areas, which
are to be'ethnicallycleansed',before the acts describedabovetake [United Nations,
FinalReport of the UnitedNations Commission of Experts,Sl19941674,27
May 1994,pp. 34-35,para. 1381.
666. As the Trial Chamberfound on thebasis of wide-rangingevidenceprovided and
confirmed through its proceedings,
"non-Serbs(..were subjectedto suchtreatment simplybecausetheir religion orpoliticsoffended
those who gained controlof the regiAnpolicyto terrorize the non-Serb civilianpopulation of
opStinaPrijedor on discriminatory groundsis evidentand that its implementation waswidespread
and systematicthroughout,at the minimum,tinaPrijedor is apparent. Theev(...occurred
within this contextof discriminati[ICTFY, TrialChamber,Opinionand Judgment,
Prosecutorv. DuSkoTadi2,CaseNo. IT-94-1-T, 7 May 1997, pp. 168-1 69,
para. 4721.
It concluded thatthe requirement that theinhumaneacts must be taken on
discriminatory groundsis satisfiedby the evidence, provingthat the attack on the
civilian populationwas conducted againstonly the non-Serbportion of the
population becausethey were non-Serbs [ICTFY,Trial Chamber,Opinion and
Judgrnent, Prosecutorv. DuSb Tadié,CaseNo. IT-94-1-T, 7 May 1997, pp. 249-
250, para.6521.
667. Similarly, the ICTFY foundthat the policyof discriminationimplemented at
Vlasenica:
"(..was specificallyaimed at "cleansing"the region of its Muslim population.In this instance,
this policy ofthniccleansing"took theform of discriminatoryacts of extreme seriousnesswhich
tend to showts genocidalcharacter.For instance,the Chambernotesthe statementsby some
witnesseswhich point, among other crimest,os murderbeing committedin the region. More
specifically,the constitutivetof the crime of genocidemay be inferred flom the very gravity
of those discriminatory ac[ICTFY,Trial Chamber,Reviewof Indictment
Pusuant to Rule 61, Prosecutorv. DraganNikolik,Case No. IT-94-2-R61,20
Oct. 1995,p. 20, para. 341.
Ethniccleansing andthe establishment ofphysical contro olver territories Chapter5 -Section9
Thepolicy of ethnic cleansing
668. Asthe Commissionof Experts found:
"the manner in whichthe policyof ethnic cleansingis carried out by Serbs in Bosnia is consistent
throughout a certain geographic arearepresentedby an arc ranging fiom northem Bosniaand
covenng areas in eastem and western Bosnia adjoining the Serb Krajinaarea in Croatia. The
practice of ethnic cleansingis carried out in strategicinking Serbia properwith Serb-
inhabitedareas in Bosniaand Croatia.wnited Nations, Final Report of the United
Nations Commissionof Experts, SI19941674(Vol. 1),27 May 1994,p. 34, para.
133).
Hence, initially, the med operationstriggereda campaignto establishcontrol over,
and then ethnicallypuri@,areas with significantSerb populations:
"1nthe weeks followingBiH's mach 19921recognitionby the Ewopean Community,NA and
Bosnian Serb forces attacked Bosnian townschas Prijedor and other villages in the Kozarac
region of northeast [west]BiH, and Zvomik in northwest[east] BiH. Similar attackshave occurred
in many citiesand villages along theDrina andva Rivers. These areas of BiH have high
concentrationsof BosnianSerbs. Thepurposeof these attacksseems clear: Serb forces have sought
to consolidate theircontrolovereseterritoriesand linkthem witheach other, as well as with
~erb-controlledareas of croatia[United Nations,Final Report of the UnitedNations
Commissionof Experts, SI19941674(Vol. 1),28 Dec. 1994, AnnexIV, "The
Policy of Ethnic Cleansing",p. 8, para.271.
669. This link betweenthe militarycampaignof establishingcontrol and the then
invariably resultingcleansingoperationswas widelynoted, even atthe very outset of
the campaignof ethnicpurification:
"~ll intemational observers agree thatwhat is happening isa concerted effortby the Serbs of
Bosnia-Herzegovina,with the acquiescenceof,and at least some supportfioJNA, to create
'ethnicallypure'regions(..the techniquesused are the seizure of territory by military force and
intimidation of thenon-Serb population[United Nations,Further Report of the
Secretary-General Pursuant tu SecurityCouncilResolution 749(1992),
Sl23900, 12 May 1992,para. 51.
670. Similar findings have been madeby other independentinternational observers.Misha
Glenny writes in TheFa11of Yugoslavia:
"~he Serbs haveleft a temble trail of bloodand destructionin their wake as they closed thenoose
around Sarajevo's neck.(..The aimof this offensive(..was temtorid acquisition(...The
temtory fonned a huge crescentrunningdong the four rivers fiom BosanskaKrupa in the north-
Westthrough Doboj in the centre, toBijelijnain the north-east.Fromthere, it stretchedsouthalong
the Drina towards ViSegradbefore bendingwestwards throughFoEatowards eastem ene ego vina."
[MishaGlenny, TheFaII of Yugoslavia,London, 1992, pp. 166-167, Annex
611.Reply of Bosnia and Herzegovina
671. After this initial backboneof control over a strategicarch had been achieved, the
second phaseof the operationcomrnenced.This was the connectionof the regions
which hadbeen taken over, by establishing control over some 70 per cent of the
territory of Bosnia and Herzegovina, whetheror not the originalpopulation had
containedsignificantor even dominantSerb elements. [United Nations,FinalReport
of the United Nations Commission of Experts, Sl19941674lAdd.2(Vol.1),28 Dec.
1994,Annex IV, "ThePolicy of EthnicCleansing",pp. 9-10, paras.28-36]. A more
detailed Commissionof Experts Report added:
"(..there has never been a unifiedor coherentbattle line,but multiple theatres ofoper(...)s
strategic positionswere related to eachone of these theatres,but since these theatres were part ofa
political-geographicalarcinkingSerbia with Serb-inhabitedareas in BiH and Croatia,the theatres
of military confrontationwerereadily identifiable.As the conflictprogressed,the Serbsought
to solidifi and enlarge its territory againstthe areas of the projected 'Great(...Because
these areas were of mixed ethnic and religious populationand Serbs were usuallya minority,
particularlyin BiH, Serbs feltthat they had to dislodgethe othergroups.In 1992,Bosnian Serb
forces were insufficientin number and disorganized.However,they weretaskedby their political
leaderswith massivepopulationremoval in a relatively shortpenod of time withoutthe open and
direct participationof the JNA. TheA,however,militarilysupportedthe BosnianSerb forces in
many ways, including bombardmentand shelling.They werealso directly involvedin several
operations.(...The overridingpolitical goal of depopulatthese areas of non-Serbsdetermined
the nature ofthe militaryactivities.se areas were not militarytargets, but civilianareas with
strategic importancederivedfrom the fact that they linkedSerbia with Serbsin BiH and ~roatia."
[UnitedNations,FinalReport ofthe UnitedNationsCommissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,AnnexIII, "TheMilitary Structure,
Strategyand Tactics of the Waning Factions",p. 5, para. 9-10].
672. The achievement ofthe ethnicallypure Greater Serbia demanded the employmeno tf
a consistent strategy ofgenocide, marked out by ever repeating patterns ofpractice.
Systematic violations and the ever repeating patternof acts
673. Once direct controlhad been achieved,populationswouldbe killed, deportedor
compelledto flee. Other areas were encircled,to achievethe sarneresult, although
more gradually,as Serb control over the surroundingarea was consolidated.The
systematic applicationof this pattern of practiceby the Serb authoritiesagainst non-
Serb populationsin al1Serb controlledareas is beyondany doubt:
"~ost of the temtory of the former Yugoslavia,in particularBosniaand Henegovina, is at present
the scene of massiveand systematicviolationsof humanrights,aswell as seriousgrave violations
of humanitarian law.Ethniccleansingis the causeof mostsuchviolations(...Accordingto the
tesîimonyreceived, the policyas been openlypursuedon the temtory of those parts of Bosnia and
Herzegovina andCroatiawhich are controlledby ethnic ~erbs."vnited Nations,Situation
of HumanRightsin theterritory oftheformer Yugoslavia,Reportsubmitted by Chapter5-Section9
Thepolicy of ethnic cleansing
Mr. TadeuszMazowiecki,Special Rapporteur of the Commissionon Human
Rights, ElCN4.1992lS-119,28 Aug. 1992,p. 2, para. 61.
The Tribunal's TrialChamberdescribed the campaignas being composedof
"consistent cnminal acts, al1targetingthe sametype of populationand manifestingthe same desire
to annihilateits culture and religioussites,coupled withthe effect ofcnminality on such a massive
scaie[ICTFY,Trial Chamber,Opinion and Judgment,Prosecutor v. Duih
TadiC,Case No. IT-94-1-T,7 May 1997,p. 16,para. 401.
The Charnber,in another case, addedthat the practiceof ethnicpurification "wenton
throughout the conflict", involving "the systematic implementation of that policy"
[ICTFY,Trial Chamber,Reviewof the IndictrnentPursuantto Rule 61 of the Rules
of Procedure and Evidence,Prosecutor v. RadovanKaradZi6 & Rath MladiC,Case
No. IT-95-5-R61 & IT-95-18-R61,pp. 31-32, para.60-611.
674. The technique of ethnic purificationthat was so systematicallyapplied has been
displayedin detail above in relationto its individual elements. Asit was not possible
to arrange for the direct removalof populationsin al1places:
"~erb officialsrelied on the use of terror, entailingmass killings,torture, rapesand prison camps to
eradicatethe non-Serb population. The nohad to beufficientlyterrorizedto ensurethat
they wouid flee the area and never r[UnitedNations, Final Report of the United
Nations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,
Annex IV, "The Policy ofEthnic Cleansing",p. 9, para. 321.
675. The individual elementsof the recurringpatternwere identifiedby the ICTFY's
Trial Chamber: "Anarea wouldbe surrounded,subjected tomilitary attack, subdued,
non-Serb houses would be destroyed, non-Serbswould be capturedand often killed
and the survivorswould then be driven out." [ICTFY, TrialChamber,Opinionand
Judgrnent,Prosecutor v. DuSkoTadié,7 May 1997,p. 52-53,para.140-141on
Hambarineand Ljubija; see also,ibid., pp. 53-54, paras. 142-143, on the Kozarac
area].
676. The United Nations SpecialRapporteur describedthe recurrent patternas follows:
"~he term ethnic cleansingrefers to the elirninationby the ethnicgroup exercising controlover a
giventerritory of members of otherethnic Arwide variety of methodsare usedto
accomplishthisend, includingthreats, harassmentand intimidation,shootingor using explosives
against homes,shopsand places ofbusiness;destructionof places ofworship and culturalReply of Bosnia and Herzegovina
institutions;transfer or relocationof populationsby force; summaryexecution,the commissionof
atrocities calculatedto instil terroramongthe population,such as torture, rape andthe mutilation of
corpses;and the shellingof civilianpopulationcentres.Ethnic cleansingis often accompaniedby
confiscationof the property ofhose forced to leave, including homes, faand agricultural
equipment.In some areas,homes and farmbuildings have beenrazed, in orderto preclude any
possibilityof return. Departureoften involveslong and arduousjoumeys duringwhich the
displaced population is systematicallyrobbedof savings,jewellery and other persona1effects,
exposedto beatings and rape, deprivedof food and shelter.In many instances thefleeing
population hasbeen obligedto cross throughareas of armedconflict(...it shouldbe noted that
ethnic cleansingis not practised exclusivelyinas where Serbsform a majorityof the population.
In some of the citiesmost stronglyaffectedby Serbianethnic cleansing,suchas Prijedor, Muslims
and Croats werein the majority.This lends credence tothe fear thatthe ultimate goalmay be to
incorporate the Serbian-occupiedreas of Croatiaand Bosniaand Herzegovina intoa 'Greater
Serbia'."[UnitedNations,Situation ofHumanRightsin the territory ofthe
former YugoslaviaR , eportsubmittedby Mr Tadeusz Mazowiecki,Special
Rapporteur ofthe Commissionon HumanRights,Transmitted bytheSecretary-
General to the General-Assembly and theSecurityCouncil,Al471666-Sl24809,
17Nov. 1992, pp. 6-7, paras. 9-13].
677. The Commissionof Experts identifieda similar, ever-recurringpattern:
"134. The coercive meansusedto removethe civilianpopulationfiom the above-mentioned
strategicareas include:massmurder,torture, rape and other forms of sexualassault; severephysical
injury to civilians;mistreatrnentof civilian prisonersand pnsoners of war; use of civiliansas
human Shields;destructionof personal, publicand cultural property; looting,thefi and robbery of
persona1property; forced expropriationof real property; forceful displacement ofcivilian
population;andattackson hospitals,medicalpersonneland locationsmarked withthe Red
CrossRed Crescent emblem.
135.Many of these acts ofviolenceare carried out with extremebmtality and savageryin a
manner designedto instil terrorin the civilian population,in order to causethem to flee and never
to rem. This is evidencedby the large numberof purposefuland indiscriminatekillings,rape and
sexual assaults,and otherrmsof torture committedagainst civiliansand prisoners ofwar, both
inside and outsidedetentionfacilities.Theseacts are alsohighly publicizedby the perpetratorsin
order to achieve a terror-inspiringeffect on others and causethem to flee.
136.Other noteworthy practicesare widespread destruction ofvillagesby systematicailybuming
them to the groundand blowingup al1the housesand structuresin a given area. This includes
cultural and religiousmonuments andsymbols. Thepurposeof this destructionis to eradicate
cultural, socialand religioustraces that identiQ the ethnicand religious groups.In the caseswhere
the practices describedabovedo not occur,these groupsare forcedto leaveunder duress by reason
of a well-foundedfear for theirrsonalsecurity.
137.Another recming practiceis to force civilian inhabitantsto sign overtheir property as a
conditionof their departwe or removalto other areas. Mayorsand public officiais,includingthe
police, are fiequentiy involvedin this practpnited Nations, FinalReport ofthe
United Nations Commission ofExperts, Sl19941674,27 May 1994, pp. 34-35,
paras. 134-1371.
678. A more specialized ExpertReport forthe Commissionalso confums this pattern:
"~irst, Bosnian Serb paramilitaryforces, oftenwith the assistanceof the JNA, seize control of the
area. In many cases, Serbianresidentsaretold to leavethe area before the violence begins. The Chapter 5-Section 9
Thepolicy of ethnic cleansing
homes of non-Serbresidents are targetedfor destructionand culturaland religious monuments,
especiallychurchesand mosques are destroyed. Second, thearea fails under the control of
paramilitaryforceswho terrorize the non-Serb residents withrandomkillings,rapes and looting.
Third, the seizedarea is administeredby local Serbauthonties,often in conjunctionwith
paramilitarygroups.Duringthis phase,non-Serbresidentsare detained,beaten and sometimes
transferredto prison camps wherefurther abuse, includingmasskillings, haveoccurred.Non-Serb
residents are often firedfiom theirjobs and their property is confiscated.Many have been forced to
sign documents relinquishing their to their homes beforebeing deported to otherareas of the
country."[United Nations,Final Report of the UnitedNations Commissionof
Experts, Sl1994t674tAdd.2(Vol. 1),27 May 1994,Annex IV, "ThePolicy of
Ethnic Cleansing",p. 9, para. 281.
Thepattern of acts was theresult of oflcial public policy
679. These acts were committedwithin an organizedinstitutionalfiarneworkand under
the highest authority [ICTFY,Trial Chamber,Review of theIndictmentPursuantto
Rule 61 of the Rules of Procedure and Evidence,TheProsecutor v. Radovan
Karadzzé & Ratko Mladié,CaseNo. IT-95-5-R61, 11July 1996,pp. 44-45,para. 78-
801.As the Tribunalput it:
"the acts target themembersof an identifiedcivilianpopulation, conceived ofas one or more
groups,nationalor political,the commission of theacts follows theterthe acts are
planned and organisedaf a State leThey appearto have a commonobjective: permittingthe
establishmentof 'ethnicallypure' terri(..." [Ibid.,pp. 50-51,para. 90, emphasis
added] .
The fact that this systematiccampaign was planned and directedat a high political
and military level was also confirmedby the ICTFYin the KaradVCand MladiC
proceedings:
"~he Trial Chamberis of the view that the evidenceand testimonysubmittedsuffice at this stage
to demonstratethe activeparticipation of the highestpoliticaland militaryleaders in the
commissionof the crimesby Bosnian Serb militaryand police forces in the detentionfacilities.The
uniform methodsused incommittingthe said crimes,their pattern,their pervasivenessthroughout
al1of the BosnianSerb-heldtemtory, the movement ofprisonersbeîsveenvanous camps,and the
tenor of some of theaccused's statementsare strong indicationstendingto showthat Radovan
KaradZiCand Ratko MladiCplanned, ordered orotherwiseaidedand abetted in the planning,
preparation or execution ofthe genocide perpetratedin the detention facilities."
Chamber,Reviewof the IndictmentPursuantto Rule 61 of the Rules of
Procedureand Evidence,Prosecutor v. Radovan Kara&i6 & RatkoMladié,
CaseNo. IT-95-5-R-61 & IT-95-18-R61,11July 1996,p. 47, para. 841.
680. The Commission ofExpertsaddedthat "theJNAand the Army of the so-called
"BosnianSerb Republic" have been involvedin carrying out andfacilitatingthe
policy andpracticesof ethnie cleansingin certain partsof the temtory." [UnitedReply ofBosnia and Henegovina
Nations, Final Report of the UnitedNations Commissionof Experts, S/1994/674
(Vol. 1),27 May 1994,p. 35,para. 1411.It was added:
"142. There is sufficient evidence to conclude that the practices of "ethnic cleansing" were not
coincidental, sporadic or canied out by disorganized groups or bands of civilians who could not be
controlled by the Bosnian-Serb leadership. Indeed, the patternsof conduct, the manner in which
these acts were carried out, the length of time over which they took place and the areas in which
they occurred combine to reveal a purpose, systematicityand some planning and coordination fiom
higher authorities. Furthemore, these practices are camed out by persons from al1segments of the
Serbian population in the areas described: members ofthe army, militias, special forces, the police
and civilians. Lastly, the Commissionnotes thatse unlawful acts are often heralded by the
perpetrators as positive, patriotic accomplishments.
143. The above-mentionedfactors and others indicate the existence of an element of superior
direction. At the very least, they indicate a purposeful failure by superiors to prevent and punish
the perpetrators once their crimes becomewn to the responsible commanders.
144. Lastly, it shouldbe noted that there was initially a link between local activities and activities
of Serbs from the Federal Republic of Yugoslavia in Bosniaand Herzegovina and in Krajina,
Croatia, and also involvementby JNA. This linkage existeduntil 2 January 1992,the date of the
cease-fire between Serbs in Krajina and JNA and the Federal Republic of Yugoslavia, and is
evident in many ways. In fact,ese links are not denied bythe Federal Republic of Yugoslavia.
This is supported by the use of JNA in Croatia and Bosnia and Herzegovina before the conversion
of some of these forces into the army of the so-called "Serbian Republic of Bosnia". Furthemore,
there is a strong political, diplomaticand military influenceon the part of the Federal Republicof
Yugoslavia over a wide range of decisions of the "Bosnian Serb Republic" and the "Serb Republic
of&ajina." [ibid., pp. 35-36, paras. 142-144. See also,pp. 34-35,para. 138,
confirming that the "practices reportedoccur under the supervisionof a "crisis
cornmittee" (Krihi Stab), comprised of localpolitical leaders, police and
others, which made such decisions with the director indirect involvementand
support of the Bosnian Serb Army].
681. The Commissionadded:
"~nlike the violations comrnittedby the other wamng factions, 'ethnic cleansing' bythe Serbs
appears to be the result of a highly developed policy that has been planned, coordinated, and
financed by Serb officiais with supportfrom the FRY and the JNA which was, at times directly
involved in some ofthese operations.[UnitedNations,Final Report of the United
Nations Commissionof Experts, S/1994/674/Add.2(Vol. 1),28 Dec. 1994,
Annex IV, "The policy of ethnic cleansing",p. 21, para. 1101.
Authoritativebodies haveidentzpedand condemned thispattern of officialpolicy
682. The identificationand condemnationof this systematicpractice by international
bodies, such as the United Nations Security Counciland General Assembly, the
Commissionon HumanRights, the HumanRights Committee,the United Nations
Conferenceon HumanRights, etc.,was alreadyreviewedin the Memorial (Chapter
3). Since then, the Cornmitteeon the Eliminationof DiscriminationAgainst Women, Chapter 5 -Section9
Thepolicy of ethniccleansing
in its concluding ObservationlCornmentof 14April 1994[A/49138,paras. 732-7571
has also expressedits grave concern and condemnedthe massive,gross and
systematichuman rights violations occuning in the territory of Bosnia and
Herzegovina,most of which, according to the Comrnittee, were committed in
connection with the systematic policyof "ethnic cleansing"and genocidal acts in the
areas under the control of the self-proclaimed BosnianSerb authorities.
683. The GeneralAssembly, in Resolution491205of 23 December 1994,was constrained
to express again its grave concern at the hurnanrights violationsin the Republic of
Bosnia andHerzegovina,the Republic ofCroatia and the Federal Republicof
Yugoslavia, and
Iin particular at the continuing, odious practiceof ethnic cleansing, which is the direct cause of the
vast majority of human rights violations there and whose principal victimsare the Muslim
population, threatened with virtual extermination,as well as the Croats and non-Serbs, and to
expressalarm that the conflict in the Republic of Bosnia and Herzegovina and in the Republic of
Croatia has also been characterized by the systematic destructionand profanation of mosques,
churches and other places of worship,well as sites of cultural herit[UnitedNations,
General AssemblyResolution47/147 (1992), A/RESI471147,23 Dec. 1994,
Prearnble] .
In that resolution, the Assembly:
"6. Condemns also the specific violations identified by the Special Rapporteur, most ofwhich are
committed in connection with ethnic cleansingby Bosnian Serbs, and which include killings,
torture, beatings, arbitrary searches, rape, disappearances,destruction of houses, forced and illegal
evictions, detentions and other acts or threats of violence aimed at forcing individualsto leave their
homes;
7.Condemns furtherthe indiscriminateshelling and besieging of cities and civilian areas, the
systematicterrorization and murder of non-combatants,the destruction of vital senices and the use
ofmilitmy force against civilian populations and relief operations, includingthe use of cluster and
napalm bombs on civilian targets by Croatian Serb and Bosnian Serb forc[ibid.].
684. The Commissionon HumanRights, in Resolution 1995189of 8 March1995,
expressed again grave concem at the ongoinghuman rights situationand particularly
by the systematic policy of "ethniccleansing and genocidalacts whose principal
victims are the Bosnian population,which is threatened with virtual extermination,as
well as Croats and other non-Serbs, in the areas of Bosnia and Herzogovinaunder
the control of the self-proclaimedBosnian Serb authorities".The Commission:
"3. Strongly condemns the specific violationsidentified by the Special Rapporteur in his reports,
most of which are committed in comection with the systernatic policy of "ethniccleansing" andReply ofBosniaandHenegovina
genocidal acts in the areas of the former Yugoslavia under the control of the self-proclaimed Serb
authorities, and which include mass killing, torture, disappearances,rape, and other sexual abuses
against women and children, the use of civilians as human shields on confrontation lines and as
mine clearers, arbitrary executions,the destruction of houses, religious objects and cultural and
historical heritage, forced andegal evictions,detentions, arbitrary searches and other acts of
violence;
4. Also condemnsthe systematicimpedimentsby the self-proclaimedBosnian Serb authorities and
the self-proclaimed Serb authorities in the occupied part of Croatia ofhumanitarian operations, and
particularly the obstructionof humanitarian relief convoys forwarded to besiegedas and towns;
5. Further condemns the indiscriminate shelling and besieging of cities and civilian areas, the
systematicterrorization andurder of non-combatants,the destmction of vital services and the use
of military force against civilian populationsand relief operations,including the use ofr and
napalm bombs against civilian targets;
6. Again denouncesthe continued deliberate and unlawful attacks and use of military force against
civilians and other protectedrsons by al1sides, recognizing that the primary, though notthe
solely, responsibility lies with the Serbian forces;
(...)
16. Condernnsthe continuation,particularly inthe areas of Banja Luka, Prijedor and Bijeljina, of
the heinous and illegitimate acts identifiedby the Special Rapporteur as elements of 'ethnic
cleansing',while commendingthe courage and sacrifice of the many Serbs who continue to refuse
totake part in such violations, and urges the international communityto use al1its influence on the
parties, inarticular the authorities in parts of Croatia and Bosnia and Herzegovina under Serbian
control and occupation, to end them immediatelyand to reverse their effects;
17. Also condemns al1deliberate and arbitrary impeding of the delivery of food, medical and other
supplies essential for the civilian population, inparticular of the BihaCarea, which can constitute a
senous violation of international humanitarianlaw, and of medical evacuations,as well as attacks
on and continued harassment of the United Nations Protection Force and personnel working with
the Office of the United Nations High Commissionerfor Refugees and other humanitarian
organizations, which have caused injuries to and the death ofse who seek to protect civilians
and to deliver humanitarian assistance..)
18. Renews its expression of outrage at the systematicpractice of rape as a weapon of war against
women and children and as an instrument of "ethnic cleansing"in thereas of armed conflict in the
tenitory of the former Yugoslavia, and again recognizes that rape in these circumstancesconstitutes
a war crime;" [UnitedNations, Commissionon HumanRights,Resolution
1995/89,8 Mar. 19951.
685. The Sub-Commissionof the Commissionon HumanRights, in Resolution 199518 of
18 August 1995 expressedonce again its horror and its total and unqualified
condernnationof so-called"ethniccleansing" whereverit occurs,being appalledby
the acts of genocide canied out by the Serbs in Bosnia and Herzegovina,including
the evidence indicatingthat large-scale massacres ofthe Muslimpopulationhave
taken place after the occupationof the "safe areas"of iepa and SrebrenicaPnited
Nations, Sub-Commissionon HumanRights,Resolution 1995/8, 18Aug. 19951.
686. Towardsthe end of that year, even after the conclusionof the Dayton Accords, the
GeneralAssembly,in Resolution501193of 22 December 1995,condemnedthe grave
violationsof international humanitarianlaw and of human rights in and around
Srebrenica, andin the areas of Banja Luka and Sanski Most,including reportsof
mass murder, unlawful detentionand forced labour,rape and deportationof civilians. Chapter5- Section9
Thepolicy of ethnic cleansing
Oncemore, it expressedoutrage at the instances of massive andsystematicviolations
of hurnanrights and humanitarianlaw as described in the reports of the Special
Rapporteur,including ethnic cleansing, killings, disappearances,torture, rape,
detention,beatings, arbitrary searches,destructionof houses, illegal evictions and
other acts of violence aimed at forcing individualsfrom their homes. It condemned
in the strongestterrns al1violationsof hurnanrights and internationalhumanitarian
law bythe parties to the conflict,recognizingthat the leadershipin territories under
the control of Serbs in the Republicof Bosnia and Herzegovina and formerly Serb-
held areas of the Republicof Croatia,the cornmanders ofSerb paramilitary forces
and political and military leadersin the Federal Republic of Yugoslavia bear primary
responsibility for most of those violations. The Assemblyalso condemnedthe attacks
on the safe areas of Srebrenicaand iepa and the indiscriminate shellingof civilians
in the safe areas of Sarajevo,Tuzla, Bihaéand Goraiideand the use of cluster bombs
on civilian targetsby Bosnian Serband Croatian Serb forces; the deliberate
obstructionof the delivery of food and medical and other suppliesessential for the
civilianpopulation and al1attacks on the United Nations Peace Forces and on
personnel working with the Office of the United Nations HighCornmissionerfor
Refugeesand other humanitarianorganizationsby parties to the conflict [United
Nations, Securiv Council Resolution50/193 S/RES/50/193,22 Dec. 19951.
Parallelfindings by regional bodies
687. From the beginning of the carnpaignof ethnic purification,the existence,aimand
genocidalnature of this pattern was identified and condemned byauthoritative
regionalbodies. The Conference for Securityand Cooperationin Europe (now
Organizationfor Securityand Cooperationin Europe), condemned"the present
leadersof Serbia and Montenegro"and the Serbian forces operatingin Bosnia and
Herzegovinafor their campaignof "pursuingterritorial gain through the useof force
and to violate basic human standardsthrough the odiouspractice of ethnic cleansing,
and other brutalities." [Conclusions andDecisions of the Third Meeting of the
Councilof the CSCE, Stockholm, 14-15Dec. 19921.
688. The European Comrnunityand its Member States found that:
"primaryresponsibilityfor theconflict,anditsbmtality,lies withtheprese leadershipof Serbia
andof theBosnian Serbs.Theprincipalvictimsof al1actions havebeentheMuslimpopulationof
Bosnia-HerzegovinaI.nefianceof UnitedNationsSecurityCouncilResolutions,the Serbforcesin
Bosnia-Herzegovina havendertakea savagecampaignof militaryaggression,ethniccleansing
andthepersecutionandtortureof civilia[Declarationadopted at theEuropeanReply of Bosnia andHerzegovina
Council, Edinburgh, 11 -12Decernber 1992, UnitedNations Document,
S/24960, 14 Dec. 19921.
689. The European Parliamentcondemned"the murders and other acts of unspeakable
bnitality committed againstthe civilianpopulation,which form part of a deliberate
strategy to terrorize the Muslim community,as part of the policy of ethnic
cleansing." [European Parliament ResolutionB-3-0034, 0036, 0101193,21 Jan. 1993,
Ofleial Journal of the European Communities, No.C 421172,15Feb. 1993,Annex
621.
690. The Organizationof the Islarnic Conference strongly condemned"the genocidal
Serbian aggression against the Republicof Bosnia-Herzegovina (...and the
abhorrent Serbian policyof 'ethniccleansing'." [Twenty-firstIslamic conferenceof
Foreign Ministers, Karachi, 25-29 April 1993, UnitedNations DocumentAl481396,
Sl26440, 15 Sep. 1993,p. 20, para. 391.
691. Finally, the Headsof State or Government of the Non-aligned Movement
"condemnedthe acts of aggression, genocideand ethnic cleansing againstthe
Republic of Bosnia and Herzegovinaand its population"[Eleventh Conferenceof the
Heads of State or Govermnent,Cartagena, 18-20 October1995,Annexed to United
Nations DocumentAl501752,Sl199511035,13Dec. 1995,p. 421.
Deteminations by independentobservers
692. Noel Malcolm, one of the most prescient analystsof Balkan history, concludeshis
book Bosnia: A Short History, by determining"one sees that the real causes of
Bosnia's destruction have come from outsideBosniaitself (...first in the form of
the political strategyof the Serbian leadership"[NoelMalcolm,Bosnia: A Short
History, London, 1994,p. 251, Annex 631.
693. Norman Cigar, in a book-lengthtreatmentof Genocidein Bosnia: ThePolicy of
"Ethnie Cleansing", adds that:
"~heassaultontheMuslimcommunityhashappenedessentiallyatthehandsof theirSerbian
neighbours, whointentwasclearlyto findatotalsolution:thatis, to removetheMuslimsfrom
the land by whatemeansfeasible.Killings,torture,rapeanddeport,ftencanied outin a
strikinglygruesomemanner,haveoccurredona scale notseensinceWorldWII. "NonIIan
Cigar, Genocidein Bosnia: ThePolicy of "EthnieCleansing", College Station,
1995,p. 3-4, Annex 641. Chapter - Sectio9
Thepolicy of ethniccleansing
694. Misha Glenny decries the situationof the Hades into which Bosnia was tumed, as:
"theideaof includiagminoritypopulation inconqueretemito recomes less acceptaase
the doctrineof 'nationalpurity'streng[MishaGlenny, TheFa11of Yugoslavia,
London, 3rd revised edition, 1996, pp. 187,Annex 611.
695. Jan Willem Honig and NorbertBoth con- in their exhaustivestudy of Srebrenica:
Record of a War Crime, that "Thelong-tenn successof ethnic cleansing dependedon
killing off the Muslim men,without whom the population'swomen and children
would have no means of returning to their birthplaces." [JanWillem Honig,
Srebrenica: Record of a War Crime,London, 1996,p. 177, Annex 491.
696. Among the many citizens' organizationswhich have documentedthe ethnic
purification campaign,AmnestyInternational confirmedthat abuseswere "most
evident in the areas controlledby the Bosnian Serb forces and appearto be airnedat
causing members of the remainingminoritiesto seek to leave." This campaignwas
focusedon toms such as Banja Luka,Prijedor, BosanskaGradigka,MrkonjiéGrad,
Celinac, Mahovljaniand others, butAmnestyInternational "fears forthe safety of
members ofthe remaining minorities,pnncipally Muslims, Croats and Roma, in al1
areas under the control of the de facto Bosnian Serbauthorities."["Bosnia-
Herzegovina: 'You have no place here-Abusesin Bosnian Serb-controlledareas",
Amness,International, AI Index EUR 63/11/94,June 1994, p. 1, Annex 651.Human
Rights Watch, whichhas assembled directevidence in hundreds of pages of reports
and two books, concluded already in 1993:"What is taking place in Bosnia-
Herzegovinais attemptedgenocide - the exterminationof a people in whole or in
part because of their race, religionor ethnicity. This is the gravest crime known to
humankind." ["War Crimes in Bosnia and Herzegovina",Human Rights
Watch/Helsinki,New York, 1993,Vol. II, p. 2, Annex 541.The results of this
campaign. carried out well into 1995,bear out that this was indeeda genocide which
succeedcdin destroying or displacing,in whole or in part, the non-Serbs in Serb-
held areas.
Theresult of the systematiccampaign of ethnicpuripcation
697. The carnpaignof ethnic purificationcaused a huge wave of refugees. Already by
April 1992, the United Nations Secretary-Generalreported thatReplyof Bosnia andHenegovina
"On the &y [14 April 19921of Mr. Vance [Secretary-General's Pmsonal Envoy for Yugoslavia]
visit to Sarajevo, the number of displacementrose to approximately 184,000,according to
unofficial estimates of t(UNHCR). As of 20121April, the total number stood at
approximately 230,000.ring the week of Mr.Vance's visit to the area, the number of those
displaced rose at an average of 30.000 per[United Nations,Report of the
Secretary General Pursuantto SecurityCouncilResolution 749 (1992),
Sl22386, 24 April 1992, para. 151.
A month later, the Secretary-Generalconfmed that "the devastationof Bosnia and
Herzegovina continues,and that the displacementof the civilian population fiom its
towns and villages is proceeding on a scale not seen in Europe since the Second
World War [UnitedNations, Report of the Secretary GeneralPursuantto Security
CouncilResolution 752 (1992), Sl24000,26 May 1992,para. 51.
698. The United Nations Expert onInvoluntaryDisappearances,Mr Manfred Nowak,
noted that:
"~he JNA and Serb paramilitary units took control of large temtories (...) by the end of the
summer [of 19921at least 300.000 Muslimshad been 'cleansedfrom the eastem part of the
country. Up to 40.000 people are believed to have beenn this operation alone. In the period
from May to July 1992a similar fate hit the predominantlyMuslim inhabitants of the area in and
around F'rijedorin western Bosnia, where thousands of civilianswere reportedly killed, thousands
sent to concentration camps and even larger numbers depor[UnitedNations, Special
Process on missingpersons in the territory of theformer Yugoslavia, Report
Submittedby Mr. Manped Nowak, Memberof the WorkingGroupon Enforced
or InvoluntaryDisappearances,ElCN.4119951371 , 2 Jan. 1995,p. 13,para.
361.
699. Despite these early "success",the campaignof purificationcontinuedrelentlessly.By
November 1993, over two million one hundred-thousandpeople had beendisplaced
from their homes since the war in Bosnia and Herzegovina began.This is nearly 50
per cent of the population recorded in the censusof 1991.Some 800.000 of them
were estirnatedto have soughtrefuge outside Bosnia andHerzegovina;the rest were
seekingrefuge inside the country. Tens of thousandshad gone to the "safe areas",
such as GoraZde,iep& Srebrenica,Tuzla, BihaCand Sarajevo. wnited Nations,
Situation ofhumanrights in the tem'toryof theformer Yugoslavia,fiph report
submitted by Mr TadeuszMazowiecki,Special Rapporteurof the Commissionon
HumanRights, E/CN.4/1994/47, 17Nov. 1993,p. 4, para. 131.
700. Perhaps it is necessary to put these huge figuresinto perspective,withreference to
individual localities. Accordingto the ICTFY prosecutors,in 1991, almost 17,000
Bosnian Croats and Muslims lived in the municipalityof BosanskiSamac in the Chapter5 -Section9
Thepolicy of ethnic cleansing
Republic of Bosnia and Herzegovina.By May 1995,fewer than 300 of the Bosnian
Croats and Muslimresidents remained [ICTFY,Indictrnent,TheProsecutor v,
Miljkovit & others, CaseNo. IT 95-9, 21 July 1995,pp 1-21.In BosanskiNovi, the
SpecialRapporteur could only determinethe presenceof some 800 of the 15,000
Muslirnspreviously registered there [United Nations,Situation of the Human Rights
in the ten-itoryof theformer Yugoslavia,fiifthperiodic report submittedby Mr.
TadeuszMazowiecki,Special Rapporteur of the Commissionon Human Rights,
ElCN.411994147,17Nov. 1993,p. 11,para. 701.In Banja Luka, ethnic cleaningwas
"nearlycomplete"by May 1994 [ibid.,periodic report, ElCN411994135 , May 1994,
p. 3, para.41.In his Report of 21 April 1995,the Special Rapporteurfound that
sincethe beginning of the conflict, 90 per cent of the Muslirnand 85per cent of the
Croatpopulation had disappearedfiom Banja Luka [Ibid.,Periodic Report,
ElCN.411996132 , 1 Apr. 1995,p. 2-4, para. 7-18, Document.PopulationStructure,
Annex 661.
701. In thewords of the members of the UN Commission of Experts:
"Through the practice of 'ethnic cleansing'the goal of creating a 'Greater Serbia' has largely been
achieved. Serbian forces now control approximately70 per cent of BiH and one-third of Croatian
tenitory.[UnitedNations, Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2,28 Dec. 1994 (Vol. 1), AnnexIV, "The Policy of
Ethnic Cleansing", para. 1371.
702. Expandingon this view, in early January 1995,Manfied Nowak of the United
Nations working group on Enforcedor InvoluntaryDisappearances,reported:
"during the past three years the people livingin the tenitory of the former Yugoslavia havebeen
suffering the most serious and systematic violations of human rights and humanitarian law in
Europe since the Second World War. As a result of the policy of "ethniccleansing",millions of
human beings of vanous ethnic origins have been forced to leavetheir homes, hundreds of
thousands have been killed and tortured, and tens of thousands have been reported as missing. They
disappeared in the course of armed conflict or as of "ethniccleansing" operations, canied
out by military or pararnilitary forces, by the police or civilians. They left behind their parents,
spouses or children, deprived of any information asto they are buried in mass graves or
stiil kept in secret detention[UnitedNations, Specialprocess on missing
persons in the tem-toryof theformer Yugoslavia,Report Submittedby Mr
Manfred Nowak,Member of the WorkingGroup on enforced or Involuntary
Disappearances, ElCN.411995137,12 Jan. 1995,p. 3,para.11.
Two years later, in January of 1997,the Experton inforced or Involuntary
Disappearances wrote:Reply of Bosnia aHenegovina
"(...) the full truth about the homble crimes against humanity committed between 1991 and 1995
can no longer be concealed. It is still difficult to beli50eyears after the Nazi
holocaust, another genocide could occur in Europeult of a similar ideology based on
nationalism,racial and religious hatred and the obsession of creation 'ethnically pure' States. While
the international community was watchingwithout taking proper action, the systematic policy of
'ethnic cleansing' operations,planned and out by nationalisticpoliticians, military and
paramilitary groups as well as civilians who were themselves victims of racist propaganda, resulted
in the mass exodus of more 2hmillion refugees and intmally displaced persons, in the death
of more tha200000 human beings, in the economic destruction of vastareas of the region, and in
thehorrendous acts of torture, systematicrape and sirnilarexpressions of barbarity. The great
majority of the victims of the second European genocide of the twentieth century were civilians of
Muslim origins[UnitedNations,Specialprocess on missingpersons inthe
tewitory of theformer Yugoslavia, Report submitted by Mr ManfiedNowak,
ExpertMemberof the Working Groupon Enforcedor Involuntary
Disappearances,E/CN.4/1997/55,15Jan. 1997, p.4, para. 21.
703. The findingthat the campaignof ethnic purificationis indeed tantamountto a further
campaignof Europeangenocidein this centurywill now be reinforcedthroughthe
analysisof the terms of the Genocide Convention,as it appliesto the horrendous
facts and as it appliesto the entire ethnic cleansing campaign.
CHAPTER6
THE ACTS COMMITTED CONSTITUTEGENOCIDE:THEY SATISFYTHE LEGAL
CRITERIAESTABLISHEDBY THE CONVENTION
1. Purposesof the Convention
1. The purpose of the Genocide Conventionis to stop "acts committedto destroyin
whole or in part,a national, ethnical,racial or religiousgroups, as such (...)[Article
II].
2. In its 1951 advisory opinion,the ICJ statedof the Convention that"its object,on the
one handis to safeguardthe very existenceof certainhuman groups andon the other
to conh and endorsethe most elernentaryprinciplesof morality." [Reservations to
the Conventionon Genocide,Advisory Opinion, ICI Reports 1951,p. 15para. 231.
It is evident fkomthe factspresentedin Chapters 5 and 7 of this Reply that "the very
existenceof certain human groups" was put in questionby the acts committed
specificallyagainst Bosniansof non-Serb origin and against Bosniaand Chapter6- Section 1
Purposes of the Convention
Herzegovina'sMuslim population in particular. It is also evidentfiom the recurrence
of a pattern of acts - murder, torture, rape, deportationand the destructionof
religious and cultural institutions -that these acts were not incidentalto the conduct
of rnilitaryhostilitiesbut had their raisond'être in a plan to violate, systematically,
"the most elementaryprinciplesof morality." [ibid1.
3. Interpretingthe will of the General Assemblyand the parties to the Convention,this
Court has accepted
"that it was the intention of the United Nationsto condemn and punish genocideas (...) involving a
denial of the right of existence of entire human groups, a denial which shocks the conscienceof
mankind and results in great losses to humanity, and which is contrary to moral law and to the
spirit andims of the United ~ation[ibid1.
It is impossibleto examinethe acts reported tothis Court in Chapters 5, 7 and 8 of
this Reply, without concluding thatthese were precisely thesorts of acts which
sought to deny the social existenceand psychical integrity and even the physical
existenceof entire human groups through their selective yetcollectivemurder,
torture, rape, displacementand the destructionof their religious and cultural
facilities.
4. These acts were intentionalwrongs evenbefore the Conventions's entryinto force.
The terms used in the Genocide Convention must be understood as a culmination of
earlier efforts todefme a crime in internationallaw by bringing to trial individual
perpetrators afier the Second WorldWar [Trialof theMajor WarCriminals before
theInternationalMilitary Tribunal,Nuremberg, 14Nov. 1945 - 1 Oct. 1946,
Nuremberg, 1947, Vol.1, pp. 43-44]. The General Assemblyunanimouslyafbed
the existenceof genocide "for the commissionof which principals and accomplices
(...)are punishable" in its resolution initiatingwork on the drafting of the
Convention.[UnitedNations, General AssemblyResolution960, 11 Dec. 19461.
The use of the term "affms" in this resolution makes clear that the Convention
would be an instrumentcodiwng what was alreadyprohibited byjus gentium.It is
for this reason that the ICJ, in its Advisory Opinion,declared the Convention's
strictures "binding on states, even withoutany conventional obligations."
[Reservationsto the Conventionon Genocide, Advisory Opinion,ICJReports 1951,
p. 15, para. 231.RepIyofBosniaandHenegovina
2. The prohibited acts are defined and enumeratedby the Convention
5. Article II of the Genocide Conventionspecifiesasgenocide:
"any of the following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious assuch:
(a) Killing members of the group;
@) Causing senous bodily or mental hmto members of the group;
(c) Deliberately inflicting on the group conditions of life calculated tobring about its physical
destmction in whole or in part;
(d) Imposing measures intended to prevent births withinthe group;
(e) Forcibly transfening children of the group to another group."
6. Even as these specific actswere being enurnerated,it was clear to the draftersthat
such enumerationof acts must be construedin the light of the specificcircumstances.
For example it was Dr. Bartos, for Yugoslavia, whopointed out to the drafters, that
"Genocide could be committed by forcing members of a group to abandon their homes."
[UnitedNations, GAOR,Pt 1(Sixth) at 184-185, 82ndMtg. 23 Oct. 19481.
In so doing he pointed outas an exampleof genocidethe deliberateGermanpolicy,
during the occupationof his country,to dispersethe Slavmajority fiom certain areas
to make room for a GreaterGemany. In that context, the displacementclearly
occurredwithin the parametersof enumeration (c)of Article II.
7. Moreover,it was made clear by the 1978studyof the Conventionby Nicodeme
Ruhashyankiko, appointedSpecialRapporteurof the Commissionon Human Rights'
Subcornmissionon Preventionof Discriminationand Protectionof Minorities [EICN
21416,4 July 19781that the draftersof the Conventionin the Sixth Cornmitteeof the
GeneralAssemblyhad rejectedthe idea that actions againsta grouphad to intendto
destroy it in its entirety.It is to clariQ this point that the words "in whole or in part"
were inserted in the draft [AC.6/228].A desireto kill or destroythe coherenceof
part of a targeted group could effectua1 constitutegenocide[United Nation,GAOR,
3rd Sess. Pt. 1 6th Cttee, 73rd Mts]. As the Ruhashyankikorespond specifies:"it was
not necessary forthe act to be aimed at the groupin its entirety." [EICN21416,4
July 19781.
8. The concept of a targeted "group",the destructionof which in whole or in part gives
rise to the charge of genocide,was also elucidatedby the Ruhashyankikostudy Chapter 6-Section 2
Theprohibited acts are de$ned
and enumeratedby the Convention
which concluded that it was intendedto extend "not to persons who were citizens or
held passports issued by a given State, but tothose having a certain culture, language
and traditional way of life peculiar toa nation "as opposed to a state [p. 291, para.
59; seealso, NC.3lL.12121.
9. It is thus apparentthat the concept of genocideunder the Conventionwas elucidated
by the enumeration of 5 specificacts.
10. But it is equally clear that the definition of these 5 specific actswas intended to be
open to interpretation in the light of the specificcontext in which those acts
occurred. That was made clear by the accepted gloss placedby Yugoslavia's
representative,Dr. Bartos,on the enumeratedact of "deliberated inflictingon the
group conditions of life calculatedto bring about its physical destructionin whole or
in part" so as to include forced displacement of population.
11. It is evident that the drafters meant to include as genocide the commissionof acts
intended to achieve the partial, as well as the total, destructionof a group.
12. It seems clear, also, thatthe groups capable of being victirnizedby genocidewere
intendedto include religious and cultural cohortsand not just citizens of a state.
13. Each of these conclusionsdrawn fiom the study of the travaux and the subsequent
study of the intent of the drafters puts life ont0 the dry bones of the 5 categories of
acts enumeratedin article II of the Convention.It makes article II -which is even in
its most literal reading applicableto the acts perpetuated against the Muslim
population of Bosnia -al1the more precisely applicableto the conductof these
perpetrators.
14. Article IX of the Convention leaves no roomfor doubt that each and al1of these acts
are properly the basis for an action ofthe kind here being brought by Applicant
againstRespondent:that is, alleging "responsibilityof a State for genocide [Article
II] or for any of the other acts enumeratedin Article III".RepiyofBosnia and Herzegovina
3. Theseacts and facts in law constitutegenocide
Killing
15. Chapter 5 produces ampleproof of a concerted policyof killing the culîural or
professionalelites of the Muslim communityin order to decapitateits leadershipand
thereby destroyits capacity to survive as a group. Section2 of Chapter 5 provides
extensive, reliable evidenceof this methodical, systematicpolicy. While such a
policy of killing is, in one sense, "merely"an aspect ofthe generalpolicy of killing
Muslims, it has deeper and even darker roots in the fermented hatredthat seeksthe
extirpationof an entire people, in whole or in part, by the breaking of its social
spine. This point is confirmed by the ICTFY's article 61 confirmationof the
Karad56 and Mladid indictments,where the Tribunal emphasizes thepolicy of
killing the leadingnon-Serb political figures[ICTFY,Trial Chamber,Review of the
IndictmentPursuant to Rule 61 of the Rules of Procedure and Evidence,Prosecutor
v. Radovan Karadfié& RatkoMladié,CaseNo. IT-95-5-R61 & IT-95-18-R61, 11
July 1996,p. 9, para. 171and by the UnitedNations Commission ofExperts which
found that in "[vlillage after village(...local religious, political, civic, professional,
business leadersand prorninentpersonalitiesare singled out for the worst abuse (...)
Prisoners who are targeted fortorture or death at the larger campsare wealthy,
educated or politically influential(...)[United Nations,Final Report of the United
Nations Commissionof Experts, S/1994/674(Vol. 1),27 May 1994,pp. 53, 54,
paras. 230 (k) and (e)].
16. Section 2 of Chapter 5 further demonstratesthat thekilling did not consist of random
acts of murder but of a concerted, systematicpolicythat focused ondestructionof
large parts of the Bosnian male population of reproductive age; thekilling of leaders
of the cultural, religious and intellectualcommunity; andthe randombut concerted
killing of civiliansin order to induce mass flight, called ethnic cleansingor
"purification".
17. The killing of prisoners of reproductive age is not excusableas a product of military
strategy, since such a strategyis itself prohibitedby internationallaw, whether
perpetrated againstcivilians or prisoners of war [Reply,Chapter21.While some
violations of the Geneva Conventions do notper se rise to the level of genocide,
they become evidenceof genocide whencarried out systernatically andin a
concertedpattern. Evidenceof such systematickilling is dernonstratedin Chapter5
of this Reply. The legal irnpermissibilityof arguing as Respondentdoes, that the Chapter 6-Section 3
Theseacts andfacts in law constitutegenocide
killing is simply a product of civil war is refuted in Chapter2 of ths Reply. The
SecurityCouncil's Commissionof Experts has demonstrated thatlarge numbers of
unarmed civilian males were killed in campswhere they wereunarmed and posed no
military dangers to the Serb policy of creatinga Greater Serbia except bythe fact of
being living persons of the Bosnian faith. [United Nations,FinalReport ofthe
UnitedNations CommissionofExperts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,
Annex VIII, "Prison Camps",pp. 11-14]. Such killing, cornmittedover time and in
many different places against membersof a specific group emerge fiom the
categoriesof war crimes or crimes against humanityto be instantlyrecognizableas
genocide.
18. The killings followed a systematicpattern,as demonstratedin Chapter 5 of this
Reply, citing the reports of the United Nations Commissionof Experts and of
CornrnissionerMazowiecki,the SpecialRapporteur of the Commissionof Hurnan
Rights. Execution of civilians, sometimes specificallymales, is documentedin
(amongothers) the cities or toms of Mostar [Chapter 5, Section21,Zvomik
[Chapter5, Section 61,Prijedor [Chapter5, Section 73and Srebrenica [Chapter5,
Section 81.
19. As extensively show throughout Chapter 5 many of these reports have been
confmed by the ICTFY in its broadly quoted decisions, whilethe Prosecutor at the
ICTFY has charged several suspects of relatedatrocitieswith genocide.
Causingserious bodily and mentalharm
20. Evidenceof the causing of seriousbodily and mental harmis given in detail in
Chapter 5, Section 3.
21. Althoughthe horrendous maltreatmentof the non-Serb prisoners,civilian as well as
military, women and children as well as men, is "excused"by the Respondentas
mere crimes againsthumanity, the systematic,consistentand omnipresentpattern of
such acts demands the drawing of the only possibleinference:that these were
intentional actsof genocide,not random brutality alone.
22. The discussionof the camps and of Zvoniik, Prijedor and Srebrenicain respectively
Section 5, 6, 7 and 8 of Chapter 5 of this Reply set out the shockingbrutality with
which non-Serbs, andMuslims in particular, were treated afterthe fall of
communitiesto Serb captors who were determined to achievea Greater SerbiaReply oBosnia and Herzegovina
tbrough the destructionof al1vestiges of non-Serb life.The Decision of the ICTFY
in theConfirmationof the Indictmentof KaradZiCand MladiCstipulatesthat at Serb-
run camps throughout the region (Omarska,Keraterm, Trnopolje, Luka, ManjaCa,
Sugica,KP Dom FoCa,Livade, BatkoviC)people were "systematicallyselectedand
assembledfor national, ethnical,political and religious reason(...)"[ICTFY, Trial
Charnber, Reviewof the Indictment Pursuant to Rule 61 of the Rules of Procedure
and Evidence,Prosecutor v. Radovan KaradZiCand RatkoMladiC,CaseNo. IT-95-
R61 and IT-95-18-R16, 11July 1996,pp. 6-7, para. 131.In that decisionthe
Tribunal concludedthat "thecivilianswere then either executed, subjectedto
mistreatrnent andother physical andmentalharm calculatedto bring about their
physical destructionor used as human shields againstother troops." [ibid., pp. 6-7,
para. 131.The indictmentitself had establishedtheprimafacie case that the accused
had "planned,ordered or otherwise aided and abettedin the planning, preparation or
executionof the genocideperpetrated in the detention facilities"[ibid.,p. 47, para.
841.
23. Chapter 7 of this reply focuses on the most horrendousof these systematic
perpetrationsof brutality: rape and general assault.t assemblesthe evidenceof its
planned employmentas a way of causingdeliberate and devastatinghm to the non-
Serb communityof Bosnia and Herzegovina,through the creation of unwanted
("Serb")pregnancies, devaluingwomen andmaking them unable to bear childrenin
normal circumstances,and inflicting the most egregiousbodily and psychological
hm with the intent of destroying in whole or in part the communityof which they
were a part essentialto its subsistence.
Deliberately injlicting on theroup conditionsof life calculated to bring about its
physical destruction in wholeor inpart
24. Section 4 of Chapter 5 provides the evidencefor the systematicway in which the
Serb perpetratorsinflicted conditionsof life on the non-Serbs of Bosnia and
Herzegovina,calculatedto bring abouttheir physical destruction.Supportedby the
findings of the ICFTY (Trial Chambers and Prosecutor),the Reports of Mazowiecki
and of the Commissionof Experts, the Applicanthas extensivelydemonstratedths
particular aspect of the ethnic cleansingpolicy.
25. Wheneverthe Serbs would not have been successfulin directly destroying the non-
Serb populationof areas, which were to be part of Greater Serbia, they took to a
campaignof expulsionor deportation.As shown in Section 4 of Chapter 5 al1this Chapter -Section 4
îXis genociisactionable underArtLYle
was, as a rule, carefullyprepared andorganisedin advance.If expulsionor
deportationwould turn out not to be possible,a concentrationof civilianswould be
encircled andcut off fi-omal1extemal supplies.In many, well-documented,cases the
encirclement would be accompanied by continued shelling of the locked in
population, whichshelling only servedto make life even more impossible for the
inhabitantsof the besieged areas. This policy was appliedregardless whether a
specificarea would have been designateda "safe area" by the Security Council.
A group, as that conceptis used in the Genocide Convention,does not live by its
physical characteristicsalone. Its cohesiondepends also upon its capacityto function
as a group with shared history and, in most cases, a shared propinquity. Concerted
actionwas taken to destroy both: the historic and cultural legacy by targeting for
destructionthe Muslim mosques,civic quarters and libraries, and the propinquityby
deportationsand ethnic cleansing. Both weredesignedto destroy Muslim community
life in whole or in part.
The policy of ethnic cleansinghas been extensively manifestedin Section9 of
Chapter 5. Ethnic cleansing as genocideis discussedin Section4, below.
27. The destruction of religious and cultural monumentsis detailedin Chapter 5, Section
4 of this Reply. Mosques,as also Catholic churches,were targeted, bulldozed,burnt
and dynamited in an effort to efface the non-Serb presencefi-omthe earth of this
new, Greater Serbia.As noted in detail in Chapter 5, these tactics have been
recognizedand condernnedby the United Nations General Assembly, theICTFY, the
SecurityCouncil's Commission ofExperts, the United Nations Rights Commission's
SpecialRapporteur, the Council of Europe and many eye-witnessjournalists of high
reputation. This evidenceneed not be reiteratedhere. The scale of the destruction,
however, is mind-boggling.For example, of 202 mosques thattraditionally stood in
Banja Luka, only 2 remain. Among the mosques destroyedare two dating to 1587
(authorities for this and much more evidenceof systematicpillaging are found in
Chapter 5, Section 4 of this Reply).
4. This genocide is actionableunder Article M
28. As a happenstanceof drafting, genocideis describedby the Conventionas a "crime."
Nevertheless,as Article IX dernonstrates,insofar as it is committedby a state, its
govemmentor agents, genocideor any other violationof the Conventionconstitutes
an internationalwrongfül act: that is to Sayan "internationalwrong" which arises
whenever "an internationalperson actsin violation of an international legal duty."ReplyofBosnia andHerzegovina
[Jenningsand Watts eds., Oppenheim'sInternational Law, 1992,9th ed., Vol. 1,pt.
1, p. 502, sec.1461.It is in this understandingthat the General Assemblystatedthat
genocide, under the Convention, wouldentail "national andinternational
responsibilityon the part of individualsand states." [United Nations,General
AssemblyResolution 180(I.].
29. It shouldbe noted, moreover,that althoughthe basis for bringingthis action is
primarily founded in Articles II and III of the Conventionas incorporated by specific
referencein Article IX, this articlepermits any actionspertainingto "interpretation,
applicationor fulfilrnent"of any part of the Convention "including"but not limited
to, ArticlesII and III. Accordingly, theacts in violation of the Convention allegedby
the Applicantto have been committedby Respondentinclude, also, violationsof the
Respondent7sobligationsunder Article 1to "prevent and punish" genocidea ,nd the
obligations under Articles IV, V and VI pertainingto the duty to apprehend,bring to
trial andpunish violators. Violationsof these other legal obligationswill be
examinedin Chapter 11of this Reply.
5. The ethnic cleansingas practisedin Bosnia also constitutes genocide
30. The test of whether acts constitute genocideis whetherthey were committedagainst
a group and whether they were committedwith intentto destroythe groupin whole
or in part. The Special Rapporteurof the United Nations Commissionon Human
Rights, TadeuszMazowiecki,has reported and illustratedin his reports to the United
Nations Security Councilthat
"[mlassive violations of human rightsand international humanitarianlaw are not simply features of
the war in Bosnia and Herzegovina. are being used deliberately to achieve ethnically
homogenous areas."[United Nations,Situationof HumanRights in the tektory of
theformer Yugoslavia,Report submittedbyMr. TadeuszMazowiecki,Special
Rapporteur of the Commissionof HumanRights,E/CN.4/1993/50,10Feb.
1993, p. 7, para. 161.
He has emphasized"the deliberateand methodical characterof ethnic cleansing
carried out by Serb forces (...)"[ibid.,p. 7, para. 191,using
"the methods by which a violent change in the demographicmap of Bosnia and Herzegovinahas
been achieveù, leaving 810,000 people displacedintern700,000refugees in other countries
formeriypartof ~ugosiavia.[ibid.,p. 7, para.201. Chapter 6-Section5
Theethnic cleansiaspractised
in Bosnia ako constitutesgenocide
Referringto Prijedor, this report cites"reliable sources, whichillustratesthe
deliberateand methodical characterof ethnic cleansingcarried out by Serbian forces
(...)"[United Nations, Situationof HumanRights in the temetoryof theformer
Yugoslavia, Report submittedby Mr. Tadeusz Mazowiecki,Special Rapporteur of the
Commissionon HumanRights, Transmitted bythe Secretary-Generalto the General-
Assembly and the SecurityCouncil, A.1471666S ,l24809, 17Nov. 1992,p. 8, para.
171.Mazowiecki Mer reports that "themajority of rapes (...)have been committed
by Serb forces against Muslimwomen from Bosnia-Herzegovina."[ibid., para. 84,
and Annex II, para. 591.The same conclusionwas reached by the Security Council's
Commissionof Experts [United Nations,Final Reportof the UnitedNations
Commissionof Experts, Sl19941674,(Vol. 1),27 May 1994,p., 60, para. 2511.This
aspect of genocide is further analyzedand discussed morefûlly, together with other
corroborative sources, inChapter 7, especially, insofaras it took the form of a
concertedpolicy of rape. Mazowieckialso reports on the destructionof the 1st
Mosque andthe 1st Catholic church in Serb-occupiedPrijedor by explosions
approximately 10 minutes apartto illustrate the deliberatepolicy of destroying the
non-Serb cultural and religious heritage.Mazowieckialso reports fiom interviews
with "reliable sources"the other aspects of "ethnic cleansing"such as the murder of
large nurnbersof "mainlyMuslims"in camps such as Keraterm and Omarska, as
well as torture, which "was practisedregularly (...)[United Nations,Situationof
HumanRights in the territory of theformer Yugoslavia,Report submittedby Mr.
Tadeusz Mazowiecki, Special Rapporteurof the Commissionon HumanRights,
Transmittedby the Secretary-Generalto the General Assemblyand the Security
Council, N471666, 924809, 17Nov. 1992,pp. 13-14, paras.30-311.
31. In citing the Mazowiecki Reports, the Applicantthroughoutthis Reply as well as in
this Section intends to demonstratethat:
(a) thefacts -these atrocities- are well docurnentedby unirnpeachableinternational
expertschosen for their prestige and reliabilityto inform the United Nations organs
and the world of events as they occurred;
(b) these experts did not merely observe isolated acts, butdeliberate, methodical
implementationsof policy through murder,torture, rape and destruction;
(c) the policy being implemented by these means was "ethnic cleansing".Reply ofBosniaand Herzegovina
To the Serbs, one intent may also havebeen to clear land for annexation toa
"RepublikaSrpska" and,in time, to a Greater Serbia.But the means intentionally
employedwere the deliberatekilling, maiming and raping of (mainly)Muslim and
(Bosnian)Croat citizensof Bosnia andHerzegovinaand the destructionof their
historic,religious and cultural facilities.That these deliberateacts, methodically
canied out, may have been designated"ethnic cleansing" couldin no way obscure,to
impartial observers, thereal definitionof what was afoot:genocide.This specific,
methodicaland brutal policy of ethnic cleansing constitutesgenocide.
32. There are various componentsof the strategy of ethniccleansingpursued in Bosnia.
The mildestof these was the methodicalpolicy of driving entirepopulationsof
Muslims outof their homes and communitiesand destroyingtheir wayof life,
includingthe deliberate razing of their cultural and religious institutions.Whilethis
was usually accompanied bytorture, rape and murder, the driving outof entire
populationsto achievetheir eradicationÇom large territorial areas also standsby
itself as genocide. Respondent hasalreadydrawn the Court's attentionto the
emphaticpoint madeby Yugoslavia'srepresentativeto the Sixth Committee of the
General Assembly during the Convention'sdraftingthat "Genocidecould be
cornmittedby forcing membersof a group to abandontheir homes." [UnitedNations,
N GAOR,Pt. 1,6th Cttee.,pp. 184-851.Even the CriminalCode of the Federal
Republicof Yugoslavia acknowledgesas much, stating:
"Anyone,who in theaimof fullyorpartiallyannihilat[ing]anynational, ethnicalr,acialor
religiousgroup,ves ordersto commitmurdersorheavyinjuriesof bodyorheavyaggravofion
physicaiormental healof the groupmembersorforced dkplacementofpopula(...willbe
sentencedto prisonatstforfive yearsorto dea[CriminalCodeof the Federal
Republicof Yugoslavia, Chapter16: CriminalAct Against Humanity and
InternationalLaw; Genocide,Article 14 1, emphasisadded,Annex 671.
33. "Forced displacement,"unfortunately,was usually achievedby means that are
explicitlydefinedas genocide:killing, torturing, raping and thecreationof
horrendous conditions foran entirepopulacebecauseof its Muslimfaith and culture.
For exarnple,Mazowieckireports, citing witnesses,that "probablyas many as 1,000"
were killed in the Muslim villageof Harnbarineon 23 and 25 May 1992and, in the
nearby Muslimvillage of Kozarac, "as many as 5,000persons"of an estimated
populationof 15,000"suffered (...surnmary executions." [United Nations,Situation
of HumanRightsin the tewitory of thefomer Yugoslavia,Reportsubmittedby Mr.
TadeuszMazowiecki,Special Rapporteurof the Commission onHumanRights,
Transmittedby the Secretary-Generalto the General-Assembly and the Security
Council,Al471666,Sl24809, 17Nov. 1992,p. 8, para. 17(c)and (d)]. Thismurderis Chapter - Section5
Theethniccleansingaspractised
in Bosniais0 constitutesgenocide
recognized byMazowieckias part of "ethniccleansing" which, the Rapporteur
observes,"is practised systematicalIyby Serbs (...)"[ibid., p. 10, para. 19, emphasis
added].He concludesthat "ethnic cleansing hasbeen accomplished through the use
of the most cruel and mercilessmethods imaginable." [ibid.,p. 10,para. 201.Thus,
ethnic cleansingby itself is genocide andthe killing, torturing, raping and other
forbiddenacts used to reinforce the terror engenderedin al1Muslimstogether and
separately amount to genocide. The Respondent achieveda forbiddenresult and
employedforbidden means; they employthose means against a designatedgroup or
groups; andthey employedthem deliberately with intent to destroyin whole or in
part thetargeted groups.
34. It is not always easy to qualiQ an act of brutality by attributingto it a single-minded
intent. Neitheris it necessary forthis Court to do so. "Intent"need not be the
exclusiveintent, nor even the ultimategoal of a perpetrator. If a man kills his spouse
he may doit intendingto many someoneelse, but he also must be taken to have
intendedto kill the wife. (This argumenthas been developedin extensoin Chapter 3
of this Reply).
Populations can be inducedto flee in terror by acts which, taken in isolation,may
not be genocide. However,even such acts of brutality that in themselvesdo not
amountto genocide,perhaps lackingthe horrendousnessor the explicit intent,when
taken together with other acts,or with fiequent occurrenceof similar acts in other
places or in the same place, may neverthelessbecomepart of a pattern of conduct
that amountsto genocide,being imbuedboth with the necessarybrutality and the
requisite intent when viewed as uniform building blocks in the constructionof the
charnel house that is the former Yugoslavia.The International Military Tribunalat
Nurembergclarified this connectionbetween intent of individual perpetratorsand the
larger purpose of their acts, when the latter appears clearlyfiom the overall
circurnstances.There, a defendanthad argued that the stealing of the persona1
property of Jews in concentration campsdid not rise to the level of a "crime against
humanity."The Tribunal replied that
"underthe circumstanceswhich we have related, thiss andmustbe rejected.Whatwas done
was donepursuantto a govemmentpolicy, andthe theftswere partof a programof extermination
andwere oneof itsobjectives.[US. v. von Weizsaecker(MinistriesCase), 14 Trials
of War Criminds before the NurembergMilitary Tribunals under Control
Council, 1949,Law No. 10,p. 611 (the Green Series)].ReplyofBosniaandHenegovina
Similarly, evenif, at tirnes, random acts of killing, torture, rape, destructionof
cultural and religious property and even acts causing flows ofrefugees may not, at
times, rise to the level of genocide, theybecome genocidal when thesheer volume of
such acts -their fiequency, conceitedness and the methodicalnature -makes clear to
credible and impartial expertsauthorized to find facts forprincipal organsof the
international system, thatthese acts are not random but occur "pursuant toa
govemment policy" and "were partof a program of extermination."
36. Was this not precisely the situationas found by impartialofficia1investigationof
events in Bosnia? Killings may be used to exterminatea group. But killings may also
be used selectivelyto cause a group to flee.When combined with torture, rape,
destructionof religious and cultural property and of the group's leadership,it
becomes clear that the intent is to destroy the groupqua group, in whole or in part,
either by causing it to flee and be scattered abroad,or, ifecessary,by
extermination.When these measures are implementedin a policy of group-
destruction -using whatever it takes- it is not much of a stretchto deduce fiom an
overwhelmingnumber of different acts one singlepolicy: to destroy thegroup in
whole or in part. Mazowieckireports, for example,that when"six small mountain
villages called Hambarine, Rizvanovici,Rakovcani,Sredice, Carakovo,and Bisceni"
were taken by "Serbian forces (...aroundMay 1992three quarters of the 4,500
inhabitants are reportedto have been executed." [United Nations,Situation of Human
Rights in the tem'toryof theformer Yugoslavia,Report submittedby Mr. Tadeusz
Mazowiecki,SpecialRapporteur of the Commissionon Human Rights,
E/CN.4/1993/50, 10Feb. 1993,p. 10,para. 391.The samepattem was reported fiom
Bisceni [ibid.], in Balgaj [ibid.], Visegrad [id. paras.35, 381,Zaklopaca [ibid., para.
371and, of course, Srebrenica [ibid.,para. 361.In Gacko, as in many other places,
the pattem was to order the Muslirn population(63%of Gacko)to flee. They were
then ambushedwhile their convoy wasleaving and the men were killed [ibid., p. 22,
para. 971.A similar pattem was foundto have operated also,among other places, at
Doboj [ibid., para. 961and Zvornik [ibid., para.981.The United States Department
of State similarly hasreported the eye-witnesstestimonyof a Muslim survivorof a
massacre at Grbavci that preciselyreplicates thepattem of reports by Mazowiecki
and Bassiouni:
"AS hisneighborsreturnedto thehousingarea,handsovertheirheads,the Serbmilitiamen
separatedmenfromwomenandchildren.Thewitnesswatchedfiom about200 metersasthemen
were lined up.ortlyafiernoon,oneof the Serbs shodnorderto 'hl1theUstasha.'Onthis
Muslimmen andcontinuedshootinguntiltheywereal1dead.Whentheshootingstopped,the Chapter 6-Section5
Theethnic cleansing as practised
in Bosnialso constitutesgenocide
executioners and other Serb militia, many of whom had been standing around watching, started
plundering houses in the village and stealinglivestock.
The witness, hisrnily, and other neighbors returned fiomtheir hiding place 3 days later. He
participated along with other neighbors in the burial of 56 victims. They were buried about 20
meters fiom the edge of the existing cemetery, between tworows of houses, near the spot where
they wereshot."[US Departmentof State, Bureau ofPublic Affairs, Dispatch, 28
Dec. 1992,Vol. 3, No. 52,p. 920, Annex 681.
37. The executions, when seen in the context of the policy of"ethniccleansing" itself,
were partof a concerted, systematicand deliberatepolicy of killing, torturing and
raping, as well as of destroyingcommunallife intendedto create, by whatever means
it took, a Greater Serbiautterly "cleansed"of extraneouspopulation groups. This was
directed against a largepart of the Muslimpopulation ofBosnia and Herzegovinain
order to make demographically possiblea Muslim-fiee area for repopulationby
Serbs.No euphemism can hide what was so clearly seen, heard andreported by Mr.
Mazowieckias well as many others. This precisely fits the definition of genocide:
killing, causing seriousbodily or mental ha, deliberately inflicting conditionsof
life calculatedto bring about a group's destruction,imposingmeasures like rape to
prevent women fiom subsequently beingcapable of child-bearing; destroyingMuslim
mosques, libraries, hospitals andtargeting first the leadersof the community for
execution. Al1this was done deliberately withthe intent to destroy in whole or in
part the Muslim comunity if not in al1of Bosnia then, at least, in those large parts
covetedby the Serb extremistswho had taken control in Belgrade and in Pale.
38. The thmst of these reports by Mazowieckiare amply supported and verified by the
evidence adduced bythe Commissionof Experts Established Pursuant to Security
CouncilResolution 780 (1992) [United Nations,Final Report of the UnitedNations
Commissionof Experts, SI19941674(Vol. 1),27 May 19941.
39. The military actionstaken by Serb forces,while in each instance "merely" violative
of humanitarian law, taken together form a pattern of intended genocide. The
Bassiouni Commissionprovidesnumerous examplesin its reports to the Security
Council.For example, it cites the followingeye-witnessevidenceof a New York
Times reporter who had visited Serbiangunners:
"Anybody who stops and climbs atop the mud walls can see about what the Serbian gunners see,
and it is an astonishing sight. Many of the gunsthan one thousand yards fiom high-rise
buildings in the center of the city, and perhaps 500 to 1,000feet above them (...) it is plain,
numbingly so, that the menring the guns can see exactly what they are hitting. What this means
is that the Serbian gun crews cannot have any doubt when their shells strike hospitals, schools,Reply of Bosnia and Herzegovina
hotelsandorphanagesandcemeterieswherefamiliesareburying thedead (...[United
Nations,Final Report of the United NationsCommission of Experts,
Sl19941674lAdd.2(Vol. II), 28 Dec. 1994,Annex VI, "Part 1,Study of the
Battle and Siege of Sarajevo", p. 406, para. 14031.
40. The Experts' Reportis absolutely clear inobservingthe "widespreadand systematic
nature of the acts" [ibid., p. 23, para. 841which, taken as part of a pattern, ceaseto
be isolated instancesof wrongdoingand become, instead,attemptsto commit
genocideand, even, genocide itself. As that reportconfirrns,on the basis of
extensiveevidence, "[ilt is the overallcontext of large-scalevictimizationcarried out
as part of a commonplan or designwhich goes to the elementof systematicity."
[ibid.,p. 23, para. 841.The ICTFY's Trial Chamber'sdecisionin the Karadiiicand
MladiCcases concludedthat systematic forcedexpulsionssimilarly,when part of a
policy of ethnic cleansing, reveal agenocidal intent.To the Tribunal
"itappearsthata certain growhichhadbeentargetedcouldnot,in accordance wittheSDS
plans,lay claimto any otherspecifictenitory.Inthis case,the depos aybe construedas a
first stepin a processof eliminat[ICTFY, TrialChamber,Opinion andJudgment,
Prosecutor v. KaradZiCand Mladit, CaseNo. IT-95-1-R16, 11July 1996, para.
941.
41. It must be borne in mind that the SDS plan calledfor the annexationof al1of Bosnia
and Herzegovina,which would have been accomplished, onthe basis of what
happenedin the areas that were taken over, by the expulsionor killing of al1the
Muslims,exceptperhaps for those confinedto a tiny enclave.That this plan could
not be realized in its entiretyis irrelevant to the case.As the Trial Chamber
observed, "determiningthe degree of which the groupwas destroyedin whole or in
part is not necessaryto concludethat genocidehas occurred." [ibid.,para. 941.
42. Suchvictimizationneed not succeedin destroyingdl, or even most of a group.
Article III prohibits any attempt to commit genocide,regardlessof its success.
Moreover,the phrase "destroy, in wholeor inpart of a (...group as such"
[emphasisadded]was expresslyinsertedto cover a genocidalenterpriseeven if it
does not airn at killing al1the members of the group.The Report on the questionof
the preventionand punishmentof the crimeof genocide[E/CN.4/Sub.2/1985/6]
statesat paragraph 29 that the phrase "in part" in ArticleII of the Convention
"wouldseemto implya reasonablysignificantnumber,relativeto thetotalof the groupas a
whole,orelse a significant sectionof a groupsuchasitslead(...consideratioof
propdonate scaleandof totalnumbersarerelevant." Chapter 6 -Section5
The ethnic cleansinaspractised
in Bosnia also constitutesgenocide
The Genocide Conventionwas intendedto deter or punish persons who embark on
the destructionof a group, not merely those who succeed.
43. Injurious, discriminatoryacts, when comrnittedsystematically, permitinferencesof
intent. When the acts, taken together, have the effect of destroying a group in whole
or in part, the intent to bring this destruction aboutcan be inferred from the
systematicpattern of acts. This is so even whenindividual acts, examinedin
isolation, oneby one and out of context, are "merely" gravely injurious instancesof
inhumanity.As the ICTFY's Review of the Indictrnentpursuant to Rule 61 of the
Rules of Procedure and Evidence, in the Nikolii case,was able to conclude:
"the constitutive intent of the crime of genocide may be inferred fiom the very gravity of those
discriminatory acts[ICTFY,Review of the IndictrnentPursuantto Rule 61 of the
Rules of Procedure and Evidence,Prosecutor v.Nikolii, case No. IT-94-2-R61,
20 Oct. 1995, p. 20, para. 341.
44. The Experts' Report, like Applicant'sReply, finds ample evidenceof acts from
whch Respondent'sintent to commit genocide can be inferred. It states thatthe
"necessary element of intent may be inferred from sufficient facts. In certain cases, there will be
evidence of actions or omissions of such a degree that the defendant may reasonably be assumed to
have been aware of the consequences of his or her conduct, whichto the establishment of
intent (..[United Nations, Final Report of the UnitedNations Commzssionof
Experts, SI19941674(Vol. 1), 27 May1994,p. 26, para. 971.
The Commissionof Experts reported that "the manner in which" various "coercive
means" were employed to effect ethnic cleansingis "consistentthroughout a certain
geographic area"and included
"mass murder, torture, rape and other forms of sexual assault; severe physical injury to civilians;
mistreatment of civilian prisoners and prisowar;use of civiliaashuman shields;
destruction of personai, public and cultural prop."t[ibid.,p. 34,paras. 133-1341.
This is not the result of persona1 or local vendettas. On the contrary,there are well-
establishedpatterns of atrocities, demonstrated in the "Prijedor"case study made by
the Commission,that the Commissionfound repeated in many municipalities
(opitinas): Banja Luka, BrSko,FoCaand Zvornik. In each case, the Commission
statedthat it "receivedsignificantinformationsupportingthe above conclusions."
[ibid.,p. 35, para. 1401.The practicesReply of Bosniaand Henegovina
"were notcoincidental,sporadicorcarriedty disorganizgroupsorbandsof civilianswho
couldnotbe controlled bytheBosnian-Serb leaderp.deed the patteof conduct, thenner
in whichtheseactswerecarriedout, thelengthof timeover whichtheytookplaceandtheareasin
whichtheyoccurredcombineto revealapurpose,systematiciandsomeplanningand
coordinatiofromhigher authoritie[ibid., p. 35, para. 1421.
45. As will be demonstrated in Chapter 10,the responsibility forthese acts in violation
of the Conventionrests squarelywith the Federal Republicof Yugoslavia.This has
been confirmed again and again in the Experts' Report [ibid., pp. 30, 31,paras. 113,
1181.Chapter 11 will demonstratethat the Federal Republic ofYugoslavia's
responsibilityfor important omissionsviolative of the Genocide Convention.
Likewise, al1this was reportedby the Commissionof Experts [UnitedNations,Final
Report of the UnitedNations Commissionof Experts, SI19941674(Vol. 1),27 May
1994,p. 35, para. 1431.
46. Based on its investigationand observations,the Commission ofExperts, while
finding that some wrongs were also committedby Bosnian Governmentforces,
concluded thatthese, unlike Serb atrocities,did not occur as part of a concerted
policy [ibid.,p. 36, para. 1481and that "itis clear thatthere is no factualbasis for
arguing that there is a 'moralequivalence'betweenthe warring factions." [ibid.,pp.
36-37, para. 1491.This issue is Mer addressedin Chapter 16of this Reply.
47. The High State Court of Düsseldorf,in convictinga Bosnian Serb, Nikola Jorgik,on
30 counts of murder and 11 counts of genocide,had no doubt whatever that the acts
of killing Muslims did not amount to isolated acts of an individualacting onhis
pnvate animositiesbut also constituted part of a pattern of the intentionaldestruction
of the Bosniakpopulation. Imposingthe life sentenceon this perpetrator, Judge
GünterKrentz said: "Whoeverhoped that eventslike the Nazi genocide ofthe Jews
could never be repeated is bitterly disappointedafter the eventsin the former
Yugoslavia." ["German CourtsentencesSerb to life for genocide in Bosnia",New
YorkTimes,27 Sept. 1997,p. A5, Annex 691.The Court found defendantguilty,
inter alia of multiple (30) casesof murder and of the mistreatmentof many persons,
some of whom appearedas witnesses.The Court found that defendant'sindividual
acts, taken in the contextof the overall conductof the campaignagainstthe
Muslims, constitutegenocide,first, because, "the intent to destroy a group means
destructionof the group as a social entityin its uniquenessand its feeling of being
cornmunity;it is not required to show the biological-physicaldestructionof the
group." [CaseIV, 26/96, 2 StE 8/96, Generalbundesanwalt, Oberlandesgericht Chapter 6-Section 6
The Tadi2case as evidence of genocide
Düsseldorf,Strafsachegegen NikolaJorgiC,pp. 161-62,Annex 701.It found,second,
that such intent was
"clearly manifest by the Serb leaders of the SDS and the leaders of the Serb military, made evident
by the clearly demonstrated systematicconduct and utterances of Karadzic and by the
circumstances of mistreatment, use of, plunder, and destruction of homes and mosquesof
Muslims in themitones requisitionedby the Serbs, by which they were depnved of the means of
survival and were forced to flee insofar as they had not been killed by violence or in the
concentration camps."bid., p. 1621.
48. The German Court thus decided thatdestruction, in themeaning of the Genocide
Convention,includesthe destructionof a group as a social entity, in wholeor in
part. It also decided that ethnic cleansingis genocide.Finally, the Court decided that
the actsof individuals-killing, torturing, etc.- must be judged in the context oftheir
participation as responsible persons inan overall strategy thatwas clearly,
demonstrably genocidal. These conclusions supportthose of the ICTFY, the
MazowieckiReports, the Commissionof Experts and of numerousreports by
govermnentsand responsible, independentjournalists. The facts, in both sensesof the
word, are truly "notorious".
49. The ICTFY, too, has had occasion to make fmdingsthat reinforcethose made by the
HurnanRights Commission's rapporteur and by the Security Council'sCommission
of Experts.Particularly cogent arethe findings of the Trial Charnberin the caseof
DuSkoTadiC[ICTFY, Opinion and Judgment,Prosecutor v.DugkoTadit, Case No.
IT-94-1-T, 7 May 19971.Although Tadi6was not charged withgenocide,many of
the findingsof fact made by the 3-judge chamber independentlyconfinn allegations
being brought by the Applicantin this proceeding.
6. The Tadidcase as evidence of genocide
As has been noted, above, the Tadi6case was not one in which the defendantwas
50.
charged withgenocide. The case is replete, however,with findingsof facts which
bear directly on Applicant's caseand which confm al1that Applicant alleges, or
needs to allege, in order to demonstratethat genocidewas perpetrated.
Much of the fact-fmdingby the ICTFY Chamberwas based onthe evidenceof
witnesseswho were subjectedto cross-examination bythe defence. The prosecution
presented 40 witnessesand 75 exhibits,including video tapes, and 10prosecution
witnesseswere called in rebuttal to the 11 defence witnesses presentedby live videoReply ofBosnia andHenegovina
fiom Banja Luka in Bosnia and Herzegovina.This makes the fact-finding in Tadié
particularly reliable and pertinent to the present case.
51. The Opinion of the Tribunal tracesthe propagandacampaignwaged after 1989 to
prepare the Serbs of Bosnia and Herzegovinafor that which was to follow by
warning them that they were the target of a massacre being preparedby the Muslims.
It adopts the words of one witness, Edward Vulliamy ofthe Guardian Newspaper,
London, who had travelled in the area during 1992, to theeffect that
"the messagefrom the govemmentin Belgradewas relentlessand was very 'cogentand potItt.
was a messageof urgency,a threat to your [Serbian] people, toyour nation, a cal1to arms, and,
yes, a sort of instructionto go to war foryourp(...)'[ICTFY,Trial Chamber,
Opinion and Judgment,Prosecutor v.DuJkoTadié,Case No. IT-94-1-T, 7 May
1997,pp. 34-35, para. 961.
The Tribunal's acceptanceof this evidence of incitementfiom Belgrade is directly
confirmatoryof the allegationsand evidenceof the FederalRepublic of Yugoslavia's
complicity in genocide that aredevelopedin Chapter 10 ofthis Reply. The Tribunal
equally confirms the allegationsand evidence presentedin the Applicant'sMernorial
and in this Reply to the effect that the JNA rnilitary force of the Federal Republic of
Yugoslavia in Bosnia and Herzegovina in mid-1992 simplytransformeditself into
the army and rnilitias of the "RepublikaSrpska", whichcommittedmost of the
atrocities alleged by Applicant.This Court must determine whetherstate
responsibility for genocide can be shed merely bythe perpetrators shedding one
uniform for another. The questionis not what sartorialchoicesthe perpetratorsof
genocide may have made but, rather, who had effective responsibilityfor theiracts?
52. These atrocities are fully developedby the Tribunalin the TadiCcase [ibid.]. Those
pertaining directly to genocide include,interalia, the following, which are quoted
directly, verbatim, with reference to the applicableparagraph numbers:
"147.Imrnediatelyuponits formation,thARK CrisisStaff beganto make decisionsabout the
treatment of non8erbs. The President of theARKCrisisStaff, RadoslavBrdanin,held extreme
views withregard to Greater Serbia andthe acceptability of othernationalitieslivingwithinthat
tenitory. His position,which wascontinuallyrepeatedin the media,was that the largestpercentage
of non-Serbs acceptablein the territory designatedas Great Serbiawas 2 percent. In order to secure
this percentagehe advocatedon Radio Banja Lukaa direct stniggle,includingthe killing of non-
Serbs. SimilarlyRadislavVukiC,Presidentof the MunicipalSDS Cornmitteein Banja Luka and
Presidentf the RegionalBoard ofthe SDS, aswell asan electedmember of the SDS MainBoard
of Bosniaand Haegovina, was also an extremist, presenting through thehis decisionnot to
allow anynon-Serb women to give birth at Banja Luka Hospital.He also assertedthat al1mixed
marriage couples shouldbe divorcedor that al1mixedmaniages shouldbe annulled andthat Chapter 6 -Section 6
The Tadi6case as evidence of genocide
children of mixed marriages "were good only for making soap." The position expressed by these
two prominent Serb leaders, once thought of as extreme, had, by 1992, become the predominant
views of the SDS leadership, acceptance of which was a prerequisite for advancement within the
SDS. Individuals outside of the SDS who did not agree with the increasingly extreme position of
the SDS leadership were subjected to pressures ofvarious kinds, including dismissal fiom work,
threats, beatings and the planting of explosives in their homes or under their cars. Politicians both
within the SDS and fiom other parties who disagreed with this policy were threatened with injury
or death and many of them left the area as a result. After a number of peace rallies throughout the
city of Banja Luka, eventuallyhalted by means of a blockade utilizing checkpoints manned by the
Serbian Defence Force, a paramilitary unit, and the subsequent manning ofhese checkpointsby
members of the reserve police forces, al1open dissent to SDSpolicies was silenced by spnng 1992.
The media focused only on SDS policy and reports fiom Belgrade became more prominent,
including the presentation of extremistviews andthe promotion of the concept of a Greater
~erbia."
53. This demonstratesthat ethnic cleansingwas meant to destroy the non-Serb
communitiesin the areas coveted fora Greater Serbia. It also shows that the
extremistviews came from Belgrade andwere broadcastedin the Prijedor region,
while increasingly excluding"dissenting"opinions. The means included lulling,
torture, rape and physical harassment.Clearly, ethnic cleansingwas recognizedby
the ICTFYas equalling genocide. The ICTFY decisioncontinuesto make this clear:
"148. In accordance with this policy the ARK Crisis Staff began to implement extremerestrictions
on the movement and lives of non-Serbs. These decisionswere binding throughout thetemtory of
the Autonomous Region of Krajina, includingopitina Prijedor, and the AR. Crisis Staff carried
out checks toensure that its decisions were being implemented by the municipalCrisis Staffs, or
other appropnate bodies. By May 1992non-Serbs living within the temtory of the Autonomous
Region of Krajina faced an extremely difficult situation.As with Serbs who had not responded to
theircal1for mobilization, fieedom of movement was restricted and a curfew was established.
Measures directed specifically at non-Serbs included dismissalfiom work, prohibition on the
opening and running of private businessesand attacks on certain buildings, as wellas the loss of
social and health insurance as a consequence of their unemployment.Only those loyal to Republika
Srpska were entitled to fil1positions of authority and loyalty was defined in June 1992 as
acceptance of the SDS as the "onlytrue representative of the Serb people". Additionally,terror
tactics were cornmon, such as the use of the "red kombi", a large red van with a crew of eight
members of the reserve policy force, dressed in their policeforms, who drove around Banja
Luka asking for the identity papers of citizens. Those arrested, predominantly Muslims and Croats,
were taken not to jail but to a building designated specifically for beatings. The red kombi, which
operated fiom May until the end of 1992,became a symbol of fear.
149. The difficulties suffered by the non-Serb population of the Autonomous Region of Krajina
have been well documented. A Report of the International Cornmittee of the Red Cross ("ICRC")
found that the minority civilian population of the Banja Luka area was repeatedly beaten,
threatened and robbed. Non-Serb cultural andreligious syrnbolsthToughoutthe region were
targeted for destruction and, an additional means for minimizing the non-Serb populationof the
area, a state agency was created to facilitate theange of the non-Serb population for Serbs.
150. Upon its formation in May 1992the Prijedor Crisis Staff implementedthese restrictive
measures against non-Serbs, who were fired fiom their jobs, refused necessary documentation and
whose children were barred fiom attending primary and secondary schools. Non-Serbs no longerReplyofBosniaandHerzegovina
qualified for leadership positions and were eventually forced to leave almost al1positions.
Accusations and propaganda against Muslims and Croats,including ethnic insults, were heard on
the radio andal1travel outside of the opitina for non8erbs was prevented. The movement of non-
Serbs within the opitinaas also obstructed, control being implemented bymeans of a curfew and
by checkpoints where identifications were checked and if the holder was not a Serb, permission to
pass could easily be denied. The control over movement extended as fa as private residences
through the use ofregisters in which Muslims and Croats had to record the movementsof
individualswithin apartment buildings anddaily searches were conducted in almost every
apartment inhabited by Muslims and Croats. Additionalrestrictions included the blocking of
telephone lines and the partial shut-downof electricity for non-Serbs. Throughoutthe opitina
mosques and other religious institutionswere targeted for destructionand the property of Muslims
and Croats, worth billions of dinar, was taken."
54. The ICTFY decisionin the TadiCcase fùrther illustratesthese findingsby reference
to specificinstancesand places,such as the notorious ethnic cleansing of Prijedor:
"151. After an unsuccessful attempt to regain control of the town of Prijedor on 30 May 1992ba
small group of poorly armed non-Serbs, non-Serbs in F'rijedorwere ordered to use sheets of white
material to mark their homes and indicate that they surrendered. Ultimately they were divided into
two groups: one which consisted of men aged between 12to 15 or 60 to 65, and one of women,
children and elderly men. Generallythe men were taken to the Keraterm and Omarska camps and
the women to the Trnopolje camp. Additionally, theold part of the town of Pnjedor known as
StariGrad, inhabited mostly by Muslims,was destroyed. After the cleansing of Prijedor any
remaining non-Serbs were required to Wearwhite armbands to distinguishthemselves.Non-Serbs
lived in fear as formeriiends reported them to the authorities and the disappearance of non-Serbs
became an everyday experience. For those held at campsin the area, the overwhelming majorityof
whom were non-Serbs, the situation was horrendous, with, as described below, brutal beatings,
rapes and torture cornmonplaceand the conditions of lifeappalling.
152. Whereas before the conflict opitina Prijedor contained approximately 50,000 Muslimsand
6,000 Croats, only approximately 6,000 Muslims and3,000 Croats remained after the cleansingand
they endured very harsh conditions.They were required to perform dangerous and difficult work,
had difficulties buying food, werearassed, and killings occurred on a continua1basis. As late as
1994 the ICRC reported the confirmed deaths of nine Muslim civilians in two days in opitina
Prijedor. As a result ofhese difficulties the United Nations High Cornmissionerfor Refugees and
the ICRC asked the Bosnian Serb authorities for permission toevacuateal1remaining non-Serbs
from opitina Prijedor and, when refused, they decided to increase their monitoring of the treatment
of minorities in Prijedor."
55. The same policies of genocidewere pursuedin many other placesin the region, such
as Kozarac and at the Omarska, Keraterm and Trnopoljecamps,where ethnic
cleansing was pursued in a concertedmariner.The ICTFY,in the TadiCdecision,
went on to speciSl:
"153. This atrnosphere of discrimination and hostility against non-Serbs created by the Serb
leadership throughout the region was well known in Kozarac. After the takesver of the town of
Pnjedor and before the attack on Kozarac, continuousreferences were made by Serbs on the police
radio about destroying mosques and everything that belongedto the "balijas",a derogatory term for
Muslims, as well as the need to destroy the "balijas"thernselves. Chapter 6 -Section 6
ne TadiEcase as evidence of genocide
154. Afkr the take-over of Pnjedar and the outlying areas, the Serb forces confined thousands of
Muslim and Croat civilians in the Omarska, Keraterm and Trnopolje camps. The establishmentof
these camps was part of the Greater Serbia plan to expel non-Serbs fiom opStinaPrijedor.
Generally the camps were establishedand run either at the direction of, or in cooperation with, the
Crisis Staffs, the armed forces and the police. During confinement, bothmale and female prisoners
were subjected to severe mistreatrnent, whichincluded beatings, sexual assaults, torture and
executions. They were also subjectedto degradingpsychologicalabuse, by being forced to spit on
the Muslim flag, sing Serbian nationalist songs or toive the Serbian three-fingered salute.
Prisoners were guarded by soldiers,police forces, local Serb military or TO units, or a combination
thereof, who were dressed in uniforms and generally had automaticrifles and other weapons on
theirperson. They cursed the pnsoners, refemng to them as "balijas"or "UstaSa",as already
mentioned. Members of paramilitary organizationsand local Serbswere routinely allowed to enter
the camps to abuse, beat and kill prisoners.
155.Perhaps the most notorious of the camps, where the most homfic conditions existed, was the
Omarska camp. It was located at the former Ljubija iron-ore mine,situated some two kilometres to
the south of Omarska village. The camp was in operation fiom 25 May 1992 until late August
1992when the pnsoners were transferred to Tmopolje and other camps. Omarska held asmany as
3,000 prisoners at one time, primarily men, butalso had at leas36 to 38 women. With little
exception, al1were Muslims or Croats. The only Serb prisoners sighted by any of the witnesses
were said to have been there because they were on the side of the Muslims. The commander ofthe
camp was ieljko MeakiC..The camp consistedof two large buildings, the hangar and the
administrativebuilding, and two smaller buildings, laiown as the "white house" and the "red
house". Two photographs of a mode1of the Omarska camp (Prosecution Exhibit 130) are included
in the Opinion andJudgment as Annex C.
157.The Trial Chamber heard fiom 30 witnesses who su~ved the brutality to which they were
systematically subjected at Omarska. By al1accounts, the conditionsat the camp were horrendous;
killings and torture were fiequent.
164.The calling-out of pnsoners was not only for the purposes of interrogation. In the evening,
groups fiom outside the camp would appear, would cal1out particular prisoners fiom their rooms
and attack them with a variety of sticks,iron bars orngths of heavy electnc cable. Sometimes
these weapons would have nails embedded inthem so as to pierce the skin. On occasions knives
would be used to slash a prisoner's body. The prisoners as a whole feared groups of men fiom
outside the camp even more than they did the regular camp guards. These groups appeared to be
allowed fiee access to the camp and their visits greatly increased the atmosphere of terror which
prevailed in the camp. Frequentlyprisoners who were called out failed to return and witnesseswho
were their close relatives gave evidence that they hadver been seen since, and were assumedto
have been murdered."
56. At Omarska, as elsewhere,rape was part of the policy of ethnic cleansingwhich was
the euphemismfor genocide. Here,again, the ICTFYdecisionin TadiCis
unarnbiguous:
"165. Women whowere held at Omarska were routinely called out of their rooms at night and
raped. One witness testified that she was taken out five times and raped and afier each rape she was
beaten."ReplyofBosniaandHenegovina
57. In its TadiCdecision, the ICTFYmade explicit its findings of the acts perpetrated
againstnon-Serbs in the camps thatwere deliberate,consistentuses of killing,
causing seriousbodily injury and the impositionof physical conditionsintended to
destroy the life of a group in whole or in part. Thus:
"167. The red house was another small building where prisoners were taken to be beaten and
killed. When prisoners were required to clean thered house, they often found hair, clothes, blood,
footwear and empty pistol cartridges. They also loaded ont0 trucks bodies of prisoners who had
been beaten and killed in the redouse.
168. The Keraterm camp,located on the eastem outskirts of Prijedor, was previously used as a
ceramic tile factory. It began operating on 25 May 1992 andheld up to 1,500prisoners crowded
into a number of large rooms or halls (...)
169. Conditions inKeratem were atrocious; prisoners werecrowded into its rooms, as many as
570 in one room,, with barely space to lieown on the concrete floors. The rooms wereunlit and
without windows and were in the summer intensely hot, with no ventilation. Prisoners were kept
locked in these rooms for days on end, crowded together. Initially one lavatory was available for
al1but it became blocked and barrels were supplied insteadwhich leaked, the stench being
overpowenng. There were no washing facilities."
58. Massive, deliberate policies of killing and of rape were pursued by the Serb
authoritiesin what the ICTFY in the TadiCdecisionclearly indicatedto be acts of
genocide:
"171. There was testimony received of a mass execution of prisoners believed to have come from
Hambarine. One night prisoners heard bursts of machine-gun-fire, followedby individual shots.
Witness Q testified that the following moming they were called out to load over 150 bodies ont0 a
large truck and trailer whichhen left the camp with blood dripping from it. Machine-gun-firewas
repeated the following night with, according to evidence, over 50 bodiestaken away the following
moming. Two fire trucks arrived later and hosed down the area to wash away the blood. It seems
that the shootingtook place through the closeddoors of the room in which those prisoners were
confined; those doors had large bullet holes pierced through them. Another account by a witness
speaks of a total of about 250 people being killedin this way.
172. The Tmopolje camp was located near the Kozarac station, on the FYijedor-BanjaLuka railway
line. The camp held thousands of prisoners, mostof whom were older men and women and
children. Armed soldiers guarded the camp. The commander of the camp was Slobodan KuruzoviC.
175. At Trnopolje there was no regular regime of interrogations or beatingas in the other camps,
but beatings and killings did occur. One witness, Sulejman BeSiC,testified to having seen dead
people wrapped in paper and wired together, their tongues pulled out and, on a later occasion,
having seen the slaughteredbodies of young girls and old men in the theatre. Because this camp
housed the largest number of women and girls, there were more rapes at this camp than at any
other. Girls between the ages of 16 and 19were at the greatest nsk. During evenings, groups of
soldiers would enter the camp, take out their victirnsfiom the dom building and rape them.
Another prisoner, Vasif GutiE,who had medical training, was assigned to work in the medical unit
at Tmopolje and testified to the extensiverapes thaoccurred at the camp. He often counselled and
treated victims of rape, the youngest girl being 12 years of age. Chapter 6-Section 6
The TadiCcase asevidence of genocide
178.On or about 1 October 1992people were deported from this campupon signing an agreement
to relinquish1of their material goods. Thus the Tmopolje camp wasthe culmination of the
campaign ofethnic cleansing since those Muslimsand Croats who were not killedat the Omarska
or Keraterm camps were, from Tmopolje, deported from Bosnia andHerzegovina."
59. Thus was genocide perpetratedin al1its ugly manifestations.These quoted
paragraphsare not conjectureor mors. They, and much else held to have been
established beyonda reasonable doubt bythe ICTFY Chamber in the TadiCcase,
independentlyandjudicially, confirm other evidence cited in this Reply regarding
massive lulling, torturing, rape, other subjectionto inhurnanetreatrnent andthe
forced expulsion ofa large part of the Muslirnpopulation of Bosnia and
Herzegovina,as well as the destructionof its cultural and religious institutions.
60. The ICTFY, although engagedin a criminal trial of one individual, ratherthan an
internationaljudicial action againsta state, considered not only many of the same
facts as are pertinentto this case, butalso some of thesame law. Thus, for example,
the ICTFYhad to determinethat prohibited actswere performed against a
"population"[Article 5 of the Statute of the ICTFY] much as this Court must find
that the acts were directed againsta "group".The ICTFYYsdecisionmakes clear that
"the emphasisis not on the individual victimbut rather on the collective, the individual being
victimised not because of his individual atiributes but rather because of his membership of a
targeted civilian population. This has been interpretedtothat the acts must occur on a
widespread or systematic basis, that there mustbe some a governmental, organizationalor
group policy to commithese acts and that the perpetrator must know of the context withinwhich
his actions are taken, as well as the requirement (...) that the actionsbe taken on discriminatory
grounds." [ICTFY, Trial Chamber,Opinion and Judgrnent,Prosecutorv. Duih
Tadii, Case No. IT-94-1-T, 7 May 1997,p. 244, para. 6441.
While these requirements for convictionby the ICTFYare not identicalto those for
finding a state in violation of the GenocideConvention, being basedon the related
legal conceptof Crimes AgainstHumanity, it is worth noting that the Tribunal
convictcd Tadit of four counts of CrimesAgainst Humanity [ibid., pp. 300-301,
para. 21,thereby indicating that the acts committedby TadiCwere cormnitted"as
part of a wridespreador systematicattack on a civilian population and that the
accusedintended therebyfor discriminatoryreasons to inflict severe damage to the
physical integrity and human dignity" of the victims. [ibid., p. 298, para. 7641.This
finding is directly supportiveof a finding, in this case, that genocidehas indeedbeen
committed.Reply of Bosnia andHenegovina
61. The facts foundby the ICTFY in Tadi6closely approxirnatefacts foundby the
Tribunalin other cases. Inthe NikoliCcase, the Chamberfound thatthe genocidal
"cleansing"policy eradicated entireMuslirncomrnunities:
"On the basis of al1the testimony, in September 1992there remained only a few traces of the
Muslim population of the Opstina of Vlasenicawhich according to the 1991census (the last census
prior to the said events) amounted to 55% ofthe total popul[ICTFY,Trial Chamber,
Review of the IndictmentPursuantto Rule 61 of the Rules of Procedure and
Evidence, Prosecutorv. DraganNikoliC,CaseNo. IT-94-2-R61,20 Oct. 1995,
para. 271.
62. So, too, the judges of the ICTFY have expresslyqualifiedthe massacrein Srebrenica
[see Reply, Chapter 5, Section 81in terms of genocide.
In the confinnation of the indictmentsagainstRadovanKaradZiCand RatkoMladiC,
Judge Riadstated that the mass executionsin Srebrenica
"were evidently systematic,being organised by the militaryand political hierarchy of the Serbian
administration of Pale, apparently with close support from elements of the army of the Federal
Republic of Yugoslavia (Serbia-Montenegro).These executions were committedin the context of a
broader policy of 'ethnic cleansing' which is directed against the Bosnian Muslim populationand
which also includes massive deportations. This policy aims at creatingnew borders by violently
changing the national or religious compositionof the population. As a result of this policy, the
Muslimpopulation of Srebrenica was totally banished from the" [ICTFY,Indictments,
Prosecutorv. RadovanKarad56 & RatkoMladiC('irrebrenica'i)C , aseNo. IT-
95-18-1,16 NOV.1995, p. 41.
Judge Riadcontinued:
"The policy of ethnic cleansing referred to above presents, in its ultimate manifestation, genocidal
characteristics. Furiherrnore, in this case, the intent to destroy, in whole or in part, a national,
ethnical, racial origious group, which is specific to genocide,may clearly be inferred from the
gravity of the ethnic cleansing practised in Srebrenica and itsng areas, i.e. principally, the
mass killings of Muslims which occurred afier the faIl of Srebrenica in July 1995, which were
committed in circumstances manifesting an almostralleled cruelty[ibid.].
In its Review of the Indictmentpursuantto Rule 61, the Trial Chamberestablished
that the
"policy of ethnic cleansing resulted in a radical change in the makeup of the population. The
municipality of FoEa:40,513 inhabita51.6% Bosnian Muslim, in August,1993,there were only
9 Muslims left in the city. Pnjedor municip88%tof the Muslim population of about 49,000
inhabitants were lcilledor deported (...) Srebrenica: the take-over of the enclave in July, 1995
entailed the execution or deportation of 40,000 inhab[ICTFY,Trial Chamber,
Review of the IndictmentPursuantto Rule 61 of the Rules of Procedureand Chapter7 -SectionI
Introduction
Evidence,Prosecutor v. Radovan KaradZic & RatkoMladik, Case No. IT-95-5-
R61 & IT-95-18-R61, 11 July 1996, para. 601.
The Tribunal pointedly referredto the "uniformmethods usedin committingthe said
crimes, their pattern, theirpervasivenessthroughout al1of the Bosnian Serb-held
territory (...)" [ibid., p. 47, para. 841,the Chamber confirmedthe charges and
concluded,as already indicatedin the introduction,that "an intent to destroythe
group, at leastin part, was present." [ibid.p. 53, para. 941.
63. It is extraordinarythat Respondent continues toassertthat the acts found by the
ICTFY to havebeen committed and the policies that informed them cannot be
deemed to havebeen genocidal because
II.
if the goal of that policy is to repulse by force, including killing and torture, membersof an
ethnic or religious group fiom a certain temtory, this excludes 'the intent to destroy, in whole or in
part, a national, racial orus group as suc[Counter-Mernorial,p. 7, para.
1.1.3.5.1.
The so-called"repulse"of entire ethnic populationsfiom their homes, by killing,
torture, rape and otherwisemaking life unbearable, surelydestroys the groupand
thus emphaticallydoes constitute genocide.This is clear to thejudges of the ICTFY
and will surelybecome equallyclear in these proceedings.
CHAPTER7
RAPE AND SEXUALVIOLENCEAS SPECIFICMEANS OF COMMITTING
GENOCIDE
1. Introduction
1. In this Chapterthe Applicantwill first present to the Courtthe overwhelming
evidence ofcountless acts of rape and sexualviolence committedby Serbs against
the non-Serbpopulation, in particular the Muslim part, as has been collecteciby
numerous international bodies, as well as established bythe ICTFY. After the
presentationof the crude facts, the Applicantwill demonstrateto the Court thattheseRepIyofBosniaand Henegovina
acts are indeed acts of genocide, accordingto the criteria set forth by the Genocide
Convention.
2. The Applicanthere presents to the Court evidence of sexuav l iolence againstnot
only non-Serb women,but also non-Serb children and men.It must be stressed at the
outset that the scaleof sexual violenceagainst women,includingvery young women,
has no cornmonmeasurewith the scale of sexualviolence againstmen. Asa matter
of fact, as will be seen, patterns of sexual violenceare clearly distinguishableas far
as women are concemed, while the acts of sexualviolence against men are less
fiequent and were not distinguishableas a distinct and independentpattern.However,
acts of sexual violence againstMuslimmen which,when taken in isolation,do not
necessarily constitutegenocide, do qualiQ as acts of genocide byvirtue of their link
to the overall policy aimed at the exterminationof the non-Serb group,and in
particular the Muslirngroup.
3. Rape has been a sinistertool of genocidein Bosnia and Herzegovina.As statedby
Professor Cherif Bassiouni, president of the UnitedNations Commissionof Experts:
"Theconflict inthe formerYugoslaviahastakensexualviolenceto new l[Cherif
Bassiouni,Sexual Violence,Occasional PaperNo. 1, IHRLI, DePaul University
College of Law, 1996,p. 2, Annex 711.
Rapes and sexual assaultshave not been isolatedincidents,but rather have occurred
in an extensiveand systematicmanner.
4. The occurrencewas extensive, since rape and sexual assault havebeen committed
not only on non-Serb women, but also on non-Serb men and children - everywhere
in Bosnia and Herzegovinaand repeatedly, during the whole period fiom April 1992
to the Dayton Accords and even thereafter. However,it must be stressed againthat
women were by farthe main targets of rape and sexual violence cornmittedby Serbs
in Bosnia and Herzegovina.
5. The occurrence was systematic,since rape and sexual assaulthave followeda pattern
of what turned out to be sexualviolence as policy T.here is unfortunatelyno doubt
that al1the groups which have opposedeach other include rapists. But an isolated
rape - though appalling - is not a policy of rape, andthe two types of acts are not
governedby the same rules. Even severalisolatedrapes do not necessarilymake up a
policy of rape. What has happenedin Bosnia andHerzegovinais not a sum of
isolated events, but a systematicuse of rape and sexualviolence, dong the lines of Chapter 7-Section 1
Introduction
clear patterns of conduct. That a policy of rape has been followed by Serb forcesin
Bosnia andHerzegovinawill be demonstrated below,in the secondpart of the
Chapter .
6. There is no precise definitionof rape in international law.Professor Cherif Bassiouni
has givena definition of the different aspectsof sexual violence which the Applicant
wishes to address here:
"~ape denotes vaginal, oral or anal sexual intercourse without the consent of one of the people
involved. Sexual assault is a broader term, which includesrape and other forced or coerced sexual
acts,swell asmutilation of the genitals. Sexual violence is the most generalterm, used to
describe any kind of violence canied out through sexual means or by targetin[Cheriflit~.~'
Bassiouni,Sexual violence,Occasional PaperNo. 1, IHRLI, DePaul University
College of Law, 1996,p. 3, Annex 711.
7. According tothe Prosecutorof the ICTFY, rape is defined "as the forcible sexual
penetration of another person or forcing one person to sexually penetrateanother"
[ICTFY,Trial Chamber, Prosecutor's Pre-TrialBnef, Prosecutor v. Duiko TadiC,
CaseNo. IT-94-I-T, 10 Apr. 1996,p. 531.It is necessary toprovide a more precise
definition of the two tems "forcible"and "sexualpenetration".
8. According tothe Prosecutor, in the same case:
o or cimeeans that the act of sexual penetration was accomplishedby force or threat of force
against the victim or a thirdn. The threat of force can be either express or implied, and must
place the victim in reasonable fear that he or she or a third person will be subjected to violence,
detention, duress or psychological oppressionttrial Chamber,Prosecutor's
Pre-Trial Brief, Prosecutor v. Duiko TadiC,CaseNo. IT-94-I-T, 10Apr. 1996,
p. 54; see also Ms. Patricia Viseur-Sellers,the Legal Officer on gender issues
of the ICTFY, ICTFYBulletin,No. 7, 21 June 1996,p. 5, Annex 721.
In the context of rape, such an interpretationis necessaryin order to encompassal1
situationsin which awoman is not "fiee" to have sexual relations:"forcible"means
"imposed"on a person, even if no physical violence is used. Ofcourse, a man need
not physically restrain a woman to rape her, if he just tells her that unless she
submitsto having sexualrelations with him, her children, which arein the next room
- or sometimesin the sarneroom - will be in danger. But most often, even if no
specific threat of this kind was articulatedagainsther, the woman was in a general
context where she was coerced it is needlessto insist on the fact that when a guardReplyofBosniaand Herzegovina
assaulteda woman in a detentioncamp or a woman living in a town or village held
by Serb forces, shewas unable to resist or escapeher assailant.
9. As far as "sexualpenetration"is concerned,a definition is given as well in the pre-
trial brief of the Prosecutorin the TadiCcase [ICTFY,Trial Charnber,Prosecutor's
Pre-Trial Brief, Prosecutor v. Duiko Tadid,CaseNo. IT-94-1-T,10Apr. 1996,p.
531.The sarne defuiition can be found in the Indictmentin the GagoviC & others
("Foëa") case, which is an indictmentspecificallydealingwith sexual offenses,
confumed by Judge Vohrah. As declaredby the Prosecutor, andconfirmedby the
Judge, it includes "penetrationhowever slight, of the vagina, anus or oral cavity, by
the penis. Sexual penetrationof the vulva or anus is not limited to the penis"
[ICTFY, Indictrnent,Prosecutor v. Gagovid & others ("FoCa'i),Case No. IT-96-23-1,
26 June 1996, p. 5, para. 4.8.1.Again, in the context ofrape, such an interpretation
is necessary, especiallyin view of the fact that many rapes were committedwith al1
sorts of objects, as will be seen later in this Chapter.
2. Rape and sexualviolencehave been committedon an extensivescale
Theoverall statistics of sexual violence
10. Although the number of rapes and sexualassaultsis not as important asthe intent
behind them, the scaleof sexual violenceascornmittedin Bosnia andHerzegovinais
a strong indication, even strongenoughto lead to a presumption,that the rapes were
not isolated actsbut followed a clear policy. Rapes and sexual violencehave been
committed on an extensive scaleagainstthe non-Serb, and in particular the Muslim
population of Bosnia and Herzegovina.The figuresgiven are staggering.
11. Many figures have been advanced, but eventhe lowest ones are enormous. One of
the most reliable sourceson sexualviolenceis the work done by the Commissionof
Experts. Of particular relevance areAnnexesII, IX, IX.A, and IX.B of the "Final
Report of the United Nations Commissionof Experts Established Pursuant to
Security Council Resolution 780(1992)" of 28 December 1994,which deal
specificaily with sexual violence.
The methods usedby the Commissionof Experts to examine sexual violencehave
12.
been cumulative:
"~he Commissioninvestigatedrape and sexualassaultin three ways. Thefirst methodwas through
a study of the documentaryevid(...The second methodwasthrough a field investi(...)n Chapter 7- Sectio2
Rape andsexual violence have been
committed on anextensivescale
The final method was through theanalysis of investigationsand interviews conducted by
governments."[United Nations,Final Report of the UnitedNations Commission
of Experts, Sl19941674lAdd.2(Vol. V), Annex IX, "Rape and Sexual Assault",
p. 6, para.11.
The Commissionhas also conducteda series of 223 direct interviewsof refugees or
displacedpersons in Croatia: of the 79 womenwho were fkomBosnia and
Herzegovina,32 women reported having been raped; in additionto this, 21 others
interviewedwere eye-witnessesto rape or sexual assault[United Nations,Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. V),
Annex IX.A, "Sexual AssaultInvestigation",p. 5, paras. 5 and 7; see also Final
Report of the UnitedNations Commissionof Experts, SI19941674(Vol. 1),27 May
1994,p. 57, para. 2411.
13. The data collectedby the Commissionof Experts is reliable because is has been
compiledin a systematicand thorough manner,and usually has taken into account
many other previously existing reports. First,the Commissioncollected documents
conceming allegations of rape and sexual assaults.These documents came from a
great variety of sources as well as direct investigationsby membersof the
Commission:
"The Commission's findings relied on documents submittedby 38 governmen151NGOs and
other organisations."erifBassiouni,Sexual Violence,OccasionalPaper No. 1,
IHRLI, DePaul UniversityCollege of Law, 1996,p. 38, Annex 711.
Then:
"From these materials, sumrnarysheets were created for each allegation, setting out information
such as the identity of victims, witnesses, and perpetrators; the date and location of the incident;
the source of the report; and the method used to record the informationurnmarieswere
organised geographically, divided by the setting in which the rape occurred (custodial or non-
custodial) anden arranged chronologically within thecategories of custodial or non-custodial
setting. The analytical portion identifies specific individual caasswellaspatterns or
poiicies of rap[CherifBassiouni,Investigating Violationsof International
Humanitarian Law in the Former Yugoslavia,OccasionalPaper No. 2, EüUI,
DePaul University Collegeof Law, 1996,p. 56-57, Annex731.
14. The overall picture is the following:Reply of Bosnia and Herzegovina
"Thereportscontainedin theCommission'sdatabaseidentiQcloseto 800victimsbynamesor
number.An additional 673 victimsarereferredto,butnot named in ref victimswho
indicatethattheyhave witnessedorknownof othersimilarvictims.Additionallyt,herearesome
500reportedcaseswhichreferto anunspecifiednumberof victims.Thevictims'agesrangefiom
5 to 81 yearsold,withthemajorityof victimsbeing 35 yearsold.[United Nations,
FinalReport of the UnitedNations Commission of Experts,SI19941674(Vol.
1),27 May 1994p. 56,para. 2361.
15. Accordingto Professor Bassiouni, "Extrapolation from the reports suggests that there
were well over 12,000victims of rape and sexual assault." [CherifBassiouni,SexuaI
Violence,OccasionalPaperNo. 1, IHlUI, DePaul UniversityCollege of Law, 1996,
p. 10,Annex 711.
16. The Commissionof Experts addsthat in its opinion, althoughnot al1the data was
fully corroboratedwith exact names, the number of victims is likely tobe
underestimated,especiallybecause of the reluctanceto report on sexual violence, the
fear of reprisais and the shame and embarrassmentof the victims of sexual violence.
This important aspect of information about rape will be dealtwith more extensively
below.
17. It must be noted that the Report of the Commission ofExperts only covers the
period beginning in the fa11of 1991until the end of 1993. However,rape and sexual
violence did not cease by the endof 1993,which must be taken into accountwhen
attemptingto provide figures of the assaults.
As mentionedbefore in this Reply, the Commissionon Human Rights nominated
18.
Tadeusz Mazowieckias Special Rapporteurto inquire into the questionof human
rights in the territory of the former Yugoslavia. Mazowiecki,having received during
1992an alarrningnumber of allegationsof the widespreadand systematicoccurrence
of rape, particularlyin Bosnia and Herzegovina,and gravely concemed by the nature
of these reports, decidedto send an internationalteam of medical expertsto
investigatethe findings and report them back to him bted Nations, Situationof
HumanRights in the territory of theformer Yugoslavia,Report submittedby Mr.
TadeuszMazowiecki, Special Rapporteurof the CommissiononHumanRights,
E/CN.411993/50,10 Feb. 1993, AnnexII, p. 63, para. 11.
19. In his Report of 10 February 1993, Mr. Mazowieckiexplainsthe thoroughness of the
research conductedby these medical experts: Chapter 7 -Section 2
Rape andsexual violence have been
committedon anextensivescale
"5. General information regarding the subject was obtained in meetings with representatives of the
Govemments concerned, intemational organizationswith representations in the locationsthat were
visited, non-govemmental organizationsconcerned with women's issues,local women'sgroups,
religious leaders of Muslim comrnunities,and other sources including UNPROFOR officials,
relatives of detained or disappeared persons as well as relatives of victirnsof rape.
7. Statistical data including rates of birth, abortions,sexuallytransmitted diseases (STD) including
HIV infection, as well as the numbers of pregnanciesreportedly due to rape were requestedfiom
the hospitals visited in Zagreb, Sarajevo, Zenica and Belgrade.
(-1
32. Interviews were conducted with victims of and eye-witnessesto rape. These interviews took
place in hospitals and refugee camps in and around Zagreb, Sarajevo, Zenica,Belgrade and
Lomica. Interviewees were selected through contacts with relevant physicians and by random
sampling in refugee camps.
(--)
44. In addition to direct interviews, the team of experts carefully examinedtestirnoniesof victims
andor wiînesses of rape obtained by physicians, govemment representatives and independent
agencies. Information regarding a number of clinical cases was also obtained throughthe study of
medical records in these hospita[ibid., Annex II, pp. 63-70,paras. 5-44].
20. The medical team has also closely studiedthe statisticson abortions,which give
indicationson the prevalenceof rape. They have found that in Bosnia and
Herzegovina:
"1n 1992,the number of abortions perfomed at the clinic visited by the team of medical experts in
Sarajevo has doubled in September, October and November (400-5001month)compared to pre-war
rates (approximately 200/month). At the same time, the number of patient visits decreasedby half.
This means that there was effectively four times the number of abortions in those months as
cornpared to pre-war rates (approximately 200/mont[ibid., p. 73, para. 67, and Annex
II, p. 65, para. 161.
These figures have to be comparedwith the ones provided by hospitals situatedin
Belgrade and Zagreb, where the statisticson abortionsremained stable during the
sameperiod. Of course, the effect of the lack of food and medical care and the
psychologicaltrauma resulting fi-omthe ongoing confiictmust also betaken into
account,but it is an establishedfact that many of these abortionswere requested by
women whohad been raped.
21. After the manifold approachesto the issue of rape in Bosnia and Herzegovina,the
team of experts concluded that on the basis of certain estimates"it is likely" that
there were "approxirnately12,000incidentsof rape" [ibid., Annex II ,. 67, para.
301.But this being only a "likely" figure, the team of medical expertscommittedto
scientificallyassessingthe datacollected,preferredto state a non-quantified,albeit a
very clear and firrn,conclusion:Reply of BosniaandHerzegovina
"66. (...) While the data collected bythis mission supportsthe frape hasoccurredon a
largescale,the team feels that it is not in a position to make an estimate of the total number of
rape victirns in thefiict.[ibid., AnnexII, p. 73, para. 66, emphasis added].
22. Upon receiving their report, the SpecialRapporteur declaredthat he "strongly
endorsesthe observations, conclusionsand recomrnendationsof the team of experts"
[ibid., p. 19, para. 831.
23. The SpecialRapporteur endorsedthis conclusion, andunderstanding the limitations
of assessinga definitivenumber of instances of rape, choserather to make general
conclusions based on the existingcarefullyresearched data.Thus, the Rapporteur
statedthat he "feelsthat it is not possible to determine the numberof victims of rape
in this confiict. However, it is clear thatthere are large numbers involved."[ibid.,p.
19, para. 861.
24. The Applicant will adopt the positionof the SpecialRapporteur Mazowiecki,which
emphasisesthe huge scale of rape and sexual violence,without enteringinto a debate
about the exact numbers.
TheEikelihoodof an underestimationof sexual violence
25. Mazowiecki'steam of medical experts rightly noted that "[rlape is among the most
under-reportedcrimes in peacetimethroughoutthe world." [ibid., Annex II, p. 66,
para. 221.This is a well-knownfact, and wasalso notedin the American Journalof
PreventativeMedicine:
"Histori~all~,estimates of rape have been derived fiom law enforcement sources.These methods
have greatly underestimated incidence and prevalence through severe underre[IVYiL."
Schwartz, "SexualViolence against Women:Prevalence, Consequences,
Societal Factors, and Prevention", AmericanJournal of PreventiveMedicine,
1991,No. 7[6], p. 364, Annex 741.
War-time rape is usually even lesslikely to be reported:
Il(...) documentingr-palready difficult during peac-tis even more challenging in the
midst of war. While rape is lmown to be underreported in peacetime (...) because of the profound
emotionalpainand stigmaattached titfear fothesafety of the farnily left behind and lack of
ordinary support systernsmilitate even against disclosure during warti[S. SW~Sa Snd
J.E. Giller, "Rapeas a Crime of War. A MedicalPerspective",JAMA,4 Aug.
1993,Vol. 270,p. 613,column 2, para. 1, Annex 751. Chapter 7-Section2
Rape and sexual violence have been
committedon an extensivescale
26. The Special RapporteurMazowieckiinsisted severaltimes on these difficultiesof
proof:
"A persistent problem besetting attemptsto chart the extent of the incidence of rape and other
forms of sexual abuse remains the exceptional difficulty in obtaining reports or investigating
allegations.ndrances include (...) the distress of the victims and their fear oorontaliation by
behalf of tperpetrators.[United Nations,Situationof HumanRights in the
territory of theformer Yugoslavia,sixthperiodic reportsubmitted by Mr.
TadeuszMazowiecki,Special Rapporteurof the Commissionon HumanRights,
E/CN.4/1994/110,21 Feb. 1994,p. 11, para. 541.
Indeed, many womenwho are raped are really imprisonedbehind a wall of silence.
27. It isthus very likely that the figures given areunderestimated,as so many women,
asharnedand hurt in a profound and intimate way and findingthemselvesin a
largely unstable and threatening situationdue to the ongoinganned conflict and its
aftermatch,do not report the ordeal that they have endured. According to Professor
CherifBassiouni "if the informationerrs in any direction, it probably does not
representthe full extent of the crimes that have occurred in the former Yugoslavia.
Fear, sharne,scepticism and the passageof time tends to dilute the information
available fiom victirns and witnesses." [CherifBassiouni,Sexual Violence,
OccasionalPaper No. 1, IHRLI, DePaul University College of Law, 1996,p. 25,
Annex 711.
28. Ms. Irma Oostermanis an expert on sexual assault issues.She worked for 14 years
as a police officer in theNetherlands and servedas an investigatoron the
Commissionof Experts focusingon sexual assault. She was involved in the FoCa
investigation,in the Pnjedor investigationand in the Srebrenica investigation.She is
now working on sexual assault issueswithin the ICTFY. She explainedthis
reluctanceof women to speak out, giving her testirnonyduring the Article 61
Hearingsin the KaradZiéand Mladiécases:
"Of course, it is very difficult for those women to talk with. Most of the time it is the first time
that they tell what happened to them. Husband does not know, children do not know. So every
time we must spend a gre-ta long time with those women. They are very afraid[ICTFY,
Trial Chamber,Prosecutor v. Karads andMladiC,Cases No. IT-95-5-R61
and IT-95-18-R16, TestimonyOosterman,2 July 1996,p. 28, Annex 761.Repiy ofBosniaandHerzegovina
29. Amnesty Internationalhas also emphasisedthe psychologicalaspects contributingto
the silence of women about having been raped:
"~eliable information is particularly difficult to obtain about such cases as the victims are
fiequently reluctant to report the incidents or give details, even after reaching places where they are
safefiom similar abuses. Some women, it seems, feel they must obliterate the experience from
their memory; others feel degraded and ashamedor fear that they would suffer social stigrna should
they disclose what has been done to t["Bosniaand Herzegovina: Rape andSexual
Abuse by Anned Forces",AmnestyInternationalReport,AI Index:
EUR/63/01/93, Jan. 1993, pp. 1-2,Annex 771.
The fears are multiform: fear of being ostracised by thefamily and community,but
also fear of reprisals by the rapists, either directedat the victim or at her family
menbers, particularly if they are in detentionor missing.
30. The fear of being ostracisedif they tell their story preventsmany women from
speaking out and complainingabout their rape. Often,women donot dare to reveal
publicly that they have been raped. Womenfear that if they acknowledge having
been raped they will carry a stigrna, be markedas rape victims and be isolated and
rejected by their cornmunity:especially if not married,they fear that theywill never
marry if they admit to havingbeen raped; and if married,they fear being rejectedby
their husband and family; and whether or not married, theyfear being rejected by
their largercornrnunity.It is reported by theteam of medical experts sent by
Mazowieckito investigaterape, that sometimeswomenthat testi9 are strongly
criticised:
"43....) Two of the women had been intervbywjoumalists investigatinghuman rights
violations. One of these, because of coming forward in public, wasverbally attacked by another
refugee woman. 'Maybe it would have been better if 1hadn't spoken about it', she told the team of
experts.[UnitedNations, SituationofHumanRights in the temitoryof the
former Yugoslavia,Report submitted by Mr. TadeuszMazowiecki,Special
Rapporteurof the Commission on HumanRights,E1CN.4119931501 ,0 Feb.
1993, Annex II, p. 70, para. 431.
31. The fear of reprisals from the perpetratorsis not just perceived, butis often realistic.
It has been reported that "perpetratorstell female victimsthat (...)if the victims ever
tell anyone or anyone discoverswhat has happened, theperpetrators will hunt them
down and kill them." Wnited Nations, FïnalReportof the UnitedNationsCommis-
sion of Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994, Annex IX, "Rape and
Sexual Violence", p. 11, para. 18(e)]. Chapter 7-Section2
Rape andsexual violence have been
commitfedon an extensivescale
32. Here also,it is evident that even if no specificthreat is articulated, a woman who
has been raped will probably hesitateto reporton what has happenedto her if her
husband or son or other close member ofher farnilyis in detentionor "disappeared".
She might fear that the person linked with her will behurt if she complainsabout
the actions of the military forces that alsorun the detention campsand have taken
over the region.
But again, the Applicant insists on the fact that the exact figures are not essential,
33.
the crucial element is the intent of the perpetratorsof acts of sexualviolence, which
to a certain extent can be inferred fiom the large scale of the assaults,a point which
will be elaborated more in the second sectionof this Chapter.
Thestandards ofproof to be used in cases of rape and sexual assault
34. In the Counter-Memorial,the Respondentrejects the submissionsof the Applicanton
the existence of widespreadrapes, statingthat no proof has been provided concerning
eitherthe early consequencesor the late consequences ofrape. Among the examples
of early consequencesthat the Respondent wantedto be proven are the following:
Iinjuriesof thevaginaorthe rectum aresultof coerciveinsertionof objectsintothem,sexually
transmittedisease(...)[Counter-Memonal,p. 60-61, para. 1.3.4.3.].
Amongthe examples of late consequencesfor which the Respondent wanted the
Applicantto provide substantialevidenceare the following:
Iin men:therehave tobe scarsonthepenisorscrotum,testiclesatrophy,changeson theseminal
dua and prostategland, includingsterility;inwomen:scarsontheexteriorgenitalorgans,vagina
orutcrus(...nipplenecrosisandother scarsi;nbothsex:fissureof theanusandfissureof the anal
sphincterchangeson therectum, damagedmucousmembrane and vasculartissue,et(...)If
[ibi 1. .
These areunfortunatelyconsequences thatquite fiequently follow fkomrape,
especiallywhen performed as gang-rape.However,the absence ofthis type of
evidence can not serve as "proof' that the assaultnever took place:
"Sexualtortureis deeplytraumatic, althotmay leave noobviousphysical traces[Dragica
Kozaric-Kovacicand others, "Rape,Torture and Traumatizationof Bosnian andReply of Bosnand Henegovina
Croatian Women: PsychologicalSequelae,Amer.J. Orthopsychiat.,65(3), July
1995,p. 432-33, Annex 781.
Besidesthe fact that the Respondentseems unable to understand thatrape can be
proven through evidence of the commissionof the act, and neednot additionallybe
confirmed by proof of details of injuries and other consequences,which although
fiequent do not necessarilyaccompanyrape or sexual violence, and which moreover,
are not alwaysvisible. The latter is, of course, particularlytrue for trauma and other
psychologicalconsequencesof rape. Also, the Respondent seems unable to
understand that"proof' of the kind which the Respondent - wrongly - requires, is
often impossibleto provide because of the passage of time.
36. For al1these reasons, the Applicantcontendsthat it is not necessary toprovide
evidenceof physical injuriesor of specific consequencessuch as pregnancy, in order
to prove rape -although they can help ascertain rapewhen their existence is
established- and, for that matter, to prove thatrape under the circurnstances
constitutesgenocide, because the acts of rape and sexual assault have followeda
clear patternfiom which the existenceof an intent to destroythe non-Serbgroup is
to be deduced, as will be demonstratedabove.
3. Rape and sexual violence havebeen committedon Muslimsof al1gender and
ages
37. The various authoritativeinternationalbodies of inquiry orjudgment, which have
investigatedor adjudicatedviolationsin the former Yugoslavia,have consistently
insisted on the fact that the acts of rape and sexualviolencethat have been reported,
have been committed in their ovenvhelmingmajority against non-Serbs, and among
those mainly against Muslims.
38. Rapes and sexual assaultsof non-Serbsare includedin many indictmentsof the
InternationalCriminal Tribunal for former Yugoslavia. In several cases, these
indictmentshave been reviewedby a Trial Chamberof the ICTFY; in some cases,
decisions havebeen adopted by theICTFY:
- Indictment, Prosecutorv. Dragan Nikolié& others, CaseNo. IT-94-2-1,4 Nov.
1994;
- Indictrnent,Prosecutorv. Meakié & others ("Ornarskacamp"), CaseNo. IT-95-
4-1, 13Feb. 1995;
- Indictment, Prosecutorv. DuSkoTadié,CaseNo. IT-94-1-T, 13Feb. 1995; Chapter7-Section3
Rape and sexualviolence have beencommitted
on Muslimsof al1gender and ages
Indictment, Prosecutorv. Sikirica & others ("Keraterm camp"), CaseNo. IT-9
6-8-1,25 July 1995;
- Indictment, Prosecutorv. MiljkoviC & others ("BosanskiSamac"), CaseNo.
IT-95-9-1,25 J~ly 1995;
-
Indictment, Prosecutorv. KaradZiCand MladiC,CasesNo. IT-95-5-R61 and IT-
95-18-R61, 25 J~ly 1995;
-
Indictment 3, Amended, TadiC & Borovnica, Case No. IT-94-1-T,1 Sept.
1995;
- Trial Chamber,Review of the Indictmentpursuant to Rule 61 of the Rules of
Procedure and Evidence, Prosecutor v. Dragan NikoliC & others, CaseNo. IT-
94-2-R61, 20Oct. 1995;
- Indictment, Prosecutorv. KaradZiCand MladiC,CasesNo. IT-95-5-R61 and IT-
95-18-R61, ICTFY,Indictment, Prosecutorv. GagoviC & others ("FoEa"),Case
No. IT-96-23-1,26 June 1996;
- Tnal Chamber,Review of the Indictmentpursuant to Article 61 of the Rules of
Procedure and Evidence,Prosecutorv. KaradZiCand MladiC,CasesNo. IT-95-
5-R61 and IT-95-18-R61, 11 J~ly 1996;
-
Trial Chamber,Prosecutorv. DuSkoTadiC,CaseNo. IT-94-1-T, Opinion and
Judgrnent,7 May 1997;
- Indictment, Prosecutor v.Drljaea & KovaEeviC,CaseNo. IT-97-24-1,13Mar.
1997.
Of al1these authorative documents a few relevant illustrations willbe deducted
below.
39. In the Indictment of GagoviCand others ("FoCa"),it is stated that:
"~he Serb forces separated men and womenand unlawfully confinedthousands of Muslims and
Croats in various short and lodetention facilities or kept thern under constructive house
arrest. During the arrest, many civilians were killed, beaten andsubjected to sexual assault (...)
Muslim women, children and the elderly were detained in houses, apartments and motels in FoEaor
insunounding villages, ascBuk Bijela, FoHighSchool and Partizan Sports Hall,
respetively. Many of the detained women were subjectedto humiliating and degrading conditions
oflife, to brutal beatings and to sexual assaults, i[ICTFY,Indictment,
Prosecutorv. Gagovié & others("Foëa'i),Case IT-96-23-1, 26June 1996,p. 2,
paras. 1.2., 1.4.1.ReplyofBosnia andHerzegovina
40. In the Decision of the Trial Chamberunder Rule 61, after the Indictmentof KaradZi6
and Mladié,it is stated that:
"Sexual assaults occurred in several regions of Bosnia and Herzegovina (...) the victims were
mainly 'non-Serbian' civilians,the vast majority being." [ICTFY,Trial Chamber,
Review of the Indictmentpursuant to Article 61 of the Rules of Procedure and
Evidence, Prosecutor v.Karad22 andMladie,CasesNo. IT-95-SR61 and IT-
95-18-R61, 11 July 1996,p. 35, para. 641.
More details on the legal conclusions reachedin this case willbe given below.
41. The same conclusionshad appearedbefore in the Reportof the Commission of
Experts:
"251. Rape has been reported to have been cornmittalsides to the conflict. However, the
largesnumber of reported victims havebeen Bosnian Muslims, andthe largest number of alleged
pcrpetrators have been Bosnian Servnited Nations,FinalReportof theUnited
NationC sommissionofExperts,S/1994/674(Vol. 1),27 May 1994,p. 60,para.
2511.
42. The same picture appears in this Report, when it examinesthe occurrencesof rape
andsexual assault on a region by region basis: for example,when the region of FoEa
and Kalinovik was taken over there are reported:
"63 incidents of rape and sexual assaul28(of which contain direct testimony from the alleged
victims. Most reports specifically identify thasBosnian Muslim,and many reports imply
that the victims may be Bosnian Muslim,either through the events desbyithe name of the
victim" [United Nations, FinalReportof the UnitedNationsCommissionof Chapter 7-Section 3
Rape andsexual violence have been committed
on Muslimsofailgender and ages
Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994Annex IX, "Rape and
Sexual Assault",p. 26, para. 104;see also ibid. p. 30,para. 1241.
43. The sarnekind of picture again is found in the region of Prijedor, taken over by Serb
forces in April 1992, as described extensivelyearlier in this Reply [Reply,Chapter 5,
Section 71.The Commission of Experts has found 178reports of sexual assaults:
"~inety four of these reports are in the form of testim84yare second-hand reports. The
alleged perpetrators are descnbed pnmanly as Serbian. Some are described generally as Cetniks,
and some as Serbs from Serbia (...) The victirns are descnbed pnmanly as Bosnian ~uslim"
[UnitedNations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994Annex IX, "Rape and Sexual
Assault",p. 39, para. 1741.
44. Of the many exarnplesthat can be given of these statisticsof sexualhorror, another
concerns the region of Visegrad,when it was taken over by the Serbs in May 1992.
At least 33 reports containingallegationsof rape have been made.
"Several of these reports are general allegations of mass rape in the ViSegradarea, while others are
more detailed testimonies and first hand accounts. Accordingto these reports, the ViSegradarea
was the seat of at least four facilities, includingthena Vlas, where women were
reportedly confined and subjected to regular and repeated rape. The victirnswere primarily Bosnian
Muslim women and teen-age girls. The alleged perpetrators were members of the Serb forces. The
purported incidents of rape began in the spring of 1992through Autumnpnited"
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rape and Sexual
Assault", p. 51,paras. 245-2461.ReplyofBosniaandHenegovina
Rape and sexualviolence have beencommittedprimarily onMuslim women
45. Rape andsexual violence havebeen infiictedon women of al1ages:rape and sexual
violencehave been inflicted on young teenagegirls discoveringsexuallife in such a
brutal manner, rape and sexual violence havebeen inflictedon countlessnurnbersof
newly married woman and young happymotherswhose life was suddenlydisrupted
and inexorably alteredand whose dayswill never be as they were before;rape and
sexualviolence have alsobeen comrnittedon older women, as old as 81 yeaxs,who
had to facedeath with the burden of this last indecentoffence.Whatevertheir age,
al1the raped women wereconfionted withvery often irreparabledamageto their
flesh,theirminds and their feelings.
46. The fact that Muslirn womenwere the main target of sexualviolenceis also the
conclusionreached by the SpecialRapporteur Mazowiecki:
%ape of women, includiminors,hasoccurredona largescale.Whiletheteamof medical
experts has fovictimsamongal1ethniegroupsinvolved inthe conflict,themajorityof the
rapesthatthey[theteamof medicalexperts]havedocumehavebeencornmitteby Serbforces
againstMuslim womenfromBosniaand~erzegovina.[United Nations,Situationof
HumanRights inthe tenitory of theformer Yugoslavia, Report submittedby
Mr. TadeuszMazowiecki,Special Rapporteur of the Commissionon Human
Rights,E/CN.4/1993/50, 10 Feb. 1993,p. 19,para. 84;see alsoibid., Annex II,
p. 72, para. 591.
47. AmnestyInternational alsofound that Muslimwomenwere the main target of sexual
violence: Chapter7- Section 3
Rape andsexual violence have been committed
on Muslinasof al1gender and ages
"~mnesty Internationalbelieves that abuses against women, includingrape, have been widespread
in the conflict in Bosnia-Herzegovina,that al1sides have cornmittedthese abuses, but that Muslim
women have been the chief victims and the main perpetrators have been members ofrmed
forces"["Bosniaand Herzegovina: Rape and Sexual Abuse byArmed Forces",
AmnestyInternationalReport, AI Index: EURl63/01/93,Jan. 1993,p. 1, Annex
771.
48. The same analysis pointingto an ovenvhelmingpredominanceof Muslim women
among the victims is made by the Secretary-Generalof the United Nations. Inhis
Report of 4 August 1995entitled "Rape and abuseof women in the areas of armed
confiict in the formerYugoslavia",he states in the concludingremarks:
"63. (...) Available information indicates that rape has been cornrnittedby al1sides to the conflict.
However the largest number of reported victims have been BosnianMuslims and the largest
number of alleged perpetrators have been Bosnian [United Nations,Rape and abuse
of womenin the areas of armed conficts in theformer Yugoslavia,Report of
theSecretary-General, N501329, 4 Aug. 1995,p. 17,para. 631.
It is worthwhile noting that the SecretaryGeneral issuedthis report towards the end
of the war, thus having been able to assessmuch more evidence,reports and other
sourcesthan, for exarnple,the Commission of Expertsor, for that matter, the
Applicant whenit submittedits Memorial in April 1994.
49. The fact that rape has most often been performedin public, so that endless shame
rests on the raped woman, her family and her community,has been extensively
reported.
It has, forexample, been reported by one victim-witnessinterviewed by the
Commissionof Experts that she "saw an elderlywoman and others raped in fiont of
a group of 100 detainedvillagers" [United Nations,FinalReport of the United
Nations Commission ofExperts, SI19941674(Vol. 1),27 May 1994,p. 58, para.
2461;
it is reported that in May 1992,20 soldiersraped a woman in fiont of her child
[UnitedNations, LetterDated 22 October 1992from thePermanentRepresentative
of the United StatesofAmericato the United NationsAddressedto the Secretary-
General,Sl24705, 23 Oct. 1992,p. 131;
it is stated that in other occurrences,several female members ofthe same family
were raped in fiont of each other, that a daughterwas raped in fiont of her father; it
was also stated that "an 18 year old Muslim girl was raped (...)for five nights (...)
the 'cetniks" forced the victim's father to watch as they rapedher." [United Nations,Reply ofBosniaandHenegovina
FinalReport of the UnitedNationsCommissionof Experts,S/1994/674/Add.2(Vol.
IV), 28 Dec. 1994, Annex VIII, "PrisonCamps", p.349, para. 29091;
it is further reported that in Trapare, near Sarajevo,a twelve year old girl was raped
for an hou. in fiont of her father [US Departmentof State, Bureau ofPublic Affairs,
Dispatch, 28 Dec. 1992,Vol. 3, No.52, p. 920, Annex681;
it is also reported that in Kozamsa, a fourteenyear old girlwas raped in fiont of her
father's eyes [UnitedNations, LetterDated 5 March 1993j7om the Permanent
Representativeof Austria to the United NationsAddressedtu the Secretary-General,
Sl25377, 6 Mar. 1993, p. 111,it is specified that theinformation given in the letter is
based on eye-witnesstestimoniesby Bosnian-Muslims,made directly availableto the
Austrian authorities];
three men in military police uniformswere reportedto have broken into a Muslim
home and put guns into the mouthsof a sevenyear old boy and his father, while one
of them raped the mother at gunpoint in the next room [United Nations,Situationof
HumanRights in the tem'toryof theformer Yugoslavia,Fifthperiodic report
submittedby Mr. Tadeusz Mazowiecki,SpecialRapporteurof the Commissionon
HumanRights, ElCN.411994147,17Nov. 1993,p. 5, para. 251;
this point has also been emphasisedby AmnestyInternational: "Thehumiliationis
often reinforced by carrying out the acts in fiont of others, sometirnesincludingmale
relatives of theictirn" ["Bosniaand Herzegovina: Rape andSexual Abuse by
hed Forces, Amnesty International Report, AI Index: EUR/63/01/93,Jan. 1993,p.
5, Annex 771.
Rape and sexual violencehave also been committedon Muslimchildren
50. Rape and sexual violencehave alsobeen committedon children. Rapehas been
committedon little girls whojust openedtheir eyes on life, as young as fou to
seven.In his Sixth Periodic Report, theSpecialRapporteurconfirms the existenceof
sexual abuse of children:
"TheSpecialRapporteuhaslearnedof childrenandtheirmothersbeingbeatenin a BosnianSerb
detentioncentrenearZvomik.Theeventstookplacein 1992andinvolvedpersonsfromanarea
nearCerskawhohadbeendetainedinKarakaj,andtheninBatkoviccampnearBijeljina.The
accountindicatesîhatchildrenasyoungas fouroldwerebeatenandsexuallyabused."
Pnited Nations, Situationof HumanRights in the tem'toryof theformer
Yugoslavia,sixthperiodic report,submittedby Mr. TadeuszMazowiecki,
Special Rapporteurof theCommissiononHumanRights,E/CN.4/1994/110,21
Feb. 1994,p. 35, para. 2261. Rape andsexual violence have been committed
on Muslimsof al1gender and ages
51. It is also reported by the Departmentof State, thatin theesliCarea, sixty women
and girls asyoung asten were rapedover four months, every night, [UnitedNations,
Letter Dated 9 March 1993fiom the Permanent Representativeof the UnitedStates
of America to the UnitedNations Addressed to theSecretary-General, Sl25393, 10
Mar. 1993,pp. 16-17].
52. In the Report ofthe Commissionof Experts there are many allegationsof rape of
children.For example, in the region of Banja Luka , witness stated that"she saw a
camp guard rape a seven year old girl in fiont of her mother and other inmates. The
girl died fiom her injuries" [United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rape
and SexualAssault",p. 14, para. 331.It is also reported that in the Sekovi~icamp,
"300 BosnianMuslim women were raped in this camp, and somevictims were as
young asseven" [ibid., p. 49, para. 2291.
53. In the Trnopolje camp, one report of an incident describesa young girl of fourteen
years old being raped vnited Nations,Letter Dated 5 March 1993fiom the
Permanent Representativeof Austria to the UnitedNations Addressed tothe
Secretary-General, Sl25377,6 Mar. 1993,p. 391.Countlessother examplescan be
found in each and everyoneof the official reports.
Sexualviolencehas also been committedon MuslimmenReplyofBosniaandHenegovina
54. Menwere not immune fiom sexual violence. Sexual assaults against men took
mainly two forms: one is coerced sexual activity with othermen, the other is
aggressionagainst their virility, which will be deait with later.
55. As far as coerced sexual activitybetween men is concemed, there are severalreports,
which show undoubtedly that these types of acts havebeen committed.It must be
statedhere that they are just as condemnableas rape and coerced sexualactivity on
women. It is true that sexual violence againstmen less often discussedin the context
of humanitarianlaw than rape and sexualtorture of women. One reason is because
they have been less frequent. The Commission ofExpertsprovides another possible
explanation:
"violent crimes of a homosexual nature are not explicitly mentionedin international humanitarian
law. However, this is understandable as the topic of homosexuality,even today, is not discussed
fkeely. That international humanitarianlaw, insofar as it provides protection againstrape and other
sexual assaults,is applicable to men ass beyond any doubt as the internationalhuman right
not to be discriminated against(in this case on the basis of sex)ow derogationl'
[United Nations,Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2(Vol. 1),28 Dec. 1994,Annex II, "Rape and Sexual Assault:
A Legal Study", p. 11, note 41.
56. It can be inferred that, if acts of rape on women cm, - in certain circumstances
presentedhere and demonstratedand legally qualified below - be analyzedas
genocidal acts,the same holds true for acts of sexualviolence against men, which
cm also constitute, in certain circurnstances, acts of genocide. The sexuav liolence
againstmen fell inside the same policy of ethnicpurification as rape and sexual
violence against women.
57. The existenceof acts of sexual violence againstmen has been assertedby the Trial
Chamberin the cases of KaradZiCand Mladii. After the descriptionof the extensive
rape policy against women,the Trial Chamberadded:
"On a smaller scale, mamen were alsovictimof rapeandsexual assaultby the Serbian forces."
[ICTFY, Trial Chamber,Review of the Indictmentspursuant to Rule 61 of the
Rules of Procedure andEvidence,Prosecutor v. KaradZiCand MladiC,Cases
No. IT-95-SR61 and IT-95-18-R61, 11 July 1996,p. 7, para. 131.
58. Quite often, prisoners in the camps were forcedby Serb perpetrators,under threat of
death or torture, to perform sexuai actson otherprisoners in the camps.The United
States reports that inMay 1992,in the five detentioncentres in the region of Chapter7-Section4
Rape andsexual assaultshave been committedeverywhere
Bosanski Samac, many prisoners were forced toperform sex acts on fellowprisoners
[UnitedNations, Letter Dated 5 November 1992fiom the PermanentRepresentative
of the United Statesof Americato the United NationsAddressed to the Secretary-
General, S124791,10Nov. 1992,p. 161.This is not an isolated incident: other
reports to the same effect can be found,for examplein the region of Kotor Varos,
where 100men were detainedin a factory during eight days and forced to perform
sex acts on one another. [United Nations,Letter Dated 7 December 1992pom the
Deputy Representative of the United StatesofAmericaAddressed to the Secretary-
General,SJ24918,8 Dec. 1992,p. 121.
59. Numerous reports of sexual assaultstowards men can also be found in the Report of
the Commissionof Experts. For example,it is statedthat in Omarska camp, "Male
prisoners were forced to rape women and each other." [United Nations,FinalReport
of the UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol. V), 28 Dec.
1994, Annex IX, "Rape and SexualAssault",p. 40, para. 1791.
4. Rape and sexual assaults havebeen committed everywhere
60. Rape and sexual assaults againstMuslimwomen, children and men have been
committed everywherein Bosnia and Herzegovina,in custodialas well as in non-
custodial settings; theyhave been committedal1over Bosnia and Herzegovina in
geographicalterms, in non-contiguousareas, using the same methods. In other
words, rape and sexual assaultshavebeen committed outsidethe camps, whereReplyofBosnia andHenegovina
recourseto rape was systematicwhen Serb forces enteredvillagesthey had
conquered,as well as insidethe camps,where thephenomenonwasthe most
massive.
Rape andsexualassaultshave beencommittedoutsidethe camps
61. In general, rapeswere partof the patternof attack of a village or city: either rapes
were committed beforethe attack,in order to demoralisethe BosnianMuslims,and
push them to flee, or at the moment ofthe attack itself, for theamereasons. This
has happenedin countlessinstances. Mrs. ChristineCleiren,a professorof criminal
law andprocedure in the Netherlands anda member of the Commission of Experts
declaredto the ICTFY,in an amicuscuriaepresentationon rape and sexual violence
duringthe Hearings in the KaraaiC and MladiCcasesthat "the information the
Commissionhad on sexual violencein Bosnia-Herzegovinaindicatesthat this
practice was widespread.Over 80 cities and villages are alleged to havebeen the site
of rape." [ICTFY, Trial Charnber, Prosecutorv. KaradZiC andMladiC,CasesNo. IT-
95-5-R61 and IT-95-18-R16, TestimonyCleiren,2 July 1996,p. 11,Annex 791.
The Trial Chamber,then, establishedin the casesof Karad2iCand MladiC,that
"Sexualassaults werecommitted by individualsor groupsbefore the conflictbroke
out, in the context ofooting and intimidationof the population"[ICTFY,Trial
Chamber,Reviewof the Indictmentspursuantto Rule 61 of the Rules of Procedure
and Evidence, Prosecutorv. KaradZiC and MladiC,CasesNo. IT-95-5-R61and IT-
95-18-R6 1, 11 July 1996,p. 34, para. 641.
62. Rape was clearly used as a tactic, linkedwith military attacks. Onmany occasions
before the Serbforces attackeda village, a womanwas raped and sent back to her
family sendingthe message: "if the family does not leave,soldierswill corneback to
rape her and other women in her family".This is a basic schemeof intimidation.
But, rape occurred even more during the attacks.Thus, for exarnple,during the
attack on Liskovac,on 1 July 1993, it is reportedby the Special Rapporteur
Mazowieckithat:
"81.(...12men,somein uniform,brokeinto a Muslimhome,eat theresidentsanddestroyed
theirbelongings.An 80-year-oldndmothmwhoprotested washotthroughthehead,aswere
thewomanof thefamily.The l&year-oldgranddaughterasthenrepeatedlyrapeAta
neighbourinhousethe 12menbeatandshottheMuslimowner,beatandrapedhis 27-year-old
wife andshothermotherdeadandthrewherinto theStreet.([United Nations,Situation
of HumanRights in the temitoryof theformer Yugoslavia, Jifthperiodic report
submittedby Mr. TadeuszMazowiecki, Special Rapporteuo rf the Commission
on HumanRights,E/CN.4/1994/47,17Nov. 1993,p. 12,para. 811. Chapter 7-Section 4
Rape andsexualassaultshave beencommitted everywhere
63. Rape has occurred in al1places. Apparently, there existedno safe haven, where
women would be protected fiom rape and the fear of rape, not evenhospitals or
medical convoys. As stated in the last Mazowiecki Report onthe fa11of Srebrenica:
"1n another confirmed case, the 19-year-old victimwas raped on her way to the confrontation line
as part of a medical convoy. (...) It was reported that another woman, who had been working as a
medical assistant on the bus, was taken off. She was absent for some hours and retumed in a very
distraught state, stating that she had been raped by three Bosnian S[Uniteddiers."
Nations, Situationof HumanRights in the tenitory of theformer Yugoslavia,
final periodic reportsubmittedby Mr. TadeuszMazowiecki,Special Rapporteur
of the Commissionon HumanRights,E/CN.4/1996/9,22 Aug. 1995,pp. 10-11,
para. 451.
64. With regard to the attack on Zvornik, the Commission ofExperts compiled 35
reports of rape. The incidents reportedby the Commissioninclude the following:
"ln May of 1992,Serb forces attacked the area of Zvomik. In conjunctionwith the attack, women
in the billagcs of Kostijarevo and Drinjaea were allegedlyraped 35men were killed in
fighnng.Another report Statesthat a 12 yegirlwas raped and strangled in SalihoviCi,
~vorni~."United Nations,FinalReport of the United Nations Commission of
Experts,Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rape and
Sexual Assault", p. 54, para. 2601.Replyof Bosnia and Henegovina
Rape and sexual assaults have been evenmorefiequent inside the camps
65. Section 5 of Chapter 5 of this Reply elaborateson the horrendous practices inthe
detention camps run by the Serb side. That Sectionalready containsmany references
to the rape policy conductedin these camps. Rapeand sexualassaulthave, indeed,
been even more fiequent inside the detention camps,or other confined places,than
they have been outside. The fact that sexual violencewas fiequent and systematic,
against women and men,in confinedplaces has been assertedby the Trial Chamber
in the cases of KaraaiC and MladiC,which has considered thatthe followingfacts:
"are demonstrated both fiom the material submittedby the Frosecution in support of the
indictments and fiom the documents and testimony presented during the [ICTFY,s"
Trial Chamber,Review ofthe Indictrnentspursuant to Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. KaradZiCand Mladié,CasesNo. IT-95-
5-R61 and IT-95-18-R61,11 July 1996,p. 6, para. 101.
These are some of the facts that the ICTFY considered tohave been proven by the
evidence before it:
"~nsidethe camps or at otherplaces, many of the women and girls being detained were
systematicallyraped ancilorsubjected to other forrn of sexual assault by Serbian soldiers and police
or by their agents with the consent and complicitofficiaof the detention units. Some of
the camps were nothing lessan 'specialized centres' forthe rape of w[ibid., p. 7,
para. 131.
66. Rapes have been reported in many detentioncamps: Omarska,Mrakovica, Tmopolje
and Keraterm in the region of F'rijedor,as well as Luka camp near BrCkoand so on. Chapter 7- Section4
Rape and sexual assaults have been committedeverywhere
Many of these camps have been listedin the Indictmentsof KaradZiCand MladiC,
and Review of the Indictmentunder Rule 61 by the Trial Chamber,with thename of
their respective commander:
"~he non-Serbian men and women (...) were separated and then intemed in detention facilities (...)
Among the camps (...): Omarska (Commander: ieljko MeakiC);Keraterm (Commander:Duiko
Sikirica, Trnopolje (Commander: SlobodanKuruzoviC);Luka (Commander: Goran JelisiC);(...);
SuSica(Commander: Dragan NikoliE); KP Dom FoEa,which was one of the largest prison facilities
in theformer SFRY (Commander: Milorad ~rnojelac)" [ICTFY,Trial Chamber,Review
of the Indictmentspursuant to Rule 61 of the Rules of Procedure and Evidence,
Prosecutor v. KaradZiCand MladiC,CasesNo. IT-95-5-R61 and IT-95-18-R61,
16 Nov. 1996, p. 31, para. 601.
As a matter of fact, during the Hearingsin the KaradZiCand MladiCcases, Mr. J.
Ralston,fi-omthe ICTFY Prosecutor's Office,where his duties have involved the
responsibility for overall CO-ordination of investigations in relationto Karadnéand
MladiC,when called as a witness and interrogated,explainedclearly the way in
which the strategywas organised:
"~uestion: Mr Ralston, you mentioned earlierthat the Office of the Prosecutor has conducted in-
depth investigationsin certain municipalities. Canyou identi@these municipalities?
Answer: Sarajevo, Foi%,Bosanski Sarnac, Vlasenica, BrEkoand Prijedor.
Q: Can you inform the court what the strategic significance of these municipalities is?
A: Yes,1can (...). Firstly, the municipalities ofFoëa, Bosanski Samac, Vlasenica, Brëko and
Pnjedor al1had substantialnon-Serb majority population (...) For each of these municipalities,in
addition to being predominantly non-Serb surrounded by controlled areas, they were also
particularly important because of the transport thoroughfaresthat went through them.ReplyofBosniaandHerzegovina
Q: Mr. Ralston1would like nowto turn to another featureof the patternthat you have identified
in the municipalitieswhere the Prosecutorhas conductedinvestigations,and that is the separation
of men from women. Can youexplainthat feature?
A: Yes (..1have mentioned beforein my testimonythat men were separatedfrom women. The
men once they were separatedwere takento detentionfacilitieswhere theywere held forweeks,
months and even years..The women werealso often placedin detentionfacilities for various
periods of time. In these facilities,they wereoften subjected to persistentrape and sexual assault
by camp officialsand guardsand soldiersand onoccasioncivilianswho cameinto the facilities
(...)[ICTFY, Trial Chamber,Prosecutor v. Karadziéand Mladié,CasesNo.
IT-95-5-R61, and IT-95-18-R61,TestimonyRalston, 28 June 1996, p. 62 and
76, Annex 801.
68. The GagoviCand others ("FoCa")Indictment givesa good picture of the nature of the
overall policy of rape and sexual violence that hasbeen conductedin Bosnia and
Herzegovina.The charges against the eight accused,for their own behaviour as well
as the behaviour of their subordinates,becausethey knew or had reasons to know
that the latter sexuallyassaultedMuslimwomen, are the following:
Counts 1-12: Torture and Rape at Buk Bijela;
Counts 13-28: Torture and Rape at FoCaHigh School;
Counts 32-35: Torture and Rape of FWS-48 at Partizan Sport Hall;
Counts 36-55: Torture and Rape of FWS-48, FWS-50,FWS-75, FWS-87, FWS-95
and other women at Partizan SportHall;
Counts 56-59: Enslavement andRape of FWS-75, FWS-87and seven other
women inKaraman'sHouse;
Count 60: Rape of FWS-75 and FWS-87 andtwo other women;
Counts 61-62: Enslavement and Rapeof FWS-75 and FWS-87 in the Brena
Apartment [ICTFY, Indictrnent,Prosecutor v. Gagovié & others
("FOCa'y, CaseNo. IT-96-23-1,26 June 19961.
As a matter of fact, al1of the GagoviC & others Indictmentcould be cited here. The
Governmentof Bosnia and Herzegovinawill just cite short extracts, sufficientto give
an idea of the dimension of the rape policy performed againstMuslim women by the
Serb forces.
69. Count 1 to 12 relates to torture and rape at BukBijela:
"Buk Bijela refers to a settlementon a hydro-electricdam constructionsite on the road fiom Brod
to Miljevinaby theiver Drina whichwas îumed into a localmilitaryheadquartersand barracks for
Bosnian Serb forcesand paramilitsoldiersafter tApril1992take-overof FoCaandthe
surroundingvillage(...)
On 3July 1992,soldier(..arrested a group of at least 60 Muslim women,children and a few
elderlymen (...andtook them to Buk Bije(...The soldiersseparated thewomen from their Chapter 7- Section4
Rape and sexualassaults have been committedeverywhere
children. GOJKO JANKOVIC, JANKO JANJIC, DRAGAN ZELENOVIC and ZORAN VUKOVIC
interrogated the women. (...) The accused threatened the women with murder and sexual assault if
they lied. JANKO JANJIC and DRAGAN ZELENOVIC and other soldiers acting under the control
of GOJKO JANKOVIC gang-raped, several women dunng or imrnediatelyafter the interrogation
who they suspected of lying. (...)
A witness code named, FWS-75, wasinterrogated by GOJKOJANKOVIC and DRAGAN
ZELENOVIC about her village (...) DRAGAN ZELENOVIC wamed the witness not to lie,
otherwise she would be raped bysoldiers and killed afterwards. As FWS-75 did not answer the
questions sufficiently, a soldier took her to another room. There, at least ten unidentified soldiers,
raped her, inurn. The nature of the rape included vaginalpenetration and fellatio. FWS-75 lost
consciousnessafter the tenth soldier sexually assaultedher. The episode of sexual assault lasted
between one totwo hours.
(.--)
A further witness, FWS-48, was interrogatedby JANKOJANJIC in a room at Buk Bijela. During
the interrogation, JANKO JANJIC forcibly undressedher. When FWS-48 tried to resist, he slapped
her andpushed her and threatened to bnng in ten soldiersto rape her. JANKO JANJIC then raped
FWS-48 by vaginal penetration.
A fourth witness, FWS-74, was led by JANKO JANJIC to a room to be interrogated in the
presence of an unidentified soldier. Dunng the interrogation,JANKO JANJIC instructed FWS-74 to
undress. At that moment, the other soldier asked JANKOANJIC to leave the room. After JANKO
JANJIC had left, the soldier undressed FWS-74. Dunng a penod of about twenty minutes he raped
herby vaginal penetration".[ICTFY,Indictment,Prosecutor V. Gagovii & others
("FoCali)C , aseNo. IT-96-23-1,26 June1996,p. 6-7, paras.5.1, 5.2, 5.3, 5.4,
5.5, 5.71.
70. Count13 to28 concerntortureandrapeatFoCaHighSchool:
"~unng the occupation that followed the take-over of the town of FoEa,the FoCaHigh school,
situated in theadZaarea, functioned as barracks for Serb soldiers, and as short term detention
facility forslim women, children and the elderly.
(-1
Many of the female detainees were subjectedto sexual abuse during their detention at the FoCa
High School. (...) Among them were witnessesFWS-50, FWS-75, FWS-87, FWS-95, FWS-74 and
FWS-88, as set forth below. The soldiersthreatened to kill the women or the women's children if
they refused to submit to sexual assaults.Women whodared to resist the sexual assaults were
beaten.
(.-el
Between or about 8 July and about 13 July 1992,(...) FWS-95 was sexually assaulted in different
classroomsin the FoEaHigh School. Because she had previously been beaten and threatened when
sexually assaulted,WS-95 dared not resist the soldiersagain. She was raped on numerous
occasionsby many perpetrators (...) (vaginal and anal penetration and fellatio).
(m.-)
On or about 8 July 1992,JANKO JANJICtook FWS-88 to an apartment in the Brena block.
There, during the whole night, he raped her repeatedly (vaginal and anal penetration and fellatio).
As she was a virgin before these acts, FWS-88 experiencedterrible pain dunng the rape."
[ICTFY,IndictrnentP , rosecutorv. Gagovid& others('%oCali)C , aseNo. IT-
96-23-1,26 June1996,p. 8-10, paras.6.1,6.4, 6.11, 6.131.Reply ofBosniaandHenegovina
71. The Trnopolje camp was one of the places of detentionwhere thehighest number of
rapes and sexual assaultsoccurred,as many women were detained there. This was
explainedand referred to in the ûpinion and Judgment in the TadiCcase:
"~ecause this camp housed the largest number andwgirls, there were more rapes at this
camp than at any other. Girls between the age19owere at the greatest risk. During
evenings, groups of soldiers would enter the camp, take out their victims fiom the dom building
and rapehem. Another prisoner, Vasif Gutic, who had medical training, was assigned to work in
theedical unit at Tmopolje and testified to the extensive rapes that occHered at the camp.
ofien counselledand treated victims of rape, the youngest girl being[ICTFY,rs of age."
Trial Chamber,Opinion and Judgment,Prosecutor v.Duiko Tadié,CaseNo.
IT-94-1-T, 7May 1997,p. 64, para. 1751.
72. The Commissionof Experts found:
"70reports (...) describing rape and sexual assault at T[United Nations,Final
Report of the United NationsCommissionof Experts, S/1994/674/Add.2(Vol.
V), 28 Dec. 1994,Annex IX, "Rapeand Sexual Assault",p. 40, para. 180; see
also fora great number of reports of rape by witnesses: United Nations,Letter
Dated 5 March 1993fiom the Permanent RepresentativeofAustria to the
UnitedNations Addressed to the Secretary-General, S/25377, 6 Mar. 1993,pp.
39, 421.
73. In the Ornarskacamp, sexual violencehasbeen used both on women and men. As
stated inAnnex LX of the Reportof the Commission of Experts: Chapter7- Sectio4
Rape andsexualassaultshave beencommittedeverywhere
ale prisoners were forced to rape women and each othe[UnitedNations,Final
Report of the UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol.
V), 28 Dec. 1994,Annex IX, "Rape and Sexual Assault", p. 40, para.1791.
74. In the TadiCcase, the Trial Chamber establishedthat:
"~omen who were held at Omarska were routinely called out of their rooms at night and raped.
One witness testified that she was taken out five times and raped and after each rape she was
beaten."[ICTFY,Trial Chamber, Opinion andJudgment,Prosecutor v. DuSko
Tadit, Case No. IT-94-1-T, 7 May 1997,p. 62, para. 1651.
75. In the Indictment of MiljkoviCand others ("BosanskiSamac"),a suspectis charged
with an act of sexualviolence, and his superior also indictedfor having failed to take
the necessary and reasonablemeasuresto prevent such an act or punish it. The
Indictment describes such sexual assault onmen committedin the city of Bosanski
Samac :
"On or about 13 June 1992 in the hallway of the Bosanski Samac SUP building, Stevan
TODOROVIC forced Witness A and WitnBsto perforrn sexual acts upon each other in the
presence ofeveral other prisoners and g[ICTFY, Indictment,Prosecutor V.
Miljkovit & others ("BosanskiSamac'i),CaseNo. IT-95-9-1,21 July 1995,p.
8, para. 311.ReplyofBosnia andHenegovina
76. Someplaces were exclusively devotedto detain and rape women.These places have
become to be known as rapeldeathcamps, definedin the followingway by Beverly
Allen:
"~apeldeath camps are buildings where Bosnian-Herzegovinianand Croatian women and girls are
kept and systematicallyraped for weeks or months at a time by Serb personnel fiom the Yugoslav
Amy, irregular Serb soldiers, Cetniks, and even civilians.The rapeldeath camps are restaurants,
hotels, hospitals, schools, factones, peacetime brothels, or other buildings;mal
stalls in barns, fenced-in pens, and arenas. Testimony indicates thatthirty such rape camps have
been or are currently in use."rly Allen,Rape Wafare, &esota, 1996,p.
651.
Among those, have been citedthe notorious Sonja caféoutside VogoSka,the
"Partizan"Sport Centre in FoCa[United Nations,LetterDated 22April 1993from
thePermanentRepresentativeof the UnitedStatesofAmericato the United Nations
Addressedto the Secretary-General, Sl25586, 13Apr. 1993,p. 20; and ICTFY,
Indictment, Gagovié & others("Fota'i),Case No. IT-96-23-1,26 June 19961;
"Westphalia"coffee house near Stolina,a coffeehouse near Skijana and a private
house in Grace bted Nations, Situationof HumanRights in the territoryof the
former Yugoslavia,secondperiodic report submittedby Mr. TadeuszMazowiecki,
SpecialRapporteurof the CommissiononHumanRights,ElCN.411994147,17Nov.
1993,p. 6, para. 281;but schools also have sometimesbeen diverted fi-omtheir
normal function, as the school in SalihoviCi,where 50 to 60 teenage girls were
detained and raped [United Nations,FinalReport of the UnitedNations Commission
of Experts, Sl19941674lAdd.2(Vol. IV), 28Dec. 1994,Annex VIII, "Prison Camps",
p. 348, para.29051;also a movie theatre in Celopekwasthe location for the
enactmentof a very grim sexual scene, thatwill be described below[ibid.,p. 346,
paras. 2882-28881.This list is by no means exhaustive.
78. The Commissionof Experts also established that thecamp identified as "Mrakovica.
MountainBarracks" in the region of Prijedor was a "rape-death camp"[ibid.,p. 265,
para. 2232-22331.
79. The Commissionof Experts also foundthat:
"~here were several sites where predominantlyMuslim women were reportedlrapedbyand
SerbiansoldierOne of the sites was Velecevo prison. Another site was the 'Eetnik'headquarters
in Brod, FoEa, and another was the police statio[UnitedNations, Final Report
of the UnitedNations Commission oE fxperts, S/1994/674/Add.2(Vol. V), 28
Dec. 1994,Annex IX, "Rape andSexualAssault",p. 28, para. 1131. Chapter 7 -Section 4
Rape and sexualassaults have been committedeverywhere
In the same Report, mention is made of:
"[tlhree reports allege the existence of a camp where Bosnian Muslim women are kept for the
purpose of rape by Bosnian Serb forces in ~asen[ibid.,p. 16, para. 461.
80. In the region of Zvornik, severaldetentionplaces were also thescene of countless
acts of rape and sexual assaults:
"During their captivity, young womenwere allegedlyrepeatedly raped. One man stated that he was
raping girls 'because [they were] Muslimsand there [were]too many of [them] (...) Other reports
alleged that a camp was set up in a school in Salihovici.That camp allegedly held 470 inmates.
Reportedly, the youngest women were raped first, and then older women were raped. One report
alleges that a girl was raped in front of her family. (...) Reports also allege that Bosnian Muslim
women from BrCkowere held in a lumber factory in Carpade, Zvomik, and 40 were taken out and
raped by Arkan's troops.(...) Several reports descnbe a camp in a shoe factory in Karakaj. There a
female guard, a member of Arkan's troops,ordered men to have sexual intercourse with her. When
they refused, she shot them. One report called the factory the 'Glinica' factory, and stated that48
girls and women were raped there.[ibid., p. 54, paras. 261-2641.
Rape and sexual assaults have been committedrepeatedly
81. During the genocidalwarfare againstthe non-Serbsof Bosnia and Herzegovinarape
or sexual assault turned out not to be isolated eventsoccurringbetween one
perpetrator and one victim. consideringthe conditionsin which these acts happened.
Very often, nurnerousrapes and sexual assaultswere perpetrated at the same time by
severalperpetrators against one or severalvictims. The rapes and sexual assaults
were also often repeatedagainst thesame victim:many women stated that they had
not only experienced onerape, which is a temfjmg expenence, but were raped
repeatedly. The rapes and sexual assaults were also repeated in time: rapes and
sexualassaults occurred repeatedlythroughoutthe conflict.
82. Often, girls or women were raped byseveralmen, in a collectiveassault. Numerous
reports issued by international organisationshave repeatedly established "gang-rape"
or "gang-raping" [United Nations,Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex VIII, "Prison Camps",p.
261, para. 21971.In the TadiCcase the ICTFY established:
"1n addition, there were women who were subjectedto gang rapes; one witness testified that a 19-
year-old woman was raped by seven men and suffered terrible pains and came to the clinic for
treatment for haemorrhaging[ICTFY,Trial Chamber,Opinion and Judgment,Reply of Bosniaand Henegovina
Prosecutor v. Duib Tadié, CaseNo. IT-94-1-T, 7 May 1997,p. 64, para.
1751.
83. Gang-rapealso features in the Indictmentof Gagovié& others as a fiequent
occurrencein the FoCaHigh School:
"From the second day of their detention, every evening, groups of Serb soldiers sexually assaulted,
including gang-rape, some of the younger women and girls in the class-rooms or apartments in
neighbouring buildings."CTFY, Indictrnent,Prosecutor v. Gagovié & others
("Foc'a'y,Case No. IT-96-23-1,26 June 1996,p. 8, para. 6.41.
84. Often, the same girls or women were raped again and again, night after night. With
regards to the Tmopolje camp, an incident was recordedin which a girl was raped
12 timesby different men in one singlenight [United Nations,Letter Dated 22
October 1992fiom the Permanent Representativeof the UnitedStates of Americato
the UnitedNations Addressedto the Secretary-General,S/24705,23 Oct. 1992,p.
111.
85. This practice is well illustratedby the caseof SuadaRarnié,whose story forms an
integrated part of theTadiCJudgment:
"Suada Rami& a Muslim, testified that she was raped at the Prijedor militarybarracks. After the
rape she was bleeding tembly and went to the hospital whereshe was told by one of the doctors
that she was approximatelythree to four months pregnant and that an abortion would have to be
perfonned without anesthetic because there was none. When this doctor asked another doctorfor
assistance,the second doctorarted cursing, saying that 'al1balija women,they should be
removed, eliminated, and that1Muslims shouldbe annihilated (...)' When she returned fiom the
hospital (...) retuming to her apartment in Prijedor.. she was subsequentlyraped for a second time
by a former Serb colleague who hadome to search her apartment. The next&y she was taken to
theRijedor police station by a Serb policeman with whom she was acquainted through work. On
the way he cursed her, using ethnically derogtermsand told her that Muslimsshould al1be
killed (...) She was taken to a prison ceIl which was covered withblood and where she was raped
again and beaten, afterwards being taken to Keraterm camp (...) She was transferred to the
Omarska camp where she often saw corpses and, while cleaning rooms, she found teeth, hair,
pieces of human flesh, clothes and shoes. Women were called out nightly and raped; on five
separate occasions she was called out of her room and raped. As a result of rape she has continuing
and irreparable medical injurie[ICTFY,Opinion and Judgment,Prosecutor v.
Duiko Tadié,Case No. IT-94-1-T, 7 May 1997,pp. 167-168,para. 4701.
The Trial Chamberwent on to state:
"The testimonyof those witnesses [and one them wthewitness SuadaRamiC] is not unique and
their experiencesreflect the horror suffered by non-Serbs who were subjectedto such treatrnent
simply because their religion or politics offended those who gained control of the region. A policy
toterrorize the non8erb civilian population of opStinaPrijedor on discriminatory grounds is Chapter 7 -Section4
Rape and sexualassaults have been committedeverywhere
evident and that this implementation was widespread and systematic(...) is a[ibid.,pp.
168-169,para. 4721.
86. Anotherhorrendous ordeal of a woman referred to in the GagoviCand others
("FoEa")case as FWS-87 for the purposes of confidentialityand anonymity
exemplifiesthe pattern of violationsexperiencedby the Muslirnwomen andmay be
surnmarisedas follows:
"Only 15 year of age when she was first detained in July 1992,the Prosecutor has alleged that
FWS-87 was subjected to at least eight months of routine torture, including gang rape, and
enslavement at theands of accused (...) and countless other unidentified soldiers.FWS-87 was
first detained at the Buj Bijela complex on the Drina River on or about 3 July 1992.There, she
was interrogated by DraganELENOV~C and three unidentified soldiers, eachof whom raped her
in turn. One of the soldiers put a gun to her head as he raped her. FWS-87 suffered severe pain
during the attack, followed by heavy vaginal bleeding. Between 3 and 13 July 1992,FWS-87,
together with at least 72 other Muslim inhabitantsof FoEa,was transferred to FoEaHigh School.
FWS-87 was one of several women who, from the second dayof their detention, were sexually
assaulted, including gang rapedry evening, by groups of soldiers, either in the class-rooms or in
nearby apartments(...On or about 6 or 7 July 1992,FWS-87 was raped by WKOVIC while
other detained women were simultaneouslyrapedin the same room. Between 8 and 13 July, the
accused Dragan ZELENOVIC led a group of soldiersthat sexually abusedFWS-87 and another
young woman at FoEaHigh School on at least five occasions additional to theone described above.
During the same period, FWS-87 was taken ffom FoEaHigh School to a nearby apartment(...) on
at least five occasions.There, she was raped (...) Around 13 July 1992,FWS-87 andthe other
detainees atoEaHigh School were transferred to thePartizan Sports Hall. While being held there,
until about 2 August 1992,FWS-87 and other female detainees were continuously raped or
otherwise sexually assaultedby innumerable soldiers (...) FWS-87 became suicida]as a result of
these sexual assaults.FWS-87, along with other Muslim women,was transferred on 2 August to a
house in FoEa(...) Some of these women were as youas 12 years of age (...) FWS-87 andthe
other women held at the house were (...) treated as sexual slaves (...) On or about 30 October 1992,
FWS-87, together with other Muslim girls and women, was moved back toFoEa,and shified
different houses. They were raped and otherwise sexually assaultedon numerous occasions (...)
Between 31 October 1992 and about 25Febmary 1993,FWS-87 was enslavedby Radomir
KOVAC in an apartment block in FoCa.She and other detainees were(...) frequently sexually
assaulted."ICTFY,Indictment,Prosecutor v. GagoviC & others ("Foëa'~, Case
No. IT-96-23-1,26 June 1996,pp. 3-4 of the surnrnarymade by the ICTFY for
the Press release, CCPI01093-El.
87. Rape and sexual violence have culminatedin the year 1992.But this is not to Say
that the same policy has not continued later, which, on the contrary, it did, reflecting
a policy of terrorising sustainedover time.
88. Rape and sexual violence were also being reported in 1993.In his Sixth Periodic
Report Mazowieckinotes:ReplyofBosnia andHenegovina
"5.War continues unabated in Bosnia and Herzegovina (...) The commissionof rape and other
forms of sexual abuse against women continues.
(o..)
12. Dunng November 1993,continuingallegationswere brought to the attention of the Special
Rapporteur conceming widespread incidents ofrape and sexual abuse by Bosnian Serb troops
against Muslim women in the Olovo area.
(m.)
54.A persistent problem besetting attemptsto chart the extent of the incidence of rape and other
forms of sexual abuse remains the exceptional difficultyin obtainingreports of or investigating
allegations.
(--->
55.Despite such fact-finding problems,the Special Rapporteur is of the view that the commission
of sexual abuse remains widespread,if not on a scale comparableto thelier in the course of the
war." [United Nations,Situationof HumanRights in the territoryof the former
Yugoslavia, sixthperiodic report submittedby Mr. TadeuszMazowiecki,
Special Rapporteurof the CommissiononHumanRights,E/CN.4/19941 110, 21
Feb. 1994,p. 4, para. 5, p. 5, para. 12,p. 11,paras. 54, 551.
89. In its Seventh Periodic Report,TadeuszMazowieckireports incidentsof rapejust
before the attack on GoraZdein March-April 1994:
"1. The enclave of Gorazde, situated in central Bosnia, had a pre-offensive populationo60-ome
65 000 of whom 35 000 lived in the town of the same name. The population was and is
predominantly Muslim.
(...)
2. The enclave of Gorazde, declared as a 'safe area' by resolution of the Security Council, has been
subjected to fierce attack by Bosnia Serb forces during the weeks up to late April 1994. (...)
3. The Special Rapporteur is aware of a number of incidents of military attacks on civilians,
including sniping throughout the past year.
(.a.)
7. The early stages of the offensive were markedby the overrunning of a number of village5.By
March, some 13 had been taken in the Drina valley. The assaults on the villagesinvolved
widespread terrorization of the residents, evictionfrom and destruction of their homes, and the
killing of livestock. Eye-witnesseshave also attested to the commission of rape by groups of
soldiers."[United Nations,Situationof HumanRights in the territoly of the
former Yugoslavia, seventhperiodic report submitted by Mr. Tadeusz
Mazowiecki,Special Rapporteurof the Commissionon HumanRights,
ElCN.41199514,10 June 1994, pp. 1-2, paras. 1-3,71.
90. In the Ninth Periodic Report,Mazowiecki alsoreports on attacks that occurred
duringthe month of March 1994:
"Through the month, international sources reportedrape and other forms of sexual abuseon an
almost daily basis in the city [of Banja Luka] and outlyingtowns asVrbanje. Typical of such
reports isalater one, from June 1994,describing how the adult fernale members of a Muslim
family were sexually abused by a number of their Bosnian Serb neighbours, forcing them to flee."
[United Nations,SituationofHumanRights in the tem'toly of theformer
Yugoslavia,ninthpenodic report submittedby Mr. TadeuszMazowiecki, Chapter 7-Section4
Rape andsexual assaults have been committedeverywhere
Special Rapporteurof the Commissionon HumanRights, Transmittedby the
Secretary-Generalto the General-Assemblyand theSecurity Council,Al491641,
Sl199411252, 4 Nov. 1994,p. 6, para. 111.
91. In the same report, Mazowieckiexamines events that took placeduring the surnmer
of 1994:
"21. Between mid-June and 17 September 1994, some 4,700 non-Serbs were displacedinto
Government-controlled temtory fiom the Bijeljina and Janja regions. (...) There are many reports
of physical abuse, including rape, committed by Bosnian Serbssingthe displacement."
[ibid., p. 8, para. 211.
92. Rape and sexual violence were,as mentionedabove, also reported in 1995.
Accordingto the Secretary-GeneralReport of 4 August 1995, "In his reports during
1995,the Special Rapporteurof the Commission onHurnanRights referred to
allegationsof rape and sexual assaults." [United Nations, Rape and abuseof women
in the areas of armedconflictsin theformer Yugoslavia,Report of the Secretaïy-
General,N501329, 4 Aug. 1995,p. 6, para. 171.Also in his Report pursuant to
Security Council resolution 1019 (1995) on violationsof internationalhumanitarian
law in the areas of Srebrenica,iepa, Banja Luka and Sanski Most, of 27 Novernber
1995,the Secretary-Generalreports of rapes in Northem Bosnia and Herzegovina;he
also states that, in theregion of BosankaDubica, "there are consistent reportsthat
young women weretaken fiom the group and raped" [United Nations,Report of the
Secretary-General Sl19951988,para. 481.The sameholds tme in the SanskiMost
area, where the Secretary-Generalfound that:
"Therc were a number of reports of (...) raOne(17-year-old girl said that Bosnian Serb
neighbors had killed her parents on 21 September. The girl fled with her sisters but was later
forcedto Sekovici by Arkan's soldiers; she reported that she was raped. Another 17-year-old girl
alsosrid she was raped." [ibid.,531r..hese events are not less serious than the ones that
occumd in 1992-1993: as stated by the Secretary-General in the same Report, in his concluding
mnuks: 'As if the savagery of the war in the Balkans since 1991was not enough, the past few
monthr have seen further despicable acts of cruelty and violence, as reported by the catalogue of
-cd atrocities described in the present report. Thisand other reports provide undeniable
evidcncc of a consistent pattern of (...) ra[ibid., para. 741.Replyof Bosnia andHenegovina
93. Even later, rape had not been abandonedas a tool of ethmc cleansing,as is
emphasisedin a report by ElisabethRehn, who replaced Tadeusz Mazowieciuas
Special Rapporteur.In her report dated 17July 1996, - that means afier the signature
of the Dayton Accords - she mentioned "the odiouspractice of 'ethniccleansing'as
well as the effectsof war, resulted inmassive displacementsof persons throughout
Bosnia and Herzegovina" [United Nations,Situationof HumanRightsin the temlory
of theformer Yugoslavia,perîodic report submittedby Ms. ElisabethRehn,Special
Rapporteurof the Commissionon HumanRights,EICN.411997151 , 7July 1997,p. 7,
paras. 271and then addressedmore specificallyrape and sexual violence:
"29. Displacement of minority populations continues from areas of Republika Srpska such as
Teslic, BanjLuka and Vrbanje. Members of minonties, mainly Bosniaksbut also Croats and
Roma, are subjecttooncerted patterns of intimidation and administrative discrimination.As a
result, in the period since April 1996, some hundreds of members of minority populations have
eitherleft or indicated an urgent desire to leave Republika Srpska. There have been incidents of
physicalattack, including rape, destruction of property, death threats and the hurling of racist
abuse.'[ibid., para. 291.
Rape and sexualviolencehave beenpe$ormed withparticularsavagenessor
pewersiw
94. It seems that oneshould speak, in many cases,of aggravated sexualtorture rather
than sexual violence. Al1kinds of torture were part of the acts of rape and sexual
violence. For example, in the region of KljuS, fourteenreports of "sexual atrocities"
have been listed in the Report of the Commissionof Experts: arnongthe stated
atrocities,two cases were mentionedof women raped - one sixty year old, the other
53 - who were severelyhurt by the forcing ofthe perpetrator'shand in their Chapter7 -Section4
Rape andsexualassaultshave beencommitted everywhere
vaginas, after which they were forcedto lick the bloodoff his fingers [United
Nations,FinalRepon of ihe United Nations Commissioo nf Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rape andSexual Assault",p.
33-34, para. 142, 1431.
95. The actsof rape and sexuai torture have sometimes been perpetratedwith the use of
various objects, as is written in the Report of theCommissionof Experts:
"~ictims are sexually assaulted with foreign objects likebroken glass bottles, guns and truncheons"
[ibid.,p. 11,para. 18 (f)].
In such cases, the physicai injuriesmight be even worse, and are often irreversible.
The existenceof this kind of torture has also been establishedby the testimonies
taken by the ICTFY. In her testimonybefore the ICTFY,during the Hearings in the
KaradZiéand Mladié cases,Ms. Irma Oosterman stated:
"(...) we have several statements taken from men who (...) were forced to put objects in each
otherysanus.[ICTFY, Trial Chamber,Prosecutorv. KaradZié andMladié,Cases
No. IT-95-5-R61, and IT-95-18-R61, TestimonyOosterman,2 July 1996,p. 28,
Annex 761.
96. In its Sixth Periodic Report, Mazowieckireports on "sexual torture", consistingof
forcing children to watch acts of sexual violence performedbefore their eyes, often
on members of their family:
"224.On many occasions children have witnessed the rape of their mother or close relatives.
225.Many children have been placed in detention centres andseveral of them have been tortured
there, according to reports that have been brought to the attention of the Special Rapporteur. Girls,
for instance have been raped and havetheir mothers being rapedand injured. In one case, an
11-year-old girl who had witnessed the killing of the young men from her town was detained by
Bosnian Serbsoldiers in Lukavica with her mother and was then taken with her and other girls and
women to a place where many were raped. She saw a woman slashingher mother'ss with a
broken bottle[UnitedNations, Situationof HumanRights in the territo>yof the
former Yugoslavia, sixthperiodic report submittedby Mr. TadeuszMazowiecki,
SpecialRapporteurof the Commissionon HumanRights,E/CN.4/1994/110,21
Feb. 1994,p. 35, paras. 224-2251.
97. Apart from sexual assaults against mendescribedearlier, in some cases,physical
injurieshave been committed againstthe men's virility. As stated in the Report of
the Commissionof Experts:Reply ofBosniaandHenegovina
"20. Men are also subject to sexual assault. They are forced to rape and sexually assault women,
they are forced to perform fellatguards and on each other, they are forced to perfonn other
sex acts on each others, and they suffer castrations,circumcisions, and other sexual mutilations."
[United Nations,FinalReportof the United NationsCommission of Experts,
S/1994/674/Add.2(Vol. V), 28 Dec. 1994,Annex IX, "Rapeand Sexual
Assault",p. 11, para. 201.
In general, the Report of the Commissionof Experts underlines the fact thatwhen
men were victirnsof sexual violence,it was alrnostalwaysinside a detentioncamp,
with ver=perverse elements:
"247. (...) Sexual assaultswere also practised againstmen: one witness saw prisoners forcedto bite
off anotherprisoner's genitals.(...) Another incident related in an interview involved prisoners
lined up naked while Serb women fiom outside undressed in front of the male prisoners. If any
prisoner had an erection, his penis was cut off. The witness saw a named Serb woman thus castrate
a pnsoner" [United Nations,Final Reportof the UnitedNations Commission of
Experts, S/1994/674(Vol. 1),27 May 1994,p. 59, para. 2471.
98. Events of ths type have been establishedby the Trial Chamberof the ICTFY in the
TadiCcase:
"~here is a considerable body of evidenceregarding these events (...) From that body of evidence
before the Trial Chamber it can be concluded thaG and witnessH were compelled to and did
take part in the sexual assault on Fikret HarambaSiCas alleged and that G was compelled sexually
to mutilate him by biting off one of his testicles. It can also be concluded (...) that al1these events
occurred on 18June 1992(...) These (...) victims were al1Muslims.
(--)
After G and witness H had been forced to pull Jasmin HmiC'sbody about the hangar floorthey
were ordered tojump down into the inspectionpit, then Fikret HarambaSiC,who was naked and
bloody fiom beating, was made to jump into the pit withand witness H was ordered to lick
his nakedbottom and to suck his penis and then to bite his testicles. Meanwhile a group of men in
uniform stood around the inspection pit watchingand shoutingto bite harder. Al1three men then
wtrcmade to get out of the pit ont0 the hangar floor and Hiwas threatened with a knife
that bothhis eyes would be cut out if he did not hold Fikret HarambaWs mouth closed to prevent
him from sneaming; G was then made to lie between the naked Fikret HarambaSiC'slegs and,
while the latteruggled, hit and bite his geGitthen bit off one of Fikret HarambaSiC's
testicles and spat it out and was told he was fiee to leave. WitnessH was ordered to drag Fikret
HarambaSitco anearby table, where he then stoodbeside him and was ordered to retum to his
room. which he did. Fikret HarambaSiEhas not been seen or heard of [ICTFY, Trial
Chamber, Opinion and Judgment,Prosecutorv. Dus'koTadiC,Case No. IT-94-
1-T, 7 May 1997,pp. 72-73 and 75,paras. 197-198 and2061.
99. Also in the Omarskacamp, it is reportecithat in another incident:
"a man's testicles were tied with a wire. The other end ofthe wire was tied to hisAmotorcycle.
guard drove the motorcycle off, castrating [United Nations,FinalReportof the Chapter -Section 4
Rape and sexual assaultshave been committed everywhere
United Nations Commissionof Experts, Sl19941674lAdd.2(Vol. V), 28 Dec.
1994,Annex IX, "Rape and SexualAssault", p. 40,para. 179; see also, Second
US Submission,Letter Dated 22 October 1992Pom the Permanent
Representativeof the UnitedStates of America to the UnitedNationsAddressed
to the Secretary-General,Sl24705,23 Oct. 1992,p. 131.
100. The existence of humiliating and degrading acts of torture committedagainstboth
women and men has also been acceptedby the Trial Chamberin the cases of
Karad2iCand MladiC:
"~oms of sexualassaultparticularlydegradingforwoandusing avarietyof objects,andthe
castrationof men,sometimesrformedunderduressby prisonerson one another,waspracticed."
[ICTFY, Trial Chamber,Review of the Indictmentspursuant to Rule 61 of the
Rules of Procedure and Evidence,Prosecutor v.Karadzi'i.and Mladié,Cases
No. IT-95-SR61 and IT-95-18-R61, 11July 1996,p. 7, para. 131.
101. In the MazowieckiReport, it is recorded thatin Luka camp, nearBrEko,a witness
saw fifteen corpses of young men whose genitalshad been mutilated [United
Nations,Situation of Human Rights in the tem'toryof theformer Yugoslavia, Report
submitted byMr. Tadeusz Mazowiecki, Special Rapporteurof the Commission on
Human Rights, E/CN.4/1993/50, 10 Feb. 1993,p. 15,para. 631.
102. Ttis also reported that in Celopek,a guard cut off a man's peniswith his knife, and
reportedlymade this man eathis severed penis[UnitedNations, Final Report of the
UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. V), 28Dec. 1994,
Annex IX, "Rape andSexual Assault",p. 54, para. 2651.Reply ofBosniaand Henegovina
103. Rape hasbeen quite often closelylinkedto death,whethermurder was perforrned
afler rape, or whether it resulted as aconsequence of the violence performed against
the women. The Commission ofExperts has found that:
"theperpetratorsreportedlyalso rapedandkilled someof the girlsin fiontvictims.other
Thosewho resistedhadtheirbreastscut o[United Nations,Final Report of the
UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol. IV), 28 Dec.
1994, Annex VIII, "PrisonCamps",p. 309, para.25671.
Anotherincident wheredeathwas closely linkedwith rape was reported:
"a 17 yearold girl was rapedandstrangledto [ibid.,p. 349, para. 29101.
In the Tmopolje camp, anincidentwas recordedin which two young girls were
taken away and later reportedto have been rapedand killed [United Nations,Letter
Dated 5 March 1993fiom the Permanent Representativeof Austria to the United
Nations Addressedto the Secretary-General, Sl25377,6 Mar. 1993,p. 421.In the
Luka camp, it was also reportedthat teenagegirls were brought to the commander's
officetwo days a week and were gang raped;somedied, one was stabbedto death
[United Nations, Letter Dated 12 April 1993from the PermanentRepresentativeof
the UnitedStates of Americato the UnitedNations Addressedto the Secretary-
General, Sl25586, 13 Apr. 1993,p. 211.AmnestyInternationalalso reports that in
the city ofKljuC,Muslimwomen were rapedand that two had theirthroats slit
aftenvards ["Bosnia-Herzegovina: Rapeand SexualAbuse by ArmedForces",
AmnesîyInternational Report, Jan. 1993,AI: Index EUR 63/01/93,p. 7, Annex 771.
104. The Commissionof Expertsreported "rapingof girls as young as seven oreight
years old" in Jajce and adds that"severalgirls died after beingraped" [United
Nations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,AnnexVIII, "PrisonCamps",p. 261,
para. 21971.In the samereport, it is stated thatin Village camp at Janja, "one65-
year old woman, after being raped,bled to death."[ibid.,p. 65, para. 4871.
105. In the Trnopolje camp, "unepetite fille de 7 ans a étéviolée,l'enfant est morteau
bout de 12 heures" [Médecinsdu monde, Boulangeret al., L'enferYougoslave,Paris,
Belfond, 1994,p. 353, Annex 811.
106. Ithas been emphasisedearlierthat quite often rape and sexual assaultwere
committed publiclyin order to arouse sharnefor the sexuallyassaultedperson and Chapter7- Section4
Rape andsexualassaultshave beencommittedeverywhere
her or his farnily. This perversiv on the part of the Serb perpetratorswas even more
exaggeratedwhen they attemptedto heighten the shame of acts imposed by outsiders
by inflicting reciprocal shameon farnilymembers, forcing them to perform sexual
acts on one another. The existenceof coerced incest was also acceptedby the Trial
Chamberin the cases of KardiC and MladiC,where it stated that: "On several
occasions,brothers or parents were forced to have sexualcontact with one another."
[ICTFY,Trial Chamber,Review of the Indictmentspursuant to Rule 61 of the Rules
of Procedure and Evidence,Prosecutor v.KaradZikand Mladik, CasesNo. IT-95-5-
R61 andIT-95-18-R61, 11 July 1996,p. 7, para. 131.
107. This kind of sexual violence imposedon Bosnian Muslimshas occurredboth inside
and outsidethe camps:
"2884. On 10 June 1992, one of the Serbs removed seven pairs of fathers and sons from amongthe
inmates. The pairs were forced on the theatre stage andmade to disrobe. Once naked, the pairs
were forced toerform fellatio on one another with the other male prisoners looking on from the
audience."[United Nations,Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "Prison
Camps", p. 346, para. 28841.
108. The Commission ofExperts also mentionstwo sources statingthat in the Keraterm
camp "twobrothers were forcedto perfonn sexual acts oneach other." [United
Nations, Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2(Vol. V), 28 Dec. 1994,Annex IX, "Rape andSexual Assault",p.
41, para. 1831."Another ex-detainee toldof (...seeing a father and a son who
sharedhis ce11forced by guards to perform sex acts with each other." [United
Nations, Final Report of the UnitedNations Commissionof Experts, SI19941674
(Vol. 1),27 May 1994,p. 59, para. 2471.
109. The team of medical experts sentby Mazowieckito the former Yugoslaviahas
collecteddata on the pregnancies resultingfiom rape. They identified 119 cases of
pregnancies resulting fiom rape for the year 1992only. They insisted on the
probable underestimationof pregnancies,for the very same reasons that there is an
underestimationof rapes:
"Virtually al1interviewed physicians and health workers felt thatthe reporting of rape resulting in
pregnancy would be far lower than its actual occurrence due to the profound emotional pain and
stigrna associated wrape.(...) The 119cases documented to have been associatedwith rape,
therefore, should beewed as the minimumnumber of pregnancies dueto rape in the populationsReplyofBosnia and Henegovina
served by the hospital visit[United Nations,Situationof HumanRightsin the
tem'toryof theformer Yugoslavia,Report submittedbyMr. Tadeusz
Mazowiecki,SpecialRapporteur of the Commissionon HumanRights,
E/CN.4/1993/50,10Feb. 1993,Annex II. p. 67, para. 291.
110. This internationalteam of four physiciansincluded Dr. Shana Swiss,who explained
in Mer scientificwritingsthe analysisthat can be drawn fiom these pregnancies:
"The team identified 119 pregnancies thatresulted fiom rape fiom a small sample of six hospitals
in Bosnia, Croatia, and Serbia. According to estimates established inmedical studies, a single act
of unprotected intercourse will result in pregnancy 1% and 4% of the time. Based on the
assumptionthat 1% ofacts of unprotected intercourseresult in pregnancy, the identification of 119
pregnancies, therefore represents some 11900rapes. numbers, however, must be interpreted
carefully. Underreporting, along with the reluctance of many physicians to askwomen seeking
abortions or perinatal care whether they had beenraped during the war, would lead to an
underestimate of the number of women raped. the other hand, multipleand repeated rapes of
thesame women were frequently reported and could lead to an overestimate of the number of
women (as opposed to the number of incidents of rape) involved. The goal is not to come up with
an exact number, which is impossible,but rather to usel data to suggest a scale of
vioiations.[S. Swiss and J.E. Gilles, "Rapeas a Crimeof War. A Medical
Perspective",JAMA,4 Aug. 1993,Vol. 270,p. 613, Annex 751.
111. Ms. Irma Oosterman describedthis policy in her testimony beforethe ICTFY, in the
KaradZiCand Mladiécases, in an answer toa questionaskedby Judge Riad:
"~iss Oostexman,you mentioned that in cases of rape those who committed it admitted they
received orders, and sometimesorders, as you said, to make Chetnik babies?
A: Yes, that is correct.
Q: What was the procedure which was used and wasit similar in al1the cases you have viewed?
How did they manage to do that?
A: Like 1have already told you, for example, women were taken out of the camp, were taken to
another house or building, soldiers ordered then to wash themselves,to clean themselves,then they
came back to the room or wherever they were, then they saam,going to rape you and 1will
make you a Chetnik or Serb baby7.[ICTFY,Trial Chamber,Prosecutor v. KaradZii
and Mladii, CasesNo. IT-95-5-R61and IT-95-18-R16, TestimonyOosterman,
2 July 1996, p. 31,Annex 761.
112. This Serb tactic of imprisoningwomen until they have reached anadvancedstage of
pregnancywas already mentionedby the Applicantin its Counter-Memorial[p. 44,
para. 2.2.4.7.1.The idea of forcedpregnancyirnposedon Muslimwomen is closely
linkedwith the overall process of ethniccleansingas will be shownin more depth
below.
113. Many womenhave reported what the true intentionof their rapist was. According to
them, the men who rapedthem told them that they wouldbear Serbianchildrenas a Chapter 7-Section4
Rape andsexualassaultshavebeen committedeveyhere
consequence oftheir rape ["Bosnia-Herzegovina Rape andSexual Abuse by Armed
Forces",AmnestyIntemational Report, Jan. 1993,AI Index: Eur 63/01/93, p. 12,
Annex 771.To the trauma of rape was added the trauma of undesiredpregnancy;
"undesired"obviously being a terribleunderstatement.
114. A fifteen year old Muslim girl, who was raped by two men, while two others were
holding her tight, has declared:
"AStheyraped metheysaidthey'dmake sure1gavebirthto a Serbianbaby,andtheykept
repeatingthaturingtherestof thetimethattheykeptme there[United Nations,Letter
Dated 5 November1992pom the Permanent Representativeof the United
States of America tothe UnitedNations Addressed to theSecretaïy-General,
924791, 10Nov. 1992,p. 161.
115. A Muslim victim stated that "shewas raped ontwo occasions" andas reported in
Annex IX of the Report ofthe Commissionof Experts,her rapist "toldher that they
would make her have Serbbabies who will be Christians." [UnitedNations, Final
Report of the UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol. V), 28
Dec. 1994, Annex IX, "Rape and Sexual Assault",p. 29, para. 1221.
116. The fact thatone of the intentionsof the Serbianperpetratorswas to give Serbian
babies tothe raped Muslim womenis also sustained bythe "humane"manner in
which the "raped-pregnant" women were treatedT . here are reports of a precise
organisationof the reproductionof Serb babies:
"Thewomenthatbecamepregnantarenotreleased,thereareevenspecialplacesforwomen which
areto haveetnikbabies."[AlexandraStigelmayer,Stem, 49/92 (68), Annex 821.
In the country of Doboj, a forty year old women described that:
IManywomenandgirlswhowere pregnanrtemainedin the campT . hey weretransferrto a
hospitalandfedtwicea daybecause,asthe Chetnsaid,theyhadto beartheiroffspring.'"
[UnitedNations, Letter Dated 26 January 1993j?om the Permanent
Representativeof the UnitedStates ofAmerica to the UnitedNationsAddressed
to theSecretay-General, SI25171, 27 Jan. 1993,p. 71.
117. The Applicantwants to repeat, in conclusion, thatacts of rape and sexual violence
have been committed extensivelyand systematicallyagainstthe Muslirnpopulation,ReplyofBosnia andHenegovina
and especially against Muslim women.From the facts presented here,it appears
clearly that this use of sexualviolence followed a pattern of conductwhich was
intended to destroy in whole or in part the Muslimgroup. The legalaspectsof this
intensive and systematicuse of sexual violenceoriented againstMuslimswill be
discussed now.
5. Introduction tothe legal assessmentof rape under Article II
Rape committed with genocidalintentis genocide
118. The Applicant will demonstratethat rapehas been carried out in such a way that it
no doubt constitutesgenocide. Althoughrape is not expressly mentionedin the
Genocide Convention,it cm, however, be condemnedunder the Convention:the
wording of the Convention is refemng to broad categoriesof acts, in order to
encompass al1the acts of sadism thathuman beings couldimagine and al1the new
methods of genocidethey could thinkof over time, as has been shown earlier in this
Reply [see Chapter2, Section51.
119. In other words, the list of Article II may be exhaustivein substance,it is not in
form. Al1the acts, whatever fonn they take, that can enter into one of the substantive
categoriesof acts listed in Article II, can qualiQ as genocideif accompaniedby
genocidalintent. In particular, the Applicantsubmitsthatfrom its inception, rape
was includedin the acts prohibited by the GenocideConvention.Already during the
Tokyo Trials, after World War II, there were charges of rape, which was considered
as severe as torture and killing. This is underlinedby the United Nations
Commissionof Experts [United Nations,FinalReport of the United Nations
Commissionof Experts, S/1994/674/Add.2(Vol. 1),28 Dec. 1994,Annex II, "Rape
and Sexual Assault: A Legal Study",p. 6, para. 20; see also, Ted Meron, "Rape as a
Crime Under InternationalHumanitarianLaw",AJIL, 1993, Vol. 87, No. 3, p. 426,
Annex 831.The Nankin rape was describeci in the Judgementof the Tokyo Tribunal:
"~here were many casesof rape. Death was a fiequent penaltyfor the slightestresistanceon the
part of thectior the members of herfamilywho soughtto protecEvengirlsoftender
years and old women were rapedin large numbersthroughoutthe city, and manycases of
abnormal and sadisticbehaviorin connectionwith theserapings occurred. Manywomen were
killed after the act and their bodiesm[ne TokyoFar CrimesTrial,The
complete Transcriptsof the Proceedingsof the InternationalMilitary Tribunal
for the Far East in Twenty-twoVolumes, GarlandSeries, p. 49 6051. Chapter7- Sectio5
Introductionto the legal assessrnentof rape underArticleII
Even if it were not contemplatedat the the - although it is the Applicant's
contentionthat rape was includedfrom the inceptionof the Convention - rape as a
genocidal tool has undoubtedly tobe consideredasprohibited to-day. In the
discussionat the time of the clraftingof the Genocide Convention atthe ILC, M.
Morozov,the Representativeof the USSR, statedthat it was envisagedthat the
Conventionwould apply not only to the then existing forms of genocide,but also"to
any method that might be evolvedin the future with a view to destroyingthe
physical existence of a group" [ILC, ElAC.125lSR.12,ILC Yearbook,1948,Vol II,
Part 11-
Clearly in this caserape and sexual assaults are,consideringthe manner in which
they have been used in Bosnia and Herzegovina, includedin the acts forbidden by
Article II of the Genocide Convention.As a matter of fact, these acts of rape and
sexual assaults are prohibitedunder al1paragraphsof Article II. Before elaborating
on this, the Applicantwishes to object to the false interpretationsgiven by the
Respondentto Article II of the Genocide Convention.
TheRespondentcompletely misconstmesArticle II, by limitingexpresslygenocidal
rape to only one category offorbidden acts of genocide
Accordingto the Respondent:
"Onlyrapecommittedwithgenocidalintentand'causingseriousbodilyormentalharmto a
memberof the group'couldbe qualifiedas anactof genocide.
(...)
TheApplicant has not presentdnyfactnecessaryto satisfythetwo saidconditio[Counter-
Memorial,p. 59, para. 1.3.4.2.1.
The fûst answer of the Applicant tothis contentionis that it does not see how it
couldbe said that it is necessary to prove,as a distinct elementof the event, that
rape of members of a group is "causing seriousbodily or mental harm to members of
the group": the seriousbodily or mental hm is inherent in the barbarous act of
rape. If rape is committed againstmembers of the group - and the existenceof such
massiverapes and acts of sexual violencehas alreadybeen substantiated earlier -
then necessarily rape is "causing seriousbodily or mental harm to mernbers of the
group".
In fact, the Respondentitself recognisesimplicitlythis fact, as it cites in its "counter-
claims"in Chapter VI1of its Counter-Memorial,a series of acts allegedlycommittedReplyofBosnia andHenegovina
by Muslims, among which rapes are cited. Althoughthe Respondenthas not
substantiatedin any way the existenceof genocidal rapeagainst Serb women, it is
interesting to underscore the fact that it considers rape to be anact of genocide,
under paragraph (b) of Article II relating to the definitionof genocide,when it
describes rapes as "rapes causing seriousbodily or mental hm to Serb women":by
the Respondent'sown reasoning, if Serb women could suffer in such a manner fiom
rape, there is no reason whatsoeverto deny that Muslim womensuffer in exactly the
same manner.
125. Secondly, the Applicantwants to emphasise that thedefinitionof the acts of rape
constitutiveof genocide proposed by the Respondent does not give a full picture of
genocidal rape:it is far too limited, as rapean have consequencesother than serious
bodily or mental harm, as will be developedlater. It is evident thatrape can have
other consequences as well - like sterility for exampl- and thus quali@as
genocide, under other paragraphsof Article II of the Genocide Convention.
126. Thirdly, theApplicant naturally agrees withthe Respondentthat genocidalintent has
to exist for rape or sexual assault to beondemnedas genocide: not everyrape, of
course, isan act of genocide. The existence ofthis intent in the ovenvhelrning
majority of cases will be proven below.
127. In sum, the Applicant assertsthat rape necessarily causesseriousbodily or mental
hm to the raped woman, and thatthis "consequence"need not be proven
separately. Moreover, the Applicant asserts that rapecm be condemnedunder
paragraph (b) of Article II referring to "seriousbodily or mentalharm", as well as
under al1the other paragraphsof Article II of the Genocide Convention,when
committed with the intent to destroy the group in whole or in part.
Quitecontradictorily,theRespondentcompletelymisconsîmesArticleII, by implicitly
limitinggenocidal rapeto the killingof the raped women
128. The Respondent appearsto completelyrnisconstruethe meaning of Article II of the
GenocideConvention ernbodyingthe definitionof genocide.In particular, the
Respondent is quite wrong in its interpretationof intent. Accordingto it:
"~hereis no genocidewithoutintentto destroythe groupin wholeorinpart,andwithoutthe
destructionof membersof thegroupbeingcommittedbecauseof theirbelongingto thegoup."
[Counter-Memorial,p. 301, para. 4.4.1.2., emphasis added] . Chapter 7- Section 5
Introductionto the legal assessrnentof rape underArticle II
Here the Respondentseemsto imply that acts of genocide would belimiteclto
killings. This interpretationis of course unacceptable.Mr.Bartos, the Yugoslav
Representativeat the ILC at the time of the drafting of the Genocide Convention,
rightly pointed out, at that time, that:
"History showed that genocide was always preceded by a number of preliminary acts. It was
essential to combat genocide in al1its forms, not merely at the [Sixth Cornmittee,
General Assembly, Officia1Records, 1948,Summaryrecords of meetings, 21
Sept.-10 Dec. 1948,p. 821.
This same interpretation was givenby the Trial Chamberin its review of the
indictmentin the cases of Karadzit and Mladit:
enoc oc requires that acts be perpetrated againsta group with an aggravated criminal intent,
namely, that of destroyingthe group in whole or in part. The degree to which the group was
destroyed in whole or in part is not necessary to conclude that genocide has occurred. That one of
the acts enumerated in the definitionwas perpetrated with a specific inte[ICTFY,ices."
Trial Chamber,Review of the Indictrnentspursuant to Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. KaradZiéand Mladié,CasesNo. IT-95-
5-R61 and IT-95-18-R61,11July 1996,p. 52, para. 921.
129. This understandingof the Genocide Conventionwas also shared by Raphael Lemkin,
who introduced the word "genocide" andwho insisted onthe evident fact that
"genocide does not necessarilymean the immediatedestructionof a nation.".
According to Lemkin,genocide exists wheneverthere is "a coordinatedplan of
different actions aiming ut the destructionof essentialfoundations of the lijieof
national groups, with the aimof annihilatingthe groups themselves." [Raphael
Lemkin, Rxis Rule in OccupiedEurope, Washington, 1944,p. 79, emphasis added,
Annex 841.Andwhat is more essentialto a group than its family structure, the
sexual life and the reproductivefunctionsof its members?
Lernkinwas even more specificin explainingthe conceptof genocide:
"The objectives of such plan would be disintegration of the political and social institutions, of
culture, language, national feelings, religion, and the economic existence of national groups, and
the destruction of thesona1security,liberty, health, dignity and even the lives of individuals
belonging to the group[ibid1.
From this definiion, it appears clearly that notonly killing members of the group,
but al1sorts of destructive actscan quali@as genocide,as has been embodiedin the
Genocide Convention.ReplyofBosniaandHenegovina
130. Contrary to what results implicitly fi-omthe interpretationof the Respondent, the
Applicant asserts that inorder to qualiQ as genocideit is not necessary - even if it
happened in fact- that the groupbe destroyed in whole or in part as a consequence,
among others, of the policy of rape and sexual violence,for the acts perpetratedin
pursuance of this policy to be qualified as acts of genocide. Noris it necessarythat
the acts qualiwng as genocidal acts result in the physicaldestructionof members of
the group, in other words nor is it necessary that thewomen, children or men are
killed or dieas a consequenceof rape or sexual violence,in order for rape and
sexual violence to qualiQ as acts of genocide.The Applicantwill show f'rstthat
rape and sexual violence are relatedto each of the headingsof Article II, and second
that ail these acts have been performedwith genocidal intent.
6. Rape and sexual violence areacts prohibitedby ArticleII
Rape andsexualassault - "killingof membersof thegroup"
131. Sexual violence can lead to death. Not infiequently, rape resulted in the deathof the
raped girl or woman. Sexualviolence has oftenprecededdeath or has been a
medium ofkilling. Death is sometimespart of the same aggression againstwomen as
rape, sometimes a consequenceof the conditionsin which rape has been performed,
or of itsaftennath, sometimes a "punishment"for resistanceto rape. Notinfiequently
either, sexual assaulton a man, has ended up in the death of the assaulted man.
At tirnes, death has been part of the same aggressive sexual violenceas rape, when it
was inflicted not after rape, but before the planned rape, becausethe woman resisted
to being raped. Such occurrenceshave been reported by the Commission of Experts:
"Captorshave killed women who resistedbeing raped, ofien in front of other
prisoners" [UnitedNations, Final Report ofthe United NationsCommissionof
Expert, Sl19941674,27 May 1994,p. 55, para. 230(O)].In fact, in such a case,
death must not merelybe seen as a violent reactionto the attitude of the woman
sexuallyassaulted,it was inherent in the overall policy of elimination. Deathand
rape were part of the same 'program'of eliminationof the non-Serb group.
133. It has also been reported that a man was killed becausehe refùsed toperform a rape
on a Muslimgirl:
"un prisonnier agéde soixante-dixa(..étébattuàmort parce qu'ilrefusait de violer une
petite fille de douze[AgatheLogaert, "Bosnie:Témoignagessur la pratiquedes Chapter 7-Section 6
Rape and sexual violence are acts prohibited IIArticle
viols dans les villages autour de Sarajevo.Le trop fameux CaféSonja",Le
Monde, 5 Feb. 1993,p. 3, Annex 851.
134. Rape and death have also been linked togetheras part of the same destructiveproject
towards the victim. Such type of facts have beenstatedby the United Stateswhich
reported that very often girls "disappeared"after being raped [UnitedNations, Letter
Dated 22 October 1992fiom the PermanentRepresentativeof the United Statesof
America to the UnitedNationsAddressed tothe Secretary-General,924705, 23 Oct,
1992,p. 131.
135. Quite often, death did not need to be inflicted after rape, as it followed fiom the
violence of the actitself: this is particularly fiequent when very young girls or
elderly women were raped.Several examplesof deaths of sevenor eight years old
girls or of 65 old women have been given above in this Chapter which illustrate the
terrible deadlyconsequences that rape or sexualviolence had in many instances.
136. Men also died sometirnesfiom the consequencesof the sexual violenceperpetrated
against them, whichhad a fatal outcome. Occurrences ofdeath as a consequenceof
violence or mutilation of the sexually assaultedman have been reported. Some
exampleswere given earlier, such as the statementin the MazowieckiReport that
fifteen corpses of youngmen were found,with their genitals mutilated.
137. Severalreports have been made of thesuicideof women who were assurnedto no
longer have wantedto bear the burdenof rape, andcontinueto live with the pain,
shame andhumiliation.
138. It has also been reported that deaths have occurredwhen Muslirnwomen, after
having been raped by Serbmen, tried to get an abortion. Beverly Allen writes that
the testirnoniesof Bosnianwomen showedthat:
"~any othersthesepages toldabouthadnotsurvived,nordidal1thesurvivorslivepastthe
abortionstheyattemptoncetheygotawayfiomtherapeldeathcamps." [BeverlyAllen,
Rape Wafare, Minneapolis, 1996,p. xi.].
Of course, it might not have been a preciseintent of the perpetratorsto kill the
woman through an abortion followinga rape. But such a death can still be linked
with the overall conditionscreated bythe intent to destroythe group in whole or inReply of Bosniaand Henegovina
part, that through an implacablechain of events endedup in the death of the raped
woman.
Rape and sexual assault - "causingserious bodilyor mental harm to membersof the
group "
139. The GeneralAssernbly,in its Resolution48/143, entitled "Rape andabuse of women
in the areas of anned conflict in the former Yugoslavia", adoptedon 20 December
1993,has also recognised "the extraordinarysufferingof the victims of rape and
sexualviolence", insisting at the same time that these practiceswere of "systematic
use against the Muslim women andchildrenin Bosnia and Herzegovina, by Serbian
forces." [United Nations, GeneralAssemblyResolutionA/RES/48/143(1993), 20
Dec. 19931.
140. No lengthy developments are needed in order to show that rape and sexual violence
cause great suffering and/or senous injury to the victim'sbody and health. As has
been stated earlier, such consequencesare inherent in the act itself. In a book entitled
"L'histoiredu viol", (Histoire immédiate,Paris, 1998)a French historian, M.
GeorgesVigarello, rightly qualifies rape as a "meurtrepsychique",in order to
underscoreits destroying effects.
141. Testifjnngbefore the ICTFY, Ms. Irma Oosterman elaborated uponthe various
problems which accompanyrape, whileanswenng the questionsof Judge Odio
Benito, during the hearings in the KaradZiCand MladiCcases:
"Q: Can you describeto the court what different problemswomen suffered due to the rape and
sexual assault?
A: Yes, theyhavephysical and emotionalprobleSomeare still strongbecausethey wantto
surviveandstill live, and some donot wantto live any more, butbecausethey have children they
go onwith this kind of things.Of course,theyhave problemswith vaginasand al1kind of anal
problems. Some women hadto give their children away, nottheir children buta child madeby the
Bomim Serbs and somehad to give abortion.
Q: So.they suffer both, physicaland psychologicaldamage?
A: A~SOIU~~I~.[ICTFY, Trial Charnber,Prosecutor v. KaradZii and MladiC,
Cases No. IT-95-5-R61 and IT-95-18-R16, TestimonyOosterman,2 July 1996,
p. 31, ernphasisadded, Amex 761.
142. Mer the hearings in these cases, the Trial Chamberconcludedthat:
"the causing of seriousbodily or mentalhm to the memberor membersof the groupor groups
has occurred throug(..rape(...).[ICTFY,Trial Charnber,Review of the Chapter 7- Section6
Rape andsexual violence are acts prohibited by AIIicle
Indictmentspursuant to Rule 61 of the Rules of Procedure and Evidence,
Prosecutor v. Karad2 and MladiE,CasesNo. IT-95-5-R61 and IT-95-18-R61,
11 July 1996, p. 52,para. 931.
143. The immediate and self-evidenthm of rape is to the body: womenare often hurt
while being raped, because of the violence of the act committedagainstthem. The
Counter-Memorialcites some of the physical consequencesof rape [Counter-
Memorial,pp. 60-61, para. 1.3.4.3.1.Even though the psychical traumaof rape is
immense, it is importantnot to lose sight of the fact thatrape is first and foremosta
physical agony. Froma purely physical pointof view, women who have suffered so
much trauma to their body often have difficultiesto have sexual relationswith men.
Their bodies can also be destroyed more profoundlyand irreversibly, if their
reproductive organs arewounded andif, as a result, the rapehas an impact ontheir
fertility.
144. Men also very often suffer physically,when they undergo sexual violence. The Trial
Chamberhas explicitly qualified,in the TadiCcase, the sexual violencecommitted
by the biting off of one of the testicles of a Muslim man in the Omarskacamp, as a
seriousbodily harm:
"Inthe case(s) of FikretHarambaEi(..theacts whichtheaccusedcommittedorwas otherwise
associatedwith,ecauseof their natureandconsequences,involve(..wilfullycausinggreat
sufferingor senousinjuryto bodyandhealth."[ICTFY,Trial Chamber, Opinion and
Judgement,Prosecutor v. DuJko TadiE,CaseNo. IT-94-1-T, 7 May 1997,p.
89, para. 2431.
145. The physicalpain is of course generally accompanied bygreat psychical trauma.As
stated by the Commissionof Experts:
"Rapeandotherfom of sexual assaultharmnot onlythe bodyof the victim.The more
significantarmis thefeelingof totalloss of controlover themostintimateandpersonaldecisions
andbodilyfunctions.Thisloss of controlinfiingesonthevictim'shumandignityandis what
makesrapeandsexualassaultsuchaneffectivemeansof 'ethnicc~eansin~'." [United Nations,
Final Report of the UnitedNations Commissionof Experts, S/1994/674/Add.2
(Vol. V), 28 Dec. 1994, Annex IX, "Rape and SexualAssault", p. 12, para. 25;
see also "Amnesty Internationaldénonceles viols qui se poursuiventen
Bosnie",Le Monde, 23 Jan. 1993,p. 3, Annex 861.Reply ofBosnia andHenegovina
146. This type of observations have been made by many authors.VéroniqueNahoum-
Grappe, a well known French social scientist,who studiedthe recent fate of Bosnian
women in Bosnia and Herzegovinanoted:
"Ce sont les avortements provoqués au-deladu sixièmemois, ainsi que les tentatives de suicide, les
dépressions,les insonmies et les cauchemars à répétitionqui ont mis les psychiatres des camps de
réfugiéssur la piste des viols pendant l'année"["Purifierle lien de filiation.
Les viols systématiquesen ex-Yougoslavie,1991 -1995",Esprit, Dec. 1996,p.
155, Annex 871.
The AmericanJournal ofPreventiveMedicinepublished an extensive articleon
"Rape TraumaSyndrome",which includes:
"Symptoms include fear, helplessness, shock and disbelief, guilt, humiliation and embarrassment,
anger, and self-blarne. Flashbacks of the rape, difficulty concentrating, 'seeing the assailant
everywhere', andnightmares retraumatize the rape survivor, maintaininga high level of anxiety.
Over the long term, the survivor of rape may suffer from depression,ual dysfùnction,
difficulties with relationships, fear andnd a return of night[IvrL~. Schwartz,
"SexualViolence against Women:Prevalence, Consequences,SocietalFactors,
and Prevention",AmericanJournal ofPreventiveMedicine, 1991,7[6], p. 365,
Annex 881.
These syrnptomsare of course even aggravatedin the temble circumstancesin which
rape and sexual violence occurred in Bosnia and Herzegovina against the non-Serb
women.
147. One of the fiequent consequenceof rape - pregnancy - creates a terrible choice for
the woman: she does not know whether to ask for an abortion, or, if she can no
longer have an abortion, whetherto abandon or keep the child. A study was done by
physicians and psychiatristson thefirst 25 Bosnianwomen adrnittedto the Zagreb
Obstetrics and GynaecologicalClinic or its associatedregional psychiatrie centres,
after being raped: amongthose, many had a pregnancyunder 20 weeks andsome a
pregnancy over 21 weeks. The women in the last group, whocould no longerget an
abortion, showedextreme trauma. As stated in the medicalreport on their case:
"~tthe end of almost every session, the pregnant women in the present study group asked for help
in ridding themselves of the 'unnaturalbody'. They called the fetus 'a thing'. They wished that
they had a tumor instead of a baby, because a tumor could be r[Dragicaasily.I1
Kozaric-Kovacica.o., "Rape,Torture and Traurnatizationof Bosnia and
CroatianWomen: Psychological Sequelae",Amer. J.Orthopsychiat.,65(3), July
1995,pp. 431-432, Annex 781. Chapter 7-Section 6
Rape and sexuaviolence are acts prohibited by ArIIcle
Such a situation is a source of unspeakableanguish,and is extremelydestructiveof
the family and society in which face such a drama.
Rape and sexualassault - t'deliberatelyinjlictingon the group conditionsof Ife
calculated to bring about itsphysical destruction in whole or in part"
148. It is quite clear that through attacks againstthe woman, the whole social fabric of the
family andthe group is under attack. TheYugoslavRepresentativeemphasisedthis,
duringthe preparatory work of the Genocide Convention, whenhe declaredthat
"Genocidecould be comrnittedby forcingmembersof a group to abandontheir
homes" [United Nations GeneralAssembly, 3rdSess., Officia1Records, Pt. 1, Sixth
Cornmittee,pp. 184-1851.In French, the idea is even stronger, as M. Bartos, the
Yugoslavmember of the ILC, said: "On peut commettrele génocideen contraignant
un groupe à abandonnersesfoyers". How better to forcepeople to abandontheir
'Ifoyers"t,han by destroyingthem through the psychicalor physical destructionof the
mothers?Professor Cherif Bassiouni stated:
"traumatised survivors of sexual violence maynot be able to fûlfil their roles within the family or
their socieîy;this could seriously damage the socieîy'sfabric and destroy the group. The
widespread use of sexual violence to destroy the of a society may be considered a form of
grnocide."[CherifBassiouni,Sexual Violence,OccasionalPaper No. 1, IHLRI,
De Paul University, 1996,pp. 32-33, Annex 711.
149. The intent to profane the woman, that is inherentin rape, is an intent to destroy the
genealogical link on which al1societies arebased. This intention of profanation of
the fundamentalvalues of a communityhas been described by the formerly
mentionedFrench researcherin sociology:
"(...vouloir faire le mal est aussi un travail intellectuel: toucherle point sensible,c'est aussi
connaître son espace sacréau sein de la culture de la victime. Or, le plus souvent, ce
tiennent le plus les familles, et les communautés, ce sontles lieux d'inscription du lien
généalogique,endirection soit du passé(cimetières, archives, monuments,langue) soit de l'avenir
(enfants, sexualité desfemmes..). Ces lieux sont donc les objetsprivilégiés des crimes de
profanation. On peut donc définirle crime de profanation commeune tentative de toucher le lien
généalogiquelà où le profanateur croit qu'il s'ex[VéroniqueNahoum-Grappe,
"Purifier le lien de filiation. Les viols systématiquesen ex-Yougoslavie, 199 1-
1995",Esprit, Dec. 1996,p. 152,Annex 871.
150. It is not at al1surprishg that GeneralMladiCdeclared,in an interviewto a French
joumalist :ReplyofBosnia and Herzegovina
"ce qu'ily a deplussacpourmoi,ce sonlaterreet les femmes, parcequ'ellescréenlta vie."
[VéroniqueNahoum-Grappe,"Purifierle lien de filiation.Les viols
systématiquesen ex-Yougoslavie, 1991-199SVE , sprit, Dec. 1996,p. 152,
Annex 871.
Consideringthe role of women as central for life itself, for the family and social
cohesiveness,the Serb perpetrators intentionallytargeted them, inrder to destroy
the cohesivenessof the Muslim group, andits ability to reproduce itself. In other
words, theApplicant contendsthat in targetingthe women and their abilityor
willingnessto bear children, the Serbperpetrators were targeting thesymbolicrole of
women, as well astheir role in the reproductionof the group.
151. The Respondentrepeatedly stated that"ethniccleansing" or "displacementof
members of a group" does not arnountto genocide,only becausethe words "ethnic
cleansing"and "displacement"are not to be found in the Genocide Convention
[Counter-Mernorial,p. 7, para. 1.1.35, and p. 306, para. 4.8.1.4.1.However, what
matters are the facts,which give meaningto the language. The "travaux
préparatoires" of theDrafi Code of thecode of crimes againstpeace and securityof
mankind, of which Article 19 followsword for word Article II of the Genocide
Convention show,on the contrary,that its language "covereddeportationwhen
carried out with the intent to destroy thegroup in whole or in part" [Drafi Code,
Report of the ILC on its 43 session, General Assembly, OfficialRecords, Supp.No.
10, (A/46/10),p. 2621.Many of the Representativeswho expressed themselveson
paragraph 2 c of Article 19- which again restatesword for word Article II b of the
Genocide Convention - have unarnbiguouslystated that theirunderstandingwas that
a transfer of population can under certain circurnstancesbe qualifieasgenocide. For
example, M. Pawlak, Presidentof the drafiing Cornmittee,declared that the
modification of the ethnic composition ofthe populationliving in a territory must be
consideredas covered by this paragraph [A/CN.4/Ser.A/1991,ILC Yearbook,1991,
Vol. 1, p. 232, para. 881.Also, Mr.Barzegov, theRepresentativeof the USSR,
declared that he considersthat the modificationof the demographic composition ofa
territory enters into the concept of genocide,and more specificallyunder paragraph2
c of Article 19 [ibid., p. 232, para. 8M.. Thiam, the Special Rapporteur,addsthat
some distinctionshave to be drawn and that in his view, "l'implantationde colons
relevait plutôt des crimesde guerre et la modificationde la composition
démographiqueducrime de génocide" [ibid., p.233, para. 951.
152. In the previous Chapter the Applicanthasarguedthat the "ethnic cleansing"of which
the non-Serbs of Bosnia and Herzegovina becamevictims equals genocide [see Chapter 7- Section 6
Rape andsexual violence are acts prohibited by IIticle
Chapter6, Section 31.The policy of rape and sexual violence has beenone of the
crucial factors of the ethnic cleansing, whichconstitutesno doubt genocide.
153. The existenceof this clear policy of ethnic cleansingis included in several
indictmentsof the ICTFY, whichquite clearly describethe policy that has been
followed.
154. In the Indictment confmed by Judge Vohrah in the case of MiljkoviCand others
("BosanskiSamacl'),in whch six accused wereindicted, the policy of the Serbs is
describedas follows, showing thatrape and sexual assault were an integral part of
the overall policy:
"4.Afterseizingcontrolin the military take-over,Serbauthontiesundertooka campaignof terror
designedtoforce most BosnianCroat andMuslim residentsto leavethe area.
5. Beginningon 17 April 1992, Serb militaryandpoliticalauthontiescoordinatedandcanied out
the following actionsas partof thatcampaignofor:
a) arrestedanddetained mostof the BosnianCroatandMuslimmen (...)
b) establishedandoperated,primarilyunderthe authontyof the Serbpolice, detention camps,
where prisonerswere killed,beaten,ured,sexually assaulted, andotherwisemistreated."
[ICTFY, Indictment,Prosecutorv. Miljkovii and others ("BosanskiSarnac '9,
Case No. IT-95-9-1,21 July 1995,p. 1, paras. 4-5, emphasis added].
Moreover, these acts are considered to bepart of a more general plandirected
againstthe non-Serbpopulation; since many of the acts and omissions charged "were
part of a widespread, systematic or large-scaleattack againstthe Croat and Muslim
residentsof the municipalityof Bosanski Samac" [fiid. para. 171.
155. But nowhere has the link betweenthe policy of ethnic cleansing andthe policy of
rape and sexual violencebeen more clearly enunciated thanin the Review of the
Indictmentsof KaradiiiCand MladiCpursuant to Rule 61, by the Decision of the Trial
Chamberwhere it is assertedfirst that there was a policy of ethnic cleansing,second
that rape and sexualviolencewas an inherentand essentialpart of thatpolicy of
ethniccleansing.
156. This questionwas first presented during the Hearings in the cases of KaradZiCand
MladiC,by Mrs. Christine Cleiren, whoas stated earlier was amember of the
Commissionof Experts, in her aminrs curiaepresentation,where she statedthat
"part of the sexual violence can only be understoodwithin the context of the practice
in the various camps and relatedto the broader concept of 'ethniccleansing."'
[ICTFY,Trial Chamber,Karadfiéand Mladié,CasesNo. IT-95-5-R61 and IT-95-Reply of Bosnia and Henegovina
18-R16,TestimonyCleiren,2 July 1996,pp. 15-17,Annex 791.Followingthis
statement,Judge Odio Benito wantedmore explanation onthis link and therefore
interrogated Mrs. Cleiren:
"~uestion: 'How does rape fit into the practices ofethnic cleansing?' (...)
Answer: Important is (...) that the practice of ethnic cleansingis canied out in strategic areas
linking the Serbia proper with the Serbian inhabitedareas (...)
The (...) question you ask is, how didrape fit into the practices of ethnic cleansing? It can be said
that rape has been used not only as an attack on the individuals,butthat it was intended to
humiliate, tohame, to degrade the entire ethnicgroup. There are reports of public rapes, for
example, in front of a whole village, old women, children, young children. Also, there are reports
that the rape, rape and sexual violence, wasused to let people fleeir region. So you can
say that this is part of a policy of ethnic cleansing.
Another argumentcan be that the perpetrators often toldtheir victimsthat they had to become
pregnant or that theyld them in custody, that it was toolate for the victim to have an abortion.
Also, often it is told that the -ooften the women were told that they would have children of
the perpetrator'sthnicity, and they would be a living remember of what happened in this war.
Some perpetrators had declared that they were ordered to rape. So,e arguments together,
you can think that rape was part of this policy of ethnic cleansing (...)
Q: Professor Cleiren, were there also rapes not necessarily associated withethnic cleansing?
A: Yes, 1guess there are (...) 1guess you can say that there were individualrape cases also. Maybe
it is possible to Saythat they were, effectively, causedby the breakdown of law and order, so they
caused their own cases of sexuai violen[Ibid.,pp. 15-17,emphasis addded].
157. In the Decision of the Trial Chamber,it was first stated thatfrom Apnl 1992on, a
clear policy of ethnic cleansingwas adoptedin Bosnia and Herzegovina:the policy
of ethnic cleansing,entailedthat "the samedeliberate lineof conduct was adopted,
throughoutthe municipalitieswhere the Prosecutor carried out investigations relating
to the first indictment,i.e. FoCa,BosanskiSarnac,Vlasenica,BrCkoand Pnjedor (...)
Discriminatory administrativemeasures were established, andarbitrarymurders and
rapes were committed." [ICTFY,Trial Chamber,Reviewof the Indictmentpursuant
to Rule 61 of the Rules of Procedure and Evidence,Prosecutor v.KaradZiCand
MZadiCC , asesNo. IT-95-5-R61and IT-95-18-R16,11 July 1996,p. 31, para. 60,
emphasis added] .
158. Secondly,it stems also fkomthis Decision, that notonly wassexual violence oneof
the aspectsof ethnic cleansing,but that sexual violence wasa major componentof
thatpolis. of ethnic cleansing.Initially,the Trial Chamberestablishes that sexual
violencewas an aspect of ethnic cleansing:
"'hose methods of 'ethnic cleansing' include,in particular, (...) sexu[ICTFY,Trial
Chamber,Review ofthe Indictmentpursuantto Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. KaradZiCand Mladié,CasesNo. IT-95-
5-R61 and IT-95-18-R61, 11Jul 1996,p. 33, para. 621. Chapter 7 - Section 6
Rape and sexual violence are acts prohibited by Article II
159. The Applicant deems it necessaryto quote the Decisionof the Trial Chamber
extensively, as it establishestwo important points: thefirst point being that actsof
sexual violence outside the camps must be analyzedas genocidal acts as must acts of
sexualviolence inside the camps, which were the only ones qualified as genocideby
the Prosecutor;the second important pointbeing that accordingto the Trial Chamber
this general policy of sexual violence - inside and outside the camps - was a centre-
piece of the policy of ethnic cleansing:
"~urther, the Tnal Chamber considersthat, among the methods of 'ethniccleansing', sexual
assaults warrant special attention owing to their systematicnature and the gravity of the suffenngs
thereby inflicted on civilians.) In his indictment of 25 July 1995, the Prosecutor focused on the
sexual assaults committed in the detention facilities of the Bosnian(...) It seems to the Trial
Chamber, however, that sexual assaults in the camps constitutebut one aspect of a broader practice.
Sexual assaults were committed by individuals orgroups before the conflict broke out, in a context
of looting and intimidationof the population.Dunngilitary attacks.on civilian gatherings, there
was sexual abuse, inparticular public rapes. It seems that somewomen were particularly affected
by the practice ofexual assauit."[Ibid.p. ?, para.?]
The Trial Chamber further insists on the fact that this general policy of rape and
sexual assault - whether performed inside or outsidethe camps - must be considered
to be central to the policy of ethnic cleansing:
If(...)On the basis of the features of al1these sexual assaults,it may be inferred that they were part
of a widespread policy of "ethnic cleansing":the victirnswere mainly "non-Serbian" civilians,the
majority being Muslims. Sexual assaultsoccurred (...) in a systematic fashion and using recumng
methods (e.g. gang rape, sexual assaultsin camps, use of brutal means, together with other
violations of international humanitarian law). were performed together with an effort to
displace civilians and such as to increase the shame and humiliation of the victim and of the
cornmunitythey belonged to in order to force them to leave. It would seem that the aim of many
rapes was enforced impregnation;several witnessesalso said that the perpetrators of sexual assault
- ofien soldier- had been given orders to do so and that camp commanders and officers had been
informed thereof and participatedherein"[fiid., p. 34-35, para. 641.
160. The findings of the Trial Chamberare in line with the observationsof the
Commissionof Experts which statedthat:
"1t is important to distinguish between'opportunistic'crimes and the use of rape and sexual assault
as a method of ethnicc~eansing."[United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX,
"Rape and SexualAssault",p. 13,para 271.
161. The fact that repeatedsexual assaultsperformedby Serb perpetrators on Muslirn
women was part of a policy of ethnic cleansing hasalso been underscoredby theReplyofBosniaandHerzegovina
Special Rapporteurof the Commission onHuman Rights in the end of 1992.Mr
Mazowieckireports:
"Ethnic cleansing does not appear to be the consequence of the war but rather its goal. This goal,
to a large extent, hasady been achieved through killings, beatings, r[United.)IV
Nations, Situationof HumanRights in the territoryof theformer Yugoslavia,
reportsubmittedby Mr. TadeuszMazowiecki,SpecialRapporteurof the
Commissionon HumanRights,E/CN.4/1992/S-1/10,27 Oct. 1992,p. 3, para.
61.
In a later Report Mr Mazowiecki concludes:
"~ape is an abuse of power and control in which the rapist seekçto humiliate, shame, degrade and
temS. the victim. In al1his reports, the Special Rapporteurhas emphvarie9 of methods
whichare usedto achieveethniccleansinRape is one of these methods (...) In this context,rape
has been used notonly as an attack on the individual victim,but is intended to humiliate,shame,
degrade and terri@ the entire ethnic group. There are reliable reports of public rapes, for example,
in fiont of a whole village, designedto terrorize the population and force ethnic groups toflee."
[lbid., E/CN.4/1993/50, 10 Feb. 1993,p. 20-21, para. 85, emphasis added].
In his Ninth Periodic Report,Mazowieckiagainrefers to rape as part of a policy of
ethnic cleansing. And as a conclusionconcerningthe year 1994, Mazowieckistates
that rape was a componentof the general policyof ethnic cleansing:
"~he current wave of forced and fear-induced displacementin areas under the control of Bosnian
Serb forces is the largest since the summer of 1992.Muslims, Bosnian Croats and Roma have al1
suffered (...) violence, including ra[United Nations,SituationofHumanRights
in the territoryof the formerYugoslavia,Ninthperiodic reportsubmittedby
Mr. Tadmz Mazowiecki,Special Rapporteurof the CommissiononHuman
Rights, Transmitted by the Secretary-Generalto the General-Assemb2a ynd the
SecurityCouncil,A/49/641, S/1994/1252,31. Oct. 1994, p. 16,para. 793.
162. The fact that thegoal was thedestructionof the group as such has corneto the
forefront quiteofien in the accountsof the rapes. Forexample:
"~ajcewas apparently a camp for mostlywomen. Reportedly, it had a population500.uTheo
reporthm this camp alleges that asyoung as seven or eight were raped, and that the reporter
was rapedby severalmen,one after the other. The men, allegedly wore masks and forced the
womemto Say: '1am a Serb,1am not a ~uslim.'[United Nations,FinalReportof the
UnitedNations Commission oE fxperts, S/1994/674/Add.2(Vol. V), 28 Dec.
1994, Annex IX, "Rape and SexualAssault",p. 41, para. 1861. Chapter7 -Section6
Rape andsexualviolenceare actsprohibitedbyArticII
163. The wayin which the systematic rapes havebeen performed must be analyzedas a
deviceto destroy the Muslim group as a group. It is documented thatwhen Serb
forces enterinto a conqueredvillage in Bosnia and Herzegovina,they proceed in the
followingmanner, they:
"pull several girls and women fiom their homes and rape them in public, thereby shaming them
and creatingerror among the town's population(...) In this way, rape is a highly economic
weapon in the kind of 'ethnic cleansi[BeverlyAllen, "RapeWarfare in Bosnia-
Herzegovina:The Policy and the Law", TheBrownJournal of WorldAfairs,
1996, Vol. III, Issue 1, p. 314-3151.
164. Similar observationswere made by Ms. Shana Swiss, a physicianwho was a member
of the medical team sent by Mazowieckito Bosnia and Herzegovina:
"The terrorism of rape sometimesforces entire communities into flight, further disintegrating
community safeguards against rap[S. Swiss and J.E. Giller, "Rapeas a Crime of
War: A Medical Perspective",JAMA,4 Aug. 1993,Vol. 270, p. 613, Annex
751.
165. The devastating effectof rape on the existenceof the grouphas been best depicted
by a former prisoner, Vasif GutiC,who was a doctor who examined womenin the
Trnopoljecamp andwho testified before the ICTFY. These are his words, as
reported in the Judgementin the TadiCcase:
"The very act of rape, in my opi-iInspoke to these people, 1observed their re-cit had a
terrible effect on them. They could, perhaps, explain it to thernselveswhen somebody steals
something fiom them, or even beatings or evenings. Somehow they sort of accepted it in some
way, butwhentherapesstartedthey lost al1hope. Untilthentheyhadhopethatthiswar could
pass, thateverything would quietdown. Whenthe rapesstarted,everybodylost hope,everybodyin
the camp,menandwomen." [ICTFY,Trial Chamber, Opinion and Judgement,
Prosecutor v. DuSkoTadiC,Case No. IT-94-1-T,7 May 1997,pp. 64-65, para.
175, emphasis added].
Rape and sexual assault - "imposingmeasures intended toprevent births withinthe
gvoup "
166. Many of the women who survivedrape have been so traumatisedthat they are no
longer able or ready to have normal sexual relations,and are not ready to give birth
to children.The mass rapes end up stoppingor slowing down the reproductioninside
the group.Reply of Bosnia andHerzegovina
167. It is unnecessaryto insist on the fact that a woman whohas survivedrape is less
likely to enter into marriage and to lay the foundationsof a new family, as has been
noted by several observers. Beverly Allen,writing on the systematicrapes thattook
place in the Serb-run camps, concludes that:
"This kind of rape has genocidal intent in that it causes severe physical and psychic trauma that
may well interfere with the victim's future reproductive functionsand soc[Beverlyility."
Allen, "Rape Warfare in Bosnia-Herzegovina:The Policy and the Law", ne
Brown Journal of WorldAflairs, 1996, Vol.III, Issue 1, p. 3151.
168. The Indictmentof GagoviCby the Prosecutorof the ICTFY, as confirmedby Judge
Vohrah, holds that:
"~any women suffered permanent gynaecologicalharm due to the sexual assaults. One woman can
no longer have children, al1women suffered psychic and emotional harm; some remained
traumatised"[ICTFY, Indictment,Prosecutor v. Gagovié("Fota'.), CaseNo. IT-
96-23-1, 17 June 1996,p. 13, para. 7.101.
In the same Indictment, the accusedis charged of thespecific caseof rape entailing
particular brutality, and resultingin rende~g the victim unable to bear children:
"On or about15 July 1992, GOJKOJANKOV ed FWS-48 to an empy Muslim house in the
AladZaneighbourhood. When FWS-48 anived, about 14Montenegrin soldiers were already
present. DRAGAN ZELENOVIC then anived with about 8 more soldiers, among them ZORAN
WJKOVIC [a Serb Chief of police]. DRAGAN ZELENOVIC took FWS-48 to a room and
threatened to slashher throat if she resisted.GAN ZELENOVIC raped FWS-48
(vaginal penetration and fellatio) together with ater 7 soldiers. (...) During the sexual
assault, ZORAN VUKOV Iit [the victim's] nipplesa number of times. Although twaswitness
bleeding from these bites, the 7th men squeezed and pinched hashe raped her. [She]
faintedasa result of pain (...) and can no longer give birth to children" as a result of the sexual
abusesshe was subjectedto."ibid., pp. 16-18, paras. 9.11 and 9.191.
169. According to Professor Bassiouni:
"women subjected to sexual violence may become physically or psychologicallyunable to have
intimate relationships with men, or they may be rejected by the men of their comrnunity.Either
situation would prevent births within the group and underminethe family structure."
Bassiouni, Sexual Violence,OccasionalPaper No. 1, IHLRI, De Paul
University, 1996,p. 32-33, Annex 711.
170. Of course, mutilation of men's genitalsmust also be analyzed as an act intendedto
prevent births withinthe group, as this mutilation preventsmen fkomprocreating. Chapter -Section6
Rape and sexual violence are acts prohibitedIIy Article
But sexualviolence itself can also have very negative effect on men's capabilityof
reproduction. This aspect of sexual violencewas emphasised during an International
Seminarheld on 22-23 April 1996in Zagreb, organised bythe Medical Centre for
Human Rights, an NGO whose Presidentis Doctor Mladen Loncar,who had himself
been detained in a Serb-run camp. During this serninar,sexual violence againstmen
was analyzed andit was demonstrated that theincident reported in the TadiCcase of
a man whose testicles were bitten off by another man, was not an isolated event.
Following this Seminar,a research prograrnwas launched by theWHO and the
European Union on sexual assaults on men during the conflict in Bosnia and
Herzegovina.The first results have been summarisedin Le Mondein the following
manner:
ma peesiers résultats permettent de constater que les hommeces violences ont le
plus souvent entret50 ans, qu'il les ont subies dans plusieurs camps serbes (parmi lesquels
Sremska Mitrovica,narska, et Manjaca), et qu'elles s'accompagnaient pratiquement toujours de
menaces du type: 'Tu ne fera plus d'enfant musulman (ou turc ou oustachi)', ce qui suggèrequ'il
s'agissait de tortures ayantpour objectif de détruire la fonct["Un aspectctive"
particulier du nettoyage ethnique", Louise Lambrichs,Le Monde, 30 May 1996,
p. 24, Annex 891.
Accordingto Doctor Loncar, approximately 5,000non-Serb men have been the
victims of sexual violence: alrnostsystematically,the testicles of men were severely
beaten when they arrived in the camp, whichcreates a local oedemavery frequently
followed by stenlity, although thereis no apparentmark. Medical studieshave been
made on the consequencesof these types of local oedernaon sterility: although it is
not proven that complete sterility systematicallyfollows such injury, it has been
proven that there is a clear correlationbetweenthis trauma and asthenozoospermia,
which is a diminution in the mobilityof sperm,necessarily having a negative
influenceon men'sability to procreate [see A. Koller, U. Maier and H. Pflüger, "Das
Hodentrauma und seineBedeutung furdie Fertilitatdes Mannes"("Testicular Trauma
and its significancefor Male Fertility"), 2. Urol.Nephrol., 78 (1985), pp. 430-431,
Annex 901.
172. The forced separationbetween Muslimmen and Muslim women,systematically
organisedwhen Serb forces entered a village or a town and started to engage in the
deportation of the populationliving in them which has been stated over andover in
this Reply, necessarilyentails that lessbirths will happen in the communitytom
apartin such a way. This consequencehas alreadybeen underscored byLemkin, in
his formerly mentioned article, where he stated, analysingthe Germanpolicy towardsRepiyofBosniaandHenegovina
Jews in occupied territories: "Thebirthrate of the undesiredgroup is being further
decreased as a result of the separationof males fiom femalesby deportingthem"
[RaphaelLernkin,AxisRule in OccupiedEurope, Washington, 1944,p. 86, Annex
841.
Rape and sexual assault - 'yorciblytransfem'ngchildren of the group to another
group "
173. Rape has not only been used systematicallyfor the purpose of inflicting fear, pain,
injury and suffering as part of the carnpaignof genocide,rape was also used as a
way of affecting the demographicbalanceby irnpregnatingMuslim womenwith the
sperm of Serb males. Referencecan be made hereto the fact that raped women were
kept prisoners in the concentrationcamps, after their rape andfollowingpregnancy,
in order to give birth to "Serbian babies".
174. A discussion betweenJudge OdioBenito and Mrs. ChristineCleirenduring the
Hearings in the KaradZiCand MladiCcases showsquite clearlyhow rape could result
in transfemng children fiom one ethnic groupto the other:
"Q: One of the fom of the ethnic cleansingwhich you also mentioned wasto bring children of
the perpetrator's ethnicity?
A: Yes.
Q: Which, in another way, is to change the ethnic character of the population?
A: Yes (...) It has to do with descendency, with the succession.As far as we could see, it meant
that producing a child of another ethnic background wasan automatic result of the fact that he
child would have the ethnicgin of the fath[ICTFY,Trial Chamber,Prosecutor v.
KaradZii and Mladii, CasesNo. IT-95-5-R61 and IT-95-18-R16,Testimony
Cleiren, 2 July 1996, p. 19, Annex 791.
175. These accusationsof forciblytrymg to change the ethnic character ofthe population
have been made in some of the indictmentsof the ICTFY. The GagoviCIndictment
states:
"Both perpetrators told her that she would now give birth to Se[ICTFY,es."
Indictment,Prosecutor v. Gagovid,CaseNo. IT-96-23-1,26 June 1996,p. 15,
para. 9.31.
With even more probatory force,the Decision of the Trial Chamberfor the Review
of theIndictrnentsof KaracEiCand MladiCrecognisesthat: Chapter7 -Section6
Rapeandsexualviolenceare actsprohibitedby ArticleII
"some camps were specially devoted to rape, with the aim of forcing the birth of Serbian offspring,
the women ofien being interned until it was too late to undergo an abortion (...) It would seem that
the aim of many rapess enforced impregnation(...[ICTFY,Trial Chamber,Review
of the Indictrnentpursuant to Rule 61 of the Rules of Procedure and Evidence,
Prosecutor v. KaradZikand Mladik, Cases No.IT-95-5-R61 and IT-95-18-R61,
11 July 1996,pp. 34-35, para. 641.
176. TheCommissionof Experts found that:
"one woman was detained by her neighbour (who was a soldier) near her village for sixth months.
She was raped almost daily by th~eeor four soldiers.She was told that she would give birth to a
chetnik boy who wouldill Muslimswhen he grew up.[United Nations,Final Report of
the UnitedNations Commissionof Experts, SI19941674(Vol. 1),27 May 1994,
p. 59, para. 2481.
177. This dimensionof the assault on the Muslim group, by interference with the
procreative process, hasbeen highlightedby Véronique Nahourn-Grappe:
"~'entre~rise de nettoyage ethnique ne vise pas seulement l'éliminationde l'autre dans l'espace,
mais aussi dans le temps, passéet futur 11vise non pas sa mort seulement, mais son
'éradication'et donc son impossible recommencement(...) Le violeur veut déloger,éradiquer et
concevoir à nouveau à son image le germe alternatif.La souillure du viol veut non pas la mort de
l'autre, trop douce, mais défaire sanaissance, recommencer sa conception en remplaçant cet autre
collectif 'génétique'roi.. Le terme d'éradicationest pertinent: ce sont bien les racines qui sont
l'objet de ce nettoyageond qu'est le viol. Ellesne repousseront plus puisqu'une greffe
alternative a étéimplantéedansmatrice.[Véronique Nahourn-Grappe, "Purifielre
lien de filiation. Les viols systématiques en ex-Yougoslavie1 ,991-1995",
Esprit, Dec. 1996,p. 157-158,Annex 871.
In other words, rape interfereswith a woman's ability to detennine her lineage, and
through her with her community'sability to survive.
178. The tactic of irnprisoningraped women until theyhave reached an advancedstage of
pregnancy and can no longer have an abortionhas been extensivelyreported. As
statedin Newsweek:
"Rapes (were) comrnitted expressly to impregnate Muslimwomen andhold them capture until they
give birth to unwanted Serbianies."["A Pattern of Rape",Navsweek, 11 Jan. 1993,
p. 26, Annex 911.
179. Beverly Allen has also stressedthis deliberateand awful practice adopted towards
the women held in detention camps andraped:Reply of Bosnia andHenegovina
"Those who do not get pregnant are kept alive (and continually raped and tortured)until their
pregnancies have passed the point at which safe abortionbepossible. Then often in the eight
month or so of pregnancy, these girls or women are released to find theirway to Zagreb or a
refugee camp, or UN "safe area". This form of rape is the most deviousand paradoxical of the
rape crimes, as it aims for genocide by means of reprodu["Rape Warfarein Bosnia-
Herzegovina:The Policy and the Law",TheBrownJournal of WorldAflairs,
WinterISpring 1996, Vol. III, Issue 1,p. 315, Annex921.
180. In fact, the idea that hasbeen spread by the Serbsthat raping Muslimwomen can be
a way in which to augment the numberof Serb children,is a complete negation of
the Muslim women as human beings. This has been aptly underlined by Beverly
Allen:
"~nforced pregnancy as a method of genocide makes sense only if you are ignorant about genetics.
No baby bom fiom such a crime will be only Serb. It will receive half its geneticmaterial fiom its
mother. Moreover, it will be raised within the mother -if her culture survives anywhere,
that is. The Serb policy of genocidal rape aimed at pregnancy,the spectre that making more
babies with a people equalslling that people off. Thisillogic is possible only because the policy's
authors erase al1identity characteristicsof the mother otherthan that as sexual container."
[Beverly Allen, Rape Warfare,Minnesota, 1996,p. 87, Annex 931.
181. This policy of trying to changethe identity of the group through genetics hasits
roots in very primitive beliefs, as underlined by Véronique Nahoum-Grappein Le
Monde:
"11s'agit d'une politique déterminée et consciente, founrsystème de croyance désut ui
donne au sperme et au sang une valeur de transmission ontologique,et donc de définition
'ethnique' du groupe. Les liens du 'sang'se fondent alors sur la maîtrise de la circulation du
sperme, qui devient le véhicule absolu de la transmissionide["Bosnie:Le jeu des
assassins",Le Monde, 13 Jan. 1993,p. 2, Annex 941.
182. The overall goal of this policy of forced irnpregnationwas highlightedby M. Umer,
the Representativeof Pakistan at the GeneralAssembly,during the discussion ofthe
text of what became Resolution481143of 20 December 1993,when he condemned
the fact thatthousands of Bosnianwomen were submitted tosuch criminalpractice
in order to modi@the demographic compositionof Bosnia and Herzegovina[Third
Commission,A.C. 3148lSR.50, para441.
183. The intention of the Serbs when theyraped Muslim womenwas outspokenclearly:
they wanted these women to bear Serb childreninstead of Muslim children.This
certainly is to be seen as "preventingbirths withinthe group". And althoughthis
does not amount to a physical transfer of a bom child, it is the Applicant'sfeeling Chapter7 -Section 6
Rape and sexual violence are acts prohibited bIIArticle
that it amountsto the transfer of a child to bebom fiom the Muslim community to
the Serb community,or at least shows an intention to effectuatesuch a transfer.
Therefore, these rapes must be condemnedas acts of genocideunder Article II of the
Genocide Convention,as their purpose is to "forcibly transfer children (to be bom)
fiom one group to another group".
184. Moreover, in the ovenvhelmingmajority of cases of births after a rape, the woman
who gave birth to a child, decided to abandonhirnher irnmediately.The study done
by physiciansand psychiatristson the first 25 Bosnianwomen admitted to the
Zagreb Obstetricsand GynaecologicalClinic or its associatedregional psychiatrie
centres, showsthat the raped womenwho did not ask for an abortion and brought
their pregnancy toits term, did reject their new bom child. After their delivery, they
showedtragically negative primary matemal preoccupation, and abandonedtheir
child:
"~llfive of thewomenwhogavebirth tochildrenconceivedbyrapeabandoned theminthe
hospital.Itwasclearthateach woman considerhefetusas a foreignentityin herbody."
[Dragica Kozaric-Kovacic andal, "Rape,Torture and Traumatizationof
Bosnian and CroatianWomen: Psychological Sequelae", Amer.J.
Orthopsychiat.,65(3), July 1995,p. 429, Annex 781.
185. Althoughthe fate of a child afterbeing abandonedis not quite clear, it is at least
evident that the newlybom baby did not remain in the family in which it was bom,
and it is moreover a strong presumptionthat a child bom from a Serb rapist father
might not be welcome in the Muslimcornrnunity.In this case, it is quite clear that
the rape must be condemnedas acts of genocideunder Article II of the Genocide
Convention. Evenif the Court does not accept this interpretationof "transferof
children fiom a group to another",the policy here described definitelyis another
indication of the clearintent of the Serb perpetratorsto destroy in whole or in part
the Muslim group.
Conclusion
186. In this Section the Applicanthas shown that, and how, eachand every subsectionof
Article II of the GenocideConvention wasviolated through the massive rape and
sexual assaults cornmittedby the Serb side against the non-Serb people, especially
women, mostly Muslims of Bosnia and Herzegovina.This turned out to be the case
for:Reply of Bosniaand Henegovina
- killing of mernbersof the group;
- causing serious bodily or mentalharm to membersof the group;
- deliberately inflictingon the group conditionsof life calculated tobring about
its physical destructionin whole or in part;
- imposing measuresintended to prevent birth within the group;
- forcibly transfening children of the group toanother group.
The Applicant will now demonstratethat mass rapes and sexualviolencewere
cornmitted"with intent to destroy, in whole or in part, a national,ethnical,racial, or
religious group, as such", as required by Article II of the Genocide Convention.
7. Mass rape and sexual violencewere committed withgenocidalintent
Introduction
187. The Applicant will show that, as far as rape and sexual assault againstthe Muslim
group is concerned, numeroussourcesare convergingin coming to the substantiated
conclusionthat rapes were not randomacts performedin a situationof chaos, but
followeda clear policy of destructionof the Muslim group.
188. Rape and sexual violencehave clearlybeen used in order to further the genocidal
policy of ethnic cleansing. The policy followedby the Serbian forces was to arouse
fear and panic by a massive recourse to rape and sexual violence, andfear and panic
was deemed to make the Muslims fleefiom their homes, so that the regions that
were to be part of Greater Serbiawould be ethnicallycleansed.
189. Very rarely will govemrnentsbe as explicit as Hitler was,when he proclaimedin
unambiguousterms in Mein Kampf his intent to exterminatethe Jewishpeople.
Therefore, it will quite seldombe possible toproduce "writtenevidence"of an intent
to destroy a group in whole or in part. Other means of proof are thereforenecessary.
In other words, proof has to rest on presumptions or implications.
190. It is, for the purposes of this case, not necessary totry and analyzethe state of mind
of eachrapist, while he was perfonning his act. What is necessary for his act to be
consideredas an act of genocide is that this act is part of an overallpolicy, of which
the intent is clearly to destroy in whole or in part the non-Serbgroup, and
particularlythe Muslim group. It is the Applicant'scontentionthat it is not necessary
to prove the psychological stateof mind or animusof the person committingrape or Chapter 7- Section 7
Mass rape and sexual violence were committed withgenocidal intent
sexual assault, but that the existenceof the genocidalintent can be inferred fi-omthe
circumstancesof the facts of the case.
191. The same approach was followed by the Representativeof Yugoslavia,in 1948, at
the time and on the occasion of the adoptionof the GenocideConvention, when he
addressedthe Sixth Committeeof the GeneralAssemblyof the United Nations. He
observed that the text of the GenocideConvention shouldbe interpreted in order to
make the duty of "the suppression of genocide dependent" not "upon a subjective
psychologicalcondition",but on the contrary"upon the fact of the criminal act
alone" [Sixth Committee,GAOR, 1948,Sumrnaryrecords of meetings,21 Sept.-1O
Dec. 1948,p. 821.
The idea that intent can be inferred fiom the facts is, indeed,not new and has been
used in a very related contextto prove the existenceof the intent to commit
inhumane acts against a civilianpopulation, whichis necessaryto exist in order that
these acts can be consideredas crimes againsthurnanity[See for example, Joseph
Altstotter and others ("Justicecase"),Law Reports 88, vol. VI, cited in the Tadii
decision, note 1941.
192. It has been already fully demonstratedin this Reply thatintent may be inferred fi-om
patterns of facts [see Chapter 3, Section 1; Chapter 6, Section51.However, intent
being such an important feature of genocide,it is not inadequateto restate here that
the ICTFY has indicated clearly on three different occasions thatintent can be
inferred fi-omcircumstances:in the NikoliCcase, in the KaradZiCand MladiCcases
and in the TadiCcase.
193. The Trial Charnber found in the case of NikoliCthat:
"(..theconstitutiveintentof theaime of genocidemaybinferredfrom the very gravity of those
discriminatory act[Decision of theTrial Charnber,Review of the Indictrnent
pursuant to Rule 61 of the Rules of Procedure and Evidence,Prosecutor v.
Nikolit, ICTFY, CaseNo. IT-94-2-R 61, 20 Oct. 1995,p. 20, para. 34,
emphasis added].
194. The same interpretationwas given by the Trial Chamber in its Decision in the case
of Kara.6 and Mladi6:
"'Theintentwhichis peculiarto the crimeof genocideneednotbe clearly expr. s thisTrial
ChambernotedintheabovementionedNikoliCcase,theintentmaybe inferredfiom a certain
numberof factssuchasthe general political docwhich gaveriseto the actspossiblycoveredReply of Bosniaand Herzegovina
by the definition [of genocide] (...) or the repetition of destructiveand discriminatoryacts. The
intent may also be inferred from the perpetration of acts which violate, or which the perpetrators
themselvesconsider to violate, the veryfoundation of thegroup, acts which are not in themselves
covered by the list in Article 4 (2) but which are committed as part of the samepattern of
conduct." [ICTFY,Trial Chamber,Review of theIndictmentspursuant to Rule
61 of the Rules of Procedure and Evidence,Prosecutor v. Karadfit and
Mladié,Cases IT-95-5-1and IT-95-5-18-R 16, 11 July 1996,p. 52, para. 94,
emphasis added] .
195. That "intent can be inferred fi-omthe circumstances"has been establishedonce more
in the TadiC.case [ICTFY, Trial Chamber,Opinion and Judgement,Prosecutor v.
DuSkoTadiC,Case No. IT-94-1-T, 7 May 1997,p. 262, para. 6761.It is importantto
underscorethat the Trial Chamberdid not deem it necessaryto prove the intent for
each and every single act committedas part of the generalpolicy, but that the
consciousnessof what was going on, the knowledgeof the conducted policy would
be sufficient:
"'TheTrial Chamber finds that aiding and abetting includes al1acts of assistanceby words or acts
that lend encouragement or support, as long as the requisite intent is present. Under this theory,
presence alone is not sufficient ianignorant or unwillingpresence. However, if the presence
can be shown or inferred, by circumstantial or other evidence, to be knowingand to have a direct
and substantial effect on the commissionof the illegal act,is sufficie[ibid.,p. 269,
para. 689, emphasisadded].
196. In other words, intent can be infened from al1lund of circumstances,as long as
these circumstancesclearly indicatethe existenceof such intent to destroy the group
whole or in part. The ICTFY, whether through statementsof the Prosecutor,as
confirmedby a Judge, or through a decision of a Trial Chamber,has indicatedsome
of the elementsmost fi-equentlyindicativeof an intent to destroy in whole or in part
a national or ethnic group:
-a political doctrine
- the gravity of the acts directed against a specific group
-the repetitive commission ofthe same destructive acts
-the nature of the acts that violate the essential foundationsof the group
-the existenceof a pattern of conduct directedtowards the group.
197. The existenceof intent to destroy drawn from the circumstances and factsof the case
may be ovemled by contraryproof presentedby the Respondent.In other words,if
the patterns of rape and sexualviolence are coherent enoughto give rise to the
presumptionof the existenceof intent to destroythe group in whole or in part, the
burden then rests on the Respondentto rebut this presumption. Forexample,the Chapter7-Section 7
Mass rape and sexual violence were committedwith genocidal intent
Respondent couldpresent evidencethat the countlessacts of rape and sexualviolence
that have occurred in very similar patterns, were not a consequenceof a general
pattern, but rather, theimilaritiesof the assaults werejust a coincidence.
198. The Applicant contends that it is possible to infer intent, by looking to the past (as
perceived bythe Respondent),the present andfuture (as envisaged bythe
Respondent) Fromthe past, motives arederivedby the Respondent,that have been
repeatedlyinvoked in the Counter-Memonal,which imply the existenceof an intent
to destroy the Muslim group. The future as envisagedby the Respondent,the
creation of Greater Serbia,provides for a motive for the destructionof the non-Serb
groups, for whom there is no room in this future. The present demonstrates,indeed,
the existenceof an intent to destroy the group. This can be inferred both fiom the
quantitativeand qualitative aspectsof the "sexual policy"of the Serb forces. The
conclusionthat this policy canied with it the intent to destroythe non-Serb group is
Mer supportedby the massive characterof the acts of rapeand sexual violence;
the targeted victimsof rape and sexualviolence; the impunitytowards the
perpetratorsof rape and sexual violence;the existence oforders to rape and commit
sexual violence; the clear patterns of rape and sexual violence.And last but not least,
the analysis made bythe ICTFY of this policy of rape and sexualviolence as a
componentof ethnic cleansing and genocideis very enlighteningon the existence of
patterns and intent to destroy the groupin whole or in part.
Intent -the desirefor "revenge" for allegedpast sexualviolence
199. In the NikoliCcase, evidencewas produced to the Trial Chamberconcerningacts of
torture against a man named Fikret "&en Arnaut,which brings to light this element
of revenge for past sexualviolence:
"~ikret"Ci~eAmautwas allegedlyassaultedby DraganNikoliConnumerousoccasions.Witnesses
relatedhowononeoccasion,DraganNikoliC camintothehangarandwhileshoutingtothe
women, 'Youarenotherebecauseof me,butbecauseof him.Hewantedtorapemymotherand
nowwe will rapeyou',forcedFikret"CiAmaut toputhishandsbehindhisbackandkneelon
thenoor(...)[ICTN, Trial Chamber,Review of theIndictmentpursuant to
Rule 61 of the Rules of Procedure and Evidence,Prosecutorv. Nikoli Case
No. IT-94-2-R61,20 Oct. 1995,p. 8, para. 171.
200. As explained above [Reply, Chapter 31revenge - like revenge for rapes allegedly
committedby UstaSasor "Turks" in the past - does not exclude genocidal intent, but
ratheris a part of it. The Trial Chamberin the case of KaradZiCand MladiCinsistedReply ofBosnia andHenegovina
on the central role of political preparationfor genocide,observingthat the defenceof
the Serbian nation restedon popular rallies "designedto rekindle tensions against the
other people of Yugoslavia, inter alia by recalling the massacres ofthe Second
World War"[ICTFY, Trial Chamber,Review of the Indictmentspursuant to Rule 61
of the Rules of Procedure and Evidence,Prosecutorv. KaradZié and Mladié,Cases
No. IT-95-5-R61 and IT-95-18-R61,11 July 1996,p. 19, para. 441. Indeed, the
desire of revenge for past events has in fact been used to foster the intent to destroy
the Muslimgroup in whole or in part.
Intent -the vision of afuture GreaterSerbia
201. The idea of Greater Serbia has oriented thepolicy of Yugoslaviafor a long tirne, as
has been extensivelyshown in this Reply [Chapter4, Section 1;Chapter 5, Section
91.As mentioned, the Trial Chamberhas declaredthat a genocidalintent can be
inferred from a general politicaldoctrine.It is true that a political doctrin-
whatever its content - does not amountper se to genocideor incitementto genocide.
However, as is shown througout this Reply, thedoctrine of Greater Serbia has in fact
directly lead to the genocidethat the Applicantis askingthis Court to recognise.
Intent -the massive characterof the rapes and sexualviolencedirected towardsthe
g'-oup
202. Earlier in this Chapter the Applicant hasabundantlyshown the massive character of
the rapes and sexual assaultsthat have been committed againstthe Muslim group in
Bosnia andHerzegovina.
The Respondentitself seemsto admit thatthe scale of the perpetrated actsis a strong
indicationof the commissionof genocide,if the relevant acts are acts forbiddenby
Article II of the GenocideConvention:
enoc oc anebe saidto existwhenmembersof a grouparesubjectto genocidalacts.Itis not
sufficientforonlyonememberof a groupto be subjectedto genocidaal[Counter-
Mernorial,p. 304, para. 4.5.1.2.1.
Without entering here into a discussion onthe 1st point, the Applicantwishes to
underscorethe fact that the Respondentacknowledgesthe importanceof the scale of
theperpetrated acts as criterionto establishgenocide. The cumulativenatureof the
acts of rape and sexual violence brings to light the intent to destroy the group,
against which these acts have been committed. Chapter - Section7
Mus rape and sexual violence were committed with genocidalintent
203. That rape is not a minor part of the genocide that has been cornmitted in Bosnia and
Herzegovina,but a major component of anoverallpolicy of exterminationof the
Muslim group, is attestedto by the number of chargesof rape and sexual assaultsas
comparedto the total number of charges for al1crimes,before the ICTFY:
"~lmost half of al1persons indicted by the Tribunal areaccused of sexual assaults or rapes, as
either perpetrators or superiors.Approximately one-fifih of al1counts in the 18 indictmentsrefer to
crimes involving sexual violence, charged as grave breaches, violations of the laws or customs of
war, crimes against humanity or acts of geno[ICTFYBulletin,No. 15/16, 10 Mar.
1997,p. 4, Annex 951.
204. The very frequent occurrenceof rape and sexualviolenceinside confmedplaceshas
also been underscoredby the Commissionof Experts:
"It is clear that some level of organisation andgroup activity is reqout many of the
alleged rapes and sexual assaults.One factor in particular that leads to such conclusion is the large
number of allegations of rape and sexual assault which occurred in places of detention. Out of
about 1100reported cases, about 600 occurred inplaces of detention. These custodial cases do not
appear to be random and indicateolicy of at least tolerating rape and sexual assault or the
deliberate failure of the camp comrnanders and localauthorities to exercise cornmand and control
over the personnelnder their authority.
Some of theallegations of rape and sexual assault are clearly instancesof apolicy of commission.
In some cases, military commanders andcamp commandersare reported to have ordered their
subordinates to rape and sexuallyassaultpeople who were not membersof the subo'ethnics
or religiousgroup.[UnitedNations,Final Report of the UnitedNations Commis-
sion of Experts, Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rape
and Sexual Assault",p. 13,paras 26-27, emphasisadded].
In the same paragraph, the Commissionof Expertsinsistson the fact that although
some acts of rape have been cornrnittedtowards Serbs,in most cases they were
committedagainst Muslims:"the vast majonty of victimsare BosnianMuslimand
the great majority of allegedperpetratorsare BosnianSerb." [ibid.].
Intent - the selectionof the victimsof rape and sexualviolence
205. Even more importantthan the massivescale of sexualviolenceis the ethnicityof the
victims of rape and sexualviolence, from which it can easilybe inferredthat there
was intent to destroythe Muslimgroup. The victims of rape and sexual violence
perpetratedby Serb forceswere al1non-Serbs,primarilyBosnianMuslims.The
countlessacts of sexual violence were mainly targeted at Bosnian Muslimwomen,
Bosnian Muslim children and BosnianMuslim men.Reply of BosniaandHenegovina
206. The Commissionof the Experts summarisedmany times what has happened,as far
as sexual violence is concerned,in variousregions. It is worth citing again what can
be found in many parts of the Report:
"~ost reportsspecificallyidentifithevictimsasBosnian M,ndmanyreportsimplythat the
victims may beBosnian Musleitherthrough teventsdescribed,orbytheameof thevictim."
[UnitedNations, FinalReport of the United Nations Commissioo nf Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994,Annex IX, "Rapeand Sexual
Assault", p. 26, para. 104; alsoibid., p. 30, para. 1241.
That rape and sexualviolence have beenused as a means to destroythe Muslim
group is shown by the mere factthat thetargets of rape and sexualviolencewere
civilians. This followsfkomthe fact that women were the main targets of rape. But
even considering the sexual assaults againstmen, nowhere, in the numerous reports
on sexual violence in Bosnia and Herzegovina, has it been reportedthat rape and
sexual assault were restricted intheir occurrenceand prirnarilydirected towards
military adversaries.Al1non-Serb civilianscould be - and, indeed,have been -
potential victims of sexualviolence,regardlessof sex and age.
208. Although al1women were under a threat of sexual violence, the "selection"done
amongthe Bosnian women indicates also that the rapes were carriedout in a way
which would have particularly destructive effectson the group. For example, the
women raped in Omarska wereintellectualsand prominent membersof the
cornmunity.The Commissionof Experts found that one of the characteristicsof the
rapes and sexual assaults is that:
"~oungwomenandvirginsaretargetedforrapeandsexual assault,longwith prominent embers
of theornmunityandeducatedwomen." [ibid.,p. 11,para. 18(c)].
Intent -the absenceofprosecutionorpunishmentof theperpetratorsof acts of
sexualviolence
209. Mazowiecki'steam of medical expertsreported that"they heard ofno attemptsmade
by anyone in a position of authorityto tryand stop the raping of women andgirls".
The team of medical experts insists on this aspect, sayingthat it holds true for both
militaryand political authoritiespnited Nations, SituationofHumanRightsin the
tem'toryof theformer Yugoslavia,report submittedby Mr. TadeuszMazowiecki,
SpecialRapporteurof the Commission on HumanRights,E/CN.4/1993/50, 10Feb.
1993,p. 72, para. 48(c) and 601.It means that the Serb authoritieshave done Chapter 7- Section 7
Mas rape and sexualviolence were committed with genocidal intent
nothing to stop the genocidal rapes andother genocidalacts of sexual violence
cornmittedagainst non Serbs.
210. This failure to prosecute has been repeatedly emphasised.For example, Mr. John
Ralston, investigator within the ICTFY Prosecutors Office, whenhe testified in the
Karadne and MladiC.cases, made thatpoint quite clearly:
"(...) he denied that atrocities had taken place and further went on to Saythat if anything had taken
place, he would punish the people responsible. However, there is clear evidence that thepeople
responsible have not beenished.'[ICTFY, TrialChamber,Karad56 and Mladié,
Cases No. IT-95-SR61 and IT-95-18-R16,TestimonyRalston, 1 July 1996,p.
14, emphasis added, Annex 801.
211. This was also establishedby the Prosecutor in the Indictmentof Sikirika and others:
"With respect to the acts described above [among them: sexual assaults]and each and evgr act or
omission chargedereafier in the indictment, except those charges where one or more of these
accused is separately charged, DuSkoSIKIRICA, Damir DOSEN, Dragan FUSTAR, and Dragan
KULUND~JA knew or had reason to know that persons inpositions of subordinate authority to
them were about to commithose acts, or had already committedthose acts, and failed either to
take the necessary steps to prevent those acts or to punish the perpetrators after the acts had been
committed."[ICTFY, CaseNo. IT-95-8-1,29 June 1995,Indictment,Prosecutor
v. Sikirica& others ("Keraterm 'y,CaseNo. IT-95-8-1,21 July 1995,p. 5,
para. 13.31.
212. Othersources also point to this absence of prosecutionfor the perpetrators of sexual
violence. For example, AmnestyInternational reportsthat Serbianparamilitary used
hotel Vilina Vlas to detain and rape Muslim women and thatthe police, when told of
the activities at the hotel said that they couldn't do anything about it. ["Bosnia-
Herzegovina:Rape and Sexual Abuseby ArmedForces",Amneslyinternational
Report, AI Index: Eur 63/01/93,Jan. 1993,p. 11, Annex 773.
Intent - the existenceof orders to rape
213. That rapes were performed accordingto an overall intent to destroy the Muslim
group is also proven by the fact that victims have declared and soldiers have
acknowledgedthat they were under orders to rape. Severalreports make mentionof
women stating that their rapists told them that they had orders to commit the sexual
assaults,that they were, in fact, permitted, incited, or even ordered to commit rapes.ReplyofBosnia andHerzegovina
214. The Government ofthe United Statesprovided thesame information,which it
deemed reliable, accordingto which the Serb forceswere under orders to rape:
"Oneof thevictimsof anearlierreportedrapeof 40 young wofiom BrezovoPolje tolda
reporterinateAugust[1992] thathe Serbianabductortoldher:'Wehaveordersto rape the
girl1.amashamedtobe a ~erb.'"[See, i.a. US Departmentof State, Bureau of
Public Affairs, Dispatch, 16Nov. 1992, Vol. 3,No. 46, p. 831, Annex96; "A
Pattern of Rape", Nausweek, 4 Jan. 1993,p. 28, column 3, para. 1, Annex 911.
In a later report the U.S. Govenunent reported on a middle aged Muslim woman
who informed that 35 women and children weretaken to Buk Bijelo, near FoCa,to
be raped and thatthe chief of police had authorised the rapes.[UnitedNations,
Letter Dated 12 April 1993from the PermanentRepresentativeof the UnitedStates
ofAmerica to the UnitedNationsAddressed to the Secretay-General, Sl25586, 13
Apr. 1993,p. 201.
In the same vein the ArnericanGovernment reported thata 21 year old Serb
confessedthat his commanderdeclared: "You can do with the women what you
like." [United Nations,Letter Dated 7December 1992from the Deputy
Representativeof the UnitedStates ofAmerica to the United NationsAddressed to
the Secretay-General, Sl24918, 8 Dec. 1992,p. 7, para. 61."You can do with the
women what you like" means that the womenin questionare no longer considered
hurnanbeings, but are reduced to objects: "You can do with the women what you
like" could mean rape as well as death, orrape followedby death. "You can do with
the women what you like" also means, more irnportantly, thatthere will be no
penalty for any crime the soldiers choose to commit.
215. The Commissionof Experts also mentionedthe existence oforders. The Commission
reports on a woman, who was raped daily by severd soldiers, according to whom:
"Theyrepeatedly said their President had orderedthem to do this" [UnitedNations,
Final Report of the UnitedNations Commissionof Experts,S/1994/674(Vol. 1),28
Dec. 1994, p. 59, para. 2481.Althoughit is not specified whoexactly the "President"
is, the existenceof superior ordersto rape non-Serb women is apparent.
216. This pattern did not change with thepassage of time but, rather, persisted in Bosnia
and Herzegovinathroughout the period addressedin the Reply.Refugeesinterviewed
by Roy Gutmanfor Naysday, declaredthat Generd Mladihencouragedhis troops to
rape the young women in Srebrenica.Accordingto a witness, GeneralMladih, after
his conquest of Srebenica declaredto his troops, after nodding at the many young Chapter 7-Section7
Mass rape and sexual violence were committed with genocidal inteni
women in the crowd: "Beautiful.Keep the good ones over there. Enjoy them." [Roy
Gutman, Newsday,Queens Edition, 8 Aug. 1995,p. 4,para. 1, Annex 971.
Intent -similar analyses andfindings by the ICTFY
217. It is now widely known that most of the sexual atrocities were cornmittedinside the
camps. Elsewhere in this Reply the Applicanthas demonstratedthat the existenceof
these many detention centreswas part of a clear and well organisedpattern [Chapter
5, Section 51.
218. The charge of genocideor of complicityto genocidehas been brought fomard
againstseveral of the Serbs accused before the ICTFY.The Applicantwill focus
here on thecases in which rape and sexual assaultshave been mentioned.
Rape is the subject of prosecutionin many of the cases before the ICTFY. In some
instances,rape has been qualified as a crime against humanity,in some other
instancesit has been qualified as an act of genocide. Forthe purpose of this case
before the ICJ, the Applicant contendsthat it does not make much difference,and it
will explainwhy this is so.
219. First, the Applicant recalls that theTrial Chamberin its Review of the Indictment in
the case of NikoliCenumerated thevarious criteria that have to be present for an act
to qualiQ asa crime against humanity. According tothe Trial Chamber, a crime
againsthumanity:
"(s)etforthinbroadtms in theStatute(..covers,accordingto prevailing opin, reedistinct
components.First,thecrimesmustbe directedata civilianpopulation,specificallyidentifiedasa
groupby theperpetratorsf thoseacts. Secondly,thecrimesmust,to a certainextent,be organised
andsystematic.Although thneed notbe relatedto apolicyestablishedatStatelevel,inthe
conventionalenseof theterm,they cannobetheworkof isolated individuslone.Lastly,the
crimes, considered a whole,mustbe of a certainscalegravity."[ICTFY, Trial
Chamber, Review of the Indictmentpursuant to Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. Nikolii, CaseNo. IT-94-2-R61, 20Oct.
1995,p. 14, para. 261.
220. As far as the crime of genocideis concerned,it is not contestedthat its specificity
cornes fiom the existenceof an intent to destroy a group in whole or in part. It has
been statedin severalReviews of the Indictrnentsand Decisions of Trial Chambers,
that the intent can be proven by the gravityof the acts directed at a group, or bytheReply of Bosnia and Herzegovina
systematic occurrencesof acts directed ata group orby the countless repetitions of
acts directed at agroup.
One can easily see that eventhe proof of the existenceof a crime againsthumanity
provides strong indicationsconcerningthe targeted civilian and the massivity of the
acts committed against them. It is clear that for the ICTFY, whichdeals with
individuals, it might be sufficientin some cases to qualiQ the acts before it as
crimes against humanityinstead of genocide,even if they also constitutegenocideif
analyzed in the overall pattern. In other words,when the ICTFYconsidersrape and
sexual assaultas a crime against humanity,this qualificationis of utmost importance
for the present case. As a matter of fact, it means that either an Indictment confirmed
by a Judge, or a Decision adopted by a Trial Chamberhas consideredthat an
identified civilian populationis the target of the acts of rape and sexual violence, that
these acts of rape and sexual violenceare organised and systematic, and that theyare
of a certain scale and gravity. When dealing with one or a few accused individuals
the Judge or Judges of the ICTFYdo not necessarilywant to look into al1of the
other relevant factswhich read together, demonstrate the intent to destroy the group
necessary for an indictment of genocide. However, the ICJ, to whicha much more
conclusive body of evidence is presented,is definitelyin a position to see the overall
pattern, including the genocidal intent.
222. Besides this, the Prosecutorof the ICTFY has also pronouncedindictmentsof
genocide, in several instances.When a Prosecutor's Indictmentconfirmedby a Judge
or a Trial Chamber considersthat rape and sexual assaultconstitute genocide, thisis
even a more important fdng in relationwith this case beforethe Court. In fact, 7
individualshave been indicted so far with genocide:MeakiC,Commanderof the
Omarskacamp, JelisiC,Commanderof the Luka camp, Sikirika, Commanderof the
Keraterm camp,KaradZiC,President ofthe Bosnian Serbs Administrationin Pale and
MladiC,Commander of the army of the Bosnian Serb Administration,DrljaCa,Chief
of the PublicSecurity Station for the municipalityof Prijedor and a member of its
Crisis Staff,KovaCeviC,Presidentof the ExecutiveBoard ofthe municipalityof
Prijedor, and a member of its Crisis Staff.
223. In the Indictment of MeakiCtwo counts include rape as acts of genocide:
"AeljkoMEAKIC,intendingto destroy,inwholeorinpart,theBosnian MuslimandBosnian
Croatpeopleasnational,ethnicorreligiousgroups,wascomplicitwithotherpersonsin causing
seriousbodilyormentalharm to BosnianMuslimandBosnianCroatpeoplefromtheopStina Chapter 7-Section 7
Mass rape andsexual violence were committed with genocidalintent
Prijedor in Omarska camp, thereby committing GENOCIDE, a crime recognised by Article 4@) of
the Statute of the Tribunal.
ieljkoMEAKI Cnending to destroy, in whole or in part, the Bosnian Muslim and Bosnian Croat
people as national,hnic or religious groups, was complicit with other persons in the deliberate
infliction of conditions of life on Bosnian Muslim and BosnianCroat peoplee opitina
Prijedor at the Omarska camp, calculated to bring abouttheir physical destruction in whole or in
part, therebcommitting GENOCIDE a crime recognised by Article 4(c) of the Statute of the
~ribunal."[ICTFY, Indictment,Meakii & others, Case No. IT-94-4-1, 13Feb.
1995,p. 5, paras. 18.2-18.31.
Rape was specificallymentioned amongthe facts that were committed regularlyand
openly in the camp: "Duringthe operationof the ûmarska camp, campguards and
others whowere subordinateto zeljko MEAUC (...regularly and openly (...)
raped" [ibid., p. 5, para. 19.21.
224. Moreover, MeakiCwas also indicted,with others,for crimes against humanityas
"cnminally responsible for the acts of their subordinatesin the rape of Ornarska
prisoners, including those describedin the paragraphshereunder" [ibid.,pp. 6-7,
para. 19.91.
Arnongthe numerous actsof rape or sexual assaultscommitted in the Omarska
camp, as describedby the Trial Chamber,the following events occurred:
"During June and Jul1992,Mladen RADIC repeatedly subjected "A" to forcible sexual
intercourse. The first occasion was on or about the night of1992.Mladen RADIC took
"A"to a room downstairs in the administrationbuilding, forced her on a table and subjected her to
forcible sexual intercourse. Two or three nigRADICateagain calle"A"out of the room
where she slept and again subjected her to forcible sexual inOnrcat least three more
occasions during June and July 1992,MladRADIC called "A" out of the room in the
administration building, forced her on a table and subjectedher to sexual intercourse.
administration building where she slept, and subjectedher toe sexual intercours[ibid.,
pp. 6-8, para. 22.11.
For these acts, the Serb accusedwas charged, amongother charges,of five charges
of a crime against humanity for each of the five events in which he irnposedforced
sexualintercourse on "A".Several otherswere accusedof the same type of forced
sexualintercourse, like Gruban, Pedrag KostiC,Mirko BabiC.
225. In the Indictment of JelisiC,he was indicted of genocide for the killings that occurred
in the Luka camp, and Ranko CegiChis subordinatebut at the sarnetime a person
having a position of authority at Luka camp, wascharged with crime against
humanity for sexual assaults cornmittedon men in Luka camp:Reply of Bosnia andHenegovina
"on about11May 1994, at Luka camp, RankCESIC forced, at gun point, Muslim detainees A
andB, who were brothers detained there, to beat each other and performsexual acts on each other
in the presence of others, causing them great humiliation and degradation. By these actions, Ranko
CESIC instigated, ordered or comrnitted:
(...)
Count52:a CRlME AGAINST HUMANITYrecognized by article 5(g) (rape, which includes
other forms ofxual assault) of the Tribunal S[ICTFY, Indictment,Jelisii &
&ii (" BrEko'i),CaseNo. IT-95-10-1,21 July 1995,p. 9, para. 331.
226. In the Indictment confirmedby Judge Vohrahin the caseof Sikirikaand others
("Keraterm"),in which 13 accused were charged withvariouscrimescomrnittedin
the Keratermcamp, DuSkoSikirikawho was in chargeof this camp and in a position
of superior authorityto anyoneelse in the camp, was charged with genocide on two
countsthat do encompassrape and sexual violence:
"~u3ko SIKIRICA, intending to destroy, in whole or inosn ni Manslim and Bosnian
Croat people as national, ethnic or religious groups, was complicit in committing genocide, a crime
recognised by Article 4(e) of the Statute of the Tribunal, by participating in the following acts:
-ount:
12.1.killing members of the group from the opStinaF'rijedorin the Keraterm camp (Art. 4(2)(a));
-ount:
12.2. causing serious bodily and mental harmto members of the groups from the opStinaPrijedor
in the Keraterm camp (Art.)@)); and
-ount:
12.3. deliberate infliction of conditions of life on members of the group from the opstina Prijedor
at the Omarska camp, calculated to bnng about their physical destruction,in whole or in part (Art.
4(2)(c)).[ICTFY, CaseNo. IT-95-8-1,29 June 1995, Indictment,Prosecutor v.
Sikirica & others ("Keratem'i), CaseNo. IT-95-8-1,21 July 1995,p. 4, para.
121.
227. In the case of Dragan NikoliC & others,DraganNikoliCwas chargedin the
Indictment confirmedby Judge Odio Benitowith crimes againsthumanityfor
numerousseriousphysical assaultson prisoners in SuSicacampnear the town of
Vlasenica,but with no more specificationsor details.However,the Trial Chamberin
its Decisionpursuant to Rule 61 suggestedto the Prosecutorto be more specificand,
among other,to quali@rape and sexualassaults as actsof genocide.This Decision
of the Trial Chamberfollowed a reasoningin severalsteps.First, it restated thatthe
acts were cornrnittedin the SuSicacamp whose "population was exclusively
Muslirn". Then, afîer having heard the oral testimonygiven duringthe Hearings,the
Trial Chamberinvited the Prosecutorto modi@its Indictment,drawing "the
Prosecutor'sspecial attentionto two points whichit deemsparticularlyimportant."
[ICTFY,Trial Chamber,Review of the Indictmentpursuantto Rule 61 of the Rules
of Procedure and Evidence,Prosecutor v. Dragan Nikolii, CaseNo. IT-94-2-R61, 20
Oct. 1995,p. 19,para. 32 and p. 10,para. 211. Chapter 7- Section 7
Mass rape and sexual violence were committed wigenocidal intent
228. The first suggestionmade to the Prosecutorwas to amend the Indictment in order to
charge DraganNikoliCwith rape and sexual assaults:
r ro mmultiple testimony and the witness statementssubmittedby the Prosecutor to this Trial
Chamber, it appears that women (and girls) were subjected to rapeand other foms of sexual
assaulturing their detention at SuHicacamp. Dragan NikoliEand other persons connected with the
camp are alleged to have been directly involved in some of rapes and sexual assaults. These
allegations do not seemto relate solely to isolated instances.
The Trial Chamber feels that the Prosecutormay be well-advised to review these statements
carefully with a view of ascertaining whether to charge Dragan NikoliCwith rape and other foms
of sexuai assauit (..[Ibid,p. 20, para. 331.
The second suggestion made to the Prosecutorwas to arnendthe indictment in order
to considerthe acts of participatingin the ethnic cleansing as genocidal acts:
"1t emerged from the basis of the record that the policyof discrimination implementedat
Vlasenica, of which Dragan NikoliE'sacts formedpart,was specifically aimed at 'cleansing' the
region of its Muslim population.
In this instance, this policy of 'ethnic cleansing' took theiscriminatory acts of extreme
seriousnesswhich tend to show its genocidal character (...)
More specifically, the constitutive elernent of the crime of genocide may be inferred from the very
gravity ofhose discriminatoryacts.
The Chamber considers that the Tribunalmay possibly have jurisdiction in this case under Article 4
of the Statute [genocide]. It would therefore invite the Prosecutor topursue its investigations, if
feasible, with a view to indicting Dragan NikoliCfor complicity in genocide or acts of genocide"
[Ibid,p. 21, para. 341.
229. Apparently,the Trial Charnberjudges that, in the context of the armed conflict in
Bosnia and Herzegovina, rapes and sexualassaultsshouldbeprosecuted as acts of
genocide.It appears fiom the Decisionthat this conclusionis not limited to the
region of Vlasenica, as the Chamber insistedon the existenceof an overall identical
pattern :
"(...) the Chamber notes that these senous discriminatoryacts do not seem to have been limited to
the Viasenica region. Camps like the one in SuSicawere set up in apartgof the territory under
Serb control inosn nia.["ibid, p. 15,para. 281.
230. Rape and sexualviolence as genocidal tool have beenespecially well brought to light
in the KaradZiCand MladiC.cases. This has been emphasisedby the Decision of the
Trial Charnberin its Review of the Indictrnentsof KaradZiCand MladiCpursuant to
Rule 61 :ReplyofBosniaandHerzegovina
Il(..certain methods used for implementingthe project of 'ethnic cleansing' appearto reveal an
aggravatedintentas, for example, the massive scale of the effect of the destruction.The number of
victims selected onlycause of their membershipin a group would lead one to the conclusion that
an intent to destroy the group, at least in part, was present. thespecificnatureof
someof themeansused to achieve the objective of 'ethnic cleansing' tendsto underscore that the
perpeîration of the acts is designedto reach the very foundations of the group or what is considered
as such.Thesystematicrape of womento which material submittedto the Trial Chamber attests,is
in some cases intended to transmit a new ethnic identity to the child. In other cases, humiliation
and terror serve to dismember the gro[ICTFY,Trial Chamber,Review of the
Indictmentpursuant to Rule 61 of the Rules of Procedure and Evidence,
Prosecutor v. KaradZiCand MladiC,CasesNo. IT-95-5-R61 andIT-95-18-R61,
11 July 1996,p. 53, para. 94, emphasis added].
231. In the Indictmentsof Radovan KaradiiiCand Ratko MladiC,and the Review of the
Indictments,the charge of genocidefor rape and sexual violenceis made explicitly.
In fact, two Indictmentswere issued:a first Indictment of25 July 1995 for acts
committedfrom 25 July 1992 to July 1995,in which the accusedare charged with
genocide for the internent of civiliansin the detentioncamps and inhumane
treatmenttherein; a second Indictmentof 16 November 1995, related tothe take-over
of the safe-areaof Srebrenica, in eastern Bosniaand Herzegovina,in July 1995,also
including a chargeof genocide.
232. The first Indictment, of 25 July 1995,states:
RAD RA DO K ARAND~C and RATKO MLADIC, from April 1992,in the temtory of the
Republic of Bosnia and Herzegovina, by their acts or omissions, committed genocide.
18. Bosnian Muslimand Bosnian Croat civilian were persecuted on national, political and religious
grounds throughout the Republic of Bosnia and Herzegovina. (...) Detention facilities personnel,
(...), intended to destroy Bosnian Muslim and Bosnian Croat peopleas national, ethnic or religious
groups and killed, seriously injured and deliberately inflicted upon them conditions intended to
bring about their physical destruction.
(-4
22.(...) Detainees were repeatedly subjected to andlor witnessed inhumane acts, including murder,
rape,sexualassaulttorture, beatings, robbery as well as other forms of mental andphysical abuse.
In manyinstances,womenandgirls whoweredetainedwere rapedut thecampsor takenfiom the
detentioncentresandraped orothenvisesexuallyabusedut otherlocations.
(.a.)
32.KARAD~c and RATKO MLADIC knew or had reasons to know that subordinates in
detention facilities were about tocauseserious physical or mental hto Bosnian Muslims
or BosnianCroats with the intent to destroy them, in whole oasinational, ethnic or
religious groups or had done so and failed to take necessary and reasonable measures to prevent
such acts or to punish the perpetrators thereof.
(-.-)
33.(...) By these acts and omissions,RADOVAN KARAD~c and RATKO MLADIC cornmitted:
Count 1:GENOCIDE" [ICTFY, Indictments,Prosecutor v.KaradZiCand Mladii,
CasesNo. IT-95-5-R61 and IT-95-18-R61,25 July 1995,pp. 4, 6, 11 and 12,
paras. 17, 18, 22, 32 and 33, ernphasis added]. Chapter7-Section7
Massrape andsexual violencewere committedwithgenocidalintent
In other words, they wereindicted as those in superior authorityfor acts of genocide,
amongwhich were rape and sexual violence, committed in the detentioncamps.
233. In its Review of the Indictmentpursuant to Rule 61, the Trial Chamberhas
consideredal1relevant informationin order to ascertainwhether there arereasonable
grounds to believe that the accused cornmitted theoffenses for which they had been
charged. It is importantto note that, in additionto the evidence relied on by the
Prosecutor,the Trial Charnberhad the benefit of "additional material produced
during the hearings." [ICTFY,Trial Chamber,Review ofthe Indictrnentspursuant to
Rule 61 of the Rules of Procedure and Evidence,Prosecutor v.KaradZiCand Mladzi,
CaseNo. IT-95-5-R61 and IT-95-18-R61,11 July 1996,p. 2, para. 21.Among this
additional evidencewere the oral testimonyof John Ralston, givenon 28 June 1996,
and the oral submissionsmade by Mrs. ChristineCleiren, a member of the
Commission ofExperts, asamicus curiae, delivered on 2 July 1996,aswell as the
oral testimony of Ms. Irma Oosterman, given onthe same day.
The Trial Chamberconcluded, consideringthe evidencebefore it,that it was
insufficientto involve only the criminalresponsibilityof KaradZiCand MladiCfor
genocide onthe basis of their superiorauthority andtheir responsibilityfor the acts
of their subordinates.It also concluded thatitwas not enough tocharge them with
genocide foracts committed inside the camps. In other words, the Trial Chamber
consideredthat the Indictments shouldbe extendedin two ways: first, by considering
that direct responsibilityofaradZiCand MladiCshould be involved andnot just
responsibility forthe acts committed bytheir subordinates;and secondly,that al1the
acts- especiallythose of rape and sexualviolence - committedin pursuit of the
policy of ethnic cleansing and not only the acts of sexual violence cornmittedin the
camps must be qualified as genocidal acts.
235. As far as the direct persona1responsibilityof KaraclZiCand MladiCis concerned, the
TrialChamberhas been quite clear:
"The conditiofor theresponsibiof superiorsunderArticle7 (3) of the Statute,thatis those
constitutingcriminalnegligenceof sup, ave unquestionablybeulfill(..TheTrial
Charnbedoesconsider,however,thatthe typeof responsiincurredis bettercharactebyzed
Article7 (1) of the Statute.Theevidenceandtestimonytenderedalindemonstratighat
RADOVAN KARADZ ICdRATKO MLADI wouldnot onlyhave beeninfomed of the crimes
allegedlycotnmittedundertheir authb,utalsoand,inparticulart,hattheyexercisedtheir
powerin orderto plan,instigateorotherwiseaidandabetin theplanning,preandation
executionof theidcrimes.[Ibid, paras. 82-83].Reply ofBosniaandHenegovina
The Trial Chamberinsists:
"The Trial Chamber is of the view that the evidence and testimony submittedsuffice at this stage
to demonstrate the active participation of the highest political and military leaders in the
commission of the crimes by Bosnian Serb military and police forces in the detentionfacilities. The
uniform methods used in committingthe said crimes, their pattern, their pervasivenessthroughout
al1of the Bosnian Serb-held territory, the movements of prisoners between the various camps, and
the tenor of some of the accused's statementsare strong indications tending to show that
RADOVAN KARAD~C and RATKO MLADIC planned, ordered or otherwise aided and abetted
in the planning, preparation or execution of the genocide perpetratedin the detention facilities."
[Ibid, p. 47, para. 841.
236. The Trial Chamberwas also concernedthat al1acts of sexualviolencebe coveredby
the qualificationof genocide, not onlythe acts committedin the camps, because they
al1participatedto the overallpolicy:
"The analysis in parts III and IV of this decision permits us to consider that the acts on which the
two indictments are based, exceptse covered by part three of the first indictment mentioned
above, [that is, persona1criminal responsibility of subordinates] are similar in nature. The acts
target the members of andentified civilian population, coaseone or more groups, national
or political; the commission of the acts follows thetern; the acts are planned and organised
at State level. They appear to have a common objective:permitting the establishment of 'ethnically
pure' tenitories and thus creating a new State. (...) The Trial Chamber therefore invites the
hosecutor toconsider broadening the scope of the characterisation of genocide to include other
criminal acts listed in the first indictmentthan those committed inthe deten[Ibid, p.s."
50, para. 90 and p. 54, para. 951.
237. The secondIndictmentrelates to crimes comrnittedas part of military operations
prior to and during the fa11of the Srebrenicaenclavein July 1995.In its Decision,
the Trial Chamber assertedthat to avoidthe shellingfiom Serbian forces on
Srebrenica,the populations in the enclave adopted two lines of conduct, either trying
to seekrefuge with the Dutch battalion at PotoCari,or tryingto reach, through the
woods, Tuzla, a zone controlledby the Bosnian Government.And the Trial Chamber
afbs that: "The evidenceis that, whichever optionwas chosen,BosnianMuslims
faced a similar fate of (...)rape or other humiliations." [ibid.,p. 12, para. 253.
238. In the Indictmentsof DrljaCaand KovaCevid,rape and sexual assaultas they
happenedin Omarska,Keraterm and Tmopolje camps are also very clearly qualified
as acts of genocide:
"~etween April 1992 and January 1993, SIMDRLJAC and MILAN KOVAÇEVIC did, in the
tenitov of the Republic of Bosnia and Herzegovina, by their acts and omissions, commit genocide. Chapter 7- Section 7
Mass rape and sexual violencewere committedwith genocidal intent
Beginning in the Spring of 1992,the Cnsis Staff of the municipality of Prijedor, including SIMO
DRLJAC and MILAN KOVACEVIC, planned, organised and implementedthe creation of a
number of detention facilities or camps includingthe Omarska, Keraterm and Tmopolje camps.
(.S.)
Innone of the camps were the detainees afforded properjudicial process and their intemment was
not justified by rnilitarynecessity. They were detained pnmanly because of their religious and
ethnic identification. The conditionsin the Omarska, Keraterm andTmopolje camps were abject
and brutal. Bosnian Serb military and police personnel in charge ofcilities, their staff, and
other persons who visited the camps,of whom were subject to the authority and control of the
Cnsis Staff, killed, sexually assaulted, tortured, and otherwisephysically and psychologically
abused the detainees in the camps.
At Omarska and Keraterm, the camps were deliberately operated in a manner designed to inflict
upon the detainees conditions intended to bnng about their physical destructionwith the
destroy, in part, the Bosnian Muslim and Bosnian people as national, ethnic or religious groups.
(...) Detainees were continuously subjectedto or forced to witness inhumane acts, including
murder, rape and sexual assaults, torture, beatings and robbery, as well as other fonns of mental or
physical abuse....)
At Omarska, prisoners were crowded together (...) Bothfemale and malepraoners were beaten,
raped, sexually assaulted,tortured and humiliated. (...)
Keratm camp was located in a fonner ceramics factory in Prijedor. Conditions for pnsoners were
similar to those in Omarska camp. (...) The beatings, sexualassaults,tortures and other cruel and
humiliating actions were generally inflicted in full view ofother detainees and were accompanied
by derogatory and humiliating cornmentsto the victims or their families and general threats to the
other detainees.ter they were beaten, tortured, or sexually assaulted,the detainees were canied,
dragged or forced to crawl back into their rooms, without anyform of care for their injuries. (...)
Tmopolje camp was established at the site of a former school and adjacent buildings in Tmopolje
village. It was the largest camp and the location to which Bosnian Muslim and Bosnian Croat
women, children and the elderly were taken. (...) The camp served as the staging point for the mass
deportation ofl1those who survived the initial attacks and camp regime. It also served a much
more sinisterpurpose: the sexual assault,rape and tortureof many of the women detained there by
the camp personnel, who were both police and military personnel, and by other militarym
the area who came to the camp for that specific purpose. In many instances, the womenandgirls
were tokenj-om the camps and raped, torturedor sexually abusedon other locations. (...)
Between 30 Apnl 1992 and 31 December 1992,SIMO DRLJAC And MILAN KOVACEVI iC,
concert withothers, planned, instigated, and ordered theestablishmentof the camps at Omarska,
Keratm and Tmopolje and the detentiontherein of Bosnian Muslims and Bosnian Croats ffom the
municipality of Prijedorder conditions calculatedto bnng about the physical destruction of the
detainees, with the intent to destroy part of the Bosnian Muslim and BosnianCroat groups, as such.
Further ,etween 30 April 1992 and 31 December 1992,SIMO DRLJAC And MILAN
KOVACEVIE,lmew or had reason to know that their subordinateswho staffed the detention
facilities werelling or causing serious physical or hmntato Bosnian Muslirns and Bosnian
Croats with thentent to destroy thin,part, as a national, ethnic or religious group or had done
so and failed to take necessaxyand reasonable measures to prevent such acts or to punish the
perpetrators thereof.
By these acts and omissions SIMDRLJAC and MILAN KOVACEV were complicit in the
commissionof genocide, punishablender Article 4(3)(e) and 7(1) (3)of the statute of the
~ribunal."[ICTFY,uidictment,Prosecutorv. Drljaëa & Kovaëevié,CaseNo.
IT-97-24-1,13 Mar.1997,pp. 5-8;paras9, 10, 11, 12, 13, 14, 15 and16,
emphasisadded 1.ReplyofBosniaandHerzegovina
239. It is relevant to note that the Prosecutor and the Judges at the ICTFY havetime and
again linked rape and sexual assaultto the overallpattern of genocidal acts
committedagainst the non-Serbpopulation of Bosnia and Herzegovina.
Intent -the existenceofpatterns of rape recognisedby numerousother instances
240. The systematic characterof the rapes and the existenceof a pattern of rape ["A
Pattern of Rape", Newsweek, 11 Jan. 1993,Annex 911committedin Bosnia and
Herzegovinahas been establishedin many writings as well as in many reports of the
United Nations organs and various cornmitteesdealingwith human rights. In addition
to countless mentionsof rape by authoritative international organs' resolutionsand
decisions,as one of the means through which the genocide ofthe Muslimpopulation
of Bosniz and Herzegovinawas brought about, some sourcesaddress specificallyand
primarily the issue of rape.
241. In her amicus curiae presentationbefore the ICTFYon rape and sexual assault,Mrs.
Christine Cleiren insistedon "thecommonthreads that run through thecases
reported whetherthey were outside or in detentioncamps".She provided a general
picture of these comrnonthreads:
"(...) there were great similanties among practices in non-contiguous geographicareas; there was
simultaneous commission of other humanitarian violations; simultaneousmilitary activity;
simultaneousactivity toplace civilian populationsand common elements of the commissionof
rape and sexual assault, likeising shame and humiliation not onlyto the victim but also to
the victim'sornmunity.The presence of these factors strongly suggest that the systematic rapeand
sexualpoiicy existed[ICTFY,Trial ChamberKaradZiCandMladiC,CasesNo. IT-
95-5-R61 and IT-95-18-R16,TestimonyCleiren,2 July 1996,pp. 12-13,Annex
331.
242. On the following pages the Applicantwill provide the Courtwith a surveyof
numerous sources which invariably corn and acknowledgethe existence ofa
pattern of rape.
243. In the Fourth Mazowiecki Report, it is stated without arnbiguitythat:
"Rape has been used since the beginning of the conflict on a large scale, as a means of
implementing the strategy of ethnic cleansing and to increase the inter-ethnic hatred (...) The
victims are said to be mainly ~usl[United Nations,Situation ofHumanRights in
the tenitory of theformer Yugoslavia,Report submittedby Mr. Tadeusz
Mazowiecki, Special Rapporteurof the Commissionon HumanRights,
E/CN.4/1993/50, 10 Feb. 1993, AnnexII, p. 63, para. 61. Chapter 7- Section 7
Mms rape and sexual violencewere committedwithgenocidal intent
244. Mazowiecki,in this samereport is also the first to have perceived soclearly the
existenceofpatterns ofsemtalviolenceappearing fi-omthe review of al1the
documents andtestimoniesreceived by its team of experts:
"(a) Rape has been used as one method to terrorise civilian populations in villages and forcing
ethnic groups to leave (...) Serb paramilitary units would enter a village. Several women would be
raped in the presence of others so that the word spread out throughout the village and a climate of
fear was created.everal days later, Yugoslav Popular Amy (JNA) would arrive at the village
offering permission to the non-Serb population to leave the village. The male villagers who had
wanted to stay then decided to leave with their women and childrenin order to protect them from
being raped.
@) In one pattern that was reported in several Serb-controlled areas, particularly in Bosnia and
Herzegovina, local Serb forces in conjunctionwith Serb forcesoutsidethe area would occupy
a village and restrict the movement ofthe local populOftenmen were deported or fied.
Women were then often raped (...)
(c) Although the team of experts heard stories about individuals,Croats, Muslims and Serbs, who
risked theirwn safety to try and help their threatened neighbours, they heard of no attempts made
by anyone in a position of authority tond stop the raping of women and girls. In fact, some of
those in power actively participated in it (...)
(d) Rape was also commonplacein detentioncamps on al1sides. There women were kept together
in rooms in a separate part of the camp. Women were taken individuallyto other rooms, were they
would be repeatedlyraped."[ibid. Annex II, p. 70-71. para. 481.
245. As explainedearlier, the fact that rape occurred on al1sides does not imply that al1
these acts can be qualified in the same manner, in legal terms. Thesheer quantity,
combinedwith the existenceof a clear pattern, of the rape committedby the Serb
side sharply distinguishesthis fi-omrape that may have been committed, incidentally,
by non-Serb perpetrators.
246. The Commissionon HumanRightshas been deeply concemedby the situationin
Bosnia andHerzegovina.Some of its resolutions,however, are exclusivelyaddressed
to the issue of rape and sexual violence,as for exampleResolution 199318adopted
by the Commissionon Human Rights entitled "Rape andabuse of women in the
temtory of the former Yugoslavia": in this resolution, it is stated that the
Commissionon Human Rights is:
"~~~alledat the recumng and substantiatedreports of widespread rape and abuse of women and
childm in the former Yugoslaviin particular its systematicuse againstthe Muslim women and
children in the Republic of Bosnia-Herzegovinaby Serbian forces, (...)
Stronglycondemnsthe abhorrent practice of rape and abuse of woand children in the former
Yugoslavia (...)If.
247. In the later sessionsagain, the Commissionon Human Rights reiteratedits profound
concern for raped and abusedwomen in the former Yugoslavia. In 1994, theReply of Bosnia and Henegovina
Commissionreferred to this matter in Resolution 1994177 on the rape and abuse of
women in former Yugoslavia; and in 1995, it renewed its expressionof outrage at
the systematic practice of rape againstMuslim women and children and at the
systematicpractice of rape as an instrument of ethniccleansing.
248. The Commissionof Expertshas extensively studiedrape and sexual violencein
Bosnia and Herzegovina,and has devotedthree annexes tothis issue. Accordmgto
the Commissional1the data collected:
"could lead to the conclusion that there wasan oveniding policy advocatingtheofrape as a
method of 'ethniccleansing',rather than a policy of omission,tolerating the widespread
commission of rape." [UnitedNations,Final Report of the UnitedNations Commis-
sion of Experts, SI19941674 (Vol. 1), 27 May 1994, p. 56, para. 237, emphasis
added] .
249. The Commissionof Experts has pointedto five patterns of rape:
"245. The first pattern involves individuals or small groups cornmittingsexual assault in
conjunction with looting and intimidation of the target group. This is before any widespread or
generalised fighting breaks out in the region. Tension in a region grow and members of the ethnic
group controllingtheregional govemment begin to terronze their neighbours. Two or three men
break into ahouse, intimidatethe residents, steel their property and often rape the females. Some
of the reported rapes are singular, some are multiple.her case, there is often a gang
atmosphere where the abuses are part of theme event and al1attackers participate even if they do
not sexually assault the victims. One ofthe woman interviewed was gang raped by eight soldiersin
front of her six-year-old sister and her five-month-old daughter.One of the men was forced at gun
point to rape the victim 'as she was an Ustasha'. When she reported the crimes to local authonties,
they said they could do nothing as 'she was a Croat'.
246. The second pattern of rapenvolves individuals or small groupscommitting sexual assault in
conjunction with fighting in an area, often including the rape of women in public. When forces
attack a town or a village, the populationis rounded up and divided by sex and age. Some women
are raped in their homes as the attacking forcesre the area. Others are selected afier the round
up and raped publicly. The population of the village istransported to camps. One victim-
witness interviewed saw an elderly woman andothers raped in front of a group of 100 detained
villagers. The witness was herself threatenedwith rape)
247. The third pattem of rape involves individuals or groups sexually assaulting people in detention
because they have access to the people. Once the population ofa town or village has been rounded
up, men are either executed or sent off to camps, while women are generally sent off tote
camps. Soldiers, campguards,paramilitaries and evencivilians may be allowed to enter the camp,
pick out women, take them away, rape them and then either kill them or return them to the site.
Reports fiequently refer to gang rape, while beatingsand torture accompany most of the reported
rapes. Survivors report that some women are taken out alone, and sometaken outin groups.
Though this is the general pattern, there are also many allegationsthat women are raped in fiont of
otherintemees or that other intemees are forced to sexuallyabuse each other. In camps where men
are detained, they are also subjectedto sexual abuse.g the Commission'sinterviewing
process 15 people were interviewedwhose major allegationsrelated to the same detention camp.
Some witnesses were men, andal1of the women victimshad been raped. The women were Chapter7 -Section7
Massrapeandsexualviolencewere committedwith genocidalintent
sometimesgang raped by, or in the presence of, the camp commander. Guards from the externai
ring of security around the camp (who apparently did not enter the camp in the course of their
work) and soldiers who were strangers to the camp would be allowed access to the camp for rape.
(--.)
248. The fourth pattern of rape involvesindividuals or groups committing sexual assaults on
women for the purpose of terronsing and humiliating them often as part of 'ethnic cleansing'.
SuMvors of some camps report that they believe they were detained for the purpose of rape. In
other camps, al1of the women are raped quite frequently, often in front of other intemees, and
usually accompaniedby beatings and torture. Someptors also state that they are trying to
impregnate the women. Pregnant women are detained untilit is too late for an abortion. One
woman was detained by her neighbour (who was a soldier) near her village for six months. She
was raped almostdaily by three or four soldiers. She was told that she would give birth to a
chetnik boy who wouldkill Muslims when he grew up. One woman's home was taken by Serbian
neighbours and used as a detention centre for interrogationsover several months. She was raped
almost daily and beaten forveral months; two other wbmen were raped there too (...)
249. The fifth pattern of rape involves detention of women in hotels and similar facilities for the
solepurpose of sexually entertaining the soldiers. These woman are reportedly more often killed
than exchanged (...[Ibid.,pp. 58-59, paras. 245-249;see also ibid. Add.2 (Vol.
V), 28 Dec. 1994,Annex IX, "Rape and SexualViolence",pp. 9-10, paras. 11-
16; see also Cherif Bassiouni,Investigating Violations ofinternational
HumanitarianLaw in the Fonner Yugoslavia,OccasionalPaper No. 2, IHRL,I,
DePaul University Collegeof Law, 1996, pp. 37-38, Annex 341.
These findings speak form themselves,al1of them point to a policy for which the
final goal is to destroy the Muslirngroup.
250. As far as the Security Councilis concerned, mentionwill only be made here of
resolutions centredon rape issues. Thus, for example,the Security Council
Resolution 798 (1992) on 18 December1992has condernnedrape in the following
manner:
"~ppalledby the reports of massive, organized and systematicdetention and Tapeof women, in
particular Muslim women, in Bosnia-Herzegovina,
Demanding that al1the detention camps and, in particular, camps for women should be immediately
closed(...)
Stronglycondemns these acts of unspeakablebrutalit[United Nations,Securi~ Council
Resolution 798(1992), S/RES/798, 18Dec. 1992;see also ibid., Security
Council Resolution820 (1993), S/RES/820, 17Apr. 19931.
In its Counter-Memorial,the Respondenttries to minimise this resolution, implying
that the Security Councilhascondemnedacts that didnot happen. However,absent
any strong evidenceon the contrary, one may assumethat if the Security Council,
representingthe world community,has deemed it adequateto adopt such a
resolution, it is because it had sufficientevidence ofthe existenceof such acts.Replyof Bosniaand Herzegovina
251. Anotherexample is Resolution 827 (1993)of 25 May 1993,creatingthe
International CrirninalTribunal for the former Yugoslavia,in which the Security
Councilexpressly referred to the "massive,organizedandsystematicdetentionand
rape of women"[UnitedNations, Security Council Resolution 827 (1993), SIRES1827
(1993),25 May 1993, emphasis added].
252. Also in later resolutions, the Security Councilcondemnedthe systematic useof rape
and sexualviolence. In Resolution 1019(1995),the SecurityCouncil,gravely
concerned byreports of massive violationsof internationalhumanitarianlaw and of
humanrights, among which are reports of rape, "Requests the Secretary-General to
submitto the Council as soon as possible a written report based on al1information
availableto the United Nations concerningrecent violationsof international
humanitarianlaw in the areas of Srebrenica,iepa, Banja Luka and SanskiMost (...)"
[UnitedNations, SecurityCouncil Resolution1019 (1995), S/RES/1019,9 Nov.
1995,para. 111.In view of thereport submittedby the Secretary-General,the
SecurityCounsel declared as late as 21 December 1995:
"~ravely concernedattheinformation(..thatthereis overwhelmingevidenceof a consistent
pattern(..of rape(...)
Condernns inparticular inthestrongestpossibleternistheviolationsof interl umanitanan
law andof humannghtsby BosnianSerbsandparamilitary forcesin theareasof Srebrenica,TePa,
BanjaLukaandSanskiMostas descnbedin the reportof the Secretary-Generalf27 November
1995andshowinga consistentpattemof (..rape (...)[United Nations,Secunty Council
resolution 1034 (1995), SIRESl1034,21Dec. 1995,preamble and para. 21.
253. The General Assemblyof the UnitedNationswas no less concemedthanthe Security
Councilabout the mass rapes and sexual violence thatoccurred in Bosnia and
Herzegovina.For example, in Resolution471143,adopted 18December 1992,the
General Assemblystated that rape and sexual violence weredeliberatelyused in
order to perform ethnic cleansingand that the"abhorrenp t olicy of ethniccleansing
was afonn ofgenocide"[UnitedNations, GeneralAssembly Resolution47/143
(1992), 18 Dec. 1992, emphasis added]. Oneyear later, in Resolution481143,
adoptedon 20 December 1993,the GeneralAssembly condemned theuse of rape as
a "systematic practice",as well as a "heinouspractice", and condemnedthe
utilisationof that systematicand heinous practice as an "instrumentof ethnic
cleansing against the women and children in the areaof armed conflict in the former
Yugoslavia, in particular againstMuslim women andchildren in Bosnia and
Herzegovina",this "abhorrentpolicy of ethnic cleansing"being again qualified as "a
form of genocide" [UnitedNations, GeneralAssembly Resolution48/143 (1993),
A/RESl481143,5 Jan. 19941. Chapter 7 -Section 7
Mass rape and sexual violence were committed with genocidal intent
254. Year after year the GeneralAssemblyhas reiteratedthis position, as late as 23
December 1994with Resolution491205,and 22 December 1995with Resolution
501192. In Resolution 501192,adopted by consensus, the General Assembly clearly
statesthat rape can be genocide:
"~otin~with deep concern al1reports of the Special Rapporteuron the situation of human rights in
the territory of the former Yugoslavia,regarding rape and abuse of women in the temtory of the
former Yugoslavia, particularly in the Republic of Bosnia and Hmegovina,
Convincedthat this heinous practice constitutesa deliberate weapon of war in fulfilling the policy
of ethnic cleansing carried out by Serbian forces in Bosnia and Hmegovina, and noting General
Assemblyresolution 471121of 18December 1992,in which the Assembly stated,inter alia, that
the abhorrent policy of ethnic cleansing was a form of genocide,
(...)
1.Strondv condemns the abhorrent practice ofrape and abuse of women and children in the areas
of armed conflict in the former Yugoslavia,which constitutesa war crime;
2. Expresses its outrage that the systematic practice of rape has been used as a weapon of war and
an instrument of ethnic cleansing against women and children in the Republic of Bosnia and
Herzegovina;
3.Reaffirms that rape in the conduct of armed conflict consaiwar crime and that under
certain circumstances it constitutesa crime against humanity and an act of genocide as defined in
the Convention on the Prevention ofeCrime of Genocide (...).[UnitedNations, General
Assembly Resolution 50/192 (1995), AiR.ES150192 2,2 Dec. 19951.
255. In the same manner, the massive and systematic character showing the existenceof a
generalpattern, has been emphasisedby the European UnionCommissionof Inquiry
headed byDame Anne Warburton,in her report tothe European UnionForeign
Ministers:
"On the basis of its investigationsthe mission is satisfiedthat the rape of Muslim women has been
- and perhaps still-iperpetrated on a wide scale and in such aasato be part of a clearly
recognisable pattern, sufficient to formportant element of war strategy." [EC Investigation
Mission into the Treatment of MuslimWomen in the Former Yugoslavia, Reportto EU Foreign
Ministers, 1ebmary 1993;this Report has also been transmitted to the Securiîy Council by a
Letter o2 February 1993of Permanent Representativeof the Government of Denmark as
Representative of the European union.[EC InvestigationMissioninto the Treatment
of Muslim Women in the Former Yugoslavia,1 Feb. 1993,transmittedto the
Security Councilby a Letter of 2 Feb. 1993of the Govermnentof Denmark as
Representativeof the European Union, Sl25240,3 Feb. 1993,p. 4, para.131.
256. Whatis important to underlinein the Report submittedby AnnWarburtonto the
EuropeanUnion, is that it states that the rape of Muslimwomen followed "a clearly
recognisable pattern". The report insistson this overallpolicy:
"The Mission does not take the view that rape in Bosnia and Herzegovina is consasa by-
product of war, rather it considersthat there is a 'systematic' abusetaking place on the instructionsReplyofBosnia andHerzegovina
of or under the direction of the comrnandingauthorities (...) The Mission saw examples of
statements and documents fiom Serbian sources which very clearly put such actions in the context
of an expansioniststrategy. Overall, the Mission accepted the view that rape is part of a pattern of
abuse, usually perpetrated with conscious intention of demoralising andsing cornmunities,
driving them fiom their home regions and demonstrating the power ofthe invading forces. Viewed
in this way, rape cannot been as incidental to the main purpose of the aggression but as serving
a strategic purpose in itself. While the Mission was in no doubt that the conflict provides a cloak
for criminality of al1sorts, it felt that the type and scale of rapes being reported point towards a
deliberate pattern[Ibid, p. 6, para. 201.
257. In a resolution adopted on 29 March 1995, theCommissionon the Status of Women
expressedits outrage that rape was being used asa tool and an instrumentof ethnic
cleansing. [Commission onthe Status of Women,Thirty-ninth Session, 12thmeeting,
29 Mar. 1995, WOMl826,p. 11.
258. As stated, for example, in the CroatianReport on an exceptionalbasis to the
Committeeon the Eliminationof Discriminationagainst Women,the characteristics
of the brutal rapes committedagainstwomen were asfollows:
"(a) women were raped by several perpetrators, physically maltreated and at the same time forced
to fellate and swallow sperm; @) their irnrnediate family (husband, children, parents) had to watch
it, and wereften maimed, stabbed with knives or simply sh(c)a group of women was captured
and rapedseveral times in a row by a great number of perpetrators, and in some cases mothers and
daughterswere raped at thesame time."[Cornmitteeon the Eliminationof
Discrimination Against Women, CEDAWICICROISP1 ., Report fiom Croatia,6
Dec. 1994,p. 6, para. 191.
259. The existenceof this pattern was condernnedby several States, which informedthe
United Nations of what theywitnessed. Information was given, among others,by the
govermnentsof the United States, Canada,Austria and Croatia,in letters sentto the
Secretary-General,which have been referred to fiequently in this Reply. The
existenceof a clear pattern of policy of rape and sexualviolencehas been
consistentlyunderscored:
"(...)mass raping occumng in areas flanking the major routes of Serbian military operations (...)
are clear signs of 'synchronized actions': massraping in several places in the same way, leadingto
the same consequences." [United Nations,Letter Dated 7January 1993fiom the
Permanent Representativeof Croatia to the UnitedNationsAddressed to the
Secretary-General, Sl25082, 9 Jan. 1993,p. 31.
260. The existenceof a pattern of rape and sexualviolence is also underscored byseveral
citizens 'organisations, includingAmnesty International: Chapter 7-Section 7
Mars rape and sexual violence were committedwith genocidal intent
"~mnesty International believes that the rape and sexual abuse of women, the great majority of
them Muslims, by Serbian forces has occurred in many places in Bosnia-Herzegovina and some
caseshas been canied out ian organized or systematic way, with the deliberate detention of
women for the purpose of rape and sexual abuse (...) Incidents involving the sexual abuse of
women appear to fit into a wider pattern ofre, characterized by intimidation and abuses
against Muslims andCroats (...[Bosnia-Herzegovina: Rape and Sexual Abuse by
Armed Forces", AmnestyInternational Report, AI Index: EUR 63/01/93, Jan.
1993,pp. 4 and 1, Annex 371
261. Other citizens' organisations,like Helsinki Watch, related the same existenceof an
overallprogram ["War Crimes in Bosnia-Herzegovina",Helsinki Watch,Apr. 1993,
Vol. II, p. 181, Annex 981.
262. Also, GenevièveJacques, Secretary-Generalof the French citizens' organisations,
CIMA.DEh ,as written that:
"~e viol est (...) l'un des moyens odieux pour réaliserla politique d'>épurationéthnique'(...)
A des degrés divers debrutalité selonles lieux, la même méest appliquée partoutpar les
militaires serbes en Bosnie: attaque de village; demande aux habitants de rendre les armes avec
promesse que les civils seront épargnés; regroupte la population non serbe; séparation des
hommes d'avec les femmes, les enfants et les personnes agées.Et puis commençent les massacres
et les tortures..) Ensuite, les viols publics et systématiquesdes femmes, destinésà "détruire
l'âme", l'intégrité sociale, relmorale de la population[Courrierdu Monde,
"L'humiliationprogrammée",Le Monde, 2 Jan. 1993, p. 2, Annex 991.
263. The Applicantwill not make an inventoryof al1the writings, books, articles,
newspaperreports, etcetera, which haveinsisted on the existenceof a Serb policy of
sexual violence, but purports only to give a few examplesof such analyses.
264. Beverly Allen has restated three patterns of rape:
"~rregularSerb or Bosnian-Serb forces enter a village inandHmegovina (...) pull several
girls and women fiom their homes and rape them in public, thereby shaming them and creating
terror among the population (...)";
"Persons held in Serb-run detention camps areraped (...) arbitrarily, at will, sometimes in
conjunction with other forms of torture that sometimesresult in death";
"Girls and women are enslaved in rapeath camps where they are raped and tortured in other
ways for months."["RapeWarfare in Bosnia-Herzegovina:the Policy and the
Law", TheBrownJournal of WorldAlffairs,WinterISpring, 1996,Vol. III,
Issue 1, p. 314, Annex 921.
265. In his book "Slaughterhouse",David Rieff observes about the overall policy of
sexual violence:Replyof Bosnia andHenegovina
"~hediscoveryof the rape campnsearthetownof FoEanear Sarajevoin earl1993 seemedtobe
unthinkableThen,it tumedoutthattheSerbshave usedrapeas (...a wayof terrorizithe
Muslimpopulationinto flightandhusfulfillingtheSerbwaraimof ethniccleansing.[David
Rieff, Slaughterhouse: Bosnia and the Failure of the West,1996,New York, p.
121, Annex 1001.
Conclusion
266. The Applicant has proven that al1analyses convergeto establishwithout doubt the
existenceof a clea. intent to destroy the BosnianMuslimsas a group and that this
intent is also to be inferred fiom:
- the desire for "revenge" for allegedpast sexual violence;
- the vision of a future Greater Serbia;
- the massive scaleof the rapes and sexual violence directedtowards the group;
- the selectionof the victims of rape and sexual violence;
-
the absenceof prosecution or punishmentof the perpetratorsof acts of sexual
violence;
- the existenceof orders and authorityto rape;
- similar analysesby the ICTFY;
- the existence of patterns of rape acknowledged by numerous independent
institutions and sources.
267. The Applicant has proven that al1the acts prohibited byArticle II of the Genocide
Convention have, indeed,been committed through the policyof sexual violence and
that they were perpetrated with the intent to destroythe Muslirngroup living in
Bosnia and Herzegovina As the rape and sexualviolence cornmittedagainst non-
Serbs, and principally Muslims, are acts forbiddenunder al1paragraphsof Article II
of the Genocide Conventionand have clearly been codtted with the intent to
destroy the group in whole or in part, the Applicant respectfullysubmits to the Court
that these acts of rape and sexual violence, indeed,constitutegenocide. PARTIII
FACTSPERTAININGTO THE RESPONSIBILITYOF THEFEDERAL
REPUBLICOF YUGOSLAVIA
CHAPTER 8
THE BASIS IN FACT FOR FINDING THAT THE VIOLATIONSOF THE GENOCIDE
CONVENTIONARE ATTRIBUTABLETO THE RESPONDENT
1. Introduction
1. Any unbiased observer of the events that took placein the former Yugoslavia in the
period between 1989and 1996, or for thatmatter, until this very date,will note that
thegovenunent in Belgradehas played a central role al1along.
More specifically, SlobodanMiloSeviCand his associateshave played a decisive role
on behalf ofthose attemptingto manifestthe plan fora Greater Serbia. First,
MiloSeviCplayed this role as Presidentof Serbia and later, until this very date, as
President of the Federal Republic of Yugoslavia.
2. At al1relevant peace talks, peace conferencesand peace negotiationsfocusingon the
armed conflict in Bosnia and HerzegoWia,Belgradewas present as the most
importantnegotiator on the Serb side, usually in the person of President Slobodan
MiloSeviC.At times, MiloSeviCwould be accompanied by RadovanKaradZiCandfor
Ratko MladiC,never was it the other way around.
3. Part on behalf of the Serbside to the talks precedingthe Dayton negotiationswas,
exclusively,the Federal Republic of Yugoslavia (Septernber 1995, GenevNewnd
York). At Dayton itself, the Serb side was exclusivelyrepresentedby President
MiloSieviand Milan MilutinoviC,the Foreign Ministerof the Federal Republicof
Yugoslavia.Before initialhg the Dayton Accords, theFederal Republicof
Yugoslavia provided written assurancesto the negotiatingparties, that it would
"ensurethat the Republika Srpska fully respects and complieswith the provisions" ofReplyofBosnia and Herzegovina
the Agreements.This was done through various letters signedby either MilutinoviC
or MiloSeviC.MiloSevi6'sletter to NATO reads as follows:
"1refer to the Agreement on the Military Aspects of the Peace Settlement,which theFederal
Republic of Yugoslavia has endorsed, and the Agreement Betweenthe Republic of Bosnia and
Herzegovina andthe North Atlantic Treaty Organisation (NATO) Conceming the Status of NATO
and its Personnel.
On behalf of the Federal Republic of Yugoslavia,1wish to assure you that the Federal Republicof
Yugoslavia shallake al1necessary steps, consistent with the sovereignty, territorialintedrity [sic]
and political independence of Bosnia and Herzegovina, to that the Republika Srpska fully
respects and complies with commitmentsto NATO, including in particular access and status of
forces, as setrth in the aforementioned ~greemen[Annexedto the letter to the
Secretary-Generalof the United Nations fiom the Permanent Representativeof
the U.S.; 30 Nov. 1995, A/50/790;S/l995/999].
These written assuranceswere not to be consideredas evidence of some newly
developedinter-State relationship,but merely confirmed theactual situationas it had
been al1along: Belgrade,at al1relevant times, represented theinterests of all Serbs,
whether fiom the Federal Republic of Yugoslavia, "Republika Srpska" or the
"Republika SrpskaKrajina". In that capacity,it continuouslydelineated Serb policies.
This was and is equally true for the period before and for the periodafter Dayton.
4. This Chapterwill demonstratethat thejust mentionedrole of Belgrade is not merely
a matter of appearance, but thatit preciselyreflects the reality of the existing
relationshipswithin the Serb leadership. Asannouncedin Section 3 of Chapter4 of
this Reply, this Chapter will demonstratethedecisivenessof the role played by
Belgrade.
In line with the Applicant'sconsistentapproachto this casethe evidencepresented
in this Chapter, as a rule onginates fiom independent sources.This approachis not
chosenbecause the Applicant doesn't trust its own sources, whichis definitelynot
the case.Rather, the Applicant wishesto avoid anyunnecessary,distractingdebate
on the credibility of its sources and therefore prefersto rely on sourceswhich are
beyond questionabilityand which are, in any event, outsidethe Applicant's
influence.Moreover, these independentsourcesprovide such abundant and consistent
evidence that there is no need, whatsoever, for the Applicantto heavily lean on its
own sources. Therefore,the Applicantdoes not rely on staternentsof witnesses
interrogatedby its own authoritiesnor does it rely on its own, govenimental,
sources. Manyof the materials discussedin this Chapterare, in fact, documents
produced by Serb civil and militaryauthonties, includingSerb arms manufacturers. Chapter8 -Sectioni
Introduction
6. The materials presented inthis Chapter will showthat not only for military purposes,
but also for civil purposes, the Respondent organisedits structuresin a way very
similarto that of the former SocialistFederal Republicof Yugoslavia.Thus, the
military, civil and economicstructuresof the "Republika Srpska",the "Republika
Srpska Krajina" and the Respondent were largelyintegrated.These structures, indeed,
reflect the initial goal ofifjmg "al1Serbs in one State". As willbe shown below,
in shapingthe economic structure the Serbsthemselves,refer to this unified entity as
"Yugoslavia"[Section 91.
Each and every Sectionof this Chapter would, onits own, be sufficientto
demonstratethe total involvementof the Belgrade authoritiesand institutionsin al1
instancesof the anned conflict in Bosnia and Herzegovina, andtherefore their total
responsibility for it.
This Chapter shows that the Respondentwas materialin the arming and equipping
and training of the Serbs, who took up arms against thenon-Serb population of
Bosnia and Herzegovina.
This Chapter demonstratesthat the Yugoslav People's Army(JNA)was material in
the organisationand the instigationof the war against thenon-Serb population of
Bosniaand Herzegovina and that the JNA,under its own narne, comrnittedmany
atrocities in the first crucial and decisivemonths of the armed assault.
This Chapterwill further show howthe JNAtroops in Bosnia and Herzegovinawere
cosmeticallytransformed into the Bosnian SerbArmy (VRS). It will demonstratethat
there actuallyis no relevancewhatsoever to the dateof 19May 1992, when the
Respondentpresumably "withdrew"its military fiom the territory of Bosnia and
Herzegovina;it will demonstratethat after 19May 1992the Yugoslavmilitary
continued fùnctioning as it had done before that date.The structure of the Serb
forceswas not changed fundamentally,except for some superficial changesin the
organisationand in the presentation.
This Chapterdemonstratesnot only that the Yugoslavmilitary was material to the
war againstthe non-Serbs of Bosnia and Herzegovina,but also that the Federaland
the Serbian Ministries of the Interior were indispensablefor the continuedassaulton
the non-Serb population of Bosnia and Herzegovina.
This Chapterwill further establish the importantrole of the Serbianparamilitary
organisationsand their close cooperationwith the Yugoslav Army andthe mentioned
Ministriesof the Interior in Belgrade.
This Chapterwill substantiatehow Belgradewas indispensableto the continuationof
the armed conflict through the Bosnian Serb rnilitary.It will also show how the
Belgrade authorities saw to it that the Serb sideinthe armed conflictin Bosnia andReplyof BosniaandHerzegovina
Herzegovina was continuouslysuppliedwith personnel and rnilitary equipment and
other means of support in order to enableit to continue its assault on the non-Serb
population of Bosnia and Herzegovina.
The Respondent'sresponsibility for the genocidal campaign againstthe non-Serbs of
Bosnia and Herzegovinais epitomised by the sustainmentof concentrationcamps
and other detention facilitieson theterritory of the Federal Republic of Yugoslavia,
where numerous non-Serbsfiom Bosnia and Herzegovinawere detained,tortured
and, on many occasions,killed.
8. As mentionedabove, each and every Sectionof this Chapter wouldbe sufficientto
demonstratethe Respondent'sfull involvementand full responsibility.If al1of these
Sectionsare taken as a whole, it becomes clear beyond anydoubt that the
Respondenthas never been not responsible for the genocidalatrocities cornmitted
againstthe non-Serb populationof Bosnia and Herzegovina.
9. President Slobodan MiloSeviChas until this very day been playing a crucial role
within the Yugoslav State system.This is, however,also true for one of the other
key Serbianplayers: Vojislav SeSelj.As will be demonstratedin Section 7 of this
Chapter, SeSeljwas not only, a member ofthe Serbian Parliament,since June 1991,
but also the leader of Serbianparamilitarygroups, directlyresponsible for the worst
genocidal atrocitiescommittedagainstthe non-Serbsof Bosnia and Herzegovina.On
24 March 1998,the same Vojislav Se~eljbecame Deputy Prime Minister of Serbia,
thus confirminghis direct involvementin and importanceto Serbian politics since
the beginning of the 19907s,includingthe policies of genocidalethnic cleansing.
10. The facts related in this Chapterentirely and convincinglyspeak for themselves.In
spite of this, the Applicant has deemedit useful to place these facts expresslyinto
the context of legal State Responsibility.Therefore, Chapters 9, 10 and 11will
clariQ the Respondent'saccountabilityunder the Genocide Convention.
2. Yugoslavia'spreparations for thearmedconflict
RAM
11. In the Mernorialreferencewas made to the RAMplan, thought out andexecutedby
the authoritiesin Belgrade [Mernorial,Section2.3.4., pp. 66-69, paras.2.3.4.1.-
2.3.4.41.There is little doubt about the contentsof RAM,which is Serbo-Croat for
FRAME.Tim Judah is ajournalist and writer based in London. In his thorough Chapter8 -Section2
YugoslaviS preparationsfor the armed conflict
study of the history of the Serbs, TheSerbs: History, Mythand the Destruction of
Yugoslavia,Judah also dedicated a section toRAM.He describedthe plan as
follows:
"(...) the purpose of the plan was the organisation ofthe Serbs outside Serbia, taking control of the
fledging SDS [Serbian DernocraticParties] parties and the prepositioning ofarms and
amrnunitions."Tim Judah, TheSerbs: History,Myth and the Destruction of
Yugoslavia,New Haven & Londen 1997,p. 170,Annex 81.
12. In its Counter-Mernorial,the Federal Republic of Yugoslaviadenied the fact that the
authorities in Belgrade provided theSerbs in Bosnia and Herzegovinawith weapons
and ammunitions:
"1.3.17.2. The Serb population in Croatia and Bosnia and Herzegovina spontaneously armed
itself always when it felt threatened. The arms for the most part came fiom the depots of the
territorial defence which were under the control of the local population. Part of the arms (persona1
arms, including rifles), belonging to territorial defence units was in thers of the
territorial defence according to theions in force at that time. The Serb population in these
areas procured part of the arms by illegal or legal [Co~nter-Memonal,pp. 102-
105, para. 1.3.17.1.
The Federal Republic of Yugoslaviatherefore admitsthat the Serbs in Bosnia and
Herzegovina were med when genocidalacts were first comrnittedin the spring of
1992.It denies, however, any responsibility.The Federal Republicof Yugoslavia
seemsto take the position that the local Serbs armed themselves by emptyingthe
depots of the Territorial Defence forces.This 1st assertionis partly true, as many of
the weapons distributedamongthe Serbsof Bosnia andHerzegovina originated fiom
warehouseswhich had once belonged tothe TerritorialDefence forces. However, as
will be demonstratedbelow, these weapons were notstolen fiom these warehouses,
but distributed by order of and in close cooperationwith the authoritiesin Belgrade.
Without Belgrade's directinvolvement,the armamentof the Bosnian Serbswould
indeed not havebeen possible at all.
13. The preparations for the distributionof amis to the BosnianSerbs started well before
genocidal acts were first committedin the springof 1992.There is strong indication
that the RAMplan was already devised in 1990. Theinitial stagesof the armament
of the Serbs in Bosnia and Herzegovinawere mentionedby, amongothers, Cherif
Bassiouni, in his Annex to the Final Report of the Commissionof Experts on the
policy of ethnic cleansing:Reply ofBosniaandHerzegovina
"There is evidence,however, thatJNA, the Republic of Serbiaand Serbs in Croatia and BiH
were preparing for war as early as 1990. Itwas then that the Yugoslav militarybegan providing
anns to Croatian and Bosnian Serb groupsand encouragingunrest inSerb-populatedregionsof
Croatia andiH. In a project (operatingunder the acronyrn"RAM")coordinatedfrom Belgrade,
thousandsof weaponswere reportedly deliveredto Serbsin BosanskaKrajina in the north-west [of
Bosnia and Herzegovina],Herzegovinain the south-west,and Romanija,a mountainous areaeast of
~arajevo."[UnitedNations, Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex IV, "The Policy of
Ethnic Cleansing",p. 27, para. 1401.
The armament of the Serb communitiesin Croatia and Bosnia and Herzegovina
therefore commencedlong before genocide wascornrnittedin the latter republic.
14. The early start of RAMis also confmed by other sources[see Misha Glenny, The
Fall of Yugoslavia:The ThirdBalkan War,London 1992,p. 149, Annex611.
In the surnrnerof 1991, that is approximatelyone year after the birth of the RAM
plan, the General Staffof the YugoslavArmy ordered the disarmament ofthe
Territorial Defence forces in Bosnia and Herzegovina. Thisorder is very significant,
as it deprived the authorities ofthe Republicof Bosnia and Herzegovinaof the
necessary rnilitary means to defend themselves andthe future state. In the former
Yugoslavia,the Territorial Defence forceswere formallycontrolled and financedby
the various republics. In case of war, these forces could be mobilisedin the short
term. As their name implies, the TerritorialDefence were primarily used to defend
the republic to which they belonged.
16. The order given in the surnrnerof 1991is an important step in the executionof the
RAMplan. It was describedby Dr. Milan Vegoin his February 1993contributionto
the authoritativeJane 'sIntelligence Review:
"The legally electedgovernmentin Sarajevoformally controlled the mainstaff and subordinate
district and communalstaffs of the Territorial DefenceForcesHowever,in the operational
chain ofcommand,these forces weresubordinateto the General Staffof the former federalarmyin
Belgrade.Becausethe Serbian-dominatedGeneralStaflwantedto denytheBosniangovernment
anymeansof effectivedefence,it orderedinJune1991 thatal1theweaponsof tTDF beput
underthefederal army'scontrol.As a result,the majorpart ofthe200,000smallam inthe
custodyof theTDF was returned.The exceptionwas the weaponryof the TDF's staffsin the
Croatian-populatedwestern Herzegovina;these elementslargelyignoredthe General Staffs order."
[Dr. Milan Vego,The Armyof Bosnia and Herzegovina,Jane 's Intelligence
Review,February 1993,p. 63, emphasisadded, Annex 1011.
This significant factis also mentionedby the ICTFY in its 1996Review of the
Indictmentsof Radovan KaradZiCand Ratko MladiC: Chapter8 -Section2
YugoslaviaSpreparationsfor the armedconflict
"1tappearsthatduring1991someof theunitsof the TerritDlefence,composedof reservists
which wereunderthepartialcornmanof the authoritsf the federaRepublicswereobliged to
surrendetheirmilitaryequipmentto theJNA,whichallegedlydeprivedthenon-Serbian
populationsof theirtraditmeansof defence."[ICTFY,Trial Chamber,Review of
the IndictmentPursuant to Rule 61 of the Rules of Procedure and Evidence,
Radovan Karad2 & Ratko Mladik, CasesNo. IT-95-5-R61 & No. IT-95-18-
R61, 11 July 1996,p. 27, para. 541.
17. The 1991order to hand over al1anns under the control of the Territorial Defence
was given in al1republics of the former Yugoslavia, but with varyingresult. In
Slovenia, for exarnple, the order was generally ignored.In Croatia, it was partly
complied with;the Territorial Defence forcesin Croatiahanded over approximately
half of their weapons. In Bosnia and Herzegovina,the order was carried out almost
completely, with the exceptionof those areas in western Herzegovinawith
predominantlyCroatian populations[Dr. MilanVego, The Army of Bosnia and
Herzegovina,Jane's Intelligence Review,February 1993,p. 63, Annex 1011.
18. The responseto the June 1991order determinedthe future of the various republics
of the former Yugoslavia. Slovenia, as was alsoexplainedin the Memorial, gained
its independencewith relativeease in the first stages of the fighting [Memorial,
Section 2.3.2, pp. 62-64, paras. 2.3.2.1-2.3.2.41.There,in the sumrnerof 1991,the
JNAsuffered a hurniliatingdefeat in ten days. This defeat of the JNAwas prirnarily
due to the fact that the Slovenianauthoritieshad succeededin creating an effective
national army. This national army was almost exclusively armed with weapons which
had once belonged to the TerritorialDefence forces. Croatia was lesssuccesfullin its
struggle for independence, as the JNA, Serbianbased paramilitaryunits and the
Croatian Serbs succeededin carving out large parts of the territory of the newly
formed independent stateof Croatia. Still, the Croatian rnilitarymanaged to offer
some resistance,in sharp contrast with the authoritiesin Bosnia andHerzegovina
who were not able to organise any oppositionat dl.
19. In the above mentioned article,Dr. MilanVego also describes the dramatic first
months of the conflict in Bosnia and Herzegovina.The consequenceof the above
cited JNA order becarnerapidly clear:
"~hefirstclashesbetweentheSerbsandMuslimsandCroatstookplacein lateFebniary1992.
Full-scalehostilitiesbroke outon4 Apnl(somesourcessay6 Apnl)whenSerbianirregulars
openedfireon peacefuldemonstratorisn Sara. wodayslater,theEuropeanCornrnuniynd
theUSA recognizedtheindependenceof BosniaandHerzegovina.Reply of Bosnia andHerzegovina
TheSerbian[s] claimed that in April the Muslimshad underarms about 50 000 men in
paramilitary groups. (...) Thefisthat theMuslimswere totally unpreparedfor war both
psychologically and physically.11 April the republic's presidency ordered unification ofal1
armed groups, except for forces belonging to the federal army and Ministry of Interna1Affairs. The
Republican Staff of theF in Sarajevo was consequentlyestablished together with seven district
and 75 communal staffs. As a result, the local staffs for territorial defence were created in al1but
34 communes. These staffs employed, however, only 122 active officers and NCOs [non-
commissioned officers] ofthe former federal army andivilians. (...)
By another decree issued 14 May 1992, the Bosnian presidency formallyestablishedthe 'Army
of Bosnia and Herzegovina' to represent the common armedforces of al1three constitutivepeoples
of the republic, namely Muslims, Croats, Serbs,and al1other ethnic minorities. The decree
stipulated that the highest body for the command andcontrol of the armed forces was the
presidency, with the presidentrrently Alija Izetbegovic) as the Supreme Commander.However,
the efforts to mobilize and arm the populationhave been harmed by the belated decision of the
presidency toeclare a state of war; this did not come until 26 June. The decision authorized the
Bosnian-Herzegovinian armed forces totake theeps necessary to organize nationwideresistance.
By then, a large part of the tenitory had already fallen to Serbian[Dr. Milan Vego,
The Army of Bosnia and Herzegovina,Jane's IntelligenceReview,February
1993,p. 64, emphasisadded,Annex 1011.
The govemment in Sarajevowas, thus, totally unpreparedwhen the first genocidal
acts were committedon the non-Serbsof Bosnia andHerzegovinain April 1992.
This was in large measure the inevitableconsequence of the1991order to disarm the
Bosnian Territorial Defenceforces.
20. In his analysis of the genocidecommittedin Bosnia and Herzegovina,British
historian Noel Malcolm estimated that,in April 1992,the forces under the control of
the govemment in Sarajevo nurnbered notmore than 3500 'armed'men altogether
[Noel Malcolm, Bosnia: A Short History, London 1996,p. 240, Annex 161.As a
consequence of the order givenby the JNA in the summerof 1991,this small
embryonicBosnianArmy found itself almost completelywithout the necessary
weapons:
"..what the Bosnians always lacked was heavy armour, artillery and anti-tank weapons. In
Septmiber itwas estimated that they possessedttanksand two armoured personnel carriers
(APCs), whilc the Serb army in Bosnia h300tanks, 200APCs, 800artillery pieces a40
airrrift.[NoelMalcolm,Bosnia: A Short History, London 1996,p. 243, Annex
?].
21. While the JNA was disanning the TerritorialDefence forces on the one hand,
Belgrade distributed weaponsto the BosnianSerbs on the other hand. These
activitiestook place simultaneously.This process of redistributionof arms is also
decribedby the ICTFY in its TadiéJudgement: Chapter 8 -Section2
Yugoslavia'spreparationsfor the anned conflict
"106. In July 1991,on instructions ffom headquarters in Belgrade, the MA seized ffom the
Republic's Secretariat for Defence in Bosnia and Herzegovina and from municipalities al1the
documentation relatingto conscription includinghe registers of conscripts.In consequence,
thereafter the conscription process was exclusivelyin theof the MA and no longer in those
of the Republic's Ministry of Defence.This done, it was ensured that only ethnic Serbs were
recruited into the armed forces. Z%enin the second halfof 1991 military unitswereformed in Serb-
populated villages in Bosnia and Herzegovinaand supplied with weaponsand withforms.
Bosnia and Herzegovinawas a vital base for JNAoperations in Croainthe second half of 1991
and Bosnian Serbs were an important source of manpower both for the JNAand for the TO
[Territorial Defence forces]. ThoseTO unitsinpredominantlyMuslimand Croat areas of Bosnia
and Henegovina were ut the same time largely dkbanded by the JNA.GeneralKadijevii [.A
General,Federal DefenseMinisterfrom 1988 until19921in hisbook describes how "naturallywe
used the territorial defence TO)eof Serb regions in Croatia and Bosniaand Herzegovinain
tandem with the JNA"to paralyse territorial defencewere it mightprovide a basisfor creating the
armies ofsecessionist republic[ICTFY,Trial Charnber, Opinionand Judgrnent,
Prosecutor v. DwWkT oadiC,CaseNo. IT-94-1-T, 7 May 1997,p. 39, para. 106,
emphasis added] .
It is importantto note here that the TerritorialDefence forces alwaysreflected the
population in the areas were they werebased. The Territorial Defence was basically
a reserve force, to be quickly mobilised £romthe local population in case of war.
This facilitated the above descnbed process ofredistributionof arms. As most of the
Tenitorial Defence weapons werelocally stored and not kept atprivate homes, the
JNA sirnplyseized control over their depots and storehouses. At thesame time, it
distributedthose weaponsto the local populationin Serb dorninatedareas of Bosnia
and Herzegovina.
22. The consequencesof this redistributionof arms were also descnbed in the TadiC:
Judgement :
"107. The TO [Territorial Defence] of Bosnia and Herzegovina had in any event been to a degree
neutralised by the actionen by the INA to disarm it. Traditionally al1TO weapons were stored
locally, within each municipaliîy, butin late 1991 and early 1992the JNAremoved al1local stocks
of weapons from TO control, at least in Muslim-populateds. This lefi those local TO units
vimially disarmed whereas units which wedrawn from Serb-populated areas, and only those,
were substantiallyre-equipped[ICTFY,Trial Charnber, Opinionand Judgment,
Prosecutor v. Mko TadiC,CaseNo. IT-94-1-T, 7 May 1997,p. 39,para.
1071.
23. In his analysisof the conflict in the formerYugoslavia,My Viewof the Break-Up,
former Federal Defense Ministerand JNAGeneralVeljko Kadijevit confirmedthe
conclusions drawn by the ICTFYin The Hague:Reply of Bosniaand Herzegovina
"...the basic concept for deplopent of the armed forces included the following important
concepts:
(...)
- Toparalyze territorial defensein thoseparts of the countrywhere it mightprovide a basisfor
creatingamies of secessionist republics, i.e. secessionistforces. Accordingly, a11territorial defense
units were disannedprior to the outbreakofjîghting in Yugoslavia.Furthmore,through some of
the officers in the tenitonal defense units, we tried to keep it out of control of secessionistpolitical
leaders. And in part we succeeded,more elsewherethan in Slovenia. Naturally,we used the
territorial defense of Serb regions in Croatia and Bosnia-Herzegovinain tandemwith the JNA."
[Veljko Kadijevie,My Viewof theBreak-Up,Belgrade, 1993,pp. 98-99,
emphasis added, Annex 1021.
Thecardinal roleof the FederalandSerbianMinistriesofInterior
24. In the Memorial, reference ismade to the role played by the the Federal and Serbian
Ministries of Interior in the armamentof the Serbs in Bosnia.and Herzegovina
[Memorial,pp. 66-68, paras. 2.3.4.1-2.3.4.21.This role was pivotal. It is in fact these
Ministries and not the JNAwhich initially directedthe distributionof weapons.Their
role is also describedby Tim Judah in his above quoted book on the history of the
Serbs:
"MiloSeviCgave the task of laying the groundworkto his most trusted lieutenants. They were
Radmilo BogdanoviC,Jovica StaniSiCand Mihalj Kertes. Until1991 BogdanoviCwas Serbia's
minister of the interior,ter which heremained a powerfùl figure, mostly behindthe scenes.
Kertes wasa former Yugoslav deputyinterior minister who became a Serbian minister without
portfolio. Despite some ethnic Hungarian antecedents,he was an SPS [Socialist Party of Serbia]
deputy and an agent of Serbia's secretpolice, the SDB, which had played a key role in organising
the rallies which had secured the Serbian president's power in Vojvodina.SiCwas the head of
the SDB. Below them were the SDB's two top men, Frano SimatoviC,known as Frenki, and
Radovan StojiEiC,known as BadZa,a deputy interior minister of Serbia.
( O - . )
The SDB could not prepare a Serbian insurrectionalone, however. It needed help from within the
military. Because of the communist and Yugoslav orientationof many of the top brass, the high
command could still not be trusted, so selected generals had to be recruited. They included General
Andrija BiorEeviC,the commander of the Novi Sad Corps, and Colonel Ratko MladiC,the
commander of the Knin ganison. A clandestine network was developed. It was not a forma1group
butrather a small number of people who met over dinner to discusstheir plans. It becarne lmown
as the Vojna Linija -the Military Line- and its main idea was sInpthe words of one source it
was: 'Let's armour people first in Croatia, then Bosnia. So if Croatia and Slovenia wantto get out
we won't let them take what we take before them.' The plan they evolved over90was called
RAM, an acronym which spells out the word fi-ame.It is not known exactly what the letters stand
for, but the purpose of the plan was the organisation of the Serbsoutside Serbia, taking control of
the fledgingSDS parties and the prepositioning arrnsand ammunition." [Tim Judah, The
Serbs: History,Myth and theDestructionof Yugoslavia,New Haven & London
1997,p. 170, Annex 81.
In 1990 and 1991,the executionof the RAMplan was thusdirected from Belgrade
by the heads of the Federal and SerbianMinistriesof Interior. These persons, Chapter 8- Section2
YugoslaviaSpreparations for the armed conjiict
working for the various minisûies, supervisedthe arms distribution fi-omBelgrade, as
will also be illustratedbelow.
25. RadovanKaraEiC7sSerbian Democratic Party (SDS) carried out the distribution
itself in Bosnia and Herzegovina, thereby executingthe orders given by Belgrade.
SDS leaders from Bosnia and Herzegovinaregularly visited Belgrade to discussthe
execution ofthe RAMplan. One of these meetings was also described by the ICTFY
in its 1996Review of the KaradZiCand MladiCindictments:
"54. From the material submitted to the Trial Chamber at this stage, it seems that the military
preparations for the take-over by the SDS in Bosnia and Herzegovina compnsed two types of
action:armament and logistics support for the Serbian populations in the regions controlled by the
SDS authonties, which underlay preparations fora more direct military intervention by the
the beginningof Septembe1991, in a confidentialnote tothe President of the SDS, Radovan
KARADZIC, VeliborOstojii, an SDS leader reported on the conversationthat he hadwith high
oficials of the Governmentof the Republicof Serbia. ne discussionsand agreements seem to have
focused main4 on arms supply and communicationsmateria-"[ICTFY, Review of
Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence,
Radovan KaradZii & RatkoMladii, CasesNo. IT-95-5-R61 & No. IT-95-18-
R61, 11 July 1996,pp. 27-28,para. 54, emphasisadded].
26. Sometimes,certainly in the beginning, telephonelines were used to give orders and
keep the authoritiesin Belgrade informedabout the progressbeing made in Bosnia
and Herzegovina.One such telephone conversation betweenSerbian President
Slobodan MiloSeviC(referred to as 'S') and SDSleader RadovanKaradZiC(referred
to as 'R') took place in May 1991.At that time, the former Yugoslavia stillexisted
as such and the fightinghad not broken out yet.The war in Slovenia, for example,
erupted one month later, on 27 June 1991.The following conversationwas
intercepted bythe Ministry of Interior in Sarajevo:
"S: Radovan?
R: Yes?
S: 1spoke with the highest level [JNAheadquarters].
R: Good.
S: Please, you have to understandbecause 1can't explain everything that has been said.
R: Good.
S: It is of strategic significancefor the c"RAM"of,ou know what "MM" is.
R: 1know everythingabout it.
S: The grupation fkomBanja Luka [northern Bosnia] has to be in state of readiness.
R: O.K.
S: So, you have t-number one: provide the grupation to be in state of readiness and without
any problerns, and number tcal1[General Nikola] Uzelac in an hour and invite him to
come to an agreement.
Good.
(.-.)Replyof BosniaandHerzegovina
S: Al1themenyou give, who haveto stay andprotect thehousesandterritov andblock the
HDZ[CroatianDemocraticUnion]centers,will be armedandgiveneverythingtheyneed.
We'11transportthatby the helicopter.
R: Excellent.
S: So,please, you personally have to regulate these number one and number two; also this
second thing is very important. The third thingou, really is extremely important
because of the international publicity.
R: Thatwill beO.K. but1am interestinginthefollowin-can we arrangefor the weapons of
the territorialerneinSipovoandMrkonjiCGrad[bothplaces southofBanjaLuka]to be
given to me.
S: Huy,it'sa piece of cake.
R: O.K. Then, let's do it. We are r-there are 170people in MrkonjiCand 150 in Sipovo
who are ready to go at Kupres [central Bosnia and Herzegovina].
S: 1sUzelac authonsed for that, too?
R: Well, 1think he is.
S: O.K. -then tell him that we can't discussdetail like this.
R: O.K., O.K., then, these 150 and 170men will go at Kupres and we already have 750 men
there, at Kupres.
S: It is important for us that[JNA] battalion be at Kupres and that everyîhing goes
well."
[Transcriptof telephone conversationbetween SlobodanMiloSeviCand
Radovan Kar&iC, 29 May 1991, emphasis added,Annex 1031.
In the above passage, SlobodanMiloSeviCordered RadovanKaracEiCto "blockthe
HDZ centers", that is those villages and towns with large Croatian populations.It is
in those places MiloSeviCapparently expectedmost resistancewould be offered to
the planned Serb revolt. The factthat he asked RadovanKaracEiCwhetherhe was
acquaintedwith RAMshows that the plan was indeed setup in and directed from
Belgrade.
27. The quotation above moreover demonstratesthat Belgrade was usingtrusted officers
within the JNA, in this case GeneralNikola Uzelac in Banja Luka o distribute
weapons tovolunteers organised by the SDS.The arms and ammunitionswere
handed out without any restrictions, as MiloSeviCpromisedKaradZiCthat his men
would receive anything they needed and that helicopterswould be provided to
transport the weaponsto their destination.The weaponswere to be takenfiom the
Territorial Defence warehouses in Sipovo and MrkonjiCGrad, both cities in central
Bosnia with Serb majorities. When the conversationtook place, the order to hand
over al1Territorial Defence ordnanceto the JNA had not been given yet.
28. In the Memorial reference was madeto another intercepted telephoneconversation
between Radovan KaradnC and SerbianPresident SlobodanMiloSeviC[Mernorial,p.
69, para. 2.3.4.41.The contentsof this conversation were revealedin late 1991by
the Federal Prime Minister of Yugoslavia,Ante MarkoviC. As the first conversation Chapter 8 -Section2
YugoslaviS preparationsfor the armed conflct
quoted above, it provides a vivid illustrationof the role played by the various actors
in the executionof the RAMplan. Therevelation of the tape with the conversationis
describedby Tim Judah in his book on the Yugoslavconflict:
"Frustrated, angry and politically impotent, Ante MarkoviC,the last prime minister of the old
Yugoslavia, told his cabinet in September 1991what he had gleaned fiom a wiretap that had come
into his possession:
The line has been clearly established petween the Serbian government, the arrny and Serb
politicians in Bosnia]. 1know because 1heard MiIoSevitgive the order to KaradZiCto get in
contactwith Genml Uzelac and to order, following the decisions of the meeting of the
rnilitary hierarchy, that arms should be distributed and that the TO of Krajina and Bosnia be
med and utilised in the realisation of the RAM plan.
GeneralNikola Uzelac was the JNA commander in Banja Luka, which wasto become the main
Serb-held town inorthem Bosnia. The transcript of the tape that was leaked to the press runs as
follows:
MiloSevii: Go to Uzelac, he'll tell you everything. If you have any problems, telephone me.
KaraGiC: I've got problems down in Kupres [central Bosnia and Herzegovina]. Some Serbs
there are rather disobedient.
Miloievik:Wecan deal with that.Just cal1Uzelac. Don'tworv, you 'Ilhave evevthing. We
are the strongest.
Kara&ik: Yes,yes.
MiloSeviC:Don't worry. As long as there is the axmyno one can tou..Don't worry
about Hercegovina. Momir (BulatoviC,president ofMontenegro) said to his men: 'Whoever
is not ready to die in Bosnia, steprd five paces.' No one did so.
Karad2iC:That's good..But what's going on with the bombing-in
MiloSeviC:Today is not a good day for the air force. The European Community is in
session."[Tim Judah,The Serbs: History,Myth and the Destruction of
Yugoslavia,New Haven & London 1997,p. 191,Annex 81.
This conversationagain shows that thedistributionof ms was coordinatedby
Belgrade and that some officerswithin the JNAin Bosnia andHerzegovinaplayed
an important intennediary role. As in the firsttelephone conversation,General
Nikola Uzelac is presented as MiloSeviC'shenchmanin BanjaLuka.
29. The volunteers organisedby the SDS were ofien Serb reservistsof the Territorial
Defence forces.As explained above, these forces were normallyonly to be mobilised
in case of war.This also explainsFederal Prime Minister Ante Markovié'sgreat
anxiety, asthe mobilisation of Ten-itorialDefence reservesin areas with large Serb
majorities could only be interpreted as a precursorof an armed conflict. Contraryto
the assertion made in the Counter-Memonal[Counter-Memorial,p. 102, para.
1.3.17.21,these reservists were only armed aJter being mobilised. Generally, they
would not keepany weapons at home.Reply of Bosnia and Henegovina
30. In its Counter-Memorialthe Federal Republicof Yugoslaviadid not deny the
telephone conversationrevealed by Ante MarkoviCtook place. Nor did it contradict
the fact that the persons involved in the telephoneconversationwere indeed Radovan
KaradZiCand SlobodanMiloSeviC.There is, of course, no roomfor denial, as the
conversation wasrevealed by Ante MarkoviChimself, at the time Prime Minister of
the Socialist FederativeRepublic of Yugoslavia.The existenceof the recorded
conversation andits contentswas, by the way, confied by Yugoslav sourcesas
well [SrpskuRec, 24 May 1993,p. 8, Annex 1041.
Petar JankoviC'spersonal diary
The cited telephone conversationsshow that Radovan Kara&iCYsSDS and the
31.
authonties in Belgrade regularly communicatedwith each other to discussthe
armamentof the Serbs in Bosnia and Herzegovina.As mentioned above, the
distributionof arms was directed at the highest level in Belgrade,the Federal and
Serbian Ministriesof Interior initially playing the key role. The day to day
involvementof these ministries is vividly illustratedby Petar JankoviC'spersona1
diary, which was found in Kalesija, a town near Tuzla in the northeastof Bosnia and
Herzegovina, by Bosnian forces in May 1992.Petar JankoviCjoined KaraGiC'sSDS
in the early days. By the time he startedkeeping his diary, in the summer of 1991,
he had reached the position of President of the SDS branch in Kalesija.
32. In the following pages several fragmentsof Petar JankoviC'sdiary will be quoted.
The first entry dates fiom 24 July 1991and describesJankovié'svisit to Belgrade,
where he met both Radmilo BogdanoviC,Serbia's former Interior Minister, and
Borisav JoviC,Serbia's representativeon the Federal Presidencyand a close associate
of SlobodanMiloSeviC.On his visit to Belgrade,JankoviCwas accompaniedby three
Serbs,most probably also SDS members fiom the area around Kalesija: Drago
KeroviC,Milan PetroviCand MilivojePeriC.This small delegationarrived at Radmilo
BogdanoviC'soffice in the early morning of 24 July 1991 :
"DATE:24.7.91 (July24, 1991)
Afterthetelefaxwassent1wentto BelgradewithKeroviCDrago,PetroviCMilanandPeriC
Milivojeat8:30atRadmiloBogdanoviC.
Milanhisula told usthatRadmilo invhim.Ittumedoutatthe secretarthatMilanhadcalled
andthathe hadannouncedus.Pusulatriesto pushin (whilewe arein the RadmilopogdanoviC]'s
office he calls thecabinetof BorisavJoviC.
Thechief of cabinetsaysthathe hadcalledme in Dubnica[tom near Tuzla]andto make
agreement on theerms. Chapter 8-Section2
Yugoslavi'spreparationsfor the armed conflict
He proposes me to choose the smaller group and to come with Radmilo [BogdanoviC]at ten
o'clock at JoviC's.
Thesame group goes to JoviC.He received us kindly. Wepresented the situation.JoviCwas
surprised when he heard that there was 18.000 Muslimsin Bijeljina.
He was also suprised that the Amy had not armus. Whydo not theorders go throughthe Army.
Radmilo [BogdanoviC]avoids. JoviCsays: 'TheSerbpeople havebeen buyingthat anns and they
mustget it, and they mustuse it onlyfor defence. He asked what kind of contact we had with the
Army. 1said that we had good relations with the commander Cica (221) at the Dubrave airport
[Tuzla military airport]. It was agreed that in 7 days theyprovide us up to Loznica (Serbiancity
close to the Bosnianborder].
(...)I[PetarJankoviC,Diary2 ,4 July 1991, emphasisadded, Annex 1051.
This fragment fiom JankoviC'sdiary demonstrates thatBonsav JoviCalready
supported theSerb cause wholeheartedly atthe time the meeting took place on 24
July 1991,that is severalmonths before Ante MarkoviCrevealed the existence of the
RAMplan. When JankoviCmentioned the number ofMuslims living in Bijeljina,not
far from JankoviC'shome base Kalesija,JoviCwas surpnsed, probably because the
number was much higher than he had expected.The announcementdid not fail to
have its desired effect, asJoviCsubsequently promisedto provide JankoviCYS serbs
with the expectedweapons.
33. Five days later, Petar JankoviCagain travelledto Belgrade, whereit soonbecame
clear that JoviC'sinterventionhad not been in vain. This time only Drago KeroviC
accompaniedhim. In Belgrade they met Jovica StaniSiC,which JankoviCcordially
referred to as "Jovica", thenotorious head of Serbia's secret police (SDB). The
following shows that JoviChad in the meantime instructed StaniSiCto supply
JankoviC'sSDS branch with the required arms:
"DATE: 29.7.91, Monday (July 29, 1991)
KeroviCcalled at8:10. 1cal1KeroviCat 8:25 and he invites me to come and pick him up as there
wasan invitation for us to go to Belgrade to Jovica [StaniSiC](the chief of the State SecMty).
At 12.15,we are at the State Security at Jovica's officeand at Milan's, adeputy.
They had a telefax which 1had sent to JoviC.
He says that thearms are approvedfor us, but less than 3.600 we had askedfor. It was agreed the
transportutionto start on Monday. He criticisesthe leaders of Ourparty [SDS] becarenote
united. He says thaterybody brought ova to its side. We have agreed that the two of us and
PeriChad done the whole work.
(...)[Petar JankoviC,Diary, 29 July 1991, emphasis added,Annex 1051.
34. As it turned out later, the transport of the weapons was delayed for several hours.
Petar JankoviCdescribed the eventssurroundingthe transport in his diary. The
arrival of the arms immediatelydividedthe various SDS leaders, each trying to get
the largest share of the delivery.Reply of Bosnia and Henegovina
"0n 6.8.'91, about 2250, KeroviCcomes and says that the truck with the arms has not yet
departed.
He moves around and he seems suspiciousto me.
He behaves strangely and not clearly.
At 01, he says to go to sleep because the truck has not started. 1go to sleep with Vesna at the
suite.get up 8o'clock and hear Lazo in the comdor.
1ask Lazo what's new. He says that somethings which are not correct have been happening. He
says that they had to [go to]iCa',fiom Rastosnica [town between Tuzla and Bijeljina in the
northeast of Bosnia], they had to disqualie Pusula's man.
Later, both of them were also disqualified.
Kerovii'sboys sent them to Belgrade to waitfor the truck.Znthe meantimethe truck wentoff It
happened that onlyKeroviC'sboys left.
Ifind out thatthe truckwas unloadedut anotherplace. Zasked a driver who had given theorder.
He says: KeroviC'sboys. Thething issuspicious. Thegooak were unloadedut twoplaces.
About 09 hours, Branko came. 1criticisehim for the things which were happening.
He saysthat he knows about 50% of things and 50%have been happening apart of him.
KeroviCcomes. 1ask him why the things have been changed. He stutters, avoids:He says that there
will be no problems. He wants us to go on the spot.ay:until we gather all, 1wait Milan.
1cal1Milan around 11o'clock. Milan considers that there is no problem regarding the location.
But, when 1told him everything he started to be suspicious.At 15(13)hours, the meeting: a driver,
KeroviC,1,Milan, Branko DjeriC,Lazo and BodirogiC.1ask the same question. 1ask if they have
the papers for the goods.obody has any paper.
We made a conclusion that a scenario was carried out by KeroviCand Branko with KeroviC'sboys.
Wegive the order to count the gooak.Ztcounts 300 68.2. Wemakedistribution.
Now, characters and intentions are revealed. KeroviCtries to get unreasonable.He doesn't agree
thatPusula gets 11pieces. The quarrel starts and insultsbegin. Pusula swears at KeroviCand
threats that heill set his house ablaze. KeroviCreacts.
We calm the situation down.
1propose them not to quarrel but to take some fiom my goods. 1also do not agree with the
proposal.
In the evening we eke out a bare existence.
We found out that the counting was not.
Zgot 60 22.2 for 7municipalities.
Tomorrowwe drive to Predrag 'sbuildingto divide.
The security is good.
Al1drive away theirs."
[Petar JankoviC,Diary, 29 July 1991, emphasis added,Annex 1051.
One week der JankoviC'svisit to Belgrade, the requestedarms were deliveredto the
Bosnian Serbs. JankoviChirnselfreceived 60 ms, to be distributedamong seven
municipalitieswithinthe area under his control.
35. The news that Petar JankoviChad received weapons soon spread among the Serbs in
the Kalesijaregion. On 14 August 1991,two Serbs fiom the village of Osmakpayed
him a visit to ask for arms. They retumed home afier being reassuredby JankoviC:
"DATE: 14.8.91(August 14, 1991)
Danko and Vladimirfiom theplace of Osmakcame. Theywere sent in the nameof theBoard to
remindme not toforger them about anns. Theywent around tosee all, but they came again to see Chapter 8 -Section2
YugoslaviaS preparationsforthearmedconflict
me, beîter tsay theyweresent to me.I hadshownthem thescheduleandtheywentaway
thanyirl.
At 20 hours,1 am with Vesna in the village of CakloviCi.
They are not experienced.
They Saythat the Municipal Board with MiliCis against me, and they criticise that.
1explained them my vision of the situation.
I told themthatthere wouldbe war,andthattheyshouldorganise themselves." [Petar
JankoviC,Diary, 14 August 1991, emphasis added,Annex 1051.
With the weapons received fiom Belgrade,JankoviCarmed the neighbouringvillages,
while telling the inhabitantsthat theyhad to organise themselvesas the conflict was
about to break out. This warning was given on 14August 1991, thatis almost eight
months before the first genocidal actswere actuallycommittedin Bosnia and
Hemegovina.
36. The weapons the Bosnian Serbs received af3erthe above mentionedvisit to Belgrade
were not sufficient for PetarJankoviC. On 6 September 1991,he again visited
RadrniloBogdanoviCand Jovica StaniSiCin Belgrade.He was accompanied byhis
usual fellow party members: MilanPetroviC,Milivoje Perié,Drago Kerovié:
"DATE: 6.9.91 Friday [deleted] (September6, 1991)
(--)
At 24:30 1call PetroviEMilan and 1Sayhim that for tomorrow the tm for Belgrade is changed
and that wedepart at 6:30. He agrees. 1call PeriCand Saythat there is a change, at 6:30. He says
that hecan not go because he goes to pick up the Russian women. 1 Saythat it iOKnoas we've
agreed to go together.don't like this. But 1tell hLet it be accordingtheagreement.Kerovi6
to go toJovica [Staniiik]withthepapers,andwe shallgo to Radmilo[Bogdanovii]. Ouraim is
onlyto makepressureandto speed ifup.They should not feel any distrust.
1am awake at 03 because the dogs are barking to much. 1could not sleep any more. 1am up at 05.
1took the papers (on arms) with me for Radmiloas 1have doubts that KeroviCwill show the
papers.
(.-)
At 1O.1Oat Radmilo 3.
A secretary says that there are some from Bosnia there, from Zvomik. 1ask whether she knany
of them, she Saythat KeroviC(a bald person) is there. 1am surprised. 1think very quickly. 1sit
better to go to eavesdrop on the conversationor to wait untill they leave. 1decided to go in. The
secretary announces that I've anived. Radrnilo saysthat he is waiting for us. We are going in,
Radrnilo greets me withpleasure. 1am surprised because Branko is with KerovRadmilo as- me
howIfeel. Isay: so bad thatit cannotbe worse.I explainthat thepeople are unbearable.It
seemsthathe understood.He call thechiefof the StateSecuriîy,Jovica[StanrrTii.take out the
papers and put them on a table. KeroviCnoticed it and he changed his colour.:Radmilo, this
papers are for you, and KeroviCgave them to Jovica. Radmilasks:Have you, KeroviC,given
them to Jovica. KeroviCIsaid that he had given them to Stanko Cvijan. (And 1think he lies.)
Radmilo reviews the papers and says: Just like this. Yes.
Jovica [StanrrTikc]ornes.He greets us.Radmilo[Bogdanovik]says: Jovica,leus.makethe
agreementwiththispeople. Jovica saysthat Velibor Ostojhas ûied to come into the canal, but
thathe refuses itIt is agreedthaton Tuesdayat 7there wouldbe a loadingand a conversation.ReplyofBosniaandHenegovina
Radmilo mks me to writehimdown thenumbers ofsold weaponsHe says that they will kill
somebody. He says us not the [to] do anything about the militarytasks regarding the cards. If the
Army is not able to work, then we to form the1have a feeling that he is against the Army.
He says that we should let only the Serb police into the Serb villages."iC,
Dialy, 6 September 1991,emphasis added,Annex 1051.
The entry quoted above demonstrates that by September 1991 the distributionof
arms by the Ministries of Interior in Belgrade to the Bosnian Serbs had become a
routine operation.
ne distribution of arms through the.INA
37. As shown bythe diary cited above, the JNA was not involved in the frst phases of
the RAMplan. Initially, the CO-operation of the JNA was lirnitedto those officers
who could be 'tnisted', such as GeneralNikola Uzelac from Banja Luka, to whom
MiloSeviCreferred in his above quoted telephone conversationwith KaradZiC.After
the JNA had been purged of its 'Yugoslav'influences,however, thatis, in the first
months of 1992 [see e.g. James Gow, The Remainsof the YugoslavPeople'sArmy,
Jane S IntelligenceReview,August 1992, pp. 359-362,Annex 1061,the involvement
of the JNA became massive,as will be shown in the followingpages.
38. With the 'Serbianisation'of the JNA in late 1991and early 1992, the amount of
weaponsbeing distributed arnongthe Serbs increased rapidly.The growingrole
played by the JNA in the nui up to the Bosnian genocideis also mentionedby Judge
Hanne Sophie Greve in her Pnjedor report to the Commissionof Experts. The
followingis an extract fiom this report, describingthe months precedingthe Serb
take-over of the Prijedor municipalityon 30 Apnl 1992:
"138. TheSerbiananny[mA], inclosecooperationwiththe SDS,dktributedweapons tothe
Serbian populationinPrijedortownandother townsandvillagesin the Ovstina.Openthese
deliveriestookplace openlyinbroad daylight.Thedktributionwasmainlyorganizedby trucksand
seemedaimed ut armingeverySerbian malebetweentheages of 15 an70.Many Serbian women
and old men were provided withms.Serbian policemen were also moving around especially at
night handing out weapons to fellow Serbs.
139.Weapons and military equipment were evenflown in by military helicopter to Serbian military
officers. It is said that by the end, almostno Serbian house was withoutgun.Manymatic
Serbs may also have received grenades.
140.Thepretextfor the armsdeliveriesand therearmamentwasthatthiswas necessaryfor the
defence against"theenemiesof thepeopl-"theMuslimextremistsand theUstase[UstaSaL.
141.The Serbs were provided with new automatic weaponry. Serbs who hadbeen armed in this
manner started to establishcheckpoints in the villages. Chapter 8 -Section 2
Yugoslavia'spreparationsfor the armed conflict
142.Ample distributionsof ammunitionwere also made, and even larger quantities of ammunition
were stored locally. Approximately five kilometres fiom Ma10Palanciste on the road to Knezica,
there isanammunition cache.A Serbian teacher (now director of the school), whose name is not
disclosed for confidentiality or prosecutonal reasons, who used toout ammunition forthe
heavy artillery there, boasted that there was enough heavy ammunition stored that it would suffice
for one year if1,000rounds were fired each day.
(-1
144.Many non-Serbs, who saw truck-loads of weapons being distributed in their home areas to
Serbs, were so fiightened that they did not dare to believe what they saw. In general, Muslims and
Croats became scared. At thesame time, Serbs had their informants among the Muslimsand Croats
who spread the word that Serbs had weapons for sale. One Serb (whose name is not disclosed for
confidentiality or prosecutonal reasons), later ill-reputed and then belonging to a so-called
intervention unit., and other Serbs, who later came to play important destructive roles when the
Serbs had taken power, were involved in sellingrather faulty weapons to non-Serbs. The sellers
simultaneouslyregistered the buyers for illegally being in possession of firearms. The people
wanted, it seems, to buyhese weapons as they were fiightened and wanted to have something for
self-defence. The number ofsuch weapons around remained none the less limited.
145. When the later Serbian chief of police, Simo Drljaca, briefed visitors on the background of the
events in Ovstina Prijedor, he insisted that the Muslimsand Croats had been prepanng for war for
more than 22 years, and that the Serbs had 'documentsshowingthat 3,491 men who couldfight
fiom Kozarac, had accepted weapons'. Simo Drljacawould obviouslynot quote a deflated figure;
there are, however, reasons for believing that his figure is highly infiated.ingthe later
attack on the Kozarac area and the interrogationsconducted in the main concentrationcamps
where thepossession of arms seems to have beena main themeof accusations againstcamp
inmates .., it may be questionedwhether thesale of ratherfaulty weapons toperceived enemiesby
keypeople in the Serbian military rankswacidesigned to give the Serbs a pretext.
146.Radio Priiedor was, prior to 30 April 1992,constantlybroadcasting that people oughtto hand
over their weapons to theuthorities. ThTO and the police kept their weapons. People who had
no license to own weapons hid them if they had any. Muslimsand Croats who had legal
authorizationto have weapons (normally for hunting) were visitedby Serbs and threatened to hand
over the weapons which they legally possessed.It is noteworthy that the non-Serbs, who "illegally"
bought weapons fiom and were registered by theabove-mentionedill-reputed Serb and others
associated with or members of the Serbian military, were notsimilarly visited. People on these
sales lists were, however, among the first to be liquidatedin the later Serbian military attacks
whether or not they hadkept their armsand whether or not they hataken any recourse toarms."
rCJniteN dations,Final Reportof the United NationsCommissionof Experts,
S/1994/674/Add.2(Vol.I),AnnexV, "The PrijedoR r eport",28 Dec. 1994,pp.
30-31,paras.138-146,emphasisadded].
Thecitd extractfiom Greve'sPrijedorreportshedsaninterestinglightupon the
earliermentionedclaimthatthe Serbs werethreatened by "Muslirnextremistsand
the Ustase[UstaSa]"G . reveclearlydemonstrates thatthisimaginary'threat'was
especiallycreatedandartificiallybolsteredto offerthe Serbsa pretext for taking
overpowerandstartingto dothe exactoppositeof whattheyclaimedwas aboutto
happen.Reply of BosniaandHenegovina
39. Judge Greve's report is completely focused onthe Prijedor area. The pattern
apparent in her report is, however, typicai for al1of Bosnia andHerzegovina. The
marnent of the BosnianSerbsby Belgrade, the JNAand the SDS was indeed
organised in a methodical and thorough way. The same pattern, described byJudge
Greve, occurred al1over the territory which later fell under the control of the
Bosnian Serbs [see also Hannes Tretter e.a., Report on "ethniecleansing operations"
in the northeast-Bosniancity ofZvomikfiom April throughJune 1992, Ludwig
Boltzman Institute of HurnanRights, Vienna 6 April 1994,pp. 18-19,Annex 48;
United Nations, Final Reportof the United Nations Commission of Experts
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex IV, "The Policy of Ethnic
Cleansing",p. 27, para. 140;Misha Glenny, TheFa11of Yugoslavia:TheThird
Balkan War,London 1992,p. 149,Annex 611.
Militaly documentsprovingJNA'smassiveinvolvementin the distributionof arms
40. On 3 May 1992,the commandof the 2nd Military District left Sarajevo, when the
headquarterswere moved to Han Pijesak in east Bosnia and Herzegovina [seeReply,
Chapter 8, Section 41.Shortly after the departureof the JNA fiom the barracks, the
forces under control of the Bosnian govenunent entered thepremises and found a
great nurnber of rnilitary documents which theJNA had left behind. These
documentsprovide a clear illustrutionof the orderly and systematic waythe plans
were executed. In addition,they show the enormousextent and size of the operation.
In the following some of these documents willbe discussed atgreater length. Chapter8 -Section2
YugoslaviaSpreparationsfor the armed conflict
41. On 13 December 1991the TerritorialDefence headquartersin BosanskiPetrovac
applied tothe local JNAunit with a request for arms. BosanskiPetrovac is a town
locatedin the northwest of Bosniawith a large Serbmajority:
"SOCIALIST REPUBLIC OF BOSNIA AND HERZEGOVINA
MUNICIPAL HQ OF TERRITORIAL DEFENCE
BOSANSKI PETROVAC
strictly confidenti061190-1
13.12.1991 MILITARY SECRET
STRICTLY CONFIDENTIAL
Request for taking over of missing ordnance,
delivers,
MILITARY POST 1754
BOSANSIU PETROVAC
Having in mind political-security situationin Yugoslavia and the war conflict provoked by fascist
forces, the need arose in the territory of municipality of Bosanski Petrovac tohave better and more
qualitative organization ofal people's defence, including thetemtorial defence.
Consideringuch situation The Council for people's defence of municipalitydiscussedthis issue
and initiated at the assembly level to increase number of TO [Temtorial Defence forces] troops, to
imporove their equipment and to better organize thetroops, on the basis of which adequate
decisions on reorganization of TO were as well whichaffairs are to be organized by
Municipal HQ of TO.n accordance with the realizationof these task there are tasb which we
are not able to realize in cooperationwithHq ofHQkofiTO and RepubliHQ of TO,and
they are relfected in thefact that we are not able to equip TO unitswith ordnance.
Having in mind that the JNA units weretransferred from Croatia to our area, we consider that we
are obliged to accomplishual cooperation in secunng buildings of special siJNAficance,
facilities, communications and control of the municipal area having in mind that we are located in
the operational depth ofing out operational activities.
By reorganizationof TUof municipalig of BosanskiPetrovac, the number ofTO troops was
increasedfiom 540 t1700troops, and in accordance with their increased numberwe are not able
to provide thefollowing ordnance:
1. small gu7,62mm pcs.40
2.automatic small gu7,65 pcs.15
3.automaticrifle7,62 pcs.13
4.semi-automaticrifl7,62(7,9) pcs.60
5.mortars60mm pcs. 12
6.mortars82mm pcs.10
7.mortars120mm pcs.3
8. recoiles ri82mm pcs.6
9.anti-tank bazook90mm pcs.20
10.bazookasM-57 pcs.40
11.anti-tank bazook64mm (Zoija) pcs. 200
12.hand-grenades pcs.400
13.perimeter pcs.3
14.2 sets osmallannsammunition
15.set of troop uniforms pcs.1200
Please consider our reqandtforward it to superior cornmand.Reply ofBosniaand Herzegovina
Commandof TO
1stcaptainonreserve
ObradVmna
[stamp confirming receipt]
14.12
Military Post1754
conf. 129-56
1991
Bosanski~etrovac"
[BosanskiPetrovac MunicipalHeadquartersof TerritorialDefence, Request
addressed toMilitary Post 1754, signedCaptain Obrad Vrzina, 13Dec. 1991,
emphasis added, Annex 1071.
The stamp at the bottom lefl of the letter showsthat the letter was indeed posted by
"captainon reserve" Obrad Vrzina.The next day, on 14 December 1991,it arrivedat
Military Post 1754in BosanskiPetrovac.
42. The mobilisation of the TerritorialDefence in the municipalityof BosanskiPetrovac
was carried out at the initiative of the local council. It was not orderedby the
Territorial Defence headquartersin Sarajevo.As mentioned above, BosanskiPetrovac
was a city with a large Serb majority. Although the requestis coined in vague
wording [maybe deliberately sol, it is clear that the TerritorialDefencewas
mobilised to execute tasks independently fiom the headquartersin Sarajevo. The
Republican authoritiesin Sarajevo were intentionallylefi ignorant of the mobilisation
of their own Territorial Defenceforces. The same holds, afortiori, for the tasks
allottedto these volunteerunits.
43. Almost three weeks after having received the above quoted letter, the Deputy
Commanderof the JNA unit in the BosanskiPetrovac, Colonel MilanSkondriC,
forwardedthe request to the JNAheadquartersof the responsible 2ndMilitary
District in Sarajevo [where the documentwas found on 3 May 19921:
"COMMANDOF530~~ REARBASE
strictlyconfidential 25-1
03.01.1992 MILITARY SECRET
STRICTLYCONFIDENTIAL
Request forprovidingordnance
for municipalTOHQTOB. Petrovac
-forward-
5th[2nd]MilitaryDistrictHQ Chapter8 -Section2
Yugoslavia'preparationsfor the armed conjïict
Municipal TO HQ of B. Petrovac, being the only military unit in the terrB.Petrovac
municipality, submitted its request strc.conf. 06/113.12.199 sating the reasons for
provision of small and artillery arms, with res2ecombat sets of ammunition and troop
uniforms.
By evaluation of the political-security situationin the broader operational zone of 530th Rear Base,
and having in mind thessignmentson newly established units of municipal TO HQB.
Petrovac, we have concluded that they are in the function of control of tenitory, administrativeand
castling communications,protection of buildings of specialficancein cooperationwith the
JNA units in possible combat operations in this area.
Weparticularly stress that insofar,fiom the terriB.rPetrovac municipality,mobilizationof
troops and volunteershas been very successfitl.liheyactivelyparticipated andproved themselvesto
be reliable in carrying out the tasks as membersof 5th, 9th Corps and 200 militarybase, which
proves that the local population, inprotection of the commonhomeland,isin questionand
that they supportAas a whole.
Considenng thatthe organizational-formatiopreparations in forming of the above mentioned
units of municipal HQ of TO-B. Petrovac has been succesfullycompleted, we think that with the
provision of the requested ordnance we would gain additionalforces for the accomplishmentof the
above mentioned important tasks for JNA, for which reasons we propose to meet the above
mentioned request at the earliest convenience.
DEPUTY COMMANDER
colonel
Milan Skondrik
encl.
request of TOB. ~etrovac" [Command of 530th Rear Base,letter to 5thMilitary
District HQ, signed colonelMilan SkondriC,3 Jan. 1992,emphasis added,
Annex1081.
This letter also demonstratesthat the mobilisationof Serbs was not lirnitedto
revervists,but includedvolunteers aswell. New units were formed with these
volunteersin order to support the JNA, which at thattime had almost completedits
'Serbianisation'process. The JNAwas, in cooperationwiththe local Serbs,
obviously preparing itself for an armed conflict.The aim of this confiictwas not to
protect Bosnia and Herzegovinafrom a foreigninvasion, butthe protectionof the
"cornmonhomeland".This protectionwas done exclusivelyby Serbs and the Serb-
controlled JNA. The "comrnonhomeland" mentioned inthe letter abovecan only be
interpretedas being the future Oreater Serbia [seeReply, Chapter41.
44. The Serbs in BosanskiPetrovac were servedaccordingto their wishes, althoughthey
did not receive al1the requested ordnance.On 8 January 1992, the following
confirmationwas sent by the headquartersof the 2nd MilitaryDistrict:
"2ND MILITARY DISTRICT HQReplyofBosnia andHenegovina
confidential 321198-5
08.01.1992
HQ of the 530thRear Base
Municipal TO HQ Bosanski Petrovac for information
Reference: your letter str.conf. 25-1 of 03.01.1992 and request of Municipal TO HQof Bosanski
Petrovac,str.conf. 061190-1of 13.12.1991
Hand out the following types and quantities of ammunitionfor the needs of HQ TO Bosanski
Petrovac:
a) from ammunition storage BihaC
-bullets 7,62 mm for small gun;
2100 pcs.
-bullets for 7,62 regular bullets; 1500pcs.
-bullets 7,62 mm, piercing bullets for
AP [automaticrifle] 3780 pcs.
-bullets 7,62 mm, regular bullets for AP 27720 pcs.
-bullets 7,6mm, signalizing bullets AP 7560 pcs.
b) from ammunition storage Donji Lapac
-mortar mines 60 mm 1440pcs.
c) from ammunition storage BosanskiNovi
-mortar mines 82 mm 1200pcs.
-cumulative mines for bazookasM 57 320 pcs.
-hand grenades M 75 420 pcs.
We would like to mention thatwe do not have available other ammunitionmentioned in the
request.
Deputy Chief of Technical Service
Colonel
Gradimir ~etrovic~[2nd MilitaryDistrict Headquarters,letter to 530th Rear Base,
signed, colonel GradimirPetrovac, 8 Jan 1992, Annex 1091.
45. On 6 February 1992,the so-calledPublic Safety Stationin BosanskiPetrovac
addressedan additionalrequest for theJNA [Public Safety StationBosanski
Petrovac, request addressedto Military Post 1754, signedLjubomirKerkez, 6
February 1992,Annex 1101.Again, the addresseeforwardedthe requestof this
police unit to the command of the 2nd Military District [530th Rear Base, letter
addressedto 2nd Military District, signed colonel MilanSkondrid,17 Febniary 1992,
Annex 1111. Chapter8 - Section2
YugoslaviaSpreparationsfor the armedconfict
46. On 18February 1992,the regionalheadquartersof the TerritorialDefence forces in
Bihak,near BosanskiPetrovac in the northwest of Bosnia, asked the 2ndMilitary
District to supply them with arms. This request is referred to in the following letter,
whch the 2nd Military Districtconsequentlysent to the Ministry of Defence in
Belgrade:
"Command of the 2nd Military District
Conf. No. 321205-16 Military Secret
03.03.1992 Confidential
Request to equip the Tenitonal Defense units
and the units of the Public Security Service
Federal Ministry of the National Defen-Technical Administration
Reference: Orderof the Chiefof the GeneralHQ of the ArmedForces of theSocialistFederal
Republic ofYugoslavia(SFRV, con$ No. 2268-1datedfiom 30.12.1991
Please find enclosed the request of the RegiHQalof the Territorial Defense Bihaé,sûictly
confidential number: 06/1-1192from 18.02.1992 for thesupply of the 2.000 pieces of infantry
am.
Wewouldlike to ask you to, respectingthe abovementionedOrderof the Chief of the GeneralHQ
of theArmed Forcesof the SFRY, makethe verdictonfilfilment of the given requests.
For the Chief of the Technical Services:
colonelReplyofBosniaandHerzegovina
GradimiPetrovic"
[2nd Military District, letter addressedto Federal Ministry of the National
Defense, signed colonelGradimirPetrovic, 3 March 1992, emphasis added,
Annex 1 121.
It is important to note that the request was apparently filedand forwardedin
accordancewith an order given on 30 December 1991 bythe "Chief of the General
HQ of the Armed Forces of the SocialistFederal Republicof Yugoslavial'.The
mobilisationof the Serbs and the distributionof armswas therefore directed and
carried out in accordancewith orders given by the JNA General Staff in Belgrade.
47. A similar request for large quantitiesof armswas made by the Serbmunicipalityof
Bosanski Noviin March 1992 [TerritorialDefenseBosanskiNovi, request addressed
to Military Post 1754, signedMile DamjanoviC,Annex 1131.The request waslater
forwardedto the command of the 2nd Military District,where it was againfoundby
Bosnian forces on 3 May 1992,dong the sarneprocedural lines shown in the cited
Bosanski Petrovac example [530thLogistics Base,letter addressedto 2nd Military
District, signed Milan Skondic, 19March 1992,Annex 1141.
48. On 30 March 1992,less than two weeks later, the JNAin Sarajevo handed over
almost 1000 authornaticrifles toarm newly fomed voluntaryunits in the Banja
Luka area [Military Post 4022 BanjaLuka, request addressedto Military Post 5027
Sarajevo, signed Vaso TepsiC,26 March 1992,Annex 115; and Military Post 5027
Sarajevo, order given to Military Post 5290Banja Luka, signedcolonel Gradirnir
PetroviC,30 March 1992,Annex 1161. Chapte8 -Sectio2
Yugoslavi'preparationsfor the armed confict
49. On 24 April 1992, GeneralMilutin Kukanjac, commanderof the 2nd Military
District, fonvarded a request to the Ministry ofefense in Belgrade. It was filed by
the Ministryof Interior of the Serb Republic of Bosniaand Herzegovinaand was
intendedto arm a so-called specialrnilitia unit in the "Centreof Security Service
Banja Luka" [2nd Military District, letter to the Federal Ministryof Defence, signed
GeneralMilutin Kukanjac, 24 April 1992,Annex 1171.In his request, General
Milutin Kukanjac explicitly referredto the abovementionedorder given by the
General Staff in Belgrade on 30 December 1991.He advisedhis superiors in
Belgrade to grant the request.
50. Besidesthe anning and mobilisationof volunteers,a war hospital was establishedin
Sokolac, a Serb dorninatedcity in east Bosnia.On 10February 1992,the so-called
Ministry of Defence of the Serb Autonomous Region of Romarija, the mountainous
region east of Sarajevo, sent a letter to Belgrade.The Serb AutonomousRegion of
Romarija was establisedin September 1991,togetherwith several other Regions in
Serb dorninatedareas. They were parallel regional structuresfor Serbs only,
establishedwith the aimof separatingfrom the Republicangovernent agenciesin
Sarajevo [ICTFY, Trial Chamber, Opinion and Judgement,Prosecutorv. DuZh
Tadid,Case No. IT-94-1-T, 7 May 1997,pp. 35-36, paras.97-1021.The mentioned
letter was addressedto, among others, the Ministry ofDefence of Serbia. It was
recovered after May 1992by members of forcesunder control of the Bosnian
government, during a search of abandonedapartrnentsformerly inhabitedby leading
officials of the Serbian DemocraticParty:
"GOVERNMENT OF SERB AUTONOMOUSREGIONOFROMANIJAReply ofBosnia and Henegovina
strictly confidential no. 10-9/92
10.02.1992
MILITARY SECRET
STRICTLY CONFIDENTIAL
Provision of medical equipment for the needs of war hospital
request,-
Referring to our agreement with the Chiefof General Staff of Armed Forces ofSFRY, chief of
medical administrationand command of 2nd Militas, Districtpleasefind enclosed herewith needs
for medical equipmentfor the war hospitalPodromanija-Sokoloc.
A newly erected building some 70m2 of usable space will be usedafnew war hospital,
which isnecessary to equip with technical-technological equipmentas specified in theeto.
Coordinatorsfor provisionof medical equipment willbe Dr Sava Novakovit, deputy ministerfor
health of the Republic of Serbia, and Dra Radojkovii. (Ministry of Defence ofthe Republic of
Serbia), Nemanjina II, phone 656-786 and 658-722.
Enclosure: 1
Co.
-Assistant of Federal Secretary for People's Defencefor Logistics;
(-1
-Ministry of Defence of Republic of Serbia;
-Ministry of Health of Republic of Serbia;
(-1
DEPUTY HEAD OF GOVERNMENT
Milan TupajiC,B.Sc.eng
MINISTER OF DEFENCE
major Dragomir KrstoviC
Commander of SA0 [Serb Automous Region] TO HQ
Slobodan ~atini~"
[Serb AutonomousRegion of Romanija,letter to Assistantof Federal Secretary
for People's Defence forLogistics, signed MilanTupajiC,10February 1992,
emphasis added, Annex 1181.
As the other documentscited, this document showsthat the Serbs were indeed
planning for an armed confiict. The authorities in Belgradeare shownto be in
complete controlof the process, directingthe activitiesin Bosnia and Herzegovina
and providing al1the logisticalsupport necessary.
Oncemore:Petar Jankovi6'spersona1diav
51. The military documents citedin the page above clearly illustrate theimportant role
played by the JNAin the distribution ofarms to the Bosnian Serbs.As explaineci Chapter 8 -Section2
Yugoslavia'spreparationsfor theanned conflict
earlier, the JNA only got massively involvedin this distribution in thebeginning of
1992, when the ranks of the army had been successfullypurged of al1anti-Serb
elements.The crucial role played by the JNA is also descnbed by Petar JankoviCin
the diary he kept in the months precedingthe wax-.As mentioned above, this diary
was capturedin Kalesija, in northeast Bosnia, by Bosnian forces in May 1992.In the
following entry, dated 24 January 1992,JankoviCdescribeshis fi-uitfulCO-operation
with the various officers of the JNA in the area of Tuzla. In addition he explainsin
what way the JNA assisted himin the creationand training of voluntary Serb units.
His liaison officer within the JNA was a major called LaliC,who was based in the
vicinity of Tuzla:
"DATE: 24.1.92Friday (January24, 1992)
(...)
Al1thisperiod of timeZam workingtoprovide the armsandZCO-operatewith theTuzlaCorps,
with the generalankoviEand especially with the colonelNikolaDanciE.
Zjudged Nikolaas a good Serb.
Hepromisedme to help meto get anns andsomethingis workingon that.
There are pieces of information that the Muslims want to take over the airport from inside.
Vlastimir Becareviéstarts to CO-operatewith me. We inform Nikola to take care about the airport.
In the meantime, there are quarrels among people about establishingof the battalion. The
communists,together with theAmy, do not succeed to form the battalion.
In the meantime, 1informed the Amy that such work is not good. The threads between people and
the Amy are tom off.
1decide to be included in this problem.
Zgo withLazo and Stepanovit to Dubrave[village near Tuzla],tothe 4th motorisedfrom
Jastrebarsko [placein Croatiawherethe unithad been basedpreviously]whichis authorisedfor
us.
Zopenlysay to the majorLalit that the Amy must understandthat the communistscan not lead
thepeople and to manipulate withthem.Ifelt that they also understood.
Weare makingagreements toform companiesand that Cedowill be aCO-ordinator.
Cedo promises that he together with me will organise the lists in two days.
Cedo makes treason and he teases us6days and he did nothing. Somebodyrecruits him.
LaliEsen& a wordto me to comeat hisplace.
Zmake agreement withLaliEthatZwill makealonethat lists.Regarding this listsZhave help:
Vesnaand the crisisHQ-s whichI haveformed. I immediatelycal1mypeople andweform 6
companies.
In twodays.Zhave theproposal.Lalii.accepts.
Theagreement was that each companywouldbe trainedfor 6 days.
Zsucceeded to reduce that totwodays.
Upto day, the companiesJeg Lug. Dubnica,Osmaci,Caparde,up to day theydid ajob.
Lalit is morethansatisfed. At al1meetingplaces therewerefrom 80 to 120.
Osmaci were especially good although 1was sceptical about.
Before each training, 1went around the villages and made the agreements with people.
Zmade agreement with Lalii. thatplatoon in eachcompanybe also armed immediatelyafter
training.Lalii.confîrmeda11this.
1have problems in the village of Jelina, between KovaceviéaDraskié . ordjo imposes Dusko to
be a commander of a platoon, but others do not accept." [Petar JankoviC,Diary, 24
January 1992,emphasis added, Annex 1051.ReplyofBosnia andHenegovina
The above shows that theJNA not only anned the local Serbs.They also assistedin
the formationof new voluntary units and in the training of the Serb volunteers.A
motorised NA unit in Dubrave (a villagenear Tuzla)was officially "authorised"to
assist andtrainJankoviC'svolunteers.The samemotorisedunit, whichhad been
based in Croatiauntil the end of 1991,later participatedin the atrociousattack on
Zvomik [see UnitedNations, FinalReport of the United NationsCommissionof
Experts,S/1994/674/Add.2(Vol. 1),28 Dec. 1994,Annex IV, "The Policyof Ethnic
Cleansing",p. 39, para. 2171.
52. The military exercises inthe Kalesijaarea were not only recorded by PetarJankovit.
They werealso mentionedby the Commissionof Experts,in their Annex on the
policy ofethnic cleansing:
bout 2-3 monthspnorto the attack [on Zvokthebeginningof April 19921,military
trainingexerciseslastingupto 2 weekswere conin OsmacinearKalesija[tom nearTuzla]
andothervillages.TheAorganizedtheseexercisesandonlySerbswere invitedunderthe
pretextthat theTOhadto be train[UnitedNations,FinalReport of the United
Nations Commissionof Experts,S/1994/674/Add.2(Vol. 1),28 Dec. 1994,
Annex IV, "The Policy of Ethnic Cleansing",p. 45, para. 264, emphasis
added] .
Both the period and the area mentioned bythe Commission ofExperts coincidewith
the informationgiven by Petar JankoviCin his diary. In the quote aboveKalesijais
mentionedas the centre of the training activitiesganisedby the JNA. Petar
JankoviCwas president of the SDS in that town and in the village of Osmaci,where
accordingto the Commission ofExperts exercises were held,JankoviCformed one of
his sixcompanies.
GeneralMilutinKukanjac'sreport to Belgrade
53. The results of the JNA effortswere impressive.In March 1992, GeneralMilutin
Kukanjac,Commanderof the 2nd MilitaryDistrict,wrote a report to inform the
General Staffin Belgrade about thedevelopmentsin Bosnia and Herzegovina. As the
other military documents referredto above,this report was later recovered by
Bosnian forces in Sarajevo.The accompanyingletter reads as follows:
"HQOF THE 2ND MILITARYDISTRICT
Strictlyconfidentialno. 908-1 MILITARY SECRET
20.03.1992 STRiCTLY
copy no.2 Chapter 8 -Section2
YugoslaviaSpreparationsfor the anned conflict
GS OS SFRJ [General Staff of the Armed Forces of the
Socialist Federal Republic of Yugoslavia]
persona1atm. NGS [Chief of General Staff]
Enclosed herewith please find the requested assessment(with enclosures) of the present situation
and problems in theemtory of SR BiH [Socialist Republic of Bosnia and Herzegovina].
You are lcindlyrequested to send us back these documents after their use. For fullyjustifiable
reasons, we would like to propose totrict access to these documenasfew people as
possible.
Commander
Lieutenant General
Milutin Kukanjac"
[2nd Military District,accompanyingletter addressedto JNAGeneral Staff,
signed General Milutin Kukanjac, 20 March 1992,Annex 1191.
54. The enclosedreport numbers twelve pages. In the first pages of the report Kukanjac
presented himself and the JNAas a more or less neutral force inthe approaching
genocide. This was also the official stanceuntil the the first genocidal acts were
committed in the spring of 1992. This neutralitywas, of course,just a facade
intended to confuse the outside world and facilitatethe execution ofRAM.Halfway
through the report the tone of the report indeed changes,fully revealing the true
intentionsof Kukanjac and the NA. The most important extractswill be quoted
below :
Il CONCLUSIONS
BASED ON THE ASSESSMENT OF THE SITUATION INTHE TERRITORY OF BOSNIA
AND HERZEGOVMA WITHIN THE ZONE OF RESPONSIBILITY OF THE 2ND MILITARY
DISîRiCT
() General Remarks
(a)Attachcd hereto are the following maps:
-swey of voluntary JNA units in the 2nMD [Military District] zone and broader;
-swcy of material stocks and ordnance that need to be relocated (2nd MD zone);
-plan regarding deployment of forces for securing of military objects in the Sarajevo
gamm.
A lirnitednumber of people are engaged inthese assignm-they are very capable and
(b)
reliable meniom 2nd MD Comrnandand Corps commands.
(c) The ituation is changing on aly base (for the better); this asswitheattachment
depicts the situationas it was on 19.03.1992.Reply of Bosniaand Henegovina
(5) Voluntary units in the 2nd Military District (MD)
The map and the legend attached hereto shows in detail voluntary units in the zone of
responsibility of thend MD. In this regard, the following is to be emphasised:
(a) the above mentioned units are organisedin companies, detachmentsand battalions;
@) numberof volunteersis 69.198;
(c) none of the volunteersisplannedfor manningof military unitsof 2nd MD,and, only a
smallerpart of them, comesfiom TerritorialDefence (TO) of Bosniaand Henegovina.
Accordingly, voluntary unitsare out offormation compositionofJNA and TO.
(d) Number of troops according to the zones of individual Corps:
- 9th Corps = 2.200
- 10thCorps = 2.300
- 5th Corps = 16.750
- 17th Corps = 8.240
- 4th Corps = 33.200
(e) Number of troops in voluntary units in the area of 4th Military District in the municipalities
of:Kalinovik, Foca, Cajnice, and Gorazde is 6.500 (they were forrned earlier by the 4th
Corps).
JNA distributed51.900pcs. of weapons (75%), while SDS distributed17.298pcs.
(g) Asfor Sarajevo, sofur 300 automaticrifIeshave been distributedto the retiredofficers
(reliableones), and in 3-4days an additionalhundred ofpeople will be armed; theywill
defend-protectapartmentblocks,buildings,entrancesand especially,families of active
militaryofficerswhile they are ut workor whenthey leavewiththeir unitsto set camps,to
fUlfiltheir combat assignments,etc.
Some expenences insofar:
- a majonty of the amed Serbs do not want to leave their own tenitory (their thresholds),
they prefer to defend their respective villages, parts of towns and military facilities in their
immediate neighbourhood; this particularly refers tothe Serbs in the areas where a majonty
of population is Muslim;
- some SDS leaders -ut al1levels,throughdzflerentchannel, requestJNA andMNO
[Ministïyof People's Defence]of Serbiatogive themanns, insuch a way, they wantto
prevail over others,which bringsabout divisionsand discontent amongthepeople;
- someSDS leaders areadvocatingdisassociatingfiom theJNA and creatinganotherarmy,
whichcan adverselyaffectJNA,particularlyin respectto manningof its units[sic];
- there are some incidents when certain activists,someregional working bodies of different
assemblies of Serb Automous Regions (SAO) are setting some kind of condintions -
ultimatums to the Amy, advocating the placement of some parts of the Anny under some
kind of their local commands, etc. (this particularly refers to the region of Ozren).
Due to al1the above mentioned,some concretemeasuresaretaken,but theseproblems willbe soon
discussedwiththe SDS leadersin Sarajevo,because,in casesomeof thesevoluntary units break
awayfiom control,the outcomemightbe serious. Chapter8 -Section2
Yugoslavia'preparationsfor the anned conflict
Having in mind that SDS officials are in contact with the authorities and other structures in Serbia,
it would beery helpful if, at the level of SSNO [Federal Secretariat for People's Defence], the
attention of the leadership of Serbia would beto such phenomena and its more concrete
influence recommendedasto remove such deviating attitude in these areas.
For the time being, it would be necessary to stop formation and arming of voluntary units, until
everything is back in order again in the already existingones and until some information and
solutionshave been reached.ter that, it can be decided whether to continue formation ofthese
units or not.
(..." [Conclusionsbased on the assessrnentof the situation in the temtory of
Bosnia andHerzegovina with the zoneof responsibiliîyof the 2nd Military
District, signedLieutenant-GeneralMilutin Kukanjac, March 1992,emphasis
added, Annex 1201.
This important report confirms the picture painted in this section. Inclose
cooperationwith Kara&iE7sSDS Party, the JNA distributedlarge quantities of
weapons.The report was produced on 20 March 1992, thatis severalweeks before
the fighting actually brokeout in Bosnia and Herzegovina.At that time the JNA and
SDS had already handed out almost 70,000 weaponsto an equal number ofSerb
volunteers.
55. The number of weapons distributedby the JNA is certainly significant,but the
nurnber does not include al1the arms divided amongthe Serbs in Bosnia and
Herzegovina.It is importantto note that the JNA only got senously involvedin the
distribution in the beginning of 1992.Before that, the the distributionof arms was
organised and directedby the Federaland SerbianMinistries of Interior in Belgrade.
The weapons handedout under their responsibilitywere not included in General
Milutin Kukanjac'sreport to his superiorsin Belgrade. The actual nurnber of arms
handed out byBelgrademust havebeen considerablymorethan the almost 70,000
mentionedin the report.
56. The newly formed volunteer unitswere not formally incorporatedinto the JNA or
the Territorial Defenceforces. They remained "out of formation compositionof JNA
and TO". In spite of this, these voluntaryunits were subjectto the orders of the
JNA. In Sarajevo, for exarnple,volunteers wouldbe deployedto protect the
apartrnentsand families of JNA officers carrying out combattasks in other parts of
the country. This hierarchicalrelationshipbetween the armyand the newly formed
units is confhmed by the fact that Kukanjacwamed his superiorsin Belgrade that
some voluntary units rnight "break away from control", which untilthen had
obviouslynot occurred yet.Reply oBosniaandHenegovina
57. Kukanjac'sreport alsocodms the frequentcontactsSDS leadersmaintainedwith
the authoritiesin Belgrade.These contactscanied on, accordingto Kukanjac
"throughdifferent channels"and "atal1levels".The aim of these contactswas to
procure even moreweapons. Kukanjacclearly entertainedsome suspicionof these
contacts,on whichhe could exercise little control.His doubts aboutthese regular
contactswere howevernot based on the fact thatSerbs werebeing givenweapons,
his units were also distributingweapons, buton the fact that this could create
"divisionsand discontentamongthe people",that is the Serbpeople of Bosnia and
Herzegovina.
58. Al1the above shows that thequoted allegationsmadeby the Federal Republic of
Yugoslaviain the Counter-Memorial, that RAMdid not exist and that Belgrade was
never involved in the distributionof weaponsto Bosnian Serbs,is false.RAMdid in
fact exist and weaponswere indeed distributedby the authoritiesn Belgradein
order to facilitate the future creationof a Greater Serbia.RAMwas the necessary
first step. Withoanning the Serbs outsidethe Republicsof Serbiaand Montenegro
the establishmentofsuch a Serb statewould not be feasable atdl. RAMwas, in
short, a necessaryprecondition forthefulfillmentor realisationof the Greater
Serbiandrearn.Withoutit the genocidein Bosnia and Herzegovinawould not have
happened.
3. Yugoslav military involvement in Bosniaand Henegovina before 19 May1992
Introduction
59.
In the Memorial the Applicant listedurnerousgenocidd atrocitiescornrnittedon the
territoryof Bosnia andHerzegovinaby the YugoslavArmy [seeMemorial, Chapter
2.2, pp. 17-59].In this Sectionof the Replythe Applicantwill fully concentrate on
these genocidalacts perpetratedbefore 19May 1992,the date the YugoslavPeople's
Army (mA) formallywithdrewfiom Bosnia and Herzegovina.On 19May 1992, the
JNA cead to exist officiallyas it was split into two new mies: the Bosnian Serb
Army(VRS) and the new YugoslavArmy (VJ). The cosmetictransformationof the
JNAwill be discussedin the separateSectionof this Chapter [Reply, Chapter8,
Section41, as will the continued involvementof the YugoslavArmy after 19May
1992 [Reply, Chapter8, Section 51.
60. Before its forma1withdrawalon 19May 1992,the JNAwas openly involvedin the
atrocitiescommitted against the non-Serbsof Bosnia and Herzegovina.The cardinal Chapter 8 -Section 3
YugoslavmilitaryinvolvementinBosnia and Herzegovinabefore 19May 1992
role played by the YugoslavArmy during the first months of the genocidalconflict
was acknowledgedby both the ICTFY and international organisations,such as the
UnitedNations and the European Community.
61. In its Reviewof indictment in the case against DraganNikolik,the commanderof the
SuSicacamp in Vlasenica,the First Chamber at the ICTFY devoted some
considerationsto the JNA and its contributionto the policy of ethnic cleansing.The
Charnberfirst concluded that"seriousdiscriminatoryacts" were committedin the
Vlasenicaregion. Then it went onto state that,
"(...) these senous discriminatory acts do not seem to have been limited to the Vlasenicaregion.
Camps like the one in Susica were set up in a large part of the temtory under Serb control in
Bosnia. This policy of ethnic cleansingred other parts of Bosnia from the spring of 1992 on.
According to the expert witness [Mr. James Gow],
'The conductof the spring 1992 attacks, includingthe manner in which the JNAand
piuamilitary groups deployed and treated the non-Serb population, wassimilar throughout
Bosnia.'
The statement of this witness showsthe wide-spread nature of the criminal acts as well as the fact
that they were organised atthe highest level. According tothe witness,
'The speed and highlevel of CO-ordinationthat these attacks required make clear that they
were certainlyO-ordinatedand planned.'
The witness finishedby saying:
'In conjunction witSerbianpoliticaleadersand Serbian irregulaunits, the JNA
conceived,planned,prepared and implemented an armed campaign inBosnia that involved
a systemati cse ofterror testablistheborders of a new~u~oslavia."'[ICTFT Yr,ial
Chamber,Review of the IndictmentPursuant to Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. Dragan Nikolik,CaseNo. IT-94-
2-R61, 20 Oct. 1995,pp. 15-16, para. 28, ernphasisadded].
The role played by the JNA was therefore not limited to the preparatoryphases of
the genocidal campaign.It also "implemented"this policy.
62. On 16 April 1992,the European Communityand its Member Statespublished a
statement on the developmentsin Bosnia and Herzegovina.In this joint statement the
Member States stronglycondemned"the violencethat is now spreadingin Bosnia-
Hercegovinaat the hands of various armed elementswith the supportof regular
forces, andin particular of the JNA" [Bulletinof the European Community,No. 4-
1992,p. 84, para. 1.5.14.,Annex 1211.RepIyofBosnia andHenegovina
63. The UnitedNations SecurityCouncilalsoreached theconclusionthat the JNAwas
heavily involved in the genocidebeing comrnittedin Bosnia and Herzegovina.On 15
May 1992, it adoptedResolution 752,in which it demandedthat "al1forms of
interference from outsideBosnia and Herzegovina, includingby units of the
YugoslavPeople's Amy (...)cease imrnediately"[United Nations,SecurityCounciI
Resolution 752 (1992), S/RES/752,15 May 19921.Twoweeks later, on 30 May
1992,the Security Councilnoted that the "attempts to change the ethnic composition
of the population"had not beenheeded andit condemnedthe "FederalRepublicof
Yugoslavia(Serbia and Montenegro), includingthe YugoslavPeople's Army" for its
failure "totake effectivemeasures tofulfil the requirements ofresolution752"
[UnitedNations, Seeuris, CouncilResolution 757(1992), S/RES/757,30 May 19921.
64. On 11 May 1992, the European Communityagain condemnedthe role played by the
JNAand the authorities inBelgrade:
"byfar thegreatestshareof theblamefallsonJNA andtheauthoritiinBelgrade whichare
in controlof they,bothdirectlyandindirectlyby supporting Serregulars.Thekillings
andexpulsionof populationsin Bijeljina,Zvornik,FoEaandothertownsandvillages,thesiegeand
systematicshellingof Sarajevo,theholdingof Sarajevoairportpreventingeventhesafe passageof
humanitariareliefromtheICRC areactionsdeservinguniversalcondemnati[Bulletinof
theEuropean Communities, No.5-1992,p. 104,para. 1.3.5.,Annex 1221.
Counter-Memorial
65. In its Counter-Mernorial,theFederal Republicof Yugoslavia addressedthe role
played by the JNAin the first months of the conflictin its Chapteron "Thepolicy
of the Federal Republicof Yugoslavia towardsthe Republicof Srpska and Bosnia
and Herzegovina"[Counter-Memorial,pp. 245-274,paras. 3.1.1.1.-3.1.6.15 .].Here,
the Federal Republicof Yugoslavia at least acknowledged the on-going presenceof
itsrnilitaryuntil 19 May 1992.Later on, the Applicantwill demonstratethat this
presence also continuedafter that date [Reply,Chapter8, Section 51.
66. In its Counter-Mernorial, the Respondenf tirst explainedthat the Belgradeauthorities
indeedtried to pull out the JNAbefore 19May 1992.Accordingto the Federal
Republicof Yugoslavia, the retreatof the JNA was, however, hindered,if not
prevented,by "military actionof Muslimand Croatforces".To prove this assertion
the Respondentquoted a United NationsSecretaryGeneralreport:
"3.1.2.6The Reportof theSecretaryGeneralpursuantto para.4 of SecurityCouncilResolution
752 (1992), reads interalia: Chapter8 -Section3
YugoslavmilitaryinvolvementinBosniaandHerzegovinabefore19May 1992
'On 17May, [Ilreceived a letter from Admira1Milosav SimiC,Chief of General Staff of
JNA, requesting assistancein the safe withdrawal of JNA troops from Bosnia and
Herzegovina, and particularly from Sarajevo, Pazari[c] and Zenica. The linter referred,
a& to an agreement signed on 10May 1992at the premises UN Protection Force in
Yugoslavia (UNPROFOR) at Sarajevo by representatives of the Presidency of Bosnia and
Herzegovina, JNA, The European CommunityMonitoring Mission and theonal Envoy
of Lord Carrington, Mr. Colm DoyOn.21 May Vice-President KostiCagain wrote to ask
me to request President IzetbegoviCto order the deblockingof the JNA gamsons at
Sarajevo.'Sl24049,para. 3, Annex 129[Counter-Memoial, p. 248, para.
3.1.2.6.1.
In the next paragraph, the Respondentdrew the following conclusion:
"3.1.2.7.If the Vice-President of the Yugoslav Presidency and the Chief of General Staff of the
JNA addressed to the Secretary-General of theuesting assistancein the safe withdrawal of
the JNA troops from Bosnia and Herzegovina, and particularly from Sarajevo,nd
Zenica, it could not be evidence of aggressiveintention of Yugoslaviatowards Bosnia and
Herzegovina.On the contrary it proves firm determinationof Yugoslaviato withdraw its military
forces and that it was being hindered from doing so by military action of Muslim and Croat forces
under the control of the Govemmen~arajevo."[Counter- pMp. 2o8-24,9, para.
3.1.2.7.1.
The Respondent's assertionthat it was pullingout its troops from the territoryof
Bosnia and Herzegovina is false. The FederalRepublic of Yugoslavia, on the
contrary,had continuedto move in additionaltroops until May 1992. The Applicant
will discussthis later in this Section.Here, however,it wishes to emphasise that the
foregoing quote clearly illustratestwo significantpremises. Firstly, JNA troops were
deployedon Bosnian temtory at least until 19 May 1992. Secondly,these troops fell
under the cornmandof the "Yugoslav Presidency andthe Chief of the General Staff
of the JNA". Al1JNA units in Bosnia and Herzegovinawere therefore subject tothe
orders of the authorities in Belgrade.
67. The JNA, which thus fell under the commandof the Yugoslavauthorities in
Belgrade,was actively and openly involvedin the genocidalconflict. During this
conflict,which fully erupted in April 1992, widespread genocidalacts were
committedon the temtory of Bosnia and Herzegovina[Reply,Chapter 51.In the
rernainingpages of this section,the Applicantwill addressthe question of whether
the JNA was responsible for these atrocities.The Applicantwill demonstratethat this
was indeed the case.
MetamorphosisReply of Bosnia andHenegovina
68. After the demise of socialism,the role of the JNA in the former Yugoslavia changed
dramatically. In the years preceding theoutbreak of the hostilitiesin Bosnia and
Herzegovina,the JNA underwenta true metamorphosis.This metamorphosiswas
also describedby the Trial Chamberat the ICTFY in its Opinionand Judgement in
the TadiCcase:
"104. The JNA has been described as taking part in attacks on Croatia and on Bosnia and
Herzegovina. (...) some explanationis called for as tohow the JNA, as the national anny of
Yugoslavia, and whathad been a truly multi-ethnic national anny, could become the instrument of
the policy of the Federal Republic of Yugoslavia (Serbiaand Montenegro).is perhaps best
expressed, if not explained,by General Veljkodijevié,in the early 1990sthe Yugoslav Federal
Secretary for Defence, who in 1993 published his own description of the disintegration of
Yugoslavia in his booky view of the break-up: an Army withoua State. (...) Of NAe he
&tes that by 1991it was no longer an anny with a cohesive state to defend; the state which it was
itsduty to defend was disintegratingand just as its ranks were now substantiallyfilled with ethnic
Serbs, soits taskin the immediatefuture would be to regroup itsforces and equipment,scattered
throughout theformer Yugoslavia includingeceding Republics,back into what was lefi of the
nationand then to concentrateupon theprotection and defenceof those ethnic Serbswho in the
course of this disintegrationfound themselvesside Serbia and Montenegro. Thisi,t was
envisaged, would lead ultimatelyto the creation of a new,substantially Serb, Yugoslaviawith its
core in Serbia and Montenegrobut includingalso parts of Bosnia and Herzegovinaand Croatia,
principally but notexclusivelythoseparts presently havinga majoriq SerbpopuIation.w[ICTFY,
Tnal Charnber,Opinionand Judgement,Prosecutor v. Tadii, CaseNo. IT-94-
l-T, 7 May 1997,pp. 37-38,para. 104, emphasis added].
At the tirne the confiict in Bosnia and Herzegovina erupted,in the springof 1992,
the JNA had thus changed its war airnsdrastically.By 1992, the JNA's only goal
had become the realisationof the Greater Serbian dream, uniting the Serb nation
within a common state.
69. In order to realise this Greater Serbian ideal the JNA was gradually"Serbianised in
the early 1990s.This process was also recordedby the Tnal Chamberin the TadiC
case:
"A particular point had long been made, enshrined in Yugoslavia'sConstitution,of ensunng that
the JNA, at conscript level, should accurately reflect the overall Yugoslav population mix.
However, at officer level, Serbs (including Montenegrans) haditionally been over represented;
some 60 percent of career officers were ethnic Serbs whereas Serbs formed only 34 to 36 percent
of the total Yugoslav population. In the early 1990sthis predominance of Serbers swifily
increased so that very soon very few non-Serb officers rernained JNA.he
The change that overtook thJNA in the early 1990sis best illustrated by the change in the ethnic
mix of conscripts between pre-June 1991 and early 1992.During that time, the Serb component
rose fiom just ove35 to some 90 percent. Similarly, whereas in an army in which Serbs had
formerly made up some 40 percent of the total of officers and ranks,by early 1992 that
percentage had nsen to some 90 percent.hese increases were in large measure attributable to the
departure fiom the federatiof both Slovenia and Croatiaand, in the case of Bosnia and Chapter 8 -Section3
Yugoslavmilitav involvementin Bosnia and Herzegovina before 19 May 1992
Herzegovina, to the substantialfailure of non-Serbs to perform their compulsory military service or
respond to mobilization calls. However, otherfactors were also in operation. Several witnesses,
non-Serbs,have told of being discriminated againstand being encouragedor indeed obliged to
leave the JNAduring 1991; they were no longer regarded as reliable membersof an army that was
ceasing to be Yugoslavand was becomingan instrumentof Serb nationalistpolicy. By 1992many
seniorofficers of the JNA, rejecting this transfomation of the force in which they had long served,
lefi the service or were retired. From this and other causes, including transfer to other armed
forces, the number offficers of the rank of General in the JNA fell fiom 150 in mid-1991 to only
28 after March 1992."[ibidem,pp. 39-40, paras. 108-109,emphasis added].
Ironically,many non-Serbs in Bosnia and Herzegovina continuedto give credence
(albeit often againsttheir betterjudgement) toBelgrade's often repeated claim that
the JNA shouldbe seen as an "impartial"force that was only trying to prevent
bloodshed and"restore peace and security" [Counter-Mernorial,p. 247, para. 3.1.2.3.
and p. 258, para. 3.1.4.21.PresidentAlija IzetbegoviCwasno exception tothis rule.
Warren Zimmermann,the last United States ambassadorto the former Yugoslavia,
described IzetbegoviC'sattitude in March 1992towards the JNA in his book on the
break-up of the country, Originsof a Catastrophe:
"With al1his suspicions, IzetbegoviEstill seemed willing to rely on the Yugoslav army. He said the
regular army, though not the reservists whom he saw as undisciplined,would be welcome to stay
in Bosnia as long as it recognized civilian authority.He and 1both knew that the JNA was unlikely
to accept his civilian authority since it didn't accept Bosnia'sindependence.Still, 1detected no
inkling on his part of the massiveression that the JNA, together with MiloSeviEand KaraZiC,
was mounting against him."[Warren Zimmermann,Originsof a Catastrophe:
Yugoslaviaand its Destroyers - America'slast Ambassadortells what
happened andwhy, New York, 1996,p. 191, Annex 1231.
Therelocationof theJVA
70. The changein the compositionof the JNA thus coincidedwith the change in its role.
In practice, this meant that the JNAwould retreat its troops within the borders of the
future Greater Serbia.This strategy first became apparent in Slovenia and Croatia,as
illustratedby the followingquote fkomthe Reviewof theIndictmentin the ICTFY
case against Kar&iC and MladiC:
"Within this new context, the first operations of the Yugoslav People's Amy (JNA) were canied
out in Slovenia and then in Croatia, particularly at Vukovar. ThisTrial Chamber has reviewed
several events related to the capture of that city by the JNA (De3April 1996, IT-95-13-
R61).According to [JNA] General KadijeviC:[Federal Defence Minister]:
'the principle ideas behind the basic concept for deployingthe MA in the Yugoslav region
were: total defeat of the Croatian amy, if the situation so allowed (...), full CO-ordination
with Serb insurgents in the Serbianjina; completion of the pull out from Slovenia of
remaining JNA forces;full awarenessthat the role of the Serb nationin Bosnia andReply of Bosnia and Henegovina
Henegovina would be instrumentalto thefuture of the Serb nation ut large. The location of
the(...) JlVAforces was to be adjusted accordingly.'
Close contacts between the JNA and the SDS party were brought out during the TadiEtrial (IT-94-
1-T)by several high ranking military officers who were serving in that army at the time. In respect
of CO-ordinationin the military preparations, these contacts might permit clarifymg the officia1
requests of the parallel institutions created by the SDS in Bosnia and Herzegovina. On 11
December 1991, for example the 'Assemblyof the Serbian People in Bosnia and Herzegovina'
asked the JNA to use whatever means it had available to protect the temtones of Bosnia and
Herzegovina considwed Serbian as part of the State of Yugoslavia.
The JNA also seemed to bepreparing for amore direct military interventionin Bosnia and
Herzegovina. Afler the war in Croatia,JNA troops and equipment were massively redeployed in
Bosnia and Henegovina. According to GeneralKad[zj'jeviC,
'assessingthefurther developmentof events, wefelt that leaving Croatiawe should have
strongforces in Bosnia andHenegovina."[ICTFY,Trial Chamber,Opinion and
Judgement,Review of Indictmentpursuantto Rule 61, RadovanKaradfit
& Ratko Mladii, CasesNo. IT-95-5-R61 & No. IT-95-18-R61, 11July
1996, pp. 26-28, paras. 53-55, emphasis added].
In late 1991and early 1992, the Belgradeauthoritiesthus orchestrated a massive
redeploymentof the JNA in Bosnia and Herzegovina.
This redeployrnent,which in effect meant that theJNA presence in Bosnia and
Herzegovina was increased to giganticproportions, wasalso recordedby the
Commissionof Experts. In their Annex on the policyof ethnic cleansing:
"As the war in Croatia continued, the JNAbegan military movementsin BiH. Thefederal army
relocated itsoopsfiom the cities to the countrysideand deployed unitsut major communications
points. Znate 1991and early 1992as the war in Croatiacame to a close, the JNA redeployed
troopsfiom Croatia in BiH. T37th Corps, for instance,was transfened to the 4th military
district in SarajThe.Corps' headquarters was establisinMostar, the capital of Herzegovina.
JNA's General Staff appointedonly Serbs and Montenegransto fil1the higher posts in the
redeployedunits.lt[UniteNations,Final Report ofthe UnitedNations Commission
of Experts, Sl19941674lAdd.2 (Vol.I), 28 Dec. 1994,Annex IV, "The Policy
of Ethnic Cleansing",p. 27, para. 143, emphasis added].
As a result, Bosnia and Herzegovina was floodedby JNA troops. In the Tadi6case,
the ICTFY came to the following resume:
"By early 1992,there were some 100,000MA troops in Bosnia and Herzegoviwithover 700
tanks,1,000 armoured personnel carriers,much heavy weaponry, 100planes and 500 helicopters,
al1under the command of the General Staff ofthe INA Belgra[ICTFY,Trial Charnber, Chapte8 -Section3
Yugoslavmilitary involvementin Bosnia andHerzegovina before 19 May 1992
Opinion and Judgment,Prosecutorv. Dusko Tadik,Case No. IT-94-1-T, 7 May
1997,p. 45, para. 1241.
72. This relocationof JNA troops coincided withthe reorganisationof the Military
Districts. This reorganisationof the JNA was describedin the Applicant'sMemorial
[Memorial,Part 2, Chapter2.3, pp. 65-66, para. 2.3.3.2.1and will be further
discussedin this Reply [Reply,Chapter 8,Section 41.The purpose of this
reorganisation was to secure Belgrade'sgrip on Bosnia andHerzegovina.
73. The new JNA forcespouring into Bosnia and Herzegovinawere not deployed
randomly al1over the country. As foundby the Commissionof Experts, in the
foregoing citation,the JNA "relocatedits troops fi-omthe cities to the countryside
and deployed units at major communications points"[UnitedNations, Final Report
of the UnitedNations Commission of Experts,Sl19941674lAdd.2 (Vol.I), 28 Dec.
1994,Annex IV, "The Policy of Ethnic Cleansing", p.27, para. 1431.The main aim
of the JNAwas, after all, the protection of the Serb people in Bosnia and
Herzegovinaand "the location of the JNA forces was tobe adjusted accordingly" [
ICTFY, Trial Chamber,Review of Indictrnentpursuant to Rule 61,Prosecutor v.
RadovanKaradZik & RatkoMladik,Cases No.IT-95-5-R61 & No. IT-95-18-R61, 11
July 1996,p. 27, para. 53, emphasisadded]. In practice, this meant that theNA
withdrew its forces and, evenmore importantly,its ordnance fiom areas with a large
Bosnian Croat or Muslimmajority.New garrisonswere establishedin towns and
villages with large Serb populationsand inthose areas which were important in
order to link the various regions with Serbmajority populations.For example,the
Prijedorregion had a Muslim majority before the war,but was located inside the
"corridor"linking Serbia proper with the Serb-occupiedCroatianKrajina [see United
Nations,Final Reportof the UnitedNations Commission of Experts,
Sl19941674lAdd.2 (Vol.I), 28 Dec. 1994,Annex V, "The Prijedor Report", pp. 13-
13-13,para. 431.
BosnianSerb requestsfor placementofJNAgarrisonsReply ofBosnia andHenegovina
The aim of this relocation of JNAtroops within Bosniaand Herzegovinawas
obviousto al1parties concemed. The Serbs fiom Bosniaand Herzegovinaknew that
this operation was carried out in the interest of the Serbpeople and as a consequence
they acted accordingly. On 22 January 1992, the so-called "Associationof the Serbs
fiom Bosnia and Herzegovinain Serbia" (an organisation, situatedin Belgrade
representingthe interests of Bosnian Serbs) sent an officialrequest tothe Chief of
Staff in Belgrade, Major-GeneralBlagoje AdZiC.In May 1992, the requestwas found
by Bosnian govemment forces on the prernisesof the former seat of the Serbian
DemocraticParty in Sarajevo:
ASSOCIATION OFTHE SERBS
FROM BOSNIA AND HERZEGOVINA
IN SERBIA
11000 BELGRADE
Terazije319
FEDERAL SECRETARLQTFOR
PEOPLE'S DEFENCEpugoslav Ministryof Defence]
- am. Chief ofGeneralStaff-
(major-general BlagojeAdZiC)
11O00Belgrade
Reference: Placement of militas, unitin the tem-toryof municipalityofKupres[central Bosnia],
B-Hfor the prevention ofthegenocideover theSerbs
Municipalityof Kupres lies at the farthermostsouthof BosanskaKrajina [regionin the northwest
of Bosnia and Henegovina] anitis surroundedby themunicipaiitiespopulated bycatholicand
muslim population:Bugojno,Duvnoand Livno.
In the 2nd Worldar neighbouringmuslim and catholic populationatternptedto commit genocide
over the Serbs,but, fortunately they succeededonlypartly.By such attemptthe number of Serb Chapter8 -Section3
YugoslavmilitaryinvolvementinBosnia andHerzegovinabefore 19May 1992
population was reduced, and after-war colonization in Vojvodina [northYugoslavia] contributed to
their reduced number as well.
By the beginning of thisntury 70% of population ofKupres were Serbs, while today there are
only 51% of them. The overall populationis some 11.000.
High percentage of the presence of catholic and muslims inthe very municipality,circlement
by such cornrnunitiesas well as close vicinity of catholic West Herzegovina, speaks in favour of
the necessity to protect the Serb population in the municipality of Kupres.
By the protection of Kupres, there for the periphery villages in the municipalitiesLivno, Duvno
and Bugojno, populated by the Serbs would be provided for, because this population suffered a lot
during the second world war.
Strategic position of Kuvres Plateau
The lowest peak on this plateau is 1.200m above the sea level. The communicationwhich links
Split with central Bosniaes through it. According to the plans of NDH [Independent State of
Croatia], this communicationis of vital importance for future Croatianstate. By taking control over
this part by paramilitary troops of Croatiaand Herzegovina,they would gain control over dominant
peak, overlooking the neighbounng Serb temtories in BosanskaKrajina.
Reception of troops bv the local population
Shorter stay of a military unit in this area in 1991showedthat the villagers of the Serb villages
receivedOurtroops with delight. In addition,they provided them the best food and drink at their
homes.
Relationship with the local authorities
At the last elections, Serb Democratic Party [SDS] won inKupres, it has the most influence in
local authorities, and from that point of view theld completely legally set up a garrison in
this temtory, before all,ause Kupres voted in favour ofits linking to the Serb Krajina.
The intentions of HDZ [Croatian DemocraticUnion] in Kupres are to exclude from the Serb
Krajina villages with a catholic population, so we think that soon presence of thed
disturb such plans and defer ever more present aggressivenessof paramilitary units from
neighbouring catholic municipalitiesfrom West Herzegovina.
President ofthe Association
Gojko Djogo
[signature andseal]
Atm. fiadovan KaradZiC"
[Associationof the SerbsfromBosniaandHerzegovina,letterto Chiefof
Staff, Major-General BlagojA edZ;iC s,ignedPresident Gojko Djogo,22 January
1992,emphasisadded,Annex 1241
Therequestedplacementof a newJNAunit in theKupresareawasthusjustifiedon
two grounds.Firstly,theJNAtroopshadto be deployedto defendthe Serb
population,which in theview of the authorof the request was threatened with
genocide,just like theone that had allegedlytakenplaceduringthesecondWorldReplyof BosniaandHerzegovina
War. Secondly,the "KupresPlateau"was supposedly ofprimary strategic
importance.
75. A similarrequestwas sent by the "Serb Assemblyof the Municipalityof FoEa",on
17March 1992.The followingdocumentwas also in the former SDSheadquartersin
Sarajevo:
"From: SERB ASSEMBLY OF THE MUNICIPALITY OF FOCA
To: GENERAL STAFF OF THE JNA
- persona1attn. of major-general Blagoje A&i6
Belgrade
Reference: Request for placement of a ganison in FoEa
Considering the evolution of the situatB-H and municipality of FoEa,the Serb Assembly
discussedthe possibility of placement of a gamson in FoEa.g on the general feeling of
exclusively Serb population whoke 50% of the overall population of the municipal area, as well
[as]on the fact that a JNA ganison been located in FoEauntil 1976,we think in advance that
this request is justified. town itself, there are some facilities which are property of the JNA
and which, according tour estimate, could serve for placement of a unit400 men. It is
alsopossible tu take over the mostcontempora>yequippedbuildingconstructedforthe needsof
women Sjail withal1its adjuncts,wheresome500-600mencouldbeplaced. me buildingissome
2 kmawayfrom the town and itislocatedinthe area exclusivelypopulatedby theSerbs.
Pursuant to our request, we have made someprevious agreemandssubmittednecessary
documentation to the BileCeCorps HQ, so you can rnake al1necessary consultations in this regard
with theabove mentioned Corps HQ.
We are ready toprovide men necessary for manning of units, who are presently being trained in
the Ganison in Kalinovik.
Please, be so kind to consider this request at your earliest convenience and, if possible, inform us
[abIout the result. Chapter8- Section 3
Yugoslavmilitav involvementin Bosnia andHenegovina before 19 May 1992
JosifMiliCiC:he SerbAssembly
[signedandsealed]"
[Serb Assembly of the Municipalityof FoCa,letter to the General Staff of the
JNA, signed Josif MiliCiC,17 March 1992, emphasis added,Annex 1251.
In this letter, the "Serb Assembly" in FoCaoffered to house the new JNA troops in
the existing detention facility forwomen, located in an area "exclusivelypopulated
by the Serbs". Interestingly,ths same detention facility also figured in the
Commissionof Experts' Annex on prison camps. When the fighting erupted, the
VeleCevoWomen's Prisonwas used by Serb forcesas a camp for Muslim women
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2 (Vol. IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",p. 135,
paras. 1098-11021.The Commission ofExperts also revealed thatthe offer of the
"Serb Assemblyof the Municipalityof FoCa"was accepted,as it reportedthat "the
mobilized Serbs of FoCaset up their headquarters in or next to the VeleCevo
Women'sPrison" [ibidem,p. 135, para. 11021.
General Milutin Kukanjac'sreport to Belgrade
76. In March 1992, GeneralMilutin Kukanjac,JNACommanderof the 2ndMilitary
District in Sarajevo,wrote a report to inform the GeneralStaff in Belgrade about,
arnongother things, the redeployrnent ofthe JNA troops in Bosniaand Herzegovina.
The report, which numbered twelve pages, was discussedat length in the previous
Sectionon the distributionof arms to BosnianSerbs paramilitaries[see Reply,
Chapter 8, Section 21.Apart fiom this, the report also illustratesthat the JNA was
withdrawingits troops and particularly its ordnance and materiel from regions with
large Muslim or Croatpopulations. Thevarious maps mentionedin the report were,
unfortunately,not found by the forces of Bosnia and Herzegovina.In the extract
underneath, some cities, towns, villages or simply "rnilitaryobjects"will be
underlined, others will be put in bold type. The underlinedplaces were located on
territory under control of the governmentof Bosnia and Herzegovina,afier the
fighting had calrneddown in the summerof 1992.The places in bold al1fell in Serb
hands during the first weeks of the armed conflict. The Kukanjacreport showsthis
was no coincidence:
CONCLUSIONSReplyofBosniaandHenegovina
BASED ON THE ASSESSMENT OF THE SITUATION IN THE TERRITORY OF BOSNiA
AND HERZEGOVINA WITHIN THE ZONE OF RESPONSIBILITY OF THE 2ND MILITARY
DISTRICT
(1) Generalemarks
(a) Attached hereto are the following maps:
-survey of voluntary JNA units in the 2nd MD [Military District] zone and broader;
-survey of material stocks and ordnance that need to be relocated (2nd MD zone);
-plan regarding deployment of forces for securing of military objects in the Sarajevo gamson.
@) A limited number of people are engagedin these assignm-they are very capable and
reliable men fiom 2nd MD Comrnandand Corps commands.
(c) Situation is changing on a daily base (for thebetter); this assessmentwith attachmentdepict the
situation as it was on 19.03.1992.
(3) Situation on theund and JNA
c) Generally speaking,the leadership of the SDS and Serb people weicome the Amy, they protect
it where it is objectively possible, they respond to their drafting in military and voluntary units,
theydisplay the maximum CO-operationwith the commandposts, they have quite responsible
attitude towards RMS [war ordnance], etc.; this is fûlly understandable,because, objectively
speaking, the Serbs are jeopardised here and, by analogy, we safeguard the interests of the people;
(6)Storehouses of war ordnance on stock: present situation and problems of their dislocation
In the storehouses of the MDd [Military District] the followingquantities of weapons,
ammunition and fuel of JNA, annament and 2 combat sets of ammunitionfor units TOHQ-H
[Territorial Defence Headquarters of Bosniaand Herzegovina] are stocked:
-for JNA: 30.000 pcs. of light infantry marnent and 40.000 t of ammunition and MES [mines
and explosives] and about 25.000 t of fuel;
-forTO [Territorial Defence]: 78.400 guns and 1.500t of ammunition.
Some 6.000 pcs. of infantry armament fiom TO have been distributedfor arrning of the people.
The map shows the storehousestating the kinds and quantities of reserve stocks, we shall defend,
and the ones which have been partly dislocated orwill have to be dislocated. According to the
assessment and evaluation of the MDd the most helpful willbe to do the following:
-to transfer ammunition storehouse 'Donji Lapac' with 2.350 t of ammunition to the region of
Bosanski Petrovac [northwest Bosnia],where a new storehouse is to be forrned;
-to transfer the storehouse GolubiEnear Knin (Croatia) to the region of Bosansko Grahovo [west
Bosnia], where also a new storehouseis to be set; Chapter 8 - Section 3
Yugoslavmilitaryinvolvementin Bosnia and Herzegovina before 19 May 1992
- material reserves (9.930 guns and 200 tons of ammunition) from TO storehouse 'RabiE'near
Derventa [north Bosnia], to be transferred to Banja Luka, although the map also shows the region
of village Ukrinski Lug, because a part of the ordnance will be stored there as well, but only on
temporary basis; action (secret) regarding the transfer of ordnance is under way;
- 5.270 guns and 140tons of ammunitionfiom the storehousein Doboj [north Bosnia and
Herzegovina], to be transferred to region of village Tumare -Tumarsko Brdo (10 km from
Zavidoviki) [central Bosnia and Herzegovina];
- a part from the storehouse Sevarlije to be transferred to Lomica (Serbia);
- 10.368 guns and 137ts of ammunition from warehouse KrepgiCnear BrEko [north Bosnia] to be
transferred to the area Lopare-Ugljevik [east Bosnia];
- from the storehouse 'Kozlovac' [northeast Bosnia and Herzegovina], 20.000guns and 268
ts of ammunition belonging to TO to be transferred to a new storehousein the region of Lopare
[northeast Bosnia and Herzegovina];
- with the relocation of the 4th combinedantitank-artilleryregiment of 'R' [resewe troops]
classification from Visoko [central Bosnia and Herzegovina] to the village of Mokro [east Bosnia
and Herzegovina] (task recently completed) al1the ammunition forthis unit was transferred; soon
ammunition from the 4th combined artillery regiment is to follow;
- Reserve ordnance of motonsed battalion from the 46th protective regiment of SSNO [Federal
Secretariat of People's Defence or Yugoslav Defence Ministry] will soonbe transferred from
Visoko to storehouse Koran [near Pale];
- 633 light artillery unit of Air Defence has been placed under the command of the 346 light
artillery regiment of Air Defence (4th Corps), and their ordnance stocks are stored in this unit
storehouse; we think thatal1the activitiesrelated to the placement under new commands of the 2
of the above mentioned units of the 2nd MDand transfer of their ordnance to other locations will
be completed in 3-4 days;
- a part of stocks of quartmaster service equipment for the storehouseButile near Sarajevo will be
transferred to theregion of village Han Kran on Romanija Mount (HanPijesak) [east Bosnia];
- 5.980 guns with 2 combat sets belonging to TO from the storehouseTO Koniic [central Bosnia]
is to be transferred to the area of Koran village Mokro (municipality of Pale);
- By the relocation of the above mentioned stocks we provide their secunty and their use by the
JNA.
Problems:
- for the time being, chances for relocation of stocks from Koniic are small, because local guards
and observers from the Muslim-Croatparamilitaries observe al1the developments fiom a close
distance andinfom their chiefs about any movement they notice there;
-regardless of the fact that the authorities on the grounds where to we relocate the stocks offer us
the maximum of co-operation andtry to meet OUT demands, we are forced to invest a part of the
funds into repair of the facilities (bars, roof-tiles, etc.), anfor these purposes have not been
provided for.Replyof Bosniaand Herzegovina
SPECIAL REMARK:in the storehouse 'FaletiCi'and storehouse 'HadZiCi'(USivak,Igman and
Krupanjska Rijeka) enorrnous quantities of ordnance of TO and JNAare stocked; we plan to
evacuate these stocks in the coming period, but weshall have to make detailed evaluationon the
basis of which the decision is to be brought.
(7) Gamsons and perspective regarding the maintenance of the existing ones in some part of
Bosnia and Hercegovina
Startingfiom the present situation in BiH [Bosnia and Herzegovina] and perspectives of further
development, we have to consider the following:
-from &y to day, Croats are rounding up their ethnic area, we have several gamsons in that area,
as well as military industry as maintenance institutes,
-one of the key goals in forcibly taking conîrol over everythingthat is military in these areas
(Capljina [Herzegovina,close to the Croatian border], Mostar, Travnik [central Bosnia],Bugojno
[central Bosnia], Konjic, etc.),
- Muslims are having the same intentions,
-this is very unfavourable in regard to JNA.
Having in mind the option that, very soon, BiH will be recognised as a state, and that the Serb
people do not want to stay to live in such 'ghetto' state,we can expect a lot of problems with
respect toJNA.
From the above assessment and enclosuresthereto it can be concluded: what has been done so far
in the protection of JNAin this temtory, which of the activities are undenvay, and some proposals
what to do in the coming period.
Since hard times are coming for us and in order to avoid the destiny we have already experienced,
we think that we have to do the following:
(a) to address sûicter waming to the legal authorities of B-H atal1levels, as well as al1the citizens
by applying different methods, not totake any actions whatsoever towards the members of JNA
which could bring about reaction, and even conflict; we succeeded in this afier the well known
incident in Sarajevo by the beginning of March this year.
We inforrned Mr. Jose Cutillero about this [a] few days ago, during the meeting with the 2ndMD;
we particularly drew his attention to serious consequencesin case the EEC supports negative
attitude towardsJNA.
(c) To complete tasksrelated to the relocation of al1the ordnance fiom the following garrisons:
Visoko, Kiseliak, Travnik [al1cities in central Bosnia-and leave only well equipped and movable
units inthis ganisons ready for struggle and intervention injeopardised object.
(d) To start serious evaluation of the state of military industry in these areas and bring adequate
decisions in terms of their transfer to other locations;this, before al], refers to military industry in
Nrovil Travnik, Bu~oinq, Vitez [central Bosnia and Herzegovina], Mostar, Koniic and afier that
military indusûy in the region of Sarajevo.
(e) Urgent decision has to be brought in respect to relocation of MaintenanceInstitute Travnik to
another location in Serbia, because it is the only institute of a kind (maintenance of communication
means) in Yugoslavia. Chapter 8 -Section 3
Yugoslavmilitary involvementin Bosnia and Henegovina before 19 May 1992
(f) Bnng decision on substantial activating of gamson Han Pijesak and Koran in terrns of
construction of prefabricated objects for placement of men and equipment.
(g) This HQ will continue to make more complexevaluations in respect of the above mentioned
and possible other problems and forward its proposals to SSNO [Federal Defence Ministry] for
final decisions; naturally, al1that falls into competence 2fMD HQ, SSNO will not be burdened
with.
(8) Defence of military objects, particularly in Sarajevo
Al1integral parts of 2nd MD got their precise assignmentsregarding the protection and defence of
military facilities and Amy members. Attached hereto is a map - plan - of the decision for the
engagement of forces in Sarajevo and its surrounding at a certain moment.The essence of the plan
is in the following: to avoid anykind of blockade with adverse effects. The units are ready to
assume their indicated positions on a short notice and operate according to the development of the
situation. Our opponents in Sarajevo are aware that we have taken some measures and they are
scared, which is good. This is a real prevention.
Command of the 4th Corps with a group of its commandingofficers unifies al1the units in the
Sarajevo Garrison and its surroundings.Commanding officer camed out detailed surveillance of the
premises as well as possible directions and ways of operation. Communicationshave been checked
several times.
240 self-propelled regiment of Air Defence is deployed inthe broader area of Sokolac [east Bosnia
and Herzegovina]. Itspassing through Sarajevo was very effective. Regiment reached new locations
without any problems, because al1the measures were taken timely.
A part of 346 light artillery regiment of Air defence reached its military positions in thegions of
airport BUTMIR and the village of Brus. The barracks of the Central MilitaxyAcademy [Marial
Tito Barracks] and the building of the Military District HQ are in the least favourable positions.
But, the maximum security measures are foreseen in respect of these objects.
(9) Miscellaneous
(a) Action for selling of the barracksJaic situated inthe old part of Sarajevo with a Muslim
majority] and the old Militarv Homital was taken. Some people showed their interest for the
purchase, but they do not have money to pay al1the arnountat once; some other games might be in
question; we are looking for buyers in other directions and we will probably succeed;
(b) Hospital on Sokolac is soon to be completed;the executors of this project are Military Hospital
Sarajevo and Municipality of Sokolac;
(c) Reconstruction of the abandoned petrol station and reservoir south of Han Pijesak for supply
and storage of Ourfuel reserves is soon to be completed; this petrol station used to be military
property once, but it has been abandoned for long;
(d) It would be good to bring a prompt decision on military schools; that would enable the selling
of agreat part of military objects at the earliest convenience;we have to have in mind the blockade
imposed on selling at a certain moment;
(e) Activities in considering the possibility for placement of ordnance in object 'G';
into a
(f) 336th Motorized brigade (former 4th armouredbrigade) to be transferred from
ganison in Bijeljina [northeast Bosnia, closeto the Serbian border].Reply ofBosnia andHenegovina
COMMANDER
Lieutenant-general
MilutinKukanjac"
[Conclusions basedon the assessmentof the situation in the territory of Bosnia
and Herzegovinawith the zone of responsibilityof the 2nd Military District,
signed Lieutenant-GeneralMilutin Kukanjac, March 1992, emphasisadded as
described in thebeginning of this paragraph, Annex 1201.
Lieutenant-GeneralMilutin Kukanjacwrote this report in March 1992, approximately
one month before the conflict in Bosnia and Herzegovina erupted.The relocation of
troops andmateriel as described abovedetennined the outcome of the fighting.Al1
cities, towns and villages mentionedabove as the new destinationof JNAtroops and
ordnance were later taken by the JNA and ethnicallycleansed oftheir non-Serb
populations.
77. The above quoted report clearly illustratesthat the Belgrade authoritieshadno
intention atl1of withdrawingthe JNAfiom Bosnia and Herzegovina. On the
contrary, the JNAwas moving large quantitiesof materiel,whether fiom JNAor Chapter8- Section3
YugoslavmilitaryinvolvementinBosniaandHerzegovinabefore19May 1992
Temtorial Defence warehouses,to new storehouses,purposelybuilt to house the
redeployed equipment and units. At the same time, the JNA was sellingits property -
the Jajcebarracks and the militaryhospital - in Sarajevo areas with large Muslim
populations.In BosanskiPetrovac, Bosansko Grahovo, Lopare, Han Pijesak, Koran
and Sokolac, new facilities werebuilt by the JNA, ata time when Lieutenant-
General Milutin Kukanjac already predicted that"very soon, BiH will be recognised
as a state". The Yugoslav authoritieswere certainlynot planning a retreat, nor had
they any intention of allowing the peaceful secessionof Bosnia and Herzegovina,
since "the Serb people donot want to stay to live in such a 'ghetto'state".
78. In paragraph 7 (a) of the cited report, General Kukanjacalso referred to a "well
known incident" that should have taken place in Sarajevo in the beginning of March
1992.Kukanjac probablymeant the incident thattook place at a Serb wedding
ceremony,when one of the guestswas shotdead by criminals.In reactionto his
shooting,which the Respondent describedas the outbreak of the conflictin Sarajevo
[see e.g. Counter-Memorial,pp. 179-180, para.2.13.2.10.1,anned Serbs started
erectingbarricades in the city. Serb leaders in fact used the shootingincident during
the wedding as a justification forthese barricades [see Laura Silber and Allan Little,
TheDeath of Yugoslavia,Revised edition, London 1996,pp. 205-206, Annex 211.
Becauseof this, the situation in the cityremainedtense for several days. After
strenuousnegotiationsbetween PresidentAlija IzetbegoviC,SDS leader Radovan
KaradZiCand General Kukanjac,who agreed to set up joint patrols, the crisis was
averted. The events of that weekendin early March were in fact a dressrehearsal for
things to come [ibidem, p. 206,Annex 211.As is also illustratedby Kukanjac's
report, the conflictin Sarajevo did not start with the attack on the wedding. The
fightingerupted one month later, on 4 April 1992,when Serb snipers started
shootingat a large group of peace demonstrators [see below].
NewJACA unitsfiom Yugoslaviaproper
79. In the prelude to the conflict, Belgradenot only relocated troopsithin Bosnia and
Herzegovina,it also moved in fiesh troops fiom Serbia and Montenegro.
80. On 11 January 1992, for example,JNA Chief of Staff BlagojeAdziCpersonally
directeda battalion with heavy artillery fiom Ohrid, in Macedonia,to Banja Luka in
north Bosnia and Herzegovina.There it was attachedto the 5th Corps,which later
become partof the new Bosnian Serb Army [Federal Secretariatfor NationalReplyofBosnia and Herzegovina
Defense, letter to the Commandof the 1stMilitary District,signed General Blagoje
Adzié,12 January 1992,Annex 1261.
81. These fiesh JNA units fiom acrossthe borderwith Serbiaand Montenegrowere not
redeployed in Bosniaand Herzegovinato avert an invasionof, for example,Croatian
forces. They were directedto those areaswithin the future Greater Serbia,whichthe
Belgrade authoritieswished to cleansefiom their non-Serbpopulation.
This is best illustratedby the exampleof the 2nd annoured battalionof the 453rd
motorisedbrigade. This army unit was based in the Kuniin region, in the north of
Serbiaproper. In the beginningof April 1992, they weresent to Bijeljina, at the time
the east Bosnian city was being ethnicallycleansed bya combinationof other JNA
forces and Serbian paramilitaries.On 4 April 1992,the Chiefof Staff of the 1st
Military District, basedn Belgradeand coveringa large part of Serbia, sentthe
followingurgent message to the Commandof the 2nd MilitaryDistrict in Sarajevo.
On 3 May 1992,the documentwas capturedby Bosnianforces in Sarajevoon the
abandoned premises of the cornrnandof the 2nd MilitaryDistrict:
"From:1st Military DistQic
Ref. 1614-503
04.04.1992 URGENT
to be deliveredimrnediately
to:2ndMilitaryDistrictHQ Chapter 8- Section 3
Yugoslavmilitary involvementin Bosnia and Herzegovina before 19May 1992
Based on the act of the General Staff of the Armed Forces ref. strictly confidential 629-1 of
04.04.1992, organize the reception of the 2ndoured battalionl453rdmotorized brigade in the
BijeljinaGanison and place it under the Command ofthe 17thCorps [which was responsible for
the whole northeast Bosnia].
Battalion will start at 14,OOhours from the region of Kuzmin.
Upon its amval at the Bijeljina Gamson infonn tHQ of the 1stMilitary District about it.
Chief of Staff
Lieutenant-General
Nikola Mandari8
[seal which confirms the reception of the above telegram by the addressee:]
Received: day and month 04.04. hours 17,20
no. of telegram: 2620, group: 200,
Processed:day and month: 04.04. hours 17,30
Delivered: 04.04. (signature)"
[lst Military District, telegram to the 2nd Military District, signed Lieutenant-
GeneralNikola Mandarit, 4 April 1992,Annex 1271.
The transfer to Bijeljina of the mentionedJNA units was therefore orderedby the
JNA General Staff in Belgrade.
83. The next day, on 5 April 1992, the Commandof the 2nd Military Districtin
Sarajevo informed the "operationalcentre" of the JNA headquartersin Belgradethat
the units hadarrived in the Bijeljina region. As the previous message,the following
document was found at the JNA headquartersin Sarajevo:
"Command of the 2nd Military District
OPERATIONAL ON-DUTY TEAM
strictly confid. no. 10136-1987
05.04.1992
To: GeneralHQ of the SFRY Armed Forces - operational centre
Armored battalionfiom the 1stMilitary District has anived in Bijeljina region and it is located in
the expectedregion at village Janja [10 kilometres south of Bijeljina], ready to cany out combat
tasksBattalion is under the 17thCorps Command.
The Chief oftheHQ
Lieutenant General
Dobrasin Prascevic"Replyof Bosnia andHerzegovina
[Commandof the 2nd MilitaryDistrict, letter to GeneralHQ of the SFRY
ArmedForces, signedDobrasinPrascevic, 5 April 1992,emphasisadded,
Annex 1281.
The mentionedbattalion and brigade were redeployedin the village of Janja "to
carry out combattasks".At the time the armouredbattalion and the motorised
brigade anived, ethniccleansingin the region was in full swing.The role playedby
the JNAin April and May 1992 in the genocidalcampaignin the Bijeljinaregion
and the other areas under Serb controlwill be discussed below.
Theeruptionof the conflict
84. The confiict in Bosniaand Herzegovinaerupted in the last days of March 1992in
Bosanski Brod,a city in the northof Bosnia, close tothe Croatianborder. The
fightingwhich then spread over otherparts of Bosnia andHerzegovinawasalso
found by the Trial Chamberat the ICTFYin itsjudgment in the Tadiécase:
"Oneimmediateconsequencewhich occurredbefore the announced withdrawalof the JNA on19
May 1992 was the Serb assumptionof exclusiveadministrative powerin Serb-dominatedareas.
Moreover, betweenMarchandMay 1992, there wereseveralattacksandtake-oversby thJNA of
areasthatconstitutedmainen@ points intoBosniaor were situatedon majorlogisticsor
communicationslinessuchas thoseinBosanskiBrod,Derventa[both citiesin northBosnia,close
to the Croatianborder],Bijeljina, Kupres[centralBosnia],FoCaand[ZJvornik,Vis'e[al1
cities ineast Bosnia],BosanskiSumac[north Bosnia,closeto the Croatianborder], VZasencia
[east Bosnia],BrCb [north Bosnia,closeto theborderwithCroatia]andPrijedor[northwest
Bosnia].The first attack wasin Bosanski Brod27 March 1992.At the sametime, there were
clashesat Derventa.n 2 April1992 there was an incidentat Bijeljinaand aroundthis time alsoin
Kupres.These were imrnediatelyprior to the recognition of Bosniaand Hmegovina's
independenceon 7 April1992 by the EuropeanCommunity,with a retroactive date6fMarch
1992.In BosanskiSamac,the 4th Detachment of theJNA entered the town,cut off telephonesand
fired shotsin the town. There was some non-Serbresistanceklysquelchedby the arriva1of
JNAtanksand armoured cars.On 22 April1992 conflictbegan inVlasenica witha policevehicle
drivingthrough the streets announcing througha loudspeakerthat al1armamentswere tobe
surrendered.Al1vital functionsof the town were taken over by JNAforces,includingthe town
hall, bank, post, police and courthousthere were present veryrnanyuniformedmen aswell
as somelocal Serbswith am. On 29April 1992there was a bloodlesstake-over of the town of
Prijedor, as noted elsewhere,and onApril1992 two bridges wereblownup by Serb forcesin
BrEko.On 19May 1992 the withdrawalof JNAforces fiom Bosnia andHerzegovinawas
announcedbut the attackswere continued bythe VRS [Amy of the RepublikaSrpska].
Zngeneral,themilitary take-oversinvolvedshelling,snipingandthe roundingup of non-Serbsin
thearea. Zhesetacticsoftenresultedinciviliandeathsandthejiight of non-Serbs.Remainingnon-
Serbs were then forced tomeet in assemblyareas in townsfor expulsionfiom the area. Large
numbersof non-Serbswere imprisoned,beaten and forcedto sing Cetniksongsand their valuables
seized.This was accompanied bywidespreaddestructionof personal and real prope[United
Nations,ICTFY, Trial Chamber,Opinionand Judgment,Prosecutor v. Dusko Chapter 8 - Section3
Yugoslavmilitary involvementin Bosnia and Herzegovina before19 May 1992
Tadik,CaseNo. IT-94-1-T, 7 May 1997, p. 46, paras.125-126,emphasis
added] .
Whenthe confiict eruptedthe JNA thus startedto "implement"the policy of ethnic
cleansing. Their first task wasthe militarytake-overof those tenitories within the
projected GreaterSerbia.
85. The cardinal role of the JNAin the initialphase of the conflictwas also recordedby
the United Nations Commission of Experts in theirAnnex onthe military structure,
strategyand tactics of the variouswaning factionsin the conflict:
"Military operations in BiH and Croatia by the JNA, BSA [BosnianSerb Amy], and SKA [Srpska
Krajina Amy] have essentiallybeen a function of the political-military goal of securing temtories
that link Serbia proper with Serb-inhabiteds in BiH (along the Drina and Sava rivers) and
Serb-inhabitedareas in Croatia. The Serb goal was to achieve a territorial and defensible link
between areas constituting a 'Greater Serbia'. Thus, there has never been a unified or coherent
battle line, but multiple theatres of operation between whichforces shifted, depending on the status
of each theatre. Strategic positions were related to each one ofheatres, but since these
theatres were part of a political-geographical arclinking Serbia with Serb-inhabited areas in BiH
and Croatia, the theatres of military confrontationwere readily identifiable. As the conflict
progressed, the Serbide sought to solidie and enlarge its territorial gains in the areas of the
projected 'Greater Serbia', while and Croatian forces soughtto dislodge them. These theatres
saw a constant ebb and flow of military activities.
Because these areas were of mixed ethnic and religious population and Serbs were usually a
minority, particularly in, Serbs felt that they had to dislodge the other groups. In 1992,
Bosnian Serb forces were insufficient in number and disorganized. However, they were tasked by
their political leaders with massive population removal in arelatively short period of time without
the open and direct participation of the JNA.NA,however, militarilysupported the Bosnian
Serbforces in many ways, includingbombardment andshelling. Theywere also directly involved in
several operations. Thiswas in executionof thepolicy of 'ethniccleansing'which is described in
Anna IV and more specifically in Annex V. Theoverridingpolitical goal of depopulatingthese
areas of non-Serbs determinedthe nature of themilitary activities. Theseareas were not military
targetsbut civilian areas with strategic importancederivedfiom thefact that they linked Serbia
wirhSerbs in BiH and Croatia.Personnel,arms and supplies crossed the Drina River fiom Serbia
to Serbs inBiH and through Bosnian Serb areas to certain parts of the Krajinas, which are
smounded by Croats. Military operations in these areas must therefor be seen in this light in order
tobe undmtood." [UnitedNations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol.I), 28 Dec. 1994, AnnexIII,
"The Militax-y Structure,Strategyand Tactics of the WarringFactions", pp.4-5,
paras. 9- 10, emphasisadded].
86. Due to the earlier described"Serbianisation"of its forces, the JNA experienceda
seriousshortageof manpowerwhen the fightingin Bosnia and Herzegovinawas
aboutto erupt. In consequence,the JNA to a great extentrelied on "irregularforces"
when executingthe first phase of the Serbpolicy of ethnic cleansing,that is theReply of Bosnia andHerzegovina
military take-over of the "Serb temtories". During the first months of the hostilities
these troops consistedof Bosnian Serbvolunteers and Serb members of the local
Tenitonal Defence forces. As describedearlier in this Chapter,these Serb soldiers
had been anned and trained by the Ministry of Interior in Belgrade and by the JNA
[see Reply, Chapter 8, Section 21.The Bosnian Serb irregulars were often
supplementedwith paramilitaryunits fi-omSerbia and Montenegro,the most
notoriousbeing Arkan's Tigers and the paramilitariesunder the cornmandof
Vojislav Se~elj.The activitiesof these paramilitary force willbe discussed at length
in a separate section of the Chapter [Reply, Chapter8, Section71.The ICTFY,
which also considered thisphenomenonin the TadiCcase, found that al1"irregulars"
or paramilitaries "operatedin conjunctionwith the JNA andwere used as infantry
shock troops to make up for decliningnumbers in the regular anny" [ICTFY,Trial
Chamber,Opinion and Judgrnent,Prosecutorv. DuskoTadié,Case No. IT-94-1-T,7
May 1997, p. 40, para. 1101.The irregular Serbtroops werethus deployed at the
forefiont,while being directed and supportedby the regular JNA.If volunteers were
deployed,the JNA would backup their military operations withheavy artillery and
air strikes.Whenever sufficient "irregulars" werelacking,the JNA either deployedits
own infantry troops or simply limitedits operationsto bombing andshelling of
civilian targets. Sarajevois the most poignant exampleof the latter category.
87. In the following, the Applicant willillustrate the cardinalrole played bythe JNA
during the first phase of the anned conflict, when al1JNA activitieswere airnedat
consolidatingtheir military hegemony.The Applicantwill highlight only a few
examples,cities and tom which were also referred to by the ICTFY in the extract of
the TadiCcase cited above: BosanskiBrod, Bijeljina,Zvornik, Vigegrad,Bosanski
Sarnacand Sarajevo.
BosanskiBrod
88. BosanskiBrod was the first town to be attack by the JNAon 27 March 1992.
BosanskiBrod is a city strategicallylocated on the river Sava, on the border with
Croatia. The outbreak of the confiictwas reported the next day by Belgradebased
journalists Dessa Trevisan and Tim Judah in TheTimes.Their article markedthe
beginning of the genocidalcampaignin Bosnia and Herzegovina:
"Mortarandartilleryshellsraineddownyesterdayonthe noBosnian townof BosanskiBrod,on
theborderwithCroatia,as Serbsannouncedtheconstitutof theirownrepublicin Bosnia-
Herzegovina. Yugoslaviats circledabove,buta spokesmanatthetown'sMuslim-Crotrisis
centredenieda Croatianpolicereportthattheyhadrocketeda factory. Chapter 8 -Section 3
Yugoslavmilitary involvementin Bosnia and Herzegovina before 19 May 1992
In a ceremony in Sarajevo, local Serb leaders said they were 'laying the foundations of a fourth
Serbian state in Yugoslavia [Republika Srpska; the others are: Serbia, Montenegro, Srpska
RepublikaKrajina]'. The declaration came as Muslims and Croats on the Bosnian presidency sent a
messageto the United Nations appealing for militaryservers to help bnng calm to the republic
and accused Serbs of terronsm.
Yesterday Bosnia sent three leaders to check reports that civilians had been killed in the continuing
fighting inosanski Brod. Three people were injured by an explosion in a cafe in Mostar and
Serbs accused Croats and Muslims of killingn civiiians.
Armed clashes and shooting incidents threaten totroy hopes that a Bosnian civil war could be
avoided or thaUN peace-keeping troops couldbe deployed in Croatia[DessaTrevisan and
Tim Judah, "Serbs split Bosnian republic",The Times,28 March 1992,Annex
1291.
89. The fighting in Bosanski Brod carried on for severalweeks without the JNAbeing
able to crush al1resistance, despite the extensiveuse of their far superior firepower.
The Belgrade authorities did,for example,not hesitate to put their air forces into
action. The following document was sent by MajorGeneralMilan Nedeljkovicto the
JNAheadquarters in Belgrade and the comrnandof the 2nd Military District in
Sarajevo, where it was capture on 3 May 1992:
"URGENT
Cornmand of the 17thCorps
Stric. Conf. no. 11/2-89
Date: 26.04.1992
[in handwriting]
5346 'P'
Very urgent
Decision for carrying out the combat activitiesReplyof Bosnia andHerzegovina
To:Commandof the GeneralHQ of theSFRYArmedForces
Command of the 2nd Military District
1.I havedecided to makepreparations, regrouping, ecessaïysubordinationin the unitson the
territoïy ofBosanskaPosavina(operation group-1, tacticalgro17,359 motoruedbrigade)and
thenincooperationwithSerbian unitsof the TerritorialDefenceandPolice, andwith supportof
theAir Forces, startwithcanying outof the offensive,defensiveand otherdzfferentcombat
operations.he goals: in offensive actions of the operational-1,on the chosen directions,
conquer the enemy forces, get to the river Sava [river marking the border with Croatia], south-west
ffom Bosanski Brod as soon as possible, take over Bosanski Brod,pull down the bridge on the
riverSava in Bosanski Brod, keep under control the bridges / crossings over the river Sava and
communications in the Zone of the 1st Operationup.
Commander
Major General
Milan Nedeljkovic"
[Commandof the 17thCorps,Decision for carrying out the combatactivities,
signed Major General Milan Nedeljkovic,26 April 1992,emphasisadded,
Annex 1301.
This "Decisionfor carrying out the combat activities"in the Bosanski Brodarea was
given one month after the beginning of the armed conflict in Bosnia and
Herzegovina.It shows that MajorGeneralMilan Nedeljkovichad given the order to
cany out "offensive"and "defensive"combat activities in cooperation with
unspecifiedpolice forces and "irregular"units of the Bosnian Serb Temtorial
Defence. MajorGeneralNedeljkovic reported directlyto the General Staffin
Belgrade, whichin its tum illustrates that JNA cornmanderson the field in Bosnia
and Herzegovina continuedto be accountableto their superiorsin Yugoslavia.
Bijeljina
90. Soon fier theattack on Bosanski Brod,Bijeljina fellprey to Arkan's "Tigers",
which carried out the attackof the city. Bijeljina is strategicallylocated in the
northeast of Bosnia, close to theborder with Serbia.The fa11of the city was, among
others, reportcdby the Commissionof Experts:
"345. Arkan was reportedly in the town of Bijeljina for about one month prepkng his batîle plans
before the April 1992 attack. The attack began when a grenade was thrown into a Muslim-owned
cafe.
346. In thefirst weekofApril1992, approximately1,000soldiersfiom Arhn'sunitscrossedthe
DrinaRiverfrom SerbiaandenteredthetownofBgeljina. The soldierswore black uniformand
stocking caps and had unidentified smarms,at least one anti-airgun,tlight armoured and
regular transport vehicles. Theye supported byanunknown, large number of local Serbs drawn
from the area's Serbian population of approximately45,000.Otrepor tndicate that in April Chapter 8- Section 3
Yugoslav military involvementin Bosnia and Henegovina before 19May 1992
1992Arkan bombarded Bijeljina with mortars suppliedby the Yugoslav Amy. Another report
confinned that the units which attacked Bijeljina in April 1992belonged to Arkan and referred to
his men as the best trained and equipped Serbianforce.
347. Muslim defence units in Bijeljina fought back. Thebattles engulfed the town for three days
and nights. Arkan captured the radiiostation andreportedly broadcast calls for Muslims to surrender
their weapons.
348. On 2 April 1992,Belgrade Radio Belgrade Networkreported that most of Bijeljina had
been 'liberated' that aftemoon bymembers of the Serbian National Guard ofSemberija and
Majevica [regions surrounding Bijeljina], in cooperation withSerbian volunteers, Arkan's men, and
the Serbian 'radicals'. A curfew had been imposed, and hold-outswere encouragedto surrender
ams. Shooting could still be heard, accordingto the report, because 'the last Muslim strongholds
[were] being mopped up'.
349. According to a Zagreb Radio Croatia Network report, on the night of 2 April 1992, a
delegation of theBiH hesidency and Govemment managed to approach Bijeljina but was unable to
enter the town. Presidency member Fikret AbdiC,Deputy Prime Minister Miodrag SimoviC,and
Defence Minister Jerko Doko met near Bijeljina with Arkanbut retumed afierward to Sarajevo.
Reportedly, the SDS crisis committee for Bijeljina said that the guard of the 'Serbian Autonomous
Region of Semberia' was controlling Bijeljina with the help of Arkan's units.
350. A number of reports stated that Arkan's troopsarmed residents and property after
capturing the town. According to one report, Arkan's men roamed Bijeljina after it, shooting
young men suspected of carrying arms. Yugoslavarmy troops at the local barracks did not
intervene.Theylater issued a statement that theyhad received no ordersfiom Belgrade to do so.
One report says that citizens of Bijeljina phoned Sarajevoradio to Saythat Arkan's people were
terrorizing theom, breaking into apartments, searchingfor arms and robbing and harassing
citizens. In another report, residents of Bijeljinahat in the first week of April 1992 Serbian
paramilitary troops belonging to Arkan and JoviCharassed the town's population.
351. It was reported that sporadic gunfire continuedon 4 Apnl 1992."
[United Nations,Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2 (Vol.I), 28 Dec. 1994,Annex III.A, "Special Forces",p.
136, paras. 344-351, emphasisadded].
The JNA troops based in Bijeljina "at the local barracks"did not intervenewhile
Arkan's paramilitarieswere roarningthe city, becausethey "received noorders from
Belgrade todo sou.At the same tirne,however,the Belgradeauthoritiessent in fi-esh
JNA units fi-omSerbia proper. On 5 April 1992,the newly arrived2nd armoured
battalion joinedthe BijeljinaGarrisonand were put under the Commandof the 17th
Corps,which controlledthe northeasternpart of Bosniaand Herzegovina.The anival
of these JNA units was describedabove in this Section.Reply of BosniaandHenegovina
91. On 7 April 1992,two days after the arriva1of the mentionedunits fiom Serbia, the
2nd Military District infomed the JNAheadquartersin Belgrade about the
deploymentof its units on the battlefieldsof Bosnia and Herzegovina.The following
report, produced by Colonel Milutin ZekanoviC,was found at the abondonedJNA
headquarters in Sarajevoon 3 May 1992.It painted the "combatactivities"of the
JNAin northeast Bosnia, first in the region of Bosanski Brod andthen in the
Bijeljina area:
"From:Cornmandof the 2nd Military District
Strictlyconfidential091997-20
07.04.1992
To: War Commandof 2ndMD
- GeneralStaffof the ArmedForcesof theSFRY -OperationalCentre
2. Combat operation zone Bosanski Brod
2.1 Enemy deployrnentof the 108thZNG [CroatianAmy]
- in the region of Bos. Brodforces in the strengthof two battalions ofZNG at the
confrontationline schoolBos.Brod-Grda-Meceljchannel,pe.e. 87, crook Ca~jiva,v.
Kolibe Gomje (north of church) and G. Maja (p.e. 90)
- in the region of v. HrastovaCap.e. 90 (north of channel),v. Ukvinari,v. Cardak(north for
1km), v. Lug, force of about one battalion
- in the region of v. BijeloPolje, v. Bos. DuboCacforce in the strengthof about one
battalion
- artilleryin the region of v. PotoCani
2.2 Deploymentof Ourforces
- TO [TerritorialDefence] detachment Bos.Brod. easternpart of Bos. Brodregion of Greda
- TO unit 'LijegEe'in the region of v. LijeSEe Chapter8 - Section3
Yugoslavmilitary involvementin Bosniaand Henegovina before 19May 1992
- 11327mtbr. [motorised brigade]with 1st company of TO in the region of v. Kolibe
Gomje
- tactic. companyl327mtbr. in the region of v. Nareci
- 2nd armoured batt.1336mtbr in the region of v. ZboriSte,v. Bos. LuZani
- battTO Pmjavor and company TO 'Trstenica'in the region of v. KalaEka,Pavlovo Brdo,
- P00d-1 (1-1117anti-tank artillery regiment in region of v. Bjalai
- bVBRl17 map [combined artilleryregiment] in region of v. Polje (p.e. 199)
- bthad-337 mtbr. in region of v. Solci&
- 4.327 mtbr. inregion of v. GlogovaEa
- cornrnand of 327th mtbr. in Derventa
- 2.497 eng.regiment in v. Bbetanja Mala, v. Polje
- cornrnandpost of the 1st operative groupll7th Corps in v. Podnolje @.e. 179)
[Comrnandof the 2nd Military District, telegrarnto GeneralStaff of the Armed
Forces of the SFRY, signed ColonelZekanoviéMilutin, 7 April 1992,
emphasis added, Annex 13 11.
The reporting officer here listed "our forces". These forces included Serb Territorial
Defence (TO) units fiom Bosanski Brod, nearbyLijesce and Prnjavor, a citywith a
large Serb majority. These forces, which are often referred to as "paramilitaries",
were mobilised and arrned bythe JNA. This report illustratesthat they also fell
under the authority of the JNA. ColonelMilutin ZekanoviCcontinuedhs report as
follows:
3. Zone of combat activities inBijeljina
3.1. Enemy Forces
-there are some 400 membersof the SDA [Partyof DemocraficAction] (mostof them now
disarmed)
-there are some 200 members of theSDA in the villageof Janja
3.2. Our Forces
- Commandof the 38thpartisan(infantry)division,17thcombined artillery regiment,
multiple-rocketlauncherbattery/l7 combined artillery regiment, howitzbattery/l7th
combined artillery regiment deployed in Bijeljina
- 2nd armouredbattalion/453motorized brigade deployed in the villagof Janja [southof
Bijeljina]
-1/17partisan brigade deployed inregionof Bos. RaEa,Galistok, v. Brodare
-2/17partisan brigade deployedin v. G. Sepak (Zvornik)
-3/17partisan brigade deployed in theregionof TrpovaëkaGrda,Lukavac, v. D.
Crnevljevo
-CommandPost in the villageM. Obarska
- mortarbattery/38partisan division deployed in villageof Ljeinica
-22nd partisan brigade deployed:
1/22part. br.regionof villageCelopek
2/22part. br. inthe villageof Bogatovo Selo
3/22part. br. in the villageof Trnova, commandpost in the village
of UgljevikReply ofBosniaandHenegovina
Comrnanding officeron duty
of theleadingteam
Colonel
ZekanoviC Milutin
[signature]
[seal]
Received:07.04.92at 16,00hours
no.of telegram14321, no.of group1000
processed:07.04.92 at 16,30
delivered:07.04.92"
[ibid., emphasis added].
Al1the JNAunits mentionedin the reporthad taken up positions in the vicinity of
Bijeljina.The city was in fact completely encircledby the JNA,al1the villageslisted
in the documentare locatedwithin a radiusof approximately20 to 25 kilometres
fiom the city centre.
92. The quoted document,which ColonelZekanoviCsent to both the WarCommandof
the 2nd Military District and the JNAheadquartersin Belgrade,clearly illustrates
that the JNAwasnot the neutral force which it publicly still pretendedto be. On the
contrary,the JNAobviouslyconsidereditself asbeing in state of war.The JNAunits
in Bijeljinawere in open and armedconfiictwith an "enemy",the "SDA".This
"enemy" was not only small in number, certainlyin cornparisonwiththe enormous Chapter 8- Section 3
Yugoslavmilitary involvementin Bosnia andHenegovina befor19 May 1992
concentrationof JNA troops, but also completely"disarmed".By using terms like
"war"and "enemy"the JNA was creating the falseimpressionthat a serious armed
conflictwas taking place in Bijeljina,involvingtwo opposing parties of more or less
the same strength. This was of course not the case. The inhabitantsof Bijeljina were
not prepared for any conflict, norwere theymilitarily organisedin any way. The
resistance offeredby the populationof Bijeljinawas, in fact, merely symbolic.
93. The take-overof Bijeljina by Serbianparamilitariesand the JNA was also related by
Laura Silber and Allan Little in their much appraised book onthe conflict in
Yugoslavia, TheDeath of Yugoslavia.In their book, they paintedPresident Alija
IzetbegoviC'sincredulous reactionwhen the news of the take-overreached Sarajevo:
"Pictures reached Sarajevo and, for the first time, President Alija IzetbegoviCgrasped the scale and
nature of therisis that was closing in on his country:
'It was unbelievable almost. The civiliansbeing killed, pictures showed dead bodies of the
women in the streets. 1thought it was a photo-montage,1couldn't believemy eyes, 1
couldn't believe it was possible.'
IzetbegoviCwas under growing pressure to act decisively. As though completely unaware of the
role that the JNA played for almost a year in C-and was about to start playing in his own
republi- IzetbegoviCtmed to the generals for help. It was, as he later admitted, like putting the
fox in charge of theicken coop. With IzetbegoviE'snaive blessing, the JNA rolled in onApril3,
and, by threO'clockin the a3ernoon, occupied the town. Thecampaign of terror continued, with
JNA compliciîy.It would result in thejlight of almost al1B'non-Serbpopulation. Yet
again, under the guise of separatingthe 'waning ethnic parties,' the JNA had succeeded in
occupying a chunk of territory which,er its protection, could now be incorporated in a
separated Serb state[Laura Silberand Allan Little, TheDeath of Yugoslavia,
Revised edition, London 1996,pp. 222-223, emphasis added,Annex 211.
Afterthe Serbianparamilitarieshad capturedBijeljina,the JNA consolidatedthe
occupationof the city. When the JNA marched in on 3 April 1992,the fighting had
already stopped and the "campaign of terror continued".
94. By the first week of May 1992,half of the non-Serbpopulation of Bijeljina had been
killed,imprisonedor forcedto flee the city [seeUnited Nations,Final Report of the
UnitedNations Commissionof Experts, Sl19941674lAdd.2 (Vol. V), 28 Dec. 1994,
Annex X, "Mass Graves",p. 9, paras.25-3 11.
ZvomikReply of Bosniaand Henegovina
95. Zvomik was the next eastem Bosnian city to be attacked by theJNA, in the
beginning of April 1992.The fate of this city, on the Serbian border,has been
discussedseparatelyin this Reply [Reply,Chapter 5, Section 61.The Applicantwill
therefore fully concentrateon the role played by the JNAduring the take-over of
Zvornik andnearby Kulagrad,the medieval fortresson a hi11overlookingthe city.
96. The attackon Zvomik by a combinationof JNA and Serbianparamilitarieswas also
describedby Laura Silber and Allan Little. The fighting erupted on 8 April 1992,
when two thousand anned Serb soldiersand paramilitariesarnassedoutside the city:
"TheSerb paramilitaries and JACAunitsmassingoutside Zvornikdid not need a pretext. OnApril
8,they began shellingfrom the othe'rside of the river -9om inside SerbiaproThousands
began to flee-two thousandalone headingacross the bridgeto MaliZvomik. The next&y,
Arkan, commanderof the feared paramilitary unit,knownas the Tigers,issuedan ultimatum to the
Muslimsof Zvomik -who made up sixtypercent of the town's populatio- to surrender.When
they failedto respond to therrendercall, Arkan movedin. Zvomik fellon April 10.
José Maria Mendiluce,the UNHCR'smost seniorofficia1in former Yugoslavia,was visiting
MiloSeviCin Belgrade.
'MiloSeviCt. ld me, as he did throughoutthe conflict,that he didn'thave any control over
the Bosnian Serbs,but he wouldtryto use his moral authori(...His officia1positionwas
that if Bosniawas independent,hen the FederalArmywouldmove out. Obviously whathe
didn't tell me...was that a great part of the cornmandof the Federal Army was goingto
stayin Bosniaas a Bosnianarmy. At that momentthis wasn'tclear as it waslater in
retrospect.'
Mendiluceleft Belgradewith a promise thatMiloSeviEwoulddo everythingin his power (which,
of course, was limitedto whatevermoral influence he couldexert)to supportthe UNHCR's
missionin Bosnia. Toretum to Sarajevo, Mendilucehad to pass throughZvomik. He chosethe
wrong day.
'When 1anived at the bridge [overthe Drina which separates Serbiafiom Bosniacould
hear explosionsofartillery and mortarfire. Thewas great agitation on the Serbianside. Chapter 8 -Section 3
Yugoslavmilitary involvementin Bosnia and Henegovina before 19May 1992
Almost a kilometrefiom the bridge there were militiamenand JNAsoldiers, al1along the
river. Thewhole area was militarized.nsisted on being allowed to cross the bridge. They
let me pass at my own risk. 1went over to the Bosnia side. There was a big artillery
bombardment coming fiom the Serbian side of the Drina. 1even saw smoke coming from
the cannons on the Serbianside.'
TheSerb and JNAforces who held thatpart of town werejùrious tojnd an outsider bearing
wiîness to theirstormingof the town.
'1 was detained for two hours. 1realized 1was at seriousnsk. 1could see tnicks full of dead
bodies. 1could see militiamen taking more corpses of children, women and old people from
their houses and putting them on trucks. 1saw at least four or five trucks fui1of corpses.
When 1anived the cleansing had been done. There were no people, no one on the streets. It
was al1finished. They were looting, cleaning up the city after the massacre. 1was convinced
they were going tokill me.'
They did not kill him. They let him go. When he crossed the front line he did so at 140 kilometres
an hour into Bosnian-held temtory. There he found the victims of the cleansing. Five thousand
people sheltering in a narrow valley.
'When 1anived in the car 1was surrounded by 1000people. They were al1over me,
begging 'Save us! Save us!' with such despair that 1stayed there for an hour trying to calm
them down. There were lots of dead people, wounded children on the floor looking temfied
- absolutelytenified-and we could hear the sound of mortar fire approaching.'
Mendiluce'simpressionthat bothSerbianparamilitaries andJNA unitswere takingpart in the
capture of Zvornikis corroborated by the account of theextremenationalistparamilita?y leader
Vojislav$e.felj,who went to Zvornikshort&ajler what he called its 'liber':'The Zvornik
operationwasplanned in Belgrade, 'he said."[Laura Silberand Allm Little, TheDeath
of Yugoslavia, Revised edition, London 1996,pp. 222-223, emphasis added,
Annex 211.
The JNAforces thus participatedin the attack on Zvornik, movinginto the town
alongsidethe units of Serbianparamilitaries, such as Arkan's Tigers and Selelj's
"SeSeljevci".These units fell under the suprememilitarycommandof the JNA
[HannesTretter e.a., 'Ethniccleansing Operations ' in the northeast-Bosnian Cityof
Zvornikfiom April through June 1992, Ludwig BoltzmannInstitute of Human
Rights, Viema 1994,p. 1O,para. 4.2.1 .,Annex 481.
97. The complete operationwas, accordingto SeSelj"plannedin Belgrade". The JNA
units participating in the attack were based in Tuzla, west of Zvornik, and Bijeljina.
Some of these units were stationedin the vicinity of Zvornik prior to the actual
attack [ibidem,p. 7, para. 4.1.1.]. Al1these units belonged tothe 17thCorps,which
in its turn fell under the commandof the 2nd Military District in Sarajevo.In
additionto these "Bosnian"JNAforces, units fiom Serbia proper participatedin the
operation as well. These units originated fiom Novi Sad, Sabac, SremskaMitrovica,Reply ofBosniaandHerzegovina
Valjevo and Nis. Al1these units had their base in what is now the Federal Republic
of Yugoslavia [ibidem,pp. 8-9, para, 4.1.1.].
98. The military attack on Zvornik lasted from8 Apnl through 11April 1992.
Thereafier, the military operationsof the JNA and the Serb paramilitariesfocusedon
the medieval fortress of Kulagrad,which is situated tothe north of Zvornik. The
attack on Kulagrad was also described by the Ludwig BoltzmannInstitute of Human
Rights in their report on the ethnic cleansingof Zvornik:
"On April 9, an artillery assault on Kulagrad started since the attacking units were expectingmajor
Muslimresistance forces. Already before the attack, the Serbian mediaed that 'several
thousand Muslim extremists' were hiding in Kulagrad. In fact, there were probably no more that 30
to 100 armed Muslims under the cornrnandof Kapetan Almir, a formJNA officer, who had
spontaneouslystarted to organize a resistance movement withlight equipment (small amis).
From April 11 onward, there were almost daily attemptsby small combat groups of various
paramilitary units to capture the fomess. These attempts failed, however, despite the fact that
Kulagrad was constantlynder fire from mortars, anti-aircrafi guns and t[HannesTretter
e.a., 'EthniccleansingOperations'in the northeast-BosnianCity of Zvomik
fiom April throughJune 1992,LudwigBoltzmannInstitute of Human Rights,
Vienna 1994,p. 10,para. 4.2.1 .,481.
The assault on Kulagrad was not only supported byheavy artillery. Air strikeswere
also used toconquer the fortress. Thefollowingdocumentwas also found in the
abandonedJNA headquartersin Sarajevo, soon after the outbreak of the conflict. It is
a forma1request for the deploymentof the air forces, sent bythe commanderof the
JNA forces in Zvornik to the Comrnandof the 2nd Military District in Sarajevo:
"From: Command Post of the 17th Corps
strictly confidential43-477
10.04.1992 forwarded to:
[handwiting]
Colonel KrstiC(Air Force and Air Defence)
strictly confidential: 10/36-2284
17.04.1992
Support -action
request for action of the light combatair force
To: 2nd Military District Command
We demand that on 11.04.1992at 9,00 the light combatair force attacks the targin Kula
Zvomik. The action of light combatair force againstthis tisrequested in order to neutralize
forces who are attacking ounitsdefending the bridges over the Drina river.
Commander Chapter 8-Section 3
Yugoslavmilitary involvementin Bosnia and Henegovina before 19May 1992
Brigadier-General
SavoJankoviC
[stampl
received: 11.04.92at 02,OOhours
no. oftelegram4584, no. of group 200
processed 1.04.92,2,10 hours
delivered: 11.04.92at 04,OOhours
[signature]"
[ComrnandPost of the 17th Corps, Requestfor action of the light combat air
force to the 2nd Military District,signedBrigadier-General SavoJankoviC,10
April 1992,Annex 1321.
The attack on the fortress in Kula was, accordingto the Brigadier-General,requested
in order to "neutralizeforceswho are attackingour units defending the bridgesover
the Drina river". The JNA was thus afraid, unjustifiablyso, that one of its most
important connectionsbetween the Serb temtories in Bosnia and Herzegovinaand
Serbiaproper would be destroyed.This would have severelyharnperedthe
establishmentof the projected Greater Serbia. While the JNA was defending the
bridges over the Drina,it simultaneouslytried to destroy the bridges overthe Sava,
the river marking the border with Croatia.This is clearly illustratedby the earlier
quoted document onthe fighting in BosanskiBrod. In this documentMajor General
Milan Nedeljkovic announcedhis attemptto "pull down the bridge on the river Sava
in BosanskiBrod".
99. In spite of the supportgiven by the air forces, the JNA only succeededin taking the
fortress on 26 April 1992. Thefa11of Kulagradis again describedby the Ludwig
Boltzmann Instituteof Human Rights:
"In the moming of April 26, the villages around Kulagrad werethe first to fa11in the wake of a
concerted attack.At the sametime, Kulagrad andDivic wereattackedby heavy artillery fire fiom
the Serbianbankof the Drina river.This enabledthe attackers, whothis timehad coordinatedtheir
actions,to capture Kulagrad.For one,becausethe units were able to approachthe fortressfrom al1
directions, includingthepower stationin the south.For another,becausethe attack was conducted
more effectively.Somerespondentsstatedthatmembersof the 63rd Nis parachutebrigade [Serbia]
were involvedin the decisiveattackand the seizureof Kulagrad."Tretter e.a.,
'Ethniecleansing Operation 'sin the northeast-BosnianCity of Zvomikffom
April throughJune1992,Ludwig BoltzmannInstitute of HurnanRights,
Vienna 1994,p. 23, para. 5.3. A,nnex 481.
The capture of the Kula fortresswas also reported to the headquartersof the JNA in
Belgrade, in a document whichwas again found in Sarajevo at the 2nd Military
District headquarters:Repiy ofBosniaandHenegovina
"Command of the 2nd Military District
Operational on-dutyteam
Stric. Con. No. 10136-2501
Date: 26.04.1992
To: General HQ of the SFRY Armed Forces
Command of the 2nd Military District, to the Commander Personally
Forward Command Post Lukavica,to Chief of the HQ
COMBAT AND OPERATIONAL REPORT
1. Enemy
In Zvornik region, in the early morning, the units of the 2nd Tactical Groupll7th Corps clashed
with paramilitary formations. Our forces fought back, and they took over the region of Kulagrad
and presently they are fighting for village Lipljewhich is besieged. In the afternoon the fighting
ceased.
Officer- leader of the on-duty team:
Colonel
Kazul Stevan"
[Command ofthe 2nd Military District, Combatand operational report to
General Headquartersof the JNA, signed ColonelKm1 Stevan, 26 April 1992,
Annex 1331.
When "the fighting ceased",ethnic cleansingreally began. On 9 and 10 April 1992
alone, approximately2,500 men were killed by the combinedSerb forces [see United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2 (Vol. V), 28 Dec. 1994,Annex X, "Mass Graves",pp. 57-58,
para. 3871.
100. The east-Bosniantown of Visegrad is, like Bijeljinaand Zvornik,located on the
river Drina, close to the border with Serbia.It was attacked byJNAforces fiom
Serbia proper on 13 April 1992, when they crossedthe border shortly before the
town was actually occupied. One year der the attack, theassaulton Viiiegradwas
reported by the United StatesDepartmentof State:
"A rniddle-aged Muslim couple fiom the village of Rodic 1rkilometre fiom ViHegrad,
witnessed the movement of the Uzicki corps -troops fiom UZice[Serbial- into the ViHegradvicinity
on April 13, 1992. Chapter 8 - Section3
Yugoslavmilitary involvementin Bosnia andHerzegovina before19 May 1992
This corps consisted of JNA soldiers, reservists, Uiice temtonal defense forces, and White Eagles.
The JNA soldiers wore their regular JNA uniforms. They brought a significant amount of heavy
equipment with JNA markings (tanks, heavy trucks, and mortars) into tom. Planes and helicopters
with JNA markings fiequently flew overhead.
The White Eagles overtly identified themselves as such and wore outfits that combined elementsof
military andcivilian garb, including headbands. Some wore hats with the kokade emblem, a
royalist insignia.
The two witnesses noted a significant difference between the way White Eagles and the JNA
treated Muslims civilians, the latter appeanng far more attentive to the need not to harm the
civilians. They also discemed tensions between the White Eagles and the JNA.
Upon learning that the Uzicki corps wa2 kilometres away, most of the town's Muslimsfled to the
woods. As they were fleeing, Uzicki corpsoldiers fired upon them. The corps broadcast calls over
the radio for Muslimresidents to retum to ViSegrad,suring them of a safe retum.
The witnesses returned to town on Apnl20 and found it filled with mbble and bumed out homes.
By this date, the JNA had blocked al1roads out of ViSegrad(UZice[Serbia], Sarajevo, FoCaand
Rudo), White Eagles stood behind the JNAtroops, and the Uzicki corps had set uproadblocks al1
around the area.
At each roadblock, asoldier canied a list of Muslimnames. Everyone was required to show
identification;hose Muslims whose names appeared on the list were taken away and not heard
fiom again. They included factory directors, political and cornmunityleaders, and other respected
citizens.
Between May 18 and 25,the Uzicki corps left ViSegrad,taking its heavy equipment with it, and
pulled back to a location between ViSegradand the Serbian border. The town fell under the control
of the White Eagles on May 25." [United StatesDepartmentof State, Bureau of
Public Affairs, Dispatch, Vol. 4, Number 16, 19 Apr. 1993,pp. 268-269,
Annex 191.
The JNA occupiedViSegradwith the help ofthe pararnilitary"WhiteEagles" [see
Reply, Chapter 8, Section 71.Al1Serb forces involved in the military operations
were from Serbia proper, including the TerritorialDefense forces which were also
based in UZice.The UZiceCorps fell under the comrnandof the 1stMilitary District
in Belgrade. When the town was taken, the inhabitants offeredno resistance. They
fled to the woods whenthey heard the JNA was approachingthe city. The Uiice
Corps lefi ViSegradwell afier the authoritiesin Belgradeannouncedthat al1their
troops had lefi the territory of Bosnia and Herzegovina.Reply of Bosnia andHerzegovina
101. In its Counter-Mernorial,the Federal Republicof Yugoslaviaalso dedicated a section
of no lessthan 26 pages to the eventsin ViSegrad.The Respondentfully
concentratedits efforts on the penod preceding the eventual take-overof the city.
The aim of this histoncal "analysis"is to "show howthe Muslim side prepared the
war by political and military means, long before the beginning of the armed conflicts
in Bosnia and Herzegovina" [Counter-Mernorialp ,. 175, para. 2.13.1.1. and pp.182-
207, paras. 2.13.3.1.-2.13.3.83.1.The Applicantdeniesthat the eventsas
reconstmcted in the Counter-Mernorial havetaken place. The 26 pages of the
Counter-Mernonaldo in fact prove nothing at all, certainly not that the "radical
Muslims"of ViSegradwere planning "the creationof a Muslim state" [Counter-
Mernorial,p. 182,para. 2.13.3.1.]. If the Respondent7s"analysis"proves anythmgat
all, it is the atmosphereof paranoia which was createdby the Serbsto serve as a
justification for their armed intervention in the second weekofApnl 1992.This is,
however, not the most striking aspect of this Sectionof the Counter-Mernorial.By
far the most remarkableis the fact that the Respondentabruptly ended its detailed
historicai "anaiysis"the momentits own military forcespoured into the city. Not a
single word was mentioned about theterrible events that followed the take-over of
ViSegradby the INA on 13April 1992.
102. The Respondentintentionallycreatedthe false impressionthat the Muslims of
ViSegradindeed succeeded in creating their "Muslimstate".
103. A "Muslim state" was in fact never created, norwas there ever any plan to try and
achieve that aim.Mer the fa11of the city, "rnostof the 6,600 Muslim inhabitantsof
ViSegradwere taken by the Serbian TerritorialDefence to a detentionfacility in
U2ice" [UnitedNations, Final Report of the UnitedNations Commissionof Experts, Chapter 8- Section3
Yugoslavmilitary involvementin Bosnia and Henegovina before 19 May 1992
SI19941674(Vol. IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",p. 419, para.
34581.An unknown number of women was captured for the purpose of rape and
taken to the Zlatibor region in southern Serbia, between the cities of UZiceand
Prijepolje [ibidem,p. 419, para. 34631.
BosanskiSamac
104. The town of Bosanski Samac lies in the northem region of Bosnia and Herzegovina,
close to the border with Croatia, in the Serb corridor linking Serbia proper with the
Republika Srpska and the Serb-controlledareas in Croatia. Like the cities mentioned
above, it was attackedby the JNA in close CO-operation with paramilitaryforces.
The capture of Bosanski Samacon 17April 1992was studiedby Human Rights
WatchIHelsinki,the largest Arnericanbased non-govermnentalorganisationfor
human rights. In April 1994,Human Rights Watch/Helsinkipublished a report
wholly devoted tothe events during and following the fa11of Bosanski Samac. The
events in the town followedthe same pattern seen in other cities in Bosnia and
Herzegovina:
"Many of the abuses attributed to Serbian forces follow a recognizable pattern, used during the war
in Croatia and in Bosnia-Hercegovina, thathase to be known as 'ethnic cleansing'.The
primary aim of Serbian forces in Bosanskic was to gain control of the region by forcibly
displacing orilling non-Serbs in the area. During this campaign of 'ethnic cleansing', Serb forces
were responsible for violations of human rights and humanitarian law including attacks against
civilian targets, disproportionate use of force, pillage and the destruction of civilian homes and
cultural objects, surnmaryexecutions, and abuse in detention. The forced displacementof non-Serbs
in Bosanski Samac was similar, if not identical, to other 'cleansing' campaigns that occurred in
many other Serbian-controlledeas of Bosnia and Hercegovina["WarCrimes in Bosnia-
Hercegovina: Bosanski Samac",Human Rights Watch/Helsinki,Vol. 6, No. 5,
Apr. 1994,pp. 4-5, Annex 281.Reply of Bosniaand Herzegovina
105. On the same dayBosanskiSarnacwas taken by the JNA, the Commandof the 2nd
Military District reportedto the headquartersin Belgrade. Thefollowingdocument
was found by govemmentforces in Sarajevoon 3 May 1992.It showsthat by 17
April 1992, the objectivesof the JNA and the Serbsin Bosnia andHerzegovinafùlly
coincided andthat the non-Serbs of Bosnia and Herzegovina hadbeen marked as
their common enemy:
"From:
Command of the 2nd Military District
Operational Centre
strictly confidential 10/36-2298
17.04.1992
To: Operational Centre of the General Staff of the Armed Forces of the SFRY
Very urgent!
Extraordinary Report
ne 17th Corps HQ reported that if took control over al1vital objects inBosanskiSumac in the
night of16/17.04.1992.
Intervention came as a result of numerous conflicts and excesses on ethnic grounds, preceded by
the attempt of the Croatian Amy to cross the bridge on the Sava ripartof these troops
together withararnilitary troops fiom the Bosanski Samac area made an attempt to attack the
forces of the 17th Corps along the line -Bosanski Samac. This attack was repelled and losses
inflicted to the enemy. In the operationsof takingcontrol over the vital objects in BosanskiSumac,
the 17th Tactic Group troops together with the troops of tTO [TerritorialDefence] and the
Serb militia tookpart. The situationin the town is now relatively calm. Individuals who were
opening the fire at our troops andizens were isolated. There have been some cases of moving
out of the population, while astantialnumber of the municipal leadership fledto Croatia.
The establishment of the civilian authoritiesis under way. There are some indicationsthat the
enemy might strike again. Necessary measures to unable any mattacks and to disarm the
remaining enemy's troops are undertaken.
Head of the team on duty
Colonel
Sego Nikola"
[2nd Military District, ExtraordinaryReportto the OperationalCentre of the
General Staff, signed Colonel Nikola Sego, 17April 1992,emphasisadded,
Annex 1341.
The occupation was carrieclout inclose cooperationwithlocal TerritorialDefence
forces andSerbianparamilitaries. Chapter 8 -Section 3
Yugoslav military involvementin Bosnia andHerzegovina before 19 May 1992
106. As in Vi'tegrad,the militarymanoeuvresof the JNAin BosanskiSamac were
presented as purely defensive.This time it was notMuslim forces allegedly
threateningto cross the river Drinainto Serbia,but the CroatianAmy, with the help
of local paramilitariesallegedlyprovoking theJNA. The above quoted report of
HurnanRights Watch/Helsinki,however,clearly showsthat this "provocation"of the
JNA wasjust an excusefabricatedto give the Serbs a reason to take-overthe town.
The JNA forces enteringBosanskiSamacin fact met no resistanceat all:
"The initial attack on Bosanski Samac involvedlight and heavy artillery, which were used
indiscriminately and disproportionatelyin order to terronze the local population. According to
witnessesinteniewed by Human Rights WatchlHelsinki,the Serbian offensive was not met with
any resistance and the area appears to have been attacked solely for thee of displacingthe
non-Serbian population.
I.B., a fi@-two-year-old Muslim clerk fiom the electro-industrialplant in Bosanski Samac,
recalled:
'The attack on Bosanski Sumac started on the 17th of April 1992. TheSerbs together with
theJNA 'liberated' thetownfiom Muslims and Croats. They shelled Sumac and entered it
with tank and military transports,although nobody tried tofight against them. Their attack
started in the moming and the townwas occupied by the evenin..Almost immediatelythey
started to roundup] Muslims and Croats.
N.,a fifteen-year-old Muslim girl also fiom Bosanski Samac, gave a similar account:
When the Serbs came, they were shooting,but no one was fighting [th..They were
shooting as if someone was attacking[Later] the Serbs attacked Slavonski Samac [on the
Croatianside of the river Sava] from h...
Many witnesses and refugeesfiom Bosanski Sumac confirmed that 'ethniccleansin'practices in
this area were carried out no?only by local annedforces and the self-proclaimed 'Armyof the
Serbian Republic',but also by the YugoslavPeopl'sArmy andparamilitary troopsfiom Serbia
proper. More specifically, witnesses claim that Serbian paramilitaries forces belonging to bljko
Rahjatovic (alias 'Arkan') and Vojislav Seielj's for-also lmown as the Tigers and the Cetniks,
respectiveiy-participated in the hostilit["WarCrimesin Bosnia-Hercegovina:
Bosanski Samac",Human Rights Watch/Helsinki,Vol. 6, No. 5, Apr. 1994,pp.
5-7, emphasisadded, Annex 281.
The purpose of the Serb attack wasthus to terrorisethe non-Serb population into
fleeing. There was no organisedresistanceand the "liberation"of Bosanski Samac
was not a matter of days butjust hours.
107. Immediatelyafter the town wastaken,the ethnic cleansing began.In 1991,almost
17,000Croats and Muslims - of a total populationof about 33,000 - lived in the
municipalityof BosanskiSamac.By May 1995, fewerthan 300 of them remained
[ICTFY,Indictment, TheProsecutor v. Miljkovii& others, CaseNo. IT-95-9-1,21
July 1995,p. 1, para. 11.Reply of Bosnia andHenegovina
108. The Prosecutor at the ICTFY has indicted six Serbs for their part in the ethnic
cleansingof Bosanski Samac in the first months of the war [ICTFY, Indictments,
TheProsecutor v. MiljkoviCa& others, CaseNo. IT-95-9-1,21 July 19951.On 14
February 1998, two of these, Milan SimiCand MiroslavTadiC,reported to the
ICTFY. They are, however, notthe main suspects in the Bosanski Samaccase. The
main indictee, SlobodanMiljkoviC,a Serbianparamilitaryalso known as "Lugar",
has not been arrestedyet. At the date of subrnissionof this Reply, MiljkoviCwas still
livingin Kragujevac,his place of birth in the Federal Republic of Yugoslavia
["Twee Serviërs geven zich aan",De Volhkrant, 16 February 1998,Annex 1351.
Sarajevo
109. The fighting in Sarajevo broke out on 5 Apnl 1992, the eve of a meeting of the
European CornmunityMinisters,who were expected torecogniseBosnia and
Herzegovinaas an independent state.At 2.00 p.m. a deadline set by the Serbs for
cancellationof a full mobilisationof the forcesunder goveniment control expired.
As the deadline expired, thousandsof people took to thestreets in spontaneous peace
marches, and Sarajevotelevisionbegan running appeals forethnic amity. One group
of marchers was shot atby Serb snipers.At that point, full-scale fighting brokeout
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2 (Vol. II), 28 Dec. 1994,Annex VI,Part 1,"Study ofthe Battle
and Siege of Sarajevo",pp. 152-154,paras. 54-67; Laura Silber and AllanLittle, The
Death of Yugoslavia,Revised edition, London 1996,pp. 225-230, Annex 211.In the
eveningthe JNA captured Sarajevo airport. Low flying warjets of the JNA flew
over Sarajevoand the city experiencedthe first shellingof the armed conflict.
110. The JNA,as became more and more common, claimed that it was a neutral force
and that it only tried to prevent Mer bloodshed. In their Annex on the siege of
Sarajevo,the Commissionof Experts reported on the first days of the siege and the
ambiguousrole played by the JNA:
"The JNA saiditsboopsintervened tohaltseveralclashesin Sarajevoandthatitusedtanksto
securethecityairportafterintensefightingaroundthefaMuslimresidents, however,stated
that theNAjoined Serbianirregularson two outlyinghillrides in launchingrocket, mortar and
artilleryrikes, that damaged homes andshops in the historicMuslim-dominatedOld Town and
nearbyareas.Muslims werereportedto havereturnedsmall-armsfi[United Nations,
Final Report of the UnitedNations Commissionof Eqerts, Sl19941674lAdd.2
(Vol. II), 28 Dec. 1994,Annex VI, Part1, "Study of the Battle and Siege of
Sarajevo",p. 154,para. 64, emphasis added]. Chapter8 -Section 3
Yugoslav militaryinvolvementin Bosnia and Herzegovina before 19 May 1992
The first shell to fa11on Sarajevoon 5 Apnl 1992was thus firedby the NA, the
only military force which had the necessary ordnance atits disposalat that time. As
will be discussedin the next Sectionto this Chapter,the Bosnian Serb Army was
only establishedon 19May 1992,when theJNA formally "withdrew"from Bosnian
temtory.
111. In May 1992,forces loyal to the Bosnian govemmentas10foundthe following
military document.It is an operational report sentby a JNAofficer in the Sarajevo
area to the 2ndMilitary District. Thedocumentis dated 6 April 1992,that is one
day after the shellingof the city began:
"From:
Reserve Cornrnand Post
of the 2nd Military District
strictly confidential 0911580-1
06.04.1992
TO BE DELIVERED IMMEDIATELY
To: 2nd Military District-Operational Centre
Regular OperationalReport no. 9
Overall activities of this part of the comrnandpost focused on the follow-up of the situation and
evolvement of military activities in and around Sarajevo. In addition, the deployrnent was built
and the establishment of communications organised.
On two occasions, the whole team has followed-up and directed the mobilization of al1the units
that are mobilized in the area.
Wehave been in constant contact and we coordinatedal1the activities withHQhof Pale.
There have been no substantial difficulties so far.
Head of the team
Colonel
Branko FilipoviC"
[ReserveCommandPost, OperationalReportto the 2nd Military District,
signed Bganko FilipoviC,6 April 1992, emphasis added,Annex 1361.
The JNA in Sarajevowas coordinatingits "activities"in the area with the Crisis Staff
in Pale, the Serbian Democratic Part (SDS) strongholdand future capitalof the
RepublikaSrpska.Also noteworthyis the fact that this messagereports on
"deployment",that is "builtup", of Serb forces. Certainly,this doesnot suggest any
defensive action.It al1points in the directionof an encirclementor take-overof the
city of Sarajevo.Reply ofBosnia andHenegovina
112. The JNA did not succeedin capturingthe whole of Sarajevo.Its rnilitarygains in the
Sarajevoarea were limited to severalsuburbs.In these districts,which remained
under Serb controlthroughoutthe armed conflict,the JNA terrorised many non-Serbs
into fleeing. The events followingthe take-overof the areasof Grbavica,IlidZaand
Dobrinjahave been reportedby, amongothers,HumanRightsWatcWHelsinki,the
Americanbased nongovemmentalorganisation ["Bosnia-HercegovinaS :arajevo",
Human Rights Watch/Helsinki,Vol. 6, No. 15Oct. 1994,pp. 4-20,Annex 1371.
113. On 12 July 1994,the former Commander of the 2ndMilitaryDistrict in Sarajevo,
Lieutenant-General Milutin Kukanjac,was interviewed on Bosnian Serbtelevision in
Pale. After having exchanged some polite conversation, theinterviewerstarted
attackingKukanjacfor the role he played duringthe first weeksof the siege of
Sarajevo. Kukanjac defended hirnselb fy sayingthat theJNA had done evewng to
support the Bosnian Serbs:
"[Question] Didn't you have your men at that time up there on TrebeviCbill overlooking Sarajevo]
or in Grbavica [Sarajevo area], controlled by you, who could inevelopment of the situation,
at once level the Presidency to the ground?
[Kukanjac] First, 1had a small number of soldiers.The number of soldiers placed in Grbavica by
general Djurdjevac, that was it. According to the peace organisation, out ofers 1had only
7,and according to the war organization 1had ag7isoldiers, out 1000.1must honestly Say
that 1expected you [the Bosnian Serbs] to help1mmust Sayto you at 'The Serb Republic TV'
that instead to defend me, you organized a campaign against me. 1think that the unit which was at
the Vrbanja bridge [Sarajevo] on the 3rd of Mayis still there.otaproblem todestroy
Sarajevo,butZcannot agreewithsomepeople: thefirst, it isnothumaneto destroyurban
settings,and thesecond,we couldicithe SerbsinSarajevoifwe shelleditZ can'tsee innocent
people die. Mysoldiers,ifyou don'tknow,defeatedthemeverywhere.And on the 3rd of May they
tned to take revenge py attacking the JNA convoy transporting the kidnapped President Alija
Izetbegovit], but the fact is that we had only six dead men, and not as some people [in Belgrade]
are spreading the word about 139ad and so on. That's homble, that's propaganda, and it's not
like that...mat istheJNA, it istheSerb-MontenegrinpartwhichencircledtheSerb lands.
Please, you can see, we then, 1then made an order for general Mladib to place colonel Lisica there
at Kupres [central Bosnia], andthe whole Osijek brigade was defeated there. We defended for you
theIlidZa [Sarajevo suburb] settlement,Kupres area, Posavina area [along the Croatian border],
VogoSCasettlement [town north of Sarajevo], the School of the Ministry of Interna1Affairs [in
Sarajevo].Atthattime,ifwe hadnotbeenthere,everythingwouldhavebeendefeated;I think that
ourtanksare even today infiont of theSchool.
[Question] No, they are not, they are moved out of tkm zone.
[Kukanjac] Wedefeatedthemeveryvhere,eveninsome othersmallclashes." [BosnianSerb
Television,Pale, interview withLieutenant-General Milutin Kukanjac, 12 July
1994,p. 6, emphasisadded,Annex 1383.
When asked why he did notsimply flatten Sarajevo,Kukanjacgave basicallytwo
explanations.Firstly, he did not have enough soldiersat his disposal. Secondly,he Yugoslavmilitav involvementin Bosnia and Henegovina be19May 19923
did not want to take the risk of killing "innocent"Serbs.The flatteningof the city
was, in Kukanjac'sview, not necessaryat all, as his soldiershad in any case
defeated "them" everywhere, "even in someother small clashes".If the JNAhad not
supported the Bosnian Serbs in the confiict,"everythingwould have been defeated".
Whenthe JNAleft Sarajevo,the Serbs were in control of those parts of the city
which Kukanjac considered tobe Serb:
"[Kukanjac] Whydo you ask me about Sarajevo,you haveyour leaders who madethe decisions,
there is the leadership in Belgrade. If somebodyhad given an order and materialized the decision
to capture Sarajevo, it would be captured. The question is how to capture Sara1evo, and why.
mustsay that1lep the Serb part of Sarajevo capturedfor you. Youmustpublicize that ifyou, the
Serbs, captured theeas which we had ensuredfor you, and it is ut least 50percent, the war
would have beenfinished a long tirneago. It's apity, but you had even lost some temtones. 1
can't understand that you had lost the left Neretva river bank [river divi~UCghi11tar], the
[overlooking Sarajevo], Mojmilohi11[Sarajevo], ands[ibidem,p. 71.
TheDobrovoljackaStreetincident
114. In its Counter-Memorial, the Respondent also described tha ettack on the JNA
convoy leaving Sarajevoon 3 May 1992.This is the sameincident Lieutenant-
General MilutinKukanjacreferred to in the above quoted interview.The Respondent
described theincident as follows:
"3.1.3. 18m.echanized the JNA column with officers and soldiers from the gamson of the
SecondAmy Disîrict Command was attacked in Sarajevo3May 1992.The evacuation was
camed out on the basis ofgreement between Alija IzetbegoviéandJNA. The agreement
was reached with the mediation ofOFOR and theEC MissionUNPROFOR participated in
the organization of the evacuation.e this, paramilitary formations of the Ministry of the
Interior and the Territonal Defence of Bosnia-Herzegovinaopened fire in DobrovoljaCkaStreet
around 6.00 p.m. on the column afier the vehicle carrying Alija IzetbegoviCand Lt.-Gen. Milutin
Kukanjac had passed[Counter-Memonal,p. 255, para.3.1.3.18.1.
The JNAis again erroneouslypresented as an innocent force, which was being
attacked while it was tryingto evacuateits barracks in Sarajevo.This picture painted
by the Respondent, however,substantiallybends the truth, as it failed to explainwhy
PresidentAlija IzetbegoviCwas part of the convoy, sharinga vehiclewith Lieutenant
General Kukanjac.
115. The day before the convoywas attackedin the centre of Sarajevo, President Alija
IzetbegoviC was arrestedby the JNAat Sarajevoairport. He had just arrived from
Lisbon afterthree days of fniitless negotiationsto stop the outbreakingarmed
conflict.The JNAsoon spreadthe word thatPresidentIzetbegoviCwas being held atReplyof BosniaandHenegovina
the airport for "his own safety" [United Nations,FinalReportof the United Nations
Commissionof Experts, Sl19941674lAdd.2, (Vol. II), 28 Dec. 1994,Annex VI, Part
1,"Study of the Battle and Siege of Sarajevo",p. 175,para. 1811.This JNA
statementwas false. The President was kidnapped and irnprisonedon General
Kukanj ac's orders.
116. The events after President IzetbegoviC'sarriva1in Sarajevo have been described by
Laura Silber and Allan Little in theirbook on the break-up of theformer
Yugoslavia, TheDeath of Yugoslavia:
"ne President S plane hadflown into themiddleof thechaos,and Kukanjac had seizedthe
opportunitythat itpresented.From hisbesiegedbarracb, heorderedthe airportcommander
GeneralDjurdjevac to detainthePresident yor hisownsafety'.
The President's party [including his daughter Sabina and Deputy Prime Minister Zlatko
LagumdZija]were now in the airport director's officeunder armed guard. Izetbegovié insistedon
being allowed to retum to the city. Djurdjevac refused. He told the President that he had been
ordered to take him and his delegation to thebarracks at Lukavica, a Serb-held village on the
southern edge of the city, about ten-minutes drive fiom theort. Djurdjevac said General
Kukanjac had insisted on a meeting with the President there. Izetbegovié refused:
'1said that we can meet, but only in the Presidency. They said no, Kukanjac insists we go
to Lukavica.1said there is no way that 1'11go to Lukavica and talk. They said 1had to go
to Lukavica.1asked them whether 1was their hostage. 1told them 1was not going to
Lukavica unless 1was being forced. He said, then, you have to go.'
IzetbegoviEhad asked to be allowed to telephone the Presidency to tell his staff where he was.
Djurdjevac refused, telling him that the telephones were down. Then the phone on the airport
director's deskrang. It was a woman calling fiom the city to find out whether the plane her
daughter had been booked on earlier thaday had left. By chance, she had called the director's
direct line. IzetbegoviEstoodp,walked across the room to the director's desk and said: 'Pass me
the telephone.' According toagumdZija[Bosnian Deputy PrimeMinister]:
'The President took the telephone, heid 'Good evening Madam, this is Alija IzetbegoviE,
the Resident of Bosnia on the phone'.
There was a brief pause. She was confused. He said 'Yes, yes. That'sright, Alija
izetbegovié,the President of Bosnia. Could you please be so kinam here at the airport,
simngin the director's office, andthe Amy won't let us go. We arkepthere. Could you
please call the Presidency and tell them that you talked to me,amhahere, at the airport,
andif you can't reach the Presidency, please call radioTVndand inform them. They
insistupon my meeting with General Kukanjac, at Lukavica. Yes,General Kukanjac, yes'.
The woman couldn't believe her ears. The President said 'Thank you very much, yes, yes,
thank you Madam'.
The woman was as good as her word. She rang Sarajevo television and told them her improbable
tale. And that's how the cityund out that its President had been arrested.
Meanwhile,Kukanjczcwas on thephoneto Belgrade.He told theAmy Chiefof Stas General
BlagojeAdZic,thathismenut the airporthadZzetbegoviC andaskedfor instructionsA. diic called
thePresidentof nrmpYugoslavia,BrankoKostik.Kostidwasannoyed thatAdZichadadmitted,on
an unprotectedphone line,that themy hadarrestedthelegal headofstate. Chapter 8- Section 3
Yugoslavmilitary involvementin Bosnia andHerzegovina b19oMay 1992
1[KostiC]reactedinstinctivelyandsaid,'Blagoje,you knowthattheydidn't atim,they
arejustlookingafierhim forhis ownpersonalsafe...ButAdZicsaid,'No, no,they
arrestedhim!..he wasratherslowto pickupwhat 1 wastryingto Sa..1 toidAdZiC
'Lookafterhimwell, butusethisopportunitto lifi theblockadethebarracks.'
Thusauthority to usethe President's capasa bargainingchip in the negotiations to de-
blockade the JNAbarracks in Sarajevo camejPom the acting head ofstate, the slavishlypro-
MiloieviCKostiCof Montenegro.[Laura Silberand Allan Little, TheDeath of
Yugoslavia,Revised edition, London 1996,pp. 235-236, emphasis added,
Annex 211.
The President of Bosnia and Herzegovinawas thus kept under arrest on orders from
Belgradewith a view to using hirn as a "bargaining chipin the negotiationsto de-
blockadethe JNAbarracks in Sarajevo".
117. When the convoy was attacked PresidentIzetbegoviCwas still under arrest. The
military convoy consistedof approximately seventy vehicles andcarried not only the
Presidentof Bosnia and Herzegovina, but alsoanenormousquantity of arms. In The
Death of YugoslaviaLaura Silber and Allan Little also describedthe shooting
incidentin the centre of Sarajevo.Their detailed accountof the events demonstrates
that it is not clear who gave the order to attackthe convoy, if ever such an order was
given. At the time the incident took place,there was a great deal of uncertainty
amongthe people involved as to what agreementshad exactly been made between
the JNA and the various representativesof the Bosnian govemment.It was even
unclearwhether the President was still alive at all. When the Bosniansattacking the
convoy saw their President coming out of the armouredvehicle, in which he was
being transported, the shootingimrnediately stopped[Laura Silber and Allan Little,
TheDeath of Yugoslavia,Revised edition, London 1996,pp. 241-242, Annex 211.
118. Two days later, on 5 May 1992,the European Cornmunitycondemned"the seizure
of President IzetbegoviCby the JNA" as well as "the repeatedshellingof Sarajevoby
JNA and irregular forces which has alreadycaused the deathof many innocent
civilians" [Bulletinof the European Community, No.5-1992,p. 104,para. 1.3.4,
Annex 1221.
119. After President Izetbegovikhad been fieed and the remainingJNA troops had left
the city, the siege of Sarajevo continued.Accordingto conservativereports, as of 15
Novernber 1993, 9,359 civilianshad either been killed, died of malnutrition or fiom
the cold, or were missing in the city. This total included 1,525children.
Additionally, 55,801persons had been wounded,including 14,538children [UnitedReply ofBosnia andHenegovina
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2 (Vol. II), 28 Dec. 1994,Annex VI, Part 1,"Study of the Battle
and Siege of Sarajevo",p. 8,para. 141.
Dominoeflect
120. The abovementioned toms captured bythe JNA at the beginning of the hostilities
are only some examplesof a genocidalcampaignwhich sweptthrough Bosnia and
Herzegovinain April andMay 1992.Other cities and tows were also captured; they
fell like domino's.
121. Mer days of intensive bombardment,causing many deaths amongcivilians,the JNA
seized the town of Kupres on 8 April 1992.On 17April, the first Serbiantroops
entered Vlasenica, a town in east Bosnia.These JNA troops belonged tothe Novi
Sad Corps in Serbia WS Departmentof State, Bureau of Public Affairs, Dispatch,
Vol. 4, Number 30, 26 July 1993,p. 541, Annex 181.In late April 1992,the
northern city of BrCkowas attacked bythe JNA andSerb paramilitaryunits [United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2 (Vol.I), 28 Dec. 1994,Annex III.A, "SpecialForces", p. 141,
para. 386; see also [United Nations,Final Report of the UnitedNations Commission
of Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",
pp. 89-90, paras. 713-7241.The north Bosnian town of Doboj was occupiedduring
the same period. Again the JNA was supportedby Arkan's paramilitaryunits as well
as the "White Eagles" [UnitedNations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex III.A,
"SpecialForces", p. 144, para. 4101.The first reportson the shellingof the town of
Mostar by the JNA date ffom 30 April 1992 [Ian Traynor, TheGuardian, 30 April
1992, Annex 1391.On the same &y, the JNA conductedthe take-overof the town
of Prijedor in northwest Bosnia. They were again aided by paramilitaries[ICTFY,
Trial Chamber, Opinion and Judgrnent,Prosecutor v. Dusko Tadié,CaseNo. IT-94-
1-T, 7 May 1997,p. 51, para. 1371. Yugoslavmilitary involvementin Bosnia and Henegovina before 19 May1992
122. In early May 1992,the JNA Corps fi-omNoviSad in Serbia attackedthe east
BosnianBosnian town of Bratunac [HumanRights Cornmittee, Document submitted
by Bosnia and Herzegovina, CCPR/C/89,27 April 1993,p. 4, para. 121. On 4 May,
the JNA started shelling the town of Gorazde,in east Bosnia [US Departmentof
State, Bureau of Public Affairs, Dispatch,Vol. 4, Number 16, 19Apr. 1993,pp.
260, Annex 191.
123. By the tirne the JNA "withdrew"ftom Bosnia and Herzegovina, al1towns on the
territory of the projected Greater Serbiahad fallen prey to the Serbs.The only
exception were the Bosnian enclaves, which were kept under siege for the duration
of the confiict and were later designateclas safe areasby the United Nations. The
tragic end of Srebrenicawas discussedin a separateSection of this Chapter [Reply,
Chapter 5, Section 81.RepIyofBosniaandHenegovina
124. In al1the places capturedby the JNA a Crisis Staff or Krizni Stab was established.
The phenomenon of the Crisis Staffwas, amongothers, studied and describedby
Judge Hanna Greve in her report on Prijedor, written for the United Nations
Commissionof Experts. Her studybegan with a historicalassessment:
"177.The concept of the Krimi Stab existed already in military strategic theory in the former
Yugoslavia prior to thers. The military as such was in a sense always afiaid of the people. The
military werebove the people and had privileges which easily could lead to the people turning
against the military. The military consisted of rather conservativeor reactionary Communists,
whereas the people seemed to be progressing towards democracy.The military wanted to control
the people andhus needed to give the people the impression that in actual fact, the people
controlled the military. In this the military, generallyspeaking,succeeded. The worst case scenano
contained the plan that the military would establishthe KrimiThus, the military would make
sure to havencluded in the Krimi Stab people whom they trusted. Trust in this context means
loyaity and subordination[United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex V,
"The Prijedor Report", p. 38, para. 1771.
As soon as a town had been militarily secured, theJNA would make surethat a
Crisis Staff was installedand fil1it with reliablehenchmen.In some cases the
establishmentof the Crisis Staff would precede the actualtake-over by the JNA. In
Opitina Prijedor a Crisis Staff was installed aswell. Someof their tasks were listed
by Judge Greve:
"178. The Krimi Stab Smske OvStinaPriiedor was involvedin the logistic support and production
for the army. The KrimiStab was an instrument of gaining complete control ofthe entirety of
OvStinaPrijedor (or over any other geographic areawhere a Krimi Stab was proclaimed). Soldiers
who worked for the interests of the army were postedalso in industry and other production units to
control the production, to gain support, and to controlns.
179. The Krimi Stab also had as its functioarmothe Serbs within its operational area. Other
functions were to block communications and make provocationshin mixed ethnic settings. The
pivota1function, however, was to voice that the Serbian passuch were threatened by the non-
Serbs, the consequence of which was the urgent need for the JNA to act to protect the people. The
ideawas to be able to mobilize strategicallywith the consent of the people, i.e. to take up positions
with artillery atanks,etc. and soldiersto 'defend' the Serbian peo[ibidem,p. 28-29,
paras. 179-1801.
125. The Crisis Staff in Prijedor was installed immediatelyafter the Serb take-over of the
city on 30 April 1992.It fell under the commandof the more important Crisis Staff
in Banja Luka ,he ARKCrisis Staff. In its TadiCJudgementthe Trial Chamberat
the ICTFY stated that Chapter 8-Section3
Yugoslavmilitary involvementin Bosnia andHenegovina before 191992
"[alocal Cnsis Staff was established ('PrijedoStaff)which implemented a number of
decisionsmade by theRK Cnsis Staff [in Banja Luk[ICTFY,Trial Chamber,
Opinion and Judgrnent,Prosecutor v. Dusko Tadii, CaseNo. IT-94-1-T, 7 May
1997,p. 52, para. 1391.
The Trial Chamberalso elaborated on some of thetasks of the Prijedor Crisis Staff.
Itfound the following:
"In addition to restrictions on the lives of non-Serbs (...) control was immediately taken of town
local media sources: Radio Prijedor and the newspaper Kozarski Vjesnik,and thereafter their
principal function became the disseminationof propaganda. It also controlled mobilization and by
mid-May 1992nearlyal1Serbs had been mobilized either into the standing army, the army reserves
or the police force. Calls were also made at that time for the surrender of weapons which, although
addressed to the population at large, were only enforced in respect to Muslims and Croats, most of
whom complied out of fear of punishment. At the same time the mobilization of Serbs allowed for
thedistribution of weapons to the Serb popul[ibidem].
126. As the Crisis Staffs were in essencean extensionof the military, theJNA alwayshad
at least one of itsofficersrepresentedin them. In the TadiCJudgement theICTFY,
for example,described the compositionof the Crisis Staff in Banja Luka:
"Members of the Cnsis Staffs included SDS leaders, the JNACommander for the area, Serb police
officials, and the Serb TO Commander. For example, Lieutenant-General Momir TaliC,Commander
of the 5th Corps (which [after 19 May 19921became the 1st Krajina Corps), was a member of the
Crisis Staff in Banja Luka ('ARK Cnsis Staff'), thus demonstratingthe relationship between the
political and military branches of the-Serb-mn government.[ibidem, p.37, para.
1031.
The Banja Luka Crisis Staff was establishedin April or May 1992.In early May, the
Staff took over al1powers of the govemmentand other agenciesin Banja Luka.
127. The Crisis Staff in Prijedor,which had to report to the above mention Staff inBanja
Luka, had three rnilitaryamong its members:ColonelVladimir ArsiC,Major
RadrniloZeljaja and Major SlobodanKuruzoviC.The SDS in Prijedor alsohad its
representatives in the Staff [United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2 (Vol. 1),28 Dec. 1994,Annex V, "The
Prijedor Report",p. 36, para. 1701.
128. On 13March 1997, the Prosecutorat the ICTFY endictedthe two most outspoken
membersof the PrijedorCrisis Staff, Simo DrljaCaand Milan KovaEeviC[ICTFY,
Indictment, TheProsecutor v. SimoDrljaZa & Milan Kovatevil.,Case No. IT-97-24-
1, 13March 19971.Both were chargedwith genocide.ReplyofBosniaandHerzegovina
Prison camps
129. The Crisis Staffs were the most powerful political organ in a town or area. This
meant that the Staffs were also responsiblefor the creation ofthe camps. Inthe
TadiCcase, the ICTFY in The Hague found that thenotonous Omarska,Keraterm
and Tmopolje camps [see Reply, Chapter5, Section51"were established and nui
either atthe direction of, or in cooperationwith, the Crisis Staffs, the anned forces
and the police" [ICTFY,Trial Chamber,Opinion andJudgment,Prosecutor v. Dusko
Tadié,CaseNo. IT-94-1-T, 7 May 1997,p. 58, para. 1541.
130. Through the Crisis Staffs the JNA thus helped establishing andrunning a great
number of prison and concentrationcamps in the RepublikaSrpska.
131. Annex VI11to the Final Report publishedby the United Nations Commissionof
Expertswas wholly devoted to prison camps. The camps playeda cardinalrole in
the Serbpolicy of ethnic cleansing.This role was described atlength in a previous
Sectionof this Reply [Reply, Chapter 5, Section 51.As was shown in that Section,
the camps werepart of an overall plan devised priorto the conflict [see also: United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2 (Vol. IV), 28 Dec. 1994,Annex VIII, "PrisonCamps",p. 12,
para. 311.This plan envisaged thecreation of an ethnicallypure Greater Serbia. The
Applicant willnot discussthis plan again here. Al1attention willfocus on the
contributionthe JNA made to these camps and thus to the implementationof the
policy of ethnic purification.
132. In their report, the Commissionof Experts counted 333 camps onthe territory under
the controlof the Bosnian Serbs [ibidem, p. 11,para. 271.For 114camps the
Commission ofExperts succeededin findingthe date of establishment[see ibidem,
pp. 33-349, paras. 251-2912]. Outof these 114camps,no less than50 were
establishedin the period preceding the officia1"withdrawal"of the JNA. These 50
camps will be listed below, with their first hown date of operation:
- ManjaPaB, anjaLukaarea,northBosnia,summerlautumn1991;
- Rrpaf,Bihai area,noxthwestBosnia,May 1992;
- Militarybarracks,Bijeljina,northeastBo8nApril1992;
- PetkoviEi,Bijeljinaarea, 13 May1992;
- SpanacJNABarracks,Bijeljina,5 May 1992;
- civilianjails, BileCaarea,southHerzegovina,November 1991;
- Red CrossCommunityCentre,BosanskaGradiika,northBosnia,April1992;
- localschool,BosanskaGradiSka, pril1992;
- Jasenica,BosanskaKrupa,northwestBosnia,May1992; Chapter 8 - Section 3
Yugoslavmilitas, involvementin Bosnia and Herzegovina before 19May 1992
- Stadium Mlakve, BosanskiNovi, northwest Bosnia, May 1992;
- "Vuk Stefanovic KaradZiC"Wmary School, Bratunac, east Bosnia, 9 May 1992;
- JNA casern, BrEko,north Bosnia, April 1992;
-police station, BrEko7 May 1992;
- abattoir, BrEko,early May 1992;
- Luka, Brëko, 8 May 1992;
- Laser Factory, BrEko,early May 1992;
- the village of Brezovo Polje, BrEkoarea, 15 April 1992;
- shipping container, Cajni~e,east Bosnia, 5 May 1992;
- Derventa camp, Derventa, north Bosnia, April 1992;
- Red Cross refugee camp, Doboj, north Bosnia, Apnl 1992;
- KP Dom, Foëa, east Bosnia, April 1992;
- elementary school, Donje ZepCe,FoEaarea, 16 Apnl 1992;
- high school, FoCa, 15Apnl 1992;
- TPP Hotel, Gacko, Herzegovina, April 1992;
- sports hall, KljuE,WestBosnia, May 1992;
- Tmopolje, Wjedor, WestBosnia, ApnlIMay 1992;
- village of Pmjavor, north Bosnia, May 1992;
- Veljko Vlahovc High School,Rogatica area, east Bosnia, May 1992;
- Digitron Firm, Sarajevo, Apnl 1992;
- IlijaS,Sarajevo area, Apnl 1992;
- Gomja Bioca School, Ilijas, Sarajevo area, Apnl 1992;
- Lesina Fumiture store, Sarajevo area, April 1992;
- Trapare, Sarajevo area, 9 May 1992;
- Skender Vakuf Post Office, Skender Vakuf, central Bosnia, mid May 1992;
- pnmary school, "Slavisa Vajner Ciëa", Sokolac, east Bosnia, May 1992;
- unknown facility outside TesliC,north Bosnia, March 1992;
- Drvar prison, Titov bar, WestBosnia, May 1992;
- Banja Suse, ViSegrad,east Bosnia, Apnl 1992;
- police station, ViSegrad,April 1992;
- Prelovo, ViSegradarea, April 1992;
- Uramnica or Uzemnica Barracks, Visegrad area, April 1992;
- Vilina Vlas Hotel, ViSegradarea, April 1992;
- Zamjenica Ganison, 'ViSegradarea, Apnl 1992;
- SuSicaCamp, Vlasenica, east Bosnia, early May 1992;
- police station, Vlasenica, 15 May 1992;
- stadium, Zvomik, east Bosnia, 19 May 1992;
- kindergarten, Zvomik, 14 May 1992;
- Hospital "5th of July", Zvomik, April 1992;
- "Novi Izvor", Zvomik area, April 1992;
- school in SalihoviCi,Zvomik area, May 1992.Replyof Bosnia andHenegovina
With the exceptionof Manjaëa in Banja Luka and the civilianjails in BileCa,the
foregoing camps were establishedafter the fighting erupted in late March 1992.Al1
of them were situated on the territory under the control of the JNA. Accordingto the
Commissionof Experts, the existenceof 32 of these detention facilitieswas
corroboratedby at leastone neutral source.
133. In some cases the Commission ofExperts succeededin establishingwho was
responsible for the runningof the various camps [seeibidem,pp. 33-349, paras. 251-
29121.The JNA was directly involved in the following camps:
- Orasac primary school,Bihat area, WestBosnia;
- BatkoviC,Bijeljina,east Bosnia;
- Spanac JNABarracks,Bijeljina;
- Red Cross CommunityCentre, BosanskaGradiSka,north Bosnia;
- Territorial Defence (TO) facility,BosanskiSamac,north Bosnia;
- FarmersCooperative Storeroom, BosanskiSamac;
- INA casern, BrEko,north Bosnia;
- Luka , rc?ro;
- threemosques,BrEko;
- the village of Brezovo Polje, BrCkoarea;
- Doboj SchoolGymnasium,Doboj,north Bosnia;
- Krings factory, SanskiMost,WestBosnia;
- Gomja Bioca School,nijas, Sarajevo area; Chapter8 -Section 3
Yugoslavmilitary involvementin Bosnia and Herzegovina before19 May 1992
-Trapare,Sarajevo;
-PostOffice, Skender Vakuf,entralBosnia;
-Prelovo,ViSegrad area;
-Vilina VlasHotel,ViSegrad area;
-SuSicacamp,Vlasenica,east Bosnia;
-JNA Barracksin Karakaj,Zvomik, eastBosnia.
The above listed 19 camps were al1established and at leastfor some time run by the
JNA. With the exception ofOrasacprimary school, Farmers Cooperative Storeroom,
Gornja Bioca School and Prelovo, the existence of al1listed prison camps was
corroborated by one or more independentsources.
134. The above mentioned listof campsfor which the JNA was at least in part
responsible does not include the detentionfacilities controlledthrough the various
Crisis Staffs. The influenceof the JNA in the 19 listed detention centreswas much
more direct, as the Applicantwill demonstratein the followingparagraphs.
135. Some of the camps were establishedby the JNA, like for exarnplein ViSegrad.
There, the Vilina Vlas Hotel was as a camp with the coming ofthe Uiice Corps
fiom Serbia in April 1992.It was used as a camp "brothel",or more accurately
described, as a rape and deathcamp for women [ibidem,p. 325, para. 27001.The
Uuce Corps also created the Prelovo detentionfacility in ViSegrad,where prisoners
were shot and burned [ibidem,p. 324, para.26941.
136. Other camps wererun by the JNA. TheBatkoviCcamp in Bijeljina, for example, was
directed by Colonel Petar DmitroviC[ibidem,p. 62, para. 4651.BatkoviCwas onlyReply of Bosnia and Herzegovina
used to detain civilians, mostly male. Many diedbecause of the level of mistreatment
[Reply, Chapter5, Section 51.The Luka camp in BrEko,which was establishedin
early May 1992, was run by Major Petar Djokik [United Nations,Final Report of the
UnitedNations Commissionof Experts, Sl19941674lAdd.2 (Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps",p. 93, para. 7511.The populationof the camp ranged
from 1,000 to 5,000Muslim and Croat inmates.Many died during their stay in
Luka, which was one of the most notoriouscampsin Bosnia and Herzegovina [see
also Reply, Chapter5, Section 51.The three mosquesin BrEko,which were usedto
detain between 100and 150 male prisoners,were on at least one occasion visitedby
JNA generals who surveyedthe situationin the camp [United Nations,Final Report
of the UnitedNations Commissionof Experts, Sl19941674lAdd.2 (Vol. IV), 28 Dec.
1994,Annex VIII, "PrisonCamps",p. 103,para. 8271.The JNA was also in charge
of the village of Brezovo Polje,in the BrEkoarea, which had been turned into an
enormousconcentrationcamp immediatelyafter its occupationby Serb forces on 15
April 1992 [ibidem,p. 104, paras. 835-8411.The campheld between1,000and
5,000 Muslim prisoners, including womenand children. The SuSicacamp in
Vlasenicawas commandedby Major Mila JaEimoviC.SuSicawas used to detain men,
women and children. At least 3,000 Muslimsfiom Vlasenicawere executed in this
camp [ibidem,pp. 332-336, paras.2767-28001.
137. In some cases,existing JNA facilitieswere used to detain prisoners. TheSpanacJNA
barracks in Bijeljina were used as a detention facilityfor non-Serbprisoners from
Bosanski Samac. The barracks at the same time supportedtwo JNA units. The camp
in thebarracks was guardedby JNA military police [ibidem,p. 66, paras. 499-5041.
The JNA military barracks in BrEkohousedtwo unidentifiedJNA units, while it was
being used to collect and imprisonthe non-Serb populationof BrCkoafter the Serb
take-over of the city. The camp was comrnandedby a JNA major and guardedby
JNA military police. The Muslirnand Croat prisoners were regularly beaten [ibidem,
p. 90-91, paras. 725-7331.In Karakaj,near Zvornik,the local barrackswere used
exclusively by regular JNA units as a detentionfacility [ibidem,p. 345, para.761.
The ManjaEacamp near Banja Luka was also a JNA facility when establishedin
1991to detain Croatianprisoners capturedduringthe fighting in Croatia [see Reply,
Chapter 5, Section 51.
138. The JNA was also responsiblefor the mistreatmentof detainees.In the Territorial
Defence facility in Bosanski Sarnac,JNA SpecialForces fiom Serbia daily
maltreatedthe approximately800 civilianprisonersof Croat, Muslim andAlbanian
origin [ibidem,pp. 83-84, paras. 660-6681.In the Farmers CooperativeStoreroom, Chapter-Section4
Transformation ofAJAeinto theBosnianSerb Army
also in the town of Bosanski Samac, Special Forcesfiom Serbia were responsiblefor
the killing of at leastifteen non-Serb detainees [ibidem,p. 84, paras. 669-6721.In
the Luka detention facility in Brëko, JNASpecial Forces committeddaily atrocities,
causing the death of many inmates [ibidem, p.96, para, 7791.JNAsoldiers regularly
visited the School Gymnasiumnear Doboj, which was a notoriousrape camp where
between 600 and 2,000 women and girls were raped and often killed [ibidem,pp.
121-122,paras. 980-9921. JNAtroopswere also responsible for the tortureand
killing of Muslim civiliansin Gomja BioEaSchool in IlijaS,near Sarajevo. There,
men were killed andyoung women were raped [ibidem,p. 291, para. 24461.
19 May 1992
139. This Section fully concentratedon the involvementof the JNAin the events that
took place in the period preceding its officia1"retreat"on 19 May 1992. In thefirst
months of the hostilities in Bosnia and Herzegovina,the JNAplayed a key role at al1
crucial stagesof the conflict.
140. The above mentioned prison or concentration campsepitomisethe role played by the
JNAand the Belgrade authoritiesin the genocidalcampaignin Bosnia and
Herzegovina. When the JNAofficially "withdrew"fiom Bosniantemtory, the
genocidalmil1was turning at full speed.By 19May 1992, the JNAhad captured
almost al1temtory of the projected GreaterSerbia the Belgrade authoritieshad
intended to occupy. Inthese Serb temtories a great number of non-Serbs had already
been killed or terrorised into fleeing.
141. By May 1992the authoritiesin Belgradehad in fact no reason to Mer prolong the
official stay of the JNAin Bosnia and Herzegovina.The JNAhad done itsjob and
could safelytrust the Bosnian Serbs to cany out the finishingtouches. The Yugoslav
rnilitaryhowever continuedto influence andbe involved in the armedconflict in
Bosnia andHerzegovina, albeitin anoîhershape and through other means. The
following Sections of this Chapter willillustratedhow this was done.
4. Transformationof the JNA into theBosnian SerbArmy
Counter-Mernorial
142. In this Section of the Reply the Applicantwill showthat the alleged "withdrawal"of
theJNA from the territory of Bosnia and Herzegovinaon 19 May 1992was in factReply of Bosniaand Herzegovina
no withdrawal at all. On that date, the Yugoslavauthoritiesannouncedthat al1JNA
soldiersof Serbian or Montenegrin backgroundhad left Bosnia and Herzegovina.As
will be shown in the next Sectionof this Chapter,that announcement proved tobe
untrue. The so-called withdrawalon 19 May 1992 wasin any case purelycosmetic,
as the majority of the JNA rnilitarystationedin Bosniaand Herzegovinawere
natives by the time the order was issued:large numbersof JNA soldiersborn in
Bosnia and Herzegovina weretransferred to its territory in theperiod priorto the
"withdrawal"so that after 19May 1992, theywould remain there to formthe new
Bosnian Serb Army (VRS). This army, numberingsome 80,000 to 90,000men,
inherited al1the arms and munition they had held as the JNA before 19 May
1992.
143. In the Memorial, Bosnia and Herzegovina discussedthe transformationof the JNA
into the Bosnian Serb Army at length [Memorial, Section2.3.6, pp. 77-81].In spite
of this, the Respondent apparently choseto largely ignore the topicin its Counter-
Memorial. It generallyfailed to respond tothe serious allegations formulatedin the
Memorial.The Counter-Memorialreads as follows:
"3.1.5.5. Inparas2.3.6.4and2.3.6.of the Memorial(p.79),theApplicants [statedt]hatpart
of the weaponrybelongingto the the[sic] JNAremainedin the of theArmyof theBosnian
Serbsin Bosnia.The Applicantsays:'Thenewecruitsof the SerbianAmy intheRepublicof
BosniaandHerzegovinawere nottransferredempty-handed'Memorial,p. 79). The Applicant
confirmsthe existenceof aSerbianarmyin theRepublicof BosniaandHerzegoviIt is true that
part of the weaponryremained. Thisdid not happen on the basis of a decision of the the [sic] JNA
to leave part of the weapons behind.Thenewly-formedArmy of the BosnianSerbssimply did not
allowal1the weaponsto be withdrawn.Thewithdrawalof the weaponry was alsopreventedfrom
being carried out by the continued attacksof Muslimand Croatforces on barracksand on columns
which were withdrawing[Conter-Mernorial, p. 260, para. 3.1.5.5, emphasis
added].
The Respondent thus adrnittedthat the equipmentof the JNA remainedin Bosnia
and Herzegovina.In the Respondent's view, however,it was preventedfiom pulling
out by the "newly-formedArmy of the Bosnian Serbs",who "simply did notallow
al1the weapons to be withdrawn".This assertionis highly implausible.The
Respondentin fact claimsthat the Bosnian Serbs embezzled al1JNA arms and
ammunitionin Bosnia and Herzegovina.If this were true, the Respondentshould at
least have produced evidenceshowingthat at any one point it objectedto this
behaviour. The Respondent, however, was notable to submitany evidenceat dl,
sincethis evidencesimply does not exist. The Bosnian Serbs did not haveto prevent
the JNA fiom withdrawinganything, as the newly formed Bosnian Serb Army was
simply given al1the equipmentit desired. The Applicant will prove thatthis was not Chapter- Section 4
Transformationof thJNA into the BosnianSerbArmy
only decided, but also organised and encouraged, by the highest authorities in
Belgrade.
144. The Respondent also stated that it could not pull out its weaponry fiom the territory
of Bosnia and Herzegovinaas "Muslim and Croat forces" continued to attack
"barracks" and "colurnnswhich were withdrawing". This statement offers no
explanation at al1for the fact that almost al1of the JNAequipment on Bosnian
territory was at the disposa1of the Bosnian Serb Army when it was created on 19
May 1992. The statement also fails to explain why the forces under the control of
the Bosnian government faced an enormous shortage of weapons and ammunition
during the entire conflict. When the fighting broke out,the Bosnian "army"
nurnbered no more than 3,500 armed men altogether Poe1 Malcolm, Bosnia: A
Short History, London 1996, p. 240, Annex 161.In September of 1992, it was
estimated that the Bosnian forces possessed not more than two tanks and two
armoured personnel carriers [ibidem,p. 2431,while the Serb Army in Bosnia
inherited some 300 tanks, 800 armoured personnelcarriers and over 800 pieces of
artillery [ICTFY, Trial Charnber, Opinion and Judgment, Prosecutor v. Duiko TadiC,
Case No. IT-94-1-T, 7 May 1997, p. 42, para. 114, emphasis added].
TadiCJudgment
145. The foregoing extract from the Respondent's Counter-Memorialis in flat
contradiction with the findings of the International Criminal Tribunal for the former
Yugoslavia (ICTFY) in The Hague. The findings of the ICTFY in the TadiC
Judgment are, in fact, in perfect harmony with the Applicant's conclusions as
presented in the Memorial:
"113. With the secession of the non-Serb Repubiics and the recognition by Serbiaand Montenegro
that the Socialist Federal Republic of Yugoslaviano longer existed, the JNA could no longer
fùnctionas a national army. At a meetingof Ministriesfor Foreign Affairs of the European
Community on 6 October 1991 alarm had been expressedat the reports thJNAthad 'shown
itself to be no longer atral and disciplined institution'(...). Yet it remained [a] substantial force
in Bosnia and Herzegovina,espite the secessionof that Republic. This posed a problem: how was
the JNA to be converted into anarmy of what remained of Yugoslavia, narnely Serbia and
Montenegro, yet continue totain in Serb hands controlof substantial portionsof Bosnia and
Herzegovina whileappearing to comply with international demandsthat the JNA quit Bosnia and
Herzegovina. On 15 May 1992the Security Council, by resolution 752, demanded that al1
interference fiom outside Bosnia and Herzegovinaby units of the JNA cease immediatelyand that
those units either be withdrawn, be subjectto the authority of the Governmentof the Republic of
Bosnia and Herzegovina, or be disbanded and disarmed.Reply of Bosnia and Herzegovina
114. The solution asfur as Serbia was concerned wasfound by transferring to Bosnia and
Herzegovina al1Bosnian Serb soldiers servingJNA units elsewhere while sending al1non-
Bosnian soldiers out of Bosnia and Herzegovina. Thisensured seerningcornpliancewith
internationalemandr while effectively retaining large ethnic Serb armedforces in Bosnia and
Herzegovina. What was to become the army of Republika Srpska within Bosnia and Herzegovina
and to be known as the VRS would be officeredby former JNAofficers. This new army thus
inherited both officers and menfiom tJNA and also substantial arrnsand equipment, including
over 300 tanks, 800rrnouredpersonnel carriersand over 800 pieces of heavy artillery. The
rernainder of theformerNA was to become the army of the new Federal Republic of Yugoslavia
(Serbia and Montenegro) and was to be known as theJ.
115. Theforma1 withdrawal of thJNA frorn Bosnia and Herzegovina took place on 19 May
1992; the VRS was in effect aproduct of the dissolution of tJNAoand the withdrawal of its
non-Bosnian elements into Serbia. However, most, if not all,of the commandingofficers of units
of the oldJNA who found themselves stationed with their unitsin Bosnia and Herzegovina on18
May 1992, nearly al1Serbs, remainedin command ofthose unitsthroughout 1992 and 1993 and
did not return to Serbia. This wasso whether or not they were in fact in origin Bosnian Serbs. This
applied also to most otherficers and non-commissionedofficers. Although then formally
members of the VRS ratherthan of the former JNA, they continuedto receive their salaries from
the Govemment of the Federal Republicof Yugoslavia (Serbiaand Montenegro) and the pensions
of those who in due course retired were paid by that Govemment.At a briefing of officers
concerned with logistics, GeneralDjordje DjukiC,then of the VRS but who had,until 18 May
1992, been Chief of Staff of the Technical Administrationof the JNA in Belgrade, announced that
al1the active duty members of the VRS would continueto be paid by the federal governmentin
Belgrade, which would continue to finance theVRS, as it had the, with the sarne numerical
strength ofofficers as were registered on 19 May 1992. The weapons and equiprnentwith which
the new VRS was armed were those that the units had had whenpart of JNA. After 18May
1992 supplies for the armed forces in Bosnia and Herzegovina continuedto come from Serbia.
116. General KadijeviC[Federal Defense Minister 1988-19921,writing of the role JNAthin
Bosnia and Herzegovina,recounts how 'theunits and headquarters of JNA forrned the
backbone of the army of the Serb Republic (Republicof Srpska)npletewith weaponry and
equipment' and ad& that Prst theJNA and later the arrnyof the Republic of Srpska, which the
JNA put on itsfeet, helped to liberate Serb territory,protect the Serb nation and create the
favourablernilitarypreconditions for achieving the interests and rights of the Serb nation in Bosnia
and Herzegovina by political rneans(...).'.
117. It is noteworthy thatin his report of 3 December 1992the Secretary-General of the United
Nations referred to what had occurred regardingthe JNA ands purported withdrawal from Bosnia
and Herzegovina and concluded that:Though JNA has withdrawncompletelyfiom Bosnia and
Herzegovina,former members of Bosnian Serb origin have beenefi behind with their equiprnent
and constitute the Arrny of the 'SerbRepu'."[ICTFY,Trial Chamber,Opinionand
Judgement,Prosecutor v. DuSkoTadii, Case No. IT-94-1-T,7 May 1997,pp.
41-43, paras. 1 13-117,emphasisadded].
The "withdrawal" of theJNAwas only intendedto placatethe international
communitywhich by May1992 demanded thatthe authorities inBelgrade retreatal1
of their forces fromBosnia and Herzegovina.By retreatingal1but the BosnianSerb
JNAtroops (as well as a nurnberof officersof Yugoslavorigin [see belowChapter
8, Section 8]), the Respondent "ensured seeming compliance with international
demands while effectively retaininglarge ethnicSerb armed forces in Bosniaand Chapter- Sectio4
Transformatioof theJlVAintotheBosnianSerbAmy
Herzegovina"[Ibid., p. 42, para. 1141.The "withdrawal"was thus a sham airnedat
maintainingthe status quo.
146. The findings of the ICTFY were confirrnedby numerous other sources. The
Applicantwill discussthese sourcesbelow.
Planning the masquerade
147. The alleged"withdrawal"of the JNA on 19May 1992and its transformationinto the
armyof the Bosnian Serbs was not an improvisedoperation.It was a well planned
and thoroughly executedmilitary campaignof the Serb authorities in Belgrade.
148. The eventualtransformationof the JNA startedwith the "Serbianisation"of the
army, approxirnatelyone year pnor to the outbreak of the conflict in Bosnia and
Herzegovina.This "Serbianisation"of the JNA was discussedin the previous Section
of this Chapter [see Reply, Chapter8, Section 31.Here, the Applicantwould liketo
stress thaths process was initiated as early as July 1991,when the JNA in Bosnia
and Herzegovina "monopolised" theconscriptionof new recruits.
"106.In July1991,on instructions from headquarters in Belgrade, the JNAseized fiom the
Republic's Secretariat for Defence in Bosnia and Herzegovina and from municipalities al1the
documentationrelating to conscriptionincluding registers of conscripts. In consequence,
thereafter the conscription process wasively in the hands JNAthand no longer in those
of the Republic's Ministry of Defencdone,itwasensuredthat onlyethnicSerbswere
recruitedinto thearmedforce[ICTFY,Trial Chamber, Opinion and Judgment,
Prosecutor v. Du& Tadii, Case No. IT-94-1-T, 7 May 1997,p. 39, para. 106,
emphasisadded] .
The confiscationof al1documents necessary tocal1up new recruits illustratesthe
determinationof Belgrade to gradually"Serbianise"the JNA.
149. Preernptingthe internationalrecognition ofBosnia and Herzegovinaas an
independentstate, the authoritiesin Belgradethenstarted redeploying al1Bosnian
Serb conscriptsto Bosnian territoryIn December 1991, Serb soldiers of Bosnian
background weresent en masse to Bosnia and Herzegovina, where they were
attachedto existingJNA units. This reshuffling of JNA units was also describedby
Warren Zimmermann,the last UnitedStates ambassadorto the former Yugoslavia,in
his highly informativebook on the confiict, Origins of a Catastrophe:Reply of Bosnia and Herzegovina
"1t becarne clear only later that, despite its professionsof innocence, the JNA was engaged in a
secret strategy that depended criticallyon force. We knew that in addition to its direct support for
the Bosnian Serbssince the spring of 1991,the INA leaders had infiltratedfiesh troops into Bosnia
fiom Slovenia and Croatia, as thewars ine republics ended. Whatwe didn 'tknow was that in
early 1992 they began to transferout of Bosniaal1soldiers who were not Bosnian Serbsand bring
in BosnianSerb troopsfrom other parts of Yugoslavia.The result, by the time fighting began in
Bosnia in the spring of 1992,was a formidable Bosnian SerbAmy, soon to grow to a strength of
eighty to ninety thousand.cynical masterstroke,thejoint conceptionof Milosevic and the JNA,
gave the Bosnian Serbsthe immensemilitary advantageover the Croatsand Muslimsthat
sustained their victories and their atrocitiesfor over three
[WarrenZimmermann, Originsof a Catastrophe:YugoslaviaandIts
Destroyers -America S LastAmbassadorTells WhatHappened andWhy,
London, New York 1996, pp. 185-186, emphasis added, Annex1231.
The redeployment of Bosnian Serb conscripts to theterritory of Bosnia and
Herzegovinawas in complete contradiction tothe traditionswithin the JNA, which
prescribed that conscriptsbe attached to distant army units. Thistraditional policy
was also reported by the Commission ofExperts:
"~he JNA was intended to provide a uniQing force in peace and in war. Thus, the Ministry of
Defence sent conscriptsout of their home districts for service to avoid ethnic dominance in regular
army units."
[United Nations,FinalReport of the Commissionof Experts,Sl19941674lAdd.2
(Vol.I), 28 Dec. 1994,Annex III, "The Military Structure, Strategyand Tactics
of the Warring Factions", p.16,para. 711.
150. The redeployment of the Bosnian Serb conscripts,in preparationfor the expected
recognition of Bosnia and Herzegovinaas an independent country,was orchestrated
inadvance at the highest levelin Belgrade, thatis by Serbian PresidentSlobodan
MiloSeviChimself. This was foundby ArnbassadorWarren Zimmermann and
confirmed by Bonsav JoviCin 1995, whenthe Belgrade-basedPolitika publishing
Companypublished his memoirs.Thesememoirs coverthe period from 15May 1989
to 8 July 1992.At the time, JoviCwas Serbia's representativeon the Federal
Presidency. In his memoirs, BorisavJoviCreports on a meetinghe had with
Slobodan MiloSeviCon 5 December 1991.At this meeting, the mentioned
redeploymentof Bosnian Serb troops was designed:
"5 Decernber 1991
Discussion with SlobodanMiloSeviC.
We assessthe situation, in view of rnost likely imminent recognitionof Croatia and Sloveniaby
the European Community and already existingcal1upon al1the republics to become independent
fiom Yugoslavia.ur assessmentis that therecognitionof Bosnia and Herzegovinaand
Macedonia is soon tofollow, so we discussourposition undersuch circumstances. Chapter - Section4
Transformationof the JNA into the Bosnian Serb Army
In respect of Macedonia, thernatter is simple. There is no threat of inter-ethnic conflicts there.
Serbs are not jeopardised. Should Macedonia wishtoecede, the terms for the withdrawal of the
army and divisionof rnilitary prope* have to be negotiated.
But, in respect of Bosnia and Herzegovina, theter is very dificult. Inter-ethnic conflicts have
already burstout there. Muslirns and Croatst the JNA and established their paramilitary units.
Practically, only Serbsd Montenegrins stayedin the JNA, but the ones coming from al1Serb
lands.Once Bosnia and Herzegovina is recognised, JNAwill be proclaimed aforeign army and its
withdrawal will be required, which unavoidable. In view of such situation, the Serb population
inB-H have not founded their paramilitary formationsand they will remain unprotected and
jeopardised.
Sloba [Miloievit] thinks that we should timelypull backfrom the JNAin BH al1nationals of
Serbia and Montenegro, and replace them by theJNAo#cet-s who are nationals of Bosnia and
Herzegovina as to avoid, ut the moment of ifs internationalrecognition, an overall rnilitarychaos
by having the army movefrom one part of the country to another. This will also enable the Serb
leadership in Bosnia and Herzegovina to take over the command over the Serb part of the JNA, as
has already beendone by the Muslirnsand Croats.
We immediately calledVeIjkoKadgevit [Federal Defence Minister] tojoin our discussion. Sloba
explains it to him in a very simpl$ed way that he should execute the redeployment of the army: al1
who comefrom B-H to Bosnia and Herzegovina and vice-versa, that we need itfor strategic and
political reasons.
Veljko says that it isnot in agreement with the policy and practiceof the JNA and that it will be
hardly acceptable by the rnilitary leadership,but that he will see to it and do whatever possible.''
[Borisav JoviC,Final Days of SFRY,Belgrade 1995,p. 420, emphasis added,
Annex] .
The extract quoted above clearly illustrates that on 5 December 1991,the
Respondent was already expecting a speedy recognition of Bosnia and Herzegovina
by the international cornrnunity.The recognition of Bosnia and Herzegovina, four
months after the discussion between MiloSeviCand Jovi6 took place, can therefore
not have been a surprise to the Respondent. Less than three weeks after the
discussion with MiloSeviCtook place, Veljko Kadijevie reported that the projected
redeployment had been concluded:
"25 December 1991
Discussion with Veljko and Slobodan.Veljko informs us that 90% of the arhas been dislocated
in accordance with the discussion on 05.12 thisyear. Now, there is some 10-15% of the troops in
Bosnia and Herzegovina who do not come f om that Republic.
In spite of opposition and dramatisation, dislocationwas carried out timely and quietly."
[Ibid., emphasis added, p. 42 11.
By Christmas 1991, the make-up of the JNAin Bosnia and Herzegovina had
drastically changed. Less than three weeks after MiloSeviC'sorder was given, theReply of Bosnia and Herzegovina
massive relocation of troops had beencompleted.The JNA was ready for the
transformation of the JNA andits "withdrawal"fiom Bosnia and Herzegovina.
The2nd Military District
In the beginning of 1992,the Belgrade authorities redesignedthe various Military
Districts of the JNA. As a consequenceof this operation, a new 2nd Military District
was created. The headquartersof the 2nd Military District were established in
Sarajevo. The region covered by the 2nd Military District coincided withthe borders
of Bosnia and Herzegovina,which waspreviously dividedbetween the 1st and the
4th Military Districts.The new 2nd Military Districtnow covered a discrete region;
control over the District couldbe transferred fiom the JNA to the Bosnian Serb
Army without a great deal of complication.
Six army corpses were put under the authorityof this newly formed Military
District: the4th, 5th, 9th, 1Oth,13thand 17th Corps.The 10thCorps was
responsible for the northwestern cornerof Bosnia and Herzegovina andhad units
based in Bihaé,Sanski Most, Bosanska Krupa and Prijedor. In Prijedor there were
also units of the 5th Corps, which controlledthe centre-north of Bosnia. In addition
to Prijedor, the 5th Corps also had units in Banja Luka. The 17th Corps in the
northeastern cornerof Bosnia controlledthe JNA units in Derventa, BrCko,Doboj,
Tuzla and Bijeljina. The centre-westof Bosnia and Herzegovina fell under the
authority of the 9th Corps, with unitsin KljuC,Bosanski Petrovac,MrkonjikGrad
and Glarnoé.The 4th Corps controlledthe units in central Bosnia:Travnik, Zenica,
Sarajevo and Han Pijesak. Finally, thesouth of Bosnia and Herzegovina, roughlythe
area of Herzegovina, fell under the authorityof the 13th Corps. Chapter- Section 4
Transformationof the JNA into the Bosnian SerbArmy
153. The reorganisation ofthe JNA and the creation of the 2nd Military District in
January 1992 prepared the grounds for a smooth transformation after the recognition
of Bosnia and Herzegovina's independence. Prior to the reorganisation,the borders
of the various Yugoslav Republics andthe areas under the control of the three
former Military Districtsdid not match. Until December 1991, Bosnia and
Herzegovina fell mainly under the responsibilityof the 1stMilitary District with its
seat in Belgrade, as well as the 4th Military District, headquarteredin Podgorica
[see: United Nations, FinalReport of the Commissionof Experts,S/1994/674/Add.2
(Vol.I), 28 Dec. 1994,Annex III, "The Military Structure, Strategy and Tactics of
the Warring Factions",pp. 17-18, paras. 76-83]. Withoutthe reorganisation of
January 1992,the creationof the new BosnianSerb Army would have constituteda
complicated logistical operation.The creation of the 2nd Military District and, more
importantly, the newheadquartersin Sarajevo,was a necessaryprecondition for the
eventual reorganisationof the JNA into two new amies: the Bosnian Serb Army
(VRS), replacing the 2nd Military District, andthe new YugoslavArmy (VJ), taking
control of the remaining Military Districtsin Serbia and Montenegro.
Serb volunteers attached totheJNAReply of Bosnia and Herzegovina
154. In the first months of 1992,the ranks of the "Serbianised"and reorganised JNA were
gradually filled up with Serb volunteers,to make up for the declining nurnber of
conscripts. As was explained earlierin this Chapter, these volunteers al1fell within
the existing comrnand structure of the JNA.
155. The recruitrnent of Serb volunteers intothe JNA was, amongothers, explained by
General Djordje Djukié.During the armed conflict,DjukiCwas the Assistant
Commander for Logistics in the Bosnian Serb Army. He held the rank of General in
the Yugoslav Army (VJ), while simultaneouslybeing postedat the Bosnian Serb
Army headquarters in Han Pijesak, east Bosnia. GeneralDjukiC.was arrested by the
Bosnian police on 30 January 1996,afier having taken a wrong turn on his way to
the Sarajevo suburb of Ilidza. During his detentionin Sarajevo,on 4 February 1996,
he gave the following statement to the Bosnian authorities:
"~ue to the mentioned events in Bosnia and Herzegovina [in the beginningof 19921,al1members,
except Serbs,eft Yugoslav NationalArmy (here, 1do not refer to al1officers), and due to the
series of the happenings in Croatia, the decisionwas made to dislocate units andmaterial reserves.
Dislocation wasdone towards Yugoslavia andterritory of Bosnia and Herzegovina on which the
Serbs were majority. Regarding that,YNA[NA] did not count on the conflicts,but it was
assumed that in case of the total withdrawal of theYNA, a part of the Serbian population would
move towards Yugoslavia what was estimatedas undesirable. tharperiod, it was also decided to
fiIl YNAunits onthe territory of BiH [Bosnia and Herzegovina] with voluntevolunteers'
groups which wouldconsist [ofl Serbs, what, according tomy opinion,was bad decision.The goal
was to elevate a part of the units on the leveloperational readiness, especially havingin
mind that they could not be filledduring the regular mobilizationsin Serbia, due to poor response
and attainment of the opposition parties.ecision was made ut the beginningof 1992. On the
base of this decision, secondlevel of the YNA andD [Federal Ministry of National Defence]
did the dislocation oftheterial means. The Act of thatkind was signed by Sljivic Vladan. The
members of histeam, including me, were [the] immediate [implementors]of the Act and we
realized that practically by our documents.The executors were the units and Commandsof the
YNA in those areas of Bosnia and Herzegovina where the conditions for supplyiweapons to
the individuals and organized groups of Serbs were created. Mentioningareas, 1refer to the
areas where Serbian population wasa majority[Statementof General Djordje DjukiC,4
February 1996, pp. 4-5, emphasis added,Annex 1401.
The ranks of the JNA were filled up with local Serbsas of January 1992, whenthe
decision was taken by the Belgrade authoritiesto do so. These Serb volunteers or
paramilitaries, which later comrnittedmany atrocities whenthe fighting broke out in
April 1992, thus fell under the command of the JNA headquartersin Sarajevo and
Belgrade. Djukié'sstatement alsoconfirms the massive relocationof JNA equipment
organised at the same time, transferring arms and weapons to warehousesin areas
with Serb majorities. This relocation of JNA materiel was discussedearlier in this
Chapter [Reply, Chapter 8, Section 31. Chapter - Section4
Transformationof the JNA into the Bosnian Serb Army
"Fiveor tenyears at the earliest"
156. The authorities in Belgrade had no intention whatsoever of giving up their military
control over those territories within Bosnia and Herzegovina which they considered
to be part of the projected Greater Serbia. This was fiankly admitted by General
Aivota Partie,JNA Chief of Staff, at a meeting of officers in Belgrade on 9 April
1992:
"~he JNA should not withdrawfrom Bosnia-Hercegovina accordingto the mode1of the withdrawal
from Macedonia, regardlessof the fact that theEC has recognised the independenceof Bosnia-
Hercegovina, actingCGS [Chief of the General Staq of the SFRY amed forces, Col-Gen Zivota
Panic told a meeting of reservefficers of New Belgradethis evening. He recalled that theJNA
has 65% of its arms industry and air fields ofa European standardin Bosnia-Hercegovina. He said
that the JNA could withdrawfiom that republic infive to ten years at the earliest, that is when
politicalircumstances stabilise, when there is a systematic solution to the position of the Serbs in
Bosnia-Hercegovina, and inparticular when the status of the Serbs in Croatia politically
resolved. Until then we must remain in Bosnia-Hercegovina, wherepeople want us, which is above
al1in the Serbian Krajinas and regions, General Panic said and added that the JNA 'todayis in
those areas predominantly manned bypersonnel and soldiersfrom these areas'. Speaking about the
activity of the JNA in Bosnia and Hercegovina, Panicsaid that the tasks of the Amy are 'to
prevent genocide against any nation particularly the Serbs,use they are the most threatened,
and to prevent the aggression of Croatia against Bosnia-Hercegovina,ause that republic is still
in Yugoslavia'.In the view of GeneralPanic there is an uncertain situation in Bosnia-Hercegovina
- 'we are closer to war than to pea',he said and added that 'itis an irrejùtablef'that in this
republic, as hesaid 'thereis a Croatian-Muslimplot and a coalition against the Se'."
[Tanjug 1921 gmt, 7 Apr. 1992,BBCSummaïy of World Broadcasts,EE/1351
C 113,9 Apr. 1992, emphasis added, Annex 141.
The prevention of "genocide" againstthe Serb nation in Bosnia and Herzegovina
was, according to General PaniC,the preeminent task of the JNA. As the Bosnian
Serbs presumably feared a "Croatian-Muslimplot",it would be impossible for the
JNA to make a speedy withdrawal from Bosnia and Herzegovina.In the opinion of
the General, the minimum time-frame for withdrawal of the army was "five to ten
years at the earliest".
Shopping list
157. Almost three weeks after General Panié'sstatement,the newly formed "Serb
Republic of Bosnia and Herzegovina", whichwould later be renamed "Republika
Srpska", sent a special request to the headquarters of the 2nd Military District in
Sarajevo. On 3 May 1992, government forces found the request in the abandoned
JNA barracks in Sarajevo. It is an "officers' shopping list" for the Serb TerritorialReply of Bosnia and Herzegovina
Defence forces,the projected BosnianSerb Army. The JNA was askedto provide
the future army of the Bosnian Serbs with the officersnecessaryto commandit:
"SERB REPUBLIC OF BOSNIA AND HERZEGOVINA
MINISTRY OF DEFENCE
NO.21-89/92
Sarajevo, 27 April, 1992
HQ of the 2nd Military District
SARAJEVO
Reference:Requestfor providing personnelfrom within active military oflcers
Based on the needsfor provision of the most essentialpersonnel of the TerritorialDefence of the
Serb Republic of B-H and in accordance withthe reached agreement and promise givenin
Belgrade, we wouldlike to askyou to help us inproviding thefollowing commandingoflcers ut
the earliest convenience:
1.REPUBLIC HO OF TO [Territorial Defence]
-commander of R HQ TO
-operative officer
-intelligence officer
-security officer (majoSpirePereula)
-executive fororganizational-mobilisatiactivities(major Djor4e Djukii)
-chief of air force (lieut. colonel Caslav MihajloviC)
-chief of artillery
-chief of engineering
-chief of air defence
-chief of communications(lieut. colonel ObradDaljeviC)
-aid for logistics
-chief of legal service
2. CITY BOARD OF TO SARAJEVO
-commander (lieut. colonel Cedomir Sladonje)
-chief of staff
-aid for logistics
-executive oforganizational-mobilisationactivities
-chief of communications
-four TO brigade commanders
-four chiefs of staff-deputy commandersof TO brigades
-commander of the district TO HQ of SA0 [Serb AutonomousRegion] Romanija (lieut. colonel
Jovo Bamla)
3. FOR DOBOJ REGION
-commander of TO HQ (major MilovanStankoviC)
-deputy commander of TO HQ (captain Nenad GariC)
For the commanding officers who have accepted the offered positions, it is nectosary
immediately issue ordersto have them assume their duties. As forer commanding officers, the
ones who come from this temtory [Le.Bosnia and Herzegovina] should be found, if possib, s
soon as they accept theffer they shouldbe send to their posts.
Sincerely,
Minister Chapter-Section 4
Transformationof theJNA into the BosnianSerb Army
colonelBogdanSubotiC:
[signatureandseal]"
[Serb Republic of Bosnia and Herzegovina, Request for providing
personnel to the 2nd Military District, 27 Apr. 1992, signed Colonel
Bogdan SubotiC,emphasis added, Annex 1411.
The so-called Ministry of Defence of the "Serb Republic of Bosnia and Herzegovina"
was thus involved in the planning of the transformation. The document above is a
requestaddressed to the JNA headquarters in Sarajevo. This demonstratesthat the
transformation of the JNAand the creation of the Bosnian Serb Army were directed
by the Yugoslav military. Radovan KaradiiC's Serbian Democratic Party (SDS) were
of course informed about Belgrade'spreparations for the transformation, as most
Serb volunteers in the JNA were recruited through that party. The cited document
also shows that the authorities in Belgrade had promised the Bosnian Serbs every
type of assistance. The requestwas sent to the JNA headquarters in Sarajevo "in
accordance with the reached agreement and promisegiven in Belgrade".
158. The quoted "shopping list" demonstrates that the preparations for the transformation
of the JNA were in full swing by the end of April 1992. The list at the same time
shows that when the "shopping list" was sent, there was no such thing as a Bosnian
Serb Army. As will be explained below, this army was in fact created on 19 May
1992, when the headquarters of the 2nd Military District in Han Pijesak (where the
JNA headquarters had been moved to in the beginning of May 1992) were
transformed into the headquarters of the Bosnian Serb Army. On that date, the
commanding officers the Bosnian Serbs had asked for in their "shopping list" were
officially attached to the newly-christened BosnianSerb Army. General Djordje
DjukiC,who was expressly mentioned on the list, albeit as a mere "Major", was
among the many officers who remained on the territory of Bosnia and Herzegovina
after 19 May 1992.
Final touches
159. On 30 April 1992, the Bosnian Serb leadershiptravelled to Belgrade to meet Serbian
President Slobodan MiloSevic.This meeting was also reported by Borisav JoviCin
his memoirs mentioned earlier in this Section. The meeting was attended by
representatives from the SFRY, the JNA and the Bosnian Serbs:
"30April,1992Reply of Bosnia and Herzegovina
Discussion withthe Serb leadership fiom Bosnia and Herzegovina.Branko Kostic [Vice-President
of the Presidency of the SFRY], Slobodan [Milosevic, Presidentof Serbia], Momir Bulatovic
president of Montenegro], General Milan [Zivota] Panic [Chiefof JNA General Staff], Karadzic
[Radovan, President of the SrpskaRepublika],Krajisnik [Momcilo, Presidentof the Assembly of
the Srpska Republika], Koljevic[Nikola,Vice-President of theSrpska Republika] and me.
Security Council has recognised Bosnia and Herzegovina.Ethnic conflicts have inflamed there.We
are requested to withdraw theNA from Bosnia and Herzegovina. Slobodanand me expected and
predicted that. We cannot put the JNA in a positionto be proclaimed a foreign or aggressor army,
as some people would hope for.
Withdrawal of 10-15% of the remaining FRY citizensRom JNA in B-H, al1together some 10.000
people, is neither a technical nor a transportproblem. problem is the recent careless statement
made by Branko Kosticthat he, in his capacity as the vice-president of the SFRY Presidency, will
never sign an order for the withdrawalof the JNA fiom Bosnia and Herzegovina, andalso the
statement given by Milan [Zivota] Panic that they will not withdraw fiom Bosnia and
Herzegovina for another5 to7 years, although that republichas been internationally recognisedas
an independent state. The public tookese statementsvery seriously,whereas the two of them had
not think twice beforeaking such statements. How wouldit be possible for us to forcibly keep
our army in another independent state against its willand not to have that army be proclaimed
undesirable?
Regardless of the statements made by Kostic and Panic, we discussed the necessityto have the
remaining troops- citizens of FRY withdrawnfiom B-H. Even without them, some 90.000JNA
troops, mainly Serbs, will stay in that republic, and the Serbleadershipfrom Bosnia and
Herzegovina can take the political leadership overthem.
Karadzic agrees, Krajisnik raises a number of questionssuch as: how is that army going to be
financed, who would give them salaries,who willprovide for their pensions, etc.,in fact al1that
exist as a problem, but is not decisivefor ourdiscussion.
We argued a lot about the dead-linefor the withdrawal, and,finally agreed to accomplish it in 15
days.
Since generals who do not comefiom B-H were also to withdraw, it was agreed to have General
Mladit replace General Vukovic.
This operation was too importantfor us, andfor the Serbs in B-Ibelieve, even more important.
They got their army."[BorisavJoviC,FinaD lays of the SFRY,Belgrade 1995,p.
448, emphasis added, Annex 1-51.
At this meeting, BorisavJoviCwitnessedthe final decisionto transformthe JNA in
Bosnia and Herzegovina into theBosnianSerb Army. Accordingto JoviC,90,000
JNA troops would stayin Bosnia and Herzegovinaafter the officia1"withdrawal".
Only some 10,000 men would reallybe pulled outof the country. This "withdrawal"
posed "neither a technical nor a transport problem". Chapter -Section 4
Transformationof theJNA into theBosnianSerb Army
160. The transformation of the JNAwas not only discussed in Belgrade. The decision to
transform the JNA in Bosnia andHerzegovinawas elaborated upon by the various
JNA units in the field. On 14 May 1992,such a meeting took place in the area of
MrkonjiC.Grad, a town in central Bosnia.The meeting was attendedby three JNA
officers, representing the 30th Partisan Division,and various Serb leaders from the
the surroundingmunicipalitiesand the "Serb Krajina", the self-proclaimed
autonomous Serb region in northwest Bosnia. Although the meetingwas organised at
a regional level by the 30th Partisan Division,the participants reviewed important
issues of national, that is Serb,interest. They therefore also discussed the problems
related to the planned transformationof the JNA:
'[starnp]
the Command HQ of the 1st Partisan Division
strictly confid. no. 1-45/92
Date: 14.05.1992
MINUTES
from the meeting with the presidentsof municipalities
in the responsibility zone of the division
Meeting began at10,45hours
Meeting ended at13,30hours
AGENDA
1.Analysis of the present situation inthe municipalities in military-politicalterms;
2. Functioningof administration and relationsuntilthe transformationof theJNA;Reply ofBosnia and Herzegovina
3. Summaryfrom the meeting heldin Banja Lukaon 12.05.1992regarding armedforces of the
Serb Krajina andtheArmy of the Serb Republic of Bosniaand Herzegovina;
4. Discussion andproposais regardingfirther CO-operationswithJNA unitsin terms of insurance
of territories andeatmentof troops (oflcers) in the area of Serb Krajina.
MEETING ATTENDEDBY:
1. commander of the 30th Partisan Division,Col. StanislavGalié;
2.commander of the 6th Partisan Brigade, Col. BrankoBasara;
3. chief of staff of the 30th Partisan Division, Lt. Col.Stevan;é
4. commander of Territorial DefenceHQ KjuE,Major LukiéBoSko;
5.president of the municipality ofKljuE,Banjac Jovo;
6. president of the municipality ofSipovo,DjukiéRadoslav;
7. president of the municipality ofMrkonjiéGrad, Malidia Milan;
8. president of the Serb municipality ofJajce, MiliEiCDragan;
9. president of the Serb municipality ofDonji Vakuf, Zagorac Nikola;
10. president ofthe Serb municipalityof Bugojno, MiSiéNikola;
11. deputy of the Serb Krajina, Mr.KalabiéRajko;
President of the municipality ofuEpresented the guests andthe objectives ofthe meeting and
then he gave the floor to Col. Galié.
Col. Galié,taking the floor, congratulatedthe Security Day first and proposed theagenda.
It was suggestedto tackle, within itemf the agenda, the issueof refugees and their engagement
in theArmy of the Serb Republic ofBosnia and Herzegovina.
The agenda was adopted unanimously.
ColonelGaliéreported about the situation withinthe responsibilityzone of 30th Partisan Division,
stating that the territory of the zone was somewhat reduced after the KUPRES operation.
In respect of the present situation and securityin the municipalities,it was reportedas follows:
The issue of JNA transformationis rather complex and it hasled us to a diflcult position, due to
leaving of oflcersom the Federal Republic of Yugoslavia.
Al1the oflcersfrom this area (division responsibility zone) shouldbe called back in order to
assume some dutiesin the units.
Commander of the Corps ordered thatin the next 5 days one-sidedcease fire isto be respected.
Only in case of substantialses in men and ordnance, fire oran attack should be answered."
[Minutesfrom the meeting withpresidentsof municipalitiesin the
responsibilityzone of the division, signed DmitroviCMomEilo,14 May 1992,
emphasis added, Annex 1421.
After having discussedthe first two items on the agendaand the problems relatedto
the leaving of JNA officers to Serbia and Montenegro [see: Reply, Chapter 8,
Section 81,one of the Serb municipality presidentsattending the conference
presented the decisions taken at a meeting heldin Banja Luka two days before [see
also: ICTFY, Trial Charnber1,Review of the IndictmentPursuant to Rule 61of the
Rules of Procedure and Evidence, Prosecutor v. KaradZii & Madik, CasesNo. IT-
95-5-R61 & IT-95-18-R61, 11 July 1996,p. 43, para. 771.The main topic of Chapter- Section 4
Transformationof theJNA into the Bosnian SerbArmy
discussion at this Banja Luka meeting had been the coming transformation of the
JNA:
"Thepresident of MrkonjiéGrad rnunicipality,Malidia Milan, thenreported about conclusions
made ut the meeting held in BanjaLuka.
At that meeting,it was decided that the armedforces of Krajina[in Bosnia and Herzegovina]
should be called:MY OF THESERBREPUBLICOF BOSNIAAND HERZEGOVINA and it
was also pointed out thatJNA rnernberswhocornefrorn our areas are mernbersof theArmy of
the Serb Republicof BH.t was also pointed out that land forces, air force and air defence should
be developed. It was appraised that thearmy was able to conquermtory, but that this was
not necessaryecause of incapabilityto defend it in the comingperiod."
[Ibi 1. .
At the Banja Luka meeting the participants had thus decided that the future Serb
army in Bosnia and Herzegovina should be called: "Army of the Serb Republic of
Bosnia and Herzegovina" and that "al1JNA members who come from our areas are
members of the Army of the Serb Republic of Bosnia and Herzegovina" [emphasis
added]. These excerpts and the emphasised words clearly illustrate the cosmetic
character of the planned transformation of the JNA. The entire transformation was
just a changing of labels. Al1JNA soldiers "from our areas", that is, with Bosnian
backgrounds, would automatically be incorporated in the new Bosnian Serb Army.
They were in fact offered no choice at all. Those Bosnian Serbs who decided not to
join the Bosnian Serb Army were later treated as deserters by both the Bosnian Serb
and the Yugoslav authorities [see Reply, Chapter 8, Sections 8 & 111.
161. At the meeting, the participants also agreed on what was coined the "strategic
objectives"of the JNA and the future Bosnian Serb Army. These "objectives" reveal
the true purpose of the military operations carried out by the JNA in Bosnia and
Herzegovina [see also: Reply, Chapter 8, Section 31.They are in perfect harmony
with the plan for a Greater Serbia [see Reply, Chapter 41:
"~he strategiobjectives were adopted and presentedat the meeting in Banja Luka as follows:
1. There must be state division between 3 national communities;
2. Krajina must be linkedto Serbia along the right bankof the Sava river [along the border
with Croatia] in the area of km;30
3. to create a corridor along the Drinariver valley [marking the border with Serbia proper]so
that the Serb people arein control of both the left and the rightbank of the Dnna river;
4. to establish borders from the river Una [west Bosnia]to the river of Nerelxa [Herzegovina];
5. Sarajevo mustbe divided or levelled to the ground;
6. a possibility of having exit of the Serb RBHuto the sea is to be examined;Reply of Bosnia and Herzegovina
It was also proposed to establishborders towards Knin Krajina, while crossings fiom the Serb
Republic ofBH toFRY should not require passports, only identity cards.
(..O>
At the end of the meeting, ColonelGaliC,proposed the following conclusions:
- to realise the conclusionsfiom the meetingheld in Banja Luka and to transmitthemto the
commandsof units andmunicipalities;
- to maintain the former position/defence without a war;
- to keep developing war unitsand to request weapons and equipment for new war units;
- to have al1forces of the Serb RepublicBHf working to the same end and to prevent war
profiting;
- to enable war functioning of economy andto have neighbouring municipalitieshelp each
- other;
to give credits to al1troops for combat results in so far.
The proposed conclusionshave been unanimously adopted.
It was also proposed that such meetings should be held in future every fortnight and that the
organisers should be presidents of municipalities.
RECORD taken by
capt. 1st class
DmitroviCMomCilo[signature]"
[Minutes fi-omthe meeting withpresidentsof municipalitiesin the
responsibilityzone of the division,signed DmitroviCMomCilo,14May 1992,
emphasis added, Annex 1421.
The "strategicobjectives" listedabovewere al1accomplished, withthe exceptionof
the last objective with regard to the "exit of the Serb Republic BH to the sea". The
list reveals that the Serbs were in fact planning the division of both Bosnia and
Herzegovinaand its three "nationalcommunities".The Serbs were thus planning
genocide.The territory of Bosnia and Herzegovinahad to be divided into three Chapte- Sectio4
Transformationof the JNAinto the Bosnian SerbArmy
ethnically homogeneous parts, the largest of course falling to the Bosnian Serbs.
These Serb territories had to be "linked" to Serbia proper. Sarajevo was not spared, it
was either going to be divided or "levelled to the ground". The "objectives" listed
above thus demonstrate that the siege of Sarajevo and the subsequent destruction of
the city were planned well before the JNA officially "withdrew"from Bosnia and
Herzegovina.
162. The three officers presiding over the conference were al1JNA military, representing
JNA units and reporting to the JNA headquarters of the 2nd Military District. Those
units carried JNA names reminiscent of a more distant past. The so-called Partisan
Divisions and Brigadeswere uniquely Yugoslav formations, based on the experiences
gathered during the second WorldWar [United Nations, Final Report of the
Commissionof Experts, Sl19941674lAdd.2(Vol.I), 28 Dec. 1994, Annex III, "The
Military Structure, Strategy and Tactics of the Warring Factions", p. 18,para. 851.
Al1JNA units were stripped of their "socialist"narnes after 19 May 1992, when they
were transformed into the Bosnian Serb Army.
19 May 1992
163. On 15 May 1992,the Security Council adopted Resolution752, in which it
demanded that al1interference from outside Bosnia and Herzegovina by units of the
JNA cease immediately [United Nations,Securiq Council Resolution 752,
SlRESl752, 15 May 19921.Four days later, on 19 May 1992,the forma1
"withdrawal" of the JNA was announced. As calculatedby Borisav JoviC,only 10 to
15 percent of al1JNA troops, or some 10,000 men, actuallyleft the territory of
Bosnia and Herzegovina in the following period. Thenewly formed Yugoslav Army
(VJ), however, remained active on Bosnian territory [see Reply, Chapter 8, Section
51.The soldiers of Bosnian Serb background and many commanding officers [ibid.],
until then part of the 2nd Military District, remainedon the territory and retained al1
of their arms and ammunition, thus becoming the new Bosnian Serb Army. This
Bosnian Serb Army was the product of the dissolution of the old JNAand the
withdrawal of itsnon-Bosnian elements to Serbia and Montenegro.
164. The events on 19 May 1992 were also described by General Djordje DjukiC.After
his arrest by the Bosnian authorities on 30 Janua~y1996, DjukiCgave the following
statement:Reply of Bosnia and Herzegovina
"~he Command of the Second Military Districtwas extinguished on 19.05.1992 bythe order of the
Main HQ [headquarters] ofthe YNA [JNA]; by the same order the Comrnand of theSecond
Military District was transforrnedintothe MainHQ oftheArmy of the SerbianRepublic
[Republika~r~ska]."[Statementof General DjordjeDjukit, 5 February 1996,p. 3,
Annex 1401.
The new Bosnian Serb Army was therefore formedby simply renamingthe 2nd
Military District. Thisrenaming wasdone on orders from Belgrade.This order was
signed by General Blagoje Adut, JNA Chief of Staff
"~asedon theCornrnandof the Federal Ministryfor NationalDefense, which was signed by
General AdiZiCt,he Main Headquarters of the Amy of the Serbian Republic [Republika Srpska]
was formed as follows: Commander, Lieutenant-GeneralRatkoadiC,Chief of the ASR [Amy of
the Republika Srpska] Headquarters, Major-General Manojlovanovit, Assistant for Morale and
Information, Major-General Gvero Milan, Assistant for Logistics, MajoaljordjejukiC,
Chief for the Security, Colonel Zdravko Tolimir andChief for ORMOB Grubor Mico.
Organizational structure of the HQ andthe appointrnentsof the oficers within the HQ were done,
by on this way formed, Main HQ.At the sametime, transformationof the YNA [JNA] units into
ASR [Amy of the Republika Srpska]was done on such a way that 5th Corpswas transformed into
1st KK [Krajina Corps], 9th and 10 Corps intKK Erajina Corps], 17thCorps into IBK [East
Bosnia Corps), 4th Corps into SRK [Sarajevo-Romanija Corps] and 13th Corptoerzegovina
Corps. From 19.05.1992,the Main HQ wasunctioning as the Command-in-Chief ofthe ASR,
which work was followed by the formation of the other units and in. heutionsTmed
on this way, had a task to ensure the territory forthe Serbian peoplein the RBiH [Republic of
Bosnia and~erzegovina]."[Statementof Djordje DjukiC,3 (?) February 1996,
Annex 1401.
Al1the cornmandingofficers of the newly formed BosnianSerb Amy were thus
appointed by the JNA headquartersin Belgrade.As will be shown in a separate
Section of this Chapter,al1officerswithin the BosnianSerb Army continuedto be
paid by Belgrade. Many,if not all, Bosnian Serb officerswere in fact simultaneously
officers in the newly formed YugoslavArmy (VJ), simply carrying out their duties
in the Bosniantheatre [see Reply, Chapter 8, Section 81.
Changingthe letterhead
165. The "withdrawal" announcedby the authorities in Belgradewas in fact no
withdrawai at ail, but a simple reshufflingof the armed forces under their control.
This reshuffling resultedin the dissolutionof the JNA and the simultaneouscreation
of the so-called Republika SrpskaArmy (VRS) andthe Army of Yugoslavia (VJ).
This decision to create these two entitieswas only taken to placate the international
community, as Judge McDonalddescribedin her dissentingopinion in the Tadit case
before the ICTFY in The Hague: Chapter 8- Section5
Yugoslavmilitary involvementin Bosnia
and Henegovina after 19 May1992
"The evidence proves that the creation of the VRS was a legal fiction. The only changes made
after the 15 Ma1992 Security Council resolution were the transfer of troops, the establishmentof
a Main Staff of the VRS, a change in the name of the military organisation and individual units,
and a change in thesignia. There remained the same weapons, the same equipment,the same
officers, the same commanders,largely the same troops, the same logistics centres, the same
suppliers, the same infrastructure, the same source of payments, the same goals and mission, the
same tactics, and the same operations. Irnportantly,the objectiveremained the same: to create an
ethnically pure Serb State by uniting Serbs in Bosnia and Herzegovina and extending that State
from the Federal Republic of Yugoslavia (Serbia and Montenegro) to the Croatia.."rajina
[ICTFY, Separate and Dissenting Opinionof Judge McDonaldRegardingthe
Applicabilityof Article 2 of the Statute,Prosecutor v.Du& Tadié,Case IT-
94-1-T, 7 May 1997,pp. 4-5, para. 71.
After 19May 1992, businesswent on as usual:
"..the actions of the Federal Republic of Yugoslavia(Serbia and Montenegro) were indeed
calculated to make a showing of compliancewhile assuring that the military operations it began
were successfullycontinued. Rathern being cynical, it would perhaps be naive not to recognize
that the creation of the VRS, which coincidedwith the announced withdrawal of the JNA, was in
fact nothing morehan a ruse."
[ibid., p. 7, para. 101.
The creation of the Bosnian SerbArmy (VRS)was, in Judge McDonald7swords,
both a "legal fiction"and a "ruse". Everythinghad to be changed,in order to remain
the sarne.The "withdrawal" on19May 1992was in fact no more than a smoke
screen,put up by the authonties in Belgradeto try and conceal the fact that they
continuedto control al1military operationsin Bosnia and Herzegovina. The
following Sectionsof this Chapter will demonstratethat Belgradecontinued to pull
al1of the strings in Bosnia and Herzegovina.
5. Yugoslav military involvementin Bosnia andHenegovina after 19 May 1992
Facade of non-inter$erence
166. Behind a facade of non-interference,the Federal Republic of Yugoslavia continued to
play a decisiverole in the events in Bosnia and Herzegovina after the official
"withdrawal"of the JNAon 19 May 1992.As was also discussedin Section 2.3.7. of
the Memonal, YugoslavIiUlitary continuedcornmithg genocidal acts in the tenitory
of Bosnia and Herzegovinathroughoutthe entire armed conflict, in spite of
Belgrade's officia1announcementthat it would "withdraw"al1 JNA personnel of
Yugoslav descent [Counter-Memorial,pp. 247-8, para. 3.1.2.4.1.On more than oneReplyofBosniaandHenegovina
occasion,this elicited sharp reactions fiom the SecurityCouncil.On 30 May 1992,
in Resolution757 (1992), it condemnedthe Federal Republicof Yugoslaviakr its
failure "to end al1interferenceand respectthe territorialintegrityof Bosnia and
Herzegovina". One month later, in June 1992,the Security Councilagain urged the
remainingunits of the Yugoslav Armyto withdraw from the territory of Bosnia and
Herzegovina [see: Reply, Chapter1O].
167. The Respondenthas never denied that it failed to comply with the demands laid
downby the Security Council. In its Counter-Mernorial, the Respondent indeed
aclmowledgedthat Yugoslavtroops, that is soldierswith Yugoslavroots or
background, remained in Bosnia and Herzegovinaafter 19May 1992.This was
accordingto the Respondent, however,due to the fact that:
"(..theJNA was attackedby Muslim and Croat forces controlledby the Govemmentin Sarajevo
and that those attackssloweddown andhinderedthe withdrawaloJNAhfrom the region."
t couter-Memorial, p. 257, para. 3.1.3.25.1.
The abovementioned argumentis repeated severaltirnes in the Counter-Mernorial
[see e.g.: Counter-Memorial,p. 258, paras. 3.1.4.3. and 3.1.5.2.1It is in fact the
thread of the Federal Republicof Yugoslavia'sdefense for the period directly
following 19May 1992:the JNAwanted to retreat, as quickly as possible,but it was
prevented from doing so by the BosnianArmy.
168. To underlinethis argumentthe Respondent extensivelyquotes fiom a Secretary
GeneralReport to the SecurityCouncil. The Federal Republic of Yugoslavia
apparentlyconsiders this document, published on30 May 1992,of such importance
that it cites the samepassage no less than three times [UnitedNations,Report ofthe
Secretary-General Pursuantto Paragraph 4 of Security Council Resolution 752
(1992), Sl24049, 30 May 1992,as quoted in the Counter-Memorialon pp. 249-251,
para. 3.1.2.8., pp. 264-265, para. 3.1.5.16. and pp. 266-267,para. 3.1.5.19.1.The
followingpassageof the Report is extracted fiom the Counter-Mernorial:
"6.Those who are not citizensof Bosniaand Haegovina are saidby the Belgradeauthoritiesto
numberbarely 20 per cent of the total. Most ofthese are believed to havewithdrawnalreadyinto
Serbia and Montenegro,some ofhernhaving been subjectedto attackduringtheir withdrawal.
Othershowever remain at variousganisons in Bosniaand Haegovina, especiallyin Sarajevo.A
further category consistsof personnel whohave beenblockadedin their barracksby the Territorial
Defence of Bosniaand Herzegovina orhostileirregularforces. These are now mostlyin the
Sarajevo area, where theest developmentshave been as fol(...)wnited Nations,
Report of the Secretary-GeneralPursuantto Paragraph 4 of SecuriîyCouncil Chapter8 -Section5
Yugoslavmilitary involvementin Bosnia
and Herzegovinaafter 1May 1992
Resolution 752 (1992), Sl24049, 30 May 1992,as quoted in the Counter-
Memorial on p. 264, para. 3.1.5.16. and p. 266, para. 3.1.5.19.1.
The Report of the Secretary-General,as cited by the Respondent, indeed seems to
support the Federal Republicof Yugoslavia'sassertionthat the JNAwould haveleft
the tenitory of Bosnia and Herzegovinain tirne, if the Bosniangovemment had
allowed the anny to retreat as planned. In its view, the Respondentis not to blarne
for any delays in the scheduledwithdrawal.Accordingly,those soldiers remaining in
Bosnia andHerzegovinaafter 19 May 1992were al1under alleged siege of
govemment forcesand therefore simply not able to leave.
169. A closer look at the actual Report, however, paints a different picture, as the
Respondent leftout a crucial passage in the cited paragraph.The original Report
should have been quotedas follows:
"6.Those who are not citizens of Bosnia and Herzegovina are said by the Belgrade authonties to
number barely 20 per cent of the total. Most of these are believed to have withdrawn already into
Serbia and Montenegro, some of them having been subjectedto attack dunng their withdrawal.
Others however remain atrious ganisons in Bosnia and Herzegovina,especially in Serb-
controlled areas, includingtwo installationson the outskirtsof Sarajevo. A further category
consists of personnel who have been blockaded in theirs by the Temtonal Defence of
Bosnia and Herzegovina or hostile irregular forces.e now mostly in the Sarajevo area,
where the latest developmentshave been as follows[UnitedNations, Report of the
Secretary-GeneralPursuant to Paragraph 4 of SecurityCouncilResolution 752
(1992), Sl24049, 30 May 1992,p. 2, para. 6, AnnexNo. 129, Counter-
Memorial,pp. 1044-1048, emphasis added].
The emphasisedpassage was not included in the documentas cited by the Federal
Republic of Yugoslavia.When the missing part is added to the sentence, the picture
changes dramatically.The Respondent'sassertion thatthe rernainingJNAtroops
were prevented Çom leaving by the BosnianAmy, now proves to be in flat
contradictionwith the facts as presented in the cited SecurityCouncil Report. Most
Yugoslav Army units deployed in Bosnia and Herzegovinaafter 19May 1992 were
not blockaded by Bosnian forces at dl, but safelyin their ganisons in "Serb-
controlled areas".
170. As mentioned above, this extract fiom the Secretary-GeneralReport is quoted three
times. The Report itself is cited five times [see also Counter-Mernorial, pp. 129-130,
para. 2.6.1.2. andpp. 331-332,para. 5.4.1.12.1.Twice the passage emphasisedin the
foregoing citationis missing. The correct quote was only given in the sectionon theReply of Bosnia andHerzegovina
"Reorganization andRelocationof JNA".Both incompletequotes are found in the
separatesection on "The Alleged ProlongedPresence of the JNA in Bosnia and
Herzegovina". Strikingly,the underlined passageis the only "omission"in the quotes,
which in al1cover six pages of the Counter-Memorial.
171. Thus, not al1military personnel of Serbianor Montenegrindescenthad left Bosnia
and Herzegovinaby 19May 1992. Afier that date,units of the newly formed
YugoslavArmy (VJ) remained active inBosnia and Herzegovina.One of these units,
for example, was the so-calledPodgorica Corps ofthe Yugoslav Army. Podgoricais
the capital of Montenegro.The continued presenceof this VJ unit in the Mostar area
until the autumn of 1992was confirmedthe Trial Chamberat the ICTFY in their
judgement in the TadiCcase:
"~he Podgorica Corpsof what had been the JNA and was now the VJ remained in Bosnia and
Herzegovina foruch of 1992 and, under the command of General MomciloPerigit, was involved
in the killing of Muslims and Croatsin the MostarThat Corps, from Montenegro,remained
in Bosnia and Herzegovina throughout the summerand autumn of 199asSeptember of
that year. Generalit later became Commander-in-Chief ofthe [ICTFY,Trial
Chamber, Opinion and Judgement,Prosecutor v. Duiko Tadié,CaseNo. IT-94-
1-T, 7 May 1997,p. 44, para. 1191.
172. When interviewedin 1993, General MomciloPeriSiC,the commanderof the
Podgorica Corps, admittedthat he had stayed onafter the officia1"withdrawal"in
May 1992.In the Yugoslav newspaperVesti,PeriSiCexplainedthe presenceof the
Podgorica Corps in Bosnia and Herzegovinaby stating that the Serb Herzegovinians
had to be trained on the equipmentwhich the JNA had left behind [Biljana Sacicin
Vesti,12 May 1993,p. 9, Annex 1431. Chapter8 -Section5
Yugoslavmilitary involvementin Bosnia
and Henegovina after 19 May 1992
173. General MomciloPeriSiC'sideas on the useof JNA equipmentare unequivocal.At
the very beginning of the fighting, he used heavy ordnanceto bomb Mostar. Zn April
1992,British correspondentIan Traynor witnessedthe first shellings ofthe city.
Soon aftenvards, Traynor publishedhis eyewitnessreport in TheGardian:
"TWO Yugoslav air force pilots were reported missing and the general was not pleased. The
ultimatum went out. half past one on Sunday afternoon in the ancient city of Mostar, over the
mountains fiom the Bosnian capital Sarajevo,General Momcilo PeriSiC,the local army commander
and a notederbian hawk, announced that ifthe pilots were not retumed by four o'clock, thetown
would pay.
Westerndiplomatsin Belgrade got wind of the threat and instantly got on to the army high
command, warning that civilian targets should bespared and that the anny would be held
responsible for the consequences.was at 3 pm.
Twenty minutes later, the general vented hiswrathon Mostar. After a lull, it then went on for
another three days.When the smoke cleared on Wednesday, Mostar's residentsfound the hospital
harnmered, a student hostel rubble-strewn, blocksof flats gouged by mortars, two hotels and the
aluminiumworks virtually destroye[Ian Traynor, TheGardian, 25 Apr. 1992,p.
8, Annex 1441.
By the time the fighting in Bosnia and Herzegovinastarted, MomciloP&HiChad
already earned himself a dubiousreputation inCroatia, wherehe had ordered the
shellingof the city of Zadar in Septernberand October 1991. Asa result of these
shellings34 civilianswere killed. On 24 April 1997, the nowadaysChief of Staff of
the YugoslavArmywas found guilty of war crimes against civiliansby the courtin
Zadar. PeriSiC'strial was held in absentia, but the court neverthelessconvictedhirn
to a twenty years sentence [ZagrebRadio CroatiaNetwork, FBIS-EEU-97-114,24
Apr. 1997,Annex 1451.
Genocidal acts
174. In the period following19 May 1992, many violentincidentswere reported
involving soldiers of the Yugoslav Army.
175. The YugoslavArmy was, for example,responsiblefor the ethnic cleansingof Sanski
Most, a town in northwestBosnia and Herzegovina.The role played by Yugoslav
forces in the ethnic purificationof Sanski Most in the last days of May 1992was
among others recorded by the Commissionof Experts in their Report on mass graves
Pnited Nations, Final Report of the UnitedNations Commissionof Experts,
S/1994/674/Add.2(Vol. V), 28 Dec. 1994, AnnexX.A, "MassGraves",pp. 43-44,
para. 2811.Reply of Bosnia and Henegovina
176. The campaign in Sanski Mostwas also describedby the UnitedStatesDepartmentof
Statein their highly informativeDispatches:
"Between May 23 and 24, the JNA [VJ] and its military police arrested Muslim officials in the city
government and members of the Muslim intelligentsia.On May 25 and 26, the JNA units attacked
Muslims in Sanski Most by throwing grenades in their homes in the Muslim section, Mahala, and
by firing at the houses with automatic weapons. This lasted1 day, during which 11persons were
shot to death in aouse on Muhici Street that belonged toa man named Hilmija. Of these, three
were women, one of whom was pregnant and five were young boys. Themen were taken to the
local school; women and children were transported to Velika Kladusa [town near the Croatian
border]. After the 'cleansing',the Serbs continuedto throw grenades into thes, then bumed
them. The ruins were levelled with bulldozers."
[US Department of State, Bureau of Public Affairs,Dispatch, Vol. 4, No. 30,
p. 543, 26 July 1993, Annex 181.
The genocidal attack on Sanski Most lasted severaldays, duringwhich the Yugoslav
Army used heavy ordnance to bomb Muslimneighbourhoodsinto subrnission.After
the bombing, Serb paramilitarieswere sent in to completethe ethnic cleansing:
"27 May 92: a 32-year-old BosnianMuslim said that, on the moming of May 27, 1992,the roads
across the Sana River [river running through Sanski Most], fromhis neighbourhood to the centre of
Sanski Most, were blocked by localSerbian police and soldierswhom he believed were from the
JNA [VJ] D.uring the &y, he saw the police and soldiersbringing mortars and artiliery into
position on the otheride of the river. The shellingbegan9pm and lasted until8 (am)the next
morning. The witness estimatesthat the Serbs used more than 3,000 shells and mortars. In the
moming, the radio announcedthat all those in the neighbourhoodwho wanted to surrender should
raise a white flag. An other broadcast said that al1weapons should be turned in to a central police
station.Later, the radio announced that al1'innocentcitizens' should report tothe main soccer field
to 'settle accounts' for the activities of the Green Berets -a Muslim force allegedly fighting the
Serbs. The witness said that nearly everyone fiom the neighbourhood -a couple of thousand people-
went to the sports field. ûnlyose who had not heard the radio broadcast or who were too scared
or distrustful of the Serbs to go stayed in their homes. Once they were on the sports field, the Chapter8 -Section 5
Yugoslavmilitary involvementin Bosnia
andHenegovina afSer19May 1992
Serbs beganto 'cleanse'theneighbourho. romthe field, the witness watchedthe Serbianpolice
and imgulan roamthmughstreets,lootingandbuminghouses.If they foundpeople a611in their
homes,the Serbsthrewa grenadethroughthewindow tokill the occupants."
[US Department of State, Bureau of PublicAffairs, Dispatch, Vol. 4, No. 16,
p. 268, 19Apr. 1993,Annex 191.
177. On 1June 1992 Yugoslav forces,includingso-calledspecial forces from the
Montenegrin city of Nikgit, launchedan attack on Gacko.During and afîer the attack
on this town close to the border with Montenegro, many Muslimswere killed or
arrested and transported to the camp in nearby Bileca,in Bosnia and Herzegovina
[United Nations, Final Report of the UnitedNations Commissionof Experts,
SI19941674(Vol. 1),27 May 1994,Annex III.A, p. 146,para. 4231.Reply of Bosnia andHerzegovina
178. Severalweeks later, on 26 June 1992,Yugoslavforceswere involved in the take-
over of Kozluk,a small town north of Zvornik, close to theriver Drina which marks
the border betweenSerbia and Bosnia and Herzegovina:
"A 37-year-old Bosnian Muslimwitnessed the anival of local Serb paramilitary units reinforced
with regular tank and infantry units fiom Serbia in Kozluk, Bosnia, on June 26, 1992. The units
fiom Serbia were fiom Valjevo, Sabac, Loznica, Novi Sad, and Titovo Uzice. Prior the capturing
the town, the Serbs bombarded it withillery fiom the Gucevo mountainsacross the border in
Serbia.On June 26,the Serbs entered the town and brought with them buses andtrucks. They
ordered theentire population of Kozluk to assemble in the town centre. About 1,500people
assembled. The Serbsthen read fiom a list the names of prominent localpeople and told themto
move to one side. They were ordered into a bus and taken away to an unknown location; they were
never seen again. Next, the Serbs segregated al1the men fromthe women and children and ordered
the men to board buses. Finally, the women and children were ordered to board buses.ey
departed, the town resident. were told thatfor their ownsafety, they were being taken to a refigee
camp in PaIic, near Subotica[Serbia][United Nations,Letter 12Aprilfiom the
PermanentRepresentativeof the UnitedStates ofAmericato the United
NationsAddressed tothe Secretary-General,Sl25586, 13Apr. 1993,pp. 31-32,
emphasis added] .
The deployment oftanks and artillery, located onYugoslavtemtory, to support or
cover Serb forcesin Bosnia and Herzegovina happened ona regular basis.It was
also mentionedin the Memorial,where a Yugoslav Army Generalis quoted boasting
about assistance he gave to Serbunits acrossthe river Drina in January 1993
[Memorial,p. 84, para. 2.3.7.41.
TheYugoslavand the BosnianSerbAmies CO-operated in tandem
179. The Yugoslav Army(VJ) continued canying out operations acrossthe border
throughout 1992and 1993 [see e.g.: ICTFY, Trial Chamber,Opinion and Judgement,
Prosecutorv. Duswko TadiC,CaseNo. IT-94-1-T, 7 May 1997, p. 43, para.1181.Al1
of these operationswere executedin close CO-operation with the units of the newly
formedBosnian Serb Anny (VRS).This was also the view of Judge McDonaldin
her Separateand DissentingOpinion in the TadiCcase, who expressly mentioned the
specialpartplayed by the YugoslavAir Forces:
"(...) despite the purported JNAwithdrawal fiom Bosnia and Hercegovina on 19 May 1992,active
elements of what had been the JNA and was now rechristasthe VJ operated in tandem with
theVRS in Bosnia and Herzegovina. In particuVJrair crew and aircraft remained in Bosnia and
Herzegovina after therported May withdrawal and worked with VRS throughout 1992 and
1993."[ICTFY,Trial Chamber, Separateand Dissenting Opinionof Judge
McDonald Regardingthe Applicabilityof Article 2 of the Statute,Prosecutor
v.DugkoTadiC,Case No. IT-94-1-T,7 May 1997,pp. 7-8, para. 111. Chapter8- Section5
Yugoslavmilitaryinvolvementin Bosnia
and Herzegovinafier 1May 1992
Thecontinuingactivities of the YugoslavAir Forces
180. The role of the Yugoslav Air Forces was indeed syrnptomatic ofthe role generally
played by the VJ during the amed conflict inBosnia and Herzegovina.As they had
donebefore 19May 1992,Yugoslavjets continuedbombing civilian and military
targets in Bosnia and Herzegovinain the followingyears.
181. In June 1992,Yugoslav aircraft attackedthe chlorine-alkalinecomplex in Tuzla and
Lukavac [United Nations,FinalReport of theUnitedNations Commission of
Experts,SI19941674(Vol. 1), 27 May1994,Annex III.A, p. 162, para. 5381.In the
same period, Yugoslavmilitary aircraftbombed a tobacco factoryin the Bosnian
town of Grude, west of Mostar [UnitedNations, LetterDated 22 September1992
fiom theDeputy PermanentRepresentativeof the UnitedStates ofAmericato the
UnitedNations Addressed to the Secretary-General,S/24583, 23 Sept. 1992,p. 91.In
the attackon Mostar itself, somewhat later, Yugoslavaircraflbased in Podgorica
(Montenegro) used fragmentation bombsto supportthe Serb counter-offensive on the
ground. This was reportedby the Germanweekly Pro91 [GregorMayer in Profil, 10
Aug. 1992,p. 40, Annex 1461.The French magazineLe NouvelObservateur
reported on the Yugoslav bombing ofthe electricity power stationin Zenica, in
centralBosnia, in October of thesameyear. [H. Guirchon in Le Nouvel Observateur,
29 Oct. 1992,Annex 1471.
182. The Yugoslav AirForce was also involved in a first attempt to capture the town of
Srebrenica in the beginning of 1993.Helicoptersand planes from the FederalReplyof BosniaandHerzegovina
Republicof Yugoslavia wereused to bomb positionsof the Bosnian army within the
enclave in the fust weeks of March. On 13March 1993, UnitedNationspersonnel
observed three aircraft droppingbombs on the villageof Gladovici,south-eastof
Srebrenica. Mer dropping their bombs, the planeswithdrewtowardthe Federal
Republicof Yugoslavia [UnitedNations, Note VerbaleDated 16 March 1993from
the Secretary-GeneralAddressed to the President of the SecurityCouncil,
Sl24900lAdd.27, 16 Mar. 1993,pp. 2-3, Numbers473-4751.
183. The above mentioned air attack andanotherone in the same area were also noted
and condemned bythe President of the SecurityCouncil:
"(...)
The Councilequallytakesnote ofthe report by the Secretary-Generailn hislet16rMarch
1993(S/25444) indicatingthaton13 March 1993 newviolationsof the no--y zone tookplace by
planes thatproceeded tobombthe villagesof Gladoviciand Osaticain the Republicof Bosnia and
Herzegovinabefore leaving in thedirectionof the Federal Republicof Yugoslavia (Serbiaand
Montenegro).
(..a)
The Council strongly condema n1violationsof itsrelevantresolutionsandunderlinesthe factthat
sincethebeginningof themonitoringoperations iearlyNovernber 1992,theUnited Nationshas
reported465 violationsof theno-flyzone overBosniaandHerzegovina.
(-1
TheCouncilhas mandatedits Presidentto conveyto the MinisterforForeignAffairs of the
FederalRepublicof Yugoslavia (SerbiaandMontenegro)and to the leaderof theBosnianSerbsits
deepest concern about theabove-mentioneddevelopmentsand its demandthatthey take immediate
actiontoprevent any repetitionsofeseattacks."[United Nations,Statement by the
President of the SecurityCouncil, S/25426, 17 Mar. 1993, emphasisadded].
184. In responseto the Statement givenby the President of theSecurity Council,the
YugoslavMission to the UnitedNations issueda press release.This release stated
that the attack on the Srebrenicaareahad been a provocation anda premeditated
fiaud set up by the "Muslim and Croatside"to exert pressureon the Security
Council, which the Federal Republicof Yugoslaviaaccusedof adoptinga "one-sided
approach"to the reported violationof theno-fly zone:
"~ue to such one-sided approachin evaluatingthisevent [the bombingof Gladoviciand Osatica],
the Muslimand Croatianside had beenforthwithfieed of any responsibility.At thesametime,the
factthat theMuslimsidehasona numberof occasionsorchestratedhonendouscrimestargeting
civiliain thetenitoryunderitscontrol,particulain Sarajevo,andblamedthe Serbs, has been
completelyignored.Thathas invariablbeenthecasewhenimportana tgreementsto endthewar
wereto be reached.Thedescriptionof aircraftand the targets,closeto the borderwith theFR of
Yugoslavia,indicate thatwe are dealingwitha provocationand ameditatedfiaud whose
purpose is to exertpressure,in thismoment, onthe Security~ouncwnited Nations,
PermanentMission of the Federal Republic of Yugoslaviato the United
Nations, Press Release,No. 913,22 Mar. 1992, emphasisadded]. Chapter8 - Section5
YugoslavmilitaryinvolvementinBosnia
andHerzegovinaafier19 May 1992
This quoted press release was the Respondent'sonly reaction to the Security
Council'sdernandto "take imrnediateaction to prevent anyrepetitions of these
attacks".It simply accused theBosnian forces of bombing andshellingtheir own
people, without presentingany evidence to supportthis claim.
The1993 military campaign in east Bosnia
185. On the ground, VJ forces fiom Serbiaparticipated inthis attack on Srebrenicaas
well. Heavy ordnance fiom across theriver Drina inside Serbia was used in support
of the aerial bombing [United Nations,Letter Dated 12 April 1993fiom the
PermanentRepresentativeof theUnited Statesof America to the United Nations
Addressed to the Secretary-General,Sl25586, 13Apr. 1993,p. 251. The British
newspaper The TelegraphpublishedPatrick Bishop'svivid account of the attack on
the enclave,which enpassant confirmedthe use of aircrafl and helicoptersby
Yugoslavforces:
"The United Nations commander in Bosnia-Herzegovina,who is risking his life tryng to defend
besieged Muslims, was in open confrontation withSerb military chiefs last night.
The Serbstumed down an urgent request from the UN'SMaj-Gen Phillipe Morillon for the
wounded and refugees to be allowed to flee the fighting in eastem Bosnia.
Gen. Monllon, who has been spurred into action by the desperate plight of civilians in the area,
said he would hold out for a fourth night withhis temporary headquarters in Srebrenica, which has
been under constant Serb bombardment formonths.
Thousands ofrefugees have flooded the tom, and 30 are reported to be dying daily from wounds,
hunger and disease.
Serb attacks continued throughout the Srebrenica enclave al1day yestInternationalobservers
haveconjîrmedthatforcesfrom theneighbouringrepublicof Serbiaare heavily involved,including
helicoptersandplanes bombingBosnianMuslimpositionsin recentdays.Muchof theheavy
ordnanceha beenfiringfrom acrossthe riverDrinainsideSerbia,accordingto monitors.
(--.)
Gen Morillon, contacted by a French radio station,told listenershe intended to stay in Srebrenica
until the Serbs stopped their bombardment.He asked for helicopters to take out the most seriously
injured, and fiee passage for al1refugees who wanted to leave. He also wanted aid convoys to be
allowed in from Serbia via Zvomik.
TheSerb authorities,speakingform Belgrade,infonnedthe UNthatthey wouldnotagree to the
general'stem untilhe lefiSrebrenica.
A convoyfrom Zvornikwas turnedbackby a local commanderafav milesdown theroad, at Mali
Zvornik[Serbia].He said there wereno ordersfrom hissuperiorsinSerbia toallowthe convoy to
pas.
The expfxiences of Gen Monllon, and the British rescue mission to Konjevic Polje [a town in
Eastern Bosnia attacked at theme timeas Srebrenica] under Maj Alan Abraham, have revealed
the extent of the offensive and ethnic cleansingnow being carried out by Serb forces in eastern
Bosnia.Theyhavealsoshownthatthisis beingdirectedfrom Belgradeand thatforcesfrom Serbia
are heavilyinvolved."[PatrickBishop e.a., "BesiegingSerbs reject UN chief s
evacuationplea", TheTelegaph, 15Mar. 1993,emphasisadded, Annex 1481.ReplyofBosnia andHenegovina
The accountpublished in The Telegraphnot only showsthat VJ forces were
participatingn the attack on Srebrenica.It also demonstratesthat al1orders on the
field weregiven by the VJheadquartersin Belgrade, which werein cornrnandof al1
Serb forces activeon Bosniantemtory, whether fromthe Bosnian Serb forces or the
Yugoslav Amy. This is clearly illustratedby the commanderin Mali Zvomik, a
town located acrossthe Dnna in Serbia proper,who stoppedan aid convoy on its
way to Srebrenica,because there were no "ordersfromhis superiorsin Serbiato
allow the convoyto pass".
186. Theimportant role of the VJ in this first attack on Srebrenicawas also reportedby
Belgrademedia, such asSrpsk Raec, which quoteda member of the SerbianRenewal
Movementwho had witnessedthe offensiveand had seen "280tanks, armoured
personnel carriers, self-propelled artillery, multiplerocket launchers, and missiles"
moving toward thefiont line in Bosnia and Herzegovina.This impressivearmy came
fiom thedirection of Bajina Basta,a town on the Serbianside of the border with
Bosnia and Herzegovina,approximately îhirtkilometresfiom Srebrenica:
"Theearthandskywereablaze.Wecould notsleep.Thereweredozensof ftightsby helicopters
andaircra..."[SrpskR ec,10 May 1993, p. 23, Annex 1491.
187. The Serbs failed to take Srebrenicain the beginningof 1993,just like the area
around GoraZdewhich was attackedin the sameperiod. On 6 May 1993, the
SecurityCounciladopted Resolution824, in which iepa and Srebrenicawere
designatedas a safe area. Other areaswere less "fortunate",sasthe towns of Chapter 8- Section 5
Yugoslavmilitasi involvementin Bosnia
and Henegovina after 19May 1992
Cerska andKonjeviCPolje, south of Zvornik, which were ovem by, among others,
VJ forces in March 1993 [UnitedNations,Letterfiom the Permanent Representative
of the UnitedStates of Amenca to the UnitedNationsAddressed to theSecretaly-
General, 231255861 ,3Apr. 1993,p. 26; seealso United StatesDepartmentof State,
Bureau of Public Affairs, Dispatch, 19 Apr. 1993, Vol.4, No. 16, p. 265, Annex 19;
see also Memonal, p. 83, para. 2.3.7.31.The attack on Cerska and KonjeviCPolje
was also describedby Patrick Bishop in The Telegraph:
"(...)
British troops, who were trapped in the village of Konjevic Polje last week while trying to rescue
75seriously wounded people, are known to have witnessedthe deliberate killing of at least 12
civilians by Serb gunners. Six of theims were children. Sgt Maj John MacNair, of the Royal
Amy Medical Corps, said he saw a baby decapitatedby shellfire. '1 have been a medic a long,
long time, and have never seen anything like this,' he said.
(-.-)
The British patrol detained by desperate Muslims in Konjevic Poljeon Thursday are now known to
have been deliberately targeted by Serb gunners the followingmoming.
The fire was controlled by forward observationparties, or spotters, according to witnesses. So the
Serb gunners must have known they were shootingatN troops and unarmed civilians, mostly
mothers and children. At least 50 were believed wounded inthe sustainedbombardment, and 200
killed or wounded inthe period that the British troops were in Konjevic Polje, according to one
report.
The patrol withdrew in the continuing confusion of the attacks. Most of the vehicles carrying
medicines andemergency supplieswere wrecked in the blitz.
After withdrawal,Maj Abraham[the leader of the Britishrescue missionto Konjevic Polje] asked
a local Serb commanderto order a ceasefireso the wounded couldbe takenaway. One Serb
oficer is understood to have said he had to get authorityfiom his corps commanderin ~el~rade."
[PatrickBishop e.a., "BesiegingSerbsreject UN chief s evacuationplea", The
Telegraph, 15 Mar. 1993, emphasis added,Annex 1481.
The above quoted showsthat in March 1993the VJ was not only operating in the
area around Srebrenica,but in the entire region alongthe Drina river marking the
border between Serbia and Bosnia and Herzegovina.Both the Bosnian Serb forces
and the Yugoslavtroops deployed acrossthe Drinariver were under the cornmandof
Belgrade.ReplyofBosnia andHenegovina
188. Duringthe take-overof Cerska andKonjeviCPolje many innocentcivilianswere
killed [see: United Nations,Periodic reporton thesituationof humanrightsinthe
ten-itoryoftheformer Yugoslaviasubmittedby Mr. Tadeusz Mazowiecki,Special
Rapporteurofthe Commission onHumanRights,ElCN.411994135 , May 1993, pp.
4-7, paras. 8-24]. Theate of those personswho were not ableto leave the enclave
of Cerskaon time remainsunknown [ibid.,p. 6, para. 171.Many others diedwhen
trying to breakthroughthe Serb encircling[ibid.,pp. 7-8, paras. 25-29].
189. On 7 April 1993,alrnosta year after the official "withdrawal"of the JNA,the
UnitedNations General Assemblystronglycondemnedthe continued involvement of
forces fiom Serbia and Montenegroin the conflict inBosnia and Herzegovina.It
expressedits deep concem about the "intensified aggressiacts by the Serbianand
Montenegrinforces to acquiremore temtories by force" [United Nations,General
Assembly Resolution 47/121,A/RES/47/121,7 Apr. 19931.On 10June 1993the
SecurityCounciladopted Resolution 838(1993). Like the GeneralAssembly,it
condemnedthe Respondent'scontinuing involvementin the armedconflict in Bosnia
and Herzegovina.
1994: the YugoslavAmy specialforces
190. Western newspapers, however, continued to report on the deploymentof the VJ
acrossthe border withBosnia and Herzegovina.On 8 Januar y994,that is half a
year after the Security CounciladoptedtheabovementionedResolution 838(1993),
the Americanjournalist Laura Silberwrote the followingarticle for the British
FinancialTimes: Chapter 8- Section5
Yugoslavmilitas, involvementin Bosnia
and Henegovina after 19 May 1992
"Regular Yugoslav troops are being deployed in Bosnia, United Nations officers on the ground
confirmed yesterday.
In a week in which the international communityhas been criticised by sUNioofficials for
failing to stop the war in Bosnia,egian Captain Jantora Strandas with the Nordic contingent,
yesterdayverified that Yugoslavarmy paratroopers are routinely engaged in hostilities in Bosnia.
His commentsrefute claims by Serb leadersthat they have not supported Bosnian Serb forces, who
control 70 per cent of the republic.
It also undermines demandsthis week by Belgrade for the lifting of sanctions, imposed 19months
ago over the violent partition ofBosnia.
Observers and local residents have confirmed the long-presence of Yugoslav army
paratroopers and vehicles in northem and eastern Bosnia.
'Just stand in Zvornik (on the Bosnian-Serb fiontier) and watch the Yugoslav army cross over,'
Capt Strandas said yesterday at UNe Pancevo base, near elg grade.[Laura Silber,
"Belgrade'sarmy fights in Bosnia",Financial Times,8 Jan. 1994, Annex1501.
191. Shortly after the foregoingarticle was written, British newspaper The Guardian
publishedthe following report,which was alsoreferred to in the Memorial
[Memorial,p. 83, para. 2.3.7.31:
"~ugoslav troops have been operating in Bosnia in recent weeks in an apparent effort to counter
advances by Bosnian govemment forces.
'We have seen troop movements of the Yugoslav armyin Bosnia, large numbers of troops and
military vehicles,'id aUN official. 'The generalfeeling is that there is a pre-ernptive attack
coming.'
Despite repeated denials by the Belgrade government, ithas been suspected that the rump Yugoslav
federation, consisting of Serbia and Montenegro,has been giving direct support to the Serbian
nationalists fighting in Bosnia. It was in an effort to force Belgradeto halt such assistance that the
UN Security Council imposed a trade embargo on Yugoslavia in 1992.
(4
The Yugoslav troops operating fiom Bosnian-Serb-controlled tenitory include special forces
commandos fiom the 63rd Airborne Brigade, according UN officials and Yugoslav journalists.
Some of them report seeing convoys on the roads, as wellanti-aircraft guns, artillery, tanks and
specialised units such as underwater demolitionteams.
(-1
Yugoslav troops are widely believed to have mounted short operations inside Bosnia, often while
ostensibly on leave fiom the regular army or infom without their identifjmg patches.
What seems different now is that there is no effort to disguisethe Yugoslainsignia, and that
some troops areeven canying their waterproof rnilitary identificationpapers.
Much of the Yugoslav involvement,a military expert said, was being directed by the Special
OperationsCommand, which includes the 72nd and 63rd airbome brigades, and may involve 2,000
or more troops."[JohnKifnerand Ian Traynor in The Guardian, 28 Jan. 1994,p.
8, Annex 1511.
By the beginning of 1994, Yugoslavspecial forces were almost overtly deployedin
northem and eastem Bosnia.Reply of Bosnia andHenegovina
The Yugoslav Army was not only involvedin northem and eastem Bosnia.At the
sametime, VJ special forces participated in amajor offensive in the Sarajevoarea.
This is clearly evidencedby the following militarydocument thatwas capturedon
the battlefieldby Bosnian forces. It is a copy of a written order distributedby the
commandof the Sarajevo-Romanija Corpsof the Bosnian Serb Army. This Corps
was responsible for the Sarajevo area,where it was also based. The order was
addressedto severalunits under its commandand gavethe detailsof a massive
attackto be carried out asof 19 December 1993on a number of strategic hills
overlooking the Bosniancapital. The Bosnian Serb troops were reinforcedby 120 VJ
specialforces and a "department"of helicopters:
"~he Command of SRK [VRS Sarajevo-Romanija Corps]
NO. 20115-1409
15.12.1993
Amendment to the Command
on Execution of Operation OP
No. 14/93dated 03.11.1993.
Copy: Commands of al1brigades, TG [Tactical Group] Vogosca, 4th MAP [Mixed Artillery
Regiment], IKM [Forward Command Post], PKM [Temporary CommandPost], SRK [Sarajevo-
Romanija Corps]
Attn. of the Commander personally
1.According to the amendment of directiveno6 GS [General Staff] of VRS [Bosnian Serb Army]
DT no. 02/2-1014 of 14.12.1993 anddecision of the highest leaderships of the Serb people of
14.12.1993 SRK[Sarajevo-Romanija Corps] with strengtheningforce(1 brigade from the firKK
[VRS Krajina Corps], 1brigade from the RK, MUP [Minism of Interior] forces up to the size of
the battalion500 people, specialforces of VJ[YugoslavAmy] up tu 120people and department
of helicopters), by main forces with crucial defense at larger front area to prevent the outbreak of
the enemy from the central Bosnia and Gorazde towards Sarajevo, partly by the forces in the
regions of TrebeviC,Mojmilo, VojkoviCiand ni&a [towns, villages,hills southwest of Sarajevo].
Cany out smaller effective actions withaimeof [illegible]the enemy. A part of the forces
together with other organizationalts to carry out attacthedirection: Vogosca-ZuC -
PofaliCi-Lukavica -Hrasnica [towns and suburbs surroundingthe city of Sarajevo] withthe task
to breakMuslim forces at the directions of the attacks. To inflastmore losses as possible,
take the hills ofC,ûrliC andHum [strategic hills overlooking Sarajevo] under control and if
possible Mojmiloas well,andin this way create conditions for undisturbed workof the factories
'Famos', 'ûroa', and 'Retis' [importantmilitary factory in Vogoséa,northwest of Sarajevo]. Cut
Muslimscommunicationbetween Sarajevoand Igman[large hill overlookingSarajevo airport] and
jürther tu central Bosnia,prepare conditionsfor partition of Sarajevo intotwoparts.
The operation is to be executed in two stages:
- in the first stagetake the hills of Zut, OrliCand Hum under control
- in the second stage take areas of Hrasnica and Butmir under control
Readiness for the attack: 19.12.1993. Chapter 8-Section5
Yugoslavmilitary involvementin Bosnia
and Herzegovinaafter 19 May1992
(...)"
[Order of the Cornmandof the SRK, addressedto comrnandof al1brigades
e.a., 15 Dec. 1993,emphasis added,Annex 1521.
The aim of the attack ordered in the foregoing document was theultirnate division of
Sarajevointo two parts. With the strategichills of ZuC,OrliCand Hum in their
possession, this would alrnost havebeen a rnilitaryfait accomplit. The partition of
Sarajevo would have effectively cut off the last line of communicationbetween the
city of Sarajevo and the rest of Bosnia and Herzegovina, thatis the tunnel under the
airport connecting Sarajevowith the Bosnianforces on MountIgrnan. If the planned
attack, carried out with Yugoslavhelicoptersand the assistanceof Yugoslav special
forces, would have succeeded, which it fortunatelydid not, it would inevitablyhave
meant the fa11of Sarajevo.
193. The ongoing activitiesof the special forces ofthe Yugoslav Army did not go
unnoticed. On 21 February 1994, the special rapporteurfor Yugoslavia,Tadeusz
Mazowiecki,expressedhis concem:O
"~heSpecialRapporteunotes withconcemthecontinuingsupportby the FederalRepublicof
Yugoslavia(SerbiaandMontenegro),includingthe direct involvementof the Yugoslavarmed
forces,forBosnianSerbforces which have bepnmarilyresponsibleforlarge-scale'ethnic
cleansing'andother graveviolationsof humanrigh[UnitedNations, Situationof
HumanRights in the temYPZto ortheformer Yugoslavia,sixthperiodic report
submitted by Mr. TadeuszMazowiecki,Special Rapporteurof the Commission
on HumanRights, E/CN.4/1994/110,21 Feb. 1994,p. 26, para. 154, emphasis
added].
Yugoslavaircrafi violated the no-fly zoneimposed bythe United Nations
194. Meanwhile,the YugoslavAirForce continuedto carry out flights and bombing
military andcivilian targets in Bosnia and Herzegovina,often using Udbina
(RepublikaSrpska Krajina in Croatia) as their base of operations. On 28 February
1994, NATO aircraft shot down four planes which wereviolating the no-fly zone
imposedby the United Nations.The incident wasreportedby UNPROFOR:
"UNPROFORpersonnel observed 4 Galebtrainerlgrouattackaircrafttakingoff fiom Udbina in
SectorSouthof theUNPAs,headingeast.At 05.33hoursAWACS maderadarcontact55
kilometressouthwestof BanjaLuka,heading southeast.NAfighteraircraftinvestigatedand
madevisualcontactwith Galebs.Warningswereissuedon appropriaterequencieswithout
reaction.At 05.37urs,UNPROFORpersonnelobserved2 Galebsdroppingbombson anReplyofBosniaand Herzegovina
ammunition factory in Novi Tra(15kilometres Westof Vitez). At the same time, UNPROFOR
personnel in Bugojno (43 kilometres southwest of Vitez) observed4 Galebs dropping 8 bombs,
hittingn ammunition compound and a hospital. Subsequently,4 Galebs were successfully
engaged. Contawas soon lowiththe othe2 Galebs. At 05.50 hoUNPROFOR personnel
observed one Galeb landing at Udbina from the south. The unauthorized flights occurred in an area
controlled by Bosnian ~er[United Nations,Note VerbaleDated1 March1994
jî-omthe Secretary-GeneralAddressedto thePresidentof the Securiv Council,
S/1994/5/Add.13,1 Mar. 1994,p. 6, No's. 1500-15051.
A correspondentof Le Monde in Yugoslavia, Florence Hartmannw , itnessedthe state
funeralof one of the pilots in a cemeterynear Belgrade[FlorenceHartmann,Le
Monde, 2 Mar. 1994,Annex 1531.A flag of the FederalRepublicof Yugoslavia
covered the coffin of the deceased.FlorenceHartmannfound out the names of two
of the pilots involved and discoveredthat they had been based in Podgorica
(Montenegro) until January 1994,when they weretransferredto Udbina.
195. On 19Novernber 1994, a Yugoslavfighter crashedin the vicinityof BihaCin the
northwestof Bosnia vnited Nations,Note VerbaleDated22 November1994jî-om
the Secretary-General Addressed to thePresidentof the SecurityCouncil,
S/1994/6/Add.84,28 Nov. 1994,p. 2, No's 324432451. Accordingto United
Nations officials, the pilot was identifieclas belongingto the YugoslavAirForce
[RogerCohen, TheNew YorkTimes,9 Dec. 1994,Annex 1541.
OperationVihor Chapter8 -Section 5
Yugoslavmilitary involvement inBosnia
andHenegovina after 19May 1992
196. Anothersubstantial actioncarried out by the Serbsin 1994was the attack on the
Gora2depocket. With the assistanceof units fiom across theborder, the Serbs
succeededin reducing the area of the enclave considerably. Thetown of GoraZde,
however, remained under the control of govemment forces. VJ troops supported the
attack logistically. This was confirmed in the 1996 reportpublishedby the renowned
British military research instituteJane 's:
"OperationVihor (Whirlwind), conductedagainst the BiH Gorazde pocket, was the only major
offensive action carried out by the VRS during 1994 (excluding operations aroundBihac during
October and November to contain the 5 Corps break out).
Vihorinvolved the concentration oftroopsfrom the Henegovina Corps,SarajevoRomanijaCorps,
the Drina Corpsand the logisticsupportof JA troopsfi.om across the Drinain Serbia.
Approximately50 tanksand 150gunsand mortarsweregroupedto support the operation which
lastedfLom 30 Marchto 15April1994. Although the fighting continued for sometime after 15
April, the VRS had effectively achieved its aim byby secunng the three main features
overlookingGorazde and containing the BiH within the LIN-declaredsafe area".
[Jane 'sSentinel, 1996,Bosnia-Herzegovina,p. 27, emphasis added,Annex
1551.
The Federal Republic of Yugoslavianot only offered logisticalsupport to operation
Vihor,it also sent specialunits to fight alongside the Bosnian Serb forces.These
specialunits, part of the YugoslavAmy's Corps of SpecialForces, actively
participatedin the assaulton the GoraZdesafe haven. During the attack they were
commandedby GeneralMile Mrksic, whom President MiloseviClater appointed
commanderof the Serb Army in Republika Srpska Krajina in Croatia [JohnPomfiet,
TheWashingtonPost, 4 July 1995,p. Al, Annex 1561.
197. Just after the attacksthe CroatianWeekly Globusissued an article and
analyzedthe operationslaunchedby the Serb Army:
"Will the two air-strikes against the Serb forces which have penetrated deep towards
GoraZde,one of the siUN designated safe areas in Bosnia and Haegovinabe able to halt
the massacre of5.000 besieged civilians? According to the data available 182far,
civilians have been killed and 747 wounded in this two-week SerboffenAs it has
alwaysbeen the casein sofur when the Serbswerefighting their crucial battles inBosnia
andHenegovina, regularforces of the Amy of the so-called Yugoslaviahave takenpart.
Forces of theUZiceCorps have been engaged onone of the threelinesof assault against
thismuslimenclave. They have made a break-through along the main line of assault from
Cajni~eto Goraide.At thedawn of the attack, launched28 March 1994,an entire
armoured brigadeof the Amy of Yugoslaviawith threeheavy artillery batteries marched
throughPrijepolje(FRY territory)towarakcajni~e,the area where a majorityof the Serb
forces were massingfor the assault.ReplyofBosniaandHenegovina
As a pretextforthislatestoffensiveagainstGo, erbs,asmanytimesbefore,
usedtheallegedMuslimattacksagainst the Serbiafniontierlaunchedin orderto link
withSanaak andKosovoandestablishthesocalledGreenTransversa. hereis no
way thattheBH Amy, armedwithinfantry armasndmortars,couldattackthe most
numerousarmedpower on the BalkansA.s amatterof fact,the Serboffensive isnot
a counter atttopreventa break-throuof theHAmy towardsSandZakb , uta
verycarefûllyplannedandimplementedmilitayperation[Km10Jeger,
Globus,15 Apr. 1994,Annex 1571.
As soon as the first nunours about the massiveoffensivereached theoutside world,
the international communitydenouncedthe Serb aggression,as it had done on
numerous other occasions. In spite of the internationaloutcry, the offensive
continued. In response,NATO canied out its first ground assaultin the forty-seven
year history of the organisation.On 10 and 11April 1994,two waves of air-strikes
dropped several bombs on Serb targets surroundingGoraZde,destroying a command
bunker and several armouredpersonnel carriers. Thebombs didnot deter the Serb
forces, which continued the bombardmentof the enclave and evencaptured 150
United Nations personnel. In return for their release,NATO refrained fiom further
air-strikes.
198. On 4 August 1994,under growinginternationalpressureto stop aidingthe Bosnian
Serbs, the governmentof the Federal Republicof Yugoslavia publiclyannounced
that it would break off political and economicrelationswith the Republika Srpska,
that it would prohibit the stay of Bosnian Serb leaderson its territory and that it
would close the borders with neighbouringBosnia and Herzegovina for al1transports,
except for humanitarian aid such as food, clothing and medicine [United Nations,
LetterDated 4 August1994j?om the Chargédilfaires A.I. of the Permanent
Missionof Yugoslaviato the United NationsAddressedto thePresidentof the
SecurityCouncil, Sl19941932,4 Aug. 1994,p. 21.With this officia1declarationthe
Belgrade authorities implicitly admittedthat, at least until 4 August 1994, theyhad
indeed supplied and supportedthe Bosnian Serbswith other than humanitarianaid,
that is: fuel, munitions,materiel and troops. Followingthe declaration, part of the
embargo was lifted and international observerswere installedto control the traffic
across the border with Bosnia and HerzegovinaPnited Nations, Security Council,
Resolution 943 (1994), S/RES/943,23 Sep. 19941.
199. In spite of this solemn declaration, however, the Respondent continued its military
operations across the border withBosnia and Herzegovina, whichas it turned out the
international observers failedto control effectively [see also Reply, Chapter8,
Section 101. Chapter 8- Section5
Yugoslavmilitary involvementin Bosnia
and Herzegovina after 19 May 1992
Yugoslavradar was usedto shoot downNATOaircrajt inJune1995
200. On 2 June 1995,that is, alrnosta year afier the Belgrade authoritieshad officially
announcedthat they would finally stop supportingthe BosnianSerbs, United States
Air Force pilot ScottF. O'Grady was shot downduring a NATO reconnaissance
mission above Bosniantenitory. This incidentgreatly surprisedNATO, asthe
Bosnian Serb Army was thought to lack the technology andthe ordnanceto cany
out such an attack on a western aircraft. TheWashingtonPostinvestigatedthe
incident and discovered thatBelgradehad provided the necessary assistance:
"(...) Western officials said the downing of O'Grady on June 2 provided a rare illustration of how
closelyMilosevic's Yugoslav armyworks with Serb forces in neighbouring Bosnia and Croatia
despite the assurancesto the contrary.
O'Grady was shotdom while flying an F-16 over tenitory controlled by Bosnian Serbs. What was
unusual about the shooting-down,NATO officials Say,was that the SA-6 antiaircraft missile site
thatcnockedO'Grady'sjet out of the sky 'locked on' to his plane onlyfor several seconds, thereby
making it al1but impossible for him to defend himself by firing a missile at the radar site.
Thereasonfor this,the oficials said, is that the SA-6site and al1other antiaircraftbatteries in
Serb-held territory throughouttheformer Yugoslavrepublics are part of an integrated air defense
system that is headquarteredin Belgrade and is underthe commandof thechief of staff of the
Yugoslavarmy. Thatman, Gen.MomciloPerisic, reports to Milosevic.
The system uses powerful radar based in Yugoslaviato locate the plane. Officers then relay that
information to Bosnian Serbldiers manning specific antiaircraft batteries along the flightpath of
the intruding plane, officials anders said. Thus, the length of time the radar will be tumed on
at the specific antiaircraft batteries tontruding NATO jets before firing on them is shortened
drastically. This makes the antiaircraft batteries difficult targets for the planes to hit."
[John Pomfi-et,The WashingtonPost, 4 July 1995,p. Al, emphasisadded,
Annex 1561.
The example of the air-defenseradars illustrates the continuingties and "in tandem"
CO-operation between the YugoslavArmy andthe Army of the Republika Srpska.
During the entire conflict the radarsin the Serb-heldtenitories in Bosnia and
Herzegovinaremained linked to the grid in Belgrade [see: Stephen Engelbergand
Eric Schmitt,International HeraldTribune,12 June 1995,p. 9, Annex 1581.The
missiles, necessary to make the air-defense systernoperational,were suppliedto the
Bosnian Serbs by the YugoslavArmy, shortly before ScottF. O'Grady'splane was
shot downover Bosnian tenitory:
"(...were it not for Milosevic,no missile would have destroyed O'OrF-16sin the fini
[KarstenPrager, TimeInternational,17 July 1995,p. 19, Annex 1591.
TheYugoslavArmyparticipated in and directedthe 1995 attackon SrebrenicaReply of Bosniaand Henegovina
The continuingCO-operationbetween theFederalRepublicof Yugoslavia and the
BosnianSerbs is also illustratedby the genocidalattackon Srebrenica,which
initiatedon 6 July 1995, when theSerbs shelled thetown andthe surrounding
observationposts set up by the United Nations. The attack onthe safe area continued
through 11 July 1995,when Serb forces entered the townof Srebrenicaitself.There
is ample evidencethat Yugoslav Army units were amongthose forces.The presence
of theYugoslav Army in Srebrenicawas for exampleacimowledgedby the ICTFY
in The Hague,which indicted both RatkoMladiCand Radovan KaradZiCfor their
sharein the horrendous slaughterof non-Serbsthat followedthe fa11of the enclave.
In the Reviewof the Indictrnentof MladiCand KaradZiC,Judge Fouad Riad, among
other things considered thefollowing:
"lt isworthnoting thatit appearsfiom the witnessstatements thatnot onlyBosnianSerbsoldiers,
but alsosoldiersji-omthe Federal Republicof Yugoslavia(Serbia-Monte) erepresent during
the take-over of Srebrenica.Thesesoldierswereeasilydistinguishtheirclean-cut
appearanced, istinctiveuniformsanduseof Serbiandialects.Elementsof the YugoslavSeople
Army ('JNA 2 includingtheNovi Sad Corpsand 'Uvic'[Uzice]Corps,as well asirregularsloyal
to Arkan',wereseen by a numberof witnessesin andaroundSrebrenica.Eithertheseadditional
troopswerealso underthecommandof thesuspects,ortheywereunderthe controlof a different
commander" [ICTFY,Trial Chamber,Review ofthe Indictrnent,TheProsecutor
v. Radovan Karad2ii.and RatkoMladii, CaseNo. IT-95-18-1,16Nov. 1995,
pp. 3-41.
For their role played in the take-overof the Srebrenicaenclave, both RatkoMladiC
andRadovanKaraaiC were indictedfor genocide.
The VJ participation in theattackwas alsoascertainedby HurnanRights
Watch/Helsinki in October 1995, whenit published a report on the take-over of the
enclave:
"~everalwitnessesinterviewedby HumanRights WatcWHelsinkirepresentativesut that timestated
that Serbsfrom Serbiaproper andfromfonnerly Serb-heldareasof Croatiawerepresent or took
pari in theugust 1995ofensive against the Srebrenica'safearea'.Personsinterviewedby
HumanRightsWatch/HelsinkriepresentativerseportedthattheyrecognizedSerbianand Croatian
accents(specificallyfiomtheKrajinaareaof Croatia)spokenbymanyof thesoldiers.Theyalso
reportedseeingemblems,insignias,patchesandunifom wombytroopsfiomthoseareas.One
witnesstestzfîedthat whilein custody,one of hisguardsturnedout to be an acquaintance whowas
a soldier in the Yugoslavarmyand whowasa residentof Serbiaproper, i.e., he wasnot a Bosnian
Serb accordingto the witness[Bosnia-Hercegovina:"TheFa11of Srebrenicaand the
Failure of U.N. Peacekeeping",HumanRights Watch/Helsinki,Vol. 7, No. 13,
Oct. 1995,p. 11, note33, emphasisadded, Annex 551. Chapter 8 -Section 5
Yugoslavmilitas, involvement in Bosnia
and Henegovina afier 19May 1992
The foregoing showsthat Yugoslavforceswere deployedduring the attack on
Srebrenica.The involvementof the YugoslavArmy was howevernot restricted to
this deploymentof units on the field. Compellingevidence existsthat the entire
operationwas orchestratedby the commanderof the Yugoslav Army,General
Momcilo PeriSi6.One month after the fa11of the enclave, the UnitedStates daily
Newsday canied the followingreport:
"The head of the Yugoslavarmy directed the BosnianSerb campaign againstSrebrenica, and
Yugoslavsoldiersfought along withthe rebels whenthey overran the 'safehaven'in July,
according to western and Bosnian intelligencesources.
Westem officials have long suspected that the governmentof rump Yugoslavia in Belgrade has
gone beyond its acknowledgedrole as protector of the Serbs who rebelled against the Bosnian
govemment more than three years ago. The latest reports,which Yugoslaviadenies, indicate thatut
least in the onslaught against Srebrenica, Belgrade directedthe battle and provided some soldiers
and weaponson the ground.
Intelligenceficials from two western countriesandfrom Bosnia said that the commander of the
Yugoslavarmy, Gen. Momcilo Perisic,was on a mountaintop acrossthe border in Yugoslavia,
sending instructions and counselto Gen.atko Mladic, the commander of Bosnian Serb militas,
forces. The radio conversations, interceptedby intelligence agencies, took placebefore, during and
afrerthe battlefor the enclave captured by the Serbs onJuII.
'Mladic and Perisic conferredconstantly about theirstrategy and what they were doi'said one
of the western oficials, who like al1of the intelligenceofficers interviewedasked to remain
unidentlfied. The officerssaid they are still analysing theradio intercepts, but 'Mladicis always
asking Perkic about what he should be doing. Thisdidn't surprise us, because they are the same
rank, but Perisic was clearly in command and had the upper hand.
(.-.)
According to a senior Bosnian government official, whoalso spoke on condition of anonymity,
several hundred Yugoslav infanûymen fought alongside Bosnian serbsoldiers when they attacked
the enclave, where about 42,000unarmed civilians, mostly Muslims, weretrapped. The Yugoslav
troops fought in their units, but it could not be learned whether they reported to Bosnian Serb
officm.
'ï'herewere about 400 or 300 infantrymen, in bunches o50,80 or 100 who helped out,'said the
wesrEuropean militas, intelligence officer. 'The BosnianSerb army has always hadplenty of tanks
and hew artillery, but theyte always beenplagued by a shortage of troo'he said.
Uh' officials and diplomats UN headquarters in New York could not confirm that the Yugoslav
armyhad helped or directed Bosnian Serb troops.But there was no surprise at the questAonU.S.
oficial sardsuch evidence had su$aced in thepast and a keyUN officialsaid there was a general
asswnprionthat Bosnian Serb troopsfrequently worked in tandem withor under the supervision of
the Yugoslavarmy.
(4
On June 17, about three weeks before the Serbs launched their offensive against the enclave,
Bosnian rnilitary officials said firstnoticed seven Yugoslav tanks, mostlyM-84s, and dozens
of mored personnel carriers cross near Srebrenica at the Drina river, which separates Yugoslavia
and Bosnia.
'We were listening to their communicationsand we couldhear them as they crossed the river and
headed to Bratunac,' said another Bosnian govemment official. Bratunac is a small tom about 10
miles north from the Srebrenica pocket, where thousands of Bosnianrefugees were taken shortly
after the enclave was ovenun in July. Of the 42,000 refugees about 7,000 are still missing.Reply of Bosnia and Herzegovina
Six days later, on June 23, Bosnian military covertunits operating near Srebrfivea observed
Yugoslav transport helicoptersfiy across the border under cover of darkness toward Bratunac, the
Bosnian govemmentofficial said.
'We knew therewere some helicopterjlights and thereS no questionthat the Yugoslavsinfiltrated
some oftheir o#cers to help direct the Srebrenica campaign,but we've never been able toJigure
just how many,'said NATO military intelligenceof"cer.
[Cabell Bruce, "BelgradeBlamed - Accusedof directing attackson safe
haven", Newsday, 12Aug. 1995,p. A07, emphasis added,Annex 1601.
The Yugoslav army thereforenot only participatedon the ground in the attack on
Srebrenica.It also sent officers across the Drina river to commandunits of the
Bosnian Serb forces in the assault.In addition,the commanderof the Yugoslav
Army, General Momcilo PeriSiC,directedthe Serb troops across theborder from a
mountain top. When preparingthe attack andduring the actual take-overof the
enclave, General Ratko MladiCsimply carried outthe orders given by his superior
officer on the other side of the Drina river.
204. The participation of the Yugoslav Army inthe take-over of the Srebrenica safe
haven was confirmedby the British military research instituteJane S in their 1997
report on Yugoslavia [Jane 'sSentinel, 1997Edition, Yugoslavia,para. 10.7.1, Annex
1611.The involvementof General MomciloPeriSiC was reported by, arnongothers,
TheNew YorkReviewof Books [Tom Shanker, The NewYorkReviewof Books,9
May 1996, p. 14,Annex 162; seealso AndreasZurnach,Basic Reports, No. 47, 16
Oct. 1995,p. 1, Annex 163;Djuro Kozar in LjubljanaOslobodjenje (Europe
edition), 20-23 July 1995, FBIS-EEU-95-142, Annex1641.
The example of Srebrenicais emblematicfor the involvementof the Federal
Republic of Yugoslaviain Bosnia and Herzegovina. Yugoslavtroops continued their
military activities across the borderuntil the very end of the conflict. Officersfrom
the Yugoslav Armyin additiondirected the operationscarried by the Serb forces in
Bosnia and Herzegovina, givingdirectivesto both the Bosnian Serb Army and their
own troops deployed acrossthe border. When deployedon the territory of Bosnia
and Herzegovina,these Yugoslavforces operatedin close CO-operation with their
Bosnian Serb peers. Sometimes,the VJ were directly involvedin genocidal acts,the
atrocities accompanyingand following the take-over of Srebrenicabeing the most
poignant exarnple.
6. Federal and Serbian Ministriesof Interiorinvolvement inBosnia and
Henegovina Chapter 8-Section 6
Federal and Serbian Ministriesoferior
involvementin Bosnia and Herzegovina
Introduction
206. In the former Socialist Federationof the Republic of Yugoslaviathere were six
Ministries of Interior (MUP) on the Republic level, overseen by the Federal Ministry
of Interior.After the dissolutionof the SFRY,this federated structure remained, in
the Respondent state. Now, there is a Republicof Serbia MUP, a Republicof
Montenegro MUP and a Federal Republicof YugoslaviaMUP. Before the outbreak
of the fighting in Bosnia and Herzegovina, aMUP for the Bosnian Serbs was
organised which functioned in the manner of a Republic levelMUP. The largest and
most powerful of these ministrieswas the MUP of the Republic of Serbia.
207. The Applicant will demonstratethat there was close coordination and cooperation
between the organs of both the FederalMUP, the MUP of the Republic of Serbia
and the MUP of the "Republika Srpska". TheSerbian and Federal MUPs, for
example, organised and armedan ethnically pure BosnianSerb MUP for Serb
controlled areas. In addition, combat units of the Federal and Serbian MUP were
deployed across the border in Bosnian and Herzegovinathroughout the entire
conflict. The MUPs of Serbia and Montenegroarrested Muslim refugees in the
Federal Republic of Yugoslavia and delivered themto the "Republika Srpska". The
Serbian MUP also played a key role in organisingand supplyingthe Serbian
paramilitary organisations, whichwere responsible for somethe worst genocidal acts
comrnitted in Bosnia and Herzegovina. Finally,in the Federal Republicof
Yugoslavia, the MSJPof the Republic of Serbia also coordinatedthe forced
mobilisation of Bosnian Serb refugees into the Bosnian Serb Army.
208. Each of the mentioned Ministriesof Interior is responsible,among other things, for.
the police and the Sluzba Drzavne Bezbednost(SDB), the State Security Service.
These were key agencies in the control of the various Serb forces involved in the
ethnic cleansing campaign in Bosnia and Herzegovina.The reason for this is that in
Yugoslavia the special police units of the MUPand the SDB provided a reservoir of
well-trained, experiencedand politically reliablemen. Indeed, the police troops of
the MUP and SDB are presentlythe elite of the security forces of the Federal
Republic of Yugoslavia.In the opinion of Jane'sInformation Group, the specialist
British military intelligence guide:
"~heSerbianpolice iswell-equippedandwell trainAdspecialanti-terrotnitis basedat
Batajnica,earBelgrade.Thepolice force is nominallysubordinateto the Ministryof Interior, butReply of Bosnia and Herzegovina
is directly controlled by President Milosevic. Armysare currentlybeing recruited directly
into thepolice rathern the armedforces. Thepolice are consideredpolitically more reliable
thanthe JA[vJ]."[Jane 'sSentinel, 1997Edition, Yugoslavia, para.10.14.2,
emphasis added, Annex 1 651.
209. The Helsinki Comrnitteefor Human Rights in Serbiahas commentedupon the power
and importance of the Serbian police during MiloSeviC's reign:
"~hereareindicationsthatthe Serbianpolicehas grown outof al1propto becomean
importantleverf powerIn terms of its numbersand armaments,it is a seriousand professional
armedforce in theands of the supremerepublicanauthorit[HelsinkiCommitteefor
HurnanRights in Serbia, Reporton the state of Human Rights in Serbia in
1995, p. 3, para. 10, emphasisadded, Annex 1661.
210. As was presented in the Memorial [Memorial, Section2.3.41,there existed a group
within the various organs of the governmentof Yugoslavia,known as the "Military
Line", which CO-ordinated the implementationof the Belgradegovernrnent'splans
for the Bosnian genocide, thatis the RAMplan. The membersof this group were al1
personally loyalto President MiloSeviCand included: JovicaStaniSiC,Head of State
Security and Assistantto the Ministry of Interior, his deputy Frano SimatoviC,
Radovan StojiEiC,the late Head of Public Securityand Assistant tothe Minister of
the Interior, and Mihalj Kertes,the Deputy Interior Minister. Al1these men were in
important officia1positions in the Serbianor FederalMinistry of Interior.
211. The above members of the "Military Line"played a cardinalrole in coordinatingthe
activities of the various MUPs. In the followingpages, the Applicantwill further
elaborate on the important role played by the Serbian Ministryof Interior and the
collaboration between the MUPs in Yugoslaviaand the "Republika Srpska".
Distribution of arms
212. As demonstratedby the Applicant in this Reply andthe Memorial [Reply,Chapter 8,
Section2 and Memorial,Section2.3.41,in the months leadingup to April 1992,the
Serbian MUPin close cooperationwith the JNA was helping arm the Bosnian Serb
extremists of the Serbian Democratic Party (SDS). The arming wasorganised
according to the RAMplan. In his persona1diary, the SDS president in Kalesija,
Petar JankoviCdescribes visits to Belgradein searchof weapons and support for the
establishmentof armed formationsand Crisis Staffs [see also Reply, Chapter 8,
Section 31.RadrniloBogdanoviC,the Minister of Interna1Affairs of the Republic of
Serbia, andJovica StaniSiC,Head of the State Securityof the Republicof Serbia, are Chapter 8 -Section 6
Federal and Serbian Ministriesof Interior
involvementin Bosnia andHerzegovina
described as authorising the issue of weaponsand materiel [See Reply, Chapter 8,
Section 21.
Parallel securiQ structures
213. In those areas to be taken over as part of the plan to create a Greater Serbia, parallel
political and police structures wereput into place, long before the outbreak of
fighting in Bosnia and Herzegovina.These parallel structures were set up with the
assistance of the SerbianMUP and the JNA. The JNA, for example, supplied al1the
equipment - ranging from helicopters to a mobilekitchen - of the parallel Serb
"Centre of Security Service"in Banja Luka [see 2nd Military Districts, Request
addressed to the Federal Secretariat for People'sDefence, str. conf. 3 11103-41,24
April 1992, Annex 1671.The creation of parallel security structuresby the Serbs was
affirmed in the Judgement of the Trial Chamber at the ICTFY in the case against
DuSkoTadiC,who was himself a reserve policeman:
"1n furtherance of the creation of a Greater Serbia, the theory of whichhad began to assume reality
afier the 1990 elections, the SDS rapidly beganto establish separate govemmental structures.In
Prijedor the SDS surreptitiously established aate Serbian Assemblyat the direction of the
central SDS, the firstairman of which was the Deputy Mayor of theofficial Municipal
Assembly, as well as aeparate police force and security unit which were closely linkedto Serbian
officiais outside the opltina. This occurred about six months before the take-overof the town of
Prijedor and their existence waskept secretthe non-Serbs.Planningfor theta&-over, which
included the establishmentof a Serbian Secretariatofrna1Affair('SU P ,took place at the
Prijedor military barracks and al1of the Serb employeesof the legitimatePrijedor SUP
participated.ncluded in this preparation was the unauthorised retumof illegal weapons confiscated
fiom Serbs andthe aiding of the Serb military in circumventingcontrol over the admittanceto the
Prijedorbarracks.
The link between these separate Serbian govemment structuresin Prijedor andthose outside of
Prijedor became evident when the Serbian Assemblyin Prijedor joined the Autonomousion of
Krajina, part of Republika Srpskawhich the SDS consideredto be part of the future 'new
Yugoslavia'. TheSerb leadershipater acknowledged that the take-overhad been planned in
advance and was part of a coordinatedeffort. TheChiefof Police, in an interview givento the
newspaper Kozarski Vjesnikapproximatelyoneyear luter,stated that thepolice worked 'handin
hand' with the military andthepoliticians andthat he took instructionsfromthepolice head-
quarters in Banja Lukaandfrom the MinistryofInterior of the Republika Srpska,it being a co-
ordinated effortbetweenpoliticians, police and military author[ICTFY, Trial
Chamber, Opinion and Judgement,Prosecutor v. DuSkoTadit, Case No. IT-94-
1-T, 7 May 1997, pp. 50-51, paras. 134-135, emphasis added].
Elimination ofpolice oficersReply of Bosnia and Herzegovina
214. One of first steps of the police of the Bosnian SerbMUP was the removalof those
non-Serbs whocould have resisted.This process was describedin great detail earlier
in this Reply [Reply, Chapter 5, Section23.This Sectionwill deal briefly with the
non-Serb police members. They,as possible foci of resistance,were usually the first
to be arrested or murdered, ofien by their former coileagues. The Judgmentof the
Trial ChamberICTFY in the TadiCcase recountsthe evidence of the former
commanderof the police stationin Prijedor:
"Fikret Kadirii, commander of the police stationin Prijedor until 1991and thereafter commander
of the Traffic Police in Prijedor until the take-over, testified that he was arrestedin his apartment
in Prijedor on 24 May 1992.He wastaken to the first floor of the SUP and after a while he heard
'beatings, screaming, shouting, shoot. rom the window hesaw a tank with twooldiersgoing
by fiom the direction ofthe post office towards theSUP, their hands raisedin the three-finger Serb
salute, shooting with automatic rifles.Then he saw two busesstop in front of the main entrance of
the SUP and two soldiers got off and posted themselveson both sides of the bus doors.As the
prisoners, al1of whomwere Muslims,le) the buses they weremade to runinto the SUP with their
hands on the back of their headr. SDS President, SimoMiikoviC,dressed in civilian clothes,
and jkondrid Vaso,a police inspectorfiom Sarajevo dressed in uniform,and botharmed, atre
the entrance.He could hear cursessuch as 'Alija, fuck you, fuck yourUstaSamother,' coming
from the entrance of the SUPas well asreams of people in pain. Almostal1the Serb police
officers were in the SUP at the time. Later that eveninghe was taken from the SUP for
interrogation,ring which hewas beaten fiom head to toe with rubber bats, wooden poles,a
pistol, a knife and cables and tortured until he was rendered unco[ICTFY,Trial
Chamber, Opinion and Judgement,Prosecutor v. Duiko Tadit, Case No.IT-94-
1-T, 7 May 1997,p. 167, para. 469, emphasis added].
215. This systematic identificationand elirninationof those non-Serb law enforcement
personnel who could have protectedthe civilianpopulationwas not limited to
Prijedor. This was reproducedin those OpStinaswhere the Serb forcestook control.
In Sanski Most,for exarnple,approximately halfthe non-Serb policeofficerswere
killed during interrogations.The United States of America Departmentof State
recorded:
"A 34-year-old Croatianfiom Sanski Mostsaid that the Serbian oppressionof the Muslimand
Croatian inhabitants of his town, which had begunin April (1992) with the dismissalof non-
Serbian police officers, reached a climax on May 23 when a Serbian artillery element of the sixth
Krajiska Brigade began advancingon Muslim areas from the surrounding hills.The following
moming, three and four-man groups ofrmed Serbs began arresting male membersof Muslim and
Croat families. The men were taken to the basement of the police head-quarterswhere they were
beaten for days. Someof the men werelater released but33onon-Serbian policemenfiom
Sanski Most, 17 were killed there during the interrogations. Eight were sentto ~[United"
Nations, Letterdated 9 March1993FromtheDepuîyPermanent
Representativeof the UnitedStates ofAmericato theSecretaryGeneral,
S/25393, 10 Mar.1993,p. 61. Chapter 8 -Section 6
Federal and Serbian Ministries ofInterior
involvement in Bosnia and Herzegovina
Bureaucracyof ethnic cleansing
216. Two months after the captureof Zvornik in April 1992by the Serb forces, the non-
Serb civilians were assembledand transported through Serbia to Subotica on the
Hungarianborder where they werelater expelled. The SerbianMUP police forces
were responsiblefor the administrationof the deportation.This was describedby
Professor TadeuszMazowiecki, Special Rapporteurof the UnitedNations
Commissionon Human Rights;his report illustrateshow the Serbian MUP were
utilised in one of the first large forcible transfers of civiliansat the beginning of the
war, the processthat would becomefamiliar to the rest of the world as ethnic
cleansing. The followingincident showsthe Serbian policeas a necessaryand
effective part of this machineof ethnic purification:
"98. Muslimwitnesses fiom the region of Zvornik in eastem Bosnia and Herzegovina reported that
their registrationas residents was cancelledat the local police station afier theregion was taken by
Serb forces. One witness reported that the words 'de-registered from Zvornik, departing for
Subotica' were wriîtenon his identityrd at the police station. Suboticais a border crossing point
between Serbia and Hungary.The Muslims from this witness' village were reportedly givan
ultimatum to leave, accompaniedby the burningofseveral houses and the firing of shots in the air
as warnings.
99. In June 1992, deportees from Kozluk and Zvornik, towns whichad a Muslim majority, gave
the following account of their forced deportationto Hungarian border guards.The towns were
sealed by serbforces. Muslimamilies were told they had six hours topack their belongings and to
go to a certain gatheringpoint. In the case of Zvornik, it wasafarmyard. Ate gathering
points, theames of some of the deportees wereput on a list, and everyone was individually
ordered to sign this list. They wereormedthat by their signature they 'volunt'gave up al1
their belongings. The deportees were then ordered, some ut gun-point, to board buses and trucks
and later trains until they arrivedut Palic (Vojvodina), where they wereput up ut the local camp
site. Although the deportees apparentiydid not request, they wereprovided with Yugoslavpassports
ajïerphotographers came to the camp sitefor thispurpose. For some deportees, the issuing
authoris, of their Yugoslavpassport was 'MUP(Ministryof Interna1Affairs) of the Republic of
Serbia, Secretariat in Suboticaeportees reportedthat between 26 June and 1 July 1992 there
were about 1,200 persons from Kozluk and another 1,800 fiom Zvornikat the Palic campsite. Afier
being taken to the border, these persons were admitteHungaryas refugees."[United
Nations, Situationof HumanRights in the territoryof theformer Yugoslavia,
Report submitted by Mr. Tadeusz Mazowiecki, Special Rapporteuo rf the
Commissionon HumanRights, E/CN.4/1993/50,10 Feb. 1993,p. 22, paras.
98-99, emphasisadded].
This report demonstratesakey issue in relation to the MUPin various regions. The
MUP of the Republic of Serbia acted in conjunctionwith the Bosnian Serb police to
effect the ethnic cleansing.The Bosnian Serb police forces actedand were treated as
if the "RepublikaSrpska"were part of the Federal Republicof Yugoslavia.Reply of Bosnia and Herzegovina
Handing over of non-Serbrefugees
The MUPs of the Republicsof Serbia and Montenegro closelyCO-operated with the
"Republika Srpska"to deliver non-Serb refugees,who posed them no threat, into the
Serb-run camps in Bosnia and Herzegovina.In a number of incidentsthe police from
the MontenegrinMUP kidnappedand arrested Bosnian Muslim refugees, at the
request of the Bosnian Serb police. After having been arrested,the refugeeswould
be transferred to the "Republika Srpska" and detainedin the camps describedearlier
in this Reply [Reply,Chapter 5, Section 51.The transfer of non-Serbs fromthe
Federal Republic of Yugoslavia to the "Republika Srpska" willbe discussedat
greater length later in this Chapter [Reply,Chapter8, Section 121.
Serbianparamilitaries
218. In addition to their part in setting up of the Bosnian Serb MUP and returning non-
Serb Bosnian refugeesto the "Republika Srpska",the SerbianMUP aided the process
of ethnic purificationby organisingand supplyingthe Serbianpararnilitaries who
were responsiblefor someof the more terrible genocidalatrocities comrnittedin
Bosnia and Herzegovina.The reason that the MUP of the Republic of Serbia was
used for this task is that they were directlyunder the control of SlobodanMiloSeviC
[Jane 'sSentinel, 1997 Edition Yugoslavia, para.10.14.2,Annex 1651.The Applicant
will discuss these pararnilitary organisationssuch as the "Serbian VolunteerGuard"
(Arkan's Tigers)and the "Serbiancetnik Movement"(Se~elj'sChetniks)at length in
the next Section of this Chapter [Reply, Chapter8, Section 71.A brief overviewwill
be given here to illustratethe cardinalrole played bythe MüP of the Republic of
Serbia in the organisationof these groups.
219. Writing in Tribunal,the newspaperof the London Institute of War & Peace
Reporting which monitorsthe ICTFY,Srdja PopoviC(a well knowndissidentduring
the Communistera in Yugoslaviaand CO-founder of the independentcurrent affairs
publication Vreme)stated:
"Thepolice have been and remainMiloSeviCS mainpower base. Mostpolice oficers were
appointed duringhis rise topower, between 1987and Duringthisthe, MiloSeviretained
control notonly of Serbia,butalsoover federal instand SerbleadersutsideSerbia.
RadovanKaradZiC andGen.RatkoMladiCin Bosnia,andMilanMarti6andMilanBabiCin Croatia,
lasted onlyas long asMiloSewanted.MiloSeviCalsocontrolledallegedlyvateinstitutions,
suchas thebanksofficiallyownedbyJezdimirVasiljevieandDafinaMilanovi. hesebankspaid
forthewarby plunderingpeoplethroughpyramidschemes.Behindsucheffigies of institutions
loomedthe realpower-thepoliceandtheirboss,MiloSevi.hepolice took part in military
operations in Croatia and Bosnia in two ways. First theyparticipated directly in units of the so- Chapter 8- Section 6
Federal and Serbian Ministries of lnterior
involvement in Bosnia and Herzegovina
called Red Berets, commanded by Serbianpolice ofJers directly under Miloievit 'scontrol: Jovica
Staniiif, head of State Security and Assistant to the Minister of the Interior; hisdeputy Frano
('Frenki3 SimatoviC,Radovan ('Badza 3 Stojic'iC,now Head of Serbian Public Security and
Assistant to the Minister of the Interior, and Mihalj Kertes, the Deputyor Minister. Second
they controlled the paramilitary unitsand their leadersljko ('Arkan7 RainatoviC (wantedfor
robbery inseveral European countries), Dragoslav Bokan (injailfor robbery in Serbia), Vojislav
Sefelj, Mirko JoviC,Daniel Sneden ('KapetanDragan 3 and Vojin ('Zuca3 VuckoviC.These
paramilitary leaderssay that they were armed by the JNA and the police, and that military
barracks, transport,ngorms, training, and commandingpersonnel were placed ut their disposal.
They drove police vehicles. The police and the army directed them tocific locations in Bosnia
and Croatia and CO-ordinatedtheir actions with those of the army. They hadpolice escorts through
Serbia, as well as unhindered passage acrossSerbia borders, and they were even allowed to
import their war booty into Serbia. When Se~eljtravelled to inspect his unitshe went by military
helicopter."[Tribunal, A Publication of the Institute for War and Peace
Reporting, No. 7, Feb./Mar. 1997,Srdja Popovik,p. 1, emphasis added, Annex
1681.
220. The leaders of some of the Serbian pararnilitaryorganisationshave been frank in
interviews concerning their links with theMUP of the Republic of Serbia. Vojislav
Se~elj,leader of the Serbian Radical Party and their rnilitary organisationthe Serbian
Cetnik Movement, said in an interview in December 1993:
"1n addition, our volunteers took part in combat as part of the special units of the police from here
[Serbia], under the command of Mihalj Kertes, in eastern Slavonia and on theterritory of the
Srpska ~epublika."[C. Milivojeviccekarnhapsenje" ("1Await Imprisonment"),
Spona, Frankfurt, Germany, 18Dec. 1993, p. 15, ernphasis added, Annex1691.
One of Se~elj'ssub-ordinates, BranislavVakiC,described in detail the relationship
between the paramilitary forces and the police, when interviewedby Julian Borger of
the Guardian:
"~hen the Chetniks slouched into Slavonia, many of themwere canying only hunting rifles.
'Badza' (Radovan Stojicic, Serbian assistant Ministeorf Interior) soon put that right. 'MUP (the
interior ministry) startedto help the Chetniks in May,' says Vakic. 'The MUP wereat that time
under the control of 'Badza-Radovan Stojicic. We just gotweapons from them butwe started to
act together inanuary 1993,in Skelani and towards Srebrenica.' Bythe time the Chetniks moved
on to Bosnia, Vasic was in charge of 6,000 men. 'Badza' movedto Bosnia at the same time. His
influence is clearom some photographs Vakic displaysin his office in Nis. A picture in 1991
shows him and a handfulof fellow Chetniks brandishing afew 1940's thompson machine guns.
Two years later, in a snap takennear Srebrenica, Vasic is posing with a foot-long silencer with a
telescopic scope.Wegot uniformsfrorn the MUP and al1the weapons we wanted; machineguns,
sniper rijles with night scopes and mortars,'he recalls. In early 1992 Vakic and his men trained at
a military base near Belgrade,alled Babanj Potok. Later in 1992 and 1993, his Chetniks moved
down to a new base in BajinaBasta (on the Bosnian Border) wherethey met a 'Frenki'Simatovic,
who ran an interior ministry oulfit called the 'redb'.Frenki not only trained Vakic'smen, he
accompanied them onforays against muslims as thefighting spread to Bosnia. %rom September to
October 1992 (months after Yugoslavforces were supposed to have of/icially 'withdrawn'fromReply of Bosnia and Herzegovina
Bosnia) wefought with Frenki unitsin Bratunac(a Bosniantown nearSrebrenica).They were
good but didn't fight with thesame heart as me nationalists,' addsVakic. In August 1993, he sent
300 of his men for further training in a Serb interior ministry campon Mount Travian nearBajina
Basta but says that the relationship broke down soonaftewards when they tried to make them
leave the radical party. Thered berets said that they were only loyal tandihis Serbian
~ocialist [Julian Borger,TheGuardian, 2 Feb. 1997, Section2, p. 2,
emphasis added, Annex 1701.
221. The MUP were also active in aiding the other main Serbianparamilitarygroup
operating in Bosnia, the SerbianVolunteer Guard or Arkan's Tigers:
hile 'Frenki' took over withas the Chetniks handlerin eastern Bosnia, 'Badza'linked up with
Zeljko 'Arkan' Radnjatovic and his notorious Tigers m. arko Nicovic, a former Belgrade
police chief, says that 'Badza' formeda special relationship with Arkanin eastern Slavonia.'From
that moment on, he adds, Arkan,a former bank robber with a long and international
record, became untouchable.The 1991photograph (above) amply illustrates that 'special
relationship.' Arkan andBadza are standing together smilinginof the Tiger's training camp
in Erdut, near the eastern Slavonianfiont. Another photograph showsajeep emblazoned with
Tigers insignia bearing Serbianerior ministry numberplate[Julian Borger,The
Guardian, 2 Feb. 1997, Section2, Annex 1701.
Military operations
222. As mentioned in the introductionto this Sectionof the Reply,the Serbianpolice also
took part in military operationsacross the border. Armed police units from Serbia
proper participated directly in the fightingin BosniaHerzegovina organisedas police
combat battalions. These includedthe elite combatunits of the SDB, the so-called
"red berets".
223. From the very beginning of the war, until the last months of 1995,the combat units
of the MUP and the SDB of the Republic of Serbia were involvedin attacks on the
non-Serb population of Bosnia and Herzegovina. Speakingabout the attack on
Zvornik on 8 April 1992,in the "Gatesof Hell" episode of the acclaimedBBC
docurnentaryseries on the break-up of Yugoslavia,Vojislav Se~eljof the Serbian
Chetnik Movement said:
"~iloSevi6 was in total control. The operation wasplanned from Belgrade. The Bosnian Serbs did
take part. But the best combat unitscamefrom Serbia. Theywere specialpolice commandos, 'red
berets:they arefiom the Serbian Secret~ewice.[VojislavSe~elj,interviewedin The
Death of Yugoslavia,"The Gates of Hell", Episode 4, emphasis added,Annex
211. Chapter 8-Section 6
Federal and Serbian Ministriesof lnterior
involvementin Bosnia andHerzegovina
224. In Annex V of the Final Report of the United Nations Commissionof Experts, "The
Prijedor Report", Judge Hanne Greve confïrmedthe continued presenceof police
forces from Serbia on the territory of Bosnia and Herzegovina. Whendescribing the
attack on the town of Prijedor she stated that:
"Specialpolice unitsfiom Nis (inSerbiaproper), which at the time [30 May 19921were stationed
in Banja Luka, Marticevci fiom Knin (in Croatia), anda unit with some 50 tanks and cannons fiom
Banja Luka participatedon the Serbiane in the fighting.The mentioned groups camein addition
to approximately 5,000ilitary men stationed in Prijedor after the destruction of the Kozarac
area."[UnitedNations, Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol.1)Annex V "The Prijedor Report", p. 55, para.
276, emphasis added].
The attack on Prijedor took place on 30 May 1992,that is, some two weeks after the
Respondent had announcedthat al1Yugoslav troopshad left the territory of Bosnia
and Herzegovina.
225. According to the United States Departmentof State, Republic of Serbia police and
Yugoslav special police forces,Federal Specijalci, were involvedin the ethnic
cleansing of BrEko:
"3000 women, menand children were killedduring May and June [1992], 95% ethnic Muslims
and 5% Croatian. The bodies were dumpedin the Sava river and bumt in factories in Brcko.
Torture,rape and killingswere institutedby the Serbianpolice, Chetniks, Yugoslav Federal
~~ecijaici.[US Departmentof State, Bureauof Public Affairs, Dispatch, 16
Nov. 1992, Vol. 3, No. 46, p. 827, emphasisadded, Annex 961.
226. During the entire war, obituariesfor those policemen from Serbia who died during
combat in Bosnia-Herzegovinawere published in Politika, the govemment controlled
newspaper from Belgrade.
The TrnovobattleJield
227. In the Sumrnerof 1995,the Serbs launched severalmajor offensives across Bosnia
and Herzegovina. The so-called safe havens in the north and east of Bosnia were the
main targets of this offensive, which eventually led to the fa11of Srebrenica and
iepa. The attack on Srebrenicaand the Yugoslav involvementin it was discussed
earlier in this Reply [Reply, Chapter 8, Section 51,but it is important to stress that
Yugoslav forces, in particular special policeunits from the Serbian Ministry ofReply ofBosnia and Herzegovina
Interior in Belgrade, were also active on other fronts and that these activities were
not of an incidental, but of an ongoing and structurednature.
This structured nature of Belgrade's involvementin the flghting in Bosnia and
Herzegovina is clearly exemplified by some military documents which were
recovered by Sarajevo police officers in Ilidia, after this Sarajevo suburb was
reintegrated into the Federation of Bosnia and Herzegovina,on 12 March 1996. The
documents al1concem the area of Trnovo, a town located somethirty kilometers
south of Sarajevo, on the important road from Sarajevothrough FoEain Bosnia and
Herzegovina to NikSi6in Montenegro. During the conflict the town wascontrolled
by Bosnian Serb forces. Most of the military documents found in the Trnovo area
are field reports produced by the Bosnian Serb Special Police Brigade toinform their
superiors in Pale, Serb-controlled Sarajevoand Bijeljina aboutthe progress being
made during the fighting. In support of the Bosnian Serb Army (VRS), Serb police
forces from the Ministry of Interior in Bijeljina, such as the mentioned Special
Police Brigade in Trnovo, regularly carried out military tasks. Sometimes, those
special forces were better armed than their counterpartsin the regular army. The
above-mentionedfield reports, whichwill be discussed below,al1describe the assault
carried out by the SpecialPolice Brigade on positions of the Bosnian Army in the
surnrnerof 1995.
229. The first report was written on 30 June 1995by the Deputy Commanderof the
Speciai Police Brigade in Trnovo, Ljubisa Borovcanin,and paints the events during
the first day of the attack. During the attack, the Bosnian Serbs received support
from a Serbian police unit called "Kajman".This unit fell under the command of the
Serbian Ministry of Interior:
"~inistryof Interior
SpecialPoliceBrigade
DetachedCommandPost-Trnovo
[approximately30 kilometresouthof Sarajevo]
Telegramno. 113195
Date:30.06.1995
- PoliceHQ - Pale
-PoliceForceHQ -Vogosca[Sarajevosuburb]
-SpecialPoliceBrigade-Janja[townnearBijeljina,eastBosnia]
On 29.06.1995,police combatgroup consistingof the 4th special police squad, the 7thspecial
police squad andthepolice unit 'Kajm'(MUP of Serbia) incorporatedin offensiveforces of the
Bosnian Serb Army(BSA)launched an assault on the object Lucevik, isunder the enemy's
control and whichis of extreme importancefor gainingcontrol over communication Trnovo- Chapter8 - Section6
Federal and Serbian Ministriesof Interior
involvementin Bosnia and Herzegovina
Sarajevo. We have not succeededto gain control overthis object in the course of the day, because
the BSA provided us inaccurate information conceming positiof their defence lines, so that the
assault wasransformed into forcible reconnaissanceduring which we established exact enemy's
positions and correctedfire range of fire-support weapons. Today we proceedwith the attack on the
above mentioned object, and,at the same time, police forces are holdingthe line: Kragujevac-Hum
and the reconnaissances done in that direction which is a subsequent direction of assault forOur
forces. In thefighting on 29.06.1995, two membersof special police brigade (onefrom the 4th and
the otherfrom the 7thspecial police squad), andtwo rnernbersof MUP Serbia werewounded.
Deputy commanderof Special Police Brigade
Ljubisa~orovcanin"
[Telegram from Detached Command Post-Trnovo to Police HQ - Pale, 30 June
1995, emphasis added, Annex 1711.
This report shows that a special police unit fromthe Serbian Ministry in Belgrade
(MUP of Serbia) was involved in the attack. This special unit, called "Kajman", was
incorporated into the structure of the VRS and carried out its tasks alongside similar
Bosnian Serb police units.
230. The next day the offensive continued and again Deputy Commander Ljubisa
Borovcanin reported to his superiors, this time also to the Bosnian Serb Deputy
Minister of Interior in Bijeljina:
"MUP
Special Police Brigade
Detached Command Post - Tmovo
No. 118f95
Date: 01.07.1995
-ML'P
- Depu- hlinister-Bijeljina [east Bosnia]
- PoliccHQ (commander)
- Pol~ccHQ Vogosca
- Special Police Brigad-Janja
On 30 06 1995,the activities launchedthe day before continuedin the Trnovobattlefield. Combat
group consisringof the 5th special police squad, 7thspecial police squad andtwo squa&from the
units 'Kajrna','Plavi'and 'Skorpija(MUP of Serbia) were attackingthe Lucevikobject. On that
occasion, the 5th special police squad advancedin the direction: Brdjak (895) Karnen-p.e.
1012 and fùrther towards Obrovac. Enemywas defeated at this line and suffered losses.Two
mortars, a smallquantity of infantry weapons were captured. If a smalladvance would be made
towards Obrovacthat would cut off the object Gradina (939), and the communicationTrno-o
Vojkovic would become passable.
We expect this task to be completed in one or two days. Problem relatedto observance of the
agreement with the SRK (Sarajevo-Romanija Corps)conceming joint operations and capturingtheReply of Bosnia and Herzegovina
lines is still present. In yesterday Sjghting Special Police Brigade hadfour lightly wounded
members, whileforces of MUP Serbia had three lightly wounded members.
Deputy Commander of special police brigade
Ljubisa~orovcanin"
[Telegram from Detached ComrnandPost - Tmovo to MUP, 1 July 1995,
emphasis added, Annex 1721.
This document reveals that the specialpolice brigadein Trnovo was reinforced with
police officers fiom two other Serbian units: "Plavi"and "Skorpija".Like the
"Kajman" unit, those units fell under the responsibilityof the Serbian Ministryof
Interior in Belgrade.
On 6 July 1995, the police headquartersin Pale sent a report to the Serb "Centreof
Public Safety" in Serb-controlled Sarajevoto explainwhat had happened on the
battlefield near Tmovo:
"REPUBLIC OF SRPSKA
MINISTRY OF INTERIORS
POLICE FORCE HQ - PALE
NO. 56/95
DATE: 06.07.1995
CENTRE OF PUBLIC SAFETY -CJB SARAJEVO
POLICE FORCES HQ OF VOGOSCA
In the operational zone of Police of Ministry ofInterior, from Siljevice to Rujevice, there were no
enemy assaults in the paste days.
Special Police units of Minishy of Interiors of Republic of Srpska, Serbia and Republic of Srpska
Krajina together with intervention units of Bosnian Serb, out offensive operations ut the
p.e. Lisicija Glava with thepurpose to makefirther advance and gain control over the river Bijela
valley and Mijanovici. At the liberathefollowing p.e. Gradina 939, Lucevik, Obomice,
Hrastovica, Gradina 18and Ruzica, enemywas inflicted substantiallosses in man-power, and
substantial ordnances captured. In the action of liberation of the above rnentionedp.e. two
policemen of SBD were wounded.
In the morning hours on 06.07.1995,offensive on Srebrenica was launched, al1information on
interesting developments in this battlefeld will be communicated timely.
HQ Commander
Tomislav ~ovac"
[Telegram from Police ForceHQ - Pale to Centreof Public Safety - CJB
Sarajevo, 6 July 1995, emphasis added,Annex 1731. Chapter 8-Section 6
Federal and Serbian Ministriesof Interior
involvementin Bosnia and Herzegovina
Like the other documents, this reportshowsthat the police units from Serbiaproper
and the "Republika Srpska Krajina"were closelyCO-operating with their counterparts
in the Bosnian Serbpolice and the BosnianSerb Army (VRS). The report also marks
the date the final assaulton the Srebrenica enclave was launched.The fact that this
is mentioned in this report,sent by the police headquartersin Pale, suggeststhat
police units were involvedin that brutalattack andthe atrocities which followed.
232. Almost three weeks later, on 25 July 1995,the Commanderof the SpecialPolice
Brigade, Savo Cvjetanovic,reported tothe BosnianSerb Ministerof Interior that the
battlefield was calm and that the so-called"Skorpija"unit from Serbiaproper had
been replacedby anotherpolice unit [Telegrarnfrom Detached CommandPost -
Trnovo to Ministryof Interior of "Republika Srpska",24 July 1995,Annex 1741.
Forced mobilisationor arrest of Serb refugeesin Serbia
Throughout the conflictin Bosniaand Herzegovina,the Republic of SerbiaMUP
police troops were used to forcibly recruit troopsfor the Bosnian Serb Army from
arnongthe Bosnian Serb refugeesin Serbia. Thefirst forced recruitments were
reported inFebruary 1993and shortlyafienvardsthe SpecialRapporteur Tadeusz
Mazowiecki was informed that a groupof 500 Bosnian Serbrefugees who had
arrived in Vojvodina werearrestedby the Serbian policeand sent back to the front
in Bosnia and Herzegovina[UnitedNations,Situationof HumanRights in the
territory of theformer Yugoslavia,Reportsubmitted byMr. TadeuszMazowiecki,
Special Rapporteurof the Commissionon HumanRights,E/CN.4/1994/47, 17Nov.
1993, p. 27, para. 1861.As will be explainedlater in this Chapter, the policy
continued until June 1995when it was massivelyenlargedas a new mobilisation
campaignwas carried out in al1regions of Yugoslavia [UnitedNations, Situationof
HumanRights in theTerritoryof the FormerYugoslavia,Finalperiodic report
prepared by Mr. Tadeusz Mazowiecki, Special Rapporteu orf the Commissionon
HumanRights, E/CN.4/1996/9,22 Aug. 1995 p. 23, para. 115; See also Jane's
IntelligenceReview, Europe, Nov. 1995,p. 484, Annex,1751.The role of the
Serbian MUP in the mobilisation campaigns was alsoconfirmedby the Yugoslav
media, such as the Belgrade independent politicalmonthlymagazine Vreme[Dejan
Anastasijevic, VremeInternational,26 June 1995,p. 14,Annex 1761.The various
mobilisation campaigns carried outby the SerbianMUP wil be further discussedin a
following Section of this Chapter [See: Reply, Chapter8, Section Il].Reply of Bosnia and Herzegovina
The mobilisationcampaignscarried out by the SerbianMUP throughoutthe conflict
in Bosnia and Herzegovina,clearly illustratethe continued collaborationbetweenthe
various MUPs on both sides of the river Drina, markingthe border betweenthe
"RepublikaSrpska" andthe Federal Republicof Yugoslavia.The intimate
collaboration is also illustratedby the followingtelex or telegram, which was
captured by Bosnian forces toward the endof 1995.On 24 June 1995,the document
was sent by the so-called "PublicSecurity Centre"in Prijedor tovariouspolice
stations in the Prijedor area. It illustrates that the press-ganged Serbrefugeeswere
interned in special camps in Bosnia and Herzegovina,after being handed over by the
Serbian MUP:
"public Security Centr- Prijedor
num. 12-01 fiom 374-1842195
Date: June 24, 1995 -coded - dx-
Public Security Statio-KljuE,S. Most,N. Grad, K. Dubica and Krupa
Police Stations: Prijedor 1, 2 and Omarska
Police Station forTraffic Security: Prijedor
connection: dispatchnum. 1/95 dated June 23, 1995from the RS pepublika Srpska] Ministryof
Interior Affairs Camp 'Jahorina'.
From the RS Ministry of Interior Affairs Camp 'Jahorina'we have received the dispatchwith the
above number andwe transfer it in its entireness:
'It has been establishedin the RS Ministryof Interior Affairs Camp 'Jahorina' that on June 23,
1995, [the] following persons moved away from the Campin an unknown direction.Bothpersons
were on thelist of deserters taken overfiom the Ministryof InteriorAffairsof Serbia.
1. KovaEeviC(Obrad) Vlatko,bom January 2, 1968in Sarajevo, permanent residencein FRY
from October 28, 1992,latest known address: Valjevo [Federal Republicof Yugoslavia], 32
Stevana FilipoviCastr. Possessed ID card number+9331/92 issuedby Belgrade Police
Department.
3. LazareviC(Milan) Goran, bom April 18, 1972in Pljevlja, Republic of Montenegro,
permanent residenceinMioEeRudo village. Possessed anID card number 51045193issued
by Priboj [Serbia proper] Police Department.
Personal documentationof the above listed persons remained in the arcofvthe Camp, so it is
rightfully assumed that they will use someone'selse's or forged documIntcase you find these
people, arrest them and inform the RS Minisfxyof Interior Affairs Camp 'Jahorina'.
Camp commander
JeviCDuSko shift commander
June 24, 1995
StankoviC[in manuscript]
duty operations officer
KeEan~adovan" Chapter 8- Section 6
Federal and Serbian Ministriesof Interior
involvementin Bosnia and Herzegovina
[Public Security Centre Prijedor, telex to various police stations, 24 June 1995,
signed StankoviC,emphasis added, Annex 1771.
Both "deserters" mentioned in the letter above had been handed over by the Serbian
police to the Bosnian Serb authorities. Their names appeared on a "list of deserters
taken over from the Ministry of Interior Affairs of Serbia". Whether the two escaped
refugees were ever captured again, the Applicant does not know.
The two Serbs were, however, not the only recruits who tried to avoid military
service in the Bosnian Serb Army by fleeing to Serbia or Montenegro. The following
police document shows that those recruits or "deserters" were certainly not safe
across the border. On 25 June 1994, it was sent by the Bosnian Serb MUP in
Bijeljina to the MUP in Serbia:
"~inistry of Interior Affairs of RS Pepublika Srps-a]
Administration for the Controlof Foreigne-Bijeljina
num. 0212 -3914194
June 25, 1994
Ministryof InteriorAffairs of the Republicof Serbia
-Administrationfor the Control of Foreigners
Police SecurityCentres-al1
Public Security Statio-sal1
Police Stations for Traffic Secur-al1
Police Stations for Border Crossin-al1
General Staff of the Army of Republic of Srpska issued anOrder
num. 18120-9-87dated June 23, 1994,for sending out a wanted circular forthe deserter DjondjiC
Tihomir, sonof Bofidar, bom on January 16, 1959, doctor employedin the VRS General Staff
hospital.
According to reliable information,DjondjiCis in KoEevljewhere he works in the local health
centre.
In case youfind him, arrest him and surrenderto the nearest police unit of the Armyof Republic of
Srpska andinformthisAdministration citing this dispatchwith the numberabove.
Weask Ministryof InteriorAfiairs of Serbia to act in accordance withthe details of the dispatch.
Goran ~a~ar"
[Ministry of Interior Affairs of RS, letter to the Ministry of Interior Affairs of
the Republic of Serbia, 25 June 1994, signed Goran Macar, emphasis added,
Annex 1781.Reply ofBosnia and Herzegovina
The Bosnian Serb MUP in Bijeljina askedits Serbiancounterpartto arrest a
"deserter"fiom the hospital of the VRS General Staff.The fact that the Serbian
police was requestedto surrender thefugitive doctor to the "nearest police unitof the
Army of the Republic of Srpska" clearly illustratesthe close relationshipbetweenthe
police forces in the Federal Republicof Yugoslavia and the "Republika Srpska".
Epilogue
236. Both the Federal and the Serbian Ministryof Interior collaborated intimately withthe
Bosnian Serb Ministry of Interior in Bijeljina throughoutthe entire war. The MUPs
in Belgrade set up the Bosnian SerbMUP and CO-ordinated with itthe process of
ethnic purification.
237. The various police forces, well trained, equipped andpoliticallyreliable, were useful
tools of the Serbianleadership.They were instrumentsof control over the
pararnilitaryforces and their elite troops wereused on important missionson the
battlefield in Bosnia and Herzegovina.The above mentioned military documents
clearly illustrate how Belgrade continued tobe actively involvedin Bosnia and
Herzegovina after the so-called withdrawalof 19May 1992.The documentsalso
revealed that policeunits under the controlof the SerbianMinistry of Interior in
Belgrade were fully integrated intothe structureof the Bosnian Serb Army and that
joint military operationswere carriedout on a routine basis. When the Bosnian Serb
Army was desperate for cannon-fodderat the end of the conflict it was the Serbian
MUP police which wasused to round up refugeesto be press-ganged into Bosnian
Serb service. Thus, the Respondent directlycommittedgenocidalacts.
238. Throughout the conflict inBosniaand Herzegovina, the BosnianSerb MUP, in
fact, functionedas if the "Republika Srpska"were a Republicof the Federal
Republic of Yugoslavia.
7. Yugoslav paramilitary actionsin Bosniaand Henegovina
Introduction
239. The conflict in the former Yugoslaviahas seen the widespreaduse of pararnilitaryor
irregular troops. They range fiom the highly organised, whooperated in several
theatres with regular military formations,to those who were loosely organisedand
acted only in a single village. Annex1II.Aof the closelyresearched andauthoritative Chapter8- Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
Final Report of the United Nations Commissionof Experts, is entitled "Special
Forces" and is entirely devoted tothese paramilitary groups.It complementsAnnex
III which is entitled "Military Structure, Strategyand Tactics of the Warring
Factions". Both these Annexes were preparedby the chairman of the Commission,
Professor Cherif Bassiouni. In the Report the paramilitary groups are divided into
four categories: "Special Forces", "Militias", "Paramilitaryunits", and "police
augmented by armed civilians".
240. As the title of that part of the Report suggests,its main focus is with the foremost
category, those classified as "Special Forces" and definedas follows:
"special Forces usuallyoperate with substantialautonomyunder the coofan identified
leader. They operate in several theatres, and sometimesengage in joint operations withthe regular
militaries.ese groups are supplied,and often trained, by the governments they sofve. Many
these Special Forces report solelyto the senior politica[UnitedNations, Final
Report of the United Nations Commission of Experts,Sl19941674lAdd.2(Vol.
1),28 Dec. 1994, Annex III.A, "Special Forces",p. 9, para 41.
This section of the Reply is concerned withthose units which by the Reports
classificationwould be described as "Special Forces".In particular two groups will
be examined, Srpska DobrovoljackaGarda (SDG) -the "Serbian Volunteer Guard",
which is also known as "Arkan'sTigers" or "Arkanovci" - and secondlySrpski
Cetnicki Pokret - the "SerbianCetnik Movement",which is also known as "~e~elj's
Cetniksl'or "Se~eljevci"or "Se~eljovci".The word "cetnik" is a traditional term for
the much heroicised banditfighters of earlier Serbian history. The name Cetnik was
also used by the Serbian royalist forcesin the Second World War. [UnitedNations,
Final Report of the UnitedNations Commission ofExperts, Sl19941674lAdd.2(Vol.
I), 28 Dec. 1994, AnnexIII-A, "Special Forces",p. 30, para. 1221.Seklj's Cetniks
claim to be the heirs of those forces. Se~eljhas proclaimed himselftheir Vojvoda
(duke) [ibid. p. 30, para. 1221.
241. The Applicant will demonstratethe close links between the Belgrade Government,
the JNAand these paramilitary groups.It will again show that these paramilitaries
played a crucial and terrible role in the genocidalcampaign against the non-Serb
population of Bosnia and Herzegovina.
242. In the Counter-Mernorial,the Federal Republicof Yugoslavia denies that Serbian
paramilitary groups existed and Statesthat the formation and operation ofReply of Bosnia and Herzegovina
paramilitary units is prohibited under Yugoslav regulations.Its explanation of the
pararnilitary units is that:
"~t the time when they were formed theregions in which they were formed (Croatia and Bosnia
and Herzegovina) constituted anintegral part of the SFR of Yugoslavia andthere was no border
control of the movement of individualsat a[Counter-Mernorial,p. 104,para.
1.3.17.8.1.
This suggestion is patently untrue. While it may indeed have been the case that
individuals from Serbia and Montenegrojoined Serb paramilitary organisations
formed in Croatia and Bosnia and Herzegovina, themost active, largest and indeed
notorious paramilitary units were formed and based in Serbia and Montenegro.These
Special forces based in Serbia proper and controlled by Belgrade were active in the
implementation of the policy of ethnic cleansing and cornrnittedmany of the worst
genocidal acts. They operated in conjunction with both the JNAand Bosnian Serb
Army and were used in a variety of roles from infantry "shock"troops to
executioners in camps. The Federal Republic of Yugoslaviaexercised great influence
control over these units, by forming, arming, transporting, training,paying and
supplying the pamilitaries throughout the entire war.
243. Moreover, the presence of Serbian paramilitarieswas admitted by President Slobodan
MiloSeviCh .imselfi
"~he President of Serbia, for his part,acknowledgedthepresence of Serb irregularsin thejghting,
particularly along the Westbank of the Drina River, while maintainingthat the Republicof Serbia
would notaliow itseif to be drawn into the conf[UnitedNations, Report of the
Secretary-GeneralPursuant to Security CouncilResolution 749 (1992),
S123836,24 Apr. 1992,p. 3, para 9, emphasis added].
244. The importance of the use of such troops was confirmed by the Judgment of the
Trial Chamber at the ICTFY in the TadiCcase:
"110. One consequence of al1of this [the transformationof the JNAinto a Serb dominatedmy]
was that the JNA experienced ashortage of manpower, especially when it cameto play the role of
an occupying force in hostile temtory, asthe case in Croatia and,dur1992,in non-Serb
parts of Bosnia and Herzegovina.In cotisequence,increasingreliance wasplaced on Serbian
paramilitaryforces, recruited in Serbia and Montenegro andh employed in control of non-Serb
communities in Bosnia and Herzegovina.mbershipin them was attractive to those Serbs who
wished to aid the Serb cause in Croatia and Bosnia and Herzegovina but who regardedthes
retaining to a degree a Yugoslav, asdistinctfrom Serb, character and accoasbeing
insuflciently single-minded in the Serb cause. Theseparamilitaryforces operatedin conjunction
with theNA and were usedas infantry shock troopsto make upfor declining numbersin the
regular army. They includedieljko RaZnjatoviE'sSerbian VolunteerGuard (later knasn Chapter8 - Section 7
Yugoslavparamilitary actionsin Bosnia and Herzegovina
'Arkan's Tigers') andVojislav SeSelj'sChetniks,both of which cameto be particularly feared by
theMuslim population for theirbrutaiity and indiscipline.The JNA and in particular its air force
arm actively cooperatedwith and assistedthese paramilitary unitsduring 1991 and 1992in
operations in Croatia and Bosniaand Herzegovina and liberally supplied them with arms and
equipment." [ICTFY, Trial Charnber, Opinion and Judgment, Prosecutor v.
Duiko Tadit, Case No. IT-94-1-T, 7 May, p. 40, para. 110, emphasis added].
245. In the Memorial and in this Reply reference is made to the RAM plan [Memorial,
Section 2.3.4, pp. 66-69, paras. 2.3.4.1-2.3.4.4; Reply, Chapter 8, Section 21.The
Serbian paramilitaries were also part of this plan and were set up for the purpose of
implementing it. RAMwas organised from Belgrade by Mihalj Kertes who in 1990
was Deputy Federal Minister of the Interior and head of the Yugoslav secret service.
Kertes organised his operations in close cooperation with Jovica Staniiic, the head of
the secret service of the Serbian Ministry of the Interior. Together with Radmilo
Bogdanovié,the former Minister of Interior they formed the leadership of what was
called the "Vojna Linija" ("military line") within the Serbian Ministry of Interior.
246. In the Memorial and in this Reply, reference is also made to the pivota1role played
by the Federal and Serbian Ministries of Interior in the marnent of the Serbs in
Bosnia and Herzegovina [Memorial, pp. 66-68, paras. 2.3.4.1-2.3.4.2; Reply, Chapter
8, Section 21. It was in fact these Ministries and not the JNAwhich initially directed
the distribution of weapons and set up the paramilitary organisations. Their role is
also described by Tim Judah, former Yugoslavia correspondent for the London Times
in his thorough and exhaustive history of the Serbs and the break-up of the former
Yugoslavia:
"MiloSeviCgave the task of layingthe groundworkto his most trusted lieutenants. They were
Radmilo BogdanoviC,Jovica StaniSiCand Mihalj Kertes. Until 1991BogdanoviCwas Serbia's
minister of the interior,er which he remained a powerful figure, mostly behind the scenes.
Kertes was a former Yugoslav deputyinterior minister who becama Serbian minister without
portfolio.espite some ethnic Hungarian antecedents, hewas an SPS [SocialiPartyof Serbia]
deputy and an agent of Serbia's secret police, the SDB, whichhad played a key role in organising
the rallies which had securedthe Serbian president's powerin Vojvodina.niSiCwas the head of
the SDB. Below them were the SDB's two top men, Frano Simatovié,known as Frenki, and
Radovan StojiEiC,known as Badh, a depuîy interior minister of Serbia.(...)
The SDB could not prepare a Serbian insurrection alone, however.It needed help from withinthe
military. Because of the communist and Yugoslav orientation of manyof the top brass, the high
command could still not be trusted,so selected generals hadto be recruited. They included General
Andrija BiorEeviC,the commander of the Novi Sad Corps, and ColonelRatko MladiC,the
commander of the Knin garrison. A clandestine networkwas developed.It was not a formal group
but rather a small number of peoplewho met over dinnerto discuss their plans.It became known
as the Vojna Linija-the Military Lin- and its main ideawas simple. In the words of one source
it was: 'Let'sm our people first in Croatia, then Bosnia. So if Croatia and Sloveniawant to get
out we won't let them take whatwe take before them.' The plan they evolved over 1990was
called RAM, an acronym which spells out the word fiame. It is not known exactlywhat the lettersReply of Bosniaand Herzegovina
stand for, but the purpose of the plan was the organisationof the Serbs outside Serbia, taking
control of the fledgling SDS parties and the prepositioningof arms and am[Timtion."
Judah, The Serbs:History, Mythand the Destructionof Yugoslavia,New
Haven & London 1997,p. 170, Annex81.
The executionof the RAM plan was therefore directed from Belgradeby the heads
of the Federal and Serbian Ministriesof Interior.
247. The most important paramilitary groupswere setup by the Belgrade government.
Radrnilo Bogdanovié,then Presidentof the Security Councilof the Federal Yugoslav
Parliament and Serbia'sMinister for Internal Affairs, declaredin an interview to the
Serbian magazine Duga in January 1995:
"1n the meantime, OurNational Parliament passed the Lawon National Defence,with an
amendment accordingto which volunteer units couldbe organized, and be putunder the command
of theJNA or the Temtorial Defence. Thus, Arkan got started. At first, with forty volunteers, later
with some more.1conducted that initiasPresident of the Security Council,then it was taken
over by General Simovic [Commander of Serbia's Territorial Defence] and other generals. Other
volunteers, notonly Arkan, were setup that way, thata component of JNA or of the
Territorial Defenceon thatrritory[RadmiloBogdanovié,interviewedby Nenad
Stefanovit, "Logistikasluzbe za volju naroda" ("The logisticsof service for the
People's Will"), Duga, 7-20 Jan. 1995,Annex 1791.
Arkun'sSerbian VolunteerGuard
248. To form the paramilitary groups essential to the implementation of the plans for a
Greater Serbia, the members of the VojnaLinija turned to criminals fromthe
Belgrade undenvorld and politicallyextreme nationalists.~eljko Ranjatovié (also
known by his nom de guerre "Arkan"),an internationalcriminal with linksto the
Yugoslav Federal Secretariat for Internal Affairs, was one such man. "Arkan"was
the subject of a CNN/Timeprofile on 2 June 1997by Christine Amanpour,CNWs
Senior International Correspondentin which she interviewedboth Professor Cherif
Bassiouni,chairmanof the United Nations Commissionof Experts, and Marshall
Harris, former Bosniaofficer at the United StatesState Department:
"AMANPOUR: The man with thebaby face, the founder and presidentof the Serbian Party,
has been a criminal since he was 14. B20,he had already spent three years in a Belgrade jail.
In1992,the first United Nationsgroup was set up to investigateintformer Yugoslavia.
BASSIOUNI: This is a picture of oneof Ouroperations.
AMANPOUR:The chairman was Professor Cherif Bassiouni. Arkan immediately caught his
attention. Chapter 8 -Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
BASSIOUNI: Arkanis remarkable, because there is a man whomwe discovered hasseven arrest
warrants by Interpol. Therea man who usedto work for the Tito regimeministry of interior as a
killer of opponents of the regime.
AMANPOUR: A Yugoslavgovemment hit man. Accordingto intelligence sources, he got thejob
at the age of 21, and along with it came phoneypassports and plenty of new identities. Sometimes
he'd be British, then Italian, or even French. From Belgrade to Stockholm,Bmsseis to Milan, he
built a criminal record of stick-ups, armed bank robberies, burglary,theft, breaking and entering,
escape fiom jail and violent assaultthe while on the Yugoslav govemment payroll.
And that was just the beginning.At thert of the 1990s,power struggles between its six member
states are breaking up federal Yugoslavia and SlobodanMiloSeviC,president of Serbia, has
expansionistplans.
MARSHALL HARRIS, FORMER STATE DEPT. BOSNIA OFFICER: It was clear that MiloSeviC
and the people aroundhim were determinedto came out a Greater Serbiaand to expand their
territory at Bosnia'senseand at Croatia's expense, and that the way they were goingto do that
was to purge that territory of non-Serbs.
AMANPOUR: MiloSeviichooses Arkan for the job.
August 1990, Belgrade. General MarkoNegovanoviCof the Yugoslav nationalarmy signs the
authorityiiowing Arkan to form a speciai military fo[CNN/TimeImpact, Aired 2
June 1997,9.00 p.m. ET, Transcripts, p. 3, Annex 180?].
249. In 1990~eljko "Arkan"Rainjatoviéemerged as the head of Delije, the official fan-
club of Belgrade's Red Star football team. The core of the militia that he
subsequentlyformed were hooligans fiom Delije. On at least one occasion,Arkan
offered the services of the fan club to RadrniloBogdanovié,the then Serbian
Minister of the Interior, to disperse a crowd demonstrating againstMiloSeviCin the
month of June 1991. The offer was accepted.The CO-operationbetween Arkanon
the one hand and the SerbianMinistry of Interior on the other hand therefore began
long before the conflict in the former Yugoslaviaerupted [United Nations, Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28
Dec. 1994, Annex III.A, "Special Forces",p. 31. para 1291.
250. In an interview Arkan describedthe genesisof his paramilitary group fiom among
the members of the Delije fan club:
"'~e fans ..trained without weapons', said Arkan, 'which mayor may not have beenme'I
insisted on disciplinefrom the beginning.Youknow ourfans, theyare noisy, theylike to drink, to
joke about.I stopped al1that in onegI,made them cut their hair,shave regularly, not -rink
and so it began the way it shouid b[Tim Judah, TheSerbs: History, Myth and the
Destruction of Yugoslavia,New Haven & London 1997, p. 186, emphasis
added, Annex 83. Chapter 8- Section 7
Yugoslavparamilitary actionsin Bosnia and Herzegovina
253. Jane's Information Group, the British specialistmilitary intelligence organisation, in
its publication Jane 'sSentine11997 describesthe Serbian Volunteer Guard as
follows:
"srpska Dobrovoljacka Garda (SDG): the SDGis led by Zeljko 'Arkan' Raznjatovic, a well-known
criminal. He was involved in many killings of Croatian emigres in Western Europe during the
previous communist regime.TheSDGS activities are controlled by the Serbian Ministryof the
Interior.ts members took partin the fighting in Croatia and Bosnia but the SDG became better
known for its numerous atrocities against unarmed civiliansthan fighting the regular forces of the
Croatian or the Bosnian Muslim army. The SDGis reportedly a well-armed and disciplined force.
Itoperates in groups of about 20 to 40 men.After Dayton, the SDG ceased its activitiesin Bosnia
and leftits base in Erdut, eastem Slavonia [eastCroatia]. Currently, the SDG is involved in a
campaign of intimidation aimedat Albanian civiliKOSOVO." [Jane'sInformation
Group, Jane S Sentinel 1997, Yugoslavia para. 10.14.4, emphasisadded, Annex
1831.
254. According to Tim Judah's impressivehistory, Arkan's contactsin the Serbian
Ministry of Interior were Radmilo BogdanoviE,Frano "Frenki" Simatovik, and
Radovan "Badia" StojiCiC.[Tim Judah, TheSerbs: History, Mythand the Destruction
of Yugoslavia,New Haven & London 1997,p. 186,Annex 81.In The Guardian
newspaper of 3 February 1997,there is a photograph (taken in 1991)of Arkan and
Radovan "Badia" Stojieikat the training centre of Erdut [The Guardian, 3 Feb.
1997, p. 8, Annex 1841.According to British historian Noel Malcolm, the Serbian
Minister of the Interior, Mihalj Kertes had set up the training camp at Erdut for the
training of the SDG. In addition, the Serbian Ministryof the Interior initially
financed the SDG until they became self-financingthrough looting moel Malcolm,
Bosnia: A Short History, London 1996,p. 226, Annex 161.
255. In its Annex on special forces,the Commissionexamines the links between
pararnilitiq units and state bodies. In relation to Arkan it States:
"94 Evidence of Arkan's tieswith the govenunentsFRY and with the self-declared Serbian
ftpublicsaswell as with the JNA, includes:
(a)Serbia's Defence Ministerhas stated that Arkan is protected by Interior Ministry officials;
(b) Se~eljhas stated that Arkan's Tigers were opeunder the instructionsof Yugoslavia's
counterintelligence organization, a claimalso made by Dragoslav Bokan,the leader of the White
Eagles;
(c) On 28 November, 1990, Arkanwas present at a planning meetingof the 'councilofof the
Knin uprising. Milan Martik,then secretary of the secretariat for Interna1Affairs and now President
of SA0 Krajina, wasalso present at the meeting;Reply of Bosniaand Herzegovina
(d) Arkan's forces and theJNA were operating simultaneouslyin 11 counties;
(e) In at least three counties, Bijeljina,BrEko,and Zvomik, in which the MA and Serbian
paramilitary groups acted together, Arkan wasreported to be the leader ofthe operation. In the
siege of Vukovar, Arkan stated that hismen wereer the commandof the NA;
(f) The 'populationexchange commissions'in the BiH county of Bijeljina is headedby Major
Vojkan DjurkoviC.Major DjurkoviCis a member of Arkan's forces;
(g) There are reports of Arkan's forcesentering a county at the invitationof local political leaders.
InPrijedor, a spokesman for the Bosnian Serb Govemmentin explaining Arkan's involvement,
stated: 'He isvery expensive, butalso very efficient';
(h) In February 1993, in responseto accusations that he was planning acour, d'etat in Krajina,
Arkan statedthat he had 'been a specialsor to the presidentof the Republic of Serbian Krajina
forayear now'.
Arkan's interferencein the Krajina govemmentprompted the commanderof the headquarters of the
Amy of the Republic of the Serbian Krajina,Mile NovakoviC,to issue an order for the withdrawal
of Arkan's troopsiom the region;
(i) Arkan, like Se~elj,reportedly has regularly transported plundered goodsfiom BiH into Serbia,
with apparent permissionof Serb authorities;
(j) The MiloSeviCgovemment has allegedly givenArkan control of formally stagasrstations
because of his success in smuggling petroleumproduc[UnitedNations, FinalReport of
the United Nations Commission of Experts, S/1994/674/Add.2(Vol. 1),28 Dec.
1994,Annex III-A, "Special Forces",pp. 24-25, para.941.
VojislavSeielj's Serbiancetnik Movement
256. Around the sarnetime that Mihalj Kerteshelped set up the SerbianVolunteer Guard,
he was instrumentalin the creation of two other pararnilitary groups:the White
Eagles (Beli Orlovi),headed by Mirko JoviC,founder and leader of the Serbian
Renewal movement(SPO) and the Serbian CetnikMovement,under the cornrnandof
Vojislav Se~elj,leader of the Serbian Radical Party (SRS) [Memorialp ,. 69, para.
2.3.4.51.
Vojislav Se~eljwas a former lecturer at political sciencein the University of
Sarajevo.He was arrested on 22 May 1984afterthe discoveryof an unpublished
manuscript of an article criticisingTito and the ComrnunistGovement and
subsequently convicted and imprisonedfor counter-revolutionaryactivities.He served
twenty-two monthsin prison and afier his release he settledin Belgrade and beganto
publish Serb nationalistbooks. In 1990,Se~eljbecame the leader of the Serbian
Freedom Movementwhich later became the Serbian Renaissance Movement.After
being expelled from the SerbianRenaissanceMovementfor his extremenationalist
views he formed a new political party, the Serbian National Renewal whichby the Chapter 8 -Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
end of 1990had becomethe SerbianCetnik Movement.In the beginning of 1991,
Segeljfinally went on to form the Serbian RadicalParty (SRS) [see United Nations,
Final Report of the UnitedNations Commission of Experts,Sl19941674lAdd.2(Vol.
1),28 Dec. 1994,Annex III-A, "Special Forces", p. 27-28, paras. 108-1O 1].
258. Se~elj'spolitical programmewas rudimentary,but his speeches were clearlyimbued
with Greater Serbianideology. Se5elj'spolitical programme waslater describedby
Sonja Biserko, the director of the HelsinkiHurnanRights Cornmitteefor Serbia, in
Tribunal.Tribunalis the newspaper producedby the British Institute for War and
Peace Reporting. Biserko'sarticle readsas follows:
"~ojislav SeSelj'sfierce outburstsof hate speech were among thefirst in the former Yugoslavia.
He whipped up hatredof Croats in Serbia and called for their expulsionfiom Serbia and
Vojvodina. He demanded the creation of a Greater Serbia, encompassing Macedonia, Montenegro,
Bosnia and Herzegovina, and large partsof Croatia. Histy's Programme Declarationof 1991
advocated the 'suppression of theAlbanian separatist rebellionby al1means available,' including
mass expulsions, proclamation of astate of war and introduction of a military administration.
SeSeljperceived the solution for Yugoslaviain the establishment of threeStates:a Greater Serbia, a
smaller Croatia and an even smaller Slovenia.Hees the Bosnian question as crucial for Serbia.
In an interview with the magazineDuga in December 1993,he said: 'The siege of Sarajevo is not
a war crime,'because the responsibility for the siege'rests with those who allowed Sarajevoto
become a military fort.'
SeSelj'sprogramme of war for a Greater Serbia was also the unofficial programmeof the Serbian
regime. The ruling SocialistParty of Serbia (SPS) maintained silenceas aure of political
cunning, and parties likeSelj'stook it upon themselvesto proclaim the objectives ofthe war.
Although generally in collusion with MiloSeviCbecause of the latter's 'patriotic policy',Se~eljhas
at times fiercelytacked the Serbian president,primarily for giving in to the rest of the world and
losing territory.
SeSeljhas talked about the support and encouragementthe paramilitaries received fiom the
authorities in Serbia and the Federal Republic of Yugoslavia (FRY). Hesays thatolunteers
were under the JNAcomrnandor the command of local home guards in Republika Srpska (RS) and
Krajina.' Healso says that 'someSRS volunteers were incorporatedin special FRY police and
army units,' and crossed over intoBosnia during military operati[Sonja Biserko,
"Serbia: Warlords in Civvy Street", Tribunal,a Publicationof the Institute for
War and Peace Reporting, No. 8, Apr./May 1997,p. 8, Annex 1841.
259. Se~eljwas politically activethroughoutthe war in the promulgationof the ideology
of Greater Serbia and was fully aware of what this meant for the non-Serb
population in Bosnia. For example,the correspondent forTheIndependentRobert
Block reported on a speech made by Se5eljin 1993:RepIy of Bosnia and Herzegovina
"~r Se~eljtold a crowd, including manysoldiersand refugees, in Sokolac [east Bosnia], thathe
was born in Bosnia and that Sarajevowas his 'fatherland'.He warned that if the West attacked, '1
will lead the Serbian people andwe will destroy Sarajevoin a couple of days.' Al1UN positions
would come under anacks by the 'bestand the bravest' soldiers Serbia couldmuster. Muslimsand
Croats would beilled. 'Wewill ann[i]hilateal1thepeople and take al1of'he said.
The message enthralledthe battle-hardened and the blood-[RobertBlock, The
Independent, 17May 1993, emphasis added, Annex 1851.
260. In June 1991, VojislavSeSeljwas elected tothe SerbianAssemblyin a special
election to fil1a vacancy.SeSelj'scampaignwas said to be tacitly supportedand
funded by SerbianPresident SlobodanMiloSeviC[UnitedNations, Final Report of
the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28 Dec.
1994, AnnexIII.A, "Special Forces",p. 28, para. 1121.In the federal elections of
May 1992,the SRS won 33 ofthe 138 seatsin parliament, making it the largest
oppositionparty. In the Serbianparliarnentaryelectionsof December 1992it made
an even stronger showingand formed acoalitionwith MiloSeviC'sSocialistParty of
Serbia (SPS). However,it broke with theSerbian Socialist Partyin September 1993
and MiloSeviCwas forcedto cal1specialelectionsin December 1993.In contrastto
the previous election,SeSeljwas denied accessto the state-runmedia and was
attacked by the SPS, accusinghim of beinga war criminal.The SRS suffered a 44
percent reduction in the number of seats in parliament. SeSelj,however, wasre-
elected. [ibid.,p. 25, paras. 96-98]. In March 1998,the Serbian Radical Partywas
coopted in the newly formed Serbian government, gainingfifteen out of 35
ministerialposts. Vojislav Seielj himselfwas elected Deputy PrimeMinister.
261. Jane' sInformation Group 1997describesthe SerbianCetnik Movementthus:
"the Srpski CetnickiPokret is led by Vojislav Se~elj.Thas1,500fighters. Affiliatedto the
Serbian Radical Party, it is ill-disciplined andhas been accusedof war crimes in Bosnia-
Herzegovina, including'ethnic cleansing'. It is arrned with infantry weapons, including anti-tank
rockets."[Jane'sInformation Group 1997,Jane 'sSentine11997,para. 10.14.4,
Annex 1863.
262. As stated in the Memorial [Memorial,p. 70, para. 2.3.4.61,Se~eljhas emphasised
MiloSeviC'sresponsibilityfor the use of Serbianparamilitarygroups in Bosnia and
Herzegovina.In the Counter-Memorial, the Federal Republicof Yugoslavia claims
that the accusations made by SeSeljwere made as an act of political revenge against
President MiloSeviC[Counter-Memorial,p. 103,para. 1.3.17.6.1.The Respondent
goes on to Saythat: Chapter 8 -Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
"~owever, there is nothingin what SeSeljallegedly said and the Applicant presentsthat would
support the assertion of the Applicant that organsof the SFR of Yugoslavia participatedin the
forming of paramilitary units or issued them orders to commitacts of genoci[Counter-
Memorial, p. 103, para 1.3.17.6.1.
While it may be the case that Se~elj'smotivation is political revenge on President
MiloSeviC,his statements do support the assertion that organs of the Federal Republic
of Yugoslavia participated in the forming of paramilitary groups and issued them
with orders to commit acts of genocide.
263. In an interview in the "Gates of Hell" (episode four) of the acclaimed BBC
docurnentary "The Death of Yugoslavia", Se~eljgives a candid appraisal of the part
played by his forces and their subservience to their commanders in Belgrade in
relation to the assault on Zvornik:
"~iloievi~ was in total control. The operation wasplannedfrom Belgrade. The Bosnian Serbs did
take part. But the best combat units camefrom Serbia. They were special police commandos, 'red
berets: They arefiom the Serbian Secret Service. Myforces tookpart, as did others. We had
prepared the operation carefully, everything went according toplan.
(-1
1can't deny this [ethnic cleansing] took place. Butit was organised in Belgrade. MiloSeviChimself
asked me to send myfighters.'"[The Death of Yugoslavia, The Gates of Hell,
episode four, emphasis added; see also Laura Silber and AlanLittle, The Death
of Yugoslavia,Revised Edition 1996, pp. 223-224, Annex 211.
SeSeljwas even more forthright when interviewed by Massimo Nava for the
respected Milan newspaper Corriere Della Sera, published on 23 May 1996, in an
article entitled: "MiloSeviCa Traitor to Us Serbs".
"[~ava] Why is MiloSeviCa traitor?
[Seselj] Because he encouraged the Serbs to wage war and to rebel in Krajina and Bosnia. He
armed them, financed them, supported them, and then abandoned them, arguing that he had
nothing to do withil and that hefacilitated peace. This is how he betrayed national interests.
[Nava] 1sthat what you will tell the judges in The Hague?
[SeSelj]1do not need to prove my innocence of anythin1.took part in al1stages of the war, at the
front1commanded over 1,000volunteers, armed and equipped withMiloSeviC7s support. If
anything happens to me, 1have documentsthat incriminate MiloSeviC,proof that he directed
operations.
pava] What proof?
[SeSeij]I will speak when the time is ripe. Iwant toprotect KaradiiC.It is afact that the
orders camefrom Belgrade. MladiCand the other Bosnian Serb oficers carried out the plans
drawn up by staflheadquarters in Belgrade. Karadiif was not in charge of the army.
[Naval It is well known that the paramilitarymilitias committedthe worst crimes. You yourself
espoused the theory of ethnic cleansing. Do you admitthat you are one of the people responsible
for the war?Reply of Bosnia and Herzegovina
[SeSelj]War is a method,not a crime. In the West you treat war and crimesequally. But if we
want to talk about criminals, they are Clinton,Genscher, De Michelis,the advocates of thewar in
the Balkans.1would even include the Pope, who calledfor the bombardmentof our villages. Ifwe
are talking about crimes, they were committedby al1sides, but especially by the Croats and
Muslims. It has been said that the Serbs raped thousands ofMuslim women, but oneof them who
gave an account of the rape on television wenton to giveirth to a black child! I did notput
forward the theory of ethniccleansing.It was a consequence.I support the idea of the Greater
Serbia,because Bosnia and Croatiaare not nations; theyshouldnot exist.But that is no crime!
[Naval Does Srebrenica not remind youof anything?
[SeSelj]1have no precise information.Be that as it rnay,I do not deny the massacres. What I Say
is that there mustbe evidence in the case of eachperson accused and that the political
responsibilities must be established.
[Naval You deny the massacres, but accuseMiIoSevitof having provokedthem. Please explain.
[SeSelj]1do not deny actions that were committedby everyone. 1 am sayingthat there is no
evidence againstmy men and that it does not make senseto accuse Karadiié.MiloSeviéis the
proper target!
[Naval So do you think that KaradLiéand MladiCwill be sanctifiedin the future?
[SeSelj]The Serbian people are withKaradfié.His resignation was a gestureto alleviate
international pressure,but think it is MiIoSeviewho will disappearfrom thepolitical scene first.
The West needs him now, but it will drop him later. As for general Mladit,am pleased that
yesterday he came to Belgrade, to his own land. It was a nobleesture to attend the funeral of
General Djukié,another victimof the tribunal in The Hague. 1respect MladiC,but 1had a major
disagreement with him, because he acted on orders fiom MiloSeviéw, ho then dropped him and
betrayed him by authorizing the NATO bombardments.
[Naval If this is the case, why did Milogeviénot have youarrested, as envisagedby the Dayton
accords?
[SeSelj]First, because MiloSeviéwould pay for such a decision. Second,because his signature in
Dayton is worth no more than that of the govemor of Texas. Yugoslavia signed nothing!
[Naval Many witnesses have given evidencerelating to the activitiesof armed gangs of volunteers.
Those under your orders, a new versionof the 'Chetniks,'or the 'White Eagles' and the 'Tigers' of
commander Arkan.
[SeSelj]1have already told you aboutmy men. As for Arkan, it comes back to MiloSeviC.The
'Tigers' were recmited arnongthe Serbian police. As faras 1know, Arkan is chiefly a wheeler-
dealer, alittle Balkan Al Capone who organized lootingfor himself and for his men. Suffice it to
see thevilla where he lives inelg grade!"["FRY:SeSeljHas 'DocumentsThat
incriminate MiloSeviC"',Corriere DellaSera,23 May 1996,FBIS-EEU-96-
10 1, p. 8, emphasisadded, Annex 1871.
264. The Commissionof Experts alsoexaminedthe links betweenthe paramilitariesand
state bodies. In relationto SeSeljits Reportstates:
"93. There is substantialevidence that SeSeljand his paramilitary formationshave direct links to,
or the support of, the Serbian govemmentsand the JNA:
(a) SeSeljhas stated that hisparamilitary forces have received weaponsfrom the JNA;
(b) The JNA and Se~elj'stroops operatedin 14 counties simultaneously,suggestingthat their
operations were coordiated. Some of the reports indicate thatthey were conducting joint
operations,while others alleged that the INA permitted SeSelj'stroops to attack without
intervening;
(c)In the BiH county of Kalinovik, the presenceof SeSelj'smen was reportedly requested to
restoreorder to the local troops by CommanderRatko MladiC; Chapter 8 - Section 7
Yugoslavparamilitary actionsin Bosnia andHerzegovina
(d) SeSeljhas regularly transported plundered goodsfrom BiH into Serbia, with the apparent
permission of Serb authorities;
(e) ln his parliamentary campaignin the fa11of 1993,SeSeljindicated that the following members
of theMiloSeviCgovernment were involvedin paramilitary operations: RadmiloBogdanoviC,
MiloSeviC'sreputed secondin command who was officially droppedas Serbian interior minister in
1991; Mihalj Kertes, a former Yugoslav deputynterior minister and now a Serbian Minister
without portfolio; RadovantojiEiCa deputy Serbianinterior minister; and Frano SimatoviC,a
senior Serbian secret police commander. Furthermore,Seljclaimed that his mennever acted
outside the umbrella of the JNA and the Serbianpolice[United Nations, Final Report of
the UnitedNations Commission of Experts, SI19941674lAdd.2(Vol. 1), 28 Dec.
1994, Annex III.AI"Special Forces", p. 24, para. 931.
Arkan and Seielj's paramilitary activities in Bosnia and Herzegovina
Both these paramilitary groups (Arkan's Tigers and Se5eljYs Cetniks) were present
throughout the war in Bosnia and Herzegovina and are responsiblefor the worst
genocidal acts in the areas in which they operated. Their arriva1in eastern Bosnia
heralded the beginning of the campaign of ethnic cleansing:
"16. Therewere no reports ofparamilitary activity in BiH untilearly 1992. Thefirst reports
concernedparamilitary groups supportedby Arkanand je~ee~eTljh.e activity in BiH was strongest in
May and June of 1992 in the areas of Bijeljina, Bratunac,BrEko,Doboj, FoEa,Konjic, ModriEa,
Prijedor, Sarajevo, ViSegradand ~vornik.[ibid., p. 12, para. 16, emphasis added],
and
"19. Themost active paramilitary groups operatingthroughoutthe area of conjlict were the Serb
groups unàer the commandof Arkanand Seielj." [ibid., p. 12, para. 19, emphasis
added] .
266. It is highly significant that it was in areas of supposedlymilitary importance as
envisaged by the RAMplan that the Serbian paramilitaryunits operated:
"23. The JNA was operating with the highest pararnilitary activityin eight counties simultaneously:
Bijeljina, Bratunac, BrEko,Doboj, Prijedor, Sarajevo,ViSegrad,and Zvornik. Excluding Sarajevo,
these countiesare withinthe strategic arc the Serbs needto link al1Serbianpopulationsfrom BiH
and Croatia within a contiguousSerbianstate."[ibid., p. 12, paras. and 23, emphasis
added] .
267. On a tactical level, the Serbian paramilitary groups acted as infanûy for the JNA
which provided the artillery, armour and command. A good example is the springRepIy of Bosnia andHerzegovina
offensive of AprilNay 1992,as explainedby the Prosecutionat the openingof the
TadiCtrial before the ICTFY on 7 May 1996:
11 The military operations by the JNA and the pro-Serb paramilitary groups followedin a
consistent pattern. Excessiveamounts of artillery wasused in the initial stagesto shell non-Serb
neighbourhoods inorder to discourage resistance,non-Serbs were expelledfiom the area and where
resistance occurred it washlessly crushed. The artillery attackby the JNA was usually co-
ordinated with street fighting by the paramilitary groups who were assistedby Serb irregulars in
street fighting and the rounding up of the non-Serbs of the district. The paramilitary group operated
right across Bosnia. The rounding-up ofthe non-Bosnian-Serb population wasa systematic and
thorough operation, withthe paramilitary groups relyingon local information and identificationof
the non-Serbs by the local irregulars.
Once the non-Serb populationhad been collected together, they wereorted: Women,
children and elderlymen were separatedfiom the men of military age, althoughat times and in
some places al1men were separatedfiom the women and children,making the women much more
vulnerable to rape and mistreatrnent.r tactics sashkillings, rapes and tortures, were used
apparently condonedby the paramilitary commanders. The, and the paramilitary commanders
during the sweeps through non-Serb neighbourhoods participatedin this activity. The terrorserved
to intimidate and discourage resistance andto compel non-Serbs to leave t[ICTFY,."
Trial Chamber, Opening Statementsby M.. GrantNiemann (Prosecution)and
Mr. Michail Wladimiroff (Defence),Prosecutor v. DuSkoTadié,CaseNo. IT-
94-1-T, 7 May 1996, pp. 13-14].
268. Bijeljina and then Zvornik werearnongthe first towns in Bosnia and Herzegovinato
experience the Serbianparamilitariesand ethnic cleansing [seeMemorial,p. 30, para.
2.2.2.2; and Reply, Chapter8, Section31.In the first week ofApril 1992
approximately 1,000 men from Arkan'sunits crossedthe Drina River fromSerbia.
The paramilitariesquickly movedsouthto Zvornik, whichcommandstwo crucial
bridges to Serbia, railway and road.Zvornik is an important linkon both the
Belgrade-Sarajevolineand the Belgrade-Tuzla line. Having controlof Zvornik meant
that any further movementsof troops or logisticalmaterialtowards Tuzla or Sarajevo
could be accomplished without any obstacles.
269. The attack on Zvornik on 8 April 1992was well planned and is an excellent
example of the modusoperandiof the Serb forces in their genocidal campaign.It is
importantto rememberthat this attacktook place at the very beginningof the war in
Bosnia and Herzegovina andthat it is a "blue-print"for a successfulethnic cleansing
operation. The pararnilitaryforces were intimatelyinvolvedin al1aspectsof the
attack [see also Reply, Chapter 5, Section 61.
270. Zvornik was attacked on 8 April 1992after a six hour artillerybombardment.The
attack on the town was conducted bothfrom the Serbianside and fiom Bosnian
territory, using tank forces, artilleryand infantry units using portable mortars.JNA Chapter 8- Section 7
Yugoslavparamilitary actionsin Bosnia and Herzegovina
units and paramilitary units CO-operatedand Arkan'stroops reportedly led the attack
[ibid., p. 166paras. 569-570; "EthnicCleansing Operations" in the northeast-
Bosnian Cityof Zvornikfiom April through June 1992, Ludwig Boltzmann Institute
of Human Rights, Vienna 1994, pp. 20-21, para. 5.2., Annex 481.
271. Roy Gutman,winner of the Pulitzer prize for his journalism in Bosnia, describedthe
attack on Zvornik:
"~hortl~after the war began in eastem Bosnia, the Yugoslav army ringed Zvomikwith tanks and
artillery, preparing to attackthe quiet town nestled on the Drina River.The city's hospital director
telephoned Serbian authoritiesto beg that his facilitybe spared.
The doctor had barely begun hisplea when Zeljko Raznjatovicgrabbed the phone at the other end.
'ForMuslims thedeadline to surrenderhaspassed', said the leader of a volunteerforce called the
Tigers. Raznjatovic,also knownas Arkan, is a closefiiend of Serbian President Slobodan
Miloievii and is a bank robber wanted internationally.
'Weare going toshell you with every weaponat our disposa'Arkansaid.
Minutes later, the federal army began shelling, snipers opened fireat civilians, and Arkan and his
forces moved into thetown in federal army vehicles. They wentuse to house with prepared lists,
robbing and assassinatingleading Muslims, accordingto witnesses interviewedby the U.S.
govemment and Austria's Boltzmann Institute foHurnan Rights. They slitthroats, strangled with
wire or used semi-automatic weaponsto kill.[ROYGutman,NewsdayInc., 30 Oct.
1995, Washington Bureau, emphasisadded, Annex 1881.
272. The importance of the paramilitaries as combat troopswas emphasisedby the Trial
Chamber at the ICTFY in its Judgment in the TadiCcase:Reply of Bosnia and Herzegovina
"593. Excluding the RearService Base troops, the 1stKrajina Corps numbered some 100,000
[10,000] troops, expanded fiomits JNA peacetime strength of 4,500. These forces included orwere
supplemented by various paramilitary forces. Priorto May 1992the JNA had played a significant
role in the training and equipping of Bosnian Serb pararnilitary forcesI.n 1991 and on into 1992
the Bosnian Serband Croatian Serb paramilitary forces cooperatedwith and acted under the
command and withinthe framework of the JNA. Theseforces included Arkan 'sSerbian Volunteer
Guard and variousforces styling thernselvesas Chetniks, a name which, as has been seen, is of
significancefrorn thejighting in the Second World Waragainst the German, Italian and Croat
forces in Yugoslavia.Sorne were even given training in the cornpoundsof the 5th JNA Corps in
Banja Luka. The relianceplaced on suchforces by the JNA rejlected a general manpower
shortage. According to one witness 'whilstthe JNA wasprepared to use its artillery in operations,
it relied on paramilitary groups to go into build areas and to act as substituted infan'.Air
support was given to such pararnilitaryforces which continued into 1992. Evidence was also
presented that the Serbian Security Service has been directing ut least onepararnilitaryleader,
VojislavSeielj. in the disposition of hisforces in 1991 and 1992[ICTFY, Trial Chamber,
Opinion and Judgment, Prosecutor v. Duiko Tadit, Case No. IT-94-1-T, 7 May
1997, p. 219-220, para. 593, emphasis added].
273. In their authoritative and independent report "Ethnic cleansing Operations in the
north-east-Bosnian city of Zvornik from April through June 1992",the Ludwig
Boltzmann Institute of Human Rights gives a detailed description of the take-over of
Zvornik and the part played by paramilitary units. The Report was based on the
information obtained from the interviewing of 887 expellees by experienced bilingual
interviewers who had been speciallytrained for this purpose. In its general remarks
on the paramilitary units it says:
I1~uringthe entireperiod studied the supreme military comrnand was heldby JNA officers Pejic
and Pavlovic. kcept for the 'Arkanovci, 'the para-rnilitarygroups accepted the comrnandof the
JNA when conducting rnilitaryoperations.
From the time afier the attack until the final 'ethnic expulsion,' a considerable numberof para-
military groups stayedin the city. They included 'organized' partisan grouas well as so-called
weekend 'Chetniks,' especially fiom Serbia. Almost al1groups exerted some form of terror over
the city population. They arebeing heldresponsible formurders, rapes, lootingsand tortures in the
camps. They seemedto be under nobody's command or control.
The rnostimportant 'organized'para-rnilitaryunits were the 'Arkanovci,'the so-called territorial
defence (TO) the 'Seieljevci'and the 'Beli Orlovi' ["EthnieCleansingoperations" in
the northeast-Bosnian Cityof Zvornik fiom April throughJune 1992, Ludwig
Boltzmann Institute of Hurnan Rights, Vienna 1994,pp. 10-11, para. 4.2.1 .,
emphasis added, Annex 481.
274. It then describes the activities of the various pararnilitary units beginning with the
Serbian Volunteer Guard:
"~he Arkanovci as well as 'Arkan'hirnselfare unanirnouslybeing described as the decisive
personalities of the attack.ring the attack proper, Arkan S responsibilities as leader not only Chapter 8 -Section 7
Yugoslm paramilitary actions in Bosnia and Herzegovina
went beyond those of the commanders of theformer JNA,they also surpassed those of the leading
personalities of the local SDS.
During the attack,Arkan himseyheld the supreme command over the Arkanovci. Other important
figures besideshim were: 'Rambo' (he was reportedly Arkan's brother-in-law, who was kille id
the course of the battle of Kulagrad); 'Zuko,' whois held responsible for several serious war
crimes and human rights violations; his companion'Topola;'the Jovic brothersfrom Mali Zvornik
[Serbia proper] (Dragan 'Jole' Jovic and his brother Pero Jovic commanded a special unit with red
berets with Serb National badges; they, too wore the 'Tigers' badge and th slogan 'Arkanove
delije' on their shoulders; others said that the two brothers were part of different groups); a certain
'Vuk' or 'Vuco;' and a womanby the name of 'Lela,' who was made responsible for tortures and
killings in camps. The headquarters werein Mali Zvornik inthe 'Jezero' hotel, Arkan himself
stayed in Radaljska Banja.
The members of the Arkanovci had short hair and wore (dark olive) overalls, black gloves cut-08
ut mid-jinger, and black woollen caps that could be used as masks. Their army boots werefmed to
their uniforms with 'Velcro'stripes. On their left arms they had a badge showingfour cyrillic
letters 'S'and the words 'Serbvolunteer guard' stitched around the outer circle of this emblem.
According to other witness accounts, they wore camouflageuniforms with red arrows as badges,
the Serb national coulours on the right arm, and a badge with the words 'Arkanovedelije 'on the
shoulders.
One of their characteristic traits was the adherenceto a strict disciplinary code. They were
described as very brutal and 'meticulous'regarding 'cleansing operations. 'The respondents
portrayed them as 'cold blooded killers.'
Expressions such as 'fighter machines' or'Rambos' were also usedby the interviewees. The fact
that the Arkanovci were never dmnk made them also stand out among the other units. However
they are said to have resorted to other forms of dnigs.
There is evidence that they had the name lists of rich Muslims whose gold and money they robbed.
Local Serbs are said to have been responsiblefor compilingthese lists. Reportedly, it was the
Arkanovci in particular who, accompanied by local Serbs, weresystematically involved in house
searches, killings, rapes and lootings. The right to be thejrst to loot, 'which they apparently
enjoyed, was obviouslypart of their 'remuneration. '
Arkan himself is said to have arrived in Zvornik on April 7. There is some contradiction as to
whether he only participated in 'negotiations' on Zvomik's futurtehat day, or whether he actually
dominated those talks. Arkan himself issued anultimatumfor the surrender of the city and the
turn-over of al1weapons by the moming of April 9.Some days later, Arkan is said to have
returned to Zvornik. He kidnapped hospital patientsto press for the release of 'Rambo's' dead
body. Members of the Arkanovci wearing civil clothes are said to have been present in the city
since the beginning of March.
Their participation inthe fighting beganon April 8 wiîh mortar fire and attacks by snipers located
in Mali Zvornik. They conquered the city andassurnedcontrol of it on April 9, having taken
control of the most important facilities (hospital, radio station)as well as strategic points. The
Arkanovci were supported al1along by JNA artillery and logistics. Apparently, strategic planning
and command structures had beenuniform.
Later other groups (Se~eljevci,Beli Orlovi, the 'temtorial defence,' and 'volunteers'fiom
neighbouring towns in Serbia assumedthe task of securing the city (militarily). After the
occupation of the city (April 1011 l), the core troops apparently left Zvornik.Reply of Bosnia and Herzegovina
TheArkanovci were highly mobile and had many vehiclesji-om private owners.Apartfrom their
'militarytasks'the Arkanovci were responsiblefor many of the atrocities and lootings. Arkan
himseifpurportedly ordered Muslims and hospitalpatients to the execution sites. His people
murdered several men in the house of Salim Donjic and committed massacres in the ciîy districts
Zamlas and Hrid. In the morning of April9 they are said to have committed another massacre in
VidakoveNijeve ut the access road to Zvornik. In the cafe 'Klemp'too, they are said to have
committed another massacre in the morning hours of April9. But since the cafe is situated in the
direction of VidakoveNijeve, the massacre mentioned earlier could be identical with that in
VidakoveNijeve.
Their arms included: automatic riflesM 70A, M 70B and U.S. rifles, 'skorpion' rifle, and
grenades, anti-tank grenades and launching grenades; ropesfor choking people, long 'Rambo-style'
knifes, clubs; they woreullet-proofjackets for their own security["EthnicCleansing
Operations" in the northeast-BosnianCity of Zvornikfiom April through June
1992, Ludwig Boltzmann Instituteof Human Rights, Vienna 1994,pp. 13-15,
para. 4.2.3., emphasisadded, Annex 481.
275. Then it describes the activitiesof the Serbian CetnikMovementwhich it refers to as
"Se~eljevci":
"~he Se~eljevciwere describedas 'bearded' men. They wore Serbian military berets with the
Serbian flag or a skull on the frontside, or black fur hats ('Sapka')with Serbian cockade. The
cross-shaped ammunition beltswom across the breast and handgrenades on thebelt were another
identification mark.
Their leaders aresaid to have been Nikola Jovanovic, a taxi-driverfrom Loznica [Serbia]; a certain
'Nislija'; a man named 'Hladni', maan called 'Dragan Toro,' who wore a major's badge, and
'Vojvoda Se~elj'.
According to witness accounts they werefiequently drunk; they repeatedly recruited criminals and
'weekendfighters. 'They are said to have been particularly active as regards acts of violence
against civilian- including violence in internment camps. The Seieljevci are blamedfor the
desecration ofut least one mosque, playing 'Chetniksongs'over the loud-speakers and raising a
jlag with askull.
Their headquarters werehard to localize. According to witnesses, they werein the 'Standard'
factory in Karakaj, in the 'Inzinjering'panybuilding on the 'Alhos' premises or the
'Vezionica' in Karakaj, inthe 'Drina' hoteland in the radio stations pre-school.
Prior to the attack, rnembersof the Seieljevci were already present as civilians. Theyparticipated
in the attack as early as April9 and stayed involved throughoutthe entireperiod of the occupation
until the conquest of Rulagrad.
They assumed control of variousparts of the ciîy and were responsiblefor lootings wherever they
went. They always cooperated with the JNA, both with regard to strategy and command structure.
Their weapons included: automatic rifles M59, M 66,M70A, M 70B, long, curved knives, hand
grenades.1'[ibid., pp. 15-16, para4.2.4., emphasisadded].
276. After Zvornik's capture,there was a carnpaignof murder and imprisonmentagainst
those Muslimswho had notfled. A Serbianwoman told UnitedStates Embassy Chapter -Section 7
Yugoslavparamilitary actionsin Bosnia and Herzegovina
officers in Budapestthat several Yugoslavarmy tanks, led by Arkan, had corneto
Zvornik on 10 April 1992.A unit under the command ofArkan searchedfor
Bosnian Muslimmen by checking identity cards.They then cut off the heads, hands
and feet of their victims [United Nations,Final Report ofthe UnitedNations
Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex III.A,
"Special Forces", p. 168,para. 5771.
277. On 5 May 1992, Arkan andSe~eljtroops surroundedthe village of Bratunac and
upon their attack 10,000 Muslimsfled the small towns along the Drina river. The
villages of HraCa,Glogovoand MihaljeviCiwere bumed.During the attacks an
estimated 500 Muslim houses were bumed and fi@ people killed. The bodies of the
villagers were found on the banks of the Drina. [ibid., p. 140, para. 3811.
278. The United Nations Security Council recognised the part playedin ethnic cleansing
by paramilitas. forces. On 24 April 1992the Presidentof the Security Council
condernned "theuse of force" and calledupon "al1regular or irregularmilitary
forces to act in accordance withthis principle" [UnitedNations, Statementby the
President of the Security Council,Sl23842,24 Apr. 1992, emphasis added]. On15
May 1992the SecurityCouncil adopted Resolution752, demanding "alsothat al1
irregularforces in Bosnia-Herzegovinabe disbanded anddisarmed"[UnitedNations,
Security Council Resolution752 (1992), SlRESl752, 15 May 1992, emphasisadded].
In Resolution 757 of 30 May 1992,the SecurityCouncil repeatedthe sarnedemand
lTJnitedNations, Securiiy Council Resolution757 (1992), S/RES/757,30 May 19921.
Yugoslaviacontinuingsupportfor and controloverArkan and Se~eljReply of Bosnia and Herzegovina
279. The Respondent ignoredthese demandsof the Security Council and intensifiedits
support for the Serbianparamilitaries.One of the most important functionsit
performed was the organisationof the transport for the paramilitary groups tothose
areas where shortly after their arriva1the non-Serbpopulationwould be massacred.
The Yugoslav airforce also CO-operated closely withthe paramilitary groups.This
did not escape theattention of the TrialChamberat the ICTFY:
"~he JNA and inparticular its airforce armactively cooperated withand assisted these
paramilitary unitsduring 1991and 1992in operations in Croatia and Bosnia and Herzegovinaand
liberally supplied them with arms and equipment."rial Chamber,Opinion and
Judgment,Prosecutor v. Duiko Tadit, CaseNo. IT-94-1-T, 7 May, p. 40, para
110, emphasis added].
280. Yugoslav air force squadron 242,based at Batajnica near Belgrade,is named by
Jane S as having the closest links with the paramilitary forces.In its assessmentof
the Yugoslav militaryin June 1993it States:
"ASwellas providing military helicoptersfor the extremist paramilitary leader VojislavSeSelj
(whose units received arms fiom StevanoviC),this squadron becameknow[n]as the ''irstSerbian
because of its close links with al1the Serbianparamilitaryleaders. These included: MirkoJoviC,
leadeofthe 'White Eagles'(Beli Orl[ov]i); Captain 'Dragan', an Australian Serbwho lead the
Serbian fight in parts of Croatia; andZeljko RaznjatoviéArkan, leader of the 'Tigers' force."
[JamesGow, "Belgrade and Bosnia -An Assessmentof the Yugoslav
Military",Jane SIntelligenceReview,June 1993,p. 244, emphasis added,
Annex 1891.
The JNA also allowedthe paramilitaryforces to use their helicopters for the
transport of men and material. For example, SerbianDefence Minister General
Tomislav Simovikwas reportedby the Belgrade weekly NINto have transported
Arkan by helicopter andwhen Se~eljrequested a helicopter to inspecthis men ffom
Simovikhe suggested contacting GeneralAdUk, who consequently suppliedhim with
a helicopter ["Izkabineta rninistravojnoga" ("fiom the Defence Minister'sCabinet"),
NIN, Par t , 24 Apr. 1992,pp. 26-27, Annex 1901.
281. As illustratedabove a group of men known as the VojnaLinija - ("military line")of
the State SecurityDepartmentwithin the SerbianMinistryof the Interior were
responsible for theparamilitaries.The SerbianMinistryof the Interior controlledthe
paramilitary units and their leaders. Writingin Tribunal, Srdja Popovik(well known
dissident lawyerduring the comrnunistregirne and founderof the Belgradebased
oppositionmagazine Vreme)demonstratesthe importanceof the Serbian Interior
Ministry to the control of paramilitaries: Chapter 8- Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
"~he police have been and remainMiloSeviC'smain power base.Most police officers were
appointed during his rise to power in between 1987 and 1991.During this time, MiloSeviCnot only
retained control but also over federal institutions andSerb leaders outside Serbia. Radovan
Kara&iC and Gen. RatkoMladiCin Bosnia, and MilanMarti6 and Milan BabiCin Croatia, lasted
only as long asMiloSeviCwanted. MiloSeviCalso controlled allegedlyprivate institutions,such as
the banks officially ownedby Jezdimir VasiljeviCand Dafina MilanoviC.These banks paid for the
war by plundering the people through pyramid schemes. Behind such effigies of institutions loomed
the real power -the police and their boss,MiloSeviC.
Thepolice took part in military operations in Croatia and Bosnia in two ways. First, they
participated directly in units of the so-called Red Berets, commanded by Serbian police oficers
directly under MiloSeviC'scontrol: Jovica StaniiiC,Head of State Security and Assistant to the
Minister of the Interior; his depuîy Frano ('Frenkiimatovit, Radovan ('Badza7 StojiclE,now
Head of Serbian Public Securiîy and Assistant to the Minister of theInterior, and Mihalj Kertes,
the Depuîy lnterior Minister. Second, they controlled theparamilitary units and their l-aders
2eljko ('Arkan7 Ra2njatovit (wantedfor robbery in several European countries), Dragoslav Bokan
(injail for robbery in Serbia), Vojislavelj,Mirko JoviC,Daniel Sneden ('Kapetan Dragon 7 and
Vojin ('Zuca7 VuckoviC.
Theseparamilitary leaders say that they were armed by the JNA and thepolice, and that military
barracks, transport,ngorms, training, and commandingpersonnel wereplaced ut their disposal.
They drove police vehicles. Thepolice and the army directed them to specific locations in Bosnia
and Croatia and CO-ordinatedtheir actions with those of the army. They had police escorts through
Serbia, aswell as unhinderedpassage across Serbia S borders, and they were even allowed to
import their warbooty into Serbia. WhenSeSelj travelled to inspect his units he went by military
helicopter."[Srdja PopoviC,"The MiloSeviCConspiracy", Tribunal, a Publication
of the Institute for War and Peace Reporting, No. 7,Feb./Mar. 1997,p. 1,
emphasis added, Annex 1911.
282. Julian Borger of The Guardiandescribes the relationshipbetween Radovan StojiCid
who is also known as "BadZa"and BranislavVakiC,a commander in the Se3eljYs
Serbian Cetnik Movement:
"One key source, Branislav Vakic,first met Badza in May 1991,in the eastern Slavonia region of
Croatia. Vakic, a former boxing champion from Serbia'ssecond city of Nis, was determinedto
fight for his kin at a time when Yugoslaviawas imploding, and skirmishes were breaking out
between Serbs and Croats. Vakic came with bearded bandof adventurers and freed convicts calling
themselves the Serbian Cetnik Movement.Under the leadership of the bespectacled history
professor called Vojislav Seselj.Whenthe Cetniks slouched into Slovenia, many were carrying only
hunting rrjles.Baba soon put that right. 'MUP[the interior minishy] started to help the Cetniks
in May',says Vakic. 'The MUP forceswere at that time under the control of Radovan Stojici-
'Badza'. We just got weapons fiom them then. But we started to act together in January 1993, in
Skelani and towards Srebrenica.'
By the time the Cetniks moved on to Bosnia, Vakic wasin charge of 6,000 men. Badza moved into
Bosnia at the same time. His influence isclear fiom some photographs Vakic proudly displaysin
his offices in Nis.icturefrom 1991 shows him and a handfirloffellow Cetniks brandishing a
few 1940s Thompson machine guns. Twoyears luter, in a snap taken near Srebrenica, Vakic is
posing with a sophisticated sniper rijle complete withfoot-long silencer and telescopic scope. 'We
got uniformsfrom the MUP, and the weapons we wanted; infanhy weapons, machineguns, sniper
rzjles with night scopes and morta'he recalls.Reply of Bosnia and Herzegovina
In early 1992, Vakic and hismen were trained at a militay base near Belgrade, calledBubanj
Potok. Later in 1992and 1993, his Cetniks were moved downto a new base at Bajina Basta (on
the Bosnian Border) where they met 'Frenki' Simatovic, who ran an interior ministry special forces
unitknown as the 'red berets'. Frenki notonly trained Vakic's men, he accompanied themon
forays against Muslims as the fighting spread into Bosnia.
'FromSeptember to October 1992[months after Yugoslavforces were supposed to have oflcially
'withdrawn'fiom Bosnia and Herzegovina] wefought with FrenkiS units in Bratunac [a town near
Srebrenica (Bosnia and Herzegovia)]. They were goodbut they didn 'tjîght with the same heurt as
true nationalists'ad& Vakic.
In August 1993, he sent 300 of his menforfirther training in a Serb interior ministry camp on
Mount Trmina near Bajina Basta, but says that the relationship with FrenkiS men broke down
soon afterwards when they tried to make them leave the Radicalparty. The red berets, he says,
they were loyal only to Milosevic and his Serbian Socialistrty.
VOJISLAV Seselj, Vakic's bossin boththe Cetniks and the Radical Party, hasalso told journalists
how his men fought along side the red berets, mentioning notonly Frenki but also Mihalj Kertes as
their commanders. Kertesis also named as a red berets commanderby another Serb warlord,
Dragoslav Bokan, nowinjail for armed robbery. While Frenki took overas the Cetniks 'handler in
eastern Bosnia, Badza linked up with Zeljko Arkan' Raznjatovic and his notorious Tigers militia.
Marko Nikovic, aformer Belgradepolice chie$ says that Badzaformed a 'special relationship with
Arkan in eastern Slovenia.'From that moment on, he ad&, Arkan, aformer bank robber with a
long and international criminal record, became untouchable. The 1991photograph (above) amply
illustrates that 'special relations'Arkan and Badza are standing together smilinginfront of the
Tigers 'training centre in Erdut, near the eastern Slovenianfront. Another photograph shows a
Jeep emblazoned with Tigers insignia bearing Serbianinterior ministry number plates.
A well placed source within the Milosevic'sruling coalition goesfirther than Nikovic, on condition
of anonymity. 'Wheredo you think the guns andjeep camefrom? How do you think that Arkan got
to al1thoseplaces? Wherever therewasArkan, there was Badza, 'the source said. Arkan's case
was not exceptional. Accordingto Nicovic, the doors of Serbia's prisons were thrown openin
1991, and 'thousands' of convicts were releasedso that they could fight in paramilitary groups like
the Cetniks and the ~i~ers."[Julian Borger,"Thepresident'ssecret henchrnen",The
Guardian, 3 Feb. 1997,pp. 8-9, emphasis added, Annex1921.
The Serbian paramilitaryorganisationwere therefore also armed by Belgrade. The
results of these armamentswere clearly illustratedin late 1991, whenArkan's
Serbian Volunteer Guard published a special calendar.On the photographsin this
calendar Arkan's paramilitary soldiersare proudly showingtheir impressive
equipment. The month June shows apicture taken at the Erdut training centre in east
Slavonia. Croatia, and the month October shows a photographtaken of a group of
paramilitaries in the field [Serbian Volunteer Guard, Calendar, 1992, Annex1931.
283. It should be emphasisedthat many paramilitarieswere trained in JNAfacilities.
Colonel Selaktestified during the Tadi6trial that some paramilitaryunits such as the
"red berets" and "Eagles" were trainedby JNApersonnelat ManjaCa,an area near
Banja Luka formerly used for the training of tankunits of the JNA.Their weapons,
equipment and uniforms were suppliedby the JNA.The witness heard of such
activity for the first time in November 1991 [ICTFY,Trial Chamber,Prosecutor v.
DuSkoTadiC,Case No. IT-94-1-T, Transcriptof the oral testimonyof Colonel Selak, Chapter 8 - Section 7
Yugoslavparamilitary actionsin Bosnia andHerzegovina
960605.DOCY5 June 1996,p. 1246,Annex 1941.Other paramilitary groups, such as
the "Serbian Falcons", which operatedin Bosniaand Herzegovinaas well as in
Serbia had a training camp in Subotica, Serbia [United Nations, Final Report of the
UnitedNations Commissionof Experts, SI19941674lAdd.2(Vol. 1),28 Dec. 1994,
Annex III.A, "Special Forces",p. 84, para. 2271.
284. The Respondent's support for the Serbian paramilitaryorganisationswas also found
by Paul Williams and Norman Cigar intheir A Prima Facie Casefor the Indictment
of Slobodan Milosevic,a well documentedstudy on the Serbian President's
responsibility for the genocide committedin Bosnia and Herzegovina:
"~fter establishing their paramilitary agents, the Republicof Serbia forces and agencies continued
to aid andabet the commissionof war crimesby these forces by providing them with substantial
financial resources.uch funding was crucialto the continued operation ofthe paramilitary agents,
since war booty by itself was nota sustainable sourceof income. On the whole, the most important
forms of financial supporto the paramilitary agents fiom the Republicof Serbia govemment were
cash subsidies.In addition, the Republic of Serbiapaid leave fiom state-sectorjobs while
individualsSe~ed in the ranks of the paramilitary agents,medical care for the wounded, and
bonuses and pensionsto the families of those who died while on duty. Wounded membersof
paramilitaryunits were also sent back for treatmentat the YugoslavAmy's medical facilities in
Belgrade. And, in some instances, the Republicof Serbia agencies provided officespace from
which to operate.
(-1
The provision of arms and training, in additionto funding, was key to enabling the Serbian
paramilitary agents tocany out their criminal activities. While the YugoslavAmy was one
primary source of arms, the Republic of Serbia police forces, Territol efense organization, and
other republic-level agencies were also substantially invoin the provision of arms and training.
Serbia's Minister of Defense, for instance, was allegedto be a primary supplier ofse weapons,
obtaining the weaponsfrom various sources andtuming them overto Serbia's Territorial Defense
officiais for distributionto the paramilitary agents.
A number of paramilitary agents have acknowledged receiving arms fiom republic-level sources.
According to Vojislav Seselj, foexample, 'Moreover,we would not havebeen able to cany out
the war during the first days by ourselves had we not received armsfiom them (Serbia's Socialists,
that is Slobodan Milosevic). How couldwe have?' Elsewhere, VojislavSeselj also noted that, 'we
received armsfiom him (Mihalj Kertes, then Serbia's Deputy Federal Ministerof Intemal Affairs,
Head ofthe Secret Service, and Vice-President of Serbia's Presidency) frur volunteers.' Asked
who else, specifically, had givenhim arms, Vojislav Seselj replied: 'Serbia's leas.gave some
arms ...old weapons ...(U.S.-made) Thompson and (Soviet-made) Shpagni sub-machineguns ...
The (Serbian) police provided that fiom its stocks,and from the stocksof (Serbia's) Temtorial
Defense, since the Territorial Defense wasunder the authority of the Republic (of Serbia), rather
than under the Federal Govemment (of Yugoslavia).'Again, Vojislav Seselj noted that, 'We
received arms fiom [them] (the Serbian police). Of course,we also received (arms) fiom themy,
but many more fiom the police.' Colonel Vojislav Sljivancanin, chiefof JNA security on the
Vukovar fiont, who has been indictedby the Tribunal, adds that 'Serbia'MUP (Ministry of
Intemal Affairs) provided the complete arsenal of the 'White Eagles', 'Tigers' aneselj's Radical
Party.'Reply of Bosnia andHenegovina
Another paramilitqcommander, Branislav Vakic, stated that in addition to the receipt of weapons,
his forces also received extensive training by Serbian police forces:
'While the war was going on, our volunteers recamveand equipment fiom the (Yugoslav)
Amy and the (Serbian) police. Of course, appropnate receipts exist for that. Three hundred people
were stationed in theP (Ministry of Intemal Affairs) Personnel Training CTarar in
[Federal Republic of Yugoslavia]. We also received unifoms from the MUP.'
Vojin Vuckovic, the commander of the Yellow Wasps paramilitary agent, for his part, notedthat
when he deployed from Serbia to Bosnia, he 'amved in Zvomik (Bosnia) already armed.'
Likewise, hardline Serbianbel leader Simo Dubajic from Croatia claimed to have coordinated
with Serbian officialsh as Radmilo Bogdanovic, Mihalj Kertes, and Jovica Stanisic (Director of
Serbia's State Secret Service), and thathe had received rifles even before fighting broke out in
Croatia from thetate-owned 'Crvena Zastava' (Red Flag) enterprise in Kragujevac, Serbia.
In many instances, the transfer of weapons and the provision of training was the direct result
of the personnel involvement of Slobodan Milosevic. Accordingto Vojislav 'Thanksto the
cooperation and alliance with Milosevic, our impact on thisexceptionallygrea..We
received from him weapons, uniforms, buses, and a barracks in Bubanj Potok (near Belgrade)
where we trained our volunteer[PaulWilliams& Norman Cigar, A Prima Facie
Case for the Indictrnentof SlobodanMilosevic, London1996,pp. 36-38].
285. Supportfor the paramilitarieswas practical aswell as moral. The pararnilitary
organisationswerefi-equentlylionizedand given wide coverage on thestate-run
media. A training film on behalf of the SDG wasshownon Belgrade Television.
Arkan and Se~eljwere given favourablecoveragewhile activein Croatiaand Bosnia
and this includedArkan's accountof how he had"liberated"the Zvornik area.
ThePolitika obituanes
286. The Belgradebased newspaperPolitika, once describedas the newspaper that
"projectsand reflects politicalpower" in Yugoslavia[Article 19,Forging War: The
Media in Serbia, Croatia and Bosnia-Herzegovina,Avon 1994,p. 64 and pp. 67-70,
Annex 195;see also Statementon PrelirninaryObjections,pp. 15-16, paras. 35-37],
printed obituariesof fallen paramilitarycornradeson the tenitory of Bosnia
Herzegovina. These obituariescontinued to appearin Politika throughoutthe whole
armedconflict that lasted until the signingof the DaytonAccordsin the autumnof
1995.
287. In 1992,Politika published inter alia the followingobituariesof membersof
Yugoslavparamilitary units,al1killed in combat onBosnianterritory: Chapter -Section 7
Yugoslavparamilitary actionsin Bosniaand Herzegovina
- Zoran TomaSeviC,"Cetnik",member ofthe Serbian People's Renewal Pany
paramilitary force called "Beli Orlovi"[White Eagles] [Obituary publishedin
Politika, 3 May 1992,Annex 1961;
- Zoran ObrenoviC,"Cetnik",Major of the "flying squad" called"DuSanSilni"
[DuSanthe Mighty]; a unitof the Serbian People's Renewal Partypararnilitary
force called "Beli Orlovi" [White Eagles] [Obituary publishedin Politika, 29
May 1992, Annex 1961;
-
Miroslav Miljevie, Serbian VolunteerGuard [Obituary publishedin Politika, 13
June 1992, Annex 1961;
- Ljubomir JorgiC,"Cetnik", memberof the SerbianPeople's Renewal Party,
killed in Gacko Polje, south BosniafHerzegovina[Obituary publishedin
Politika, 23 June 1992, Annex 1961;
- Pedrag ManciC,"Cetnik, member of the Serbian Radical Party [Obituary
published in Politika, 11 July 1992,Annex 1961;
- Branislav PavloviC,Serbian Volunteer Guard, killedon 12 July 1992 [Obituary
published in Politika, 21 July 1992,Annex 1961;
- Marjan BoiiC, Serbian Volunteer Guard, killedon 11July 1992[Obituaries
published in Politika, 25 July and 21 August1992, Annex 1961;
-
Miodrag hmiC, Serbian Volunteer Guard [Obituary publishedin Politika, 13
September 1992, Annex 1961;
- SaSaTomiC,Serbian Volunteer Guard [Obituary publishedin Politika, 7
October 1992, Annex 1961;
- Djordje DJ IgnjatijeviC,Serbian Volunteer Guard, killedin the Bratunac area,
east Bosnia [Obituary publishedin Politika, 17 October 1992, Annex 1961;
- Zeljko MarivkoviC,"Cetnik",member ofthe Serbian Radical Party[Obituary
published in Politika, 21 October 1992, Annex1961;
- Stojan Sarcev, "Cetnik, member of the Serbian Radical Party [Obituary
published in Politika, 15 december 1992,Annex 1961.
288. In 1993, more obituaries were publishedin Politika:
- Dragan RistoviC,Serbian Volunteer Guard, killed on 7 February 1993
[Obituary published in Politika, 12 February 1993, Annex 1961;
- Vladica NikoliC,Serbian Volunteer Guard [Obituary publishedin Politika, 16
February 1993, Annex 1961;
-
Zoran JovanoviC,Serbian Volunteer Guard [Obituary publishedin Politika, 7
March 1993, Annex 1961;Reply of Bosnia and Herzegovina
- Kosta Gvozdenov, "White Eagle"paramilitary group, killed in the Srebrenica
area [Obituary publishedin Politika, 16 April 1993, Annex 1961;
-
A group obituary for members of the Guards Special Brigadecalled the
"Panters",who were killed in 1992and 1993 [Obituary publishedin Politika,
30 April 19931;
-
Dejan StanimiroviE,"Cetnik",member ofthe Serbian RadicalParty [Obituary
published in Politika, 26 May 1993, Annex 1961;
- Dragan Tanjga, Serbian Volunteer Guard, killedon 23 June 1993 [Obituary
published in Politika, June 27 1993, Annex 1961;
- Branko PanteliC,Serbian Volunteer Guard, Special Brigade "Panters", killedin
September 1992 [Obituary publishedin Politika, 2 September 1993, Annex
1961;
- DuSkoLiEina,"Cetnik",member of the Serbian Radical Party, killedon 18
October 1993 [Obituarypublished in Politika, 15 October 1993, Annex 1961.
289. In 1994,Politika printed once moreobituaries of paramilitarieswho died in
combat in that year:
- Goran GrkoviE,"Cetnik" [member ofthe Serbian RadicalParty]; killed on 29
August 1994on Mt. Majevica,near Tuzla [Obituary publishedin Politika, 1
September 1994, Annex 1961;
- Rajko KuSiC,Serbian Volunteer Guard, killedon 2 September 1994 [Obituary
published in Politika, 4 September 1994, Annex 1961;
- Miodrag hiC, Serbian Volunteer Guard, [Obituary publishedin Politika, 9
September 1994, Annex 1961;
- Nedeljko VidakoviC,"Cetnik [memberof the Serbian Radical Party]; killed on
27 September 1994in the area of Konjic, central Bosnia [Obituary publishedin
Politika, 29 September 1994, Annex 1961;
- Goran VuckoviC,"Wolvesof the Drina River", killed on 4 Oktober 1994in the
area of Gacko, south Bosnia and Herzegovina [Obituary publishedin Politiku,
10 Oktober 1994, Annex 1961.
290. In 1995Politika continuedprinting obituaries of paramilitarieskilled during the war
in Bosnia and Herzegovina:
- Vladica NickoliC,Serbian Volunteer Guard,killed on 13 February 1993
[Obituary publishedin Politika, 13 February 1995, Annex 1961; Yugoslavparamilitary actionsin Bosnia and Herzegovina
-
Ivan OkiljeviC,Serbian VolunteerGuard, killed on 10 April 1992 [Obituaries
published in Politika, 8 and 10April 1995, Annex 1961;
- Dobrica Ljuboja and Milorad RistiC,both members of the Serbian Volunteer
Guard, killed in July 1995 [Obituarypublished in Politika, 8 July 1995, Annex
1961;
- Miroslav RaduSiC,SerbianVolunteer Guard [Obituary publishedin Politika, 12
July 1995, Annex 1961;
- Zoran MariC,Serbian Volunteer Guard [Obituary publishedin Politika, 20 July
1995, Annex 1961;
- Boban GojakoviC,Serbian Volunteer Guard[Obituary publishedin Politika, 1
August 1995, Annex 1961;
- Bogdan Drobac, Serbian Volunteer Guard, killedon 1 October 1995 [Obituary
published in Politika, 5 October 1995, Annex 1961;
-
Srdjan SimiC,"White Wolves",killed on 12 October 1995 [Obituary published
in Politika, 15 October 1995,Annex 1961;
- Brica PuziC,Serbian VolunteerGuard [Obituary publishedin Politika, 14
Oktober 1995,Annex 1961.
291. The obituaries published in Politika, duringthe war on Bosnian territory,
demonstratethat the paramilitaries remainedactive until the very end of the war, on
a wide scale. The above noted paramilitaries were onlythe tip of the iceberg.
The Yugoslav paramilitary units were responsiblefor the most evil atrocities
292. The paramilitary troops of Arkan and SeSeljtook part in some of the worst genocidal
cleansing. After entering captured villages, Arkanand SeSelj'stroops would begin a
reign of terror. In the ovenvhelmingmajority of these counties or opitinas in which
Arkan and SeSe1j7s troops were operating, thereare reports of killing of Muslim
civilians, torture and rape of adults andhildren, looting, destruction of private and
cultural property and camps. In some instancesspecific individuals such as
prominent non-Serb leaders or intellectualswere especially targeted.
293. According to the United Nations Commissionof Experts, killings of civilians by
ArkanandSe~elj'smen were reported in the following OpStinas:Banja Luka,
Bijeljina, Bosanski Samac, Bratunac, BrEko,Derventa, Dragovci,Foea,Gacko,
Kupres, Maglaj,Prijedor, Rogatica, Sarajevo, Srebrenica,ViSegradand Zvornik
[United Nations, Final Report of the UnitedNations Commissionof Experts,Reply of Bosnia and Herzegovina
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex III.A, "Special Forces",p. 197,
note 1611.
294. For example, in the aftermathof the take-over of Bratunacby Arkan and Se~elj's
forces the non-Serb civilianpopulation wasroundedup and separatedby gender.
Approximately 600to 700 Muslim men were broughtto Vuk KaradZiCPrimary
School Sports Centre where Arkan's and SeSelj'smen and localSerb men tortured
and killed scores of them. The torture included beatingwith iron rods and wooden
poles. Mutilation occurred, ears, noses, and genitalswere cut off and the sign of the
orthodox cross was cut into prisoners'flesh. Whilebeing tortured the prisonerswere
made to sing Serbian nationalistsongs. Mostwere killed by gunfïrebut in one day it
is alleged thatup to 150people were beaten to death[ibid., p. 140, para 3821.
295. As statedin the Memorial andearlier in this Reply [Memorial, paragraph2.2.2.10;
Reply, Chapter 5, Section 61Zvornik was the site of particular atrocitiesagainst the
most vulnerable members of the Muslim cornrnunity.Neither the sick, aged or
indeed children were exempt fiom the brutality.Around mid to the end of May
1992,Arkan's men shot theMuslim patientsof the hospitaiof Zvornik [United
Nations, Final Report of the UnitedNations Commissionof Experts, Chapter 8-Section 7
Yugoslavparamilitary actionsinBosnia and Herzegovina
Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,Annex IV,"The Policy of Ethnic
Cleansing",p. 62, para. 369;see also Mernorial,p. 32, para. 2.2.2.101.
296. The paramilitary troops of Arkan and Selelj were responsiblefor the rape of women
and children that they had taken prisoner. After the capture of the town of Brezovo
Polje in BrEkocounty on 17 May 1992,the women, elderly and children were
loaded ont0 eight buses and then driven round the country side for a number of days
until:
"~he group was then taken to Caparde in Zvornik county,50hSerb irregulars, reportedly
followers of Arkan, robbed the mothers and forcibly separated themfkomtheir daughters. The
daughterswere transportedto the Osnovofurniturewarehousein Carparde, while the mothers
were taken on a anotherjourney throughthe war zone. At the warehouse,the men selected the 40
prettiest' young women andraped them ingroups of ten. One of theperpetrators told his victim
that Seiesjmen would have raped them '10men to one wom'.Iwnited Nations, Final
Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
1),28 Dec. 1994, Annex III.A, "Special Forces",p. 143, para. 4011.
297. Another practice of the paramilitary forceswas the setting up of "brothels", or more
accurately rape camps, for the use of their men. A morecorrect term for these
"brothels"would berape and murder camps. In the Vilina Vlas hotel in ViSegrad
such a "brothel" was established for theuse of Arkan's and SeSelj7stroops as well as
local police officers. Many of the girls there were under 14 years of age [United
Nations, Final Report of the United Nations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), Annex VIII, "Prison Camps",p. 325, para. 27001.The
infamous "Sonja's cafe",just outside VogoSCa,was the site of nurnerousrapes and
killings of Muslim women. The "commander"of this detention facility was Miro
VukoviC,a member of SeSelj'sforces. VukoviCreportedly established a systemfor
Serb fighters to rape and kill women [United Nations,Final Report of the United
Nations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28 Dec. 1994, Annex
III.A, "Special Forces", p. 159,para. 5161.Many terrible rape camps were also
located in FoCa,especially in the months following the outbreak of the conflict in
April 1992. Arkan's SerbianVolunteer Guardwas also active in the FoEaarea [see
e.g. Ministry of Interior Affairs of Republika Srpska,Telex addressed to Ministry of
Interior Affairs of the Republic of Serbia, num. 0212-2640193,9 July 1993, signed
Goran MaCar,Annex 1971.The systematicnature of rape and the genocidal
intentions of the perpetrators has been discussedabove [Reply, Chapter71.Reply of Bosnia and Herzegovina
298. The paramilitary troops of Arkan, the Serbian Volunteer Guard,had military police
type functions for the Bosnian Serb Army. They were used to capture, discipline and
return deserters to their units and they were also involved in the forcible mobilisation
of Bosnian Serb refugees on Yugoslav territory to servein the Bosnian Serb army.
They maintained this role until the end of 1995 ["SerbVolunteers' Relations With
Belgrade Examined", Vreme,16 Oct. 1995, FBIS-EEU-95-204,p. 11, Annex 1981.
299. The paramilitary forces of Arkan and SeSeljwere also responsible forthe setting up
and the operation of camps. Camps were reported in the following counties in which
Arkan and SeSeljwere operating: BanjaLuka, Bijeljina, Bosanski Samac, Bratunac,
BrCko,Derventa, Doboj, Dragovci,FoCa,Gacko, Kalinovik, Konjic, Maglaj,
ModriCa,Mostar, Nevesinje,OdZakP , ale, Prijedor, Rogatica,Sanski Most, Sarajevo,
Srebrenica, Teslie, Tuzla, ViSegradand Zvomik [United Nations,Final Report of the
UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol. 1),28 Dec. 1994,
Annex III.A, "Special Forces", p. 197,note 1651.
300. In addition, paramilitary troops were responsiblefor the supply of guards, the
rounding up of prisoners and the running of many of the camps. Oneexample in Chapter 8 - Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
particular, given by the Commission of Experts in its Annex on camps, shows the
horror of these detention centres. The following refers to the infarnous Luka camp
[see also Reply, Chapter 5, Section 51,the primary detention centre in BrEko:
"748. The Serbs detained prisonersat the Luka port facility from at least 8 May 1992until late
July or August 1992, when,it seems, the Luka camp was shut down, and the surviving prisoners
were transferred elsewhere. Reports suggest thatthe camp population ranged from 1,000 to 5,000
inmates with the total number of people who passed through unknown.Supposedly about 95 per
cent were ethnic Muslims andthe remainder Croatian; (...)
749. (..) Up to three thousandprisoners may have been killed in the Luka detention complex and
al1inmates were subjected to inhumane living conditions and a variety of brutal assaults, including
rape and torture. Theperpetrators of such acts were guards, administrators,soldiers and
paramilitaries.(...)
750. The Luka camp had five mainpart: an administration building, which included barracks,
offices, interrogation rooms, and rooms where women wereheld to be raped; a large warehouse
divided into threecompartments,where the detainees were held; a police barracks; asmall building
used as barracks by groups of front-line soldiers who visited the complex; and a second large
warehouse, where visiting soldiers could obtain small arms and equipment.(The warehouse held a
new mode1of rifle manufacturedby the Companyin Serbia that usually supplied the JNA; some
trucks making deliveries to the warehousehad license plates from Serbia.) The visiting soldiers,
especially members of Arkan S forces, appear to have been responsiblefor many of the beatings
and killings.
751. From early May, Luka's commander was reportedly Major PetaD r jokiC;the Deputy
Commander was an identified Captain. Both menwore JNA uniforms. (...) They were directly
involved in arrangingfor the transfer to the 'Serbian Republic'of the propers of ut least some
Muslims interned in the camp, in concert with the representatives of the Arkanovci. They appear to
have had repeated, direct contacts with variousparamilitary leaders (including Arkan, Captain
Dragan, and CaptainMauser, a localparamilitary).
(-1
752. (...) Nearly al1guards in the camp (and al1those seen after Kosta took command) wore blue
SUP uniforms.Paramilitaries, in particular the Arkanovci and Draganovci,participated in the
transportation of detainees to andfrom Luka.
(...)
755. During his first days at the camp, the captors called out names of prisoners from electoral
rolls.Al1those who were members of the SDA (Bosnian, primarily Muslim political party) orwho
had held positionsof leadership in business or indusîry were killed. Shootings often occurredat
4.00 a.m. The witness estimatesthat during his first week at Luka more than 2,000 men were
killed and thrown into the Sava river.
(.-.>
759. After the witness [a Muslim fromBrEko]had been interrogated, hewas taken with other
prisoners to Hanger Two of the loading dock,where they were forced to look at a pile of more
than 200 corpses or torsos. Most of the body parts had been choppedoff: hands, arms, andgenitals.
The prisoners standingoutside Hanger Two were told that they wouldend up like that if they told
lies while being interrogated.
760. Looking outof the window during one of his interrogations,the witness saw soldiers gang
rape a women whom he had known since his highschool days, andmurder her husband. ABrEko
school teacher amongthe guards, an ethnic Serb, was shot dead for refusing to join in the torture
and the killing of the couple."[United Nations, Final Report of the United NationsReply of Bosnia and Herzegovina
Commissionof Experts, Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, Annex
VIII, "Prison Camps",pp. 92-94, paras. 748-760, emphasisadded].
301. The paramilitary troops of Arkan and ~egeljwere an integral part of the genocidal
Bosnian campaign, fiom the beginning of the armed conflict until its very end. They
were also present at the fa11of Srebrenicaon 13 July 1995, as Professor Manfred
Nowak, expert member of the United Nations Workinggroup on Enforced or
Involuntary Disappearances,noted in his second report:
"~ccordin~ to reliable sources, the Bosnian Serbforces as well as paramilitary groassthech
Drina Wolves,Seielj Militia, Specialna Policija, 'White :a'Tigers'and Krajina Serbs were
the main units conducting thefighting and responsiblefor the expulsionof civiliansfrom
Srebrenica and the subsequent massacres[United Nations,Specialprocess on missing
persons in the territory of theformer Yugoslavia,Report submitted by Mr.
Manj?ed Nowak,memberof the WorkingGroup on Enforced or Involuntary
Disappearances, ElCN.4119961364 , Mar. 1996,p. 18, para. 65, emphasis
added] .
The ICTFY noted this in its indictmentof General Ratko MladiCand Radovan
Karadiié:
"1t is worth noting that it appears fromthe witness statementsthat not only Bosnian Serb soldiers
but also soldiers from the Federal Republic of Yugoslavia(Serbia and Montenegro) were present
during the take-over of Srebrenica. These soldierswere easily distinguishableby their clean-cut
appearance, distinctiveiforms and use of Serbian dialects.Elements of the YugoslavPeople's
Army (JNA), including the Novi Sad Corpsand the 'Uvi'[UZice]Corps, as well as irregulars
loyal to 'Arka',were seen by a number of witnessesin and around ~rebrenic[ICTFY,
Review of the Indictment before JudgeRiad, Prosecutor v. KaradZiLand
MadiC ("Srebrenica'i),IT-95-18-1,16Nov. 95, p. 3, emphasis added].
And as Roy Gutman reported as late as October of 1995:
"~hree and a halfyears afler Zvomik, Arkan and other Serbian paramiliforces are still active
in Bosnia. On Oct. 19, John Shaauck, [United States AssistantSecretary of Statefor Democracy,
Human Rights and Labour], a senior StateDepartment official, reported that Arkan and other
paramilitaryforces had roundedp and may have murdered 2,000 to3,000 Muslim men and boys
in northern Bosnia earlier in the mont[ROYGutman,NewsdayInc., 30 Ott. 1995,
Washington Bureau, emphasis added,Annex 1991
Conclusions
302. Today, al1the leaders of these paramilitary groupslive openly and are politically
active in the Federal Republicof Yugoslavia. Writingfor Tribunal, Sonja Biserko, Chapter 8 - Section 7
Yugoslavparamilitary actions in Bosnia and Herzegovina
the director of the Helsinki HumanRights Comrnitteefor Serbia, demonstratedthe
rewards for those who directedthe most savageepisodesof ethnic cleansing:
"~aramilitary leaders such as Zeljko 'Arkan 'Raznjatovic and Vojislav~eielj, whosepublic boasts
about their men S role in atrocities and ethnic cleansing epitomised the horrors of the war, have
not yet been indicted. Nor have thepolice chiefs whoplayed a more shadowy but crucial role in
arming and organising the paramilitaries, or the army generals who ordered massive destruction in
Bosnia and Croatia. Today,Arkan and Seielj are still active on the Serbian political scene. They
are devoting their efforts tonsuring their own security and protecting the spoils they amassedas
profiteers.
Paramilitary forces numbering tens of thousandsof men fought on the Serb side in Croatia and
Bosnia. The leading paramilitary forceswere formed by opposition parties:the Serb Guards,
initiated by the Serbian Renewal Movement (SPO);an estimated 30,000-50,000 volunteers fiom
Se~elj'sSerb Radical Party (SRS);and the Serb Volunteer Guards, commandedby Arkan. The
authorities denied the existenceof these groups at first, but when efforts at mass conscription
failed, they brought themal1under direct JNA control. The Serbian police, directedby the so-
called Military Line in the Ministry of the Interior, also playeda major role in the organising the
and arming the paramilitary groupsand coordinating their activities.
Arkan's Serb Volunteer Guards were one of the best equippedand disciplined formations. Their
war crimes against civilians wereoften openly reportedin the Serbian press, with no attemptat
concealment.
(...)
At first, Arkan's mentumed al1prisoners over to the JNA. However, in November 1992, after
some of his fighters were killed,he declared, in an interviewwith the bimonthly magazine Intervju,
that 'the Guards will take no prisoners toexchange alive. Every enemy soldierwe take will be shot
dead.' He never concealed the fact that throughout the war his forces wereunder JNA command.
Arkan's Guardsstarted the war in Bosnia. They enteredBijeljina at the beginning of April 1992
and ernbarked on the cleansing, which hesaid later, was 'difficult', but they 'eliminated them all.'
Between April and July 1992, most of Bijeljina's Muslimpopulation were killedor expelled. The
Guards also went to Zvomik, where their activities resultedin the disappearance of some 50,000
people.
(-1
TodayArkan lives in Belgrade, in a new mansion in theprestigious Dedinje area. Photographs of
his wedding tofolk singer Ceca Velickoviccircled the world. He is seen as a success story in
Serbian society especially among theyoung supporters of the Red Star soccer club,from whose
fans he recruited hisGuardr. His name is brought up in al1settlement of accounts in the Belgrade
underworld. He is a successful businessman and president of the Party of Serb Unity, which he
founded. He is considered still to be under the control of Serbian President Slobodan Miloievik,
and was seen standing behind him ut thefuneral of assassinatedDeputy Interior Minism Radovan
Stojicic, in April1997." [Sonja Biserko, "Warlordsin Ciwy Street", Tribunal, a
Publication of the Institute for War and PeaceReporting,No. 8, Apr./May
1997,p. 8, emphasisadded, Annex 1841.
As mentioned above, Vojislav Segeljbecame SerbianDeputy Prime Minister in
March 1998.Reply of Bosniaand Herzegovina
303. Rather than being independentand unimportant elementsin the war in Bosnia and
Herzegovina,the Serb paramilitaryforces were an intimate,crucial and brutal
constituent of the genocidalBosniancampaign. Theywere created, trained, armed,
equipped, controlled,directed, transported and rewardedby the governmentof the
Federal Republic of Yugoslavia.In their relationship tothe JNA, they were likened
by Professor Norman Cigarof the U.S Marines Corps Schoolof Advanced
Warfighting, Virginia, and former senior analystfor the United StatesArmy Staff at
the Pentagon,to the Einsatzgruppenof the Second World War:
"~his symbiotic relationship callsto mind the operational procedurethe Nazis used in occupied
areas of Eastern Europeduring World War II. There, light special police, theEinsatzgruppen,one
of whose principal missions wastot 'racially and politically undesirable elements,'
coordinated closely with the regular army.In a studied divisionof labour, the,
along with locally raised and oftenunruly light auxiliary forces, normally went into action once the
more heavily armedehrmachtcombat forces had securedan area, thereby enablingthe lighter
forces to operate with relative im[Norman Cigar,Genocide in Bosnia, Texas
A&MUniversity Press, 1995,p. 55,Annex 641.
8. Yugoslav control over the Bosnian Serb Army
Yugoslavia balancedthe booksof the BosnianSerbArmy
304. The transformation of theJNA and its alleged withdrawalon 19 May 1992 has been
discussedat length above [see Chapter8, Section41.The transformationprocesswas
carefully planned in advance,at the highest level,as was disclosed in 1995, whenthe
Belgrade based Politika publishingCompanypublished thediaries of Borisav JoviC.
At the time of the dissolutionof the former Yugoslavia, BorisavJoviCwas Serbia's
representativeon the Federal Presidency. JoviC'sdiaries, which cover the period
from 15 May 1989to 8 July 1992, offer an interestinglook behind thescenes of the
Serbian leadership.Some of the later excerpts of the diary are dedicatedto a meeting
organised to discussthe "withdrawal"and transformationof the YugoslavArmy.
This meeting took place on 30April 1992 andwas attendedby representatives from
the SFRY, the JNA and the Bosnian Serbs. The followingpassage clearlyshowsthat
the Serb leaders in Belgradeand Pale agreedon the transformationof the JNA in
Bosnia and Herzegovina. Approximately 90,000 JNA troops would be put under the
commandof GeneralRatko MladiCt .o form a new BosnianSerb Army. There was
obviouslyno lack of manpower.The problem, however,was more of a financial
nature. Borisav Jovi6reported as follows:
"30 April1992 Chapter 8 -Section 8
Yugoslavcontrol over the BosnianSerb Army
Discussion with theSerb leadership fiom Bosnia and Herzegovina. BrankoKostiC[Vice-President
of the Presidency of the SFRY], SlobodanWiloSeviC,President of Serbia], MomirBulatoviC
[President of Montenegro], General Milan[Zivota] PaniC[Chief of JNA General Staff], KaradiiC
[Radovan, President of the Republika Srpska],KrajiSnikFfomEilo, President of the Assemblyof
the Republika Srpska],KoljeviC[Nikola, Vice-Presidentof the Republika Srpska]and me.
Security Council has recognised Bosnia and Herzegovina.thnic conflicts have inflamed there. We
are requested to withdraw the JNA fiom Bosnia and Herzegovina. Slobodan and me expectedand
predicted that. We cannot put the JNA in a positionto be proclaimed a foreign or aggressor army,
as some people wouldhope for.
Withdrawal of 10-15% of the remaining FRY citizens fiomJNA in B-H, al1together some 10.000
people, is neither a technical nor a transport problem. Theproblem is the recent careless statement
made by Branko KostiCthat he, in his capacity as the vice-president ofthe SFRY Presidency, will
never sign an order for the withdrawal of theJNA fiom Bosnia and Herzegovina, andalso the
statement given by Milan [Zivota]PaniCthat the army will not withdraw from Bosnia and
Herzegovina for another5 to 7 years, although that republic has been internationally recogassed
an independent state.The public took these statementsvery seriously, whereas the twoof them had
not think twice before making such statements. How wouldit be possible for usto forcibly keep
our army in another independentstate against its will and not to have that armybe proclaimed
undesirable?
Regardless of the statements madeby KostiCand Panid, we discussedthe necessity to have the
remaining troops -citizens of FRY withdrawn fiomB-H. Even without them,some 90.000 JNA
troops, mainly Serbs, will stayin that republic, and the Serb leadershipfiom Bosnia and
Herzegovina can take the political leadership overthem.
KaradiiCagrees, Krajisnikraises a numberof questionssuch as: how isthat army goingto be
financed, who wouldgive themsalaries, who willprovidefor theirpensions,etc., infact all that
exist as a problem, buts not decisive for our discussion.
We argued a lot about the dead-line for the withdrawal, and,finally agreed to accomplish it in 15
days.
Since generals whodo not come fiom B-H were also to withdraw, it was agreed to have General
MladiCreplace General VukoviC.
This operation was too important for us, and for the Serbsin B-H, 1believe, even more important.
They got theiramy." [BorisavJoviC,Final Days of theSFRY,Belgrade 1995,p.
448, emphasisadded, Annex 153.
At this meeting, Borisav JoviCwitnessedthe birth of the BosnianSerb Army. During
the meeting,MomEiloKrajiSnik,President of the BosnianSerb Assembly,also raised
a point crucial to the future of this Bosnian Serb Army. As the Republika Srpska did
not possessthe necessary means, KrajiSnikaskedthe representativesof the Serbian
leadership how they thought the new Bosnian Serb Army was going to be financed.
Who would seeto payment of the salaries and pensions ofthe military in Bosnia and
Herzegovina, after the "withdrawal"in May 1992? Chapter8 -Section 8
Yugoslavcontrol over the BosnianSerb Army
warin Bosnia until the hostilities there formally endedin November 1991[1995]. As a
consequence of FRY'Sinvolvementin the war in Bosnia, the UN Security Council imposed
economic sanctions againstFRY in May 1992.These sanctions were progressively tightenedto
force Belgrade to give up its support for the Bosnian Serbs.
In 1994,Milosevikformally brokeal1links with the Serbian leadershipin Pale (the seat of the Serb
Republic). However, Milosevic's apparent change of powas aimed at lifting economic sanctions
against FRY. International inspectors (but notficiais) were allowed to monitor the 48 border
crossings between FRY and the Serbian Republicin 1994.
Belgrade continued with its political and propagandist support of the Bosnian Serbs. ThJeA
continued torovide the Bosnian SerbAmy (VRS) with weapons, equipment, fuel, ammunition
and training.oreover, al1BosnianSerb ofJicersremained on theJASpuyrollfor the durationof
theconzict in Bosnia. International monitors reportedin March-April, during the Bosniancease-
tire, that petroleum and possibly ammunition waspassing across the Drina into Bosnian Serb
hands. Some JA unitsalso took part in the VRS attack on Srebrenica in July 1991 [1995]."
[Jane's Sentinel, 1997 Edition, Yugoslavia, para. 10.7.1, emphasis added,
Annex 1611.
Yugoslaviapaid the salaries and expensesof al1oficers in Bosnia and Herzegovina
308. In order to facilitate the payment ofthe officers' salaries,special bureaucratic
procedures were developedin the early months of 1993. What these procedures
entailed is shown by a classifiedletter the Bosnian Army captured near Donji Vakuf,
central Bosnia and Herzegovina,in September 1995. This letter was written by the
Commander of the 30th Light Infantry Division Headquarters, ColonelJovo
Blaianovi6, and addressed to the Commandof the 1st Light Infantry Brigade. Both
the 30th Light Infantry Division and the 1stLight Infantry Brigade were Bosnian
Serb Army units and part of the so-called 1st Krajina Corps, located in the Banja
Luka area, in the northwest of Bosnia and Herzegovina[Dr. Milan Vego,Jane 's
Intelligence Review,Oct. 1992,p. 446, Annex ?].The following document shows
that al1officers active in Bosnia and Herzegovinawere onthe payroll of the General
Staff in Belgrade. Their salarieswere routinely paid on the basis of monthly
"working lists" which were compiledon the field in Bosnia and Herzegovina.
"HQ of the 30th Light Infantry Division
class. no. 86-76
06.03.1993.
Military secret
classified
Makiig of working lists
for active military officers
and other employees withthe Anny
ORDER to the Command of the 1stLight Infantry Brigade
Command HQ of the 1stKrajinski Corps has issued an Order which says that the compensations
for combat services to active militarycers and other employees withthe Amy of the RepublicReply of Bosnia and Herzegovina
of Srpska will not be paid starting fkorn1 January 1993.In order to provide salaries for these
people, 1issue the following:
ORDER
1. Al1units rnust irnrnediatelyrnake working lists for activeal1rnilitary officers and other
ernployees withthe RS Amy. Affixed and filled [in] working listsrnust bedelivered to the
Personnel of this Comrnand notlater than 9 March 1993;
2. Injüture, working lists areto be delivered to this Command notlater than the 5th of each month
for a previous monthin order to send themtimelyto the VRCGSVJ[Military Computing Centreof
the General Staff of the YugoslavArmy inBelgrade]for theirpayment;
3. If necessary and in order to make accurate working lists, individuals should personally approach
this Cornrnand Personneltorovide information about the the presenceof active military officers
and other ernployees with theAmy in a particular unit. Other relevant documents shouldalso be
provided(medical leave referrals, etc.).
COMMANDER
Colonel
Jovo Blazanovic
[affîxed by signature andseal]
Done in four copies and deliveredto:
-archives;
-cornrnandof the 1st Light Infantry Brigade;
-cornrnandof the 1lth Light Infantry Brigade;
-cornrnandof the 19th Sabotage Platoon of Infantry Brigade
[Seal confirming the receiptof the order]
1stLight Infantry Brigade
class. no. 331-1
7 March 1993"
[HQ of the 30th LightInfantry Division,Order addressed tothe Commandof
the 1stLight Infantry Brigade, class. 86-76, signed Colonel Jovo BlaZanovi6,6
Mar. 1993,emphasis added, Annex2011.
This order clearly illustrateshow so-called "working lists" withthe names of active
military officers were collected everymonth and sent to the "Military Computing
Centre of the General Staff of the YugoslavArmy" in Belgrade.After having
received the lists with the narnesof the officersactive on Bosnianterritory, this
centre would see to payment of their salaries.
309. The Military ComputingCentre of the YugoslavArmy played a pivotal role in the
payment of the military officers in the Bosnian Serb Army. The Computing Centre
for Material Provisions of the YugoslavArmy in Belgrade,which is either a section
of the Computing Centre mentionedabove or a related institution,was responsible
for the payment of travel allowances.For the payment of these allowances,working
lists similar to those used for the paymentof the salarieswere used. The following Chapter 8- Section 8
Yugoslavcontrol over the Bosnian Serb Army
document,which was capturedin the same period as the letter cited above, was sent
by the Commanderof the 2nd Krajina Corps Headquarters toa unit falling under its
responsibilityin Bosanska Knipa.The 2nd Krajina Corpswas a Bosnian Serb Army
Corps based in the northwestof Bosnia and Herzegovina [see Dr. Milan Vego,
Jane's Intelligence Review,Oct. 1992,p. 446, Annex2001:
"~ommand HQ of the 2nd Krajina Corps
class. no. 23135-27311
26.03.1993
[rernark in hand-writing] [seal]
da 05.02.1994 MILITARY POST
to be kept till the end of war 7542
Class.no.250 1/23
Order to execute payment 30.03.1993
of troop travel allowances Bosanska Kmpa
-to be delivered to [west Bosnia]
tocommander/chief of staf-
Based on the Order of the GS RSA [General Staff of the Republika Srpska Army], class. no.
26/57-29 of 29.0.1993month missing in original; rnust be either January or Febmary], and for the
purpose of organising and execution of payment of troop travel allowances in respective unit
command posts of the 2nd Krajina Corps,hereby issue the following:
ORDER:
1. Al1active military oficers (commissionedand non-commissioned oficers on contract)for
days spent in execution of ansignment in respective command posts and units of 2nd KK
[2nd Krajina Corps] are entitled to reimbursement of expensesfor troop travel under
provisions setforth in article 20, paragraph 1 of the Rules on Reimbursement of Travel and
Other Expenses in the YugoslavArmy (Official Military Gazette-13/91,).Allowances for
troop travel shall not be applied in respect of days of leaveparticular unit for a
private reason or a vacation.
5. Payment ofjèes from item 1 hereto will be realised by Computing Centrefor Material
Provisions of the YugoslavArmy in Belgrade on a reversed monthly base through payment
rolls and in accordance with the data given in working lists of individual command posts of
the 2nd Krajina Corps units.
Commander
Major-General
Grujo ~oric"
[Command HQ of the 2nd Krajina Corps,Order addressedto Military Post
7542, class. no. 23135-27311,signed Commander Major-GeneralGrujo BoriC,
26 Mar. 1993, emphasis added, Annex2021.Reply of Bosniaand Herzegovina
It is important to note that travel allowancesfor the military officers on service in
Bosnia and Herzegovinawere reimbursedin accordance withand under Yugoslav
law, that is article 20, paragraph 1of the YugoslavArmy Rules on Reimbursement
of Travel and Other Expenses.The officers of the Bosnian Serb Army were treated
exactly like their peers in the YugoslavArmy. They receivedthe same salariesand
allowances,from the same sources in Belgrade.
310. To effect the payment tothe Bosnian Serb Army officers, the above mentioned
Computing Centreused a Yugoslavbank. The officersin the Bosnian Serb Army
receivedtheirmonthly salariesthrough the Belgradebased PostBank, Poitanska
Stedionica,which issued the chequesto facilitatethe payments.The involvementof
this Belgrade-basedbank is revealedby a letter, which the 7th Corps of the Bosnian
Army capturedwith the other cited document[Command of2nd Krajina Corps,
Order addressedto Military Post7542, no. 23135-301,signed CommanderMajor-
General Grujo Borie, 5 Apr. 1993,Annex 2031.
311. The above shows that Belgrade, indeed,kept the promisesit made before the officia1
"withdrawal"on 19 May 1992. As it had done before that date,it continued topay
the salariesand allowancesof the Serb officers in Bosnia and Herzegovina.
Yugoslaviafilled up the oficers' ranks of the BosnianSerbArmy
At the "withdrawal"of the JNA from Bosniaand Herzegovina,the Belgrade
authoritiesnotonly continued payingthe salaries of the officersin the Bosnian Serb
Army, they also saw to it that the newly formed BosnianSerb Army was not be left
short ofofficers to commandit. As General DjordjeDjukiChad announcedin his
briefing to his officers,the govemment in Belgrade would continueto "finance"the
newly formed BosnianSerb Army withthe same "numericalstrengthsof officers"
[ICTFY,Trial Chamber,Opinion andJudgrnent,Prosecutor v. DuSkoTadit, Case
No. IT-94-1-T, 7 May 1997, pp. 42-43, para. 1151.
313. At the official retreat, a considerable numberof JNA officersdecidedto stay in
Bosnia and Herzegovina. As willbe shown later, no real distinctionwas made
between officers with Bosnian andofficerswith Yugoslav backgrounds.In spite of
this, the newly formed Bosnian Serb Army sufferedbadly under a shortageof
commandingofficers. There were simplynot enoughofficers availableto lead the
more than 90,000 JNA soldiersleft behind to form the new BosnianSerb Army. Chapter 8 - Section 8
Yugoslavcontrol over the Bosnian Serb Army
314. On 5 June 1992, General Ratko MladiCconvened an officers' meeting at which he
announcedthat the Bosnian Serb Army still needed 300 to 350 officers. One of the
officers present at this meeting was iivota SamardZik,a Colonel in the former JNA.
On 21 May 1996, SamardiiCgave a statementat the Security Service Centreat
Sarajevo, mentioning among other things the meeting convenedby Ratko MladiC:
"~fter having left the KMT Marsha1 Tito Barracks in Sarajevo] on 04.06.1992, where1stayed at
the outburst of conflictin BH, on 05.06.1992, togetherwith my colleagues, 1arrived in Sokolac
[town approximately 40 kilometreseast of Sarajevo], wherewe were al1gathered following the
order of Col. DuSanKOVACEVIC, commander of RearBase where 1was engaged, wholater on
became the Minister of Defence of the Republic of Srpska, and Lt.Col. Zoran Jovanovié,his
deputy, who is presently in Belgrade. Wegathered there, so that General Ratko Madit could
deliver us a short speech, ajïer the roll cal1and establishment of exact number of troops. I
remember that, on that occasion,Mladit said that we had to defend the Serbianhood, and that
some 300 to 350 ofJicerswere needeà, proposing us (who camefrom. the BH) tojoin units of the
Serb Army in BH, emphasising that al1the JNA ofice[r]s who camefrom BH shouldfeel obliged
to stay with the Serb Army of BH.In his speech MladiCalso pointed out that,by leaving oKMT
in Sarajevo, conditions hadbeen created for fürther combat operations. The same day, majority of
us JNA ofJicersfi.omKMT le$for Belgrade, and a number of oficers, my colleagues,joined the
Serb Army in BH. Among them, I recall Lt.Co1.Slavko Mutabdiik, rear oficerfi.KMT and
certain ToSii, Capt. of the 1stclass, bothfrom Serbia. 1would liketo mention that, amongthe
officers, who decidedto leave the BH territory were also thenes bom in BH, who together with
us arrived in Belgrade. After having been received in Belgrade and deployein different JNA
barracks, informational interviews followedwith each of us inrder to settle our future status. At
that time, special attention was paidto theficers who came fiom BH or Croatia in terms of their
further deployment/re-deployment to units of Serb army in BH and SA0 Krajina [Croatia], with
the remark that during the interview with superiorofficers fiom higher commands a numberof
privileges were offeredas to motivate them to accept the offered posts. Privileges which1
mentioned were, beforeail, reflected in maintainingal1of their status rights, like salariesand
increased livingxpenses through JNA, with the possibilityto realise privileges in accordance with
participation in war and settling of their housing issues. also mentionthat they filled in a
form which includedan item regarding war experienceand which was of crucial importance in
settling housing problems. This formater on, 1think it was in 1993,was replaced by a new form
which did notcontain the said item, but war experiencewas still observed as being of crucial
importance.One of the basic merits in respect of status rights of ofJicerswas his rank, therefore
everyofficer was hopingfor promotion, so that one of the motivationfor assigningJNA ofJicersto
the Serb army ofBH was promotion. Almost each ofJicerwho accepted participation in the Serb
army, had a dizzyingpromotion, which infIuenceda majoriîy of them to accept the offered
conditions. Interviews that 1mentioned were conductedwith every JNA officer whocame to the
area of Yugoslavia and were aimedat cleansing JNA ranks and its transformation. 1mentioned that
JNA transformed intothe Bosnian Serb army in the BH territory, that is intothe Croatian Serb
army in the Croatian temtory, and original compositionof JNA inYugoslaviawent through several
changes, before all, in respectof its personnel. A great nurnberof officers at that time was early
retired orismissed fiom JNA because his spouse hadforeign citizenship or for likewisereasons,
which were invented for al1who refiised to [or] did not want to go to Bosnian theatreof operation
in other words for thenes who were not ideologically suitable.1would liketo mentionthat 1was
eariy retired.[Republicof Bosnia and Herzegovina,Ministry of Interiors,
Security Service Centre, Sarajevo,&vota Samarduk, Statement,no. 1943, 21
May 1996,pp. 1-2, emphasis added,Annex 2041.Reply of Bosnia and Herzegovina
315. In spite of MladiC'surgent appealand the prospect of rapid promotion andextra
allowances,a considerable number of former JNA officers preferred stayingin or
going to the Federal Republicof Yugoslavia, while others were being purgedfrom
the army for being ideologically unsuitable.The consequencewas, as mentioned
above, that the BosnianSerb Army faced a serious shortage of officers after the
"withdrawal"of the JNA in May 1992, a shortage which couldnot simply be solved
by urging al1former JNA officers,whetherof Bosnian Serb origin or not, who had
served in Bosnia and Herzegovina, toreinforce the ranks of this newly formed
Bosnian Serb Army.
316. It is important to note that, in practice, no distinction wasmade between Serb
officers with Bosnian andthose with Yugoslav backgrounds.The shortage of
qualified personnel did notallow the authoritiesin Belgrade tobe too fastidious.The
above quoted statement shows thatboth Bosnianand Yugoslav Serbs were asked to
join the ranks of the Bosnian Serb Arrny, although particular pressurewas exertedon
Bosnian Serbs to stay on or go back to Bosniaand Herzegovina.In June 1995,in an
interview publishedin the SerbianEvropsk Neovost daily, Ratko MladiChimself
adrnittedthat officersborn in Serbia and Montenegro were also told to remainin
Bosnia and Herzegovina:
"[Question] You have stressed thatthe Serb officers, armedwith high alertness and responsibility,
remained to share the destinywith their people Serbs in Bosnia and Herzegovina].
Recently, there have beenuent accusationsthat the same officers are the bearer ofleft
orientation and that they are chronic communists?
[Ratko MladiC]articipated in bringing some important decisionsut the level of the [YugoslavJ
Army GeneralSta#HQ at the time, whereclear directionswere given thatal1the oficers, jrst of
al1professionals, whowere born, but also the ones who were not born in this region [Bosnia and
Herzegovina], were toremain here, andto make themselvesavailablefor the defence of their
people. Since the beginningof the war manyofficers got engaged, even withoutOurprior request,
and they made significant contrinforming of our uni["Boastingwith
Patriotism",Evropsk eovost2 i,June 1995,Annex 2051.
In this inteniew, Ratko MladiCnot only clarifiedthat JNA officers with Yugoslav
backgrounds remainedin Bosnia and Herzegovina der the official "withdrawal"of
the JNAon 19 May 1992, he also admittedthat the General Staff in Belgrade gave
"clear directions"to al1JNA officers,whether of Bosnian backgroundor not, to stay
at their posts in Bosnia and Herzegovina.
317. The "cleardirections" were givenat the same time the Sokolacgathering described
above took place. The military authoritiesin Belgradenot only used persuasionto
achieve their goal, that is, to keep as many officers as possible in Bosnia and Chapter 8 -Section 8
Yugoslavcontrol over the Bosnian Serb Army
Herzegovina, they also reverted to exercisingtheir authority. The shortage of officers
was so serious that the JNAofficers of Yugoslav citizenship were simply ordered to
stay in Bosnia and Herzegovina as long as no replacement for them had been found.
This is clearly illustrated by the following military document, captured in the auturnn
of 1995 by troops of the 7th Corps of the Bosnian Army, during military operations
in central Bosnia. It is a so-called clarification givenby the 1st Krajina Corps to the
units under its cornrnand.The 1st Krajina Corps was based in the Banja Luka area,
in the northwest of Bosnia and Herzegovina:
"COMMAND OF THE 1ST KRAJINA CORPS [Banja Luka area]
class. no. 12.11-291
of 30 May 1992
to command posts of units within Krajina Corps [list of itsunits]
Due to fiequent inquiries regarding transferof officers who are not nationals of Bosnia and
Herzegovina and who declared their wish to be transferred to the territory of FR Yugoslavia, we
hereby provide the following clarification,referring to the act of the General Staff of the Army of
the Serb Republic of Bosnia and Herzegovina class.no. 251143-1of 19.05.1992:
1.- Replacement of the remaining JNA troops, FRY nationals, who expressed their wish to leave
for that state shall be carried out afrernecessary requirements arefulfilled and adequate
replacement provided.
2. - They may leave a unit only upon the approval of the Corps Commander, and that in an
organized and planned way with necessarypermit andderfor transfer.
3. - Any arbitrary leaving of a unit or a position shall be considered as desertion and shall be
prevented in the territory of the Serb Republic of Bosnia and Herzegovina and adequate
measures shall be taken against any such individual. Measures will also be taken against
any such individual in both the Federal Republic of Yugoslavia and the JNA.
At the commander authorization
Colonel
Miroslav RankoviC [Stamp of the Command of the 1st Partisan Brigade]
class. no. 13-2
06.06.1992
[Stamp confirmingthe receipt]
Received: (date) 30.05 (hour) 10.30 (signature)
Processed: (date) 30.05 (hour) 10.30(signature)
Delivered: (date) 30.05 (hour) 10.35(signature)"
[Cornmand ofthe 1stKrajina Corps, Clarification addressed to al1 unit usnder
its command, class. no. 12.11-291,signed Colonel MiroslavRankoviC,30 May
1992, emphasis added, Annex 2061.Reply of Bosnia and Herzegovina
This clarification, sent on 30 May 1992, shows that officers of Yugoslav descent,
without Bosnian background, were treatedas deserters if they decided to return to
Yugoslavia without the permission of their local commanders. Strikingly,this
clarification was given eleven days after the official announcement that al1JNA
troops had left Bosnian territory. It again demonstrates that the Yugoslav Army
officers were kept in Bosnia and Herzegovina on orders from Belgrade. If these
officers would leave their units without permission,both the Federal Republic of
Yugoslavia and the YugoslavArmy would take the necessary punitive "measures".
318. The personnel shortage, which seriously threatenedthe Bosnian Serb Army's fighting
power and effectiveness, wasagain solved by the authorities in Belgrade. Soon afier
the "withdrawal" of the JNA,the Yugoslav Army started filling up the ranks of the
Bosnian Serb Army with its own officers, that is, officers with no Bosnian
background whatsoever. This special form of "military aid" continuedthroughout the
conflict. Up until 1995,officers of the Yugoslav Army were postedin Bosnia and
Herzegovinato units of the Bosnian Serb Army.
319. The following letter, also captured in 1995 by the 7th Bosnian Army Corps,
illustrates this special form of "military aid". It was sent on 14 February 1994 to the
command of the 2nd Krajina Corps in Drvar, a city in the west of Bosnia and
Herzegovina, in reaction to a request to pass on information about activemilitary
officers with families still living in their original place of residence in the Federal
Republic of Yugoslavia [Letter fiom the Command ofthe 2nd Krajina Corps
addressed to Comrnand posts of units of 2nd Krajina Corps, class.no. 1311 -2, signed
Maj. Gen. Grujo Borié,13 Feb. 1994, Annex 2071.While serving in Bosnia and
Herzegovina, the three officers listed in the following document al1retained their
homes in and therefore remained resident of Serbia proper:
"COMMANDOF 15th Bpbr.
class.no. 159-2
of 14.02.1994
Dataon socialstatus
of familiesof activearmyoffice-deliver-
COMMANDOF2nd Krajina CorpsDRVAR[west Bosnia]
(Personnel)
Ref:youractclass. no. 13-1-2of 13.02.1994
Refemng to theaboveact,we encloseherewith thedataconcerning activearmyofficersservingin
Ourunit,whosefamilieslive intFRY anddo nothavetheirhousingproblemsettled-they live
astenants. Chapter 8-Section 8
Yugoslav controlover the BosnianSerb Army
1.SKRBIC Petar RATKO, Lt. Col.
According to militaryformation on duty withArmy Post 2270 Kruievac [Serbia]. His family, as
tenants, accommodatedin theSevacGarrison.
(they pay rent of 50 DM)
2.STARCEV ICvo GOJKO, Major
According to militaryformationon duty withthe ArmyPost 3001 Belgrade.His family, as tenants,
accommodated in SmederevskaPalanka, 15 Ljube IvoSeviCastr. (they paythe rent of 50 DM)
3.RADONJIC PuniSaSLOBODAN,Lt.Co1.
Hisfamily accommodated in GarrisonNovi Sad[Serbia]. Phone no. 021-301-710 (they pay the
rent of 120 DM).
The present data are deliveredto you forer proceeding.
COMMANDER
Lt.Co1.
Ratko Skrbik
(signature)"
[Letter of Command of 15th Bpbr.addressedto Commandof 2nd Krajina
Corps, class. no. 159-2, signed Lt.Co1.Ratko Skrbié,14Feb. 1994,emphasis
added, Annex 2081.
The above cited letter demonstrates,among other things, that the officers listed in the
letter remained within the Yugoslav Army,while serving in a Bosnian Serb unit.
They al1retained their home base in the YugoslavArmy; KruSevac,Novi Sad and,
of course, Belgrade, are placesin Serbiaand not inBosnia and Herzegovina.The
Yugoslav officers would therefore only be attached andnot transferredto a Bosnian
Serb Army unit [see also Letter of Command of15Bpbr addressed toCommandof
the 2nd Krajina Corps in Drvar, class. no. 183-2,signed Lt.Co1.Ratko Skrbié,5
Mar. 1993. Annex 2091.
320. This special forrn of military aid is also illustratedby GeneralDjordje Djukik'scase.
When arrested in early 1996,Djordje DjukiC. was carrying a recentmilitary pass,
issued by the General Staff in Belgrade. Afterhis arrest on 30 January 1996,DjukiC
was transferred tothe ICTFY in The Hague, where hewas indictedfor crimes
against humanityand violationsof the lawsand customsof war. The Indictment
reads as follows:
"1.DORDEDU& [Djordje Djukiwas bom on 8March 1934 in the village of Petrovo Vrelo,
GlamoEMunicipality in Bosnia and Herzegovina.Hispersona1identificationnumberis
0803934710458 and hepossesses an identificationcard of the RepublikaSrpska underthe number
196/94. He permanently resides inBelgrade, BulevarLenija 151. In the YugoslavPeopleSArmy,
he held thepost of Chiefof the TechnicalDepartmentof the Federal Secretariatfor NationalReply of Bosnia and Herzegovina
Defence. He currentlyhoIristhe rank of lieutenantgenerai in theBosnian Serbarmy and in the
Yugoslav Army.He servesintheMainStaffof the BosnianSerb armyandis theAssistant
Commander for Logisticsto RatkoMLADIC,the Commanderof the BosnianSerb armedforces."
[ICTFY, Indictment,Prosecutor v. Djordje DjukiC,Case No. IT-96-20-1, 29
Feb. 19961.
During his stay in Bosnia and Herzegovina,Djordje DjukiCthus retained his position
in the General Staff of the YugoslavArmy. The personal identificationnumber
referred to in the Indictment is a so-called "uniquerecord number", grantedby the
Yugoslav authorities and therefore mentioned on his Yugoslav military pass
[Identificationdocuments found with General DjordjeDjukiCat his arrest, Annex
2101It is, however, also recorded on DjukiC'sidentification document issuedby the
Republika Srpska authorities.
321. Djordje DjukiCalso carried a pass issued by the so-calledMilitary Administration for
the Ministry of Defence and the General Staff of the Yugoslav Army. This pass was
renewed by this branch of the YugoslavArmy, on a yearly basis,the last time in
1996, shortly beforeDjukiC7sarrest by the Bosnian Army [Ibid.].
322. While on duty in Bosnia and Herzegovina,the Yugoslav officers would leave their
farnilies in Yugoslavia.This is, for example, illustrated by the military document
cited [Letter of Command of 15th Bpbr. addressedto Command of2nd Krajina
Corps, class. no. 159-2, signedLt.Co1.Ratko SkrbiC,14 Feb. 1994,Annex 2081.
Shortly after the beginning of the armed conflict in Bosnia and Herzegovina, a
regular air service was set upto transport officers between Banja Lukaand the
Federal Republic of Yugoslavia [Orderfor unification of transport by air, from
Command of the 30th Partisan Divisionto Command 1stPart.Br, strictly class. 955-
2, signed ColonelStanislavGaliC,2 June 1992, Annex 2111.One year later, this air
service was supplementedor replaced by a bus line:
"~ornmandof the 2ndKK[2ndKrajina Corps]
class.no.21-7011
31.05.1993
Transportof militaryofficers
to Belgradeandback
Changeof order,-
Having in mind increasedneeakand requestsby rnilitaryofficersto travel to FR Yugoslavia either
to visit theirfamilies, or to goforl treatmentin healthcentres there, orto transport mail or
to executefficia1assignrnents,and in order to reduce travel expenses, to economisethe use[of7 Chapter8 - Section 8
Yugoslavcontrol over the Bosnian Serb Army
motor vehicles and to centralise transportut the Republic of SrpskaArmy level,following the order
of CS RSA [General StaHof the BosnianSerb Army] class. 25/7-61 of 26.05.1993, 1hereby issue
thefollowing:
ORDER
1.Permanentbus line which willcornmuteevery Friday in the direction Ostrelj-BanjaLuka will be
introducedfor transportof military ofJicersof 2nd KK to Belgrade;
10. Priority in transport of military officers shall be givento persons who travel on business,who
are going to visit their families, who travel for medical treatment or who are retuming from their
respective tasks.
Commander
General-Major
Grujo Boric
Military Post 7542
class. 411-1
Bosanska Krupa [northwest os nia]"
[Order, Command of the 2nd Krajina Corps, class. no. 21-7011,addressed to al1
units, signed GeneralMajor Grujo Boric, 31 May 1993, emphasisadded,
Annex 2121.
This letter shows that the "needsand requests by military officers to travel to FR
Yugoslavia" increased throughout theyears of the armed conflict.
323. Interestingly, the documentalso lists the reasons why officers continuedto travel
back and forth between Bosnia and Herzegovinaand the Federal Republicof
Yugoslavia. The first reason mentionedis the visit to relatives. As explained above,
the officers left their farniliesin the Federal Republicof Yugoslavia, as they were
only temporarily attachedto units in the Bosnian Serb Army. Another reason given
in the order is the transport of mail. As ordinary or civilian mail did not require a
special military escort, this indicates thatthe various authorities in the Federal
Republic of Yugoslavia andin the Serb-heldterritories in Bosnia and Herzegovina
communicatedwith each other through military couriers, with officers' ranks,
exchanging classified information on a routine basis. The order also talks about the
execution of "official assignments",carried out by officers apparentlytravelling back
and forth on a similar routine basis. Like the transport of mail, this illustrates the
high level of communication between Belgradeand the Serbs in Bosnia.Reply of Bosnia and Herzegovina
324. The Federal Republic of Yugoslavia andthe Bosnian Serbs used other ways of
communication as well. As has also been noted by the ICTFY in The Hague, an
open telephone line existedbetween the Bosnian Serb Army and Belgrade. In her
Separate and Dissenting Opinionin the Tadit case, Judge McDonald remarkedthe
following :
"~he VRS Main Staff, the membersof which had al1been generals in the JNA and many of whom
were appointed to their positionsby the JNA General Staff, maintained direct communicationswith
theVJ General Staff via a communications linkfiom Belgrade. Colonel Selak, commander of the
logistics platoonthat provided logistical supportto units in the Banja Luka area (both before and
after 19 May 1992),stated: 'Someofficers had been given direct [telephone]lines, BelgradelPale.
There was a link there and it was used in everyday communicationbecause there was a need for
direct communication between the Chief of Staff of theArmy ofika Srpskawith the Army
of ~ugosiavia."[ICTFY, Trial Chamber, Opinion and Judgment, Separate and
Dissenting Opinion of Judge McDonaldRegardingthe Applicability of Article
2 of the Statute, Prosecutor v. Duiko Tadit, Case No. IT-94-1-T, 7 May 1997,
p. 5, para. 81.
Thus, during the entirety of the conflict, Bosnian Serb officers, such as General
Ratko MladiC,maintained directlines of communications withthe General Staff of
the Yugoslav Army in Belgrade [KarstenPrager, TimeInternational, 17July 1995,
pp. 20-21, Annex 213; United Nations,Final Report of the UnitedNations Commis-
sion of Experts, S/1994/674/Add.2(Vol. 1),28 Dec. 1994, AnnexIV, "The Policy of
Ethnic Cleansing", p. 35, para. 1931.
Belgrade's control over the oflcers in Bosnia and Herzegovina
325. The Yugoslav Army officers deployed on the territory of Bosnia and Herzegovina
remained firmly within the grasp of Belgrade. In spite of the fact that these officers
discharged their duties on the territory of another state, they continuedto fall under
the juridiction of the Federal Republicof Yugoslaviaand the YugoslavArmy. The
Yugoslav Army officers in Bosnia and Herzegovina continuedto act and to be
treated as subordinatesto the Generai Staff in Belgrade.
326. During the armed conflict in Bosnia and Herzegovina,the ties between the officers
attached to the Bosnian Serb Army and the Yugoslav Armywere not severed. To
illustrate this point, a selection of documentswill be presented below. They ail relate
to one single Yugoslav Army officer, Colonel Nikola Kajtez, who joined the Bosnian
Serbs well after the fighting in Bosnia and Herzegovinahad started. Altogether, these
documents offer an illustrative example and an inside view of the fm grasp the Chapter 8-Section 8
Yugoslavcontrol over the Bosnian SerbArmy
YugoslavArmy retained on the Bosnian Serbs throughoutthe conflict in Bosnia and
Herzegovina.
327. At their arriva1in Bosnia and Herzegovina,al1Yugoslavofficers were obliged to
notifj the YugoslavArmy. In order to inform their superiors in Belgrade, these
officers used standardforms. When ColonelNikola Kajtez assumed his new post in
Sanski Most, in the western cornerof Bosnia and Herzegovina, heconscientiously
filled in one of these pre-printed standardforms. Kajtez arrived in Bosnia and
Herzegovina on 7 December 1992:
II
FOIITPID-1
Kajtez Nikola Nikola 09
(Family name, father's name, first name)
colonel, artillery-missile unitsof air defence. no.KNK150342
(rank, class aarmy branch)
persona1no. 1503942300039
07.12.1992
(date and garrison)
REPORT ON ASSUMPTION
OF DUTY to: Commandof 1st Krajina Corps
ON: 10.12.1992
1ASSUMED the dutyof COMMANDEROF THE 6TH SANA INFANTRY BRIGADE IN THE
1ST KRAJINA CORPS
formationrankof COLONEL Payroll Group 9
(by formation) COLONEL Payroll Group 9Reply of Bosnia and Herzegovina
Effective 12 monthsin execution of the above duty shall be casn15months ofthe length of
service (12115).
1assumed/surrenderedthe present dutyin accordance with theorder of commander of the 1st
Krajina Corps no.211-797of 07.12.1992
1reported to the above unit/institutionon 07.12.1992.
1receivedlhanded over the army property andfunds in the period from 07.12.1992to 10.12.1992in
respect of which the minutesonsumptionfsurrenderof duty no. 126-1 of 10.12.1992was made.
Signature
Nikola Kajtez
Officer in charge
Colonel
Nikola Kajtez
[signature andeal of Army Post 7421 Sanski Mo-t
WestBosnia]
copies to:
-Personnel administration ofSSNO
Federal Secretariat for People's Defencein Belgrade];
-Command post;
-financial sectionof proper unit;"
[Report on Assumptionof Duty,Nikola Kajtez, signed:Nikola Kajtez, 7 Dec.
1992, Annex 2141.
This pre-printed document, capturedby the 7th Corpsof the Bosnian Army, was
used byNikola Kajtez to report on his so-called transferof duty. It is a standard,
albeit old, JNA form. As can be seen at the bottom of the form, a filled-in copy was
also sent to the Ministry of Defencein Belgrade. The document demonstrates that
Nikola Kajtez specialisedin air defenceand that the YugoslavArmy wouldcontinue
to pay his salary in accordance withscale 9. It also proves that Nikola Kajtez arrived
at his unit on 7 December 1992, thatis, half a year after the JNA had officially
"withdrawn"from the territory of Bosnia and Herzegovina.As will be show below,
this was Kajtez' first assignrnentacrossthe border. Untilthen, he had been posted in
the Federal Republic of Yugoslavia.
328. The Bosnian SerbArmy unit joined by Nikola Kajtez waspart of the 1stKrajina
Corps and,as mentioned earlier, based in SanskiMost, as is revealedby the stamp at
the bottom right of the form. Three days after his arrival,Nikola Kajtez assumed
command of the unit. Together withthe local branch of the Serbian Democratic
Party (SDS), the Bosnian Serb Army unit under Kajtez' commandwas responsible
for the formation and running of the detention facilities fornon-Serb civiliansin the
Sanski Mostarea [see:United Nations,Final Reportof the UnitedNations Chapter 8 - Section 8
Yugoslav control over the Bosnian Serb Army
Commissionof Experts,SI199416741Add.2,28 Dec. 1994, Annex VIII, pp. 276-277,
paras. 2338-23411.
329. In the summer of 1993, roughly six monthsafter Colonel Nikola Kajtez assumed
cornmand of his unit in Sanski Most, the General Staff of the Yugoslav Army
decided that Yugoslav officers in service with the Bosnian Serb Army executed tasks
in a crisis area and that they were therefore entitled to special compensation. This is
illustrated by the following military document:
"ARMY POST 7421
clas. 1778-2120
13.12.1993
JMBG [unique persona1number] 1503942300036
Army Post 7421 Sanski Most on the basisof the article 67 of the Rules on Salaries and other
Allowances of Commissioned Military Officers and Non-commissioned Troopson a part-time
Contract (hereinafter referred as "Rules")and related to article 21 of the Rules, deliberating, by
official duty, on the issueof right of compensationfor service under aggravated (special)
circumstances, 1hereby bring the following:
DISPOSITION
1.to acknowledge the rightof Col. KAJTEZ Nikola NIKOLA, who is in service with the Army
Post 7421 SANSKI MOST, to compensationunder the aggravated (special) circumstancesin the
amount of 20% of the total tally allocated for the rank andstatus group of the above named.
2. Compensationshall be counted asfrom 09.03.1993 al1until the above named performs his
service under the conditions setforth in the Decision of the Commander of the GS ARS [General
Staf/ of the Army of the Republika Srpska] clas. no. 26158-119 of 30.11.1993.
CLARIFICATION
Based on the Decision of the Head of the Sectorfor OperationalActivities of the GS YA [General
Stafl of the YugoslavArmy] clas. no. 792-1 of 15.06.1993clas. no. 1296-1 of 19.10.1993,persons
who are in service with the ARS execute tash in crisis area, so that, in accordance with the
provisions of the Article 21 of the Rules, they are entitled to compensation under aggravated
(special) circumstances. By the Decision of the Commander ofGS of ARS clas. no. 26158-119of
30.11.1993 the amount of compensationis regulated pursuant to Article 21 of the Rules.
Compensation shall be counted asfrom the date indicated in theparagraph 2 of thepresent
disposition,ecause the above named has executed the service under aggravated (special)
circumstances since that date.
A complaint against the present dispositionmay be filed within 15 days fkomthe date of receipt of
the present disposition.The complaint shall be filed with theArmy Post 7001 Banja Luka through
the Amy Post where the above named is in service.
Deliveredta: Commander
-applicant colonelReply of Bosnia and Herzegovina
-VRC [Amy ComputingCentre inBelgrade] NikolaKajtez
-archives [sealof Amy Post7421 SanskiMost]
[also signedby]
Lt.Gen.M. ~olié"
[DispositionNikola Kajtez, ArrnyPost 7421, clas. 1778-2120,signed Nikola
Kajtez, 13 Dec. 1993, emphasis added,Annex 2151.
This officia1document ssignedby Nikola Kajtez and Lieutenant-GeneralM. ToliC,
Defence Minister in the governmentof the "Republika Srpska",at the time of
submission of the Reply. In the document, referenceis made to a decision of the
General Staff of the Yugoslav Army, taken on 15 June 1993. Apparently, the
General Staff in Belgrade was of the opinion thatthe circumstancesunder which its
officers had to work in Bosnia and Herzegovinawere so "aggravated"that a special
bonus was justified. Asthe decisiontaken by the General Staff in Belgrade was
adopted with retro-active effect,these officers were entitled to the additional bonus
over the entire period of their stay in Bosnia and Herzegovina. ColonelNikola
Kajtez was awarded a specialbonus asfiom 9 March 1993, and not 7 December
1992, when he reported to his unit in Sanski Most. There is no ready explanation for
these two divergent dates. Probably, Kajtezleft Bosnia and Herzegovina for some
time, between December 1992and March 1993.
330. The decisions to give special compensation toYugoslavmilitary officers were taken
by their cornmandersin Bosnia and Herzegovina,as was, for example, the case for
Nikola Kajtez. However, standardYugoslav Army forms were used for this
bureaucratic procedure as well [see e.g. Decision StarEeviCJovo Gojko, Military Post
3001 Belgrade, No. 618-59-12,signed Grujo BoriC,15 July 1994, Annex 2161.These
standard forms were printed in the Federal Republic of Yugoslaviaafter the
dissolution of the former NA, as can be deduced fromthe pre-printed date on the
document and the reference which ismade in that documentto recent Yugoslav
Militwy Law. The fact that pre-printed standard forms were beingused to facilitate
these procedures implies that those procedures were routine. Chapter 8 -Section 8
Yugoslavcontrol over the Bosnian Serb Army
331. In addition to the special compensationgiven for executingtasks under aggravated
circurnstances, Yugoslavofficers (and perhaps other Bosnian Serb Army officers as
well) were later entitled to count double their period of service in Bosnia and
Herzegovina. The following document, also recovered in 1995 by the 7th Corps of
the Bosnian Army, was written by the comrnandof the 2nd Krajina Corps to one of
its units in Bosanski Petrovac, in the west of Bosnia and Herzegovina:
"COMMAND OF THE 2ND KRAJINA CORPS
class. no. 6/8-73
06.08.1994
Regulation of double length of service
for professional troops, requests and
deliversclarification.- Command 15th pbr.
From the Command of the 30th Regular Army Forces Centre of the General Staff of the Yugoslav
Army - of the Army of the Republic of Srpska we received additional clarijîcation in respect of
regulation of double length of servicefor projèssionaltroops (professional oficers, professional
non-commissioned oficers, ofJicerson contract, non-commissioned oficers on contract and soldiers
on contract) and in accordance with the clarification andfor thepurpose to regulate double length
of service, we give thefollowing explanation:
1. We hereby retum to you the material you delivered relatedto regulation of double lengthof
service;
2. Each unit of the 2nd Krajina Corps anARS [Army of the Srpska Republika] may issue a
certijîcate onlyfor the periodter 20 May 1992 andfurther on, and notprior to this date,
because the 2nd KC had not existed before this date, so, in thefuture, you must not issue
any such certificates which refer to a date before 20.05.1992;
3. It is required that each unit, on thebasis of a list of military troops VB-8, issues a
certificate (but only after 20.05.92)and affix it with seal and stamp of its proper Army Post;Reply of Bosnia andHerzegovina
In respect of arson whoparticipated in the warprior to 20 May 1992, he has to make a request
withaccurate description of where he served in whichunit,underwhose order, where was that unit
posted and enclose anyproof he mighthave (anorder on deployment,etc.)
4. Afteryou have collected requests,certijîcates and other proofs,deliver them to this
command,whereas decisions on acknowledgementof double lengthofservice shall be
broughtby the 30 RegularArmy Forces Centre.
In order to settle this issue,please forward the requestedmaterial as soon as possible.
If anything should be unclear, contactthe telephone: [remark of interpreter: unclear, probably7000-
10 loc. 471
DEPUTY COMMANDER
fororg.mob. & per.affairs
Colonel
KrSicRadivoje
[seal of the Command of the 2nd KrajinaCorps]
Enclosure:
-sample of certificate
-requests
[stampl
Army Post 7547
C~~SS266-5
13.08.1994
Bosanski Petrovac [westos nia]"
[Regulationof double lengthof servicefor professional troops,Commandof
the 2nd Krajina Corps,addressed to Command15thpbr, class no. 6/8-73,
signed: Colonel KrSiCRadivoje, 6 Aug. 1994, emphasis added, Annex 2171.
This letter showsthat Yugoslav militaryofficers,who participatedin the fighting
after the officia1withdrawal of the JNA,have theright to retire at an early age. That
was in fact the intended effect ofdoublingthe lengthof service in Bosnia and
Herzegovina.(Obviously, the authorities inBelgrade remained preparedto go to any
extreme to supplythe Bosnian Serb Army with the necessary officers).The so-called
30th Regular ArmyForces Centre of the Yugoslav ArmyGeneral Staff was,at least
for the 2nd Krajina Corps,responsible forthe processingof the pension requests.
The above cited document aiso indicates thatnot only YugoslavArmy oficers were
attached to Bosnian Serb Army units. In the first paragraph, expressreference is
made to al1professional troops who qualified for the special regulation.The list of
military mentioned also includes ordinary soldierson contract. So, soldierson duty
with the Bosnian Serb Army were therefore on the payroll of the Yugoslav Armyas
well [see also David Owen, Balkan Odyssey,London 1995,p. 348,Annex 2181. Chapter 8 -Section 8
Yugoslav controlover the Bosnian SerbArmy
333. On 24 July 1994, Colonel Nikola Kajtez also filed a request to have the length of his
service counted double. His request was later granted, as is illustrated by the
following document:
"GENERAL STAFF OF THE YUGOSLAV ARMY
SECTOR FOR MANNING, MOBILISATION
AND SYSTEM ISSUES
PERSONNEL ADMINISTRATION
clas. no. 14-26491162
30.08.1994 MILITARY SECRET
CONFIDENTIAL
Based on articles 156 and57of the Law on Yugoslav Army (Officiai Gazette of the FRY no.
67/93), having deliberated on the request filedbyla Nikola KAJTEZ, colonel,by which he
requested that the right to have length of his service counted doubleas fiom992 until
present be recognised,ereby bring the following disposition:
DISPOSITION
to acknowledge the right of KAJTEZNikolaNIKOLA,colonelfrom Military Post 3001 Belgrade,to
have the length of his service counted doubleom 07.12.1992 untilpresent.
CLARIFICATION
KAJTEZNikolaNIKOLA,colonelfrom the MilitaryPost 3001 Belgrade,on 24.07.1994filed a
requestfor acknowledgementof right to have thelength of service counted doubleasfrom
07.12.1992 untilpresent.
Having examined enclosed documentsfiom official records, itwas established that al1conditions
providedunder article 264, paragraph 3 of the Law on YugoslavAmy for the acknowledgement of
the right to have the length of service counted double had bee,o the decision was taken as in
the present disposition.
The present disposition final in administrative proceedings andit is not allowed to file a
complaint against it, but charges maybe brought against it before the Supreme Militar- Court
Belgrade within30 days fiom the date of its service. Charges shallbe filed in two copies either
directly to the court or by recommended mail.
UNDER AUTHORISATION
OF SECTOR HEAD
colonel
Ljubomir Lalit
[seal of Army Post 30011
delivered to:
- CAOP
- DP-1
- DP-II
- applicant
[seal acknowledging receipt]
Army Post 7421
clas. 226- 15.09.1994"Reply ofBosnia and Herzegovina
[Disposition, from General Staff of the Yugoslav Army to Army Post 7421,
clas. no. 14-26491162,signed Ljubomir LaliC,30 Aug. 1994, emphasisadded,
Annex 2191.
This decision, captured also in 1995 in central Bosnia, was made by the General
Staff of the Yugoslav Army and sent to Nikola Kajtez in Sanski Most, on 30 August
1994. As mentioned earlier, the decision was given in response to a request filedby
Kajtez on 24 July 1994, that is, more than one and a half years after he was granted
special compensation for serviceunder aggravated circumstances. The stamp at the
bottom of the document shows that the disposition reached the applicanton 15
September 1994, at Army Post 7421, his first and only post in Bosnia and
Herzegovina. As statedabove, the Yugoslav officers were only attached to units of
the Bosnian Serb Army. Al1of them remained part of the Yugoslav Army. Whenthe
above mentioned disposition was given, Nikola Kajtez was attached to a Bosnian
Serb Army unit in Sanski Most, but still remained a Colonelin the Yugoslav Army.
In the quoted document, 7 December 1992is mentioned as the first day of duty on
Bosnian territory. This date correspondsto the date mentioned in the so-called report
on the transfer of duty, the documentNikola Kajtez filled in when he assumed his
duties in Sanski Most. One therefore has to assume that that was the date he first
arrived in Bosnia and Herzegovina.
334. What happened to Colonel Nikola Kajtez, after his last request was complied with, in
August 1994,remains unknown. Nikola Kajtez' paper trail ends with the above
quoted document. Possibly, he was ordered to return to his home unit in Belgrade.
When their presence was required in the Federai Republic of Yugoslavia, the
Yugoslav officers on duty in Bosnia and Herzegovina were simply called back home,
as is illustrated by the following document:
"~xtract
Orderno. 5-41
11.OZ1994
of Chiefof GeneralStaffof YugoslavArmy
Following oflcer is transferred andappointedfor the needs of service as on 10.11.1993 whenthe
formation wasregulated
44. NOVAKOVIC MileJEFTO
firstsergeantof technicalserviceof
landforces,ersonaVES
22115,b.15January1955 Reg. no.NMJ1501551 Chapter 8 -Section 8
Yugoslavcontrol over the Bosnian Serb Army
Date 101193
to the GeneralStaffof YugoslavArmy
to the 30thegularArmy Forces Centre,
Rear Base
asAide to Chief Officer in the
Section for Security-Intelligence Affairs
VES 21001
formation rank of sergeant-major payroll group 18
(by formation, formation rank of
sergeant-majorlfirst sergeant major 2526 1800
GarrisonBelgrade 702
Until now bymaterialformation: Senior OfJicerwithSecuritySection of 993rd Rear Bas' 1st
Military District,formation ranksergeant-major/Jirstsergeant major, payroll gr, sfiom 5
February 1991, GarrisonBanja Luka.
transferred and appointed for the needsof service as on 10 November 1993, when the present
formation was regulated.
[stamp stating
that a copy is identical to original
verified by
Lt. Col. MomirMandiC
affixed by seai of Military Post 7101 Banja~uka]"
[Extract Order no. 5-41,Chief of General Staffof Yugoslav Army, 11Feb.
1994,emphasisadded, Annex 2201.
This document,also found in central Bosnia, showsthat the Chief of the General
Staff in Belgradewas entitledto order the transfer of a military officer active on the
territory of Bosnia and Herzegovina.The officer involved, in this case sergeant Jefto
NovakoviC,was ordered to report at his new post in Belgrade on 10 November 1993,
well after the officia1withdrawalof the JNA. Until then he had been based in Banja
Luka.
TheBosnian SerbArmy and the Yugoslav Army were hlly integrated
335. Not al1officers were as fortunate as the above mentionedJefto NovakoviC.In
September 1993, two officers servingunder Nikola Kajtez' command,Marko
MariEiCand MilovanTodorovié,askedtheir superiors for permissionto return to
their home units in the Federal Republicof Yugoslavia. Theywere not granted
permission, as is shown in the followingdocument.Importantly, this documentalsoReply of Bosnia and Herzegovina
illustrates that the Bosnian Serb Army and the Yugoslav Army were not parallel
structures at all. Whether the Yugoslav officers serving on Bosnian territory received
their orders fiom Belgrade or their immediate superiorsin the Bosnian Serb Army
was in fact irrelevant. Whoever issued the order, it was always complied with. Both
comrnand structures were fully integrated and operated in perfect symbiosis. The
above mentioned MariEiéand Todoroviéwere ordered to stay at their posts in Bosnia
and Herzegovina. The order, captured with the other military documents quoted
above, was given by the 1st Krajina Corps in Banja Luka:
"COMMAND - 1.KRAJINA CORPS [Banja Luka area]
conf. no. 1211-468
19.09.1993
[stamp confiming receipt]
MILITARY POST
742 1
conf. no. 1595-1
23.09.1993
SANSKI MOST [north-westBosnia]
Request for retum to the Yugoslav Amy
to: COMMAND of the6.Sana brigade
-commander-
Please find enclosed the requestfor the retum to the YugoslavAmy of the following officers:
1. MariEiCMarko, captain,
2. TodoroviCMilovan, master sergeant,
The request has been discussed on a meetingwith the corps commander.
It has been decided that the named stay in the unit until the end of the war, due to the needs of the
service and therder of the commander of the ChiefStaflof the Republika Srpska rnilitary.
In accordance with therder of the commander of the 1st Krajina Corps, measures will be taken
against those persons who act on their own and are undisciplined. If need arises such persons will
be taken before the military court.
Enclosed: requestof the named
BY AUTHORIZATION OF THE COMMANDER
Lt. Col.
Radomir ~azi~"
[Command 1st Krajina Corps, letter to the Command of the 6th Sana Brigade
in Sanski Most, signed Lt.Co1.Radomir LaziC,19 Sept. 1993, emphasis added,
Armex 2211. Chapter8 -Section 8
Yugoslavconh-olover the Bosnian SerbArmy
This letter was sent to Nikola Kajtez' unit on 19 September 1993.It shows that the
two mentioned Yugoslav Army officers were ordered to stay in Bosnia and
Herzegovina until the very end of the armed conflict. Apparently,the Bosnian Serb
Army still needed the help of the Yugoslav Army officers to continue fighting in
Bosnia and Herzegovina. As mentioned above, the order was given by the cornrnand
of the 1st Krajina Corps in the Banja Luka area. The Bosnian SerbArmy was
therefore authorised to give such orders to YugoslavArmy officers.
Shortly after receiving theabove mentioned document,Nikola Kajtez wrote back to
his superiors to reassure them that both Marko MariEiCand Milovan TodoroviC
would continue to discharge their duties:
"MILITARYPOST
7421
conf. no. 1652-213
07.10.1993
SANSKIMOST
Listof activeofficers
engagedin accordancewithart.271
fromtheYugoslavMilitary
COMMANDOF 1.KRAJINA CORPS
Two active oficers from the YugoslavMilitaryare engaged in our unit in accordance with art.
271,narnely:
1.MARICI Ce,eljko,MARKO,captain.
2. TODOROVIC,Borislav,MILOVAN,mastersergeant.
Both ojîcers have asked to returnto the Yugoslav Military. Theirrequests have not been approved.
Both have stated that theywill continueto askfor the return.
Forthe time beingwe haveno activeofficerswhohavelefi the unit withoutpreviousapproval.
1.Commandof the 1.K.C.and
2. ala
COMMANDER
Colonel
Nikola~ajtez"
[Military Post 7421, letter to Command of 1st Krajina Corps, signed Nikola
Kajtez, 7 Oct. 1993, emphasis added, Annex 2221.
This letter confïrms that Marko MarieiCand Milovan TodoroviCwere, indeed,
Yugoslav Army officers and that they complied, albeit reluctantly, with the orderReply of Bosnia and Herzegovina
given by the command of the 1st Krajina Corps. This clearlyillustratesthe symbiotic
relationship between the Bosnian Serb Army and the YugoslavArmy. As explained
above, the two armies were completelyincorporated;there was, in fact, only one all-
embracing Serb army, acting, however,under two differentnames.
The Belgrade obituaries
337. Some officers were thus called back to the Federal Republicof Yugoslavia, while
others were ordered to stay with and fight for the Bosnian Serbs until the end of the
conflict in Bosnia and Herzegovina. Not al1Yugoslav officers, however, madeit
safely back to the Federal Republicof Yugoslavia. The Belgrade-based newspaper
Politiku, once describedas the newspaper that "projectsand reflects political power
in Yugoslavia" [Article 19,Forging War: TheMedia in Serbia, Croatia and Bosnia-
Hercegovina, Avon 1994, p. 64, pp. 67-70, Annex 195;see also Statement on
Preliminary Objections, pp. 15-16, paras. 35-37], regularly publishedobituaries of
members of the YugoslavArmy military who had fallenon the Bosnian battlefields.
338. These obituaries were usually placed by close relatives.They were never placed by
the Yugoslav Army, probablyas part of the policy to conceal its continued
involvement in Bosnia and Herzegovinaas much as possible. When Djordje DjukiC
died in the Federal Republicof Yugoslaviain May 1996,shortly afier his release for
medical reasons by the ICTFY, Politika published fourteen obituaries in DjukiCYs
honour. None of these obituaries was placedby Djordje DjukiCYs employer, the
Yugoslav Army General Staffin Belgrade [Obituaries publishedin Politiku, Djordje
DjukiC,Yugoslav Army General, 20 and 21 May 1996, Annex2231.
339. Obituaries placed in Politiku during the duration of the conflict in Bosnia and
Herzegovina reveal that YugoslavArmy officers continued to be active on Bosnian
territory after the official "withdrawal"of the JNAon 19May 1992. Moreover,
many of the sentiments expressedby the officers' families in the obituaries mirror
the Greater Serbian ideologyof "al1Serbs in one State" and portray the deceased
soldiers as martyrs for this cause. The obituaries are replete with references to
fighting "for the Serb homeland and the defenceless Serbs"in Bosnia and
Herzegovina, "bravely and heroicallyon a holy Serb mission", or "while defending
Serbdom" and, for exarnple, "thedignity of the Serbian Herzegovina".
340. In 1992,Politiku published inter alia the following obituariesof Yugoslav
Army officers killed on the battlefield if Bosnia and Herzegovina: Yugoslavcontrol over the BosnianSerb Army
- Predrag Biga, Captain, killed on 29 May 1992in the area of Mostar [Obituary
published in Politiku, 2 June 1992,Annex 2231;
- ieljko DeliC,Sergeant,killed on 10 July 1992in the Sarajevo area [Obituary
published in Politiku, 14July 1992,Annex 2231;
- Ljuban BorovEanin,Captain,killed on 2 August 1992 on Mt. Romanija(near
Sarajevo) [Obituarypublished in Politiku, 6 August 1992, Annex2231;
-
Zoran Gorovina, Colonel, killed on 4 December 1992 in the Sarajevo area
[Obituarypublished in Politika, 7 December 1992, Annex 2231.
341. In the obituaries published during 1992,the place the officers were killed is
often mentioned. Asof 1993,every reference to the place of death is notably
left out, although the text of most obituaries often reveals an unnatural cause of
death. Here, it is important to note that at the time the following obituaries
were placed, no other armedconflict took place involving the Yugoslav Army.
The complete absence of any reference to the place of death of the deceased in
the years 1993, 1994 and 1995,is most probablythe consequenceof a
deliberate attempt to conceal the fact that the YugoslavArmy continuedto be
involved in Bosnia and Herzegovina.
342. In 1993obituaries continued to surface regularly:
- Sa3aDjordjeviC,Colonel of the 63rd Parachutist Brigade [Obituary published
in Politiku, 23 February 1993, Annex 2231;
- Dejan RaiEeviC,Lieutenant of the 63rd Parachutist Brigade [Obituary published
in Politiku, 23 February 1993, Annex 2231;
-
Milenko TeleClci,Major, killed on 25 March 1993 [Obituary publishedin
Politika, 27 March 1993, Annex 2231;
- Dragan Tanjga, Colonel,killed on 23 June 1993 [Obituarypublished in
Politiku, 28 June 1993, Annex2231;
- LjubiSaPetkoviC,Colonel, killed on 23 July 1992[Obituarypublished in
Politiku, 16 July 1993, Annex 2231.
343. In 1994,more obituaries were published in Politiku:
- Krsto KenjiC,Master (first) Sergeant, killed on 8 January 1994 [Obituaries
published in Politiku, 12 and 13 Jan~mry1994, Annex 2231;Reply of Bosnia and Herzegovina
- Goran Galjak, Captain, killed on 27 December 1993and buried on 19 January
1994 in Belgrade [Obituarypublished in Politika, 18 January 1994, Annex
2231;
- Srboljub DjoroviC,officer (rank unknown), buried on 22 January 1994 in
Prokupac (Serbia) [Obituarypublished in Politika, 20 January 1994, Annex
2231;
- Sead BahtoviC,Lieutenant-Colonel,buried on 9 February 1994in Belgrade
[Obituarypublished in Politiku, 9 February 1994, Annex2231;
-
Dragan StojkoviC,Captain,killed on 27 December 1993 [Obituary publishedin
Politika, 17 February 1994,Annex 2231;
- StaniSaStakiC,Second Lieutenant, killedon 3 February 1994 and buriedin
Belgrade [Obituary publishedin Politika, 13 March 1994, Annex 2231;
- NebojSaMiloSeviC,SecondLieutenant, killedon 15August 1994 [Obituary
published in Politika, 17 August 1994, Annex 2231;
-
Damir VuEkoviC,Second Lieutenant,buried on 19November 1994 [Obituary
published in Politiku, 19 November 1994, Annex 2231.
344. In 1995,Politika continued publishingobituaries of Yugoslav Army officers
killed across the border during the armed conflict:
-
Branislav KneieviC,Captain,buried on28 February 1995 [Obituaries published
in Politika, 27 and 28 February 1995,Annex 2231;
- Veselin CoviC,Reserve Lieutenant, buried on 27 August 1995[Obituary
published in Politiku, 24 August 1995, Annex 2231.
345. This clock-like regularity with which the obituaries were placed in Politika
throughout the time of the armed conflict clearly illustrates thatthe number of
Yugoslav Army officers deployed on the territory of Bosnia and Herzegovina was
quite substantial indeed. It also shows thatBelgrade never released its firm grasp of
the Bosnian Serb Army.
9. The Yugoslav system of national banks
Introduction
346. Bosnia and Herzegovina has beenable to obtain documentswhich clearly
demonstrate that the Respondent has builtan integrated system of national banks it
has adrninisteredfrom Belgrade, governingthe economicand financial activities of The Yugoslm system of national banks
the "Republika Srpska",in Bosnia and Herzegovina, andthe "Republika Srpska
Krajina", in Serb-held Croatia.This system of national banks was set up in 1992and
was stillworking at the time this Reply was submitted.
347. The mentioned documentswere al1recovered in a building in Donji Vakuf, central
Bosnia. This building belongedto the administrative organsof the municipality of
Donji Vakuf and had been used fiom May 1992to September 1995by the Serb
municipal authorities of the so-calledmunicipality of "Srbobran". Srbobran is Serbo-
Croat for "Defenceof the Serbs", the name that was given to Donji Vakuf after the
Serb take-over in the spring of 1992.The documents were recovered afterthe
reconquest of Donji Vakuf by the Army of the Republic of Bosnia and Herzegovina
and the withdrawal of the Bosnian Serb Army from the territory concerned in the
auhunn of 1995.
The uniJicationof the monetary system
348. The process of unification of the monetary systemof the Federal Republicof
Yugoslaviawith the Serb entities exercising a defacto authority over parts of Croatia
and Bosnia and Herzegovina was described in a report to the National Bank of
Yugoslavia. This report was written by Milivoje MiletiC,who was appointedby the
managementof the National Bank of Yugoslaviaas Director of the so-called
"Departementfor rediscount and collateral loans"in the "Sector for the monetary
credit system and policy". MiletiCwas stationedin Bosnia and Herzegovina, at the
National Bank of the "Republika Srpska",fiom 4 to 8 April 1994, in order to survey
and examine the operations of the bank.Reply of Bosnia and Herzegovina
349. According to Miletié'sReport, there were three distinct phasesin the evolution of
the activities of theNational Bankof the "Republika Srpska":
"1. The penod during which Republika Srpska, dueto the fact that at the beginning of the third
quarter of 1992 the National Bankof Yugoslavia designed monetaryand credit policies only for the
territory of the Federal Republicof Yugoslavia, formed a National Bankof Republika Srpska
which operated as a central bank for thistemtory;
2.The period when the implementationof the 'Elementsof Program' began; and
3. The period when parts of the 'Program on reconstructionof the monetary system and the
strategies of economic recovery of Yugoslavia'einafter: 'Program'] that referto Republika
Srpska and Republika SrpskaKrajina started to be implemente[Reportto the National
Bank of Yugoslavia written by Milivoje Miletié, pp.1-2,Annex 2241.
350. Although the Report describesthe activitiesof the NationalBank of the "Republika
Srspka" in the first phase as activities of a "centralbank", it is clear that this
situation was only transitional.The dissolutionof the system of national banksof the
former Yugoslaviawas necessaryto create a new system of national banks.During
this first phase, there was a close cooperationbetweenthe national banks which
wouldjoin the new system:
"~he first phase of operation of the National bank of Republika Srpska startedat a time when the
former National Bank of Bosnia and Herzegovina separateditself fiom the system of national banks
in the National Bank of Yugoslavia system. This wasthe time of dissolutionof the former Bosnia
and Herzegovina, and withthis dissolution, the dissolutionof the National Bankof Bosnia and
Herzegovina. Thisis a time of formation ofvarious institutionsof Republika Srpska,among others
the National Bank. Its normal, that these conditions require a monetary base emission thatis
based on experience that primarily relieson the National Bank of Yugoslavia.In this period,
monetary and credit policy on the territory of Republika Srpska was conducted primarily through
expert cooperation between the National Bankof Yugoslavia and the National Bank of Republika
~rpska." [ibid.,p. 2, Annex2241.
What was "normal"in Miletié'sview, is normal only if one understands thatthe
creation of a new systemof national bankscommonto al1Serb entities had already
been foreseen at that moment.
351. Accordingly, in its 1992 Annual Report, the National Bankof the "Republika
Srpska" explainedthat:
"~he National Bank of the Republika Srpska receivedspecial support in the very beginningof its
operations fiom the National Bank of Yugoslavia.
Although there were different monetarygions, the National Bankof Yugoslavia provided expert
assistance, assistance in methodologies of operation, and inthe creation of, etc.[The
National Bank of Republika Srpska,1992AnnualReport, May 1993,pp. 3-4,
Annex 2251. Chapter 8-Section 9
TheYugoslavsystem of national banks
Moreover,
"the National Bankof Republika Srpska conducted thesame monetary policy as the National Bank
of ~u~osiavia.[ibid., p. 4, Annex 2251,
and
"the exchange rate of the dinar was tiedto the exchang rate of the dinar in the Federal Republic of
Yugoslavia dueto the : 1 par of exchange. It was changing accordingto its changes in the
Federal Republic of~oslavia."[ibid., p. 14, Annex2251.
This shows that the links between the central banks werealready very strong in the
first phase.
352. The second phase began inthe middle of February 1993.It consisted of the
implementationof a "Program for regulating unified monetary policyon the territory
of the Federal Republicof Yugoslavia, Republika Srpska and RepublikaSrpska
Krajina". This unified monetarypolicy created "the preconditions for establishing a
unified payments system" [Report to the NationalBank of Yugoslaviawritten by
Milivoje Miletid, p. 2, Annex 2241.It is worth noting the title of this Program,
which refers to a single territoly, composed of the Federal Republicof Yugoslavia,
the "Republika Srpska"and the "Republika Srpska Krajina".
353. The third phase started with the implementationin the "Republika Srpska"and the
"Republika Srpska Krajina" of the "Programfor the reconstruction of the monetary
system and the strategy of economic recoveryof Yugoslavia".In this case, the title
of the Prograrnrefers only to "Yugoslavia".It is clear from the content of the
Program that "Yugoslavia"does not only refer tothe territory of the Federal
Republic of Yugoslavia, butthat it encompassesthe "Republika Srpska"and the
"RepublikaSrpska Krajina". Moreover, the material scope of the "Rrogram"was
much broader than unification of the monetary system;it aimed at assuring the
economic and financial integration of the "Republika Srpska"into a new Yugoslavia.
Economic andfinancial integration of the "RepublikuSrpsku" in a new Yugoslavia
354. Very close economic relations between the "Republika Srpska" andthe Federal
Republic of Yugoslavia existed from the very beginning of the disintegration of theReply of Bosnia and Herzegovina
former Yugoslavia.Thus, the National Bankof the "Republika Srpska",in its "1992
Annual Report" dated May 1993, reported that:
"~fter the separation of Bosnia-Herzegovina from Yugoslavia, the territory of Republika Srpska
still factuallyined in the same economic systemas the Federal Republic of ~u~oslavia."
[TheNational Bankof the Republika Srpska, 1992Annual Report, May 1993,
p. 4, emphasis added,Annex 2251.
As explainedby this Report, the "Republika Srpska" was completely dependeno tf
the Respondent, and consequently suffered from the sanctionsimposedon the
Federal Republic of Yugoslavia:
"~nternationaleconomic relationsduring 1992were worsened afterthe start of armed conflict on
the territory of the former Bosnia-Herzegovina and after theions were imposedon the
Federal Republicof Yugoslavia in May 1992.ter, these sanctionswere imposed by the entire
international community. Although the imposed sanctions did not directly affect Republika Srpska,
problems occuredsince al1goods were transportedthroughthe Federal Republic of Yugoslaviaand
we operated under uniform foreignexchange polic[ibid.,p. 12, emphasis added,
Annex 2251.
Thus, the "thirdphase" mentionedin MilivojeMiletiC'sReport only aimedat
formalising the econornicunion, which had already beenin defacto existenceprior
to that point.
355. Through the Yugoslav systemof nationalbanks, the Respondent manifested a clear
policy of integration of the "Republika Srspka" and "Republika Srpska Krajina" in
the economic system of the Federal Republicof Yugoslavia. Thus, the "Officia1
Notice from the meetingof Governorsof the National Bankof Yugoslavia,
Republika Srpskaand Republika Srpska Krajina,held on December 5, 1994,in the
offices of the National Bank of Yugoslaviain Belgrade",mentions as a startingpoint
three documents "forregulationof relationsin the economic union comprisingthe
Federal Republic of Yugoslavia, RepublikaSrpska, and Republika Srpska Krajina."
These documents are:
"-Basic elements for the implementationof the 'Program of reconstniction of the monetary system
and the strategy of economic recoveryof Yugoslavia' in Republika Srpska and Republika Srpska
Krajina;
-Program for regulating uniform monetary policyon the territory of the Federal Republicof
Yugoslavia, Republika Srpska and Republika Srpska Krajina, which entered into force on
1993.
-Protocol on regulatinguniform monetary policy for the territoryof the Federal Republicof
Yugoslavia, Republika Srpska and Republika SrpskaKrajin[OfficialNotice from the Chapter8 -Section 9
The Yugoslavsystem of nationalbanks
meeting of Governors of the National Bank of Yugoslavia, Republika Srpska
and Republika Srpska Krajina, 5 Dec. 1994,p. 1, Annex 2261.
356. Some of the conclusions of the meeting were directly related to economic matters:
"1. The Program on the reconstniction of the monetary system and the strategy of economic
recovery of Yugoslaviahas been adopted onthe territory of Republika Srpskaand Republika Srpska
Krajina. Certain results have been accomplishedin the initial phase.
(...)
5. It is urgently necessary to conduct an accordof legislation which regulatesthe trade of
goods between the republics in order to remove the inter-republiceconomic borders.
(.-.)
11. It is necessaryto further develop amode1of cooperation with banksin the Federal Republic of
Yugoslavia as well as other methodsof strengtheningthe depository functions of banks in
Republika Srpska and RepublikaSrpska Krajina, al1for thepurpose of gradua1rehabilitationof
production on the territory ofRepublika Srpskaand Republika Srpska ~rajina.[Official
Notice from the meeting of Governors of the National Bank of Yugoslavia,
Republika Srpska and Republika SrpskaKrajina, 5 Dec. 1994,pp. 1-2,
emphasis added, Annex 2261.
It is worth noting, in the same document, the use of the expression "cornmon
economic region" and the necessity to uni@capital markets and foreign exchange
"for al1subjects of the common economic region". This indicates that the unified
monetary system was only an instrument for a complete economic integration of the
"Republika Srpska", the "Republika Srspka Krajina" andthe Federal Republic of
Yugoslavia.
357. On 1 March 1997, almost a year and a half after the Dayton Accords were signed,
the Federal Republic of Yugoslavia and the "Republika Srpska" concluded an
agreement on "special and parallel relations". In fact, this agreement was the last
piece in the building up of a new Yugoslav federation. This is made clear by the
institutional provisions of this agreement:
The Council for Co-operation (hereinunderreferred to as the Council) shall be established.The
Chairman of the Council shall be the President of the FRY, while the Vice-Chairman shall be the
Representative of the RS in the Presidency BH. The Council shall consist of seven members,
three of them shall be appointed by Chairman, whilethe other two by the Vice-Chairman.
Article 6
The scope of activities of the Council shall involvethe following:Reply of Bosniaand Herzegovina
-encouragement, planning and CO-ordinatinf versatile CO-operati,articularly with a view of
establishing special and parallel relationsin the fields of culture, education, science, technology,
information, sports and other fields of creativity;
-economic development andgradua1associationin the fields of production, transport, energy,
infrastructure, finances, with a view of creating of a single market;
-economic restoration,reconstmction and development of transport,trafic and communications,
production, exploitation andtransfer of energy, tourismand environmental protection;
-social policy, health protection, averting naturaldisastersand elimination ofafiennath thereof;
-CO-operationof NGOs;
-migration, immigration and asylum seeking issues;
-combating of terrorism, illegal drug traficking, arms traficking, money laundering, threatsto
civilian air transport andther forms of organised crimes;
-regional security, border crossing regime, citizenship;
-CO-ordinationof foreign policy and approachto third countries and international organisations;
-alignrnentof legal and other regulations, offering of legal assistance,t f the issue on
succession of the former SFRY;
-as wellas in other fields of cornmoninterests for the Parties.
In order to have more efficient realisation of the CO-operationin the above mentioned fields, and of
the objectives and provisionsof the present Agreement, the Partiesmayude separate
agreements."[Agreementbetweenthe Federal Republicof Yugoslavia andthe
"Republika Srpska"on "specialand parallel relations", 1March 1997,Annex
2271.
358. According to this agreement, the"Councilfor Co-operation"would have been
responsible for a wide rangeof activities. Although this agreementwas supposed to
organise "cooperation"betweentwo "parties",in fact it enabled one of these parties
to exercise its authorityover the other. The compositionof the Council secured the
control of the Respondent overthe cornrnoninstitutions, a controlit had always had
before the signingof the Dayton Accords.
The interna1relations
The principles applicable to therelations betweenthe Federal Republicof Yugoslavia
and the National Banksof the "Republika Srpska"and the "RepublikaSrpska
Krajina" are very clearly describedby the "Official Noticeof the meeting of
Governors of the National Bank of Yugoslavia, RepublikaSrpska and Republika
Srpska Krajina, held on December 5, 1994,in the offices of theNational Bank of
Yugoslavia in Belgrade". These principlesare mentionedamong the conclusions of
the meeting:
"2. The National Bankof Republika Srpska and the NatioBank of Republika Spska Krajina are
disciplined in implementingdecisions ofthe National Bankof Yugoslavia.
(...) Chapter8 - Section 9
The Yugoslavsystem of national banks
6. The National Bank of Republika Srpska and the National Bankof Republika Srpska Krajina
operate asthe main branches of the National Bankof Yugoslavia and operate exclusively under its
control.
7. Unique control over the operation of the National Bankof Republika Srpska, the National Bank
of Republika Srpska Krajina and commercial banksfrom the temtory of Republika Srpska and
Republika Srpska Krajina isdetemined and conducted exclusivelyby the National Bank of
Yugoslavia.
8. The Governor of the National Bank of Republika Srpska and theGovemor of the National Bank
of Republika Srpska Krajina are obligedto attend meetings ofthe Council of the National Bank of
Yugoslavia. Theydo not have the rightto vote.
9. The National Bank of Yugoslavia willprovide staff and financial supportto the National Bank
of Republika Srpska and the National Bank of Republika Srpska Krajina. he National Bank will
produce a special mode1of its support to the National Bankof Republika Srpska and the National
Bank of Republika Srpska Krajina.
(...>
12. Capital marketsin the Federal Republic of Yugoslavia are unified foral1subjects of the
common economic region.
13. Al1foreign exchange of the National Bankof Yugoslavia, the National Bankof Republika
Srpska and the National Bank of Republika Srpska Krajina are commonly ownedT .he foreign
exchange market is integrated for al1subjects of the common economicregion."[Official
Notice from the meeting of Governorsof the National Bank of Yugoslavia,
Republika Srpska and Republika Srpska Krajina,5 Dec. 1994, pp. 1-3, Annex
2261.
359. It is apparent from this document that the primary functions of the monetary policy,
that is the printing of currency, monetary loans policy, supervision of commercial
banks, and administration of foreign currency reserves were carried out by the
National Bankof Yugoslavia, andthat the National Bank of the "Republika Srpska"
and the National Bankof "Republika Srpska Krajina"were organised as mere
branches of the National Bank of Yugoslavia.
360. In the same meeting, the Governors listedthe problems they facedin the
implementation of the third phase:
"3.Ali conditionsthat were determined earlier regarding complete financial integration have not
been established, particularly conditions regarding the unificationof legislation ofRepublika
SrpsL
4. It is urgently necessaryto produce a consolidated balanceof public expenditures and determine
the possibilitiesfor financing the budget deficitfiom real sources.
(...)
10. It is necessary to specially consider the reasons for the disproportionate participationof cash in
the money supplyof Republika Srpska." [ibid.,p. 21.
It seems clear that the main problems, thatis the "disproportionateparticipation of
cash" and the budget deficit, were createdby the war conditions prevailing in Bosnia
and Herzegovina.Reply of Bosnia and Herzegovina
361. Moreover, the complete implementationof the "third phase" implied the passing of
the necessary legislation, as mentioned in item 3 of the "Note". On that topic,
MiletiC'sReport described the situation in April 1994:
"~he National Bankof Republika Srpska continued a consistent cooperation with the National
Bank of Yugoslavia in this period, in the field of the basic Program goals that refer to Republika
Srpska and Republika SrpskaKrajina. In order to provide the necessary conditions for a consistent
implementation ofthe Program, the National Bankof Republika Srpska undertook effortsto secure
the necessary normative and legislativefiamework in Republika Srpska(Law on the National bank
and Law on Banks) as wellas other legislationder the authorityof the Parliament of Republika
Srpska and the Govemment of Republika Srpska.
Noting that there is a delayin passing the main and other legislation, actually that the authorities
have not passed and issued mostofthese laws and regulations, the National Bank of Republika
Srpska applies the currentlyvalid legislationof the National Bankof Yugoslavia, legislationthat
was issued by authorities in the Federal Republicofoslavia."[Reportto the National
Bank of Yugoslavia written by Milivoje MiletiC,p. 6, Annex 2241.
This document makes clear that:
- some legislative acts formally organising the vertical relationshipbetween the
Federal Republic of Yugoslavia and banking authorities of the "Republika
Srpska" had already been passed in April 1994,and
-
Yugoslav legislation was applied provisionally in the meantime on the tenitory
of the "Republika Srpska".
362. Al1national and commercial banks were perfectly aware of their dependenceon -
and exclusively on - the National Bank of the Federal Republic of Yugoslavia. This
explained the rather sore reaction of the Banker's Association of the "Republika
Srpska" to a Report of the Financial Police, written in May 1994, which accused
them of some inegularities. Their arguments focused mainly on recalling the forma1
and direct relationship between them and the Yugoslav authorities:
"(...) the following conclusions are made:
1.Audits of the National Bank and of commercial banks have been conductby persons who do
not posses the authority or the expertise for theng system supervision.
(-1
4. According to the majority of conclusions and proposals,the examination indicates a lackof
knowledge of the basic elementsof the banking system because they are ignorant of thefact that
Republika Srpska andthe Federal Republicof Yugoslavia belongedto a unified paymentssystem,
monetary system and a unified foreignxchange market. (The Federal Republicof Yugoslavia was
never a foreign country for Republika Srpska).
(...)
7. Examinations of banksof the National Bank of Republika Srpskacan be, based on the Protocol
on regulation of unified monetary policy onthe temtory of the Federal Republicof Yugoslavia,
Republika Srpska and Republika SrpskaKrajina, solely conductedby the National bankof Chapter 8- Section 9
The Yugoslavsystem of national banks
~u~oslavia."[Reaction of the Banker'sAssociationof the Republika Srpska to a
Report of the Financial Police, May 1994,no page nurnbering,Annex 2281.
These hierarchical relations between the National Bank of the Federal Republicof
Yugoslavia andthe National Banksof the "Republika Srpska" andthe "Republika
Srpska Krajina" enabled the Respondentto control the economic and financial
activities of the Serb entities. Actually, it reveals a structure whichvery closely
resembles a federation.
Financing"Republiku Srpska"and "RepublikaSrpska Krajina"
363. The role of the Respondentin financing the "Republika Srpska", andwith it the
Bosnian Serb Army, appearsclearly from a "Note on the possibilities of mobilizing
foreign exchange reserves for the purposes of budget deficit financing", producedby
the National Bank of the "Republika Srpska"and dated 3 March 1993[Note on the
possibilities of mobilizing foreign exchangereserves for thepurpose of budget deficit
financing, 3 March 1993, Annex 2291.
364. As the "Republika Srpska" had very few financial resourcesand manymilitary
expenses, the budget deficit was chronic.This situationwas, for instance, recalled in
an information note of the Banker's Associationof the "Republika Srpska":
"~uring the war, when the economy of Republika Srpskawas operating at 10% capacity utilization
rate, no paymentsof fiscal sources were made-the sourcesof Budget revenue, therewas a great
need to pay the meager wages, food, clothing and shoes for theArmy, electricity for the Mrkonjic
Grad Govemment session, heating for the Clinical Hospital Centerin Banja Luka where most
wounded soldiers were treated, and other nee[Informationnote of the Banker's
Association of the Republika Srpska,May 1994,p. 4, Annex2301.
365. This deficit had to be financed by the creation of money. The "Note on the
possibilities of mobilising foreign exchangereserves for the purposes of budget
deficit financing" describes the process for such a creation:
"~ccording to the Protocol on regulating theunit- of monetary policy on theterritory of the
Federal Repubic of Yugoslavia, Republika Srpskaand Republika Srpska Krajina, the new Federal
Republic of Yugoslavia dinar willbe the new currency, will al1its fimctions,on the temtory of the
Federal Republic of Yugoslavia, Republika Srpska and Republika Srpskaa. The National
Bank of Yugoslavia and the Payments Bureauof Yugoslavia are responsible for establishing full
control of the payments system andal1flows of money.The aforementioned Protocol clearlystates
that for eachount of new dinars, issuedfor the temtory of Republika Srpska, there needsto be
an equivalent arnount of foreign currency thatis deposited in the National Bankof ~ugoslavia."Reply of Bosnia and Herzegovina
[Noteon the possibilitiesof mobilizingforeign exchangereserves for the
purpose of budget deficit financing,3 March 1993,p. 1, Annex 2291.
This document showsthat:
-
Yugoslavia authorisedthe use of its currency, the dinar, in a single "temtory",
the "territoryof the Federal Republicof Yugoslavia, RepublikaSrpska and
Republika Srpska Krajina",
- money was createdby Yugoslaviaespeciallyat the demand of the Republika
Srspka, and
- the "Republika Srpska"had to mobiliseforeign exchangereserves.
366. The usual way to financethe budget deficit was credit. In this case again, the
National Bank of the "Republika Srpska"had to refer to the National Bank of
Yugoslavia.The questionof the scopeof credits of the National Bank of the
"RepublikaSrpska"for 1993 wasthus exarninedat a meeting of the Council of
Governors of the National Bank of Yugoslavia. The Minutesof the meeting reveal
the key role of the Yugoslavbanking authorities:
"~ational Bank of Yugoslavia
Cabinet of the Govemor
Annex tothe Minutes
1. Projection of monetary policy forthe second quarter of 1993 of the National Bankof Republika
Srspka and the National Bankof Republika Srpska Krajina.
Council of Govemors, at the closed part ofthe meeting, has considered and adoptedthe Projection
of monetary policy forthe second quarterand the scope of increase of Dinar credits in the second
quarter of993,to banks of the National Bank ofRepublika Srpska in the amoun854fbillion
Dinar andto the National Bank of RepublikaSrpska Krajina in the arnountof8billion Dinar.
At the same time, the Council of Govemorshas concluded that the National Bank of Republika
Srpska and the National bankof Republika Srpska Krajina should prepareformation note on
the sources for financingthe budgets of Republika Srpska and of Republika SrpskaKrajina and
thatthese information notes should be consideradspecial meeting of the Council of Govemors
that wilbe scheduled later[Minutesof a meeting of the Councilof Governorsof
the National Bank of Yugoslavia,date illegible,p. 3, Annex 2311.
At the meeting, the Councilof Governorsthus decided to increasethe credit given to
the National Bank of the "Republika Srpska"and the National Bank of the
"Republika SrpskaKrajina".For the secondquarter of 1993,the following was
concluded:
"~nnex of Minutes
(...) Chapter8 -SectionIO
Yugoslavia'continuingsupply of the BosnianSerbArmy
1. The scope of Dinar credits of the National Bank of Republika Srpska and the National bank of
Republika Srpska Krajina determined by the projection of monetary policy for the second quarter
can increase in the same proportion asthe scope of Dinar credits of the National Bank of
Yugoslavia to banks, determined by the projection of monetary policy for the second quarter.
2.The scope of monetary base of the National Bank of Republika Srpska and the National Bank of
Republika Srpska Krajina for financing the budget can amount to 40% of the volume of total
budget income which has been accorded with the authoritative Ministry of the Federal Republic of
~u~osiavia."[Minutes ofa meeting of the Councilof Governorsof the National
Bank of Yugoslavia, date illegible, p. 4, Annex 2311.
367. These documents illustratethe fact that, through its monetarypolicy, the Federal
Republicof Yugoslaviadirectly fmanced the budgetsof the "RepublikaSrpska" and
the "RepublikaSrpska Krajina". In his Report to the NationalBank of Yugoslavia,
written in April 1994, MilivojeMiletiCmade an precisecalculationof the total
amountused to finance the budget deficit of the "Republika Srpska":
"~onceming the realization of credit activity in regards to financing the budget deficit of Republika
Srpska, at the end of December [1993] the balance of Dinar credits amounted to 3,274,177,355
billion ~inars[Reportto the National Bankof Yugoslaviawritten by Milivoje
MiletiC,p. 6, Annex2241.
The Yugoslavsystem of national banks was,therefore,used to balance the books of
the "RepublikaSrpska" throughoutthe time of the armed conflict and thereafter. The
Federal Republic of Yugoslavia fmancedthe deficit, which was caused bythe armed
confiict in Bosnia and Herzegovina, and it thus indirectlypayed for the Bosnian Serb
Army and its genocidal Bosniancampaign.
368. The systemof national bankswas used to control, develop anddirect al1econornic
and financial activitiesof both the "RepublikaSrpska" andthe "RepublikaSrpska
Krajina". The structureof the monetary system, characterised bythe direct
subordinationof the National Bank of the "Republika Srpska"and the National Bank
of the "RepublikaSrpska Krajina"to the National Bankof Yugoslavia, was
organised as if both Serb entitieswere Republicsof a new "Yugoslavia",a federal
Greater Serbia.
10. Yugoslavia'scontinuingsupplyof the BosnianSerb military
Introduction
369. Contraryto their ofien repeated claims, the Belgrade authoritiescontinuedto assist
the Bosnian Serb rnilitarythroughout the entire conflict in Bosnia and Herzegovha.Reply of Bosnia and Herzegovina
Afier the alleged "withdrawal"of the JNA on 19 May 1992 and thecosmetic
transformation of the 2nd MilitaryDistrict into theBosnian Serb Army [see: Reply,
Chapter 8, Section 41, the Federal Republicof Yugoslaviacarried on supportingthe
Bosnian Serbs logisticallyas if Bosnia and Herzegovinahad never gained
independence. This support wasthus not only of an economic, butalso of a military
nature. In this Section, the Applicant will informthe Court of the wide extent and
the exact nature of this support and will demonstrate thatwithout it, the Serbs would
in fact not have been able to sustaintheir genocidal campaignin Bosnia and
Herzegovinauntil the very end ofthe hostilitiesin 1995.
Counter-Mernorial
370. The Respondent'sreaction tothe evidencepresentedin the Memorial [Memorial,
Section 2.3.8, pp. 85-93] can best be characterisedas ambiguous.In its Counter-
Memorial it basically limited itself to quotingthree contradicting statements givenby
the Federal and Serbiangovernments.The first statementquoted was issuedby the
Federal government on 6 May 1993:
"The Government ofthe Federal Republic of Yugoslavia reviewed todaythe consequencesresulting
fiom the decision of the Assemblyof the Republicof Srpska at Pale not to accept the Vance-Owen
plan but to leave the finalisionto the Serb peoplein Bosnia-Herzegovinato be taken at a
referendum.
(.-.>
Bearing in mind the immediate adverse efSectsUN Security Council Resolution 820 on the
economic capacity of the Federal Republic of Yugoslaviaand the social condition of thety
of its citizens, the Federal Government isforced to adjust allfuture aid to the Republic of Srpska
to its objective economicpossibilities and to reduce itively to supplies offood and
medicines." [Counter-Memorial, para. 3.6.1.1 .,p. 287, emphasisadded].
The Respondent then cited a statementof the governmentof the Republic of Serbia,
also given on 6 May 1993:
"The Govemment of the Republic of Serbia discussed the Report, preparedby Prime MinisN.r
Sainovi~,on the results of the negotiating process for peacein former Bosnia and Herzegovina, and
of the session of the Assemblyof the Republicof Srpska.
The Govemment reached the following conclusions:
Firmly believing that ajust struggleforfreedom and the equality of the Serbpeople is being waged
in the Republic, the Republic of Serbia unreservedlyand generously been helping the Republic
of Srpska, in spite of the enormousproblems it had toface due to the sanctions imposed against it
by the UN Security Council.
(...)
Since the conditions for peace have been met, the Governmentalso agreed, that any further supply
of aid to the Republic of Srpska shouldbe limitedto food and medicinesinh quantitias the
competent ministries determine.The Government of the Republic of Serbia also believes that, as
the conditionsfor establishingpeace have been met, anyfurther aid infin&, fuel, raw materials Chapter 8- Section 10
YugoslaviaS continuingsupply of the BosnianSerb Army
etc. provided untilnow with great sacrifices by the Republic of Serbia itself;is no longerjustified."
[Counter-Mernorial, para. 3.6.1.2., pp. 287-288, emphasis added].
As was argued in the Memorial [Memorial,p. 89, para. 2.3.8.31,by way of these
statementsthe Respondent has admitted thatit had continued to supply the Bosnian
Serbs with every imaginable type of aid at least until the date the 1st declaration
was issued.
371. The last paragraph, as quoted above by the Respondent, contains two major flaws in
the translation. The Respondent again failed to quote correctly [see also, Reply,
Chapter 8, Section 51.The entire paragraph should have been citedas was done by
the Applicant in its Request for Provisional Measureson 27 July 1993:
"since the conditions for space have been met,the Government also agreed, that anyfurther
economic depletion of the Republic of Serbia is now unjustifiedand unsupportable,and that future
aid to the Serb Republic should be limited to food and medicines inntities as the
competent ministries will determine. The Government ofthe Republic ofSerbia also believes that,
as the conditions for establishingpeace have been reached, any aid in funds, fuel, raw
materials etc., provided until now with great sby the Republic of Serbia itself, is not
justified any more.[Request for Provisional Measures,pp. 43-33 and Attachment,
emphasis added].
The paragraph as quoted above was part of anofficia1Communique of the
Governrnent of Republic of Serbia, issued on 6 May 1993 and distributed by the
Respondent's so-called "Mission" to the United Nations in New York [see Second
Request for Provisional Measures, 27 July 1993,p. 431.The Respondent issued the
Communique in English, not in Serbo-Croat.
The proper translation of the paragraph shows that the Respondent made one
significant alteration to the original statement.In addition it left out a not
unimportant passage. Both the alterationand the "forgotten" passage are emphasised
in the correct translation as quoted above. This translation sheds a completely
different light on Serbia's reasons for cuttingaid to the Serbs in Bosnia and
Herzegovina. Firstly, the Serbian government stated that al1conditions for "space" -
and not peace - had been met and that the Republic of Serbia could thus safely
reduce its support for the Bosnian Serbs. The use of the word "space" is a clear
reference to the Greater Serbian ideology. Since the Serbs had conquered enough
"spacetlor Eebensraum,the need to continue supplyingthe Serbs across the border
had al1but disappeared, at least in the view of the Republic of Serbia. Secondly, the
"forgotten" passage reveals an additional reason to cut the supplies: the SerbianReply of Bosnia and Herzegovina
reserves were in fact drying up. The reduction of its assistance tothe Serbs in Bosnia
and Herzegovinawas presentedas a simple economic requirement: "anyfurther
economic depletion of theRepublic of Serbia is now unjustifiedand unsupportable".
The reason for its statement wasnot the promotion of peace, as was impliedby the
Respondentin the Counter-Memorial, butthe fact that, by May 1993,the Respondent
had achieved al1it wantedto achievein Bosnia and Herzegovina.Further economic
suffering was therefore no longer required.
373. One month after the foregoing statements wereissued, on 10June 1993,the Security
Council adopted Resolution838, in which it recalled its demand inResolution 819
that the "Federal Republicof Yugoslavia(Serbia and Montenegro) immediatelycease
the supply of military arms, equipment and services to Bosnian Serb pararnilitary
units" [United Nations,Securi~ Council Resolution838 (1993), S/RES/838, 10 June
19931.
374. The last statementthe Respondent quotedin its Counter-Memorialis similarto the
two cited above, the only difference being thatit was issuedmore than a year later.
The statement,released on 4 August 1994by the Federal Governrnent,was quoted as
follows:
"~yrejectingthepeace,the leadershof theRepublicof Srpskahas committthe gravestact
againsttheFRYugoslavia,the SerbiaandMontenegrinpeoplesand al1citizenslivinginthese
areas.
The Federal Governmehnatsthereforemade[a] decision:
-to breakoff politicalandeconomicrelationswiththeRepublicof Srpska,
-to banthe membersof the leadershof the Republicof Srpska(theAssembly,the Presidency,
the Government)fromstayingintheterritoryof theFRYugoslavia;
- Theborder of the FR Yugoslaviashall as of today be shui to al1transports destinedfor the
Republic of Srpska withthe exception offood, clothing ands."[Co~nter-Mernorial,
p. 289, para. 3.6.1.4., emphasisadded].
With this declaration, the Respondentadrnittedthat it had continuedto support the
Bosnian Serbs with al1possiblemeans after 6 May 1993.This statementis in flat
contradiction with to two earlier ones quoted above.
375. In the following pages of this Section,the Applicant will demonstratethat even the
statement of 4 August 1994 provedto be a masquerade,presurnablyintendedto
convincethe internationalcornmunityto lift the economic embargofirst imposedby
the Security Council in Resolution757 on 30 May 1992 [UnitedNations, Securiv
CouncilResolution757 (1992), S/RES/757,30 May 19921.In reality, the Federal Chapter 8- Section 10
YugoslaviaS continuingsupply of the Bosnian Serb Army
Republic of Yugoslavia continued to supportthe Bosnian Serbs both economically
and militarily throughout the armed conflict.
376. Dwing the armed conflict, the military industriesin the Federal Republicof
Yugoslavia and the "Republika Srpska" continuedto cooperate with each other as if
Bosnia and Herzegovinahad never gained independence and,in fact, as if the
"Republika Srpska" were part of a Yugoslavfederation. This cooperation was
epitomised by ZINVOJ,the Belgrade-based "Yugoslav Associationof Arms and
Military Equipment Industries".This association played apivota1role in the
reorganisation and revitalisation of the arms industryin the "Republika Srpska" afier
the hostilities had started in April 1992.This is best illustratedby the following
letter which ZINVOJ sent to the governmentof the "Republika Srpska"on 25
January 1993.On 25 February 1996, after the reintegration of VogoSCa,a Sarajevo
subwb, into the Federation, it was found by a Bosnian government officia1at the
premises of the local Unis Pretis arms and ammunitionsfactory:
"ZINVOJ
Association ofarrns and
military equipment industries
Address: 11000Belgrade
Knez Mihailova St. No. 6
Tel: 626-724, 631-862
Telegram: zinvoj beograd
Telex: 12698
Acc. No. with Public AuditingOff~ce
Beograd 60823-601-11716
Telefax: (011) 624-435
Date: 25.01.1993 Our no. and sign: 3-29 Your no. and sign:
TO THE GOVERNMENT OF
THE REPUBLIC OF SRPSKA
Subject:
INITIATIVE FOR CREATION OF PRE-REQUISITES FOR(..) FUNCTIONINGIN THE
REPUBLIC OF SRPSKA
Production of arms and military equipment in Bosnia and Herzegovinahar;been brought into
condition thatpractically its not exist any more in operational terms, except thatsome smaller
quantities of simple technologiesproducts are made in some enterprises (their sections),thanks to
some stocks of theaterial and sparepartsfrom the cooperationandfrorn abroad.Reply of Bosnia and Herzegovina
Military production enterprises arenow located in different parts of Bosnia and Herzegovina and
they areunder al1three sides control (Serbs',Croats' and Muslims'),so that al1production lines
have been cut, since this production had been closely technologically tied amongthe units within
the area of Bosnia and Herzegovinaand also with the enterprises from the former Yugoslavia.
The following military production enterpriseshave existed in Bosnia and Herzegovina: 'Pretis',
'Pobjeda', 'SlavkoodiE,'Slobodan PrincipSeljo', 'Igman', 'Bratstvo',Rudi Cajavec', 'Famos',
'Zrak', 'Soko-Vazduhoplovstvo' and the remounting departments '',adiiCi', 'Kosmos' and
'Travnik'.
The following military production enterprises arenow within the area of the Republic of Srpska:
'Pretis',Rudi Cajavec', 'Famos', (locatsf Pale and Hrasnica),then remounting departments
'Orao','HadZiCiYa,nd '~osmos'.[ZINVOJ, Associationof Arms and Military
Equipment Industries,Initiative for creationof pre-requisitesfor functioningin
the Republic of Srpska, addressedto the Governrnentof the Republic of
Srpska, 25 Jan. 1993, p.1, emphasis added,Annex ?].
When the letter was sent, on 25 January 1993,the arms production in the "Republika
Srpska" had apparently almost completelycome to a standstill.After the dissolution
of the former Yugoslavia, ZINVOJwas entmsted with the task of putting the
Bosnian Serb armsindustry backon its feet again. In the view of ZINVOJ,this was
only possible in closecooperationwith the existingfacilities in the Federal Republic
of Yugoslavia.The letter continues:
"ZINVOJAssociationstill put eflorts in attemptstoprovide linksand coordinationarnongd~fferent
arms and militaryequiprnentproduction unitsjom the territory of the FR Yugoslavia,the Republic
of Srpska andthe Republic of Srpska Krajina [inCroatia]. Withthe aim of ensuringthat programs
and military productioncapacities which werein theRepublicsof Srpska and Srpska Krajina
before the war broke [out], still rernainwithinthese areas, the ZINVOJAssociation undertook
some activities whichresulted[in]lyfounded enterprises like: UNIS-Pale, Pretis-komerc
Belgrade, UNI-PROM-Pale, UNI-PROM-Belgrade, Zrak-Sokolac.
ZINVOJ Association continuesto focus its activitiesto establish enterpriseson production
programs: mine explosives and detonators 'Slavko',caps and primers, electrical fuses and
detonators 'Pobjeda', products development and engineering marketing activities."
[ibi dm,phasisadded,p. 21.
By January 1993,ZINVOJhad alreadyestablishedseveralnew arms and arnmunition
producing companiesin the "Republika Srpska".Thesenew facilities and the
previously established ones were consequently integrated intoexisting production
programmes in the Federal Republicof Yugoslavia.ZINVOJ restoredthe "linksand
coordination arnongthe different arms and military production units fromthe
territory of the FR Yugoslavia,the Republicof Srpskaand the Republic of Srpska
Krajina". The Bosnian Serb military industrybecarnean integralpart of the
Yugoslav military complex, as it had been before the break-up of the former Chapter 8- Section 1O
YugoslaviaScontinuing supply of the Bosnian SerbArmy
Yugoslavia. The arms producers in the "Republika Srpska" and the Federal Republic
of Yugoslavia thus gradually came to be interdependent.
377. The aim of ZINVOJ was thus to revitalise Bosnian Serb military production by
reintegrating it into the existing Yugoslav military industry. In the same letter to the
Bosnian Serb government cited above, ZINVOJgave the Bosnian Serb government
the following directions:
"~here is the way out for the military production enterprisesat the territory ofthe Republic of
Srpska?
- We consider that a platfom of economic cooperation between the arms and military production
equipment enterprisesiom the Republic of Srpskaand the enterprises from the FR Yugoslavia
should be urgently defined, andalso thatmany aspossible arms and military equipment
capacities fiom the Republic of Srpska should be putin effective operation and employedso that
certain levelof development is ensuredin future. Inms of the above stated, it is necessary to
do the following:
The Government of the Republic of Srpska should, through its activities, establish relations with
the Government of the Republic of Serbia and Republic of Montenegro, and also with FRY in
order to set upframes for the enterprisesfrom the Republic of Srpska to start linking with the
enterprisesfrom the dm Republics, in a way that$ture concept of military industries
development in FRY takes into account the existing technologiesand military production
capacities in the Republic of Srpska.an agreementon stated possibilities amongthe
Governments of the ah Republics is reached, then the enterprises would begin anaction and
implementationof cooperation in military productiondevelopment, establishing direct relations
with enterprisesand fully usingthe previous institutions for professional economy cooperation of
theZINVOJ Association.
In situation like this, when there is shortage of resources, stafand communication, restarting
cooperation among the arms and military equipment capacitiess only possible withmutual
agreements and good will of the Government of the mentioned States,as well as of the Government
of the FRY, including correspondingomrnoninstitutionsfor the establishment and development of
economy cooperation of the ZINVOJ~ssociation."
[ibid, emphasis added, pp. 2-31.
In the view of ZINVOJ,the Bosnian Serb military could only be reinvigorated with
the help of the Federal Republic of Yugoslavia: "restartingcooperation arnong the
arms and military equipment capacities is only possible with mutual agreements and
good will of the Government of the FRY" [emphasis added]. Cooperation with the
Respondent was thus a conditio sine qua non for the survival of the arms industry in
the "Republika Srpska".
378. In the following pages of this Sectionthe Applicant will demonstrate that the
Respondent indeed showed al1"good will" necessary to put the military industry inReply of Bosnand Herzegovina
the "Republika Srpska" backon its feet again. The Applicantwill illustrate the
cardinal role played by the Federal Republicof Yugoslaviawith the example of the
Unis Pretis factory, one of the Bosnian Serb productionfacilitiesmentioned in the
above quoted letter. Unis Pretis was locatedin VogoSCa,a Sarajevosuburb. The
exampleof Unis Pretis will showthat the military economiesof the Federal Republic
of Yugoslavia andthe "Republika Srpska"were indeed completelyintermingledand
that,as a result, the Serbswere able to carry on their genocidal campaignin Bosnia
and Herzegovina.
379. The connectionsbetween UnisPretis on the one handand the military industryin the
Federal Republic of Yugoslaviaon the other were multifold.The ammunition
produced in the Unis Pretis factory was, firstly, tested on a testing groundnear
Belgrade. Secondly, Unis Pretis was usedby the Serbsto produce ammunitionfor
both the Yugoslavand the Bosnian Serb Arrny (VRS). Thirdly,the raw material
necessaryfor the production of ammunitionwas obtainedin the Federal Republic of
Yugoslavia.This went on during the entire armed conflict. Finally,Unis Pretis
gradually started buying Yugoslavend products theywere not able to produce
themselves.These products were either given, boughtor barteredfor other goods
produced on the territory under Bosnian Serb control.
UnisPretis
380. Unis Pretis was an important Serb ammunitionfactorynear Sarajevo.In February
1996, VogoSCawas reintegrated into the Federation entityof Bosnia and
Herzegovina, following the implementationof the DaytonAccords.Before the armed
conflict, Unis Pretis was one of the largest ammunition producingfactories in Yugoslavia'scontinuingsupply of the Bosnian SerbArmy
Yugoslavia. As mentioned above, it was and still is located in VogoSca,a suburb
northwest of Sarajevo, which remained under Serb control until February 1996.
Before the break up of Yugoslavia, Unis Pretis employed some 5,000 workers who
manufactured more than fi* percent of the ammunition required by the former
JNA. Before the hostilities erupted in April 1992,the factory produced, among other
things,artillery munition, so-called "cumulative projectiles", cassetteammunition,
armour-piercing shells, smoke shells, hollow-charge shells,al1in varying calibre, and
mines, "avio bombs" and various rockets and missiles. UnisPretis also produced for
export.
381. In 1991, long before the outbreak of hostilities, al1non-Serb personnel of the Unis
Pretis factory was forced to resign. When the conflict in Bosnia and Herzegovina
broke out, many of the remaining Serb workers joined the Bosnian Serb Amy and
as a consequence, the number of employees further dropped to 250. During the
conflict the number gradually increased again to approximately 500. Production
levels followed the same pattern, after an initial drop in the beginning of the
fighting, production gradually increasedin the following years. Unis Pretis produced
an estimated average of 10,000to 15,000 rounds of munition a month, including
shells, mines, rockets and other explosives. From April 1992 to the endof January
1993, the factory produced exactly 110,709rounds of ammunition. In June 1992, the
Serb Milorad Motika was officially appointed acting general manager, a posthe had
unofficially held when the conflict had started. He was proposed for appointment by
ZINVOJ in Belgrade.
TheNikincitestingground
382. In April 1992.Unis Pretis faced several problems. One of the problems which had to
be resolved was the absence of an adequate testing centre, necessaryto test the
quality of the arnrnunitionproduced. This was probably due to the fact that the old
testing grounds remained under the control of the government of Bosnia and
Herzegovina. Possibly, the arnrnunitionproduced by Unis Pretis had always been
tested outside of Bosnia and Herzegovina. In any case, the government of the
"Republika Srpska" ordered its Ministry of Defense to solve the problem in August
1992. The following document containing the order was found on 25 February in the
Unis Pretis factory, shortly after the suburb ofVogo36acame under government
control again:Reply of Bosnia and Herzegovina
"pursuant to article 29, parag3,pof the Law on State Administration('Official Gazette of the
Serb people in Bosnia and Herzegovin-'issue 4/92) and arti8,paragraphs 2 and3, of the Law
on Defence ("Official Gazette of the Serb peoplein Bosnia and Herzego-iissue 7/92) the
Head of the Govemment, issues the following:
ORDER
1. The Ministry of Defence is ordered to:
(-1
- request the General Army Staff to report the needsfor weapons and military equipment untilthe
end of 1992 both in respect of producers fiom theterritory of Serb Republic and fiom abroad;
(...>
- with relevant institutionsof FR Yugoslavia negotiate and signa contract on the useof services
and equipmentofproving groundsfor testingartillery ammunitionand othernewlyproduced
military equipmentfor whichrequiredproving grounds cannotbefound in the territory of the
Serb Republic;
(.->
4. The Minisîryof Economy is ordered to find satisfactory solutions regardingsettling of debts
related toomestic and import tradewith special purpose [military] companies fiom Serb Republic
[Republika Srpska] and relevant authoritiesof FRY [Federal Republic of Yugoslavia].
(-1
6. In charge of the execution of the presentorder are: Ministryof Defence, Ministryof Economy,
Ministry of Transport and Communications and Ministryof Finance.
7.Written report on execution of the presentorder is to be submitted by 15.09.1992to the
govemment of Serb Republic.
NO.02-99
Pale, 20 August 1992
HEAD OF GOVERNMENT
Prof. Dr. BrankoDjeriC
[seal and signature[OrderNo. 02-99, issuedby the Head
of Govenunent, Branko DjeriC,Pale, 20 Aug. 1992,
emphasis added, Annex 2331.
The government of the "Republika Srpska"thus ordered its Ministry of Defenceto
approach existing testing groundsin the Federal Republicof Yugoslavia and sign a
contract for the use of testing facilities.The fact that no less than four Ministries
were engaged in the running of the Unis Pretis factory emphasisesthe importanceof
the facility for the Bosnian Serb hy.
383. The testing groundswere later found in Nikinci, atown near Belgrade. On25
Febrwuy 1996, whenthe Unis Pretis premises were inspected,numerous documents
from 1993 and 1994were also found, which show thatthe YugoslavArmy (VJ)
facility in Nikinci regularly testedammunitionproducedin VogoSCa.The Nikinci
testing ground providedthe factory in VogoSCawith detailedreports on the quality Chapter8 - Section 10
Yugoslavia'scontinuingsupply of the Bosnian SerbArmy
of the ammunitionit produced. One of these reports is, by way of exarnple,
reproduced below:
"~egister 8.1.2i9
TOC KoV - PROVING GROUND NIKINCI
RECORD OF FIRING RESULTS
Date: 17.08.1993 Time: 10,50-11,20
PKP 0933
TESTING OF ROUNDS 105mm with TF GrenadeMl Series no. 9301
-testing of ammunitionreliability (items 4.-.6.2)
WEAPONS: AMMUNITION:
- Howitzer 105mm M53, -grenade TF,Ml ser. TV 8921
barre1no. 1013
- elevation: 336cl00 carîridge MS,M14 ser. different-recalibrated
INSTRUMENTS: fuse PD,M557 ser. KRI-3-4-5-55
- type: Doppler radar BS-850 capsule 7K, M2882 ser. 3803
- no: main ring copper
- detector: grenade mass
- initiator: 86.18mm (2 pcs) powder NOD-11 ser. MBL 9286
- roller: 8 5x7 mm ser. 254 powder NOD-21 ser. MBL 9286
filling TORMENTACNO
REQUESTS UNDER PKP powder temperature + 22 C
Pm.POJ.=2501 - 2599 bars fuse initiation momentary
No. distance direction velocity pressure powder powder
(m) (ml (m/s> (bar) mass mass
left right NCO-11 g NCO-21 g
1 8861 37 547.9 2526 286 1006+250
2 9046 31 552.7 2745
3 8996 58 551.2 2660
4 8944 3O 549.4 2610
5 8576 44 522.5 2466 282+120 1006
Max.
val: 9046 552.7 2745
Min.
val: 8576 522.5 2745
Scope 470 30.2 279
min-max
Al1fuses had immediate initiation with full explosionsof the grenades.
Present: Record madeby: Chief of test group:
DimitrijeviCBogomir, eng. DavidoviCDarko, cap.
Approved by:
BajunaviéRadovan, major Head:
SmiCRadovan, ~t.~ol."Reply of Bosnia and Herzegovina
[Record of firing results, Proving Ground Nikinci,17Aug. 1993, signedLt.
Col. Srnic Radovan, Annex 2341.
384. Transports between Unis Pretis and the Nikinci testing groundsoccurred with clock-
like regularity. Five days after the report quotedabove was written,the Unis Pretis
factory again sent ammunitionto Belgrade with theintentionto have it tested:
"PRETIS FACTORIES SARAJEVO -VOGOSCA
SHIPPING STATION SEMIZOVAC - INDUSTRIAL PLATFORM
Phone: 34-329, 34-338, 34-355,34-356, 34-372, 34-373;ex: 41-289
ORDER - BILL OF LADING no. 779193Date 22.08.1993
DESTINATION: TESTING CENTRE NIKMCI
name of driver IvankoviCRade, plate no. SA 314-037
measure unit bill of lading quantity description
pcs. 779193OF 8 8 mine 120mm CTF
22.8.93
kg _II_ -II- 2 2 gun powderNGH - 255 for T-12
order issued dispatchedlreceived
sales officer [signature]
23.08.1993
[signature] [stam~l
[stam~l YugoslavAmy
PRETIS VogoSka Military Post 2342
~ikinci"
[Order - Bill of lading no. 779/93,Pretis FactoriesSarajevo-VogoSCa2 ,2 Aug.
1993,Annex 2351.
This "bill of lading" shows that it would take the driver little time to coverthe
distance between the factory in Sarajevo and thetesting groundnear Belgrade. This
was quite an achievement in war-ridden Bosniaand Herzegovina.One has to assume
that customs formalities, if any, were not too complicated.In peace time, the
distance between Sarajevo and Belgrade wouldhave been approximately300
kilometres. During the armed conflict,the distancewas longer, as many through
roads were not accessibledue to the fighting and the jagged frontline.The quality of
the roads which could be usedwas often very poor. The document citedabove was
signed in Nikinci at delivery, on 23 August 1993,that is one day after the truck or
car had been loaded in VogoSCa. Chapter8 -Section 10
YugoslaviaScontinuingsupply of theBosnian SerbArmy
385. The Bosnian Serbs were never charged for the services rendered by the Yugoslav
Army testing ground in Nikinci.
The Yugoslavtrade
386. A second problem which threatened production at Unis Pretis was the lack of funds.
This lack of funds hampered trade. In August 1992,the Bosnian Serb leadership
therefore ordered the Ministry of Economic Affairs to find "satisfactory solutions" to
the financial problem [see above, Order No. 02-99, issued by the Head of
Govemment, Branko DjeriC,Pale, 20 Aug. 1992, Annex 2331.The financial
problems were consequently solved, althoughthe Bosnian Serbs occasionally
continued to face shortages of funds throughout the armed conflict. As a
consequence, the delivery of raw materials, necessary to continue the production of
ammunition at the Unis Pretis factory, could at times be delayed [See e.g. Telex
from Holding Pretis VogoSCa,addressed to General Staff of the Army of the Srpska
Republika, Strictly Confidential No. 419/94, 20 Dec. 1994, Annex 2361.Generally,
however, the Bosnian Serb government and the Unis Pretis factory could acquire the
money required to obtain the indispensable feedstock,in the Federal Republic of
Yugoslavia. Money was routinely transfened to accounts of companies across the
border, as the following payment order illustrates:
"~retis-VogoSCa(memorandum)
To:
EI "BIRAC" ZVORNIK
Attn. Mr. Matic
ZVORNIK
Our ref. Ecc.PS1cs VogoSCa,04.04.1995
Subject: paymentorder
Based on contract on procurement of equipmentand goods inFRY of 21.11.1994,please execute
the payment in thenountof 20.000,-dinars on our behalfto the firm:
'BIROVACA' -BEOGRAD
account no. 42200-685-8-12482
Best regards,Reply of Bosnia and Herzegovina
Director of 'PRETIS' Holding
Mr. Milorad Motika, eng."
[Payment Order, from Pretis -VogoSCato EI 'Birac' Zvornik, 4 April 1995,
signed: Milorad Motika, Annex 2371.
This payment order was givenby the director of Unis Pretis,Milorad Motika. The
payment wasdone through an intermediaryin Zvornik, on the border with Serbia
proper, probably to avoiddetectionby the international observers controllingthe so-
called "embargo"the authoritiesof the Federal Republicof Yugoslaviahad imposed
on the "Republika Srpska"on 4 August 1994. Boththe payment order quoted above
and the underlyingcontract are datedafter the impositionof this "embargo".
387. The Serb authoritiesin the Federal Republicof Yugoslaviaand the "Republika
Srpska" showed a great deal of ingenuity whenever financial impediments occurred.
In order to receive raw materialsin times of financial scarcity, the BosnianSerbs
occasionallyreverted to barter; the Bosnian Serbs would,for example, supply
ammunition in exchangefor explosives.The followingtelex provides an exarnpleof
this special trade. On 28 January 1994,it was sent by General-Major DjordjeDjukik
to the Bosnian Serb Ministryof Defence. DjordjeDjukiCwas a YugoslavArmy
General in charge of the logistics for the BosnianSerb Army, until he was
imprisoned by Bosnianauthoritieson 30 January 1996[seeReply, Chapter 8,
Section 81.A copy of the telex was also sent to Unis Pretis, whereit was later found
by Bosnian authorities:
"~eneral Staff of the Amy
of the Republic of Srpska
rear sector Military secret
confidential 120-22 Confidential
28.01.1994
TO BE DELIVERED TO: Ministryof Defence of the Republic of Srpska
COPY TO: Pretis Holding Co.VogoSka
Ordnance supply by YA r(ugos1av Amy]; Information
Reference: Request of the commanderof GS VRS [General Staffof the Bosnian Serb]
addressed to NGS VJ [Chief of General Staff of the Yugoslav Amy], stictly confidential 13121-5-
4of 09.01.1994 andthe reply thereto (information) 608. Technical-SupplyBases of SSNO Federal
Ministry of Defence in Belgrade], confidential 1-5of 21.01.1994.
By the above mentionedact, thGS VJ[General Staffof the YugoslavArmy]informedus about the
measurestakenas to provide ordnance requiredby our request mentionedabove, and that is the
following: Chapter 8- Section 10
YugoslaviaScontinuing supply of the Bosnian Serb Army
1. Requested 2.000 t of steel fiom the forge NikSiC[Montenegro]for the production needs of Pretis
cannot be provided, due to lack ofnds.
2. Theprovision of 100 t of explosive (out of the requestef)in the compensationfor 125 mm
roundrfor tanks type T-84 is taken into procedure. Afer the decision has brought, the logistic
administration of the VJ [Yugoslav Army] willconclude a contract on the compensation with
Pretis.
3. Theprovision of mortar roundrfrom the Kruiik Valjevofactory [Serbiaproper] has been
approved oJ;according to the decision ref: confidential85-1 of 10.01.1994 which wasforwarded to
theKruiik Valjevofactory.
Please, take this into consideration andsettle the obligations originatingfiom items 1-3, which are
in your exclusive competence,andinform the GS VRS [GeneralStaff of the Bosnian Serb Army]
about the outcome. Also, pleaserder Pretis VogoSCaCo. to accelerate the production.
General-Major
Djordje ~juki~"
[Ordnance supplyby YugoslavArmy; Information, from General Staff of the
Army of the Srpska Republika,to Ministry of Defense of the Srpska
Republika, confidential2110-22, 28 January 1994,signed: General-Major
Djordje DjukiC,emphasis added,Annex 2381.
In exchange for "125mm rounds for tanks type T-84", the Yugoslav Army General
Staff supplied Unis Pretis with no less than 100tons of explosives. The transport of
these explosives alone must haverequired a special convoy, consistingof various
heavy trucks. The KruSikValjevo factory mentionedin DjukiCYs telex as a supplier
of the Bosnian Serb Army is one of the largest arms and ammunition producing
facilities in the Federal Republicof Yugoslavia.Reply of Bosnia and Herzegovina
388. As mentioned in the foregoing communication, theexplosiveswere traded for tank
shells. In this way, Unis Pretis producedfor the YugoslavArmy as well. The
General Staff of the YugoslavArmy (VJ) was thus well informedon and approved
of the arms deals Unis Pretis and the variousmilitary facilities in the Federal
Republic of Yugoslavia, such as the KmSikplant, were involvedin.
389. In the telex sent to the Bosnian Serb Ministryof Defence, GeneralDjordje DjukiC
asked the Ministry to order Unis Pretisto accelerateproduction. Unis Pretis was,
however, not able to meet al1the requirementsof the Bosnian Serb Army. As the
fighting raged on and the old JNAsuppliesstartedto run out, the factory beganto
obtain end productsin Yugoslaviaas well, like mortar rounds [seeabove, Ordnance
supply by YugoslavArmy; Information,from General Staffof the Army ofthe
Srpska Republika,to Ministry of Defenseof the Srpska Republika, confïdential2110-
22, 28 Jan. 1994, signed:General-MajorDjordje DjukiC,Annex 2381,and mines and
bullets [ContractbetweenTechnical MaintenanceInstitute Kragujevacand Unis
Holding Pretis - VogoSCa,concludedon 20 July 1995, Annex2391.
390. Unis Pretis was also supplied with so-called "weapons foroperational support".
These weapons were produced by the VTI, the Military-Technical Institutein
Belgrade, as was revealedby the followingtelex. On 19February 1994,it was sent
by Unis Pretis to the Chiefof Staff of the Bosnian Serb Army. As al1documents
referred to in this Section,it was found at the premises of the factory in VogoSCaon
25 February 1996:
"~retis
VogoSCa
strictly confiden17a
19.02.1994
Attn.Chiefof Staffof theVRS posnian SerbArmy]
Brigadier-GeneraManojloMilovanoviC
Reference:yourfax strictly confiden0l314-154of 18.02.1994
It is true t2aweaponsfor operationalsupport are being produced iVTIeBelgrade in
accordance with the order strictly confidential03/4-31 of 15/01/1994Vaf [General Staf
of theBosnian SerbArmy], and that they will befinished by 23.02.1994 and the crewfiom the
89th brigade of VRS trained.
The dispositionfortheweaponsis to beapprovedof bythe Commanderin Chiefof theGS VRS,
Major-GeneraR l atkoMladiC. Chapter8- Section 10
Yugoslavia'scontinuingsupply of the Bosnian SerbArmy
PretisVogoSCa
Colonel,EcimoviCRadmomir,eng.
19.02.1994
[signature]"
[Letter strictly confidential 17,from Pretis to Chief of Staff of the Army of the
Srpska Republika, 19 Feb. 1994, signed EcimoviCRadmomir, emphasis added,
Annex 2401.
This quoted document illustrates not only that a military facility in Belgrade
produced special weapons for the UnisPretis factory in VogoSCa,but also that this
was done on orders from the General Staff of the Bosnian Serb Army. The Bosnian
Serb Army thus had the authority to commissionthe production of weapons in the
Federal Republic of Yugoslavia. The document also shows thatthe Yugoslav Army
trained Bosnian Serbsoldiers, incasu the 89th Brigade, to operate the new weapons
delivered.
Avio bombs
391. During the conflict, Unis Pretis also started designing its own new weapon systems.
In 1994, the factory developed a new method to launch avio bombs from improvised
rocket launchers. These adapted avio bombs were used to shell Sarajevo and Visoko
in 1994 and 1995, where they causedwidespread fear and many casualties among
the civilian population. Theywere fired from rocket launchers set up on military
trucks. Both the rocket engines required for the propulsion of the bombs and the avio
bombs themselves were procured in the Federal Republic of Yugoslavia. This is
illustratedbythe following telex, which was sent by Milorad Motika, the director of
Unis Pretis. to General Ratko MladiC.personally:
"~ax messageno. 122194
Addressee:GeneralStaff of the Armyof Republicof Srpska
Am: GeneralMladiC
Sender:Unis PretisSarajevo,PretisHoldingVogoSCa
Date: 10.05.1994
Wouldyou beso kindas to intervenewith the Chiefof the GeneralStaffof the Yugoslav Army,
Gen. Periiii, to have your letter regarding 1,000pcs of rocket-engines 122mm type GRAD, be
send to the Assistant Ministerof Defence of the FRY in charge of Military-EconomicSectorfor theReply of Bosnia and Herzegovina
approval whichis to be, then,forwarded tothe HoldingKruiik Vafievo,for the needs of Holding
Pretis.
Sincerely,
Manager
Motika Milorad,B.Sc. eng."
[Fax MessageNo. 122194,from Unis Pretis to General Staff of the Army of
the Srpska Republika, General MladiC,10 May 1994, signed MotikaMilorad,
emphasis added, Annex 2411.
This message showsthat the propulsion rockets for the launchingof the avio bombs,
the Russian "Grad", were suppliedby Belgrade. TheBosnian Serb Army obtained its
rockets owing to a letter General Ratko MladiChad sent to General MomEiloPerisiC.
The letter in addition shows that abureaucratieprocedure existed, involving a direct
line of communicationbetween the Commanderof the Bosnian Serb Army, General
MladiC,and the Chief of Staff of the YugoslavArrny,General PerisiC..The fact that
this line existedwas also known to the director of Unis Pretis, who asked General
MladiCto contact General PerisiCagain to speed up the delivery of the rocket
engines which he had ordered before.
392. The avio bombs to be mounted on the rockets were alsosupplied by the Federal
Republic of Yugoslavia whenthe old JNAstocks in Bosnia and Herzegovina started
running dry. They were then obtainedby Unis Pretis in Kragujevac, in Serbia
proper, at the local Technical MaintenanceInstitute [Contract betweenTechnical
Maintenance Institute Kragujevacand Unis Holding Pretis - VogoSCa,concluded on
20 July 1995,Annex 2421.
393. The development of the avio bombs by the Bosnian Serbswas confïrmed by General
Djordje DjukiCin the statementshe gave to the Bosnian authorities, shortly after his
capture on 30 January 1996:
"AS far as 1can recall, the usageof the aircraft-bomb so that it could be launched with supportof
the rocket-engine was mentioned for the first time approximatelya year before the flights of the
Air-forces of the Anny of the Serbian Republic [VRS] were forbidden.The idea itself came from
East-Bosnian Corps of the VRS. Thismanner of the usage of the aircraft-bombswas not the topic
of the conversationsin the Mainof the VRS, or on the Collegiateof the Cornrnanders.As far
as 1remember, deceased General RajkoBalac talked about such a usage of the aircraft-bombs to
General MladiC.It was strange to me that my sector did not know anything about that,and in that
conversationdiscovered this methodof usage of the aircraft-bombs.1did not know anything
about the invention, ideas and developmentof this system,but 1knew that the first launchings of
thismodified rocket system were unsuccessful.1heard that in conversation withthe offices. It is
knownto me that thefirst systems used one rocket-engine as propellinggear, and that was the Chapter 8 -Section 1O
Yugoslavia'scontinuing supply of the Bosnian Serb Army
reasonfor unsuccessful launching.Afrer the construction of therocket group with two or three
engines was done, the launching probably became moresuccessful, and according to my opinion,
that modzj7edsystem withfour rocket-engines should be themostprecise. 1think that the maximal
range of this systemis about two kilometres. After having been convincedin the eficiency of this
system, MladiCgave the order to al1Corps to start producing the launchers.1know that MladiE
gave an order to make those launchersto al1Corps of the Amy of the Serbian Republic
[Republika Srpska]when he was in contacts with Commandersof the Corps and during the
encounters with Commanders.The launchers were madein the Corps. 1am positivethat nobody
from the Main HQ of the VRS, exceptMladiCand Balac, worked on thisprogram. Launchers were
produced in the following Corps: Herzegovina, Drina, Eastern-Bosnia, Sarajevo-Romanija and 1st
Krajina Corps; in some of the Corps,1do not know in which, there weretwo launchers. TheArmy
of the Serbian Republic [VRS] had already the bombs usedfor this modijîedrockets system. The
largest number of the bombs was located in Banja Luka area,then, 1think that there were bombs
in the warehouses in Koran [near Pale], and it was possible that there were bombsin Herzegovina
in the Duz warehouse. When the engines wereprovided, the bombs were transferredto thefactory
'Preti'in VogoSCa,where they were equipped withengines.
The Government of the Serbian Republic boughtthe enginesfor this modijîed rocket system. I
remember the statement of General Mladik in the autumn of 1994.On that occasion MladiCstated
that he succeeded to get rockel-engines throughthe Government. But, it was obvious thatngines
were supplied on Mladik'srequest. The details about the obtainment of the engines as well as the
country of purchase were not knownto me, and I, personally, never saw this modzj?edrocket
system. gthe rocket-engines type 'Grad'were in question, then the country of their origin was
Russia or more precisely, they wereproduced in Russia. Regarding the applicationof this rocket-
systems, 1 have to emphasise that 1knew that the engaging was suggestedby the Commanders of
the Corps, and General MladiCapproved it. Once 1was present during the conversation between
General MladiCand a Commanderof the Corps, when GeneralMladiCin conversation with this
Commander of the Corps of the VRS, approved the use of this weapon. 1 am positive that nobody
else but General MladiCcould approve the usage of this system and that each usagewas approved
by General MladiCpersonally. Ihave topoint out that the aircrafr-bombsof 100, 150,250
kilograms were usedfor this system and thatI do not know the total number of the equipped
aircrafr-bombsas well as the number of discharged ones. 1do not know the scale of damage this
systerncan cause, but regarding the weightof the aircrafr-bomb,it could be enormous. 1have
never seen the effects of this system, and1found out for its usage through the mass-media.In the
reports on usage of this modifiedrocket system, there was not direct mentioning ofthe aircraft-
bombs, and Commanderof the Corps informed MladiCabout the usage ofthis system forming a
sentence: 'boss, that,what we agreed upon, was used', and using thearne formulations, they asked
for the permission forthe further usage.'[Statement of General DjordjeDjukiC,Feb.
1996, pp. 2-4, emphasis added, Annex 1401.
The avio bombs were specially developedto bomb civilian targets, such as the city
of Sarajevo. Theyhad no military value orpurpose whatsoever.
The suppliers
394. The mortar rounds, mines, bullets,rocket engines, avio bombs and other "weapons
for operational support" were procuredfiom various military factoriesand
institutionsin the Federal Republic of Yugoslavia.Important suppliersof arms and
ammunitionwere, for example,the Military TechnicalInstitute (VTI) in Belgrade,
where the so-called "weaponsfor operational support"were produced [op. cit. LetterReply of Bosnia and Herzegovina
strictly confidential 17, fiom Pretis to Chief of Staff of the Army of the Srpska
Republika, 19 Feb. 1994, signedEcimovil.Radmomir, Annex2401,the KruSik
factory in Valjevo [Information,str. class. no. 88/94, from Pretis Holdingto General
Staff of the Army of the Srpska Republika,04 Apr. 1994, signed RadomirEcimovie,
Annex 2431,and the Technical Maintenance Institutein Kragujevac.Al1mentioned
factories were locatedin the Federal Republic of Yugoslavia.
395. Unis Pretis signed an importantcontractwith the military production facility in
Kragujevacon 20 July 1995.This contractwas agreed upon immediately afterthe
massacre at Srebrenica [see Reply, Chapter 5, Section 81.This contract was also
found at the premises, after the factory had been reintegrated intothe Federation:
"CONTRACT
Concludedon 20.07.1995
between:
1.TECHNICAL-UAINTENANCE INSTITUTEKRAGUJEVACrepresented by Colonel
Todorovit Borislav, mana(theseller)and:
2.UNISHOLDINGPRETIS -VOGOSC representeby MotikaMilorad,B.Sc. eng.,
manager,(thebuyer)
Article1.
The subjectof thisContractis buyingandsellingof militaryhardware.
Article. Chapter 8 -Section 10
YugoslaviaScontinuing supply of the Bosnian Serb Army
The sellersells and the buyer buys thefollowing kind of military hardware:
I. Mines 60 mm in the quantity of 5000pcs.
2. Mines 82 mm in the quantity of 5000pcs.
3. FAB type 100 in the quantity of 1O0pcs.
[high-explosive avio bombs]
4. FAB type 200 in the quantity of 1O0pcs.
5. Bullets 7,62 mm AP and PAP in the quantity of 2.000.000pcs
[automatic and semi-automatic rijles]
6. Framefor automatic rijles in the quantity of 2.000pcs
7.PrimaryPlling M 74 in the quantity of 5.000pcs
Article 3.
Prices, delivery deadlinesand other concrete terms for the realisation shallbe defined by the
annexes to the present contract, which willbe attached hereto and represent itsral part.
Article4.
Parties to the present contract have agreed and undertaken the obligation to apply the current
standard of the Army of Yugoslaviaand PKP ut the realisation of the present contract.
Article 5.
Any disputable issue that may appear in the realisation of the present contract will be settled in
accordance with the Rules of Procedure of Military Institutions and before the relevant Economic
Court in Kragujevac.
Article 6.
The present contract comes into force by its signing by both parties andits implementation starts
fiom 20.07.1995.
The present contract is done in four equally authentic copies with annexes thereto, which represent
an integral part of the present contract.
Kragujevac 20.07.1995
SELLER BUYER
Colonel TodoriviCBorislav Motika Milorad, B.Sc.eng
[signedand sealed]"
[Contractbetween TechnicalMaintenanceInstitute Kragujevacand Unis
Holding Pretis - VogoSCa,concluded on20 July 1995, emphasis added,Annex
2421.
This contract with the Technical-MaintenanceInstitute in Kragujevac was signed
alrnostone year after the last solernnproclamationof the Yugoslavauthoritiesthat
they would definitively stop aiding the Bosnian Serbs. The plant in Kragujevacwas
representedby its manager, a colonel in the Yugoslav Army. The Technical-
MaintenanceInstitute was thus controlledby the Yugoslavmilitary.Reply of Bosnand Herzegovina
396. The military hardware mentioned in the above cited contract was bartered for
commodities produced in Bosnia and Herzegovina.In exchange for various types of
munition, the Unis Pretis factory suppliedthe institute in Kragujevac with lumber,
steel profiles, metal frameworks, Golf engines and bearings for railway carriages
[Compensational Contract between UnisHolding Pretis - VogoSCaand Technical
Maintenance Institute Kragujevac, Ref. 819-1, concluded 24 July 1995, Annex 2441.
The mentioned contracts illustrate that Unis Pretis was authorised to enter into
agreements with Yugoslav parties and that it sometimes even engaged in bartering
products which it did not produce itself.
The international observers
397. On 4 August 1994,the Respondent again announced that it would stop supplying the
Bosnian Serbs. In reaction to this announcement, the International Conferenceon the
Former Yugoslavia Missionto the Federal Republic of Yugoslavia deployed several
dozens of observers on the border between Bosnia and Herzegovina and the Federal
Republic of Yugoslavia. The results of the work done by these observers were sent
to the United Nations Security Council every thirty days. The documents presented
in this Section, however, illustrate that,even after 4 August 1994,the Respondent
continued to support the war efforts of the "Republika Srpska",the traffic across the
border canied on without interruption or impediments. The international monitors
deployed in the border area, in fact, did not succeedin controlling the traffic across
the border effectively. The Yugoslav authorities continuously fooled the international
observers, who regularly intercepted small deliveriesof relatively unimportant
commodities, but structurally failed to stop or even notice those border crossing that
really mattered: oil tankers carrying fuel for the Bosnian Serb Army and trucks
transporting al1sorts of military equipment.
398. The failure of the international cornmunityto effectively controlthe so-called
embargo the Respondent announcedon 4 August 1994,is best illustrated with the
following example. On 7 July 1995, Unis Pretis sent a telex to a Bosnian Serb Army
base in Bijeljina, in the northeast of Bosnia. In this telex it told the army unit to
transport a load of gunpowder back across the border to Valjevo in Serbia proper:
"UNIS PRETIS HOLDINGCO.VOGOSCA
35TH REAR BASE - BIJELJINA
BIJELJINA Chapter8 -Section 10
Yugoslaviacontinuing supply of the Bosnian Serb Army
our ref. ERIC81 date07.07.1995
SUBJECT: Recurrence of Gunpowder; request
Gunpowder type NGB 161 in the quantity of 929,7 kg has been delivered by mistake to PRETIS
instead of Kruii-Valjevo. Gunpowderis intendedfor the production of gunpowderfilling vpe
OP-H74for 120mm mortar rounds inKRUSIK - Special Purposes Production.
Please transport it back to Valjevo.The General Staff of the Amy of the Republic of Srpska,
Logistics, Lieutenant-ColonelCvijeti M. has been informedabout it.
Best regards,
CO.
archives PRETIS HOLDING - TECHNICAL MANAGER
Colonel ECimoviCRadomir, B.Sc.eng.
[signature andstamp]"
[Letter from Unis Pretis Holding to 35th Rear Base - Bijeljina, 07 July 1995,
signed ECimoviCRadomir, emphasis added, Annex 2451.
As mentioned above, the KruSikfactory is based in Valjevo, approximately ninety
kilometres southeast of Belgrade. This letter shows that a large amount of gunpowder
crossed the border between the Federal Republic of Yugoslavia and Bosnia and
Herzegovina twice within a short period. The fact that the factory returnedthis
considerable amount of gunpowder to Serbia, in the middle of an intense armed
conflict, in addition illustrates the confidencethe Bosnian Serbs had in the efficiency
of the Yugoslav deliveries. Despite the "embargo" and the international observers
controlling the cross border traffic, they apparently had no fear whatsoever of the
supplies coming to an end.Reply of Bosnia and Herzegovina
399. On 3 August 1995,the International Conferenceon the Former YugoslaviaMission
presented its periodic report coveringthe period during which the mentioned
transports of explosivestook place [United Nations, LetterDated 3 August1995
JFomthe Secretavy-GeneralAddressed tothe Presidentof the Securis Council,
Sl199.51645,3 Aug. 19951.The observers reported numerous violationsof the
"embargo":they, for example, reported no less than 492 illegal crossingsof unarmed
and occasionallyarmed uniformed personnel [ibid,p. 5, paras. 14, 151and they
established numeroushelicopter crossings, which the Yugoslavauthorities later
claimed were "medicalevacuation flights" [ibid,p. 6, paras. 19,201.The
International Conference on the Former Yugoslavia Missionfailed, however, to
observe the border crossingsof the gunpowder referredto in the above quoted telex.
400. On 11 August 1995, a different truck filled with, among other things, 12,000
kilograms of TNT crossedthe border between the Federal Republicof Yugoslavia
and Bosnia and Herzegovina[Fax from Pretis Holding Co. - VogoSCato the Ministry
of Defense of the Srpska Republika, 11 Aug. 1995, signedby Motika Milorad,
Annex 2461.Again, the International Conference's Mission failed to noticethis
massive shipmentof explosives [UnitedNations, LetterDated 3 August1995pom
the Secretav-General Addressed tothePresidentof theSecuriq Council,
Sl19951768,6 Sep. 19951.
401. After 4 August 1994,border crossings between the "Republika Srpska"and the
Federal Republicof Yugoslavia thus went on with clock-like regularity. In May
1995, the transport of goods across the borderwas even formalised, as is illustrated
by the following telex sent to Unis Pretis by the Bosnian Serb Ministry of Defence
on 22 May 1995:
"Ministryof Defence
Highlyrestricted,nurnber-21-2179195
Date:22 May 1995
To: Cornpaniesforspecialproduction[factoriesfor theproductionof weaponry];Maintenance
Institutes
Subject:Transportof goodsacrosstheborderwiththeSRpederal Republicof Yugoslavia]
At the level of theGovernmentof theRepublic of Srpskathe transportofgooh RSom the
[Srpska Republika] tothe SRI [Federal Republic of Yugoslavia] and viceversa is organisedas a
permanentactiviy for the companiesfor special productionand maintenanceinstitutes being part
of the VRS[Bosnian SerbArmy]. Chapter 8 -Section 10
Yugoslavia'scontinuingsupply of the Bosnian Serb Army
Informing you on this, if you havenow prepared goods for transport to the SRJ or goods in the
[SIRJ prepared to be transferred into the RS, itis necessary you inform us immediately onkind
and number of transportationmeans by which the prepared goods willbe transported, so that the
organisation of transportation couldbee according to that data.
Please send data coded and keep them as highly confidential.
Deputy Minister
for Military Economy
ColonelOrasanin Spasoje, B.Sc. Machine Eng.
Deliver to:
1x Pretis-VogoSEa
1x 'Rudi cajavac' B. Luka
special production
1x 'Zrak' -Teslié
1x 'Trudbeni' -Doboj
1x RZ 'Kosmos' - B. Luka
1x TRZ HadZiCi
1x VZ 'Orao' Rajlovac
1x 'KovaEnica'BileCa
1x 'Niski napon' Doboj
22.05.'95
[signed"
[Ministry of Defence, Telex, Transport of goods across the border, addressedto
companies for special production, signed ColonelOrasanin Spasoje, 22 May
1995, Annex 2471.
In May 1995, almost one year after the imposition of the alleged "embargo"by the
Yugoslav authorities, border transport was thus "organisedas a permanent activity".
402. How the border controls were circumventedwas later clarified by General Djordje
DjukiC.After his arrest by the Bosnian authorities in the vicinity of Sarajevo, DjukiC
released the following statement, explaininghow the Respondent misusedthe
Yugoslav Red Cross to mislead the international observers:
"~he transport of the collected material and goods we got on the different ways, including
humanitarian relief whichwas used for the needs of the ASR WRS], was done on the following
manner: Lieutenant ColonelGajié,superior of the Commissariat in the MainHQ of the Amy of
the Serbian Republic, afterhe had collectedthe goods on one place, madean inventory list
according the sorts andantities of the goods andhe went with that list to the Red Cross of
Yugoslavia tomake according to that list an Inventory listof the Red Cross which was verified.
With the verified Inventorylist of the Red Cross of Yugoslavia and with collectedgoods we went
to the International Custom Control. The Control could bedone in Belgrade, on Sajmiste, in
Sremska Mitrovica and Novi Sad.During the inspection, theforeign custom-officers compared the
verified Inventory list ofthe Red Crossof Yugoslavia with goods, the goods were loaded on the
vehicles andthen they sealedthe vehicles. Suchsealed vehicles withproper documentationin
which was stated that thehumanitarianaid was transportedand in whichas thefinal userwas notReply of Bosnia and Herzegovina
mentioned the Army SR [Srpska Republika], came across the borders of the Federal Republic of
Yugoslavia and the Serbian Republic without anyems.Thevehicleswithcivil register plates
whichhadbeen previously mobilizefortheneedsof theASR wereusedforthetransport."
[Statementof GeneralDjordje DjukiC,5 February 1996, emphasisadded, p. 41.
The Belgrade authoritiesused other methodsas well to deceivethe international
comrnunity.After August 1994,suddenlyfifty to sixty oiltankers a week began
showingup at the border crossingwith Bosnia and Herzegovinawith papers
indicating that they weretravellingto Croatia [Stephen Engelberg & Eric Schmitt,
InternationalHerald Tribune, "MiloSevitstill sending aid", 12 June 1995,Annex
1581.The international observerswere, becauseof their limited mandate,not allowed
to stop these transports, nor were they ableto controlwhether these trucks ever
reached their destinationin Croatia. They, however,did assumethat the oil tankers
dropped their cargo in Bosnia and Herzegovina[ibid].
Epilogue
403. The documents quotedin this Sectionclearly illustratethat the Yugoslav authorities
indeed continued to support the Serbgenocidal effort throughoutthe conflict. Despite
the often repeated claims to the contrary, the Respondentcarried on supplyingthe
Bosnian Serbs on a massive scale.The assistance given tothe Bosnian Serbs
illustrates the purelycosmeticcharacterof the NA transformation. The Belgrade
authorities carried on sending goods acrossthe river Drina, in spite of the fact that
the 2nd Military Districthad supposedly been disbandedon 19 May 1992 [see
Reply, Chapter 8, Section41.
404. The continuouscharacterof the aid given by the Respondent wasalso explainedby
General Djordje DjukiCduring his interrogationsby the Bosnian authoritiesin
February 1996. GeneralDjukiCwas, as mentionedearlier [Reply, Chapter8, Section
81,in charge of the logisticsof the Bosnian Serb Army. In that capacity, he regularly
visited the authorities in Belgradein order to secure suppliesfor the Bosnian Serb
Army :
"~urin~ my stay in the Serbian Republic [Republika Srpska], due to my professional duties and
tasks,1went to the territory of the Federal Republic of Yugoslaviaseveral times. In 1992 and till
the end of 1993, 1 went to the Federal Republic of Yugoslavia (FRY) approximately once in three
months, while in 1994 and 1995 1 went in FRYroughly once a mIpointed out that sometimes
I went to the FRYeveral times in a month, depending on the neDuringmystaysinthe
FRY, 1contactedMilitaryandCivilstructuresof theFRY1hadto remarkthat1madethose
contactsonlyto providesuppliesfortheneedsof tArmy of theSerbianRepublic(ASR),and
neverto arrangesupplyfor theCivilianstructuresof the SerbianRepDuring my visits to the
FRY, I made contacts with thefollowingisters in the Government of the Republic of Serbia: Chapter8 -SectionII
ForcedrecruitmentintheFederalRepublicof Yugoslavia
Ministerfor the ConnectionswithSerbsoutof Serbia,Minkterfor thePrivateSector,Ministerfor
the Economy andMinisterfor the Energy.1thosecontactsweremadein ordertoprovide the
suppliesfor theAmy of the Serbian Republic [Bosnian Sbrmy].Regarding that, 1talked with
the Minister for the Connection with Serbs] Serbia about al1requests sent to the civilian
structures, trying to make a good use of his position. With the Minister for the Private Sector, 1
talked about the engagement of the Private Sector in gathering the aid or in giving the various
assistanceto the ARS [Bosnian Serb Amy] like: supply of the smaller quantities of the shoes,
spare parts, reparation ofthe vehicles, etc. With the Minister for the Economy,he
possibilityto obtainort permission forthe goods fromhis domain, basically for food-stuffs.
Namely, the Minister for the Economy was authorizedto issue the permission for the goods which
were restricted for the export from Serbia, andhe also knew the quantities of the Reserve
Materials, what is also under hisjurisdiction. With the Minister for Energy, 1basically talked about
heating-oiOn this manner, 1succeededto provide abo150tons of oil every year, which we
used for heating the Command place and for the needs of then command Banja Luka and
rnilitary barrack "Vrbas". 1would like to mention thatthe naphtha was provided through the
Govemment of the Serbia Republic and thatd not get it on this wa[Statementof
General Djordje DjukiC,5 Feb. 1996, emphasis added,pp. 1-2, Annex 1401.
The arrangementsfor the supply of the Bosnian Serb Army, which went on until the
day DjukiCwas arrested,were thus made at the highest level in Belgrade and
involved al1important Ministriesof the Republicof Serbia. Without the intensive
involvementof these Ministries and organisationssuch as ZINVOJ and also the
Yugoslav Charnber of Commerceand Industry [YugoslavChamber of Commerce
and Industry, Invitation for 18thSession addressedto Unis Pretis, No. 021011 8, 14
April 1994,Annex 2481,which continuedtheir supportingand coordinating activities
as if Bosnia andHerzegovinahad never gained independence, theBosnian Serb
economy and,with it, the Bosnian Serb Army, wouldhave collapsed soon after the
"withdrawal"of the JNA in May 1992.If the Federal Republicof Yugoslavia had
cut off dl supply lines with the Bosnian Serbs, thegenocidal conflictwould not have
lasted for alrnostfour years. Accordingto Lord David Owen,European Community
mediator andCO-chairman of the Peace Conference onthe former Yugoslavia,the
"Serb rnilitary operation in Bosnia"would then have ground "to a halt within a
week" [Memonal, p. 83, para. 2.3.7.1.].
11. Forcedrecruitmentin the Federal Republicof Yugoslavia
Introduction
405. This Section of the Reply will be entirely dedicatedto one phenomenonparticular to
the armed conflict in Bosnia and Herzegovina.The Applicant will show the Court
that the Respondent forced many Serb men living in the Federd Republic of
Yugoslaviato participate in the fightingin Bosnia and Herzegovina.These men,Replyof Bosnia and Herzegovina
often but not always Bosnian Serb refugees,were forcibly mobilisedby the
Respondentinto the Bosnian Serb Army. After being arrestedin the Federal
Republic of Yugoslavia, the new conscriptswere transferred toBosnia and
Herzegovina,where they were deployedon the front.The Applicant willalso
demonstrate that these forced mobilisations continued throughoutthe entire conflict -
that is, until the summer of 1995 -and that theywere organisedunder the authority
of the Serbian Ministry of the Interior in Belgrade,in close cooperationwith the so-
called bureauor office of the "Republika Srpska"in Belgrade.
Counter-Memorial
406. In the Memorial,the Applicant quotedtwo British newspaperreports on the forced
mobilisation campaigns, explainingthe involvementof the authoritiesin Belgrade
and the fact that the Bosnian Serb refugeeswere handedover to military in the
"Republika Srpska" [Memorial,pp. 84, 85, para. 2.3.7.51.In spite of this reference
made to the campaign in the Memorial, the Respondent completely ignored the topic
in the Counter-Memorial.The Respondent, tobe sure, quoted Ilija DjukiS,Yugoslav
Minister for Foreign Affairs,who in November 1992 solemnlydeclaredthat "the
Federal Republic of Yugoslaviais stronglyand persistently pursuingefforts aimed at
helping end the military operationsin Bosnia and Herzegovina" [Counter-Mernorial,
p. 280, para. 3.4.1.9.1,but it failed to explainhow the press-gangingof refugees was
supposedto contribute to this aim. The mobilisation campaignsof the Belgrade
authorities had, of course, the oppositeeffect,sincethey only contributedto
prolonging the armed conflict and thus genocidebeing committedin Bosnia and
Herzegovina. As a result of the "efforts"of the Respondent, the Serbswere able to
cany on their offensives in Bosnia and Herzegovina untilthe very end of the
hostilities,the brutal take-overof the Srebrenicasafe area being the mosttragic
example.
The mobilisation campaigns
407. Once it became clear that the resistanceof the Bosniangovernrnentwas harder to
overcome than the Serbs had originally thought,the Serbs started filling up the rads
of the Bosnian Serb Army with recruits from the Federal Republicof Yugoslavia.
The majority of the recruits were Serbswho had lefi Bosnia and Herzegovinaat the
beginning of the war to avoid the fighting and military service.There were,
however, exceptions to this rule. Often Serbs without any Bosnian antecedents were
recruited as well. [UnitedNations, Situation of Human Rights in the territory of the Chapter8 -Section II
Forced recruitmentin theFederal Republicof Yugoslavia
former Yugoslavia,FinalPeriodic Report submittedby Mr. Tadeusz Mazowiecki,
Special Rapporteur ofthe Commissionon HumanRights,ElCN.411996192 , 2 Aug.
1995,p. 23, paras. 115-1161.
408. The Belgrade authoritiesnot only mobilised Serbs forthe Bosnian Serb Army, they
also recruited for the army of the so-called "Republika SrpskaKrajina" in serb-held
Croatia.
409. The mobilisationcampaignswere not incidental.The forced recruitmentby the
authorities of the Federal Republicof Yugoslaviain fact continuedthroughout the
entire conflict.
410. In February 1993, the first reports on the unlawfulrecruiting of Serb men reached
Tadeusz Mazowiecki, Special Rapporteurof the UnitedNations Commissionon
Human Rights. On 17November 1993,he reportedthat 500 Bosnian Serb refugees
were arrested by the Serbian authoritiesand sent backto fight withthe Bosnian Serb
Army :
"186. In Febmary 1993, the Conference on Security and Cooperation in Europe (CSCE) mission in
Vojvodina received reports of the unlawful recruitingof Serb refugees from the so-called Republic
of Serbian Krajina by 'armed gangs',who took them fromthets and sent loaded trucks of
'volunteers' directlyto the front. TheSpecial RapporteurSstaff was informed that aftera group of
500 Bosnian Serbrefigees arrived in a refigee centre inSremskaMitrovica[Serbia] in March
1993, the men were takenfrom the camp and sentto thefiont, certainly withthe knowledge of the
camp authorities.As a result of these and similar incidents,refugees of military age are reluctant to
apply for refugee status, fearing this will simply serveto bring them totion.
187. The Yugoslav Govemment told the Human Rights Committee in November 1992anat
amnesty would be granted to those who had desertedfiom the federal army,or who had failed to
obey the orders of theitq authorities.
However, no amnestyhas been granted[UnitedNations,Situationof HumanRights
in the territory oftheformer Yugoslavia,FifCh Periodic Report submittedby
Mr. TadeuszMazowiecki, Special Rapporteuo rf the Commissionon Human
Rights, ElCN.411994147,17Nov. 1993, p. 27, para. 186-1 87, emphasis added].
At the sarnetirne, similar reports about the forced recruitmentof refügees started to
appear in western newspapers,such as the British daily The Telegraphand The
Guardian[MichaelMontgomery & Adrian Brown, "Time running out to avoid a
new conflict, Serb leaders tell UN", TheTelegraph,9 Feb. 1993,Annex 249; Yigal
Chazan, "Krajina rebels draft refugees", TheGuardian,17 Feb. 1993,Annex 2501.Reply of Bosnia and Herzegovina
411. As the mobilisationcampaignwent on,it became a regularlyreturningtopic in the
media and in the reportsproducedby the Special Rapporteur.On 31January 1994,
that is, almost one year after the first reported incidenthad taken place, the
"RepublikaSrpska"governrnent ordered a full-scale mobilisation and as a
consequence,hundreds of refugeesin Serbiaproper werearrested and transportedto
Bosnia and Herzegovina:
"on Monday, the Bosnian Serbs ordered full-scale mobilisation, whofficiaiyesterday
protested that hundreds ofrefugees in Serbia were being roundedup in night-time raids and press
ganged into the Bosnian Serb army. Western diplomatsin Belgradesnian Serb malesin the
city were desperate for forged identification documents, and that the Sers ere usingitiew
Red Cross lists of foodparcel beneficiariesto trace and dragoon male[Ian Traynor
& Ian Black, "Bosnianwar set to intensifyas Muslimshold out", The
Guardian,2 Feb. 1994,p. 22, Annex 2511.
The forced recruitmentswhich followedthe mobilisationcal1in the beginning of
1994 were also reportedby some Yugoslavmedia, albeit sparingly, such as the
Belgrade-based magazineSrpskaRei [Petar CosiC,"Do you know that the fatherland
is calling again?",SrpskaRec, 31 Jan. 1994, Annex2521.
412. In February 1994, Mazowiecki noted thatthe mobilisationof Serbmen through
forced recruitmentcontinued:
"135.The Special Rapporteur has continuedto receive disturbing reports conceming the
refoulement of Bosnian Serb and Bosnian Muslimrefugees through forced recruitment,primarily in
refugee centres in Belgrade and other cities, for combatin the Republic of Bosnia and Herzegovina
and the Republic of Croatian one recent case alone, at least 26 Bosnian Serb malesof fighting
age were rounded up at a refugee collection cKOSOVO." [United Nations,Situation
of HumanRights in the territoryof theformer Yugoslavia,Sixthperiodic report
submittedby Mr. Tadeusz MazowieckiS , pecialRapporteurof the Commission
on HumanRights,E/CN.4/1994/110,21 Feb. 1994,p. 23, para. 1351.
In the followingmonths, the mobilisationof refugees went on, althoughon a
somewhat smaller scale than before pnited Nations, Situationof HumanRights in
the territory of theformer Yugoslavia, Sixthperiodic reportsubmittedby Mr.
Tadeusz Mazowiecki,Special Rapporteurof the Commissionon HumanRights,
E/CN.4/1994/54,31 Oct. 1994,p. 31, para. 178; "Bosnia-Herzegovina - 'You have
no place here': Abuses in Bosnian Serb-controlledareas",Amnesty InternationalA , I
index: EUR 63111/94,June 1994,p. 5, note 7, Annex 651.
Thesummerof 1995Reply ofBosniaand Herzegovina
414. The British-basedJane SIntelligenceReview,publishedby the authoritativeBritish
intelligence instituteJane 's,was amongthe western sourcesreporting on the
carnpaign, stressing its nation-wide dimensions:
"on 11 June 1995, a mass round-upof ethnic Serb refugees in the province of Vojvodina began
and within weeks mushroomed into arump Yugoslav-wide campaign.State police becarne involved
in the press-ganging of youths who were shipped across the bordertoin Bosnian-Serb and
Croatian-Serb territor[Stan Markotich, "Security Notes:A roundup of recent
security news from Europe", Janes IntelligenceReview,Nov. 1995, p.484,
Annex 1751.
415. More than the previous mobilisations, the campaigncarried out in the summer of
1995was also discussedand reported by the Yugoslav media.On 28 July 1995, the
Yugoslav magazineNIN, for example,published an article on a small hunger strike
which was organisedin Belgradeby women whosesons or husbandshad been
forcibly recruited. The articlein NINwas written by Dragomir OlujiC,a member of
the "support committee forhunger strikers in front of the Presidencyof Serbia":
"Margita Nisacki and Milic Radulovic are already for the tenth dayin hunger strike in front of the
Presidency of Serbia.til Saturday, with them was also Biljana Mrdalj-Radulovicbut she had to
leave therotest because of health reasons.They are demandingthat Margita's son,Sasa Misacki,
and Biljana's husband and Milica's brother in law, Dejan Mrdalj, be retumed from the battle field
in the border areas, where they have beentaken by force in the framework of the so-called
mobilisation!
(-1
Margarita and Milica have tried to solve their problemby other methods before theytumed to the
hunger strike. Theywere visiting the administrative andthe authority-from the local police
stations to minister Sokolovic, presidentof Serbia Milosevic and presidentofral
Republic of Yugoslavia] Lilic.Nobody wanted to receive them or listento them. They were
sending telegrams and letters. Nobody answered. They also tumed to militas, organs and Chapter 8 -Section II
Forced recruitmentin theFederal Republic of Yugoslavia
authorities of the so-called Republika Srpska Krajina,but also fiom-tno response at all! They
did not succeed to make any contact at1with Sasa and Dejan. In the hopeless situation they have
decided to start a hunger strike.
Citizens that were gathered on the sessioUNI Beogradski hg [Belgrade circle] on Saturday
22 July, have decidedto form a support committee for the hunger strikersin fiont of the
Presidency of Serbia andto help them to achieve their goals,to ease their suffering andshow their
solidarity with al1those who are affectedwith the (once more) forced mobilisation, more precisely
with the kidnappingof citizens for the war that theydo not want. Some moneywasollected, Zene
u cmom [Women inblack] brought them clean clothes, means for hygiene and medicine,
inhabitants were visiting them
Also others whosesons, husbands and brothers were kidnapped have startedto accompany them.
After last night's informationon NTV Wight Television] StudB, a couple of women fiom their
(new) neighbourhood brought them juice, coffee.
Our friends, mainly doctors andlawyers, are exercising their professionin order to help achieving
the strikers' wishes. Their health conditionis being checked regularly, althoughwe did not make
contact with the Srpsko lekarskoustvo [Serbian Doctors Association].
Although no one from theadministrativeand state (including military) organsis reacting, the mood
of the officiais is changing. For example, Mihalj Kertes [secret police] has yesterday answered
rudely to the appeal of the strikersto help them that he did not send their relativesto thee,
and today, after NASA BORBA has published his reaction, he has promisedl1the help. Mayor
Covic wished them luck!
Many parents, sisters, brothers and relatives are fiightenedthat they could, with their protests,
'hinder' those who are taken by force to the first front lines. Only the public opinion couldSave
their nearest. Every informati-name and family name, their location, and what are they do-ng
is breaking the walls of silence.
We ask al1inhabitants of Belgradeto show solidariîy for the demandsof the hunger strikersand to
help them, by visiting them and by talking with them,to keep on and bring back their dearest!"
[DrogomirOlujiC,"Theydefendthemselvesby means of the public opinion",
NIN, 28 July 1995,Annex 2531.
At the time the above quoted letter was published, other Belgrademedia started to
report on the mobilisationsas well, such as Vreme,arguably the only printed
medium in the Federal Republicof Yugoslavia which consistently succeededin
maintaining independence fromthe Belgrade authoritiesduring the years of the
conflict in Bosnia and Herzegovina [DejanAnastasijeviC,"Tribute in blood", Vreme
International, 26 June 1995, Annex 254;Filip Svarm & Milos VasiC,"The Danaean
gift: forced mobilisation - background", VremeInternational, 3 July 1995, Annex
416. As mentioned above, not only Serb refugeeswere the victims of the mobilisation.
Al1men who were born or had lived in Bosniaran the risk of being arrested. On28
June 1995, the Belgradebased non-governmentalorganisation"Womenin Black -
also referred to in the above cited letter - published a reporton the campaign,
confirming its comprehensive character:Reply of Bosnia and Herzegovina
"~irst week onlythose related to Croatia were rnobilized andstarting fiom 18thof June also
refugees and people bom in Bosnia are picked up and sent there. Unliketheformer actionswhen
only war rejùgees (drap evaders and deserters) were mobilized,this timethe target are all men
(18-60) born or originat[ing] in Croatia and Bosnia,regardless of citizenship(manyhave Serbian
because they came long before the war) or rejùgee staius (internationalhumanitarianprotection)
etc.They also are mobilizing peoplefiom Bosnia and Krajinawith permit to stay in Serbia. The
rnostabsurd cases are mobilization of men rnarriedto wornen from Croatia or those who worked
for few years in Bosnia and Croatia but always remained Serbian citizens.Furthemore there are
cases of mobilized Yugoslav (Serbian) citizens. There are sorne cases where rnobilized people with
Serbian citizenship protested andnvards were released because of a 'rnistake'. Opinionof rnany
is thatrnistakes'are done by intention. Those Serbian citizens, whosefamilies don't protest or
don'tknow that they have the right to protest, rernain in[BojanAleksov, "Report
on new mobilization in Serbia since 11th of June 1995", Womenin Black,
Belgrade, 28 June 1995,emphasis added, Annex 2561.
417. In the beginning of August 1995, over100forcibly recruited Serbs were capturedon
the battlefieldsof Bosnia and Herzegovina.The recruitswere taken prisoner when
the Bosnian Army launched alarge attack on the BihaCfront. After their capture, the
draftees were filmed by a television crew and their report waslater shown on both
Croatianand Bosnian television. Al1prisoners shownin the report had been drafted
forcibly in the Federal Republicof Yugoslaviatwo months earlier, during the
campaign canied out by the Belgrade authoritiesin the summer of 1995.
418. While the large mobilisationcampaign was sweeping the Federal Republic of
Yugoslavia, SerbianPresident Slobodan MiloSeviCclosedthe Yugoslav borderfor
other draft-age Serbswanting to escape Bosniaand Herzegovinainto Serbia proper.
This was seen by western diplomatsas part ofMilosevic'spolicy to help the Bosnian
Serb Army [John Pomfret, "Serbiaseen still aidingwar effort", WashingtonPost, 4
July 1995,Annex 1561.By the sumrnerof 1995,new passports couldonly be
obtained by women, and men below the age of sixteenand abovethe age of sixty.
Men between the age of sixteen and sixtyhad to submit a "certificate"of the
"Republika Srpska"to prove they wereunfit for rnilitaryservice acrossthe border
["Reporton the State of Human Rights in Serbia, HelsinkiCommitteefor Human
Rights in Serbia, Dec. 1995,p. 26, para. 105, Annex1661.
Theextent of the mobilisations
419. The valuationsof the nurnber of people drafted for the conflict in Bosnia and
Herzegovinaand the "Republika SrpskaKrajina"vary. This is, of course, due to the
fact that the mobilisationcampaignwas canied out in relative secrecyand that the
Belgrade authoritiesinvolved in the campaign tried to avoid publicityas much as
possible. "Womenin Black", the non-govenunentalorganisation mentionedearlier, Chapter 8 - Section II
Forced recruitment in the Federal Republic of Yugoslavia
estimated the number of refugees involved on 6,000 to 20,000. This estimate was
based on nurnbers publishedin Vreme:
"Official state media do not report anything on mobilization,besides one article in Ekspress
Politika (June 20) saying that this is another lieof antiwar activists, alreadyfamous Serbian
traitors. Alsothe Ministry of Intenor Affairs gave a declarationat 24th of June that the controls
have only the goal to find persons [who] 'reside illegally' or 'are enginedriminal activities and
other delinquentacts' (...). Meanwhile thousandsof people (Vreme estimated onJune 19 fiom 6000
- 20000) were caughton streets, cafes, restaurants, students dormitories, graduation ceremonies,
refugee camps. Huge raids are taken and al1buses and trainsare checked. The most difficult
situation is in Vojvodina [closeto the Hungarian border] where most of people connectedto
Croatia iivew.[BojanAleksov, "Reporton new mobilizationin Serbia since 1lth
of June 1995", Womenin Black, Belgrade, 28 June 1995, Annex2561.
When General Djordje DjukiCwas arrested by the Bosnian authorities on 30 January
1996 [see Reply, Chapter8, Section 81,he also gave a statementon the forced
recruitment in Yugoslavia. His estimates weremore conservative, as he declared that
al1in al16,000 refugees were mobilised: 4,500 forthe "Republika Srpska Krajina"
and 1.500 for the "Republika Srpska" [General DjordjeDjukiC,First statement
regarding the background of his activities in the main HQ of the Army of the Srpska
Republika, Feb. 1996,p. 8, Annex 1401.
Belgrade S involvement
420. The mobilisation of the Serb men in Yugoslaviawas carried out in a systematicway
by the Respondent.This was found, arnong others,by Special RapporteurTadeusz
Mazowiecki,who in February 1994 establishedthe following:
"135. The Special Rapporteur has continuedto receive disturbing reportsconceming the
refoulement of Bosnian Serb and Bosnian Muslim refugees through forced recmitment, pnmarily in
rcfugce centres in Belgrade and other cities, for combatin the Republic of Bosnia and Herzegovina
and the Republic of Croatia..In one recent case alone, at least 26 Bosnian Serb males of fighting
age werc rounded up at a refugee collection centrein Kosovo. They were reportedly taken to the
Bosnron border with Bosnia and Herzegovina by the Serbianpolice where they were handed over
IOthe Bosnian Serb authorities. According to informationreceived, the Serbian police had
presenred [hem with call-up documents stamped by the 'Defence Ministr'of the so-called 'Bosnian
Serb Republic' warning them of arrest and imprisonmentfor non-compliance.
136.It is evident that such actions have been carried out with thefull knowledge of the Serbian
authorities. The Special Rapporteur hm even received reportsfiom a reliable source that prior to
granting a passport to Bosnian Serb refigees, the Serbian authorities contact the office of the
'Bosnian Serb Republic 'in Belgrade in order to determine whether the applicant is wantedfor
military service. UNHCR has strongly condemnedthe forced recruitmentof refugees in violation of
fundamental principiesof refugeeprotection." [United Nations,Situation of Human
Rights in the territoryof theformer Yugoslavia,Sixthperiodic report submittedReply of Bosnia and Herzegovina
by Mr. TadeuszMmowiecki,Special Rapporteur of the Commissionon Human
Rights, E/CN.4/1994/110,21 Feb. 1994,p. 23, paras. 135-136, emphasis
added] .
The Special Rapporteurreported on the involvementof the Belgrade authorities on
21 February 1994,the date the report was published.By then it had become clear
that the Federal Republicof Yugoslaviawas playing avery active part in the forced
recruitment of primarily Bosnian Serb refugees.It did soin close cooperationwith
the authorities of the "Republika Srpska", through their "office"in Belgrade. The
citation above showsthat the refugeesfrom across the border were only issued a
passport afier the "Republika Srpska"had given Belgradethe green light.The fact
that Serbian officiaiswere servingrefbgees "call-updocuments stampedby the
'DefenceMinistry' of the so-called 'Bosnian SerbRepublic"' [ibid, para. 1351,
illustrates the symbioticrelationship betweenthe Serbianand BosnianSerb
authorities. Serbian police officerswere obviouslynot only entitled, but also willing
to serve "RepublikaSrpska" summonson their territory;moreover did not shrink
from using force - "arrest and imprison" [ibid, para.1351 - against refügeeswho
refused to comply with the Bosnian Serb order.
421. The large mobilisationcampaign carriedout inthe summerof 1995 was,again, well
organised and planned in advanceby the Belgrade authorities.On 26 June 1995,
Vrememagazine reported as follows:
"~he question as to why the action of massively sending Serbs fiom across the Drina river started
at the peak of the peace directed policy of Slobodan Milosevic,is keeping many serious analysts
busy these days. At first sight, this timingdoes not seem logical. Still, thereis a row of elements
thatlead to the conclusion that this forced mobilisation was long andcarefilly planned andthat it
is on a larger scale than it looked initially.As first, a number ofsome large scale administrative
actions,uch as the revision of the refugee status which startedin February 1994, preceded.The
Commissariat forrefbgees of the Republicof Serbia was leading this operation and the
commissioner BratislavaBuba Morina explainedthe situation follows: 'Firstof al1to establish
the number ofrefugees ..and to CO-ordinatewith the govemments of RS [Republika Srpska] and
RSK [Republika Srpska Krajina]which have given us a large listof the territones where the
refigees could retum (...). With the revision is, actually, accomplishedthat 90,000 people havelost
refugee status. They have joined the groupof, according to the estimates of the Commissariat,
70,000 peoplewho are staying in Serbia illegally, and who, accordingto Mrs. Morina are
'wandering up and down the streets'. Thisjob took a lot of time and itwas finished about a month
before the mobilisation started. Not long after that, the Serbiangovemment has again announced
the suggestion ofthe new law about the Serbian citizenship). According to this law,the persons
who onginate from RS [Republika Srpska] and RSK [Republika SrpskaKrajina] and who have,
legally or illegally, come to Serbia after 1990 will not beable to become citizensof the Serbian
state. At last, reliable sources say that a great deal of the MUP winistry of the Interi-r] of Serbia
from the patrolmen on the street, whowere even stopping vehiclesof the public transport and
taking the 'deserters' fiom there the last coupleof days, to the dispatcher in the headquarters who
was giving the instructions about who shouldberested and who should n-tare at the moment Chapter 8- Section 11
Forced recruitmentin theFederal Republicof Yugoslavia
engaged in the actions of arresting the persons suitable for the front, and notsuitable for the
citizenship.[DejanAnastasijeviCe-a., "Tribute in blood", VremeInternational,
26 June 1995,Annex 2541.
The authorities in Belgrade thus started the mobilisation campaign long beforeit
actually eruptedby changing the legislationon refugees. As a consequenceof this
operation, executed by the Serbian Commissariatfor refugees in close cooperation
with the "Republika Srpska"and the "Republika Srpska Krajina", thousands of Serbs
from across the river Drina losttheir right to stay in the Federal Republicof
Yugoslavia. Many Serb men were thus outlawed, withthe only purpose being to
facilitate their forced recruitment intothe Serb mies in Croatia and Bosnia and
Herzegovina. The actual arrest and subsequent mobilisationof the refugees was
carried out and supervisedby the Serbian MUP,the Ministry of Interior of the
Republic of Serbia.
The mobilisation campaignsin the Federal Republicof Yugoslavia always preceded
major Serb offensives in Bosnia and Herzegovina.This was particularly evident
during the large campaign carriedout in the summer of 1995. Shortly after the
mobilisations had startedand the first recruits had arrived at their destinationsin
Bosnia and Herzegovina,the Bosnian Serb Army started its attacks on the United
Nations "safe havens" of BihaC,Srebrenica andiepa. The careful timing of the
mobilisations again revealedthe close collaboration which existed betweenthe Serb
authorities on both sides of the river Drina.
423. When the first rumours of the 1995 campaign reachedthe Special Rapporteur
Tadeusz Mazowiecki,he immediately addressedthe Yugoslav authorities in Belgrade
to stop the forced recruitments:
"117.Upon receiving reports regardingthe forced retum of refugees, the Special Rapporteur
appealed, in aetter dat22 June 1995,to the authoritiesof the Federal Republic of Yugoslaviato
discontinuethe practice. In a response addressedto the High Commissioner forHuman Rights
dated17July 1995,the Ambassadorof the Federal Republicof Yugoslavia inGeneva stated that as
a result of the sanctions and the large numberofees in the Federal Republicof Yugoslavia,
criminal acts had been committedby individuals stayingin the Federal Republicof Yugoslavia
illegally. In thatction, the authoritieswere conducting an organized control of personswho
were not citizens of the Federal Republic of Yugoslavia andwho had failedto obtain refugee
status. Further, the Ministry ofIntemal Affairs of the Republic of Serbia, issued a statementon 24
June 1995according to which 'a number,admittedly a small number of mistakes have been made
in the establishmentof identity and the implementationof measures, which is being corrected
during control'.
118.Regarding this statement, the mobilizationof citizens has apparently ceased following an
information campaignby human rights organizations.The Ministry of the Interior is reportedlyReply of Bosnia and Herzegovina
makinga listof citizensof the FederalRepublicof Yugoslaviawhohave beenmobilized,and
somehavebeenable toretum.[UnitedNations, Situationof HumanRights in the
tewitory of theformer Yugoslavia,Sixthperiodic reportsubmitted by Mr.
TadeuszMazowiecki, Special Rapporteuo rf the Commissionon HumanRights,
E/CN.4/1996/9,22 Aug. 1995,pp. 23-24, paras. 117-1 181.
In response to the letter sent by TadeuszMazowiecki,the Federal Republicof
Yugoslavia thus admitted that "an organized controlof persons who werenot citizens
of the Federal Republicof Yugoslavia"was taking place [ibid.,para. 1171.The
Respondentjustified this "organized control"by pointingat "the largember of
refugees" and the "criminal acts" they allegedlycomrnitted[ibid]. It failed, however,
to explain what the control exactly entailed andwhy it transferred the new recruits
directly to the "Republika Srpska"and the "Republika Srpska Krajina",without ever
taking any trouble to investigatethe crimesthese refugeeshad supposedly
committed.
Summons
424. As mentioned in the above, Serb refugeesin the FederalRepublic of Yugoslavia
were often presented with officia1military call-up documents.In one of his reports
referred to earlier in this Section,Tadeusz Mazowiecki mentioneddocuments
stamped by the "Defence Ministry"of the "Republika Srpska"[UnitedNations,
Situationof HumanRightsin theterritoryof theformer Yugoslavia,Sixthperiodic
report submittedby Mr. Tadeusz Mazowiecki, Special Rapporteuo rf the Commission
on HumanRights, E/CN.4/1994/110,21Feb. 1994,p. 23, para. 1351.Not al1call-up
documents or summonswere, however, identical.In the 1995carnpaigndifferent
summons were used.
425. On 29 June 1995,the followingdocument was delivered to Nemanja Crnogorac, a
Yugoslav citizen who was born in Livno, a city in the west of Bosnia and
Herzegovina:
"REGIONAL MINISTRY OF MTERIOR - SUBOTICA Fom OUP - 1
...................................................................
(nameandthe seatof the institutionin charge)
No: 27/95 Obligatorypersona1delivery
Date:29-06-1995 Chapter 8 -Section 1I
Forced recruitrnentin the Federal Republicof Yugoslavia
SUMMON
(ART. 71 AND 87. of the Law on the Administrative Procedure)
NEMANJA CRNOGORAC
.......................................................
.....................................................
.................
(name and family name or the name of the party)
fiom: SUBOTICA Street: E. KUMICICA No. 141199
is invited to corne on 30.06.1995.at 07.00 h to MINISTRY OF INTER. SUBOTICA
room no. floor no. conceming JOININGTHE ARMY OF REPUBLIKA
SRPSKA in accordance with the file CONSCRIPTS BORNIN BIH.
NOTE: PERSONAL HYGIENE ARTICLES SHOULDBE BROUGHT ALONG
In case of being prevented from coming, thebove mentioned institution should be notified
immediately.
If the partydoes not respondto this summons,helshe could be brought to the Police Headquarters,
and additionallypunished to pay a penalty of dinars. If damage is caused due to the
party's unjustifiable absence,it may be ordered that theparty should pay for the caused damage.
signature (illegible) [stamp](BELGRADE, MINISTRY OF INTERIOR)
How to fil1the form:
1. In the place of 'NOTE', necessary instructions shode given, for instancethat the party
should bring along written or other kind of proofs, or to take a witness along which hetshe intends
to call, or that the party, insteadof coming personallycan, up to a certain date submit a written
statement (art71, point2 of the Law on Administrative procedure).
2. On the reverse side of the bill of delivery, the deliverer makes notesconceming the
deliverance."
[Ministryof Interior, Belgrade,Summonsof Nemanja Crnogorac,29 June
1995, Annex 2571.Reply of Bosnia and Herzegovina
430. The Sremska Mitrovica camp was also described by Dejan Anastasijevie in Vreme
magazine in his article on a Serb refugee fiom Croatia, Mirko Drljatia. Drljatia was
taken to the camp in Sremska Mitrovica, after being arrested in his home in the
Serbian town of Hrtkovci. When he tried to escape the camp, he was shot by the
guards:
"on Monday morning,very early, at the doors of DrljaEa'shouse in Hrtkovci some people
knocked at the door with a summon for military servicein Republika Srpska Krajina.Since DrljaEa
is a citizen of Serbia for morethan a year now, herefused to accept the summon.Thepolice
oficers who then showed up, were not very interestedin the issues of citizenship. 'Explainit to
them there, and they will letyou go', theysaid. This 'there'turned out to be the collectionpoint in
Sremska MitrovicaSfire brigadefacility, but the Krajinapolice oficers who received hirnwere not
even thinking of Ietting him go. 'Nobodywanted to speak a decent word to me', says DrljaEa. 'As
if we were going to prison.' When he saw that talkingwould not help, DrljaEatried to escape
Tuesday moming. 'It was clear to me that it is very difficultto escape. It was more that 1wanted
to get some attention so that someone would listento me. They were shoutingto stop and then
they shot. 1heard three shots ofthe automatic gun.'
WHO IS NORMAL: Out of three fired bullets, two hit DrljaCa,both a bit above the knee. '1fell
down and heard them saying'Tie hirn up, get hirn in the bus andthen across'. '1was afraid that
they would kill me there.' Fortunately,one of the present Serbian police officers persuaded the
'deserterchasers' that the wounded shouldbe transported to the nearest hospital. DoctorBosko
Lacarac who received and operatedhirn says that it is fortunate thatDrljaEaended up right there.
'We havea lot of experience with the war woundsin the time fiom the Vukovar operation.
Somewhere else, his legs would have probably been amputated,and he would definitely not survive
the trip to Krajina. This way, we have finishedthe surgical treatment and external fixation,so that
one could say that the patient,that is his extremities, is doing well.' In respondito the question
as to when DrljaEa,being the only breadwinner of his farnily (wife and two children), will be back
on his feet, Dr. Lacarac says: 'If thereis no secondary infection andother complications -in a year
at the earliest.'
DrljaEa is not feeling resentful forwhat happenedto hirn ('1love this country verymuch and 1
would liketo damage it as little as possible', he says),but he also does not feel as a deserter. '1
was enthusiastic while 1was thinking that Yugoslavia wasbeing defended. Now, nobody nomal
wants to take a gun.' At the question whether anyonefrom the authorities has spokento hirn after
he was injured, he answers: 'One of theinspectorsof the SUP [Secretary of Interna1Aflairs] was
here to ask me what happened. Itold him that I do not wantto makefûss about it, but he said that
they have to do theirjob. 'He will not sue anybodyfor illegal arrest and heavy injuries. 'Oneday,
this state will be lawfûl. Now,I amjust praying thatthey do not kill me', he says submissively.
From the radio next to Drljata's head, sornebody is singing about how women love officers. The
nurse that is taking care of hirn says that she sometirnes findshirn quietly crying, withthe towel
over his head.
Thefire brigadefacili~: whereDrljaca got wounded,is located ut the exit of Sremska Mitrovica.
Already utfirst sight one can see that work is cmried out utfiIl steam: ten busses areparked in
front of the enhance and a group of armedpeople - united Serbianpolice andfive members of
Arkan 's Serbian voluntaryguard with 'hekleri 'and recognisableblack uniforms - are moving
around them. There me also civilians, mostlyyoung men, but alsopeople who are well into their
fifiies. These arefreshly caught 'deserters'who are waitingto be transported. Twoyoung men that
we were talking to are from Bosanski Sumac [Bosnia and Herzegovina]and they were caught in
Belgrade during the raid on the streets of Belgrade. Whoarrestedthem? 'Serbians,and we are
being transported by Krajina men fiom the Republika Srpska Krajina in Croatia]. ' They are not
voluntarily here but they are not even thinkingabout escaping: thereis nowhere to go except over
thefield and the guardî even have automaticrijies. No, they did not beat them, but they did not let
them make phone calls. They have heard that they willgo to Bijeljina [town across the border in
Bosnia and Herzegovina], like the other newcomers. Chapter 8-Section II
Forced recruitmentin theFederal Republicof Yugoslavia
'Here are just Bosnians. It looks like they aredone with the people fiom Krajina', theysay
indifferently. Then a police officer showed up who kindly but decisively snder theng uu
am) removed us fiom the scene. At the question aboutDrljaEabeing wounded he said: 'Nothing
happened.1was there, and nothing happened'. Hesays that DrljaEais lying and that it al1is
fiction. 'Andthe tracks in the legs? And the doctors?' 'Thatalso is[Dejan
Anastasijevié,"Tributein blood", VremeInternational, 26 June 1995, emphasis
added, Annex2541.
The camp in SremskaMitrovicawas guardedby Serbian police officers and
members of Arkan's Tigers, the paramilitaryorganisationled by ieljko Rabatovié
[see Reply, Chapter 8, Section 71,and policemenfrom the "RepublikaSrpska
Krajina" in Croatia. The presenceof these latter police officers on the territory of the
Federal Republic of Yugoslavia marksthe evident synthesisof the various police
corpses on both sides of the river Drina [seealso Reply, Chapter 8,Section 61.Al1
the officers and paramilitariesguardingthe camp in Sremska Mitrovicawere simply
doing "theirjob", as was explainedby the Serbian policemanwho visited Mirko
Drljaëa in the hospital after he was shot in the legs. There is evidence that other
paramilitary organisationswere involvedin the managementof the camps and in the
transports across the border as well ["The horrorof the letter 'T"',NIN, 7 July 1995,
Annex 2591.
The t'RepublikaSrpska" bureau in Belgrade
The refugees taken to the detentioncamps, such as the fire brigade facility in
Sremska Mitrovica,were subsequently transferredto Bijeljina, a Serb-held town onReply of Bosnia and Herzegovina
the Bosnian side of the river Drina. The transfer across the border wasdone in close
collaboration with the Bosnian Serb authorities,who hada special coordinating
bureau in Belgrade.One of the main task of this bureau, mentioned earlierin this
Section, was, in fact, the streamliningof the mobilisations.
432. The activitiesof the "Republika Srpska" bureau in Belgradewere also describedby
General Djordje Djuki6,during one of his statementsgivento the Bosnianauthorities
in February 1996. The bureau carried on working afterthe so-called "embargo"
supposedlywas placed on of the "Republika Srpska" by the Federal Republicof
Yugoslaviain August 1994.When DjukiCwas interrogated,the office still existed:
"1t is not known to me when and under whose Command the Bureau of the Serbian Republic
[Republika Srpska]in Belgrade was established,but it existed since 1992. The first Chief on the
Bureau was Dutina,later on Momo Mandic, and1do not know who is on that function now.
Formally, during a certain periodof time, the Bureauhad beenunder the jurisdiction of the
Govemment, and then by the decision of the President this Bureauwas proclasthe
institution of the Republic and not of the Govemment. It was located in Mosetreet (1do
not know the number)inthe buildingof the Federal Material Reserves, 1do not know how many
employees there were,but according my estimationsld be between 20 and 25.
(-1
Among the employees of the Bureau,1personally knew Major Dogo, who was the representative of
the Ministry for Defense in Bureau, and a certain Stanisicwho was an Assistant-Chiefof the
Bureau for Economic relations.hink Dogo's duty was to accomplishwork related to the Army of
the Serbian Republic [Srpska Republika] or the Ministryof Defense.
(-1
Due to thefact thatDogo was in charge to disputeal1Militarymatters of theASR [Bosnian Serb
Army] in Belgrade, a11agreementsor connection throughwhichthepersons under military
obligation were sent backto the Serbian Republicwere done throughhim.In that way,persons
were mobilized byforce andransferredfrom Yugoslaviato Bijeljinain Military barracks where35
logistics base was located. There were 4500 mobilized persons for Serbian RepublicKrajina
[Croatia] and 1500 for Serbian Republic, who were provwith uniforms andtransported to the
units. Major Dogo announced theirarrivai to ~ijelj[GeneralDjordje Djuki6,First
statement regarding the backgroundof his activitiesin the main HQ of the
Army of the SrpskaRepublika,Feb. 1996, pp. 6-8, Annex 1401.
On the Bosnian Serb side, the mobilisation was therefore organisedby the bureau of
the "RepublikaSrpska"in Belgrade,which representedthe Bosnian Serb government
before the Yugoslav authorities.The arrival of the new recruits was always
announcedby the bureau in Belgrade.In Bosnia,the refugeeswould becollected in
Bijeljina, at the local army base, where theywere given uniforms and received
transport to the different annycamps across Bosnian Serb-heldterritory.
433. As was shown earlier in this Section[Reply, Chapter8, Section61,the forcibly
recruited Serbwere, for instance, taken to "Jahorina",a camp in the Prijedorregion
under the control of the Bosnian Serb Ministryof Interior. Personswho escaped Chapter 8-Section II
Forced recruitmentin the Federal Republicof Yugoslavia
from the camp were subsequently treatedas "deserters"by both the autorities in the
"RepublikaSrpska"and the Federal Republicof Yugoslavia [ibid.].
Perfect unison
434. Boththe timing of the mobilisationsand the manner in which they were executed
show that Belgrade actedin close cooperationwith the Serb authorities in the
"RepublikaSrpska".
435. The mobilisationcampaigncarried out in early 1994was the direct consequence of
the mobilisationcal1issued shortly beforeby the BosnianSerb authorities in Pale.
The mobilisationordered by the Bosnian Serb governrnent obviously covered not
only the "Republika Srpska", butalso the territory of the Federal Republicof
Yugoslavia.The mobilisation carnpaignsalso tendedto precede major Serb
offensiveson the battlefieldsof Bosnia and Herzegovina.The extendedmobilisations
in the surnmerof 1995were the forerunnerto the massiveSerb attackson Bihac,
Srebrenicaand iepa. Forcibly recruitedSerbswere in fact capturedin Biha6 after
their failed attempt to take the enclave in the sumrnerof 1995.The genocidaltake-
overs of Srebrenicaand iepa would not have beenpossible without the participation
of the Serbs forciblymobilisedby the authoritiesin the Federal Republic of
Yugoslavia.
436. It is evident that the mobilisationof Serbs for the BosnianSerb Army wouldnot
have been feasible without the wholehearted collaborationof the Belgrade
authorities.It is important, however,to note thatthe opposite is alsotrue. Without
the informationand the support given by the Bosnian Serbs, bothin the "Republika
Srpska" and the Federal Republic of Yugoslavia,the mobilisation campaignwould,
of course, have died an early death. The Serb authoritieson both sides of the river
Drina cooperatedwith each other in perfect unison,throughout the entire conflict in
Bosnia and Herzegovina,as if the "Republika Srpska" werein fact an integral part of
the Federal Republic of Yugoslavia.
437. The symbiotic relationshipbetweenthe two republicswas also visible in other fields,
such as the monetary system and the web of nationalbanks describedearlier in this
Chapter [Reply, Chapter8, Section91.
TheDistrict Courtin BelgradeReply of BosniandHerzegovina
438. In this Section the Applicant demonstratedthat the Respondentwas responsible for
the mobilisationcarnpaignof Serb men carried out on its territory during the conflict
in Bosnia and Herzegovina.This was, quite interestingly,also the opinion of the
District Court in Belgrade, which on27 February 1998ruled that the Republic of
Serbia was responsible forthe physical and psychological darnagessufferedby the
Serb men who had been forcibly drafted into the mies of the "Republika Srpska"
and the "RepublikaSrpska Krajina".One day afier the judgment, theSerbiandaily
newspaper Vestireported on the surprisingjudgment, whichhad been passedin
appeal ["Serbia liable to pay compensationfor sending them to war",Vesti,28 Feb.
1998,Annex 2601.The appealhad been filed by the Republic of Serbiaand was
based on the objectionthat the SerbianMinistry of Interior had notbeen the
authority in charge of the mobilisations.This propositionwas dismissedby the
District Court in Belgrade.
12. Ethnic purificationin the territory of Yugoslavia
Introduction
439. This sectionof the Reply is completely dedicated tothose genocidalacts that took
place on the territory of the FederalRepublic of Yugoslavia. These acts were similar
to those perpetratedon Bosnianterritory. Al1the constituent elementsof ethnic
cleansing as a policy, so prevalenton the territory of neighboring Bosniaand
Herzegovina,were also found on the territory of the Federal Republicof Yugoslavia.
440. In both Serbia andMontenegro, campswere establishedfor non-Serbs, often Muslim
and Croat civilians captured by Serb forces during the fighting in Croatiaand Bosnia
and Herzegovina.In certain areas of Yugoslavia, notably Kosovo, Vojvodinaand the
Sandiak region, the authoritieswere responsiblefor the killing, torture and abduction
of non-Serbs. As a consequenceof this deliberatepolicy, aimed not only at citizens
of Bosnia and Herzegovinabut also at Albanians, San- Muslims, Croats,
Hungariansand other minorities, agreat number of people wereforced to leave the
Federal Republic of Yugoslavia.
441. In the passages below,the genocidecommittedon the territory of the Federal
Republic of Yugoslavia willbe dealt with at length. Before doing so, however,the
Applicant will discuss the considerationsthe Respondent devotedto this topic in the
Counter-Memorial. Chapter8 -Section 12
Ethnicpurijication in theterritory of Yugoslavia
The1993 CSCEmission toYugoslavia
442. In the Counter-Memorial,the Federal Republicof Yugoslavia devotedone paragraph
to the detention centres on its territory [Counter-Memorial, pp.29-31,para. 1.3.1.7.1.
At the end of this paragraph,the Respondent simply statedthat "[tlhere were no
camps in the territory of the FR of Yugoslavia".In support of this statement andin
response to the list of Yugoslavprison campspresented in the Memorial [Memorial,
p. 21, para. 2.2.1.11,the Federal Republicof Yugoslavia quoted a Reportof the
CSCE mission to Serbia and Montenegro.This Report was publishedby the CSCE
following an inspectionof severaldetention sites by three of its rapporteurs in
January 1993. The Federal Republicof Yugoslavia, however, reproduced onlypart of
the mentionedReport, thus creatingthe incorrect impressionthat the conclusionsof
the CSCE Report fully supportYugoslavia'sdenial. This is in fact not at al1the case.
443. First of all, the Respondent failedto reproduce an importantintroductoryparagraph
of the Report, in which the CSCErapporteursremind the readers of the Federal
Republic of Yugoslavia's responsibilityfor the armed conflict and the related
atrocities. The whole Report shouldbe evaluated within the context of the following
passage :
"6.Duringthe 14-15December1992meetingof theCSCECouncilof Ministers, the CSCE
participating Statessrressedthat the primary responsfor the conflictand atrocities in the
former Yugoslavia' lieswith thepresent leaders ofSerbia and Montenegro andwith the Serbian
forces operating in Bosnia and HerzegoviTheycalledfor the'cessationof violationsof human
rightsandinternationlumanitarianlaw' andspecificallythepolicyof 'ethniccleansing.'In
addition,he Ministers underscored theirdeterminationto 'seeto it that those responsibleare
broughtrojustice 'for the massive andsystematic violations of humanrights in the territory of the
Republic of Bosniaand Herzegovinaand other parts of theformer YugoslTheon-going
humanilariaeffortsof theSCE,exemplifiedbythecontinuation of theThomsonMissionunder
theleadershipof AmbassadorBlackwell,demonstratthecommiûnentof theparticipating Stateos
cnsurecompliancewithinternationalrecognizedhumanrightsstandards andprinciplesof
hummilarianlawintheformer~u~oslavia." ["Reportof the CSCE Missionto Inspect
Alleged Places of Detentionin the Republicsof Serbia and Montenegro",
CSCE, 13-18Jan. 1993,p. 3, para. 6, emphasis added,as reproduced in the
Counter-Memorial,Annexesto Chapter1,Vol. 1,pp. 21-26].
In December 1992,the Councilof Ministers of the CSCE thus establishedthe
"primaryresponsibility" of the Respondentfor "the conflict and atrocities" committed
in the former Yugoslavia.These atrocities were, accordingto the Ministers, notonlyRepiy of Bosnia and Herzegovina
committed on the territory of Bosniaand Herzegovina;ethnic cleansingalso occurred
in "other parts of the former Yugoslavia".
444. The Federal Republicof Yugoslavia notonly left out the foregoing introductory
paragraph, but also a substantial partof the conclusions reachedby the CSCE
mission to Yugoslavia.During its mission,the mission indeed wasnot able to verify
the existence of detention centres.The Respondent correctly quotedthe relevant
sentence of the mission'sReport. It failed,however,to cite the conclusionsof the
CSCE, in which two possibleexplanationswere offered forthe fact that it had not
been able to locate any prison camps:
34.Onthebasisof visitsto thespecificsitesmentionedinthisreport, the Rapposvenota
beenable toverifi theexistenceof anyplacesof detentionintheRepublicsof Serbiaand
Montenegro.However, they have not been ableto visit al1the sites indicated on the list, nor have
they been able to conduct asuficiently thorough investigationin some of the locations.
Consequently,the Rapporteurs areno?in a position to excludeentireiy thepossibility that thereare
places of detention in the RepublicsofSerbia andegro."["Reportof the CSCE
Mission to Inspect AllegedPlaces of Detentionin the Republicsof Serbia and
Montenegro", CSCE, 13-18Jan. 1993,p. 11,para. 34, emphasisadded, as
reproduced in the Counter-Memorial, Annexes to Chapter 1,Vol. 1,pp. 21-26].
The three members of the CSCEmissionwere thus severely handicapped.They
were, firstly, not able to visit al1the desired potential camp sites;the mission only
visited eight locations. Fiveof the locationsit had originally intendedto inspect were
not visited at all. The eight sitesthe missionmanagedto visit were, secondly,not
inspected as thoroughly as the rapporteurshad intendedto do. The visit to these
eight sites remained indeed avisit. Due to the abovementionedtime constraints, the
mission never became a real investigation.The CSCErapporteurs therefore advised
the CSCE to organisea follow-up investigation:
"B. Recommendations
35. ShouldtheCSCE feel thatthefindingsof the presentreport,oradditional infeceivedrn
from othersources,havenotsufficientlyrelievedtheconcem ofthe internationaclommthety,
Rapporteurs recommendfollow-up actionin order tofurther investigate someof the alleged places
of detention["Reportof the CSCEMission to Inspect AllegedPlaces of
Detention in the Republicsof Serbiaand Montenegro",CSCE, 13-1 8 Jan. 1993,
p. 11,para.35, emphasis added,as reproducedin the Counter-Memorial,
Annexes to Chapter 1,Vol. 1,pp. 21-26].
The Yugoslavauthorities'refisal to cooperate withinternationalobsewers Chapter 8- Section 12
Ethnic purijication in the territory of Yugoslavia
445. The foregoing recornrnendation formulatedby the CSCEmission, that is, the advice
to carry out a follow-up investigation,was not favourablyreceived by the
Respondent. Shortly after the Report was published,on 28 July 1993,the authorities
in Belgrade informedthe CSCEthat they would no longer cooperatewith their
missions. The Respondent simplyrefüsedto allow the CSCE missionsto continue
their activities on Yugoslavterritory. This outrightrefusa1was later condemnedby
the Security Council,which stressedthe importanceof the CSCE missions forthe
stability in the varioushotbeds in the Federal Republicof Yugoslavia: Kosovo,the
Sand2i.kand Vojvodina [United Nations,Securiw Council Resolution 855 (1993),
SlRES1855,9 Aug. 19931.
446. The Respondentnot only refusedthe CSCE rapporteurs admittanceinside its
borders,, but in the beginning of 1994, it also declinedto further cooperatewith
Tadeusz Mazowiecki, Special Rapporteurof the UnitedNations Commissionon
HumanRights. The consequencesof Yugoslavia'srefusa1to cooperate with
international rapporteurs werefar-reaching,as was also pointedout by Mazowiecki
in his Report publishedon 4 November 1994:
"162. The SpeciaI Rapporteur notes thefact that, owing to the refusal of the Government to permit
the establishment ofield ofJicein the Federal Republic of Yugoslavia (Serbia and Montenegro),
he has been unable to collectFrsthand informationconcerning the human rights situation in that
country. In view of thisfact, the SpeciaZRapporteurFndr it even more discouraging to note that
the Government hm, since the submission of his sixth periodic rep21tFebruary 19941,
rejected al1his requests to send missions to the country in order to investigate recent allegations of
human rights abuses.
163.It shouldfurtherbe notedthattheGovemment'sreluctanceto cooperate with the Special
Rapporteuris incontraventionof paragrap30 of CommissiononHumanRights resolution
1994172,inwhichtheCommission
Demandsthatthe FederalRepublicof Yugoslavia(SerbiaandMontenegro)permit entry into
Kosovo,SandjakandVojvodinaof United Nations observem rissionsandfieldofficersof the
SpecialRapporteurandresurnptionof themissionsof longdurationof the Conferenceon
SecurityandCooperationinEurope.
164.The SpecialRapporteur notes withconcemthatforeign joumalistsarefacingdifficultiesin
performingtheirdutiesintheFederalRepublicof Yugoslavia(SerbiaandMontenegro), a fact
illustratedbythe withdrawalf theaccreditatioof 13foreign correspondentsiApnl 1994.
165. The Special Rapporteur has also taken note of the comments on his sixth periodic report by
the Government of the Federalepublic of Yugoslavia(Serbia and Montenegro) (E/CN.4/Sub.
2/1994/45). The Special Rapporteur presented hisremarks on these comments in a letter dated 26
August 1994 to the Chairman of the Commissionon Human Rights, which is annexed to the present
report.Reply of Bosnia and Herzegovina
166.By letter dated 16 September 1994,the Special Rapporteur informed the Minister of Foreign
Affairs of the Federal Republic of Yugoslavia (Serbia and Montenegro) of his main concerns
regarding thehuman rights situation in the country, and invited the comments of the Government.
As of the date ofpublication of this reportno substantial reply has been received Special
Rapporteur.
167.The Special Rapporteur has beenunable to collect and verifj information on-site. Inorder to
cany out his mandate, he has been obligedto base his research on information receivedfrom a
wide range of sources, including intemational govemmental organizations, llnda
intergovernmental organizations andpnvate individuals. In this regard,the Special Rapporteur
wishes to express hisarticular gratitude to the following local non-govemmental organizations,al1
based in Belgrade: the Humanitarian Law Fund, the Centre for Anti-War Actionand the newly
founded Helsinki Committee forHuman Rights in ~erbia." [UnitedNations, Situation of
Human Rights in the territory of theformer Yugoslavia,ninthperiodic report
submitted by Mr. TadeuszMazowiecki,Special Rapporteur ofthe Commission
on Human Rights, E/CN.4/1995/54,31 Oct. 1994,p. 29, paras. 162-167,
emphasis added].
447. By refusing to cooperatewith al1international rapporteurs and observerst ,he
Yugoslav authorities successfully preventedevery seriousinvestigation intopossible
atrocities committed on their territory. This policy of deliberatenon-cooperation
precluded the actual fulfilment of the Special Rapporteur's mandate, which of course
included not only Bosnia and Herzegovina, but theentire territory of the former
Yugoslavia.
448. In the extract quoted above, referencewas also made to a letter the Special
Rapporteur sent to the Chairmanof the Commissionon HurnanRights. In this letter,
which was annexedto his Report, Mazowiecki indeed severelycriticizedthe
obstructionistpolicy of the Federal Republicof Yugoslavia:
"(...) the Special Rapporteur would liketo draw the attention of the members of the Commission
[on Human Rights] to the serious d~flcultieshe ha faced in his efforts to implement his mandate,
due to the uncooperative attitude ofthe Government of the Federal Republic of Yugoslavia.g
theJîrst haIf of this year, the Government has rejectedal1requests by the Special Rapporteurand
the Centrefor Human Rights to undertake missionsto the Federal Republic of Yugoslaviain order
to collectJîrsthand information and to investigate allegationsof human rights abuses reportedto
have taken place in that country.
Thus, by letter o10 June 1994,the Special Rapporteur requested permission fortwo staff
members of the Centre for Human Rights to visit the region of Sandzak in order to investigate
recent allegationsofuman rightsabuses in that area. To date the Govemment has not responded
to this request. OnJuly 1994the Special Rapporteur requested theGovenunent to authorize a
mission oftwo human rightofficers to travel to the Federal Republicof Yugoslavia in August
1994.In its letter of 27 July 1994 the Government explained its decision to reject this request by
referringo the work of the Special Rapporteas 'one-sided,&Il ofprejudice and above al1
politicized'. Chapter 8- Section 12
Ethnicpurificationin the territory of Yugoslavia
The Special Rapporteur wouldalso like to draw attentionto the fact that hisproposal to open a
permanent field officein the Federal Republicof Yugoslavia,ilar to those currently operating in
Zagreb, Sarajevo and Skopje, has metwith a negative response fiom the Government. Bytter of
11March 1994to the Government, theDirector of the Centre for Human Rights proposeda
meeting between representatives of the Centre and the Governmentto be held in Belgrade inr
to discussthe possibilitiesof establishingsuch an office in Belgrade. By l27tMarch 1994
the Government rejected thisproposal by referring to General Assembly resolution4711,
suspendingthe participationof the Federal Republicof Yugoslavia in the General Assembly. The
Government stated that,ince it could not, as a matter of principle, accept cooperation with
international organizations onan unequal footing, it was not in a positionto reply positivelyto the
Centre's request.
Furthermore, byletter of 6 June 1994,Professor ManfiedNowak, member of the Working Group
on Enforced and Involuntary Disappearances, requested authorizato carry out a missionto the
Federal Republicof Yugoslavia witha view to meeting governmentoficials and non-governmental
organizations representingmilies and relatives of missing persons. Notwithstanding the purely
humanitarian nature of this mission, the Government decito reject Mr.owak's request. In its
response of 24 June 1994 the Government stated, inalia, thefollowing: Xllow me to informyou
that bearing inind thepresent circumstances,and, above all, the mandate ofyour Working
Group, as well as Mr. MazowieckiSactivities sofur, that have been highlypolitically oriented,
one-sided, and not based onfacts, the Governmentof theFederal Republic of Yugoslaviais not
able to accept your visit to the Federal Republicof Yugoslavia.'
Regrettably, by refusing permissionto establish a field office in Belgrade andby rejecting the
Special Rapporteur's requeststo send missionsonn ad hoc basisto the Federal Republicof
Yugoslavia, the Government has blockedthe Special Rapporteur's attemptsto gather firsthand
information concerning the situation ofan rights in that country. There[b]y,the Government
has deliberately obstructedthe Special Rapporteur inhis effortstojÙrf;Ihis mandate as dejned in
Commissionon HumanRightsresolutions1994/72 and 1994/76." [UnitedNations, Situation
of HumanRightsin the territoryof theformer Yugoslavia,ninthperiodic
report submittedby Mr. Tadeusz Mazowiecki, Special Rapporteu orf the
Commissionon HumanRights,E/CN.4/1995/54,31 Oct. 1994, pp. 41-42,
emphasis added] .
By taking this position, the Federal Republic of Yugoslaviaeffectivelyrobbed the
international communityof every possibilityto further investigatethe accusations
brought against it by internationalrapporteurs, such as Tadeusz Mazowiecki and the
Commissionof Experts. In addition, the Respondent deprived itself ofthe
opportunityto disprovethe earlier mentioned accusations.
Detentioncamps in Yugoslavia
449. In spite of the total lack of cooperationby the authoritiesin Belgrade,the efforts of
the internationalcommunityin 1994 graduallybegan to produce further evidence. In
December ofthat year, almost two years after the CSCE mission described above
had taken place and eight months after the submissionof the Applicant'sMemorial,
the United Nations Commissionof Experts publishedthe Annexesto its FinalReply ofBosniaandHerzegovina
Report. Oneof the Annexes tothis Report wasentirely devoted tocamps and other
detention facilities [United Nations,Final Report of the UnitedNations Commission
of Experts, S/1994/674/Add.2, (Vol. IV), 28 Dec. 1994, AnnexVIII, "Prison
Camps"]. A special section of this Annex describedthe camps located in the territory
of the Federal Republicof Yugoslavia.The Commissionof Experts listed no less
than 71 camps situated in Yugoslavia:
"of the reports of71hcamps alleged FRY, 42 were corroborated(Le., reported by a neutral
sources or multiple neutral sources),ere uncorroborated(Le., reported eitherby multiple
non-neutral sources, or not corroboratedby a neutral source)."
[ibidem, pp. 31-32,paras. 240-2451.
The "multipleneutral sources" mentionedby the Commissionof Experts include
international organisationslike the InternationalComrnitteeof the Red Cross and
foreign governmentssuch as the United States Departmentof State [see also Reply,
Chatper 5, Section 51.
450. The Commissionof Experts' Report showsthat most ofthe Yugoslav campswere
establishedafter the war in Croatiahad started. Initially,these camps were usedfor
Croatians fiom Croatia only. From April 1992 onward, however, whenthe fighting
spread to Bosnia and Herzegovina, Muslimsand Croats from Bosnia and
Herzegovinawere detainedin Yugoslaviaas well. Thesenon-Serbs were removed
from their home towns in Bosnia and Herzegovina,as a result of ethnic cleansing,
when the JNA was still openly involvedin the armedconflict. In the following
pages, two exampleswill be given of Bosniancities which wereethnicallycleansed
in April 1992: Vigegradand BosanskiSamac.Some of the non-Serb inhabitantsof
these cities were deportedto Serbia, where theywere imprisonedin various detention
centres. Chapter 8 -Section 12
Ethnicpurz~cationin theterritory of Yugoslavia
Theethnically cleansedMuslimsof Viiegrad
451. ViSegradis a small city in east Bosnia, not very far from the Drina river, which
marks the border between Serbia and Bosnia and Herzegovina. Dueto its strategic
location, ViSegrad wasone of the first cities in Bosnia to be attacked and ethnically
cleansed by the Serbs in April 1992. The assault on the city was carried out by the
JNA Corps from Uiice, supported by Serbian pararnilitary units. Uiice is a city
located across the Drina river in western Serbia, not more than 50 kilometres from
ViSegrad.The attack is described by the Commission of Experts in its Annex on
special forces:
"on 13 April1992, the city of ViSegradwas occupied by the UZiceCorps. This group consistedof
JNA soldiers, reservists, Uiice temtorial defence forces, and White Eagles.They brought a large
amount of JNA heavy equipmentwith them. The JNA forces wore their traditional uniforms, while
the White Eagles wore identifiable outfits, combiningry and civilian clothes.Some wore hats
with the kokarda emblem. Upon the corps' sieget,he civilian population fledthe city and was fired
upon. The corpsthen broadcast a messageinstmcting the residentsto retum to ViSegradand
assuring their safety. When theyretumed, the village was in shambles, with many homesburned.
The JNA then blocked al1roads leading outof ViSegradwith help fromthe White Eagles and
Uiice Corps. Soldiers at the roadblocks wouldtake away Muslims, whosenames appeared on a
master list. Betwee18and 25 May, the U8ice Corps left ViSegrad,leaving it to fa11under the
controi of the White Eagles, Cetnik gangs andSeselj's fo[United Nations, Final
Report ofthe UnitedNationsCommission of Experts, Sl19941674lAdd.2, (Vol.
1),28 Dec. 1994, Annex III.A,"Special Forces", p. 163,para. 543,l.
After the fa11of ViSegrad,the JNACorps from Uiice and the various paramilitary
units acting under its command started terrorising the inhabitants of the city [see
also, Reply, Chapter 8, Section 31.The genocidal acts comrnitted in ViSegradagainstReply ofBosnia and Herzegovina
its non-Serb population are alsoreported by the Commissionof Experts [ibidem,
paras. 540-556,pp. 162-1651.The findings of the Commissionof Experts were
confïrmedby independentmedia, such as TheGuardian [Ian Traynor, The Guardian,
15April 1992, Annex 261 ;Ian Traynor, TheGuardian, 16April 1992,Annex 2621
452. In the weeks following the occupationof ViSegrad,a large nurnber ofthe Muslim
population was arrested and deportedto Serbia.The Commissionof Experts
acknowledgedthat "most of the 6,600 Muslim inhabitantsof Visegradwere taken by
the Serbian Territorial Defence to a detentionfacility in Uiice" [United Nations,
Final Report of the UnitedNations Commissionof Experts, Sl19941674lAdd.2(Vol.
IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps",p. 419, para. 34581.The name of
the facility the ViSegradMuslimswere taken to is not known, but the existence of
the camp was, accordingto the Commissionof Experts itself, corroboratedby other
sources.An unknown nurnber ofwomen was capturedin ViSegradfor the purpose of
rape and taken to a detention centre in the Zlatibor region in southern Serbia,
between the cities of Uvce and Prijepolje. This deportationwas reported by the
Commissionof Experts, which also found evidencefrom independentsources
corroborating the existence of thisrape camp [ibidem,p. 419, para. 34631.
453. At the date of submissionof this Reply, the fate of many of the abducted Muslimsof
ViSegrad remains unknown.
TheSremskaMitrovicaprison camp Chapter8 -Section 12
Ethnicpur$cation in theterritory of Yugoslavia
454. The Kazneno Popravni Dom (KPD) was a camp in SremskaMitrovica,a town in
Vojvodina (Serbia), closeto the border with Bosniaand Herzegovina.The
Commissionof Experts reported on the existenceof this detention facility in their
Annex devoted to prison camps. The existenceof the camp was, accordingto the
Commissionof Experts "corroboratedby multiple sources",including the
International Cornmitteeof the Red Cross [United Nations,Final Report of the
UnitedNations Commissionof Experts, S/1994/674/Add.2(Vol. IV), 28 Dec. 1994,
Annex VIII: "Prison Camps",p. 430, para. 35471.It describedthe Kazneno Popravni
Dom (KPD) camp as follows:
"3547. KPD was a criminal rehabilitation centre for civiliansprior to the war. Beginningon 18
November 1991, Croatianscapturedut the battle of Vukovaras well asMuslimsj?om Bosnia were
detained there. Reports indicate detainees were being heldin the KPD as late as 14 August 1992
by the INA in conjunction with paramilitary and local Serbian civilians.The ICRC [International
Committee of the Red Cross] visited a detention facilityin Sremska Mitrovica onr
1991. This camp is also mentioned in another report.
3548. The KPD is situated in the city of Sremska Mitrovicain south-western Vojvodina,FRY. The
city ispproximateiy 75 kilometres southwest of Vukovar,~roa[ibidem,p. 430, paras.
3547-3548, emphasisadded] .
The KPD camp in SremskaMitrovica wastherefore not only usedto detain Croats
from Croatia, but alsoBosnian citizens.
455. The majority of the Bosnian citizensin the Sremska Mitrovica camp werefiom the
city of Bosanski Samac, where theywere ethnicallycleansedat the beginningof theReply of Bosnia and Herzegovina
armed conflict in Bosniaand Herzegovina. BosanskiSarnacis a Bosniantown on the
border with Croatia, whichfell on 17April 1992,when itwas taken by a combined
force of local Serb units, Serbianparamilitariesand the JNA [see also Reply,
Chapter 8, Section 31.The population of the KPD camp was analyzedby the
Commissionof Experts:
"3558. The ethnicig of theprison population was mixed; the majoriq of the detainees were
reportedlyroatiansfi.om Vukovar and Muslims and Croatiansfrom Bosanski Sumac, BiH.
However, among thepopulation were Hungarians and Croatiansfrom the Vojvodinaarea
imprisoned as part of FRY3 domesticpolicy of relocating non-Serbgroups. There were also
reports of an American, a Ruthenian, a Slovenian woman,and several Albanians being imprisoned.
Several reports mention that Serbsfiom Vukovar, who refused to collaboratewith the Serbian
forces, and even aA soldier were detained. TKPD was also populated with civilian criminals,
not being held in connection with the conflict. An undetermined number ofiminals
participated in the rape of at least one femaie p[ibider". m.,432, para. 3558,
emphasis added].
The KPD was used asa tool in a policy of "relocating non-Serb groups", whetherof
Croatian, Bosnianor Yugoslavorigin. It was, in the view ofthe Commissionof
Experts, therefore an intermediatestation and in some cases also thefinal destination
for non-Serbs ethnicallycleansed fromtheir homes in Bosnia and Herzegovinaand
other parts of the former Yugoslavia.
456. One of the Muslims detainedin the camp was the leader ofthe BosnianParty for
Democratic Action (SDA) in Bosanski Samac, SulejmanTihiC.During his stay in
Sremska Mitrovica, TihiCprominently figured on Belgrade television,on a news
programme which showednot only pictures of the camp and its prisoners, but also a
recorded statementTihiChad been forcedto give. The news programmewas
broadcastedshortly after the fa11of Bosanksi Samac in April or May 1992.The
transcript of the programmereads as follows:
"[voice-over:] The Visnewsteam visited and filmed the prisonin Sremska Mitrovica. We are
showing its coverage on a whole.
[newsreader:] Morethan400 detainees, members of different Croat formations (National Guard,
Ministry of Interiors, HOS),nly from Vukovar, are presently heldin the prison in Sremska
Mitrovica. group of Muslims is among them. We record the statement of Sulejman Tihii, now
prisoner,former president of SDA of Bosanski Sumac.
Fihik:]A group of captivesfrom BH, som40 of us, turned to the BH authorities with request,
with urgent request, tosider our status and ourproblem in such a asto releasefrom
military prisons or whereverJNAe captives are detaintorelease around25soldiers, and
after that JNA would release usfrom Bosnia who are presently in militaryprison of Sremska
Mitrovica. 1have already sent the lintmy capacityasthe president of aparty branch to Alija
Izetbegovicasthe president of SDABH and 1use this opportunityto appeal once again to resolve Chapter 8- Section 12
Ethnicpur$cation in theterritory of Yugoslavia
both our problem and theproblem of those soldiers because both the soldiers and us, al1have their
parents, children, brothers, sisters, and everybodying for usto be released fiom this
detention.think that Ourexchange should not be a problem[Transcriptof Belgrade TV
News, AprilMay 1992, Annex2631.
The text of the programmebroadcastedby Belgrade television confirmsthat
inhabitants of Bosanski Samacwere indeedtaken to Serbia. The visit of the
television crewto the camp was also reportedby the Commissionof Experts [United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps",p. 443,
para. 36451.The number of detainees mentionedby the announcer, "morethan 400",
is much too low. In fact, the numberof prisoners wasin the range of 3,000 to 4,000
[ibidem,p. 432, para. 35591.Not al1of these were men, women were also reported
to be kept in the camp [ibidem,p. 436, para. 3589; p. 438, para. 3606; pp. 440-441,
paras. 3637-36291.
457. The camp fell under the comrnand ofthe JNA. This also becarneclear in the above
quoted televisionprogramme. In his forcibly extracted statement,SDA leader
Sulejman TihiCasked for the return of JNA soldiers,after which the "JNA would
release us from Bosnia who are presently in military prisonin SremskaMitrovica".
The JNA obviouslyhad the power to imprison anddischarge detainees.The guards
at the camps were also primarily JNA soldiers. Sometimes, membersof Serbian
paramilitary organizationswere seen on the premises as well. The Commissionof
Experts reported as follows:
"3550. The JNA appeared to be in control ofthe KPD. This was substantiatedby several prisoner
statements claiming both the presence of theJNA at the detention facility and apparent custodyof
prisoners by theame. Also, prisoners compared treatmentat the hands of the paramilitary
members andJNA personnel, both of which had accessto the detainees. An article in the Belgrade
daily Borbaquotes at length a civilian held at Sremska Mitrovica attributing hissurvival to the
fact that he was held in a JNA prison. Further,al reports indicate listsof prisoners were
supplied to the prison personnelby the Yugoslav Federal Police (SDS). In aletter to Human Rights
Watch, the Serbian Govemment clearly admittedto having held individualsfiom Ovcara.
3551.The commander of the military guardsat the KPD was called KOS by the prisoners, which is
an acronym for counter intelligence agency. The guards referredto him by a codeHe
participated inthe beating of prisoners. Another document allegedthat the camp was a JNA
Captain. It is likely that they are the same individualas they are both referred to by the guards by
thesame code name and were at the KPD during the same time period.
3552. Some of the guards at the KPD were identifiedbyme in various reports. Three were
transferred fiom their positionsat Begejci [another notoriouscamp in Vojvodina] to the KPD
around 25 December 1992. Five prison guards,1about 18to 20 years-old and JNA privates, wereReply ofBosnia andHerzegovina
at the KPD for rnilitary police training. They regularlytortured prisoners and were responsible for
the deaths of at leastprisoners. Another guard was identifiedonly by nickname.
3553. Sources identiïy sevenothers who were not prisonersand whowere present during the
beatings at thePD. A lance corporalwas present at the camp from 24 September 1991to 3
October 1991and beat at least one prisoner repeatedly.
3554. A captain, an investigating officer, interrogated prisonersat KPD and apparently supported
the methods used byan investigating officer from Bege-can ensign 1st class. One report
indicates that prisoners were being forcedto sign confessionsen by the captain.
3555. In November 1991detainees were beatenby JNA soldiers,JNA rnilitary police, and bus
drivers of Serb nationaliîy. Paramilitary units and civilians participatedin the beatings and killings
[in] the KPD along with theNA military personnel. Multiple reports indicate that rnilitary police
and Serbian policemen beat prisoners onrriva1at the KPD. One report in particular indicated a
military policerivate first class took partin the beatings. A number ofreservists acted as guards
and apparentlyîreated the prisoners morehumanely."[ibidep m.,431, paras. 3550-35551.
The JNA was thus in cornmand ofthe camps and JNApersonnel condonedor
participated in the regularmaltreatmentof the prisoners.
458. The treatment of the detaineesat Sremska Mitrovicadid not differ from the camps in
the territory of Bosnia and Herzegovinaunder Serb control [see, Reply, Chapter 5,
Section 51.Like in the Serb controlledareas acrossthe border prisonerswere
regularly subjectedto various forms of torture:
"3581. Prisoners were beaten severelyon a regular basis.Several detainees were allegedly beaten
so severely that they suffer from permanent damage. Some were beatenuntil they passed out and
were revived with water so that the prison authorities did not have totake them to the Novi Sad
[Serbia]hospital. One source claims he was beaten unconscious fouror five timeswasebeaten
on the head, they broke hiseeth, wounded his chest and he still has kidney pains. Another witness
claims he was only beaten once andthat he was kicked and beaten on the soles of his feet. Other
prisoners were also beaten on their feet.
3582. Prisoners were also forced to eat pepper and salt, hadpistols shoved in their mouths, and
one individual had hisjaw broken and wasunable to lie down due to his beating. Many prisoners
were beaten during their exercise period.
3583. The beatings were perpetrated by the guards at KPD and dmnken paramilitary members.
The latter encouraged youngerJNA soldiersto takepart.The prisoners were beaten with bare
hands and various instruments; truncheons, mbberhammers, blackjacks,mace type objects, baseball
bats, clubs, and iron rods.The guards unleashed trained dogsupon the detainees."de m.,
435, paras. 3581-35831.
Sometimes, the prisonerswere beaten untildead:
"3586. An undetermined number of prisoners were beatenuntil dead. One detainee claimedthat
two prisoners died as a consequenceof beatings and werelefi to lie for 20 hours next to those still
alive. There is another report of a detainee witnessing thedeath of two priItis unclear as to Chapter8 -Section12
Ethnicpurificationin the territory of Yugoslmia
whether these reports refer to the same incident.A woman claims thather brother-in-law fiom
Lovas died in Sremska Mitrovica on20 December 1992due to maltreatment. Allegedlythe
beatings which accompanied the interrogations ofien resultedin death. Atrisoners were
tortured to death accordingto one source.In contradiction, another sourceclaims that people were
killed butver in fiont of witness[ibidem,p. 436, para. 35861.
The female detaineeswere beaten andinterrogatedas well. Many women in the KPD
camp were also raped by the guards, visiting paramilitariesor other prisoners.
[ibidem,pp. 440-441, paras. 3626-36301.
459. The SDA leader from Bosanski Samac, SulejmanTihik,who was mentioned above,
was once forced to be the judge in a mocktrial stagedby the camp guards.This
"trial" is also mentionedby the Commissionof Experts, whichbriefly described the
developments in "court"and the tragic outcome:
"~uring the trial the accused prisoner was beaten severely and forcedto confess to killing Serbs.
The morning afier the trial he was foundd[ibidem,p. 443, para. 36461.
460. The Croat and Muslimprisoners of the KPD camp were deliberatelytargeted for
maltreatment because of their ethnicity. The campwas, after all, used primarily to
imprison Croats and Muslims "aspart of FRY'Sdomesticpolicy of relocating non-
Serb groups" [ibidem,p. 432, para. 35581.This policy of relocation is commonly
referred to as ethnic cleansing.Duringtheir forced stay in Sremska Mitrovica, Croats
and Muslimswere, for example,forcedto sing Serbian songs [ibidem,p. 435, para.
35841,obliged to sign "prepared confessions denouncingtheir nationality, religion
and right to land" [ibidem,p. 437, para. 35971or forced "to read acyrillic bible".
[ibidem.p. 442, para. 36361.
TheICRC S visitsto the KPD camp
461. The International Cornmitteeof the Red Cross visitedthe camp at Sremska Mitrovica
several times.The reports of these visits remain confidentid, but the Commissionof
Experts included its findings on these ICRC investigationsin their Report. Their
account of the events is particularlyinterestingsince it clearly shows the way the
Yugoslav authorities tried to delude the Red Cross representatives:
"3650. The role of the ICRC in relation KPDtwas three-fold: register
detainees, monitortheir treatment, and observe theexchange of prisoners. Apparently theKPD
personnel expendeda considerableamountof energy to deceive the ICRC.Reply ofBosniaand Herzegovina
3651. For the first two months, December and January, the camp personnel wouldnot allow the
Red Cross access to the prison. In January,the ICRC requested admissionto hall numb3r
but was told that there wasno one there. Al1the prisoners, who werein fact in that room, were
moved out andshortly thereafter, the Red Crosswas permitted to enter the emptied hall.On a
second visit, the ICRCas allowed to see the prisoners.
3653. Once the ICRC had gained permissionto enter the camp, representatives interviewed the
prisoners and took written statements;but the JNAcers were very successful in hiding some
prisoners and misleading the representatives.Forle, some of the prisoners were forcedto
dress inmilitary uniforms over their civilian clothesto enable the JNA to present themas POWs
rather than civilians to the ICRC and other international organisations. The ICRCsent inspectorsto
the facility eve30 days which temporarily improvedthe lot of the prisoners. About 125 prisoners
who were not included on thelist given to the ICRC were hiddenby prison officiais in cellars and
attics during the Red Cross visits.
3654. In addition, prisoners were givensoap and toilet paper only when a commission was
expected, butthese were taken away the momentthe commissionleft. At al1other times hygiene
was kept at a minimum. In March, though, therds were changed and the food improvedon the
request of theCRC." [ibidem,p. 443-444, paras. 3650-3654, emphasis added].
The JNAofficers in charge of the camps thus successfidlysucceededin hiding
certain prisoners and misleadingthe Red Cross representatives.Those prisoners the
ICRC managedto visit understandably were very carefulnot to reveal anythingthat
could subsequentlyendangertheir lives. Sometimes,inmatesrefused to talk tothe
Red Cross' representativesentirely, for fear of being killed aftenvards [ibidem,p.
443, para. 36451.
462. The foregoing extract from the Commissionof Experts'Report is very illustrative, as
it clearly demonstratesthe Respondent's outrightmisleadingattitude towards the
international comrnunity.If international observerswere permittedto visit the
country at ail, they were only allowedto see whatthe Yugoslavauthoritieswanted
them to see and that was most certainlynot a reflectionof the truth.
463. This deceivingbehaviour to agreat extent explainsthe results of the CSCE mission
to Yugoslaviain January 1993. Theyalso visited two detentionfacilities in Sremska
Mitrovica, probably including the KPD camp describedin the foregoingpages. At
the time the CSCE rapporteursvisited the site of the camp, in January 1993, mostof
the prison population had leftthe camp as part of one of the prisoner exchanges
organisedby the Yugoslav authorities.The majority of the inrnateswas released
fiom the KPD on 14 August 1992, whenthe last major exchangetook place [ibidem,
pp. 444-445, paras. 3658-36671.Five months later -that is, in January 1993 - the
CSCE representatives spoketo a prison warden: Chapter 8- Section 12
Ethnic purifcation in the territory of Yugoslavia
"~t the penitentiary,the Rapporteurs were informedby the warden that the prison had previously
been usedas a place of detention for 'prisonersof war' from Croatiabut that a complete exchange
of the detainees had taken place. Through interviews with Muslim prisoners who had been
convicted of common crimesprior to thetbreak of the Yugoslav war, the Mission gainedthe
impressionthat there were presently no prisoners of waror other such de["Report of
the CSCE Mission to Inspect Alleged Placesof Detention in the Republics of
Serbia and Montenegro", CSCE, 13-18 Jan. 1993, p. 9, para. 26, as reproduced
in the Counter-Memorial, Annexes to Chapter 1,Vol 1,pp. 21-26].
The prison warden admitted that the camp had been used as a detention facility,
although he failed to mention that Bosnian citizens had been imprisoned as well. His
remark that the KPDhad been used to house "prisonersof war", was put between
inverted commas by the CSCE rapporteurs.
Bosnians arrested in Yugoslavia and handed overto the Bosnian Serbs
464. In addition to the above mentioned camps, Yugoslavauthorities used existing
detention facilities for other purposes as well. Bosnianswho had fled the war in
Bosnia and Herzegovina in the first months of the armed conflict were imprisoned
for a short time, before being handed over to the Bosnian Serbs.
465. Many Bosnian Muslims fiom the area around FoEa,for example, fled to Montenegro,
when the city was ethnically cleansed by the Serbs in April 1992. FoEais a relatively
large city in the southeast of Bosnia and Herzegovina,not far fiom the Montenegrin
border. In its Report on prison camps, the Commission of Experts reported the
following:Reply of Bosnia and Herzegovina
"1n March and April 1992, Bosnian Muslimsfled fiom the hostilities in the FoEaarea to
Montenegro, which they beliwasdsafe due to programs authorities in Serbia broadcasted.These
programs indicated that Muslirns were safe in Serbia. In July30Muslim refugees in
Herceg-noviontenegro] were apprehendedby the city police and detained inthe cityjail. They
were held until unidentified police andsMiso StevanociCarrived in Foca police vehicles
andtransported them to the FoEapri[United Nations,Final Report of the United
Nations Commissionof Experts, Sl19941674lAdd.2, (Vol. IV), 28 Dec. 1994,
Annex VIII, "PrisonCamps", p.411, para. 33971.
The prison of Herceg Novi in Montenegro wasonly one of the centresused to detain
Muslim refugees from Bosnia and Herzegovina.Others were imprisonedin the
Montenegrin cities of Podgorica [ibidem,p. 411, para. 3402,l and Pljevlja:
"Pljevlja, in northern Montenegro, wasalso a site where Muslims took refugefrom the hostilities
in the Foca area around March andApril 1992.In July 1992 Muslimrefugees were rounded up and
held injails ineral cities, one of which was Pljevlja, until they were pickedup by Foca police
personnel.l1the refugees were taken to Foca prison and detained until theywere sent to
unidentified locations."dem,p. 41 1,para. 34011.
The above showsthat the Federal Republicof Yugoslavia was actively engagedin
the ethnic cleansingcarnpaigncarried out in the FoCaarea. The authorities in
Montenegro andthe Republika Srpskaactively cooperatedin the process, whichis
illustrated by the fact that the detained Muslimswere picked up in Montenegroby
Bosnian Serb police officers.
466. The Muslims arrested in Montenegrowere taken to the prison campin FoEa,where
they were detained "untilthey were sent to unidentifiedlocations" [ibidem,p. 411,
para. 34011.The prison in FoEa,the KaznenoPopravni Dom, KP Dom, was one of
the most notoriouscamps run by the Serbs in Bosnia and Herzegovina [Reply,
Chapter 5. Section 51.There, many detaineeswere tortured and killed [United
Nations. Final Report of the UnitedNations Commissionof Experts,
S/1994/674fAdd.2, (Vol. IV), 28 Dec. 1994, AnnexVIII, "PrisonCamps",pp. 128-
132, paras. 1038-1 0781.
467. At the date of submissionof this Reply,the fate of the deportedrefugeesremains
unknown. The ICRC has listed manyof these non-Serbsas missing:
- Enver Mujcic, for instance,was arrestedon 25 February 1992in Montenegro.
According to the informationavailableto the ICRC, he was taken to FoCa KP Dom
two days later, by Bosnian Serbpolice officers [ICRC,Informationrequests for Chapter8- Sectio12
Ethnicpurrficationin the territory of Yugoslavia
persons unaccountedfor in Bosnia and Herzegovina, BAZ-243906101, February
1996, Annex 2641.
- Suvad Topalovic suffered the same fate on 27 May 1992 [ICRC,Information
requests for persons unaccounted for in Bosnia and Herzegovina, BAZ-10443910 1,
February 1996, Annex2641.
- Bego Jahic was also captured in Montenegroon 25 May 1992 and subsequently
deported to the KP Dom. The Bosnian authoritiesin charge of the camp in FoEa
informed the ICRC that Jahic had arrived at the facility. However, when ICRC
delegates visited theKP Dom camp several months later, Jahic was not there
anymore [ICRC, Information requests for persons unaccountedfor in Bosnia and
Herzegovina, BAZ-910778103,27 May 1997, Annex 2641.
- Edhem Kafedzicwas arrested in Pljevlja, on the territory of Yugoslavia,by the
JNA, on 24 April 1992. He was separated fromhis fellow travellers and sent to
FoEa,together with three unidentifiedpersons. From there, he was later taken to an
unknown camp with thirty other prisoners [ICRC, Information requests for persons
unaccounted for in Bosnia and Herzegovina,BAZ-10369210 1, February 1996, Annex
2641.
- SalihColak was caught on 20 May 1992near the town of Pljevlja. He was arrested
by the Bosnian Serb police on Montenegrin territory and taken to an unknown
destination [ICRC,Information requests for persons unaccountedfor in Bosnia and
Herzegovina, BAZ-107494101,30 September 1996, Annex2641.Reply ofBosniaandHerzegovina
- Fehim Colak was also arrestedon 20 May 1992,at the same occasion [ICRC,
Information requests forpersons unaccountedfor in Bosnia and Herzegovina,BAZ-
107494f02,30 September 1996,Annex 2641.
- Amer Prelo was captured26 May 1992,near HercegNovi, inMontenegro.
According to information the ICRC received fromthe General Secretariat of the
President of Montenegro, Prelo was later handed over to the (Serb)police in
Srebrenica [ICRC, Informationrequests for persons unaccounted forin Bosnia and
Herzegovina, HRZ-020314101 , February 1996, Annex 2641.
- Smail Hasanbegovicwas arrested on 26 May 1992as well. Accordingto the
Montenegrin authorities, he was later transferred to Bosniaand Herzegovina,where
he was last seen by an ex-detaineein September 1992[ICRC,Information requests
for persons unaccounted for in Bosnia and Herzegovina,HRZ-020315/01, February
1996,Annex 2641.
The whereabouts of those non-Serbs arrestedin the Federal Republicof Yugoslavia
remains unknown. The Applicant fears theyare no longer alive.
468. The arrest and deportationof the Muslimrefugees from east Bosniain Montenegro
was, in the spring of 1994,also describedby the independent Serbian newspaper
Vremein a series of articleson the topic. These included a listof deportees,which
was also read in Denrnarkby a Bosnianrefugee, FahrudinCengiC.CengiCrecognised
the names of several family members and decided to addressVremehoping that it
would be able to give more informationon their whereabouts:
"1n your newspaper of April 22 and Ma6,1994,I have read the list of deportedrefugees fiom
Montenegro. My sonCengiCHimzo, born in 1958, my grandson Prelo Amer, born in 1973, and my
son-in-law Hasanbegovic Smail,born in 1949, are on the list.Al1of them are fiom Gorazde.
We have escaped fiom Gorazde on 14.04.1992 intomy weekend house in the place of BaosiCinear
Herceg Novi Montenegro]. On 26.05.1992,around 11 hours, two policemencame in front of my
house and said: 'Al1men to give their identification cards andgo out for an informative
conversation'. Atthatry moment 1understoodthat we were arrested anas soon as we went into
theStreetthey put us into the closed police car and direction was Her..They took six of
us into the SUP [police station] in Herceg Novi:
1,CengiC(father's name Himza) Fahmdin, born in 1927;my son CengiC(father's name Fahrudin)
Himzo, born on 4.08.1958, completed the Facultyof Political Sciences;my grandson Prelo
(father's name Asim) Amer, born on 18.9.1973,a pupil; Hasanbegovic (father'sname Semso)
Smail, bornin1949, employed in the Svjetlost' Sarajevo;Pmtina Alija from Gorazde and Bihorac
Hajmdin from Visegrad and Buljubasic Safetfiom Gorazde.
After several hours spent in the prison, theytook me out and told me to wait in fiont of the office
of the police commanderwho was supposedto give me my ID.1was waiting for several hours
being able to see who is going into and outof the office.
InBaosiCimy neighbours, the Serbs fiomGorazde, Vukovié Momir,a.k.a. 'Moso', andVeljoviC
Ljubo, a lawyer in the Health Centre in Gorazde, were with policemen. Theysat next to the driver. Chapter8 - Section 12
Ethnicpurzjîcationin theterritory of Yugoslavia
When we al1went out from the car in front of the SUP Herceg Novi, we were taken into the prison
while they went straight to the office of the police commander and they were not at al1but
were accomplices inour arrest.
Please find enclosed the written answerof the president of Montenegro and1kindly ask you and
al1others to inform me on any piece of information aboutmy son, grandson and son-in-law, as1
have been asking al1around, writing to many addresses, and1don't know whomto tum on any
more. 1was expelled from BaosiCion 8.06.1992,and 1went to Bijelo Polje [Montenegro] and from
Bijelo Poljecame to Denmark on 30.06.1993where 1live now.
CengiC~ahrudin" [FahrudinCengiC,letter published in Vreme,May 1994, Annex
2651.
The six Muslim men mentionedin the letter above were refugees from east Bosnia,
Gorazde and ViSegrad.Al1were arrestedby the Montenegrin policeon the directions
of Serbs from their home town. Fahrudin CengiCwas later released, for unknown
reasons. The others were not.
469. In his letter to Vreme,CengiCenclosed a "written answer"from the President of
Montenegro. CengiC'sMuslim companionshad been handed over tothe Bosnian
Serbs, shortly after their arrest:
"~e~ublic of Montenegro
GENERAL SECRETARIATOF
THE PRESIDENT OF THE REPUBLIC
-Commission forrequests and proposals-
Number: 07-19417
Podgorica [capitalof Montenegro]: 14.04.1993
CENGIC FAHRUDIN
AtHodzi6Zuhdo
BIJELO POLJE wontenegro]
Potkrajci
On the occasion of your addressingto the General Secretariatof the president of the Republic of
Montenegro we inform youthat we have received fiom the Ministry of Intemal Affairs of
Montenegro the answer with the following content:
Uponthe claim of thepublic securiîy stationof the SrebrenicaSUP [Secretariat of Interna1
Affairs], thefollowing persons, beingthe Muslimsand Serbs,were arrested, transferredto and
handed over to the workersof theSrebrenicaUP.
Among the mentionedpersons arealso CengiCfather S nameFahrudin)Himzo,Prelo father S
nameAsim) Amer and HasanbegoviCfather's name Semso)Smail.
Due to war activities in that region and break of communications in police CO-operation,the
Minisîq of Intemal Affairs is not able to find out in which way the persons, who had been handed
over by the MUP pinistry of Interior] of Montenegro uponits claim, were treated.
[Seal] ADVISER
Republic of Montenegro [signed]
General Secretariat of the President LjiljanaIvanociCReply of Bosnia andHerzegovina
of the Republic
~odgorica"[GeneralSecretariatof the Presidentof the Republic of
Montenegro, letter to CengiCFahrudin, signed:Ljiljana Ivanovik, 14Apr.
1993,Annex 2661.
The letter above shows that Cengié'sarrested family memberswere eventually
handed over to the Bosnian Serb authoritiesin the Srebrenicaarea. This was done
"uponthe claim of the public securitystation of the SrebrenicaSUP". Apparently,
the cooperationbetween the two Serb entitieswas so close that a mere "claim"was
sufficient todeport or hand over innocent Bosnian civilians.
470. A letter similar to the one cited above was also sent to Suada Cardaklija, a Bosnian
Muslim, after she had asked the authoritiesof Montenegroabout the whereaboutsof
her husbandarrested in Montenegro.It turned out that SuadaCardaklija'shusband
had been transferred to the camp in FoCaas well. The transporthad taken place
under the comrnandof the Montenegrin Ministryof Interior on 25 May 1992.The
authorities in Montenegrofailed to mentionthe reason forhis arrest, but informed
Suada Cardaklijathat the fate of her husbandwas not known,
"dueto themainreasonwhichis thatthecivilwar,which caustotalbreakof policeco-
operationandgatheringof piecesof information oateof personhandedover.[General
Secretariatof the Presidentof the Republicof Montenegro, letter to Cardaklija
Suada, signed Ljiljana Ivanovic, 5 July 1993,Annex 2671.
This explanation for the lackof informationon the whereaboutsof the arrested
refugees is in sharp contrastwith the truth [see alsoChapter 8, Section61.During
the years of the armed conflict, the Republican Ministriesof Interior in Yugoslavia
and the "RepublikaSrpska" continuedto cooperate with eachother on a day-to-day
basis, which is also evidencedby the fact that the Bosnianscivilians involvedwere
handed over to the Bosnian Serbs in the spring of 1992, well after the fighting or so-
called "civil war" in Bosnia and Herzegovinahad erupted. This "civilwar"
apparently did not form any obstacleat al1to the deportationof non-Serbs to Bosnia
and Herzegovinaand an almost certain death in a BosnianSerb prison camp.
Yugoslavcamps usedto extraditeBosnianrefigees to thirdcountries
471. Yugoslav authorities also establishedcampswhere refugeesfkomBosnia and
Herzegovina were detained before being expelled tothird countries. Severalcamps Chapter 8 -Section 12
Ethnicpurification in the territory of Yugoslavia
were located in or around the city of Subotica,in Vojvodina, near the Hungarian
border.
These camps were, for exarnple,used for Muslims expelled fromZvornik, a town
ethnically cleansed in April 1992 [Reply, Chapter 5, Section61.The fact that
refugees from Zvornik were heldin the Subotica area is not deniedby the
Respondent. In its Counter-Memorial,the Federal Republicof Yugoslaviaexplained
the presence of these Zvornik refugees as follows:
"The Muslim populationfrom Zvomik expressed the wishto be allowed the transit on their wayto
the Westem Europe. However, the Hungarian authorities stoppedthe convoy because the refugees
had no travel documents. Theonly way to deal with the situation was to putthe refugees up at the
temporary reception centerat Palié, Subotica, until their travel docums ere issued.
The refugees stated that they wantedto leave Zvornik because of the outbreak of war, for persona1
security reasons andto evade mobilizationby the authorities ofija Izetbegovié.
(.-)
The temporary transit reception centreat Palié was organizedin accordance with the principles of
the Red Cross and those of humaneness and neutrality.It was intended for al1refugees who were
passing through theFR of Yugoslavia while waiting fortravel documentsto be issued, regardless
of their religion or nationality, but who could not afford accommodation and other similar
amenities. The centerwas an open establishment, therefugees moved freely and coulduse al1Lake
Paliérecreational complex facilities. Food, accommodation andmedical care were at a satisfactory
level, of which concrete evidence is containedin refugee statementsand other relevant documents
as they display no complaint by any refugee with respectto the stay at Palié.The only check-point
was at the reception desk, and abook of duty was also kept. During the operation of the centre no
refugee was hurt or arrested.[Counter-Memorial,p. 67-68, paras. 1.3.5.19, 1.3.5.20
and 1.3.5.23.1.Reply ofBosnia and Herzegovina
473. The picture of hospitality sketchedby the Federal Republicof Yugoslavia seriously
bends the truth. The Respondent failedto mention, namely,that it firstforced the
refugees from Zvornik to leave their home town, which was brutally attackedin
April 1992 by a combined forceof JNA troops and Serbianparamilitary [seealso
Reply, Chapter 8, Section 31.It also failed to report thatthe refügees never wanted
to be sent to third countries, such as Hungary, Austriaor Germany. Theywere never
asked whether they preferred goingback to Bosnia andHerzegovina, norwere they
invited, let alone allowedto do so. In February 1993, Special RapporteurTadeusz
Mazowieckigave the following account, whichwas also referred to in the
Applicant's Memorial [Memorial,p. 51, para. 2.2.5.91:
"1n June 1992 deportees from Kozluk and Zvomik, towns whichhad a Muslim majority,gave the
following account of their forced deportationto Hungarian border guards.The towns were sealed
by Serb forces. Muslimamilieswere told they had six hours to pack their belongings andgo to a
certain gathering point.In the case of Zvomik, itwas a farmyard. Atathering points,the
names of the deportees wereput on a list, and everyonewas individually orderedto sign this list.
They were informedthat by their signature they 'voluntarily'gave up al1their belongings.The
deportees werehen ordered, someat gunpoint,to board busandtrucks and later trains until they
arrived at Palic (Vojvodina) [near Subotica] where they were put upat the local camp site.
Although the deporteespparently did not so request, they were providedwith Yugoslav passports
after photographers cameto the camp site for thisse.For some deportees, the issuing
authority of their Yugoslavpassport was 'MUP Subotica'. Deportees reported that between26 June
and 1 July 1992 there were about 1,200persons from Kozluk and another1,800 from Zvomik at
the Palic campsite.ter being taken to the border,these persons were admitted to Hungary as
refugees."[United Nations,Situation ofHumanRights in the territory of the
former Yugoslavia,Report submitted by Mr. Tadeusz Mazowiecki,Special
Rapporteurof the Commission on HumanRights,E/CN.4/1993/50, 10Feb.
1993, p. 22, para. 991.
This so-called "refugee"camp near Subotica and the bureaucracy established to
supply al1the refugees with the necessarypapers made it possible to cleanse the
Zvornik area of its undesiredMuslims.The camp in the Subotica area was thus one
of the final links in the long chain of ethnic purification.The existenceof this chain
and the way the different linkswere connectedwas also describedby the Ludwig
Boltzmann Instituteof HurnanRights in Vienna in their Reporton the ethnic
cleansing of Zvornik [Trettere.a., "EthnicCleansingOperationsin the northeast-
Bosnian City of Zvornik fiom April through June 1992",Ludwig Boltzmann Institute
of Human Rights, Vienna, 1994,pp. 28-29, 35-36,Annex 481.
474. The expulsionof the Zvornik refugeesvia Suboticawas also discussedin Chapter 5,
in the Section entirely devotedto the ethniccleansingof that area [Reply, Chapter5,
Section 61. Chaprer8 -Section 12
Ethnicpurification in theterritory of Yugoslavia
475. The use of "refugeencampsto extradite non-Serbsto third countriescontinued
throughout the war. In April 1996,a delegationof the govemment of Bosnia and
Herzegovina was allowedto visit the ~ljivovicacamp near Uiice in Serbia. The
authorities of the Federal Republicof Yugoslavia usedthe camp to imprisonrefugees
from the former east-Bosnian safe havenof iepa, which fell shortly after the capture
of Srebrenica in July 1995.It was the first time a Bosniandelegation was allowed to
inspect a detention centre on Yugoslavterritory. At the time the delegationwas let
in,many Muslim refugeesfrom iepa had been deportedto third countries, often
against their will. None was allowed toreturn to Bosnia and Herzegovina.Many
others were awaiting deportation.The camp was surroundedby barbed wire and
trenches and was guardedby armed policemenwith dogs. At least two of the
inmates were killed during their eight months'stay in the camp. It is importantto
note that the visit took placeon 9 April 1996,almost half a year after the Dayton
Peace Accordswere signed. After their visit, the delegationpresented awritten
Report to the President of Bosnia and Herzegovina [Reportof the State Commission
for search of missing persons,nurnber0615-431969 , April 1996,Annex 2681.
476. Some of the non-Serb refugees fiom the former enclave of iepa were capturedby
the Yugoslav authoritiesand subsequentlyhanded over to the Bosnian Serbs [see e.g.
ICRC, Information request forpersonunaccountedfor on the territory of Bosnia and
Herzegovina,BAZ-10668110 1, 31 August 1996, Annex2691.
TheSandZakMuslimsReply of Bosnia and Herzegovina
In the above passages, specialemphasiswas placed on the fate of Bosnian refugees
in Yugoslavia. Theywere, however, notthe only ethnic or religiousminority which
suffered at the hands of the Yugoslavauthorities.As mentioned above, genocidal
acts were also comrnittedagainstminorities living on the territoryof the Federal
Republic of Yugoslavia: Hungariansand Croats in Vojvodina, in the north of Serbia,
the Albanians in Kosovo and the Muslimsin the Sanaak area, closeto the border
with Bosniaand Herzegovina [See e.g.: United Nations,Situation ofHumanRights
in the territoryofformer YugoslaviaP , eriodic reportsubmitted byMs. Elisabeth
Rehn,Special Rapporteurof the Commissionon HumanRights,E/CN.4/1997/8,25
Oct. 1996, pp. 7-26, paras.17-1001.In the following,the Applicant willfully
concentrate on the fate of the Muslim inhabitantsof the Sandiak region.
478. In September 1995,Elisabeth Rehn succeeded Tadeusz Mazowieckias the new
Special Rapporteurof the Commissionon Human Rights. One year later, in October
1996, Rehn publishedher Specialreport onminorities,in which she devoted a
number of pages to the plight of the Sandiak Muslims andto the serioushurnan
rights abuses that occurred in the region after the break up of the former Yugoslavia:
"76. Political tensions have persistedin the Sandzak region since the break-up of the former
Yugoslavia.The situation turned increasingly precariousin October 1991, when the Muslim Party
of Democratic Action (SDA)of Sandzak organizedan unofficial referendum on autonomy for the
region. According to SDA sources,98,8 per cent of the votes castwere in favour of an autonomous
Sandzak.
(-1
77. The FRY authorities have respondedto the volatile situationin Sandzak by strongly increasing
the presence of military and police unitsin the region. In the last several years there have been
continuedreports ofserious humanrights abusesperpetrated both by the Yugoslav authorities and
by Bosnian Serb paramilitaryforces crossingintondzakfi.omthe RepublikaSrpska. With the
declared aim of looking for hidden arms, the police haveed out systematicsearches of Muslim
homes in locations throughout thegion. Numerouscases of arbitrary arrests, interrogations and
ill-treatmentor torture have beenreported and documented in connection these raids, in
which membersof the SDA, other political activists andjournalistsappear to have been
particularly targeted. Theauthoritieshave reportedlyenlittle orno action to investigate orput
a stop to these abuses. The situation hasnow calmed down somewhat with onlysporadic incidents
reported in the last year.is nevertheless clear thatthe Governmentof the Federal Republicof
Yugoslavia continuestobeur responsibilityfor investigatingpastabuses in order to bring the
persons responsibletojustice.
(-.-1
78. Harassment, intimidation and violence againstthe local Muslim populationwere reportedly
particularly intensein theeverin-Bukovicaarea near the Bosnian borderfiom 1992to 1994.
Bosnian Serb irregulars and pararnilitaryunits are believed to have been responsible for most of
these abuses, but it appears that the Yugoslavarmy and police didlittle to stop the incursions and
protect the population.It has also been alleged in some cases that members of the military and
police of the Federal Republicof Yugoslavia have participatedin violentcks.[United
Nations, Situationof HumanRightsin the territoryofformer Yugoslavia,
Periodic reportsubmittedby Ms. ElisabethRehn,Special Rapporteurof the Chapter 8 -Section 12
Ethnic purijîcation in the territoryof Yugoslavia
Commission onHuman Rights,ElCN.411997182 , 5 Oct. 1996, p. 20, paras. 76-
78, emphasisadded].
The campaign of terror in the Sandi2a.k region was exclusivelyaimed at the Muslim
population,their political and cultural leadersin particular. For this campaignthe
Yugoslavauthorities bear full responsibility.
479. The foregoing Special Rapporteur's conclusions were confirmeb dy the findings of
those few non-govenunental organisations which succeededin gaining access to the
region, such as Human Rights Watch/Helsinki.In May 1994,Human Rights
Watcmelsinki published its findingsin a report on hurnanrights abuses of non-
Serbs in the Federal Republicof Yugoslavia.In the introductionto this reports the
authors clearly established Yugoslavia's responsibility for the atrocities committed
againstthe Sand5akMuslims in the period preceding the publicationof the report:
"With the world's attention distracted by events in Bosnia-Hercegovina,Serbian and Montenegrin
authorities have stepped oppression of non-Serbs in Serbia and Montenegro. In particular,
incidents of police abuse,bitrary arrests and abuse in detention have been prevalentin the three
regions of Serbia and Montenegroin which non-Serbs constitute amajority or significant minority:
Kosovo (a province of Serbia which is0percent ethnic Albanian), Sandzak(a region of Serbia
and Montenegro which is over 50 percent Muslim) and Vojvodina(a province of Serbiawhich is
approximately 19 percent ethnic Hungarian,5,4 percent Croat and3,4 percent Slovak).
The governments of the Federal Republic of Yugoslaviaand Serbia have done little or nothing to
curb human rights abuses in their territory. Instead, the authorities have at times directly
participated in the abu-ethrough direction, control and support of thepolice, army,paramilitary,
andjudiciary -and, at other times, condoned the abuse byfailing to investigate and prosecute
cases of abuse by armed civilians and paramilitary squa["HumanRights Abuses of
Non-Serbs in Kosovo, Sand&&and Vojvodina" , Human Rights WatcWHelsinki,
May 1994, Vol. 6, Issue 6, pp. 1-2, emphasis added,Annex 2701.
480. The developments in the Sand5a.kregion were an exact replica of the events across
the border. As in Bosnia and Herzegovina,the Yugoslavauthoritiesarmed the local
Serb population before the conflictactuallyerupted. When the fighting subsequently
started, Serb paramilitary units, supportedby the Yugoslav Army, distinguished
themselves for their cruelty:
"inter-ethnirelations in Sandzak deteriorated when thewar in Bosnia erupted in mid-1992. By
that time, Yugoslavpolice and militmy authorities had armed members of the Serbian and
Montegrinpopulations in Sandzak (The sarne is true for Kosovo, as aslfor some other regions
of former Yugoslavia.) Serbian irregulars havefiequently attacked Muslim civilians in Sandzak.
Some of the incidents are attributable to Serbian and,to a lesser extent, Montenegrin paramilitary
bands that are based in, or pass through, Sandzakon their way to eastem Bosnia (where some ofReply of Bosnia and Herzegovina
the bloodiest fightingof the war hastaken place). En route,the paramilitaries shot at mosques and
Muslim-owned shops and homes and harassed the non-Serbian populationin Sandzak. The
paramilitaries wereoJenjoined by reserve soldiers of the Yugoslav Army, whichut that time
overtly participated in the war inBosnia.The Montenegrin townof Pljevlja was among the hardest
hit -over forty Muslim shops were destroyedin less than one year.[ibidem,p. 8, emphasis
added, Annex 2701.
Genocidal acts were not only cornmittedby paramilitarytroops based in Serbia and
Montenegro.The Yugoslavauthoritiesalsopermittedarmed Bosnian Serbs to freely
cross the border:
osni ni aenb aoops begancrossingthe borderfi.om Bosnia into Sandzakto raid Muslimvillages
in early 1993. In each attack, the troops beat villagers and looted andbumed homes. On February
16, 1993, in an attack on the villageof Ravne, Montenegro, Bosnian Serb militiamen abducted six
villagers fiom sixty-two to eighty-one yearsof age, and killed a ninety-year old man.The troops
brought the captured villagers back across the border to the Bosnian Serb-held townof Cajnice and
released them a month later. During the same period, the Bosnian Serbs abductedtwo other women
and three children fiom the Sandzak villageofocaviCi.Months later, they exchanged them for
Serbian soldiers held prisoner in Gorazde.
According to interviews conductedby Human Rights WatchMelsinki, members of the Yugoslav
army and police have allowed Bosnian Serb irregularsto enter the territory of Sandzak and have
made no attemptsto protect the non-Serbian villagers.meroussurvivors have testijied that
regular Yugoslavarmy troops and reservists abetted the Bosnian Serb paramilitaries,and in some
cases participated themselvesin the raids. HumanRighi WatcWHeIsinkiis concerned that these
activities were coordinated byBelgrade authoritiesin order to 'clea'Muslimsfrom Sandzak's
border region with os nia.[ibidem,p. 9, emphasis added, Annex 2703.
The aim of the policy pursuedby the Belgrade authorities wasthus "to 'cleanse'
Muslims from Sandiak's border region with Bosnia".
481. The participationof the Yugoslav police became moreovert as the conflict
progressed. The Human Right WatchMelsinkireport describestheir role in detail:
"1n late 1993,police violence against Muslims elsewherein Sandzak intensified. Policein Serbia
and Montenegro nowraid Muslim villages daily under the pretext of weapon searches,harassing
the women and children and beatingthe men. Human Rights Watch/Helsinkihas interviewed scores
of witnesses and victims ofuch abuse during recent visitsto the area and has found evidence that
police routinely use unjustifiable force during these so-called weapons searches. Witnesses testiQ
that police beat them with rifle butts and clubs over theirentire bodies and heads, mostly on their
hands and the soles of their feet. Afsuch torture, many victims wereunable to walk; few
received proper medical aid. When the villagers haveno guns to surrender, police threaten them
with fûrther beatings unlessthey deliver weapons to the police by a certain date.Police thus coerce
them into selling their meagre property, usually acow or a few sheep, to buy a gun in the hope
that they will be spared additional abuse.
Afterprotests by local human rights groups, the YugoslavInterior Ministry formed a commission
to investigate allegationsof police abusein the town ofepolje. The commission interviewed Chapter 8 -Section 12
Ethnicpurification in the territory of Yugoslavia
witnesses in the same building where they were perviously beaten, fiequentlyin the presence of the
police officers who allegedly had beatenthem."[ibidem, pp. 9-10,Annex 2701.
As in Bosnia and Herzegovina,the Yugoslavauthoritiestried to "decapitate"the
Muslim communityby targeting their political leaders:
"~lso in 1993, authorities clamped downon the predominantly Muslim politicalParty, the Party of
Democratic Action (Stranka DemokratskeAkcije - SDA), arresting dozensof SDA activists.In
September 1993,the authorities issued an arrest warrant forSDA President Sulejman Ugljanin,
who was visiting Turkey, wherehe remains at present. Twenty-five senior SDA activists were
charged with underminingrump Yugoslavia's territorial integrity andare still awaiting trial in Novi
Pazar. Montenegrin authorities unleashed a similar campaignte last year. By January 31, 1994,
two dozen SDA leaders had been arrested. They are being held in the Bijelo Polje prison, awaiting
triai."[ibidem, p. 10,Annex 2701.
Soon afier their arrest, the Yugoslav policetransported several SDA leadersacross
the border. There they were subjected totorture, before returning to jail in
Montenegro:
"~awyers of al1the accused contend that their clients have been subjectedto severe psychological
and physical torture. Local police allegedly insulted, threatened anthose in detention.
Montenegrinpolice tookseveral of the defendantsacross the border to the Bosnian Serb-held towns
of Foca and Cajnice, where they tortured theprisoners untilthey signed 'confessi'stating that
they wereplanning an armed rebellion.Authoritiescontinuedto violate basic dueprocess
guarantees afkr they returnedthese defendantstojail in Montenegro.In particular, for weeks
authorities refusedto grant the prisoners accessto either defense counsel oral treatment,
although they al1had serious wounds fiom the beatings.The defense has been hampered by the
investigative judge'sefusa1to allow review ofal1relevant court documents."
[ibidem,p. 10, Annex 2701.
The above, again, showsthat the police authorities in Yugoslaviaand the "Republika
Srpska" closely cooperatedin the persecutionof the Sana Muslims.
482. The results of the campaignof terror in the San- region are fundamental.The
Human Right Watch/Helsinkireport showsthat the policy of ethnic cleansing
pursued by the Yugoslav authorities in the San& region is beginning to bear fruit:
"ASof this date [May 19941,more thatm SandzalMusirnshave been murderedor are missing,
hundredshave been displaced, and thousandshavefled the country.More than fiftare awaiting
trial on spurious charges. Through these repressive practices in Sandzak, the Yugoslav authorities
have accomplished several goals: the SDA, the only representativeof the Sandzak Muslims, has
been effectivelymshed. Once peace accordsare signed in Bosnia and Croatia and international
attentionhifts to the burning issue of minorityrights in rump Yugoslavia,the Sandzak Muslims
will have no voice. More ominously,the Milosevit regime appears determined to encouragetheReply of Bosnia and Herzegovina
flight of theSandzak Muslimsthroughdeliberate r[ibidem,pp. 10-11, emphasis
added, Annex p. 2701.
To escapenew waves of persecution, thousandsof Muslims, includingentire
families, have emigratedto Western Europe, theUnited States and Canada. In her
above mentioned Report, Special Rapporteur Elisabeth Rehn statedthat "as a result
of the violence, an estimated60,000to 80,000Muslimshave left the Sandiak region
since 1992and found refuge in various WesternEuropeancountries" [United
Nations, Situationof HumanRightsin the territov offormer Yugoslavia,Periodic
Reportsubmitted by Ms. ElisabethRehn,SpecialRapporteurof the Commissionon
HumanRights,E/CN.4/1997/8,25 Oct. 1996,p. 21,para.791.
483. The fate of the Muslimsin the Sandiak region epitomises Belgrade's policytowards
ethnic and religious minoritieson the territory of the Federal Republicof
Yugoslavia.The policy of "relocationof non-Serbs" pursuedby the Yugoslav
authorities was in fact aue copy and extensionof the genocidal campaignas
carried out in Bosnia and Herzegovina.
CHAPTER 9
LEGAL PRINCIPLESOF STATE RESPONSIBILITY
APPLICABLE TO VIOLATIONSOF THE GENOCIDECONVENTION
1. In its Counter-Memorial,the Respondent seeks to exempt itselffrom responsibility
for genocide by contendingthat actsconstitutinggenocide establishedby Bosnia and
Herzegovinacannot be attributed to Yugoslavia.This allegationtakes no lessthan
one third of the Counter-Memorial, specifically:
- pp. 13 to 17, where Yugoslavia asserts that"TheActs describedby the
Applicant cannot be attributedto the Federal Republicof Yugoslavia";
- pp. 90 to 110,where it tries to deny the findingsmade by various organs of
the United Nationsand other reliable international bodiesregardingthe
existence of acampaignof genocideon the part of Yugoslavia andits
prolonged participationin the genocide;
-
pp. 245 to 296, whereit exposesits self-servingviews of the policy of the
Federal Republic of Yugoslavia toward the "Republika Srpska" and the whole
of Bosnia and Herzegovina;and Chapter 9
- pp. 321 to 340, where it discusses "Attributionof acts of the State".
Moreover, many other passages of the Counter-Memorial attemptto demonstratethat
the "Republika Srpska" is a sovereign State whose responsibilityin the acts of
genocide would exempt the Federal Republicof Yugoslavia of its own responsibility.
2. In spite of some misplaced ironyused by Yugoslavia in its Counter-Memorial to
probably inrtoduced to conceal its embarrassmenton the substance of this case [see
for exarnple, Counter-Memorial, para. 1.1.4.14,or para. 5.1.1.5.], the Parties have no
strong differences concerning the applicable law which willbe exposed briefly in
each of the following sections. However,on at least one point Yugoslavia errs
seriously. In paragraph 5.1.1.3 of its Counter-Memorial,it accuses the Applicant of
confusing the general customaryrules on the attribution of acts to a State "with the
rules fiom Article III of the Genocide Convention". Thefeeling of the Applicant is
that only Yugoslavia is confùsed. However, it might be helpful to clarify this point
in limine.
3. As the Court has recently recalled:
"1t is (...) well established that, when a State has committedan intemationally wrongful act, its
intemational responsibilitlikelyto be involved whatever the nature ofthe obligation it has
failed to respect (cf.rpretationof Peace Treaties with Bulgaria,Hungaryand Rornania,Second
Phase, Advisory Opinion,ICJ Reports 1950, p. 228; and see Article 17 of the Draft Articles on
State Responsibility provisionally adoptedby the International Law Commission on first reading,
Yearbookof the InternationalLaw Commission,1980, Vol. Part 2, p. 32)[ICJ, Judgment
of 25 Sep. 1997, Gabcikovo-NagymarosProject, para. 47, emphasis added].
4. In the present case, by its Judgment of 11 July 1996,the Court has found that the
Application filed by Bosnia and Herzegovinaon 20 March 1993is admissible and
that it has jurisdiction to adjudicate upon the dispute on the basis of Article IX of the
Convention. Moreover, the Court has expressly rejectedthe rather peculiar allegation
of the Federal Republic of Yugoslavia according to which "theresponsibility of a
State for an act of genocide perpetrated by the State itself would be excluded from
the scope of the Convention" [see, ICJ,Judgment of Il July 1996, para. 321.In this
respect, the Court has observed:
"that the reference in Article IXto 'the responsibilityof a State for genocideor for any of the
other acts enumerated in Article III' does not exclude any form of State responsibility.
Nor is the responsibilityof a State for acts of its organs excludedby Article IV of the Convention,
which contemplatesthe commission of an actof genocide by 'rulers' or 'public off[ibid]."Reply of Bosnia and Herzegovina
5. Moreover,the GeneralAssemblyclearly recalled, in the contextof "ethniccleansing"
in the former Yugoslavia, that:
m tat aeesto be held accountable for violations ofhuman rights which their agents commit on
their owntemtory or on the territory of another S[United Nations,General
Assembly Resolution 48/153 (1993), 20 Dec. 1993, para.121.
6. It has been show in Part 5 of the Memorialof Bosnia and Herzegovinaand in Part
II of the present Reply that genocide has been committed against the non-Serb
population of Bosnia and Herzegovina.It remains tobe shownthat this crimejuris
gentium has been cornrnittedby Yugoslavia.But there are three further elementsof
complexity.
7. First, according tothe generalprinciples of State responsibilityin international law,
a State is responsible not onlyfor the conductof its own organs [I.L.C. Drafi
Articles on State Responsibility,Article 5, see, Report of theI.L.C. on the Workof
its 48th Session, 1996,General Assembly,OfficialRecords, 51st session, Supplement
No. 10,A/51/10, p. 1261,whateverthe position of the organ in the structure of the
State [Article6, ibid], but also for the internationallywrongful acts which can be
attributedto it and committedeither by entities empoweredto exerciseelements of
State authority [Article7, ibid. p. 1271or by persons actingin fact on behalf of the
State [Article8, ibid.] or by organs placed at its disposa1by another State[ibid.].
8. Secondly, the 1948 Conventionon the Preventionand Punishmentof the Crime of
Genocidedoes not restrict itself to prohibiting genocideas such. In its Article III it
also declarespunishable:
"(b) conspiracy to commit genocide;
"(c)direct and public incitementto commit genocide;
"(d) attemptto commit genocide;
"(e) complicity in genocide."
9. It goes without saying that aState can bear responsibilityfor these acts [see ICJ,
Judgment of 11 July 1996,prec. para. 51,but, here again, Bosnia and Herzegovina
must prove that the Federal Republicof Yugoslaviahas committed these acts or that
they are attributable to it. Chapter 9
10. Thirdly,one of the main purposes of the 1948 Convention is to prevent and punish
the crime of genocide. This obligation is incumbent exclusivelyupon the Contracting
Parties which, in Article 1of the Convention:
"confirm that genocide, whether committedin time of peace or in time of war, is a crime under
international law which theyundertake to prevent and to punish".
Regarding punishment, this cornmitmentis made explicit in Articles IV, V, VI and
VI1of the Convention. Here again, Bosnia and Herzegovina must establish that these
obligations have not been fulfilled by the Federal Republic of Yugoslavia andlor that
breaches of these cornrnitrnentscan be attributed to this State.
11. It goes without saying that the burden is on the Applicant to provide evidence of the
breaches of the Convention it invokes - the extent of this obligation has been set out
in Chapter 3 of the present Reply -,but the Applicant State must also show that the
Federal Republic of Yugoslavia is responsible for these breaches or that they can be
attributed to it according to the general principles governing State responsibility
under general international law. This is the purpose of the two following Chapters,
which, in light of the facts described in Chapter 8, show that:
-
Yugoslavia is responsible for having cornmitted genocide and related acts as
defined in Articles II and III of the Convention, both through its organs and
through its surrogates, includingthe "Republika Srpska" [Chapter 101;and that
- Yugoslavia is responsible, under Article 1of the Convention, for its failure to
prevent acts of individuals and groups constituting genocide and, under Articles
1,IV, V and VI of the Convention, for its failure to punish the perpetrators of
the genocide [Chapter 111.Reply of Bosnia and Herzegovina
THE FEDERAL REPUBLICOF YUGOSLAVIAIS RESPONSIBLE FOR HAVING
COMMITTEDGENOCIDEAND RELATEDACTS
1. The commission of genocidal acts by Yugoslav State organs
Article III (a) of the Genocide ConventionStatesthat genocideis a "punishableact".
This act is defined in Article II and Bosniaand Herzegovina has shownin Part II of
the present Reply that genocide hasindeed beencommitted againstthe non-Serb
population of the former Yugoslavia andin particularon the territory of Bosnia and
Herzegovina. Acts constituting genocide can be attributedto the Federal Republicof
Yugoslavia, both becausethey have beencommittedby its own organs [Section 11
and because they have been canied out by individualsor groups actingon its behalf,
including the "Republika Srpska" [Section 21.Moreover,this responsibilityis not
confined to breaches of Article III (a); it also derivesfrom violationsof Articles III
(b), (c), (d) and (e) which alsodefine as "punishable" conspiracy,direct and public
incitement and attempt to commit genocideand complicityin genocide [Section31.
2. In its Counter-Mernorial,the Respondent stresses thatthe YugoslavPeople's Army
(JNA) had withdrawn from Bosniaand Herzegovinaby 19 May 1992 [seee.g
Counter-Mernorial,pp. 246-251, para. 3.2.1 .], thus clearly implying that, fromthis
date on, no genocidalact can be attributedto the Federal Republicof Yugoslavia.
Such an allegationis doubly erroneous. Firstly, theJNA has never effectively
withdrawn from Bosnia and Herzegovina and, secondly,the Federal Republicof
Yugoslaviahas not acted only through its Army, norexclusivelyon Bosnian
territory.
3. This is an important point to keepin mind since, as explainedby the International
Law Commission,in Article 6 of its Drafi Articleson State Responsibility:
"~he conductof anorganof the State shallbe consideredas an act of that Stateunder international
law,wheîher thatorgan belongs tothe constituent,legislative,executive,judicialor other power,
whetherits functionsare of an international oran interna1character,and whether it holdsa superior
or a subordinatepositionin the organisation oftheReportof the ILC on the Work
of its 48th. Session,1996,GeneralAssembly, Official Records, 51 st. session,
Supp. No. 10, A/51/10,p. 126; see alsoILC Yearbook,1973,Vol. II, pp. 193-
1981. Chapter1O -Section 1
Thecommissionofgenocidal acts by YugoslavState organs
4. This makes clear:
- that not only the YugoslavArmy as such and its commanding officers entai1
Yugoslavia'sresponsibilitywhen they commit intemationally wrongful acts, but that
it is also the case for low levelfficers or soldiers (who are organs holding a
"subordinateposition in the organisationof the State"), and
- that not only the JNA, but al1Yugoslavorgans, including Yugoslavia'sjudiciary
and its various Ministries, such as the Ministries of the Interior or of Finance, entai1
the Respondent's international responsibility.
5. Moreover, as also specifiedin Article 7 of this same ILC drafi:
"~he conduct oanorgan of a territorial governmental entity within aState shall also be
considered an act of that State under international law, provided that organ wasacting in that
capacity in the case in ques[ibid.,p. 127,para. 7; see also: ILC Yearbook,
1974, Vol. II,Part 1,pp. 277-2831.
6. This is an important clarification since Yugoslavia is a federal State. It shows clearly
that the Respondent's responsibilityis entailed by the intemationally wrongful acts
committed by the federal Govemment as well as by its constituent elements, that is
the Republic of Montenegroand the Republic of Serbia.
7. With this in mind, it is proper to make a distinctionbetween acts of genocide
committed by the YugoslavArmy (JNA or VJ) before and after 19 May 1992.
Moreover, other Yugoslav organshave been directly involved in the commission of
genocidal acts. Each of these distinctionswill be elaborated upon below.
Before 19 May 1992
8. The Federal Republic of Yugoslaviadoes not deny that until 19 May 1992the JNA
was occupying Bosnian territory,nor that its command and seatof decision-making
were situated in Belgrade. Moreover,it expressly accepts that not only JNAtroops
traditionally barracked in Bosnia and Herzegovina remainedthere until 19 May 1992,
but also that part of theJNA units from Slovenia and Croatia were "relocatedin the
Republic of Bosnia and Herzegovina"[Counter-Mernorial,p. 246, para. 3.1.1 S.] . s
show in the Memorial of Bosnia and Herzegovina, andnever refbted by the Federal
Republic of Yugoslavia, this "relocation" resultedin the presence of some 90,000to
100,000men on the territory of Bosnia and Herzegovina [Memorial,p. 66, para.Reply ofBosniaandHerzegovina
2.3.3.2 and p. 247, para. 6.2.1.31.This relocation waspart ofthe general frarnework
of RAM,a vast covert operationaimed at armingthe Serbian populationin Bosnia
and Herzegovina and Croatiaand promotingethnic violence [ibid., Section 2.3.4, pp.
66-711.
9. The Respondent argues that "at that time [Bosniaand Herzegovina] wasan integral
part of the SFRY" [Counter-Memorial,p. 246, para. 3.1.1.5.1.This is only partially
tme: as explainedby the Arbitration Commissionof the International Conference for
Peace in Former Yugoslavia(the "Badinter Commission"), "thedates upon which the
States stemming fiom the SocialistFederal Republicof Yugoslavia succeededthe
Socialist Federal Republicof Yugoslaviaare (...6 March 1992in the case ofthe
Republic of Bosnia and Herzegovina"1321. L.M. 1993,p. 15891.From this date on,
the stationingof Yugoslavtroops in Bosnia and Herzegovina can only be seen as a
military occupation.
10. As noted by the Court itself, in its Judgmentof 11July 1996,"the obligation each
State(...)has to preventand to punish genocideis not territorially limitedby the
Convention" [ICTFY,Trial Charnber1,Review of the IndictmentPursuant to Rule
61 of the Rules of Procedure and Evidence,Prosecutor v.KaradZiCand MadiC,
Case No. IT-95-5-R61 and IT-95-18-R61,11 July 1996,p. 14,para. 311.This holds
true afortiori for the obligationnot to commit genocide,which the Court has
recognised in the sarneJudgment as being embodiedin the Convention,Article IX of
which "does not exclude any form of State responsibility"[ibid.,para. 32; see also
Chapter 91.In other words, whether committedin the Federal Republicof
Yugoslavia,in Bosnia and Herzegovinaor anywhere else, genocideis prohibited and
this prohibition is not territorially limited.Therefore,the capacityin which theNA
or other Yugoslavauthoritieshave committed genocidalacts does not matter; nor
does it matter whether these acts have been committedin Bosniaand Herzegovinaor
on Yugoslav territory itself. Oneof the consequencesof this principleis that the
Yugoslavallegation accordingto which "al1places of allegedparticular [genocidal]
acts (...are on the territory of Bosnia and Herzegovina" [Counter-Mernorialp ,. 17,
para. 1.1.5.1.]cannot be seen as a defence,whateverthe dates of said acts.
11. Consequently,no seriousproblem of attributabilitycan be raised as for the period
prior to 19 May 1992,a period which is very importantin two respects:
- firstly, the "ethniccleansing" of non-Serb populationswas planned, ordered and
organised by the Yugoslavauthoritiesin Belgrade; Chapter IO- Section 1
Thecommissionof genocidal acts by YugoslavState organs
- secondly, genocidal acts were overtly committedon a large scale by the JNA,
mainly on Bosnian territory.
The Yugoslav authorities planned, prepared andorganisedthe genocide
12. Yugoslav authorities drafted the RAMplan and organisedas early as 1990 the
transfer of armaments to Serbian populationsin areas which were to become part of
Greater Serbia [see Reply, Chapter 8, Section 21.This is evidencedby talks and
meetings between high-level officiais in Belgrade and local Bosnian Serb leaders.
The police and the Ministry of Interior of Yugoslaviaand Serbia played a prominent
role in the implementation of the plan.
13. Commenting on the RAMplan, the existenceof which it does not deny, the
Respondent asserts that it does not amountto planning genocidesince it involves
"onlyincitement to national and religious hatred" [Counter-Memorialp , . 104, para.
1.3.17.9., emphasis added]. This defence is left to the appreciation of the Court. The
preparation and execution of the plan was enabledby the transformation of the JNA
into an instrument of the nationalistpolicy of Belgrade [see above, Chapter 8,
Section 31.General Veljko Kadijevié, former Federal Secretaryof National Defence
and Chief of Staff of the Supreme Commandof the JNA,explained in this book
published in Belgrade in 1993 that since the spring of 1991,the JNA had been
utilised in order to protect and defend "the Serb people outside of Serbia" and to
assemble the JNA "withinthe borders of the future Yugoslavia [Greater Serbia]"
[Veljko Kadijevié, My Viewof the Break-up,AnArmy Withouta State, Belgrade,
1993, p. 121,Annex 2711.The sarneGeneral Kadijeviédescribes the goals of the
JNA after the independenceof Sloveniaand Croatia as follows:
"1)defendthe Serbnationin Croatiaanditsnational inter;)pull JNAgarrisonoutof Croatia;
3) gainfull control of Bosnia and Hercegovina, withthe ultimateaim of defendingthe Serb nation
and its national rightswhenthe issuearosecreateanddefendthenew Yugoslavstateof those
Yugoslavnationsthatdesireto be apartof it, meaninginthis phase theSerbandMontenegrin
nations.The basic conceptfor deploymentof the armedforces was thusadjusted to this mod~jîed
t~~k."[ibid., p. 97, emphasis added, Annex 2711.
14. In this respect, a close cooperationbetween the authoritiesin Belgrade, the JNA and
the nationalist leaders of the Serbs of Bosnia and Herzegovina(SDS) was necessq:
"since the JNAfailedin itseffortsto steertheMuslim partof BosniaandHerzegovina's
leadershiptowarda new Yugoslavstateofthosenationswhichso desired,we hadto orient
ourselvestoward moreconcretecooperationwithrepresentativof the Serbsandwith theSerbReply of Bosniaand Herzegovina
nationassuch."[ibid., p. 159;see also ICTFY, TrialChamber1,Review of the
Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence,
Prosecutor v. KaradZiCand MladiC,CaseNo. IT-95-5-R61 and IT-95- 18-R61,
11July 1996,pp. 26-27, para.53ff.; quoted above, Chapter 8, Section 31.
15. The tight links betweenthe SDS and Belgradeare illustratedby a confidentialnote
addressedto Radovan KaradZiCby Velibor Ostojit, an SDS leader, about a
conversation OstojiChad had with high rankingofficiaisof the Governmentof the
Republic of Serbia on 3 September 1991about supplyingarms and communications
material to the SDS in Bosnia and Herzegovina. This noteis referred to by the Trial
Chamberat the ICTFY in the KaradZiCand MladiCcase [ICTFY,Trial Chamber1,
Review of the IndictrnentPursuantto Rule 61 of the Rules of Procedure and
Evidence,Prosecutor v. KaradZiCand MladiC,Case No.IT-95-5-R61and IT-95-18-
R61, 11July 1996,p. 27, para. 54; quotedabove, Chapter 8, Section21.Moreover,
President SlobodanMiloSeviChimself recognisedin an official statementof May
1993that:
"In the past two years, the Republic of-Sby assisting Serbsoutside S-rhas forced its
economy to make massive efforts andits citizens to make substantial..Serbia has lent a
greatdeal of assistanceto the Serbs in Bosnia. Owingto the assistance they have achieved most of
what they wanted."Memorial,p. 90, para. 2.3.8.41.
16. According tothe Trial Charnberin the KaradZicand MladiCcase:
"(...by the fa11of 1991,the SDS was in contact with the federal authorities dominatedby the
Republic of Serbia and the Yugoslav Peoples(JNA). By arming the Serbian population and
organising a more direct JNA intervention,the contactsed the SDS to take powerin the
temtory ofBosnia and ~erze~ovina.[ICTFY,Trial Chamber 1, Review of the
Indictment Pursuantto Rule 61 of the Rules of Procedure andEvidence,
Prosecutor v. KaradZiCand MladiC,CaseNo. IT-95-5-R61 and IT-95-18-R61,
1 1July 1996,p. 28, para. 551.
17. This opinion was supportedby testimoniesof high ranking officers of the JNA in the
Tadi6 case. Troops of the JNA were constantly relocatedin order to enablethe SDS
to seize powerin those parts of Bosnia and Herzegovina whereit was in a position
to do so [see Chapter 8, Section31.Al1of these areas were subsequently"ethnically
cleansed".
18. During the year 1991, units of the TerritorialDefence in Muslim or Croat majoriv
areas of Bosnia and Herzegovina were obligedto surrendertheir arms to the JNAin
order to deprive non-Serb populationsof having ameans of defence [see Chapter 8, Chapter 10-Section 1
Thecommissionof genocidal acts by YugoslavState organs
Section 21.The JNA then suppliedthese arms to other Territorial Defenceunits
dominatedby Serbs. Al1of these transfers of weapons were organisedby Belgrade,
first through the Federal and Serbian Ministriesof Interior, then through the JNA. It
is worth noting GeneralKadijevik'sanalysis of the process. According tohim, the
goal was:
"to paralyse temtorial defense in those parts of the country where it might provide a basis for
creating the amies of secessionist republics(...) accordingly, al1territorial defense unitswere
disarmed prior to the outbreak of fighting in Yugoslavia (...) Naturally, we usedthe territorial
defense of Serbegions in Croatia and Bosnia and Herzegovinain tandem with N[Veljko
KadijeviC,My View of the Break-up,An Army Without aState, Belgrade, 1993,
pp. 98-99].
The disarmament of certain Territorial Defense units andthe re-armamentof others
indeed followed a discriminatory policy drawn up in Belgrade.
19. Thereafter, the JNA and the SDS operated jointly in the spring of 1992 to take
control over large portions of Bosnianterritory. This was found by the Trial
Chamber of the ICTFY in the Karadut and MladiCcase:
"~he material tendered to the Trial Chamber by the Prosecutor justifies the findingthat between
March and May 1992,SDS forces,with wide-ranging military supportfiom the JNA, engaged in
attacks against certain strategic points of Bosnia and Herzegovina,in particular at FoEa,Bosanski
Samac, Vlasenica, BrEko,and Prijedor, where themajority of the population was non-Serb.These
large-scale military offensives were usually conductedin collusion with paramilitary units,such as
the groups ledbyieljko RaZnjatoviE,alias 'Arkan', VojislavSe~elj,the 'White Eagles'at FoEa,
and the 'Grey Wolves'at Bosanski Samac, and had the supportof SDS members. These offensives
gave the SDS control over the peripheral territory of Bosnia and Herzegovina.e same
period, the JNA initiated the military preparations for thesiege of[ICTFY,Trial
Chamber 1,Review of the IndictmentPursuantto Rule 61 of the Rules of
Procedure and Evidence, Prosecutor v.KaradZii and Madit, CaseNo. IT-95-
5-R61 and IT-95-18-R61, 11July 1996,p. 29, para. 561.
20. It must also be stressed that Serbian paramilitarygroups were trained in JNA training
centres, and would then operatein conjunctionwith the JNA in Bosnia and
Herzegovina with the same purposesand tactics [seeReply, Chapter 8, Section 71.
Vojislav Se~elj,one of the most notorious paramilitary leaders, acknowledged that he
used helicopters suppliedby the JNA and that many operations, executedby the JNA
as well as by paramilitary groups,had been preparedin Belgrade [ibid.].
Genocidalacts committedby the JNA in Bosnia and HerzegovinaReply of Bosnia and Herzegovina
21. The actions of the JNA in Bosnia and Herzegovinawere far from being pure military
operations.In its Memorial, Bosnia and Herzegovina listed severalexamples of
atrocities committedby JNA forces prior to 19May 1992:
- on 5 May 1992, Serb paramilitariesand the JNA ordered al1residents in the
area near Sarajevo Airport to get out of their homes andto stand in separate
lines according to their ethnic belonging; a Serb whohad refusedto be
separated from his Muslimneighbourswas beatenuntil he wasdead
[Memorial,p. 35, para. 2.2.2.161;
- in late April and early May 1992, Serbforces attackedthe city of Mostar,
destroyed at least 13mosquesand forced the civilian population toflee; this
was a joint operation of the JNA and Serbianpararnilitaryforces [Memorial,p.
48, para. 2.2.5.31;
- the JNA was clearly involvedin the take-overof ViSegradin April 1992,
which resulted in many atrocities [Memorial,pp. 49-50, paras. 2.2.5.4 and
2.2.5.51.
22. By way of response, the Federal Republicof Yugoslavia denies, without offering any
evidence whatsoever,the truth of these acts and endeavoursto challengethe
contention that they are attributableto it by alleging thattheJNA was not involved
[Counter-Memorial,p. 269, para. 3.1.6.2.1,for example:
- because pararnilitary groupswere reportedto participatein these acts [ibid.,p.
270, para. 3.1.6.3.; ibia!,p. 271, para. 3.1.6.6.; ibia!, p. 272, para. 3.1.6.9.1;
- because these acts do not constituteacts of genocidesince they are related to
military operations [ibid., p. 270,3.1.6.5.];
- because they do not amount to genocidalacts [ibid.,p. 270, para. 3.1.6.4.1;or
- because similar acts were also directed againstSerb people [ibid.,p. 272, para.
3.1.6.9.1.
It goes without saying that none of these defencesare admissible.
23. As already shown in this Reply,the fact that atrocities werecommittedagainst
people belonging to several human groupsby no means impliesthat they are not
genocidal acts [see Reply, Chapter 21.
24.
In its Counter-Mernorial,the Respondentrefers to one of the casesmentioned above,
in which a witness described howthe Serb forcesexecuted a Serb civilian in Chapter 1O-Section 1
The commission of genocidal acts by Yugoslav State organs
Sarajevo on 9 or 10 May 1992 [United Nations,Letter Dated 7 Dec. 1992jFom the
Depuîy Representativeof the United States of Americato the UnitedNations
adressed to the Secretary-General, SI24918, 8 Dec. 1992, para. 3, p. 1O].They
neglect to mention that the civilian was executed because he refused to be separated
from his Muslim neighbours, a "detail" that the Counter-Memorialfails to recall
[Counter-Memorial, p. 272, para. 3.1.6.9.1.This execution, of course, had no military
purpose.
25. In this same paragraph the Federal Republicof Yugoslavia tries to cast doubt on the
reliability of the witness by pointing out that she spoke of "personswearing the
insignia of the Chetniks and the Yugoslav Army. It was quite possible for persons
not belonging to the JNA to have worn the JNAinsignia" [ibid.,see also p. 15, para.
1.1.4.9.1.This is clearly a bad faith argument when one recalls that the JNA was still
officially omni-present in Bosnia and Herzegovinaat the time and that this group of
soldiers comrnitted several other atrocities against agroup of about forty Muslims,
including using them as human shields forcedto march "through a heavily contested
combat zone to waiting Serb vehiclessome 300 meters away" [UnitedNations, Letter
dated 7 Dec. 1992j?om the Depuîy Representativeof the UnitedStates of America to
the UnitedNations adressed to the Secretary-General,S124918,8 Dec. 1992, para. 3,
p. 10, emphasis added].
26. There is, of course, no validity to the contentionthat the presence of paramilitary
forces precludes participation of the JNAitself in genocidal acts. On the contrary, as
was shown earlier in this Reply [Reply, Chapter 8, Section 71,these paramilitary
forces were formed and organised by Belgrade which, in any case, bears
responsibility for their acts. Moreover, there is ample evidence of CO-ordination
between these paramilitary forces andthe JNA.Such CO-ordinationwas flagrant
during the spring offensive of 1992, as was explainedby the Prosecution at the
opening of the TadiEtrial before the ICTFY on 7 May 1996:
"The milita ryerations by the JNA and the pro-Serb paramilitary groups followed in a consistent
pattern. Excessive amountsof artillery was used in the initial stages to shell non-Serb
neighbourhoods in order to discourage resistance,non-Serbs were expelled from the area and where
resistance occurred it was mthlessly crushed. The artillery attack by the JNCO-as usually
ordinated with the street fightingby the paramilitary groups who were assistedby Serb irregulars in
street fighting and the rounding up of the non-Serbs ofthe district. The paramilitary group operated
right across Bosnia.The rounding-up of the non-Bosnian-Serbpopulation was a systematicand
thorough operation, with theparamilitary groups relying on local information and identificationof
the non-Serbs by the local irregulars.Reply of Bosnia and Herzegovina
"Once the non-Serb population had been collected togewere then sorted: Women,
children and elderly men were separatedhe men of military age, although at times and in
some places al1men were separated from the women and children, making the women much more
vulnerable to rape and mistreatment. Terrortactics such as killings, rapes and tortures, were used
apparently condonedby the paramilitary commanders. Thend the paramilitary commanders
during the sweeps through non-Serbs neighbourhoods participatedin this activity.The terror served
to intimidate and discourage resistanceand to compel non-Serbsto leave the area."
Trial ChamberII, Prosecutor v. Duiko Tadid,CaseNo. IT-94-1-T, Transcripts,
7th May 1996,p. 16,Annex 2721.
27. A very serious incident, reportedin the Memorialof Bosnia and Herzegovina, which
took place in Mostar on May 1, 1992, bears witnessto this collusion [Memorial,pp.
48-49, para. 2.2.5.31,since it shows thatthe JNA, by first intimidating Muslim
residents and then calling the paramilitaries, deliberately paved theway for atrocities
to be comrnittedby paramilitaryforceswhich operatedwith the JNA. Here again, the
analysis of this episode providedin the Counter-Memorial clearly showsthe bad
faith of the Respondentsince, while admitting implicitly that theacts comrnittedby
the paramilitary Serbian forcesconstituteacts of genocide,it endeavours to
distinguishthem fromthe acts committedby the JNA itself, which they claim, do
not "pointto an act of genocide or some other act prohibited under the Genocide
Convention" [Counter-Memorial,p. 270, para. 3.1.6.3.1.
28. However, in several cases, there cannot be the slightestdoubt that the JNAitself was
not only implicatedin genocidalacts (as in the incidentin Mostar citedabove) but
that it also cornmittedthese acts directly.For example,the Federal Republicof
Yugoslaviahas not refutedthe Report issuedby Special Rapporteur Tadeusz
Mazowiecki, whichstates that on 9 May 1992,500 to 600 Muslimswere detained
and tortured in Bratunac and thirty to fi* among themdied from injuries, while,
after three days of beatings,the rest of the groupwas transferredto Pale, where the
ill-treatmentcontinued [Memorial, p. 41, para. 2.2.3.8;and Annexes, Part II, vol. 1,
Annex 241.
29. The same remark holds tme for other examplesgiven in the Memorialof Bosnia and
Herzegovina:
- in April 1992,the JNAjailed 120 Muslimciviliansfrom Gomja Bioca and a
village calledKralupa, in the Sarajevo area,in the Gornja Bioca School;thirty
men who refused to be separatedfrom women andchildren were kept in a
separate group, taken to Ilijas Forge, and killed there;these eventswere
reported by a JNA soldier, Borislav Herak, duringhis trial in Sarajevo;he The commissionof genocidal acts by YugoslavState organs
confessedto having raped four women and declaredthat he was encouragedto
rape them by his commandingofficer in the JNA [United Nations,Final
Report of the United Nations Commission of Experts,Sl19941674lAdd.2
(Vo1.4),27 May 1994,Annex VIII, "PrisonCamps",p. 291, paras.2446-24471;
- in late April and May 1992, 5,000 civilians fromBrEkowere deported tothe
Luka camp by JNA forces and Serb paramilitaries [United Nations, Final
Report of the United Nations Commission of Experts, SI19941674lAdd.2
(Vol.I), 27 May 1994,Annex III.A, "Special Forces", p. 142, para.3941.
30. In this Reply, the Applicant listedmany otherseriousatrocitiescommittedby the
JNA during the military operations which tookplace before 19 May 1992 [see
above, Chapter 8, Section 31.JNA officers also played an active role in the Crisis
Staffs which were responsiblefor the ethnic cleansingand for the creation of
detention facilities [ibid.].Someof the campswere directly run by the JNA.
31. This clear pattern of facts showsbeyond anydoubt that:
- the Governmentin Belgradedirectlyplanned and organisedthe genocide
against the non-Serbpopulationin Bosnia and Herzegovinawell before it
supposedlywithdrew from this country;
- the JNA committed a longseries of genocidalacts in Bosnia and Herzegovina
before 19May 1992;
- this occurred during a period when it is not disputedthat the JNA was still
present in Bosnia and Herzegovinaand wastaking its orders from Belgrade.
32. It cannot be deniedthat both the Yugoslav Government itself andthe JNA are organs
of the Federal Republic of Yugoslavia "having thatstatusunder the interna1law of
that State" and that these organs were "actingin that capacity"in the present case.
Therefore, the genocidalacts comrnittedby these organs must be consideredas
internationallywrongful acts entailingthe international responsibilityof the Federal
Republic of Yugoslaviaunder Articles II andIII (a) of the GenocideConvention
[ILC, Draft Articles on State Responsibility, Articles 1 and5, see Report of the ILC
on the Work of its 48th. Session, 1996, General Assembly,Officia1Records, 51st.
session, SupplementNo. 10, A15 1110, pp. 125-1261.
AJier 19 May 1992Reply of Bosnia and Herzegovina
33. The Respondentplaces high valueon the fact that the Presidencyof Yugoslavia
decided on 4 May 1992that "dl the remaining citizensof the Federal Republicof
Yugoslaviain employ withJNA in Bosnia-Herzegovina should quicklyreturn to the
territory of Yugoslavia,ithin 15 days at the latest" [Counter-Memorial, p. 248,
para. 3.1.2.4. quoting Annexes 129and 2921and insists on the relevanceof a report
by the SecretaryGeneral of the United Nations, longextracts of which are
extensively(mis)quoted [see above, Chapter 8, Section 51no less thanfive timesin
the Counter-Memorial [Counter-Memorial, pp. 129 1-30,para. 2.6.1.2.;pp. 249-251,
para.3.1.2.8; pp. 264-265, para. 3.1.5.16;pp. 265-267, para.3.1.5.19, and pp. 3-1
332, para. 5.4.1.121.The report mentionsdifficultieshaving occurredwith respectto
this withdrawai [Counter-Memorial,AnnexNo. 1291.Three conclusionscan be
drawn fiom the SecretaryGeneral'sreport:
- it reconfïrmsthat, prior to 19May 1992,the JNA,directed from Belgrade, was
in control of many parts of Bosnia andHerzegovina;
- it showsthat, whateverthe reasons,the withdrawal wasnot yet completedat
the date of the drafiing of the report, dated 30May 1992;
- it also showsthat, at this date, the Secretary General was basinghis statements
on informationofficially given by the Yugoslav Governrnent[see below, paras.
117-1181.
34. However, the informationcontainedin the report has been contradictedby the facts:
- importantelements of the JNAitself have remainedon Bosnianterritory;
-
acts of genocide havealso been committedby the Federal Republicof
Yugoslavia throughchannelsother than the JNAand, in particular,
- through the authorities of the so-called "Republika Srpska", a "puppet
Government" which was controlledby the Yugoslav Governrnent,
- and through Serbianpararnilitaryunits.
Bosnia and Herzegovina will addressthese last two points in Section 2 of the present
Chapter and uill first limit itself to recallingthe genocidalacts committedby the
Yugoslav Army and other Yugoslav organsafter 19May 1992.
35. On 4 May 1992,the JNAannouncedthat it would withdraw fiom Bosnia and
Herzegovinaby 19 May 1992.In reality, this "withdrawal"was only an attemptto
deceive the internationalcommunity [see above, Chapter 8, Section41, as Bonsav
JoviC,former Serb Representativeto the Yugoslav Federal Presidencyand close ChapterIO -Section 1
Thecommissionofgenocidal acts by Yugoslav State organs
associate of President SlobodanMiloSeviC,recognised in his recently published
memoirs [ibid.]. Not onlywas the army of the "RepublikaSrpska" a creation and
extension of the JNA, as explainedby General KadijeviCin his book [Veljko
KadijeviC,My Viewof the Break-up,An Army Withouta State, Belgrade, 1993,p.
160, Annex 1021,not only did Belgradeprovide massive aid as well as instructions
to this army [see below, paras. 126ff.1,but also, the new Yugoslav Armyitself, the
VJ, stayed in Bosnia and Herzegovinaand "went on providing material and
equipment as well as also intervening directlyin Bosnia and Herzegovina after May
1992" [ICTFY, Trial Charnber1,Review ofthe Indictment Pursuant to Rule 61 of
the Rules of Procedure and Evidence,Prosecutor v. Radovan Karudiid and Ratko
Madit, Case No. IT-95-SR61 and IT-95-18-R61, 11July 1996, p. 30, para. 581.
36. Some of these genocidal acts directlycomrnittedby the VJ after 19 May 1992 are
listed in the Memorial of Bosnia and Herzegovina[see e.g. p. 35, para. 2.2.2.15; p.
36, para. 2.2.2.18; p. 48, para. 2.2.5.3; p. 52,para. 2.2.5.12 or p. 53, para. 2.2.5.141.
Actually, the presence of the VJ in Bosnia and Herzegovina after this date is
confirmed by the Federal Republicof Yugoslavia itselfin its Counter-Memorial
since it denies, from time to time, "the participationof the JNA in any illegal
activities" but does not denyits presence there [see e.g. p. 273, para. 3.1.6.12.1.In
other parts of its Counter-Memorial, the Federal Republicof Yugoslavia uses another
method of defence by simply asserting thatthe JNA or the VJ are not responsible for
genocidal acts since they were not in Bosnia and Herzegovinaat the time [see e.g.:
pp. 272-273, paras. 3.1.6.10.or 3.1.6.131.This is merely a self-serving assertion
which is contradicted by the facts.
37. Participation of the VJ in other genocidalacts has been reported by many objective
and neutral sources. The YugoslavArmy wasresponsiblefor the cleansing campaign
in Sanski Most and in areas near the border with the Federal Republic of Yugoslavia
[see Reply, Chapter 8, Section51.The VJ andthe Bosnian Serb Army (VRS) also
cooperated in military operations againstthe safe areas proclaimed by the United
Nations [ibid.]. In flagrant contradictionto what Yugoslaviaasserts in its Counter-
Memorial [Counter-Memorial,p. 274, para. 3.1.6.15.1,the presence of VJ units
during the brutal take-over of Srebrenica, which resultedin the murder or
disappearanceof several thousand BosnianMuslirns,was emphasised by Judge Fouad
Riad while confirming the indictmentof Radovan KaradZiCand Ratko MladiCby the
Prosecutor of the ICTFY [see Reply, Chapter 8, Section 51.Moreover,ReplyofBosnia and Herzegovina
-
the Yugoslav Army was involvedin a large-scale attack againstthe enclave of
Srebrenica in January 1993 [see Reply, Chapter 8, Section 51;on this occasion,
Yugoslav Army units came from UZce, in Serbia;
- the Yugoslav Armyalso took part in an attackagainst Gorazdein April 1994
[ibid1;
-
VJ GeneralNikola MandariCadmitted in an interviewwith the Belgrade daily
Politika, dated 27 January 1993,that Yugoslavforces were still helping
Bosnian Serbs [ibid.];
-
the continuingsupport by Yugoslav armed forces for Bosnian Serbs engaged in
ethnic cleansinghas been assertedby Special Rapporteur Tadeusz Mazowiecki
in his report dated 21 February 1994 [UnitedNations, Situation of Human
Rights in the territory of theformer Yugoslavia,SixthPeriodic Report
submittedby Mr. TadeuszMazowiecki,Special Rapporteur of the Commission
on Human Rights, E/CN4/1994/110,21 Feb. 1994,p. 26, para. 1541;
- the VJ supportedthe VRS during operation Vihor,the large and massiveattack
on the GoraZdeenclave in the spring of 1994[see above, Chapter 8, Section
51.
38. Moreover,accordingto reliable independent sources, the final assault against the
protected enclave of Srebrenicawas discussedand preparedby General Ratko MladiC
and GeneralMomEiloPeriSiCof the YugoslavArmy [seeReply, Chapter8, Section
51.Concentrationof Yugoslavmilitary forces at the borderwas witnessedjust before
the attack [ibid.] and by an information officerof the UN commentingon the
Srebrenicamassacres: "le généra dle Belgrade MomiiiloPeriSiCa suivi en compagnie
de MladiCl'assaut de Srebrenicadepuis le QG du mont Tara" [quotedby Florence
Hartmann, "Chronologied'une négligence criminelle"i,n L'ex-Yougoslavie en
Europe, Paris 1997, p 117,Annex 2731.Mount Tarais situatedin Serbia, some
thirty kilometres from Srebrenica.
39. The Yugoslav armed forces also committedgenocidalacts in other parts of the
former Yugoslavia. Many non-Serbcivilianswere transferred from Bosnia and
Herzegovinato camps in theFederal Republicof Yugoslavia,some of which were
run by JNA officers. In such camps, bothVJ personneland visitingparamilitaries
participated in the beating and killing of prisoners [seeReply, Chapte8, Section
121.Also, the YugoslavAnny supportedthe ethnic cleansingcampaignagainstnon-
Serbs in the San* region of Serbia,by allowingBosnian Serb paramilitary forces
to cross the border andby participatingin violations togetherwith them [ibid.]. Chapter IO- Section 1
Thecommissionofgenocidal acrs by YugoslavState organs
40. The direct responsibility of the Federal Republicof Yugoslavia and,in particular, of
the Yugoslav Arrny in genocide has been universally recognised andcondemned.
41. On 7 April 1993, almost a year afterthe official "withdrawal"of the JNA, the
United Nations General Assembly strongly condemnedthe continued involvement of
forces from Serbia and Montenegroin the genocide comrnittedin Bosnia and
Herzegovina:
"The General Assembly,
(-1
Gravely concemed about the deteriorationof the situation in the Republic ofBosnia and
Herzegovina owing tointensifiedaggressive actsby the Serbian and Montenegrinforces to acquire
more territories by force, characterizedby a consistent patternof gross and systematic violationsof
human rights, a burgeoningrefugee population resultingfrom mass expulsionsof defenceless
civilians from their homes andthe existence in Serbian and Montenegrin controlledareas of
concentration camps and detention centres,in pursuit of the abhorrent policy of 'ethnic cleansing',
which is a form of genocide,
(-..)
Deeply regrettinq that the sanctions imposedby the Security Council have nothad the desired
effect of halting the aggressive actsby Serbian and Montenegrin irregular forcesand the direct and
indirect support ofthe Yugoslav People's for the aggressive actsin the Republic of Bosnia
and Herzegovina, (...)[UnitedNations, General AssemblyResolution47/121,
A/RES/47/121, 18 Dec. 1992,preamb., emphasis added].
42. In the special Resolution it adopted on Bosnia and Herzegovina on 24 June 1993,the
World Conference on HurnanRights noted that:
"(...) the practice of ethnic cleansing resultingfiom Serbian aggression againstthe Muslim and
Croat population in the Republic of Bosnia and Herzegovina constitutes genocidein violation of
the Convention on the Prevention and Punishmentof the Crime of Genocide.
(a..)
The World Conference shongly condemns Serbia-Montenegro,the Yugoslav National Amy, the
Serbian militia and the extremists elements in the Bosnian Croatian miliasaperpehators of
these crimes."[UnitedNations, Resolution ofthe WorldConferenceon Human
Rights, NCONF. 157124 (Par l, 24 June 1994, pp. 47-48].
43. In the following years, the General Assembly continuedto severely criticise the
Respondent's involvement in ethnic cleansing. On20 Dec. 1993, it condemned
"( ...) vigorously the violations ofrightsof the Bosnian people and of humanitarian law
committed by parties to the conflict, especiallythose committed as policy by Serbia and
Montenegroand the Bosnian Serbs, who havedone so flagrantly and on a massive scale."
[UnitedNations, GeneralAssembly Resolution48/88, A/RES/48/88, 20 Dec.
1993, para 14, emphasis added];Reply ofBosniaandHerzegovina
Almost one year later, on 3 November 1994,it again condemned
Il(...)vigorously al1violations of human rights and international humanitarianlaw committed by
parties to the conflict, especiallythose violations caspolicy by Serbia and Montenegro
and the Bosnian Serbs, who haveone so systematically, flagrantly andon a massive scale against
the people of Bosnia andrze~ovina." [UnitedNations, GeneralAssemblyResolution
49/10, AlRES/49/10,3 Nov. 1994, para. 1 11.
Subsequently,the GeneralAssemblylisted the "politicaland military leadersin the
Federal Republic of Yugoslavia(Serbia and Montenegro)",arnongthose who "bear
primary responsibility"for most violationsof hurnanrights and international
humanitarian law in the former Yugoslavia[UnitedNations, GeneralAssembly
Resolutions49/196 and 50/193].
44. On 30 May 1992,the Security Council adopted Resolution 757(1992), in which it
condemnedthe Federal Republicof Yugoslavia fornot complying with thedemands
set out in Resolution 752 (1992):
"~he Security Council,
(--.>
Deploring the fact that the demandsin resolution 752 (1992) have not been complied with,
includingits demands that:
-Al1parties and others concerned in Bosnia and Herzegovina stop the fighting immediately,
-Al1 forms of interference from outside Bosnia and Herzegovinacease immediately,
-Bosnia and Herzegovina's neighbourstake swift action to end al1interference and respectthe
territorial integrityof Bosnia and Herzegovina,
-Action be takenasregards unitsof the Yugoslav People'sArmy in Bosnia and Herzegovina,
including the disbanding and disarming with weapons placedr effective international
monitoring or any unitsthat are neither withdrawnnor placed under the authority of the
Government ofBosnia and Herzegovina,
(-.)
Condernnsthe failure of the authoritiesin the Federal Republicof Yugoslavia [Serbia and
Montenegro], includingheYugoslav People'sArmy, to take effective measures to fulfil the
requirements of resoiution2(1992);" [UnitedNations, Securi~ CouncilResolution
757 (1992), S/RES/757,30 May 19921.
In the sarneResolution,the Security Councilimposedits first sanctionson the
Federal Republic of Yugoslavia.On June 1992, the Security Council adoptedits
Resolution 762 (1992). Again it urged the remainingunitsof the YugoslavArmy to
withdraw fiom the territory of Bosnia and Herzegovina.The Federal Republicof
Yugoslavia'sinvolvement was again condemnedon 10 June 1993,in Resolution838
(1993). Chapter IO-SectionI
Thecommissionofgenocidal acts by YugoslavState organs
45. The fact that sanctionsagainstthe Federal Republicof Yugoslavia were not removed
until the Dayton Accords demonstrates the continuedand direct involvementof
Belgrade in genocide committed against non-Serbsin Bosnia and Herzegovina andin
other parts of the territory of the former Yugoslavia.
Genocidalacts committedby other Yugoslavorgans
46. Even though the Yugoslavarmed forces are also directly responsiblefor genocidal
acts on the territory of Bosnia and Herzegovina,as well as in Croatia and the Federal
Republic of Yugoslavia itself, these are not the only instancesof the participationof
Yugoslav organs in genocide.
47. Detention facilities in Serbia and Montenegro werefor example largely used to
illegallydetain non-Serb civilians,thus forming part of the systemof ethnic
cleansingcarried out in areas of Croatiaand Bosnia and Herzegovina occupiedby
Serb forces [seeReply, Chapter 8, Section 121.Such illegal detention occurred
before and after 19May 1992 [ibid.].
48. In addition to the prisoners transferredfiom camps in Bosnia and Herzegovinato
detention facilities in the Federal Republicof Yugoslavia, Yugoslavauthoritiesalso
used existing detention facilitiesin Serbiaand Montenegroto imprisonBosnianswho
had fled the war [see Reply, Chapter 8,Section 121.Many detaineeswere tortured
and killed; some were handedover to the Bosnian Serbs. Forexample, after the fa11
of zepa in 1995, severalhundred Muslimcivilians fled to Serbia. Theywere
imprisonedin campswhere they were routinely abused[see above, Chapter 8,
Section 121.The Commissionof Experts alsoreports many othercases of rapes and
sexual assaults committed againstMuslimand Croatwomen by guards in refugee
camps on the territory of the Federal Republicof Yugoslavia [United Nations,Final
Report of the United NationsCommissionof Experts, Sl19941674lAdd.2(Vol.V), 28
Dec. 1994,Annex IX, "Rapeand Sexual Assault",pp. 59-60, paras. 288-294; and
Reply, Chapter 8, Section 121.
49. The above was acknowledgedby the General Assembly,on 20 December 1993,
when it urged "the immediate,internationally supervisedrelease of al1persons
arbitrarily or illegally detainedin(...the Federal Republicof Yugoslavia(Serbia
and Montenegro)" [United Nations,GeneralAssemblyResolution 48/153, Al4811 53,
20 Dec. 1993, para. 141;it is clear fiom the contextthat this applies to acts
committed in the Federal Republicof Yugoslavia itselfin the context of "ethnicReply of Bosnia andHerzegovina
cleansing" [ibid., Resolution49/196, A/RES/49/196,para. 21.Similarly, on 29
December 1993,the General Assembly:
"20. Requests that the InternationalCommitteeof the Red Cross be granted free access to al1
detention camps establishedby the Serbs in Serbia and Montenegroand in Bosnia Herzegovina,
and to al1prisoners in those camps, andthat al1prisoners be notified ofthis action without delay;
"21.Requests the Securîty Council to act immediatelyto close al1detention camps in Bosnia
Herzegovina andfurther to close concentrationcamps establishedby the Serbs in Serbia and
Montenegroand in Bosnia and Herzegovina and, until implementationt,o assign international
observers tohose camps;[UnitedNations, General AssemblyResolution48/88,
A,RES/48/88, 20 Dec. 1994, paras. 20-21, emphasisadded].
50. Even though the YugoslavAmy participatedin countlessatrocities, other Yugoslav
and Serbian authoritieswere also involved in genocidalacts committed in Croatia
and Bosnia and Herzegovina.This especially includesthe Serbianpolice, which took
part in military operationstogether withSerb military forces, organisedas police
combat battalions [seeabove, Chapter 8, Section61.
51. The Ministry of Interior forces of Yugoslavia andSerbiawere also largely
responsible for the creation andthe activitiesof the most importantSerbian
paramilitary units operating in Bosnia and Herzegovina[see below, paras. 71-72].
Serbia's Defense Minister himself stated thatArkanwas protectedby Interior
Ministry officiais[UnitedNations, Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. 1),27 May 1994, AnnexIII.A, "Special Forces1'p , .
24, para. 941.Moreover,Vojislav Se~eljpublicly declaredduring his parliarnentary
campaign in the fall of 1993 that membersof the Milogeviegovernrnentwere
involved in paramilitary operations [Ibid., Annex III.A, p. 24, para. 931.
2. The responsibilityof the FederalRepublicof Yugoslaviafor the genocidalacts
committed by the "RepublikaSrpska"and other Yugoslavsurrogatesin Bosnia
and Henegovina
In its Counter-Memorial,the Federal Republicof Yugoslaviarelates the general
principles of customary internationallaw relating tothe responsibility of States
[Counter-Memorial, ChapterV, pp. 321-3401.Even though there is no strong
disagreementbetweenthe Parties in this respect, it is necessaryto retum briefly to
this point, since the defendantState omits to draw certain legal conclusionsfkom
these principles which it presents onlypartially. Moreover,the applicationit makes
of the said principles in the present case is entirely erroneous.Each of these points
will be addressed separately below. Chapter 1- Section2
Theresponsibilityof theFederal Republicof Yugoslavia
for thegenocidal acts committed by the "RepublikaSrpska"
and other Yugoslavsurrogates in Bosnia and Herzegovina
Theapplicable law
53. In its Counter-Memorial,the Respondentrecognisesthat "acts of personswho are not
State organs can also be considered actsof the State if they are committedunder
instructionsfiom the State" [Counter-Mernorial, p. 324, par. 5.3.1.3.1.This reflects
the general law in force and is clearly expressedin Article 6 of the ILC Draft
Articles on State Responsibility:
"~heconductof a personorgroupof personsshallalsobe consideredaanactof the Stateunder
internationallawif:
(a) it is establishedthatsuchpersonorgroupof personswas in fact actingon behalfof thatState."
[Reportof the I.L.C. on the Workof its 48th. Session, 1996,General Assembly,
Official Records, 51st.session, SupplementNo.10, A151/10,p. 127,para.
10.281.
54. As an illustrationof this rule, in its commentary,the International Law Commission
gave some classic examplesfrom a number of cases of international arbitration[see
e.g. the "Zafiro" Case, England v.U.S., 30 Nov. 1925, R.I.I.A.,Vol. VI, pp. 160 et
sequitur; the 'Stephens"Case, Mexicov. U.S., 15July 1927, ibid, Vol. IV, p. 267;
or the 'Sabotage Claims"Case (MixedClaimsU.S./GermanyCommission, 16 Oct.
1930and 15June 1939),ibid., Vol. VIII,pp. 84ff., 458-4591.This rule is so well
establishedthat the Commission concluded:
"Itdoesnotseemnecessaryto dwellon furtherspecificexamplesof theapplicationof the principle
statedin sub-paragraha) of thepresentarticle,sincethisprincipleis practicallyundisputed"
[ILC Yearbook,1974, Vol.II, 1stpart, p.284, Comrnentaryof Article 8, para.
71.
55. Since then, the Court itself has had two opportunitiesto apply this undisputed
principle: in the Hostagescase on the one, and in the Nicaragua case on the other
hand. Bothjudgments are quoted -but partlyrnisinterpreted -by the Respondent
State [Counter-Mernorial,pp. 324-327, paras.5.3.1.4-5.3.1.7and 5.3.1.13-5.3.1.15,
and pp. 329-331, 333-334, paras. 5.4.1.7-5.4.1.11and 5.4.1.171.
56. It isworthwhile to recall that, in the Hostagescase, the Court made a distinction
between two differentphasesthat it deemedconvenientto examine separately [ICJ
Rep. 1980, Case concerningUnitedStates Diplornaticand Consular Staff in Tehran,Reply of Bosnia and Herzegovina
Judgment of 24 May 1980,p. 291.Concerning thefirst phase, which covered "the
armed attack on the United StatesEmbassyby militantson 4 November 1979,the
overrunning of its premises, the seinire of its inrnatesas hostages,the appropriation
of its property and archives" [ibid], the Court concluded that the conductof the
"militants" could not be regarded as imputable to theIranian State:
"~heir conduct mightbe considered as itself directly imputable to theIranian State only if it were
established that, in fact, on the occasionin question the militants acted on behalf[of] the State,
having been chargedby some competent organ of the Iranian State to cany out a specific
operation. The information before the Courtdoes not, however, sufice to establishwith the
requisiteertainty the existence at that time of such a link betweenthe militants and any competent
organ of thetat te[ibid.].
However, evenconcerning this phase, the Court adds, in a passage whichis carefully
omitted from the Yugoslav Counter-Memorial:
"~he conclusionjust reached by the Court, that the initiation of the attack on the United States
Embassy on 4 November 1979, and of the attackson the Consulatesat Tabriz and Shiraz the
following day, cannot be considered as in itself imputableto the Iranian State does not mean that
Iran is, in consequence,ee of any responsibilityin regard to those attacks; for its own conduct
was in conflict with its international obligations"., p. 301,
In this case, the referenceis being madeto Iran's obligationsunder the Vienna
Conventionsof 1961 and 1963on diplomatic and consular relations.
57. Regarding the secondphase of the events which werethe subjectof the United
States' claims, that is"the whole series of facts which occurredfollowingthe
completion of the occupationof the United StatesEmbassyby the militants, andthe
seizure of the Consulatesat Tabriz and Shiraz" [ibid., p.331,the Court noted that
"[the] approval givento these facts by the Ayatollah Khomeiniand other organsof the Iranian
State, and the decision to perpetuate them, translated continuing occupationof the Embassy and
detention of theostages into acts of that State. The militants,authors of the invasion andjailers of
the hostages, had now become agents oftheIranian State for whose acts the State itselfwas
internationaiiy responsible[ibid., p. 351.
58. In the Nicaragua case, the Court askeditself,
"whether or not the relationship of the contras to the United StatesGovemment was so much one
of dependence on the one side and of control on the otherthat it wbelright to equate the
contras for legal purposes, with an organ of the United States Govemrnenas acting on behalf
of thatovernment." [Judgmentof 27 June 1986,Case concemingMilitary and
Paramilitary Activitiesin and against Nicaragua, ICJ Rep. 1986, p. 621, Chapter 10 -Section 2
Theresponsibilityof the Federal Republic of Yugoslavia
for the genocidal actsmmittedby the "RepublikaSrpska"
and other Yugoslavsurrogates in Bosnia andHerzegovina
and it concluded that,
"the evidence availableto the Court indicates that thevarious foms of assistance provided to the
contras by the United States have been crucialto the pursuit of their activities, but is insufficientto
demonstrate their complete dependenceon the United States aid."dJ.
However, the Court, in a further passage which, once again, the Respondent carefully
avoids to quote or cite, added:
"~his conclusion, however,does not of course suffice to resolve the entire question of the
responsibility incurredby the United States through its assistanceto the[ibid., p. 631.
In this respect, it took the view that, if "the contrasremain responsible for their
acts", the United States is responsible "for its own conduct vis-à-vis Nicaragua
including conductrelated to the acts of the contras"[ibid., p. 65, emphasis added].
And the Court, having investigated "unlawful acts for which the United States may
be responsible directly in connection with the activities of the contras"[ibid.],
concluded that acts of the U.S. had entailed its international responsibility
"by training, arming, equipping, financing and supplying thecontraforces and otherwise
encouraging, supporting and aiding military andparamilitary activities in and against ~icara~ua"
[ibid, p. 1461.
59. In light of this brief exposition of the applicable law,the following conclusions may
be drawn:
-
firstly, the Federal Republic of Yugoslavia is responsible forthe acts of
individuals or of groups of individuals who have committed genocidal acts "on
its behalf';
- secondly, this implies that these individuals or groups were "dependent" on
Yugoslavia or received their orders fiom its Government or officia1authorities;
and
- thirdly, even if this were not the case, Yugoslaviawould remain responsible for
its own conduct in relation to genocidal acts committed by these individuals or
groups.Reply of Bosnia and Herzegovina
60. This last questionwill be examinedlater, in Section 3 of the present Chapterand in
Chapter 11, where the Applicant will showthat the Federal Republicof Yugoslavia
has failed to comply withits duty to prevent the commissionof genocideby
individualsand groups and to punish the perpetratorsof these acts. In the next sub-
section of the present Sectionit will demonstrate thatmany atrocitiesamountingto
genocidal acts have beencornrnittedby individuals and groups actingon behalf of
the Respondent,including acts by the "Republika Srpska".
The attributability to the Federal Republic of Yugoslavia
61. The Respondentprotests, in its Counter-Memorial, againstthe use of the term
"surrogates"in the Memorialof Bosnia and Herzegovina since, it claims, such a term
is "unknownin legal practiceand theory" [Counter-Memorial,p. 321, para. 5.1.1.4.1.
Yugoslavia should certainly alsocomplainto the General Assemblyof the United
Nations since this organ too has not hesitated to strongly condemn "Serbiaand
Montenegro and their surrogates in Bosnia and Herzegovina[UnitedNations,
General Assembly Resolution47/12]>ARES147112 1, 18Dec. 1992,preamb.], clearly
designatingthis term to mean al1"Serbianforces in the Republicof Bosnia and
Herzegovina" [ibid., para. 2 and 31.This includesboth the Serbianparamilitary
forces in Bosnia and Herzegovina andthe "Republika Srpska".
The Serbianparamilitary forces
62. By way of a mere general assertion that it did "not have effective controlof military
and paramilitaryforces at the time of the operationsin the courseof which the
alleged violations were comrnitted"[Counter-Memorial,p. 335, para. 5.4.1.22.1,the
Respondentattempts to deny its responsibilityfor the genocidal acts committedby
these military and paramilitaryforces. In particular, everytime the Applicanthad
mentioned that an act had been committedby paramilitarySerbian forces, whether
alone or in coordinationwith the Yugoslav armed forces,the Respondentsimply
asserts:"(...) these acts cannotbe attributedto the Respondentand it cannot be held
responsible for them" [seearnongdozens of examplesCounter-Mernorial,p. 20, para.
1.2.1.11.;p. 21, para. 1.2.1.13.;p. 22, para. 1.2.1.20.;p. 26, para. 1.2.1.29.;p. 51,
para. 1.3.2.52.;p. 55, para. 1.3.2.65.; p.59, para. 1.3.3.17.;p. 63, para. 1.3.4.12.;p.
72, para. 1.3.5.38.;p. 72, para. 1.3.5.40.,etc.].
63. In its Counter-Memorial,the Respondent alsoattempts to dismissthe Applicant's
"absurdtheory of agencyaccording towhich al1Serbs in the Republicof Srpska are Chapter IO- Section 2
for thegenocidal acts comrnittedhe "RepublikaSrpska"lavia
and otherYugoslavsurrogates in Bosnia and Herzegovina
'agents' or 'surrogates'of the Respondent" [ibid.,p. 14, para. 1.1.4.7.1.This is just a
caricature of the Applicant's case: Bosnia and Herzegovina does not suggest that "al1
Serbs in Bosnia and Herzegovina" are agents and surrogatesof Yugoslavia. What it
does write and maintain is that Serbian paramilitary forces in Bosnia and
Herzegovina (and in Croatia) are, indeed, agents and surrogates of Yugoslavia and
that, consequently, in accordance with the generalprinciples applying to the
responsibility of States in international law elaborated upon above, their
intemationally wrongfùl acts, including, of course, their genocidal acts, entai1the
international responsibility of the Respondent.
64. The following facts make clear that Serbian paramilitaryforces have acted on behalf
of the Federal Republic of Yugoslavia and were dependent on this State:
- these paramilitary units were createdby Belgrade;
- they were armed and equipped by Yugoslavia;
-
they were trained in Serbia or in military camps of the JNA or the VJ in other
parts of the former Yugoslavia;
-
they used military facilities of the JNA and VJ;
- they were rewarded by Yugoslav authorities;
- they took part in ethnic cleansing in close coordination with the JNA, then the
VJ, before and after 19 May 1992;
- they were acting under direct cornrnandof the JNA, then the VJ, and under the
urnbrella of prominent political leadersof Yugoslavia and the Federal and
Serbian Ministries of Interior.
Isolated, each of these elements, which are reviewed more preciselyhereinafter,
would be enough to consider Serbian paramilitaries operating in Bosnia and
Herzegovina as agents and surrogates of the Federal Republic of Yugoslavia. Taken
together, they constitute a legal pattern whichcannot leave room for any doubt
concerning the attributabilityof their acts to the Respondent.
65. The most important paramilitary unitswere set up by Belgrade. Their activities
began before the outbreak of the conflict in the Republic of Serbia and in Kosovo
and Vojvodina, between 1987 and 1991.The Interior Ministry and the Ministry of
Defense of Serbia took a large part in the creation of these units in, as well as
outside, Serbia [Reply, Chapter 8, Section71.Replyof Bosniand Herzegovina
66. As was demonstrated above, arms, ammunition,clothes andfood were provided to
paramilitary units by Belgrade [seeReply, Chapter8, Section71.
67. On 16 April 1993,the SecurityCouncil strongly condemnedthis support in its
Resolution 819 (1993), stating that it:
"~emandrthattheFederalRepublicof Yugoslavia[SerbiaandMontenegro]immediatelyceasethe
supplyof military arms, equipandservicestoheBosnianSerb paramilitaynitsinthe
Republicof Bosniaand~erzegovina.[UnitedNations,Securig Council Resolution
819 (1993), S/RES/819, 16 Apr. 1993, emphasis added]
This demandwas endorsedby the GeneralAssemblyin its Resolution48/88 of 20
December 1993[UnitedNations, General Assembly Resolution48/88, A/48/88, 20
Dec. 1993, para. 5; see also ibid. 49/10, 3 Nov. 1994, para. 131.
68. Serbian paramilitary unitswere also trainedin camps locatedin, as well as outside,
the Federal Republicof Yugoslavia [seeReply, Chapter 8, Section71.The
provisional locationin the Federal Republicof Yugoslaviaof many paramilitary
units, which moved very often duringthe war, is ascertainedby the fact that large
attacks against Bosnia and Herzegovinawere launchedfrom the Federal Republicof
Yugoslavia'sterritory [see e.g. Reply, Chapter5, Section71.Serbian paramilitary
units also used military camps of the JNA in Bosnia and Herzegovinafor training.
Thus, in the KaradiiC.and MladiC.case,the ICTFY notedthat "severaltestimonies in
the case-file give credenceto the thesis that pararnilitary groupswere trained by the
NA" [ICTFY, Trial Chamber1,Reviewof the Indictmentspursuantto Rule 61 of
the Rules of Procedure and Evidence,Prosecutor v. Radovan Karazdic and Ratko
MladiC.CasesNo. IT-95-5-R61and IT-95-18-R61,11 July 1996,p. 28, para. 551.
69. Paramilitaq units were allowedto use JNAequipment,such ashelicoptersand
planes. whenbeing deployed. Some of theparamilitaryunits were evenprovided
with facilities in Belgrade, usedas headquarters fortheir agents workingwith the
police and govemment officiais[seeReply, Chapter 8, Section71.
70. From the very beginning of the war, the JNA and pararnilitaryunits from Serbia
acted in close cooperation. Thus, according tothe Trial Chamberat the ICTFY:
"~tartingon25August 1991the cityof Vukovarwas subjectedto a violent offensiveled bythe
Yugoslav People'sAmy (INA) which deployed a hmilitaryarsenalagainst it.IntheINA's
rankswere conscriptsandSerbiannationalistvolunteers.TheINA was apparentlyresponsiblefor
coordinating theactivitiesof variousparagroups,suchasArkan's"Tigers",omeof which Chapter IO -Section 2
Theresponsibilityof the Federal Republicof Yugoslavia
for the genocidal acts committedby the "RepublikaSrpska"
and other Yugoslavsurrogatesin Bosnia and Herzegovina
were localandsomeof whichhadcornefromthe Serbian~epublic." [ICTFY, Trial
Chamber 1,Review of the IndictmentPursuantto Rule 61 of the Rules of
Procedure and Evidence, Prosecutor v. Mile Mrksic,Miroslav Radic, Veselin
Sljivancanin ["VukovarHospitalr~,Case No. IT-95-13-R61, 3 Apr. 1996, p. 3,
para. 41.
JNA and Serbian paramilitary forces also coordinatedtheir activities in Bosnia and
Herzegovina. First,
"~vornikwas attackedon 8 April1992.Arkan'stroops reportedly led the attack.weyre aided
by JNAforces,Se~elj's,andArkan'smen.IdentifiedperpetratorincludedregularJNAtroops,
paramilitarieandspeciaipolic(...).[UnitedNations, Final Report of the United
Nations Commissionof Experts, S/1994/674/Add.2(Vol. 1),27 May 1994,
Annex III.A, "Special Forces",p.166, para. 569; see also Reply, Chapter8,
Section 71.
Thereafter, the same occurred in many other places in Bosnia and Herzegovina.
Pararnilitaryunits were enabledto commit massacresby the logistic and artillery
support of the NA. On some occasions,Arkan was the leader of the whole joint
operation with the JNA [United Nations,Final Report of the UnitedNations
Commissionof Experts, Sl19941674lAdd.2(Vol. 1),27 May 1994, Annex III.A, p.
25, para. 94, quoted above, Chapter 8, Section 71.
71. Paramilitary units were under the direct controlof the Federal and Serbian Interior
Ministries [Reply, Chapter 8,Section 71.Vojislav SeSelj,one of the infamous
paramilitary leaders, admitted that paramilitary units were armed and supervisedby
MiloSevi6'spolice [United Nations,Final Report of the UnitedNations Commission
of Experts, S/1994/674lAdd.2(Vol. 1),27 May 1994,AnnexIII.A, "Special Forces",
p. 29, para. 1181.He named members of the govemment of Serbia who were
responsible for the supervision,and especiallythe Interior Minister of Serbia, as well
as individual police officiaiswho commandedhis units [ibid, p. 29, para. 119; see
also Reply, Chapter 8, Section 71.The Trial Chamber at the ICTFY also noted that:
"(..evidence was(...presentedthatthe SerbianSecurityServicehasbeen directingat leastone
paramilitaryleader,VojislavSe~elj,inthedispositionof his for1991and 1992." [ICTFY,
Trial Chamber II, Prosecutor v. DuSb Tadit, CaseNo. IT-94-1-T, 7 May
1997, p. 219, para. 593, quoted above, Chapter 8, Section 71.Reply of Bosnia and Herzegovina
72. The paramilitaryleaders VojislavSeSeljand "Arkan"explained thatthey were under
the direct commandof Belgrade.Both of them have in the meantirne had avery
successfulpolitical career in Serbia, sponsoredby President SlobodanMiloSeviC.In
March 1998,Vojislav SeSeljbecame Deputy Prime Ministerof the Serbian
Govement [see above, Chapter 8, Section71.
73. This tight collusion betweenSerbianparamilitary forcesoperating in Bosnia and
Herzegovina andthe authorities,whether Serbianor Yugoslav, inBelgrade has been
ascertainedon several occasionsby the General Assembly which,in particular,
recalled, both in 1993and 1994,
"the report of the Committee on the Elimination of Racial Discrimination[A/48/18, Oflcial
Records of theGeneralAssembly,48 th. Session, Suppl.no 18,A/48/18] in which the Committee
'notes with great concem that links existed between the Federal Republic of Yugoslavia [Serbia and
Montenegro] and Serbian militias and paramilitary groups responsible for massive, gross and
systematic violationsof human rights in Bosnia and Herzegovina andin Croatian territories
controlledy ~erbs'."[UnitedNations, GeneralAssembly Resolution48/88,
AI48188,20 Dec. 1993,preamb.; ibid.,Resolution49/10, N49110, 3 Nov.
1994, preamb.] .
74. For its part, in its Opinion and Judgmentof 7 May 1997in the TadiCcase, the Trial
Chamber at the ICTFY notedthat one of the consequencesof the independenceof
Croatia and Sloveniaand ofthe purging of non-Serb elements fromthe JNA
"( ...) was that the JNA experienced a shortage of manpower, especially wheto play the
role of an occupying forcein hostileterritory, as was the case in Croatia and, during 1992,in non-
Serb parts of Bosnia and Herzegovina. In consequence, increasing reliance was placed on Serbian
paramilitary forces, recniitedin Serbia and Montenegro andmuch employed in control of non-Serb
communities in Bosnia and Herzegovina...These paramilitary forces, operated in conjunction
with theJNA and were usedas infants, shock troops to make up for declining numbersin the
regularanny. They included Zeljko Raznjatovic's Serbian Volunteer G[later known as
"Arkan's Tigers"] and Vojislav Seselj's Chetniks, both of whice bemtorticularly feared by
the Muslim population for theirality and indiscipline. TheJNA and in particular its air force
arm actively cooperated with and assistedthese paramilitary unitsduring 1991 and 1992 in
operations in Croatia and Bosnia and Herzegovinaliberally supplied them witharms and
equipment." [ICTFY,Trial ChamberII, Prosecutor v. Duiko TadiC,Case No. IT-
94-1-T, 7 May 1997,p. 40, para. 1101.
75. It therefore appearsthat these groupshave been orderedby the JNA not only "to
carry out a specificoperation"but with a general missionof assistingthe JNA in
implementingethnic cleansing.This entirely meetsthe test defined by the Court in
the Hostagesand Nicaraguacases [seeabove, paras. 55-58]. Chapter IO -Section 2
Theresponsibiliq of the Federal Republic of Yugoslavia
for the genocidal acts committedby the "RepublikaSrpska"
and otherYugoslavsurrogates in Bosniaand Herzegovina
76. The Federal Republic of Yugoslavia contendsthat this is not so since, whether
concerning the paramilitary forces or the "Republika Srpska" itself,Yugoslavia's
responsibility would only be entailed on a case by case basis, for those cases when
specific acts have been committedunder instructionsof the State or have been
endorsed by it [see e.g. Counter-Memorial,p. 324, paras. 5.3.1.3, 5.3.1.5or p. 326,
para. 5.3.1.121;it adds that "such endorsementmust be explicit or must refer to
specific acts" [Counter-Mernorial, p. 327, para. 5.3.1.14.1and that:
"[fjor a specific act in such a situationto be attributedto a State it would have to be provedthat
that State had effective controlof the military or paramilitary operationsin the course of which the
alleged violationswere committed.[Counter-Mernorial,p. 335, para. 5.4.1.22.1.
77. The Respondent misinterpretsthe applicable lawin this respect: neitherin the
Hostages case nor in the Nicaragua case has the Court defined a singletest. In both
cases, it has decided that Iran or the United Stateswould be deemed responsible for
the internationally unlawful acts of the "militants"or the contras, either if they were
under the control of the Defendant and acted globallyon its behalf, or, if this were
not so, if and when specific acts have been committed under instructions.This is
made extremely clear in Judge Ago's separate opinion under the Nicaragua case:
"It would indeed be inconsistent with the principles goveming the question to regard sfmbero
thecontra forces as persons or groups actingin the narne or on behalf of the United States of
America. Onlyin cases where certain membersofthose forces happenedto have been specifically
charged by the United States authoritiesto commit a particular act, ort a particular taskof
some kind on behalf of the United States, wouldit be possible so to regardnly in such
instances does international lawrecognize, as a rare exceptionto the rule, that the conduct of
persons or groups which are neither agents nor organsof a State, nor membersof its apparatus
even in the broadest acceptationof thatm, may be held to be acts of that St[ICJRep.
1986, para. 16, pp. 188-1 89; concerning Judge Ago's analysisof the Hostages
case, see ibid., para. 18, p. 190; see also Judge McDonald in ICTFY, Trial
CharnberII, Opinion and Judgement, Prosecutor v. Duiko Tadit, CaseNo. IT-
94-1-T, 7 May 1997, paras. 16-25].
78. The ILC commentary on its Draft Article 8 on State responsibility[ILCYearbook,
1974,Vol. II, Part I] makes clear that both situationswere present in the mind of its
Members when they adoptedthis provision:
"~he hypothesis contemplatedin sub-paragraph [a] was intended by the Commission mainlyto
cover cases in which the organs of the State supplement their own action andthat of their
subordinates by the action ofprivate persons or groups who actas 'auxiliaries'while remainingReply of Bosnia andHerzegovina
outside the official structure of the State. In the same context the Commission wishedto deal with
the familiar cases in which the organs ofthe State or of one of the other entities empowered by
interna1law to exercise elementsof the governmental authority prefer, for variedand in any case
self-evidentasons, not to undertake certain duties directly or notto cany out certain tasks
themselves. Theythen make use of persons who arenot formally part of the State machinery of
any of the other entities mentioned; theycal1upon private individualsor groups of private
individualsto take on the duties and tasks in question, although hereagain these individuals or
groups are not thereby formally attachedto the structures in question and do not, in other words,
thereby become dejure organs of the State or of the other entities mentioned. The Commission,
also bearing in mindthe important role playedby the principle of effectivenessin the international
legal order, considered thatthat order must of necessitytake into account, in the cases
contemplated, the existence of a link between the person performing the act and the State
machinery ratherhan the lack of a forma1nexus betweenthem. The conduct in which the persons
or groups in questions engage in fact on behalf of theState shouldtherefore be regardedunder
international lawas acts of the State: that is to say, as acts which may,in the event, become the
source of an international responsibility incumbent on theLC Yearbook,1974,Vol.
II, Part1,p. 283, para. 2 of the comrnentaryof Article 81.
79. As shown above, there can be no doubtthat in many specific cases,some of which
have been listed above [para. 701,genocidal actshave beencommittedby
paramilitary forces acting under direct instructionsof Belgrade. Moreover,the whole
pattern of factsrecalled in Section 7 of Chapter8 and in this Chapter [paras. 68-72],
shows that these paramilitarieswere, globally,under the direct control of the
Yugoslav and Serbianauthorities,not simply throughthe "RepublikaSrpska".
Therefore, they must be consideredas agents of the Federal Republicof Yugoslavia
on behalf of which they have acted.Bosnia and Herzegovinahas offered much more
than pureprima facie evidence, andit is for the Respondentto rebut it, not only on a
case by case basis,but also and primarily, globally[see Reply, Chapter31.
The "RepublikaSrpska"
80. The main defence offered by the FederalRepublicof Yugoslavia consistsof a plea
of non-responsibilityfor the genocidalacts committed againstthe non-Serb
population of the former Yugoslavia andin particular in Bosnia and Herzegovina
since these acts would have been committedby Serbs under the leadership and
command of the "Republika Srpska". Thisis not an admissible defence,since this
entity is not and has never been a Statein the meaning generally acceptedin
international law, but an artificial entity subordinateto the Federal Republicof
Yugoslavia. Moreover, evenif the "Republika Srpska"were a State (quodnon), the
Respondent would, nevertheless, bear responsibilityfor the genocidalacts committed
by this so-called "State" andfor the acts of its "army",the VRS, since these entities
would have amply met the "agency test" recognizedby generalprinciples of the law Chapter 10-Section 2
Theresponsibilityof the Federal Republicof Yugoslavia
for thegenocidal actsmmittedby the "RepublikaSrpska"
and other Yugoslavsurrogatesin Bosnia andHerzegovina
of State responsibilityappliedby the Court [seeabove, paras. 53-57]. Each of these
points will be addressed separatelybelow.
The "RepublikaSrpska" is not and has never been a State
81. As a leitmotiJ the Federal Republicof Yugoslavia assertsin its Counter-Memorial
that "the Republic of Srpska has existedas a State in the territory of the former
Yugoslav Republicof Bosniaand Herzegovina eversince April 1992"[Counter-
Memorial,p. 243, para. 2.21.1.1 .;see also, e.g. p. 129,para. 2.6.1.1.;p. 244, para.
2.21.1.4, or p. 1080,paras. 8.10and 8.121and goes as far as alleging that "[tlhe
Republic of Bosnia and Herzegovinaand the internationalcornrnunityhave
recognizedthe legitimacyand legality of the creationof the Republic of Srpska"
[ibid.,p. 132, para. 2.7.1.1 .;see alsop. 243, para. 2.21.1.1 .].The reason for these
clearly erroneous allegationsareobvious. Yugoslavia wishesto prove that,
"consequently",it "did not exerciseany sovereigntynor any control over the territory
controlledby the Republic of Srpska in the former Yugoslav Republicof Bosnia and
Herzegovina" [ibid.,p. 244, para. 2.21.1S.; see also,e.g. p. 295, para. 3.11.1.1 .;p.
340, para. 5.8.1.4. or p. 1080,paras. 8.8 and 8.131.
82. Two main reasons clearly contradict the Yugoslavclaim that the "Republika Srpska"
is or was a State. In the first place, this entity has been createdcontrary to
peremptory noms of international law(jus cogens) and,in the second place, being
entirely defacto dependenton Yugoslavia butdejure part of Bosnia and
Herzegovina, it has never enjoyed sovereignty, whichis the criterion defming a State
in international law.
The creation of "Republika Srpska"has been imposedthrough the use of force and
genocide.
83. The creation of the "Republika Srpska" resulted fiom the use of force and its
population has been made "ethnicallyhomogeneous"through genocide. Such a
situation cannot have any legal validity.
84. The "independence"of the "RepublikaSrpska"was proclaimed on 28 February 1992
by the "Assemblyof the SerbPeople in Bosnia-Herzegovina".At this date, the
Yugoslav Army (JNA) was still occupyingthe territory of this so-called "newState",Reply of Bosnia and Herzegovina
as Yugoslavia itself recognises, although the Respondentis extremely reticenton the
precise date of the effective"withdrawal"of its troops [see e.g. Counter-Memorial,
pp. 245-258, Sections3.1.l. to 3.1.3.1.And, in fact, only the massive presenceof the
JNAon the tenitory of Bosnia and Herzegovinaand the use of force by this army
had made this proclamation possible.
85. The Respondent is also particularly reticent aboutthe effect of what it modestlycalls
the "relocation"of the JNA [Counter-Memorial,Section 3.1.1, pp. 245-2461.In fact,
this was just a massive occupationof the Bosnianterritory by an exclusively Serb
army. This has been acknowledgedby the International CriminalTribunal forthe
Former Yugoslavia.In its Judgmentin the Tadi6case, the TrialChambernoted that
the JNA "remainedin substantialforce in Bosnia and Herzegovina,despitethe
secessionof that Republic" [ICTFY,Trial CharnberII, Prosecutor v. Duiko Tadit,
CaseNo. IT-94-1-T, 7 May 1997, para. 1131,and that,
"B~ early 1992,there were some 100,000JNA troops in Bosnia and Herzegovina with over 700
tanks, 1,000armoured personnel carriers,much heavy weaponry, 100 planes and 500 helicopters,
al1under the command ofthe General Staff of JNA in elg grade[ibid.,para. 124;see
also Reply, Chapter 8,Section 41.
86. The Security Councilwas well aware of this situationwhen, by its Resolution752
(1992) of 15May 1992,it stated that it:
"~ernandsthat al1forms of interference from outside Bosnia-Herzegovina, includingby units of the
Yugoslav People'sArmy [JNA] aswell as elements of the Croatian Amy, cease immediately, and
that Bosnia-Herzegovina's neighbourstake Swiftaction to end such interference and respect the
temtorialintegriiy of Bosnia Herzegovina.
Dernanùsthat those units of the Yugoslav People'sAmy [JNA] and elements of the Croatian
Army now in Bosnia-Herzegovina must eitherbe withdrawn, orbe subjectto the authority of the
Government of Bosnia-Herzegovina, orbe disbanded andsanned with their weapons placed
under effective internationalmonitoring([UnitedNations, Securiq Council
Resolution 752(1992),SiRESl752, 15May 19921.
None of these three options were effectivelycomplied withas far as the JNAis
concerned, as will be shownbelow.
87. The logic of the conflictin the former Yugoslaviais describedby ProfessorPaul
Garde in the followingwords:
"II s'agit d'une guerre de conquête ntrkaliser la double formule(...): 'tous les Serbesdans un
seul Etat, dans cet Etat rien que des Serbes.' Donc des fragments des Républiques voisines, Croatie Chapter IO -Section 2
Theresponsibilityof the Federal Republic of Yugoslavia
for the genocidal acts committedby the "RepublikaSrpska"
and other Yugoslavsurrogatesin Bosnia and Herzegovina
puis Bosnie,qui sont censésconstituer le 'temtoire ethnique serbe' sont conquispar ens mes
1991-1992[...] Et c'est sur ce territoire que s'exercele nettoyage ethaidire c'est
l'élimination systématiqudee toute population non serbe."logique du conflit", in
L 'ex-Yougoslavieen Europe, L'Harmattan, Paris, 1 997, p 21, Annex 2731.
88. The Yugoslav forces were massively engagedin the military operationsand the
ethnic cleansing against the non-Serb populationin Bosnia and Herzegovina. As
explained again by the Trial Chamber of the ICTFY, "theformation of Serb
Autonomous Regions and al1that followed wasonly possible because of the military
power of Serbia." [ICTFY,Trial ChamberII, Prosecutor v.Duiko Tadii, Case No.
IT-94-1-T, 7 May 1997, p. 44, para. 1221and,
"on 19 May 1992the withdrawal ofJNAforces from Bosnia and Herzegovina was announced but
the attacks were continuedby theS." [ibid., p. 46., para. 1251.
This is also noted by the Trial Chamber in its decision in the KaradiiCand Mladic
case:
"B~ anning the Serbian population and organising a more JNAecintervention,the contacts
[betweenthe JNA and the SDS] permittedthe SDS to take power in the territory of Bosnia and
~erzegovina." [ICTFY, Trial Chamber1,Review of the Indictmentspursuant to
Rule 61 of the Rules of Procedure andEvidence,Prosecutor v. Radovan
KaradZii and Ratko Mladii, Cases No. IT-95-SR61 & IT-95-18-R61, 11 July
1996,p. 28, para. 551.
89. The Trial Chamber clearly explains how the SDS seizedpower on the territory of the
future "Republika Srpska" :
"1) The seinire of power by the SDS
The material tendered to the Trial Chamber by the Prosecutor justifies the finding that, between
March and May 1992,SDS forces, withwide-ranging military supportfrom the JNA, engagedin
attacks against certaintegic points of Bosnia and Herzegovina,in particular at Foca, Bosanski
Samac, Vlasenica, Brcko, and Prijedor, where the majorityof the populationwas non-Serb. These
large-scale military offensiveswere usually conducted in collusionwith pararnilitarasnits, such
the groups led by Zeljko Raznjatovic, alias "Arkan", Vojislav Seselj, the "White Eagles"at Foca,
and the "Grey Wolves"at Bosanski Samac, and had the support of SDS members. These offensives
gave the SDS control over the peripheral temtory of Bosnia and Herzegovina.During the same
period, the JNA initiatedthe military prdparations for the siegeof Sarajevo.
A series of maps produced at the hearing showed that the zones heldin November 1992by the
military forces and the SDS administration inBosnia and Herzegovina correspondedto a largeReply of Bosnia and Herzegovina
extent to the territones which had beendeclared autonomousby the SDS as specified by the
"Assembly of the Serbian peoplein Bosnia and Herzegovina"on 21 November 1991.Some zones
were taken îhough they were not amongthe autonomous territories;thus for instancethe town of
Brcko and the municipalitiesin the Drina valley, including Bratunacand Srebrenica. Accordingto
Professor Paul Garde, "the additionalnces were, especially "bloody"since it was in those areas
that the policy of persecutionwas the most vio[Ibid., p. 29, paras. 56 and 571.
90. Examples of the decisive participationof the JNA in the military operations which
resulted in the control of important partsof Bosnia and Herzegovinaby Yugoslavia
are countless;some have been detailedearlier in this Reply [Reply, Chapter 8,
Section 31.In this respect, it is also significantthat, whenever "Crisis Staffs" were
formed by Serbs in Bosnia and Herzegovina, the JNA Commanderof the area was
always a member of the Crisis Staff [ICTFY, TrialChamberII, Prosecutor v. DuSko
Tadié,Case No. IT-94-1-T, 7 May 1997,p. 37, para. 103; seealso Reply, Chapter8,
Section 31.
91. These military operationswere notaimed at the creation of a "State",but at the
creation of an entity which was tojoin the future "GreaterSerbia". This is made very
apparent, for example,by a proclamationof the "Assemblyof the Serbian Peoplein
Bosnia and Herzegovina" which,as early as 11December 1991, askedthe JNA:
"(...) to, by al1means it has on disposal, defended the territoriesof Bosnia and Herzegovinaas part
of Yugoslavia on which the plebiscite ofthe Serbian people and other citizens washeld in order to
stay in thetual State of Yugoslavia and on which theDecision of the Assembly ofthe Serbian
people in Bosnia and Herzegovina on territories of the municipalities, localsnd otheriea
inhabited placesin Bosnia and Herzegovina which are considered the territoriesof the Federal State
Yugoslavia,asmade." [Annex274; see also ICTFY, Trial CharnberII, Prosecutor
v.Radovan Karadziéand RatkoMladiC,Cases No.IT-95-5-R61 & IT-95-18-
R61, 11 July 1996,pp. 27-28, para. 541.
92. As noted by Judge McDonaldin herjoint and dissenting opinionin the TadiCcase,
before as well as after 19May 1992,
"(...) the objective remainedthe same:to create an ethnically pureSerb State by uniting Serbs in
Bosnia and Herzegovina and extendingthat State from the Federal Republicof Yugoslavia (Serbia
and Montenegro)to the Croatian Krajinadong the important logistics and supply linethat went
through opstina Prijedor, thereby necessitating theof the non-Serb populationof the
opstina.[ICTFY,Trial CharnberII, Prosecutor v. Duiko TadiC,CaseNo. IT-
94-1-T, 7 May 1997,p. 5 ,para. 71.
93. In other words, this international armedconflictwas also an ethnic war, genocide
being the means to obtain an "ethnically clean"country. The fact is that "military
operations"were inseparablefrom "ethniccleansing"and, more often than not, Chapter 10- Section 2
The responsibility of the Federal Republic of Yugoslavia
for the genocidal acts committed by the "RepublikaSrpska"
and other Yugoslavsurrogates in Bosnia and Herzegovina
focused on this dirty work. As noted by the first Special Rapporteurof the United
Nations Commissionon HurnanRights, "the military conflict in Bosnia and
Herzegovina (...is aimedat achieving'ethnic cleansing"' [United Nations,Situation
of Human Rights in the territory of theformer Yugoslavia,Report submitted by Mr.
TadeuszMazowiecki, Special Rapporteurof the Commission on Human Rights,
E/CN.4/1992/S.1/10]. TheTrial Chamberat the ICTFY, quoting the Special
Rapporteur, concluded too that "'ethnic cleansing' seems t oe not a by-product of
the war initiatedby the SDS andits military allies, butrather its aim" [ICTFY,Trial
Chamber,Prosecutor v. Radovan KaradZié and Ratko Mladié,CasesNo. IT-95-5-
R61 & IT-95-18-R61, 11 July 1996,p. 35, para. 641.
94. Operations of "ethniccleansing"were described generallyby the Trial Chamber as
follows:
"1n general, the military take-overs involved shelling, sniping and the rounding up of non-Serbisn
the area. These tactics often resulted in civilian deathsand the flight of non-Serbs. Remainingnon-
Serbs were then forced to meet in assemblyareas in towns for expulsionfiom that area. Large
numbers of non-Serbs were imprisoned, beaten andforced to sing Chetnik songs and their
valuables seized. This was accompaniedby widespread destructionof persona1and real"
[ICTFY, Trial ChamberII, Prosecutor v. DuSko Tadié,CaseNo. IT-94-1-T, 7
May 1997,p. 46, para. 1261.
95. This policy can be illustratedby the occupationof the city of Vlasenicaas described
by the ICTFY:
"~he Muslim population of Vlasenicawas systematicallydisarmed and it does not appear that there
was any rcsistance movement in the region.
(...)
The relevant partsof the record tend to show that JNA forces fiom Novi Sad, under the control of
thegovcrnrnent in Belgrade, took partin the occupation of Vlasenicaafter the Republic of Bosnia
and Herzegovina had been recogniasdan independenttat t[ICTFY,Trial Chamber 1,
Review of IndictmentPursuantto Rule 61of the Rules of Procedure and
Evidence, Prosecutor v. Dragan Nikolic dkla 'Yenkir',CaseNo. IT-94-2-R61,
20 October 1995,p. 17,para. 30; emphasisadded].
This deliberatepolicy has been describedin detail above [Reply, Chapter8, Section
31.Reply ofBosnia and Herzegovina
96. It appears clearly that the "Republika Srpska"is the product ofboth an unlawful use
of force and genocide, that is, clearly contradicting the principles prohibitingboth
the use of force in international relations and genocide. These principles are
universally recognised as being typical peremptory rules of general international law
Gus cogens).
97. This point probably does not deserve a long demonstration.Suffice it to Saythat:
in its comrnentary of Article 50 of its Draft Articles Relatingto the Law of
Treaties (which was to become Article 53 of the 1969Vienna Convention), the
ILC suggested that both "un traité quienvisage un emploi illicite de la force
contraire aux principes de la Charte" and "untraitéqui envisage outolère
l'accomplissement d'actes telsque (...)le génocide"would contradict a
peremptory rule of general international law and,therefore, be nul1and void
[ILC Yearbook, 1966, Vol. II, p. 270, para 3 of the comrnentaryon Art. 501;
the Court mentioned both "the outlawing of acts of aggression, and of
genocide" as creating "obligationsof a State towards the international
community as a whole", which, "[bly their very nature (...)are the concern of
al1States. In view of the importance of the rights involved, al1States can be
held to have a legal interest in their protection, they are obligations erga
omnes" [Judgmentof 5 February 1970,case concerningthe Barcelona Traction,
Light and Power Company Ltd., ICJ Rep. 1970,p. 321;and
similarly, in Article 19 of its Draft articles on the Responsibilityof States,the
ILC notes that:
"an international crimemay resuinter alifiom:
(a) a seriousbreach ofan international obligation of essential importance for the
maintenanceof international peace andcuriv, suchasthat prohibiting aggression;
(...>
(c) a seriousbreach on a widespreadscale of an international obligationof essential
importance forsafeguardingthe hurnanbeing,such asthoseprohibiting genocide(...).If
[ILCReport, op. cit. para. 52, p. 1311.
98. One of the consequencesof the contradiction of the process of creation of the
"Republika Srpska" with these well establisheddes ofjus cogens is that this entity
cannot be recognised as having the legal status of a State.
99. As Dr. Doehring aptly explained: Chapter IO-Section 2
The responsibility of the Federal Republic of Yugoslavia
for theenocidal acts cornmittedby the "RepublikaSrpska"
and otherYugoslavsurrogates in Bosnia and Herzegovina
"(...) effectiveness isonly relevantasthe legal system permitsit. Effectiveness alone as a
consequence of a mereactual event does not create ri["Effectiveness",in R.
Bernhardt ed., Encyclopediaof Public InternationalLaw, North Holland Pub.,
Amsterdam, 1984,p. 701.
In conformity with the traditional adage according towhich ex injuriajus non oritur,
"the law will always lean towards the principle that a wrongfulact must be
ineffective to change or to create legal rights" [Sir Robert Jennings, "Nullity and
Effectivenessin InternationalLaw", Cambridge Essaysin International Law - Essays
in Honour of Lord McNair, Stevens, London, 1965,p. 721.
100. This is even more so when the rule violatedis a nom ofjus cogens:
"~n act or omission which iscontrary to ajus cogens rule is devoid of any legal effect. It cannot
give place through recognition, acquiescence or preto a new legal regiaswould
violations of otheres of internationalia[GeorgesAbi-Saab in Lagonissi
Conference,pp. 10-1 1 as quotedin Vera Gowlland-Debbas,Collective
Responses to Illegal Acts in InternationalLaw - United NationsAction in the
Question of Southern Rhodesia, Nijhoff, Dordrecht, 1990,p. 250, fn. 1; see
also e.g., Roger Pinto, "La prescriptionen droit international", 87Recueil des
cours, 1955, p. 246 or Ian Brownlie,International Law and the Useof Force
by States, Clarendon Press, Oxford, 1963,p. 5001.
101. The Security Counciland the GeneralAssembly haveconsistentlyapplied this
principle:
- in its Resolutionof 24 October 1970, "Declarationon principles of
international law concerning friendly relations andCO-operation among States
in conformity with the Charter of the United Nations",the General Assembly
declares that "noterritorial acquisition resultingfrom the threat of use of force
shall be recognised as legal" [UnitedNations, General Assembly Resolution
2625 (', 24 Oct 19701;
- and, in concrete cases,both the Security Council andthe General Assembly
have constantly reaffirmed "that acquisitionof tenitory by force is
inadmissible" [see e.g. United Nations,Securi~ Council Resolutions 242
(1967), 22 Nov. 1967;252 (1968),21 May 1968 (occupiedterritories by
Israel); 476 (1980), 30 June 1980 (annexationof Jerusalemby Israel); 497ReplyofBosniaandHerzegovina
(1981), 17Dec. 1981 andUnitedNations, GeneralAssembly Resolution ES-
9/1, (Syrian Golan Heights)];
-
similarly,they have condemned acquisitionsof territories in contradictionwith
other noms ofjus cogens such asthe principle of self-determination[see e.g.:
United Nations, Security Council Resolutions 264 (1969), 20 Mar. 1969;276
(1970), 30 Jan. 1970;384 (1975), 22 Dec. 1975;389 (1976), 22 Apr. 1976and
General Assembly Resolutions2145 (no, 27 Oct. 1966(Namibia);3485
(XWI), 12 Dec. 1975;31/53, 1 Dec. 1976;36/50, 24 Nov. 1981 (East Timor)]..
102. Both organs have appliedthe sarneprinciples when anew State has supposedlybeen
created in contradiction to a peremptory nom of general international law:
- in the case of Southern Rhodesia,the SecurityCouncilcondemned "the
usurpation of power by a racist settler minorityin Southem Rhodesiaand
[regarded]the declarationof independenceby it as having no legal validity"
[United Nations, Security Council Resolution 217 (1965), 20 Nov. 1965;see
also Security Council Resolutions 216 (1965), 12 Nov. 1965;277 (1970), 18
Mar. 1970or GeneralAssembly Resolutions 2379 (XXIQ, 25 Oct. 1968and
2508 (XXIV), 21 Nov. 19691;
- similarly the Security Council condemned successively the proclamationof the
Northern part of Cyprusas "a Federated State" [UnitedNations, Security
Council Resolution 367 (1975), 12 Mar. 19751and the attempt tocreate a
"TurkishRepublic of Northern-Cyprus" [United Nations,Security Council
Resolution 541 (1983), 18Nov. 19831,
- and again, both the General Assembly andthe Security Councilhave rejected
the "proclamation d'indépendance du Transkei"and of other "Bantustans"
created by South Africa,
"commeCtantunemesuredestinéeàconsoliderlapolitique inhumae'apartheià,
ditniire l'intéerritorialedupayàperpétuelra domination de la minorité ctene
déposséder populationafî-icained'AfriqueduSudde ses droitsinalipniteds"
Nations, GeneralAssembly Resolution 31/6A,26 Oct. 1976; seealso
ibid.32/105N, 14 Dec. 1977or United Nations,Security Council
Resolutions 402 (1976), 22 Dec. 1976and 556 (1984), 23 Oct. 19841.
103. The Security Council reacted sirnilarlyin the case of Bosnia and Herzegovina.In its
Resolution 757 (1992)of 30 May 1992,it recalled "thatno territorial gains or
changes brought aboutby violence are acceptableand that the borders of Bosnia and
Herzegovinaare inviolable"[UnitedNations, Security CouncilResolution 757 ChapterIO -Section2
Theresponsibili~,of the Federal Republicof Yugoslavia
for thegenocidal acts committedby the "RepublikaSrpska"
and otherYugoslavsurrogatesin Bosniaand Herzegovina
(1992), SiRESl757, 30 May 1992;see alsoUnitedNations, GeneralAssernbly
Resolution461242,25 Aug. 1992, para. 81.Then, on 16November 1992,the Council
strictly reaffirmed itsal1for the territorialintegrityof the Republicof Bosnia and
Herzegovinaand affirmed, "that any entities unilaterally declared or arrangements
imposed in contraventionthereof will notbe accepted"pnited Nations, Security
CouncilResolution 787(1992), S/RESl787,emphasisadded; see also ibid.,836
(1993) of 4 June 19931.Similarly,the GeneralAssemblyreaffirmed on 29 December
1993, "that the consequencesof 'ethniccleansing' will notbe acceptedby the
internationalcommunity" [United Nations,GeneralAssemblyResolution48/88, 29
Dec. 1992, para. 3; see also ibid., 49/10 of 3 Nov. 1994, para. 81.
104. This is indeed a clear condemnationof the very existenceof the "RepublikaSrpska"
as a subjectof internationallaw. Knowingthis, the Respondent stressesthat "the
Republic of Srpska"was recognised "as aParty to the conflict" [Counter-Memorial,
Section2.5, pp. 125-1291since "the Bosnian Serbs"are mentionedin several
resolutions of the Security Council[Ibid.,p. 125,para. 2.4.1.131and participated in
negotiationswith other "parties" to the conflict [ibid., pp. 125-129,paras.2.4.1.14-
2.5.1.121,This calls for severalbrief remarks:
- None of the resolutions of the Security Council mentionthe "Republika
Srpska", thus showing clearlyits conviction thatthis unlawfullyand
"unilaterallydeclared entity" was not a State;
- this recognition of the Bosnian Serbsas a "party" was intended (and indeed
necessary) only in order to force them to comply withthe provisions of the
1977Protocol II on the law of non-international armedconflicts;
- the "RepublikaSrpska" hasnever been recognisedas a Stateby any other
State, including by the Federal Republicof Yugoslaviaitself, which clearly
considered it as an agent and a surrogate, notan equal;
- far fiom recognising "the legitimacyand legality of creationof the Republic of
Srpska" [Counter-Memorial,Section 2.7, pp. 132-1341,the Dayton-Paris
Agreement of 21 November and 14December 1995reaffirms "the territorial
integrity [and] political independenceof Bosnia and Herzegovina"[Article 1 of
the General FrameworkAgreement]; accordingto the Constitution,Bosnia and
Herzegovina "shall continueits legal existenceunder internationallaw as a
State" [Article1.11,while the Republika Srpskais designatedan "entity"
[Article1.31whose international jurisdictionis strictly limited andis to beReply of Bosnia and Herzegovina
"consistent withthe sovereigntyand territorial integrity of Bosnia and
Herzegovina" [ArticleIII.2 (a)1;
- very significantly,the "Republika Srpska"did not take partin the negotiations
and was representedas an "entity"by "Slobodan MiloSeviC,the President of the
Republic of Serbia, as the head of the delegationof the FederalRepublic of
Yugoslavia".
105. By Article II of the Dayton Accordson signingthe General Frarnework Agreement
for Peace in Bosnia and Herzegovinaand the letters senton 21 November1995by
Slobodan MiloSevikto the Ministersof Foreign Affairs of France, Germany, Russia,
the United Kingdom and the United States,the Serbian President pledges:
"On behalf of the Federal Republicof Yugoslavia,1wish to assure you thatthe Federal Republic
of Yugoslavia shall take al1necessary steps, consistent withthe sovereignty, territorial integrity and
political independenceof BosniaHerzegovina, toensure that the Repubika Srpskafully
respects and complies withthe provisions of the aforementionepnited Nations,
Letter dated 29 Nov. 1995,fiom the Permanent Representativeof the United
States of Arnerica, S1199519993 , 0 Nov. 1995,p. 1471.
106. This is a clear recognition,in an international agreement,by the plenipotentiaryof a
State, that this State is in a position tohave the entityit represents internationnally
comply withthe said agreement. Once more, Yugoslaviabehaved as ifthe
"RepublikaSrpska" werepart ofitself.
107. According to the Respondent,"the Republicof Srpskahas its territory, population
and a stable government.It manifestedal1attributesof sovereignty and
independence"[Counter-Memorial, p.244, para. 2.21.4; see also p. 125, para.
2.4.1.121.Although it cannotbe denied that it had a certain formal existence,this
entity is by no means, and hasnever been, a Statein the sense of this term in
international law. It owesits existence tothe illegaluse of force by the Federal
Republic of Yugoslaviaand its population has been demographically altered through
genocide.Moreover, being apure surrogateof Yugoslavia,it hasnever enjoyed
sovereignty, which is the very criterion of a Statein internationallaw.
The "RepublikaSrpska"has never enjoyed sovereignty and independence and was
merely a tool of the Yugoslavauthorities
108. Not only was the "RepublikaSrpska"anillegal and unilaterallydeclaredentity in
contradiction to nom of internationaljuscogens,but it also does not meet the Chapter 10-Section2
Theresponsibilityof the Federal Republicof Yugoslavia
for the genocidal acts committed by the "RepublikaSrpska"
and other Yugoslavsurrogates in Bosnia and Herzegovina
requirement to be a State accordingto internationallaw. As recalled by the
Arbitration Commissionof the Conferencefor Peace in Former Yugoslavia,
"(...) the State is commonly defined as a community which consistsof a territory with a population
subject to an organised political authority;(...) sucha State is characterised"by sovereignty.
[Opinion No. 1, 19Mar. 1991,I.L. M. 1992, Vol.XXXI, p. 1495, emphasis
added] .
And, accordingto the classical definitionby MaxHuber in the Island of Palmas
case:
"~overei~ntyin the relationsbetween States signifies independence. Independencein regard to a
portion of the globe is the right to exercisetherein, to the exclusion of any other State, the
hnctions ofa tat te"P.C.A.,Award of 4 April 1928,RIIAII, p. 8681.
Beside the fact that its populationwas made "ethnically clean"through genocide [see
above, paras. 87-89], the "Republika Srpska"has, by no means, met this requirement
since it exercisedits power solely as a result of the support it has received from the
Federal Republicof Yugoslavia.
109. Furthermore,the "Republika Srpska"never pretended tobe a State. On the contrary,
its political organisation has beenan integralpart of the Federal Republicof
Yugoslavia. On 24 October 1991, afterthe vote by the Parliament of Bosniaand
Herzegovina in favour of the withdrawalof Bosnia and Herzegovina from the
YugoslavFederation, the "Assemblyof the Bosnian Serbs", presidedby Momcilo
Krajisnik, a prominent SDS member, decided that theSerbian people had to remain
in the joint State of Yugoslavia:
"~ursuant to the right to self-determination and for thepurpose of the full and permanent
protection of the rights andrests of the Serbian people,the Serbian people in Bosnia and
Herzegovina determines that the Serbian peoplein Bosnia and Herzegovina remainin the joint
State of Yugoslavia, with Serbia, Montenegro,Serbian Autonomous District)Krajina, SA0
Siavonija, Baranja and Western Srem, and otherswho have expressedthe same [ICTFY,
Trial Chamber1,Review of the IndictrnentPursuantto Rule 61 of the Rules of
Procedure and Evidence,Prosecutor v. Radovan KaradZiCand Ratko Mladik,
CasesNo. IT-95-5-R61 & IT-95-18-R61, 11 July 1996,p. 23, para. 491.
110. In its decision in the Karad26 and MladiCc .ase, the Trial Chamber, after having
examinedthe preparatory documents tothe developmentof the Serbian "institutionalReply of Bosnia and Herzegovina
structureparallel to the legal central power"in Bosniaand Herzegovinaand quoting
partially the original documents, noted:
"on 24October 1991,the 'Assemblyof the Serbian Peoplein Bosnia and Herzegovina' decided
that it would authorise several people as its representatives 'in the agenciesof the Federation' (...).
Radovan KaradZiC,president of the SDS, was given the responsibilityof representing the
'Assembly'at the presidency of the Socialist Federative Republicof[ibid., p. 23,
para 501.
Thus, Radovan KaradUCappears as a Ministerof Yugoslavia.His position in the
Federal Presidency has been describedas followsby ProfessorPaul Garde, testiQing
before the Trial Chamber at the ICTFY:
"SO at this stage,where the aim of the Serbs in Bosnia is to remain within the Yugoslav federation,
Karad2iCis in charge of the functionswhich at that point in time are the most important, that isto
say, links with the federal Presidency.He cannot be made a member of the federal Presidency
officially, but he is in charge of the relations with it, whichisjust about the same thing.It
[ICTFY, Trial Charnber1,Reviewof the IndictmentPursuantto Rule 61 of the
Rules of Procedure and Evidence,Prosecutor v. RadovanKaradZii and Ratko
Madit, CasesNo. IT-95-5-R61 & IT-95-18-R61, Testimony Garde,28 June
1996,p. 18,Annex 2751
111. Similarly, the Serbs in Bosnia and Herzegovina considered theJNA, as an organ of
the Yugoslav State they pretendedto belong to and thus as their legitimateprotector.
On 11 December 1991, the "Assembly ofthe Serbian Peoplein Bosnia and
Herzegovina" askedthe JNA to use whatever meansit had availableto it to protect
the territories of Bosnia and Herzegovina consideredSerbianas part of the State of
Yugoslavia [quotedin ICTFY, Trial Chamber1,Reviewof the IndictmentPursuant
to Rule 61 of the Rules of Procedureand Evidence,Prosecutor v.Radovan Karadit
and Ratko Mladit, Cases No. IT-95-5-R61 & IT-95-18-R61,ll July 1996,p. 26,
para. 531.And indeed, the JNA quite openly assurnedthis part, as was demonstrated
earlier in this Reply [Reply, Chapter8, Section 31.
112. This institutionalunity was maintained whenthe "Republika Srpska"was proclaimed.
In this context, "independence"of this Republic onlymeant its separationfiom
Bosnia and Herzegovinaand its groupingwith Yugoslavia.Thus, the "Republika
Srpska"was institutionallyconceived asa memberof the new YugoslavFederation,
asmade apparent by Article 2 of the proclamationof the "Republicof the Serbian
people in Bosnia and Herzegovina"of 9 January 1992which Statesthat "the
Republic" shallremain within "theYugoslavFederal State".Accordingly,Article 3
of the "Constitutionof the SerbianRepublicof Bosniaand Herzegovina",adopted on Chapter 10-Section 2
Theresponsibilityof theFederal Republicof Yugoslavia
for thegenocidal acts committed by theublikaSrpska"
and other Yugoslavsurrogatesin Bosnia and Herzegovina
28 February 1992 (and amendedon 14 September 1992),declared that: "The
Republic ispart ofthefederal State ofYugoslavia".Article 6 provided that "the
citizens of the Republic shall hold the citizenshipof the Republic and the citizenship
of Yugoslavia"["Constitutionof the Serbian Republicof Bosnia and Herzegovina",
emphasis added]. The ICTFY has also quoted this most unusual provision when it
described the "institutional preparations fortaking power in Bosnia and Herzegovina"
[ICTFY, Trial Chamber 1,Review of the Indictment Pursuant to Rule 61 of the
Rules of Procedure and Evidence, Prosecutor v. KaradZiiand Madii, Cases No. IT-
95-5-R61 & IT-95-18-R61, 11 July 1996,p. 24, para. 501.
113. The Respondent itself has constantlybehaved as if the "Republika Srpska" were part
of a single State together with Serbia and Montenegro. The present proceeding
demonstratesthis once more since, with its counter-claims,the Respondent acts as
"protector"of the Serbs who were supposedlythe victims of genocide, during the
war in Bosnia and Herzegovina.
114. The integration of the "Republika Srpska"into Yugoslavia is also made apparent by
the organisation of the monetary systemof the "new entity". The documents quoted
earlier [Reply, Chapter 8, Section 91demonstrate unambiguously that the "national
banks" of the "Republika Srpska"and the "Republika Srpska Krajina"were fully
integrated, asbranches of a coordinated systemof Yugoslav banks, under the
supervision of the Yugoslav central bank. Such a system enabled Yugoslavia to
control the monetary policy and the credit granted to the "Republika Srpska", to
supervise the activities of the commercialbanks in "Republika Srpska", and to
finance the budget deficits of the "Republika Srpska"and the "Republika Srpska
Krajina". This system, actually, goes much further than other exarnples of monetary
unions, asforseen for example in the European Union. The mode1is much closer to
the monetary system of afederal entity [see Reply, Chapter 8, Section 91.But, of
course, this "federal entity" is not composed of several federated states, but of one
sovereign state (the Federal Republic of Yugoslavia, which is also itself a federation)
and two entities controlling defacto a part of the territory of two other sovereign
states.
115. It is noteworthy that, at the time, the Serbs did not even try to conceal their
endeavour to promote complete political and organisationalunity, as is usually the
case when a "puppet" State is created, the very purpose of the creation of such aReply of Bosnia andHerzegovina
"State" beingfrequentlyto try to prevent theattributionto the "dominant"State of
intemationallyunlawful acts [see below, para. 1241.
116. Having been establishedas part of Yugoslaviaby way of foreign military
intervention [see above, paras. 87-90], which resultedin genocide [paras. 91-92], the
"Republika Srpska"kept on existing only because it received strong and steadfast
support from the Federal Republicof Yugoslavia.
117. The Federal Republic of Yugoslavia sees "convincing signsand manifestationsof the
independenceof the Republicof Srpska" [Counter-Memorial,p. 129,para. 2.6.1.11
in the "handyreport" of the Secretary Generalof 30 May 1992,which it erroneosly
quotes a great numberof times [see Reply, Chapter 8, Section5 and this Chapter,
para. 331.According tothe Respondent:
"~he said report of the Secretary Generalis of the greatest importanceto this Case. It is stated in it
that General MladiC,the commander of they of the Serbian Republic of Bosniaand
Herzegovina(name changed into the Republic of Srpska),left the Yugoslav People'sAmy and is
notunder the military and political control of the authorities ofthe Federal Republic of Yugoslavia.
It is also stated that he was under the political controlof the authoritiesof the Serbian Republicof
Bosnia and~erzegovina."[Counter-Mernorial,p. 251, para. 3.1.2.9.; see also ibid.,
p. 130,para. 2.6.1.31.
118. It is worth notingin this respectthat:
- the last sentenceof the quotedpassage is pure sophism:even if GeneralMladié
was under the control of the Serbian Republicof Bosnia and Herzegovina(in
fact, the opposite is more likely the case), he would still be under the control
of the Federal Republic of Yugoslavia sincethe "Republika Srpska"is but an
agent of the Federal Republicof Yugoslavia;
-
there is no doubt that, inthe very complex circurnstancesof the case, the chain
of commandwas not entirely clearand that, in some cases, individualactors
may have performed acts of insubordination, butthis certainly does not change
the general picture: legally, GeneralMladiCis no more an independent actor
than the "RepublikaSrpska"itself; it is noteworthyin this respect thatthe Trial
Chamberat the ICTFY presentedthe same facts in quite a different light:
"once the officia1withdrawof the JNAtook place, Ratko MladiC,in all libhood in close
liaison with the Belgrade authorities,setting up an autonomous command structure
for Bosnia and Herzegovina.He himself apparentlycribed this process in detail in an
interview with the magazinein'of ~e1~rade.I[ICTFY,Trial Chamber1,Review
of the Indictment Pursuantto Rule 61 of the Rules of Procedure and Chapter 10-Section 2
Theresponsibilityof the Federal Republicof Yugoslavia
for thegenocidal acts comrnittedby the "RepublikaSrpska"
and other Yugoslavsurrogatesin Bosnia and Herzegovina
Evidence,Prosecutorv. RadovanKaraziC and RatkoMladiC,Cases No.
IT-95-5-R61and IT-95-18-R61,p. 43, para. 76; emphasis added];
- it is apparentfiom the report of the SecretaryGeneral that he tookhis
information from the Yugoslavauthorities in Belgrade and was extremely
cautious in referring to them:"Thosewho are not citizensof Bosnia and
Herzegovinaare said by the Belgrade authorities... "; "Mostof these are
believed (...)"etc. [Counter-Memorial,Annex to ChapterII, Vol. 6, Annex
129, p. 1045,emphasis added];
- contrary to what is asserted by the Respondent,and as shown above, this report
is far from acknowledgingthe complete withdrawalof the JNA from Bosnia
and Herzegovina; tothe contrary, it shows clearlythat JNAtroops "remainat
various garrisonsin Bosnia and Herzegovina, especiallyin Serb controlled
areas, includingtwo installationson the outskirtsof Sarajevo" [Reply, Chapter
8, Section 51.
119. The Security Council wasnot fooled. In Resolution752 (1992), on 15May 1992,it
demanded "that al1forms of interferencefrom outside Bosnia-Herzegovina,including
by unitsof the YugoslavPeople S Army (JNA) (..)cease immediately" and "that
those unitsof the YugoslavPeople S Army (JNA) (...must eitherbe withdrawn,or
be subject to the authorityof the Governmentof Bosnia and Herzegovina,or be
disbanded and disarmed (..)" [United Nations,Security Council Resolution 752
(1992), S/RES/752, 12May 1992, emphasis added].This also makes apparenthow
extravagantis the assertionthat paragraph 6of this sarneResolution calling "uponal1
parties and othersconcerned"to cease ethnic cleansing "[elvidentlyis not addressed
to the Yugoslav People's Army" [Counter-Memorialp ,. 265, para. 3.1.5.171.Quite
evidently, it is one of the "partiesand others concerned", andal1the more so as this
sameparagraph specifies thatthis cal1is to be compliedwith "anywherein the
Former Republic of Yugoslavia". Then, by its Resolution757 (1992), on 30 May
1992,it again condemned "thefailure of the authorities in the FederalRepublic of
Yugoslavia (Serbiaand Montenegro),includingthe Yugoslav PeopleSArmy (JNA)to
take effective measuresto fulfil the requirementsof Resolution 752 (1992)"and
decided to impose sanctionson Yugoslavia [UnitedNations, SecurityCouncil
Resolution757 (1992), S/RES/757,30 May 1992,emphasisadded].Reply of Bosnia and Herzegovina
The Respondent places high valueon the fact that the Report of the Secretary
General of 30 May 1992 "had not been submittedto members of the Security
Council when they were deciding on the introduction of coercive measures against
Yugoslavia, i.e. when they were adopting Resolution757 (1992) of 30 May 1992"
[Counter-Memorial, p. 268, para. 3.1.5.191.This is probably true since the
Resolution, adopted the very day the report was published, does not mention it. But
this was indeed not true in the case of the Resolutions adopted subsequentlyand
condemning the Respondent for the non-withdrawal of its troops from Bosnia and
Herzegovina and its interventions on its territory, such as Resolutions 762 (1992) of
30 June 1992; 787 (1992) of 16November 1992; 819 (1993) of 16April 1993 or
838 (1993) of 10 June 1993. Similarly, by its Resolution461242of 25 August 1992,
the General Assembly demanded
"(...) that those units of the Yugoslav People'sAmy and elementsof the Croatian Amy now in
Bosnia and Herzegovina must eitherbe withdrawn, or be subjectto the authority ofthe
Govemments of Bosnia and Herzegovina, orbe disbanded and disanned with their weaponsplaced
under effective international monitoring..).Ivnited Nations, General Assembly
Resolution46/242, A1461242,25 Aug. 1992,para. 31.
Four months later, on 18 December 1992,the General Assembly statedthat:
"Takingnote of the report of the Special Rapporteur of the Commission onHuman Rights on the
situation of human rights in the territory of the former Yugoslavia dated 6 November 1992,
(Al471635-Sl24766,annex.) in which he stated,interalia, that 'ethnic cleansing' did not appeatro
be the consequence of the war, but rather its goal,
Takingnote also of the report of the Special Rapporteur dated17November 1992, (A1471666-
Sl24809, annex.) in which he stated,inter alia,that another factor which had contributedto the
intensity of 'ethnic cleansing'inreas under Serbian control was the marked imbalance between
the weaponry in the hands of the Serbian and the Muslim populationof Bosnia and Herzegovina,
Gravely concerned about the deteriorationof the situationin the Republic of Bosnia and
Herzegovina owing to intensifiedaggressive actsby the Serbianand Montenegrinforces to acquire
more territories by force, characterisedby a consistent patternof gross and systematic violationsof
human rights, a burgeoningrefugee population resulting from mass expulsionsof defenceless
civiliansfiom their homes and the existencein Serbian Montenegrin controlledareas of
concentration camps and detention centres,in pursuit of the abhorrent policyof "ethnic cleansing",
which is a form of genocide,
Strongly condemning Serbia and Montenegro and thes irurrogatesin the Republic of Bosnia and
Herzegovina for their continued non-compliancewith al1relevant United Nations resolutions,
(.--)
Reafirms its support for the Government andpeople of the Republic of Bosnia and Herzegovinain
their just struggle to safeguard their sovereignty, political independence, territorial integrityand
unity; Chapter IO -Section2
Theresponsibilityof the Federal Republicof Yugoslavia
for thegenocidal acts committed by the "RepublikaSrpska"
and other Yugoslavsurrogatesin Bosnia andHerzegovina
Strongly condemnsSerbia, Montenegro and Serbiaforces in the Republic of Bosnia and
Herzegovina for violation ofthe sovereignty, territorial integrity and political independenceof the
Republic of Bosnia and Herzegovina, and their non-compliance with existing ressf theno
Security Council and the General Assembly,as well as the London Peace Accordsof 25 August
1992,
Demands that Serbia and Montenegro and Serbian forcesin the Republic of Bosnia and
Herzegovina immediatelycease their aggressiveacts and hostility and complyfiilly and
unconditionally withthe relevant resolutionsof the Security Council,in particular resolutions752
(1992) of 15 May 1992, 757 (1992)of 30 May 1992, 770 (1992) and 771 (1992) of 13 August
1992, 781 (1992) of 9 October 1992, and 787 (1992)of 16 November 1992, General Assembly
resolution 461242and the London Peace Accordsof 25 August 1992;
Demands that, in accordance with Security Council resolution 752[1992], al1elements of the
YugoslavPeople's Army still in ~heterritory of the Republic ofBosnia and Herzegovinamust be
withdrawn immediately, orbe subject to the authorityof the Govemment of the Republic of Bosnia
and Herzegovina, or be disbanded and disarmed with their weapons placed effective United
Nations controi; (...[UnitedNations, General AssemblyResolution,
A/RES/47/121, 18Dec. 1992, emphasisadded; see also ibid., Resolution
47,447, para. 31.
122. It is therefore clear that the "Republika Srpska"has always beenunder the strict
supervision of Belgrade, whose army has never left the territory of this so-called
"State". Moreover, as shown above [paras.8ff.1,the chain of military comrnandand
the general political directivesto the "BosnianSerbs" came from Belgrade and were
faithfully executed.
123. The Respondenttries to deny these obviousfacts by stressingthe only case, the
rejection of the "Vance-OwenPlan" during the spring of 1993,whenthe "Republika
Srpska" did not comply with directionscomingfiom Belgrade [see Counter-
Memorial. Section3.6, pp. 287-2901,a fact which, in its views, "testifiesto a high
degree of independenceof the authoritiesof the Republic of Srpska in decision
making. aswell as the impossibilityof the FRY of influencingthe behaviour of the
Republic of Srpska" [ibid.,p. 289, para. 3.6.1.31and resultedin a decision to break
relations with the authorities in Pale [see alsoibid., pp. 130-132,para. 2.6.1.4 to
2.6.1.1 1). This argument calls for severalremarks.
124. Firstly, the demandsof the Federal Republicof Yugoslavia addressedto the
authorities in Pale clearlyshow that this countryfelt fiee to intervene in the
decision-makingprocess insidethis so-called "independent State";for example,the
message sent on 26 April 1993by the Presidentsof Serbia and Montenegro totheReply of Bosnia and Herzegovina
"Assemblyof the Republic of Srpska" presents itselfas a blatant instruction,not as a
recommendationor friendly advise:
"(...) we therefore demandthat you take Ourcategorical position into consideration and accept the
pian."[as quoted in the Yugoslav Counter-Memorial, p.285, para. 3.5.1.1,
Annex 322, emphasis added].
This is, to Saythe least, unusual in relationsbetweensovereign States, while it can
square with the usual interna1practice concerning therelationsbetweenthe executive
branch andthe Parliament inside a (not really democratic) State.
125. Moreover,the Yugoslav leaders acknowledgedby way of the communication that the
Bosnian Serbs on the one hand and the Federal Republicof Yugoslaviaon the other,
were simply oneand the same "party"or "side".And, as explainedby Bosnia and
Herzegovina in its Memorial [Memorial, Section 2.3.8, pp. 85-93]t,his is also a
public and clear confirmationof the FederalRepublicof Yugoslavia'sinvolvement
in the "Republika Srpska". The following statements are noteworthy:
"~he citizens of Yugoslavia, Serbia and Montenegro, have demonstrated the highesdtegrees of
solidarity with you, going even beyond their means. They will continueto demonstrate this
solidarity in spite of al1tashas been confîrmed by FRY Assembly resolution[FRY
Assembly Resolution,Message ofthe Serbian and MontenegrinPresidents,
Curiously enough,the text of the resolution isnot annexed to the Yugoslav
Counter-Memorial, see annex 1431,
"Firmly believing that ajust battle for fieedom and the equalityof the Serbian people is being
conducted in the Serb Republic, the Republicof Serbia has been unreservedly and generously
helping the Serb Republic, in spite of the enorrnousproblems it had to face due to the sanctions
introduced by the Security Council."muniqué of 11May 1993 reproducedin the
Request for ProvisionalMeasuresof 27 July 1993,p. 431
and also,
"Serbia has lent a great deal of assistanceto the Serbs in Bosnia. Owingto that assistancethey
have achieved most of what theyted" [Statementof SlobodanMiloSeviCt.o Tanjug,
the Yugoslav press agency,11May 1993, see Memorial,p. 91, para. 2.3.8.41;
126. Secondly, in spite of the threats made in these statementsto suspendthe considerable
aid given to the "Republika Srpska"if it did not acceptthe Vance-Owen Plan, this ChapterIO -Section2
Theresponsibilityof theFederal Republicof Yugoslavia
for the genocidal actsnittedby the "RepublikaSrpska"
and otherugoslavsurrogates in Bosnia and Herzegovina
aid continued massively during the following months. Actually,international
observers were not allowed to swey the border in sufficient number, nor were they
able to control border traffic effectively [Reply, chapter8, Section101.But even in
such circurnstances,"international observers,whose task was to checkthe JNA
borders, reported to the Security Councilthat al1sorts of military equipmentand
soldiers were transported overthe Serbian border intoBosnia. By night VJ soldiers
built pontoon bridges to make the transport possible overthe Drina. The numberof
these activities were more intensivejust before the battle of Bihac and Srebrenica"
[Ed Vulliamy, TheGuardian, 1 March 1996,Annex 2761.
127. The Federal Republic of Yugoslavia could easily exerciseits control overthe
military apparatus of the "Republika Srpska" throughthe latter's dependenceon it
for marnent, ammunition, logistic materials, and newrecruits. Thus, the Trial
Charnber at the ICTFY explainedin its TadiCJudgmentthat:
"~heweaponsandequipmentwith whichthenewVRSwas armedwerethosethatthe unitshad
hadwhenpartof theJNA. After 18 May1992suppliesforthe armedforcesin Bosniaand
Herzegovinacontinuedto comefiom Serbia[ICTFY, Trial Chamber, Opinion and
Judgement, Prosecutorv. DuSkoTadiC,CaseNo. IT-94-1-T, 7May 1997, p.
143, para. 1141.
Such supplies continuedthroughout the war [Reply, Chapter8, Section 101.The
Bosnian Serb Army (VRS) neededthe VJ's help and authorizationto obtain and to
test new weapon systems,as well as for the maintenance of other materials. Most
notably, forced recruitment of Bosnian Serb refugees occurred on the territory of the
Federal Republic of Yugoslaviain order to fil1up the ranks of the VRS. This was
organised by the Serbian Ministry of Interior in Belgrade [Reply, Chapter 8, Section
111.Al1important campaigns of mobilization took placejust before an important
attack was launched by the VRS. Such coordinated actions necessitatedthe use of a
direct line of communication betweenthe military leaders of the VRS andthe VJ
[ibid.] and the creation of a "bureau"of the "Republika Srpska"in Belgrade. Such
supplies were actually used as a tool to control military operations of the VRS.
128. Moreover, other elements demonstratedirect subordinationof the VRS to Belgrade:
- Political control of the VRS was exercisedby Belgrade thanks to the presence
of many officers who were at the same time officers in the VRS and the VJ,Replyof Bosnia and Herzegovina
and who under the authority andjurisdiction of Belgrade [Reply, Chapter 8,
Section 81.This was the case of, for example, General Djordje DjukiC,who
was the Assistant Commanderfor Logistics to Ratko MladiC,the Commander
of the Bosnian Serb anned forces. When arrested near Sarajevo in early 1996,
he was however, alsocarrying a recent military pass,issued by the General
Staff in Belgrade [Reply,Chapter 8, Section 81.According to the Prosecutor at
the ICTFY, "he perrnanently residesin Belgrade, Bulevar Lenjina 151"
[ICTFY, Indictment, Prosecutorv. Djordje DjukiC,CaseNo. IT-96-20-1, 29
Feb. 19961.He died in Yugoslavia, shortlyafter his release by the ICTFY for
medical reasons.
The General Staff in Belgrade was still able toorganise the transfer of military
officers active on the territory of Bosnia and Herzegovina [Reply, Chapter 8,
Section 81.
A regular air service was set up on 2 June 1992 between BanjaLuka and the
Federal Republic of Yugoslaviafor Yugoslavofficers posted in Bosnia and
Herzegovina. This service was supplementedor replaced oneyear later by a
bus line, organised because of the "increasedneeds and requests by military
officers to travel to FR Yugoslavia" [Order,Command of the 2nd Krajina
Corps, class. no. 21-7011,addressed to al1units, signed GeneralMajor Grujo
BoriC,31 May 1993, quoted above, Reply, Chapter 8, Section 81.
These are just a few examples.
129. Very significantly, the VRS was directly financedby Belgrade, as salaries of al1its
officers were paid by Belgrade. This was decided by the Yugoslavauthorities before
the official "withdrawal"of the JNA in May 1992,as was reported by Borisav JoviC
in his die [see above, Chapter 8, Section 81.This diary also shows that the new
military structure was organisedby the highest governmental officials of the Federal
Republic of Yugoslavia.After the "withdrawal"of the JNA, the Yugoslav authorities
honoured their financial cornrnitments[Reply, Chapter 8, Section81.
130. The continuing and massive involvementof the Federal Republicof Yugoslavia in
the "Republika Srpska" and its decisive influence overthe authorities in Pale have
been recognised by the international comunity. Thus, in its Resolution of 20
December 1993, the General Assemblyurged:
"(...) tantimmediateendbe broughtto thecontinuingpracticeof 'ethniccleansing',andin
particularthatthe authoritiesof the FederalRepublicof Yugoslavia(SerbiaandMontenegro)use
theirinfluencewith the self-proclSerbianauthoritiesin BosniaandHerzegovinaand Croatia Chapter 10-Section2
Theresponsibilityof theFederal Republic of Yugoslavia
for the genocidal acts cornrnittedby the "RepublikaSrpska"
and other Yugoslavsurrogates in Bosnia and Herzegovina
to bring the practice of 'ethnic cleansing'to an immediateend and to reverse the effectsof that
practice.[United Nations,GeneralAssembly Resolution 48/153, Al48I153,20
Dec. 1992,para. 101.
And, one year later, by its Resolution 49/10, the General Assembly condemned the
defacto integration of the Serbcontrolledtenitories into ~u~oslavia.The General
Assembly
"Callsuponal1parties, and in particular the Federal Republicof Yugoslavia (Serbia and
Montenegro), to filly comply with al1Security Council resolutions regarding the situationin the
Republic of Bosnia and Herzegovina, andto strictly respect its territorialnd in this
regard concludesthat their activities aimedto achieve integrationof the occupied territories of
Bosnia and Herzegovina into the administrative, military, educational,ion and
communication systemsof the Federal Republicof Yugoslavia (Serbia and Montenegro) leadingto
a de facto state of occupation are illegal,void, and must cease immediate[United
Nations, GeneralAssembly Resolution 49/10, Al4811 53, para. 151.
In this context, it is worth noting onceagain that Serbian President Slobodan
Milogeviewas recognisedas the representativeof the "~e~ublikaSrpska" during the
Dayton negotiations [seethis Chapter, para. 1041,and that article 6 of the
"Constitution"of the "Republika Srpska" quotedabove [ibid., para. 1121recognises
that its "nationals"enjoy the citizenshipof the Federal Republic of Yugoslavia.
131. Lastly, it may betrue that Yugoslavia has notalways been successfulin its
endeavoursto make "Republika Srpska"agree with it, even though the non-
acceptanceof the Vance-Owen Plan seemsto be its only failure in this respect. As
explainedearlier, however, covertactionsby the Yugoslav authorities contradicttheir
public declaration in this particularcase [see Reply, Chapter8, Section 101.The
supposed "disagreement"on the Vance-Owen planis certainly not enough to deny
that the general policyof the "Republika Srpska"was performed on behalf of the
Federal Republicof Yugoslaviaand that its internationallyunlawful acts must be
attributed to it and entail its international responsibility.
132. As shown above [this Chapter,paras. 83ff.1,the creation of the "Republika Srpska"
was only made possibleby the actionsof the JNAduring the spring of 1992.Its
survival as an entity was only made possible by the constant and massive presenceof
Yugoslavmilitary forceson its territory andthe extensive aid it received fiom
Belgrade, as the Yugoslavand Serbianleaders themselveshave repeatedly
acknowledged[see above,this Chapter, para. 1251.Under such circumstances,theReply of Bosnia and Herzegovina
Respondentcannot now claim that it is not responsiblefor the unlawful acts of its
very own creation, which has consistently, withthe possible exceptionof the Vance-
Owenplan incident, applied the genocidalpolicy conceivedin Belgrade [seeabove,
this Chapter, paras. 12ff,].
133. In her separate and partly dissenting opinionjoined to the Opinionand Judgment in
the TadiCcase, Judge McDonaldhas shown,beyond anydoubt, that
"~he evidence provesthat the creation of the VRS was a legal fiction. The only changes made
afîer the15May 1992 Security Council resolution were the transferof troops, the establishment of
a Main Staff of the VRS, a change in theme of the military organisation and individual units,
and a change in the insignia. There remained thee weapons, the same equipment, the same
officers, the same commanders, largelythe same troops, the same logistics centres,the same
suppliers, the same infrastructure, thesame source of payments, thesame goals and mission, the
same tactics, and the same operations. Importantly, the objective remained thesame: to create an
ethnically pure SerbState by uniting Serbsin Bosnia andze~oviha and extendingthat State
from the Federal Republic of Yugoslavia (Serbiaand Montenegro) to the Croatian Krajina.
(-..)
The VRS Main Staff, the members of whichhad al1been generals in the JNA andmany of whom
were appointed to their positionsby the JNAGeneral Staff, maintaineddirect communications with
the VJ General Staff via a communications linkfrom Belgrade. Colonellak, commander of the
logistics platoonthat provided logistical support to unitsin the Banja Luka areaore and
after 19 May 19921,stated: "Someofficers had been given direct [telephone]lines, BelgradePale.
There was a link there and itwas used in everyday communicationbecause there was a need for
direct communication between the Chiefof Staff of the Army ofpublika Srpskawith the Army
of Yugoslavia." Moreover, the VRS continuedto receive supplies from thesame suppliers in the
Federal Republic of Yugoslavia (Serbia and Montenegro) who had contracted wthe JNA,
although the requests after 19 May 1992went through the Chief of Staffof the VRS who then sent
them ont0 Belgrade. The ties between themilitary in Bosnia and Herzegovina and theSDS political
party,which advocated a Greater Serbia,similarly remained unchanged after the redesignation.
(-1
Al1of this, includingthe evidence referred to by the majority makes obvious that the re-designation
was motivated only by the desire of the Federal Republicof Yugoslavia [Serbia and Montenegro]
to avoid offendingthe international communityby violatingthecurity Council resolution
ordering the JNA to cease involvementin Bosnia and ~ezegovina.[ICTFY,Trial Charnber,
Opinion of Judge McDonald,Prosecutor v. Duiko Tadit, CaseNo. IT-94-1-T,
7 May 1997,pp. 5-7, paras. 7-8, 10;see also ICTFY,Trial Chamber1,Review
of the IndictmentsPursuantto Rule 61 of the Rules of Procedure and
Evidence, Prosecutor v. RadovanKaradZiCand RatkoMladit, CasesNo. IT-
95-5-R61 & IT-95-18-R61, 11 July 1996,pp. 29-30, 43-44, paras.58 and 771.
134. As noted by Judge McDonald, "if effective controlis the degree of proof required to
establish agency under the Nicaragua case",and indeed it is [see above,this Chapter,
para. 581,the only possible conclusionis that "this standardhasbeen met" [ICTFY,
Trial Charnber,Opinion of Judge McDonald,Prosecutor v. Duiko Tadit, Case No.
IT-94-1-T, 7May 1997,pp. 8-9, para. 15and p. 50, para. 1331.As very aptly
concludedby Judge McDonald,"the very establishmentand continuedexistence of Chapter 10- Section 2
Theresponsibility of the Federal Republic of Yugoslavia
for the genocidal acts committedby the "RepublikaSrpska"
and other Yugoslavsurrogatesin Bosnia and Herzegovina
the VRS is evidence of such control" [ibid.,p. 16,para. 321.This is al1the more
true since the factual circumstancesof this case, as compared withthose of
Nicaragua, are al1in favour of the "agency test":
-
in the Nicaragua case, the Arnericanswere foreigners with respect tothe
contras and might havebeen unawareof what the contras were doing; the
Serbs from Yugoslaviaand fiom Bosnia and Herzegovina werefully
integrated;
- the contras were "a raiding army";the JNA(and later the VJ), through the
VRS, were an occupying force [see ibid., para. 191;
- the VRS has been, fiom the very beginning of the war, part of the Yugoslav
military machinery;therefore, what the Respondent shoulddo - and fails to do
- is demonstrate thatthe linksbetweenthe VRS and the JNAwere severed; in
the case of the contras, theproblemfor the Applicant (Nicaragua) wasto prove
that such links had been created;
- the contras had been created independentlyof the United States [see ibid.,
para. 19 and 30 and ICJ,Judgmentof 26 June 1986, prec.para. 58, ICJ Rep.
1986,para. 108,p. 611;the VRS was a pure emanationof the JNA;
- the United States did not give "directand critical support"to the contras [ibid.,
para. 108,p. 621;the whole strategyand tactics of the VRS were dictated from
Belgrade, which exercised fùll effective control overthis "army";
- the contras were aimedat changingthe Nicaraguan regime;the "Republika
Srpska"was an aimper se, and was createdin order to become a component of
Yugoslavia,thus transformed into "Greater Serbia".
135. Independent of the purely military aspects (which,in any case, wouldbe enough to
deny statehood to the "Republika Srpska") the creationof this entity was decided in
and organisedby Belgrade and was airnedat enabling the integrationof Serb-
controlled areas of Bosnia and Herzegovina into anew federal Yugoslavia.This goal
was clearly reflected in the questionasked in the plebiscite organisedby the
"Assemblyof the SerbianPeople in Bosnia and Herzegovina"on 9 and 10November
199 1, which formed the basis of the creationof the "Republika Srpska":
"DO you agree withthe decisio24fOctober1991bythe Parliamentof the SerbianParliament
of the SerbianPeoplein BosniaandHerzegovinafortheSerbianpeopleto remainin a common
Stateof YugoslaviawithSerbia,Montenegro,SA0 Krajina,SA0 Slavonia,BaranjaandWestern
Sremandail otherswishingthe same?[United Nations,Final Report of the UnitedReply of Bosnia and Herzegovina
Nations Commissionof Experts, S/1994/674/Add.2(Vol.I), 28 Dec. 1994,
Annex V, "The Prijedor Report", p. 24, para. 991.
Moreover, the policy of "Republika Srpska" wasdecided in Belgrade and its
international representation was assurnedby Belgrade. The "Republika Srpska"was
entirely dependent on the Federal Republicof Yugoslaviafor its survival.
136. The so-called "Republika Srpska"was not only militarily and politically,but also
economically dependenton Yugoslavia. "Republika Srpska"was heavily financedby
Yugoslavia throughthe system of national central banks [see Reply, Chapter 8,
Section 91and through the salaries of the officers of the VRS [see Reply, Chapter8,
Section 81.Before, as well as after, Yugoslavauthoritiesofficially announcedthey
would close the borders with "Republika Srpska",there was a constantflow of goods
and military armaments[see Reply, Chapter 8, Section101.Moreover, the former
Yugoslav military complexstill worked perfectlyin the Federal Republic of
Yugoslavia, as well as in the Serb-controlled areas of Bosnia and Herzegovina,thus
creating an intermingledwar economy [Reply,Chapter 8, Section 101.The Bosnian
Serbs remainedto the end heavily dependenton Belgrade for financing, fuel, and
food, as well asfor military and diplomatic support. Belgrade controlledal1the lines
of communicationand media links to the outside world. Such an entity cannot be
considered a State.
137. The sarne problem was also dealt with by the International MilitaryTribunal of
Tokyo with respect to "Manchukuo",the so-called "State" createdby Japan in
Manchuria in 1932. Althoughthe circumstanceswere different (despite the very
repressive nature of the regime, Japandid not promote a genocidal policyin the new
"entity"), the analogieswith the present caseare striking:
- in both cases,the "dominant"State (Japan or Yugoslavia) created a "State"in
order to deceivethe internationalcommunityand to try to escape international
condernnation;as for Machukuo, the Tokyo Tribunal noted:
"1nshort, the [Japanese] Cab(.) wastryingto evolvea planwhereby the realyf the
breachcouldbe concealedbyan appearanceof cornplianwiththeobligations.[The
Tokyo Judgment, TheIMTfor the Far East [IMTFE], 29 Apr. 1946- 12
Nov. 1948, APA Universiw Press AmsterdamBV, Amsterdam, 1977,
Vol. 1,p. 223; see also p. 2301. ChapterIO -Section 2
Theresponsibilityof theFederal Republic ofYugoslavia
for the genocidal acts commitbythe "RepublikaSrpska"
and otherYugoslavsurrogates in Bosniaand Herzegovina
- in both cases, the fait accompli has been refused by the international
community [see the IMTFE Judgment, ibid, pp. 224-225 and 233, and above
para. 1031;
- in both cases, the army of the "dominant" State has been the only real ruler of
the country and the policy of the so-called "State" was decided by it [see
IMTFE Judgment, ibid., pp. 225-226 and 236 et sequitur, and above,passim];
- in both cases, the creation of these so-called "States" has been part of the
expansionistic policy of the "dominant" State.
138. The Tokyo Tribunal concluded that:
"~anchukuo was constructed and operatedas a [ibid., p. 2251.
The sarne holds true for the "Republika Srpska", which must therefore be considered
as an agent of Yugoslavia entailing the international responsibility of the latter for its
internationally wrongful acts, including, of course, its genocidal acts.
Even if the "Republika Srpska" were a State, its genocidal acts would entai1the
Federal Republic of Yugoslavia's international responsibility
139. The long discussion which the Federal Republic of Yugoslavia has devoted to the so-
called "statehood" of the "Republika Srpska" has in fact been done in vain since, in
any case, the genocidal acts comrnitted by this entity, even if it were a State, quod
non would entai1Yugoslavia's responsibility. This is so for at least three main
reasons:
- in such a case, Yugoslavia would remain responsible for its assistance in the
commission of genocidal acts canied out by the "Republika Srpska" [see
Section 3, below];
- it would also be responsible for the acts committed by the latter as the
"Republika Srpska" was subject to Yugoslavia's powerof direction and control;
and
- the genocidal acts committed by the VRS (the "army" of this alleged "State")
would entai1its responsibility for reasons linked to indisputable principles of
contemporary humanitarian law.Reply ofBosniaandHerzegovina
The "RepublikaSrpska"was subject tothe power of direction and control of the
Federal Republic of Yugoslavia
140. As recognisedby the InternationalLaw Commissionin Article 27 of its Draft
Articles on State responsibility:
en idor assistance by a State to another State, if it is established thatit isrendered for the
commission of an internationally wrongful actcarried out by the latter, itself constitutes an
internationally wrongful act, evenif,alone, such aid or assistance would not constitutethe
breach of an international obligation"tof the ILC on the work of its 48th.
session,prec. para. 52, p. 1341.
This means that, at the very least, Yugoslaviais responsible forits own acts in
relation to the genocidal acts comrnittedby the "Republika Srpska",which arnounts
at the very least to complicityin genocide;Bosnia and Herzegovinawill come back
to addressing this aspect below [Section31.
141. Moreover, as alsoexplainedby the ILC, in paragraph 1 of Draft Article 28:
"~n internationally wrongful act committedby a State in a field of activityin which that State is
subject to the power of direction or control of another Stateentails the international responsibility
of that othetat te[ibid.,p. 1351.
This is different from complicity: complicity impliesdirect responsibilityof the State
for its own behaviour whilein the hypothesis envisaged here, State A(here
Yugoslavia) is responsible for acts formallycornrnittedby State B (here the
"RepublikaSrpska" -proposing forthe sake of discussion thatit is a State,quod
non), because the latter is acting as an agent of State A.
142. Discussing brieflythis principle,which it presentsas relating to "indirect
responsibility",the Respondent indicates thatit "feels thatthis rule (...is more a
rule de legeferenda than a valid one" [Counter-Mernorial,p. 339 para. 5.7.1.41.This
"feeling"is erroneous.
143. This situation, which has beentaken into considerationby the International Law
Commission in draftingArticle 28, has been described as:
"that of a State which, having in some capacity directionor control over a moreor less extensive
field of activity of another State, wouldbe held intemationally responsible for a wrongful act Chapter 10 - Section2
Theresponsibilityof the Federal Republic of Yugoslavia
for thegenocidal acts committedby the "RepublikaSrpska"
and otherYugoslavsurrogates in Bosnia and Herzegovina
cornmitted by the other State in the field subjectto such direction or c[ILC Yearbook,
1979,vol. II, Part 2, p. 97, para. 10of the cornrnentary ofArt. 281.
Such a situation would occur, in particular,in the case of partial or total occupation
of a State by another State;there, the practice is abundantand clear [see ibid, pp.
99-101,para. 19-23].
144. In view of nurnerous carefully studied precedents,the conclusionsof the
Commission,adopted by unanimity minus one Member,are unusually categorical,
contrary to what is assertedby the FederalRepublicof Yugoslavia:
"1t will readily be seen that the first case for which this articleestablishes application of the
exceptional principle of attributionof responsibilityfor an intemationally wrongfulaaState
other than the State which has cornmitted the actis that defined inparagraph 1 of the article,
namely, the case in which the firstState has,ure or defacto, the power of direction or control
over the second Statein the field of activity in which the intemationally wrongful acthas been
comrnitted. This situationhas been so amply illustratedbyious examples in the preceding
paragraphs of this comrnentarythat there is no need to dwell at this stage on why the Commission
regarded itas the main instance of responsibility for the act of anotherin international law. As a
result, therefore, of the first clause of article regardless of the type of relations existing
between two States, an intemationally wrongfulact occurs in a field of activity of a State which
subject to the direction or controlof another State, that other State will incur international
responsibility [footnoteornitted];it is not necessary for the latterState actually to have used
power in the specific case in question, in other words, for it actually to have given the instructions
to commit the offence, or, in exercising its power of control, for it to have 'permitted'the offence
which the 'controlled' Statewas going to commit. For article28, paragraph 1, to apply, it is
likewise of no importance whether the relationship between thetwo States which liesat the basis of
the power of direction or control exercisedby one over the othera relationship establishedin law
or purely a matter of fact, or whether it islawful or uniaw[ibid., p. 105,para. 33; see
also ibid., pp. 98-99, para. 151.
145. It goes without saying that the factspresentedabovedo not leave a shadow of a
doubt that the "Republika Srpska"was subjectto the power of direction and control
of the Federal Republic of Yugoslavia,at least in the field coveredby the
Application of Bosnia and Herzegovina.In this respect,it should be kept in mind
that the only alleged proof of "independence"demonstratedby this so-called "State"
has been its refusal of the Vance-OwenPlan in May 1993 [see above, para. 123ff.l.
This can hardly be seen as evidenceof sovereigntyof this entity. Moreover, the
object of the disagreementwas mainlythe territorial scope of the "RepublikaSrpska"
[Reply, Chapter 8, Section 81.But concerninggenocide,the "Republika Srpska"has
always faithfülly and zealously executedthe plans establishedin Belgrade [see
above, this Chapter, paras. 12ff.l and, it was entirely submittedto the direction givenReply of Bosnia and Herzegovina
fiom Belgrade [see above, paras. 109-1221.In particular, its military forces were
under the cornmandof the General Staff of first the JNA, then the VJ, in Belgrade
[see above, paras. 127-128 and 1331.Thus, even if "Republika Srpska"were a State
-which it is not- the Federal Republicof Yugoslaviawould be heldresponsiblefor
its wrongful acts,as thide facto entity was under its direction and control while
comrnittinggenocide.
The Bosnian Serb Army (VRS)
146. Bosnia and Herzegovina has shownthat al1Serb forces operating in Bosnia and
Herzegovina,whether frornthe Federal Republicof Yugoslaviaor the "Republika
Srpska", must be considered as defacto organs of Yugoslavia, which createdthem,
financed them, supported them with al1necessary armaments, ammunition and
training, and which coordinated theiroperations withthose of its officia1army [see
above, this Chapter, paras. 127-1301.Consequently,these military and paramilitary
forces are to be consideredas agents of the Federal Republic of Yugoslavia, andthe
responsibility of the Respondent Stateisentailed,whetherthese forces operate in
Yugoslavia properor in Bosnia and Herzegovina, whether they pretend tobe part of
the VJ or of the"Armyof the Republika Srpska"[VRS], orwhether they are
comprised of regular or irregular troops.
147. Reference must be made in this respect to Articles43 and 91 ofthe First 1977
Protocol Additional to the Geneva Conventionsof 12 August 1949, and relating to
the protection of victims of international armedconflict, to which both Yugoslavia
and Bosnia and Herzegovinaare parties.
148. According to Article 43 ("Armed Forces"):
The anned forces ofPartconsistof al1organizedarmedforces,groups and units whichare
under a commandresponsibleto tPartyfor the conductof its subordinates,evPartisthat
representedby a governmentor anauthoritynot recobyan advers~arty.".
It cannot be disputedthat the VRS and Serbian paramilitary units can be qualified as
"organized armed forces, groupsand units" and that they were "subordinated" tothe
Federal Republic of Yugoslavia.
149. As for Article 91 ("Responsibility")of the First Additional Protocol,itrovides for
the principle of State responsibility: Chapter IO- Sectio2
Theresponsibilityof the Federal Republic of Yugoslavia
for the genocidal acts committed by theblikaSrpska"
and other Yugoslavsurrogatesin Bosnia and Herzegovina
"A Partyto the conflict which violates the provisions ofthe Conventions or ofthis Protocol shall,
if the case demands, be liable to pay compensation.It shall be responsiblefor al1acts committed by
persons forming partof its armed forces.".
As Serbian pararnilitaryunits and the VRS werepart of the Yugoslavforces in
accordance with the definition given in Article 43, al1of their acts areattributable to
the Federal Republic of Yugoslavia and their internationally wrongful acts entai1the
responsibility of the latter.
150. These two provisions reflect the general principlesof State responsibility relatingto
the issue of attributability of the acts of military forces [Luigi Condorelli,
"L'imputation à l'État d'un fait internationalement illicite: solutionsclassiqueset
nouvelles tendances", Recueildes cours, 1984-VI, Vol. 189,pp. 145-1491,Article 91
of the First Protocol Additionalto the Geneva Conventions restates a principle
included in Article 3 of the Fourth Conventionof The Hague of 18 October 1907,on
the laws and customs of war. Its general character has been ascertainedby Max
Huber on 23 October 1924:
"~e Rapporteur ne saurait êtred'avis que lesactes commis par la troupe ou par des soldats isolés
ne puissent enaucun cas engager la responsabilité interde 1'Etat.L'article 3 de la
Convention du18 octobre1907relative aux lois et coutumesde la guerre sur terre établit le
principe de pareille responsabilité précisément pour l'évélus importante. Sans doute
cette convention n'est directement applicablene des situations dontle rapport doit s'occuper,
mais le principe qu'elleétablitmérited'êtreretenu également ence qui concerne l'éventualité
d'une action militaire en dehors de la guerre proprement dite."tionsbritanniques
dans la zone espagnoledu Maroc",RI., Vol. II, p. 6451.
151. If it was deemed possible to applythis principle for attributing to Spain some
relatively benign acts cornmittedin the Spanish Zone of Morocco, this principle is a
fortiori applicable concerningthe attribution of genocidalacts. This is al1the more
certain in the present case,in which the VRS was not comprised of, as in the case of
the Spanish soldiers, isolated men butof organisedmilitary forces, controlled by
Belgrade.
152. Moreover, the armed forces which were subordinatedto Yugoslaviatook control of
large territories in Croatia and Bosnia and Herzegovina.Thus, in the case of Bosnia
and Herzegovina, the Trial Chamber at the ICTFY ascertained that "a state of armed
confiict and partial occupation existed in the Republic of Bosnia and Herzegovina"
and this occupation was due to Yugoslavia [ICTFY, Indictments, Karadzid andReply of Bosniand Herzegovina
Madit, Case No. IT-95-18-1,16Nov. 1995,p. 9, para. 411,through the coordinated
activities of the Serbian forcesand the VRS. In this respect, it might be recalled that
the Court statedin its 1971 Opinionon Namibia that "physicalcontrol of a territory
and not sovereigntyor legitimacyof title, is the basis of State liability foracts
affecting other States" [ICJ Rep. 1971,p. 541.This is al1the more true in the present
case since Yugoslavia controllednot onlythe VRS, but alsothe "RepublikaSrpska"
as a whole.
153. Whetherthe "Republika Srpska" is seen as an independentState (which seems
difficult, to Saythe least) or simplyas an agent and surrogateof the Federal
Republic of Yugoslavia,its genocidal acts havebeen committed under the direction
and comrnandof the latter, whose international responsibility is, therefore, entailed
by these acts. The same holds true for the Serbianparamilitaryforces operatingin
Bosnia and Herzegovina:in addition to assisting "RepublikaSrpska",Yugoslavia also
directly controlledparamilitary forces whichalso acted as its surrogatesand were
very actively involved in genocidalacts.
3. The responsibility of the Federal Republic of Yugoslaviaunder Article III (b),
(c), (d) and (e) of the Genocide Convention
154. Article III of the 1948 Conventionon the Prevention and Punishmentof the Crime
of Genocide states:
"~he following acts shall be punishable:
[a] genocide;
[b] conspiracy to commit genocide;
[cl direct and public incitementto commit genocide;
[dl attempt to commit genocide;
[el complicity in genocide".
155. In its Memorial, Bosniaand Herzegovina hasshownthat al1these acts were indeed
comrnittedby Yugoslavia [Memorial,Chapter 5.4, pp. 231-2351.The Respondent
does not take great pains to refute these allegations,probably because it holds that
"[alccordingto the 1948 Genocide Convention aState cannot commit genocide and
other punishable acts" [Counter-Memorial, Section4.10, pp. 308-3 121,a contention
which has been clearly rejected by the Court in its Judgmenton the Preliminary
Objectionsand which is obviously untenable[see Reply, Chapter 2and Chapter 93.
156. This being said, it is also obvious that,as Yugoslavia is,either directly or through its
agents, the "Republika Srpska"and the Serbianparamilitaryforces, the perpetratorof Chapter 10- Section 3
Theresponsibilityof the Federal Republicof Yugoslavia
underArticleIII(ô), (c), (d) and (e) of the Genocide Convention
the actual genocide of non-Serb populations in Bosnia and Herzegovina, it does not
make much sense to speak of an "attemptto commit genocide", which would imply
that genocide has not been effectively committed.Nor does it make much sense in
the present case to speak of "conspiracy to commit genocide"or "complicity in
genocide" since Yugoslavia has been much more than an accomplice. However,
Bosnia and Herzegovina will show that even if the Respondent were not to be held
responsible as the author of genocide, at least in part, its complicity and participation
in a conspiracy to commit genocide would, in any case, be averred. Moreover, it
cannot be denied that it is responsible for having directly and publicly incited the
commission of genocide. Each of these points will be addressed separately below.
Direct and public incitementto commitgenocide
157. The Federal Republic of Yugoslavia makes a pretext of the discussions in the
International Law Commission on Article 27 of its Draft on the Responsibility of
States, in order to deny that "incitementof one State by another to commit an
internationally wrongful act" can entai1the international responsibilityof the latter
State [Counter-Memorial, Section5.5, pp. 335-3361.This contention is doubly
erroneous.
158. Firstly, in making the above statement, Yugoslaviaclearly has in mind a purely
"State to State" relationship and, a contrario, in denying that such a relationship can
entai1its responsibility, it implicitly recognisesthat it has incited the "Republika
Srpska" to commit genocide. Moreover,in the present case, this reprehensible
incitement was a public cal1to genocide, not addressed exclusivelyto the "Republika
Srpska". which. in any case, has never been a State [this Chapter, paras. 81 -1221.
159. Secondly. it is rather ludicrous for Yugoslavia to take such a position which rests on
a clear confusion between the general rules conceming the attribution of acts to a
State and the particular des from Article III of the Genocide Convention, a
confusion it harshly reproaches Bosnia and Herzegovinafor supposedly creating [see
Reply, Chapter 91.
160. It is highly doubtful that, under general international law, incitementdoes not entai1
the responsibility of the "inciting" State. In the Nicaragua case, the Court has noted
that "the United States is (...under an obligation not to encourage persons or groupsReply of Bosnia and Herzegovina
engaged in the conflict in the Nicaragua case to actin violation of the provisionsof
Article 3 cornmonto the four 1949GenevaConventions"[ICJ Rep., 1986,p. 1141.
161. It is al1the more so in the presentcase that the 1948 Convention expresslysets out
incitementto commit genocideas a "punishableact". SinceArticle IX expressly
mentions, "[dlisputesbetween the ContractingParties relating (..)to the
responsibility of a State for genocideorfor any of the otheracts enumeratedin
Article IIY'[emphasisadded], aformulawhich "doesnot exclude any form of State
responsibility" [I.C.J., Judgmentof 11 July 1996, para. 321,a State may,very
evidently, be held responsible forhaving incited the commission genocide.And there
can be no doubt that Yugoslaviahas directly andpubliclyincited the Serbpopulation
in the former Yugoslaviato commit genocide againstthe non-Serb population in
Serb-controlled areas in Bosniaand Herzegovinaand Croatia, as well as in the
Federal Republic of Yugoslavia itself.
162. Bosnia and Herzegovina does not contendthat the "GreaterSerbia" ideology
necessarily constitutes in and of itself incitementto genocide, however reprehensible
such an ideology may be. What it does contend is that the deliberatedissemination
of this ideology pavedthe way to the genocidecommittedagainst the non-Serb
population in Bosnia and Herzegovinaand other partsof the former Yugoslavia [see
Memorial, Section 2.3.1 .,pp. 59-61].Of course, Yugoslaviahas not openly called
for genocide(while its surrogatesin Bosnia andHerzegovina have - see below, para.
164),but its incitementto racial hatredmust beput in perspective and analyzedin
the proper context:by calling forthe creationof a large, exclusivelySerb State,
President SlobodanMilogevieclearly incited "ethnic cleansing", whichis a form of
genocide, as shown in other partsof this Reply [Reply, Chapter61.Moreover,as
shown in Chapter 4 of the present Reply,the general processis self-explanatory:
from a cal1for a "Greater Serbia",Yugoslavleaders and their surrogates in Bosnia
and Herzegovina and Croatiahave forged a generalspirit of ethnic hatred; after
creating this general fienzy, they have calledthe Serbs to engage in ethnic warfare;
and fiom ethnic warfare, there was only a tiny step to genocide, a stepwhich has
been made, bothin word and action.
163. This process has been describedby the Trial Chamberat the ICTFY in the TadiC
case, in a unanirnousfmding which hasbeen quotedat length above [Chapter43.
The Trial Chamberdemonstrated clearlyhow the Serb propagandadiffused the
ideology of Greater Serbiatogether with "ethnic cleansing"as the means to achieve
this goal [ICTFY,Trial CharnberII, Prosecutor v. DuSkoTadit, Case No. IT-94-1-T, ChapterIO - Section 3
Theresponsibilityof the Federal Republicof Yugoslavia
underArticle II(b)(c), (d) and (e) of the Genocide Convention
7 May 1997, pp. 30-35, paras. 84-96; seealso Trial Charnber1,Review of the
Indictments Pursuant to Rule 61 of the Rules of Procedure andEvidence, Prosecutor
v. Radovan Karaa5it and Ratko Mladit, CasesNo. IT-95-5-R61 and IT-95-18-R61,
11 July 1996, pp. 25-26, para. 521.
164. The logical evolution of such discourse, from Serbian ultra-nationalismto calls for
genocide, is illustrated by declarationsof BosnianSerb leaders such as Radovan
KaradiiC and Ratko Mladi6. For instance,RadovanKaradiiCclearly calledfor
genocide against Muslims in his speechof 14-15 October 1991before the Assembly
of Bosnia and Herzegovina,as a caution to deputieswho might vote in favour of the
independenceof Bosnia and Herzegovina:
"'YOU want to take Bosnia and Herzegovina down thesame highway of hell and suffering that
Slovenia and Croatia are travelling. Do nothing thatwill lead Bosnia to hell and do nothingthat
may lead the Muslim peopleto their annihilationbecause the Muslim cannot defend themselves if
there is war. How will you prevent everyone being killed ios nia?'[quoted in
ICTFY, Trial Charnber 1,Review of the Indictmentspursuant to Rule 61,
Prosecutor v. Radovan KaradZiCand Ratko MadiC, CasesNo. IT-95-5-R61
and IT-95-18-R61, 11 July 1996,p. 21,para. 481.
As KaradiiC was the leader of the SDS, the Bosnian Serb nationalistparti, such a
statement is to be understood as a clear threat, and proves that Serbian extremists
were prepared for the worst. On 16 July 1996, KaradiiCagain revealed his intent
concerning the population of the Bosnian enclaveswhen stating,
"~he Muslim enclaves in Bosnia are not viable and must disappear.Othenvise, we will make them
disappear by force. (...) The Muslims and the international community mustaccept the reality that
this country is totallyian."[Interviewof Radovan KaradZ6 in El Païs, as quoted
in ICTFY, Trial Chamber 1,Review of the Indictmentspursuant to Rule 61,
Prosecutor v. Radovan KaradZi6and Ratko Mladi6, CasesNo. IT-95-5-R61
and IT-95-18-R61, 11 July 1996,p. 32, para. 611.
When entering Srebrenica, General RatkoMladiCalso manifestedbefore the press his
hatred against Muslirns,which he equatedwith the Turks of the early nineteenth
century:
"~hat's it. As of 11 July 1995, Srebrenica is Serb.On the eve of another great Serbian feast day,
we are offering the city to the Serbian people. Finally,after the rebellion against the Dahijas, the
moment has arrived for us to take vengeance on the Turks in this[as quoted ibidem,
p. 16, para. 391.Reply of Bosnia and Herzegovina
The announced "vengeance"was executed withterriQing efficiency.
165. As explainedat length in an important expert report establishedby the International
Centre Against Censorshipin 1995,al1important media -and, primarily television
broadcasts -were in the hands of the Yugoslav Government andits surrogates;this
includedradio and television broadcasts which couldbe heard in al1parts of the
Federal Republic of Yugoslavia, and Serb-controlledareas in Bosnia and
Herzegovinaand Croatia, as well asthe main newspapers. Al1of these media
channelswere purged early on andtheir journalists werein the hands of the
Governmentin Belgrade [seeArticle 19, Forging War,"the Media in Serbia, Croatia
and Bosnia-Hercegovina",May 19941.
166. Referring to the situationin Serbiaand Serb-controlledareas outside of Serbia,
Special RapporteurTadeusz Mazowieckistated:
"The Government-controlled electronic media and press have beenin a one-sided and
nationalistic propagandacampaign.The official media have done nothing to distance themselves
from the politics of intolerance and,as a result, have fed the fires of hatred. In doing so, they
blatantly disregard a well-establishedintemational human rights law which prohibits
advocacy of national, racial or religioushatred that constitutes incitementto discrimination,
hostility or violence. It is to be recalled that in developments leadingup to the bloodshedin that
region, neutral television stations,such as the 'Jutel', were silencedin both Croatia and Serbia,
while in other instances somejoumalists were dismissed and others puitn theirted
Nations, Situation ofHumanRightsin the territory oftheformer Yugoslavia,
Report Submittedby Mr. TadeuzMazowiecki, SpecialRapporteurof the
Commissionon HumanRights,E/CN.4/1993/50,17Nov. 1992,p. 28, para. 951
Control over the media was also assuredin the Serb-heldareas of Bosnia and
Herzegovinathrough military intervention linked withactivities of local Serb
extremists.For the Prijedor area, this was describedby the Tribunal during the TadiC
trial for the Prijedor area [ICTFY,Trial Chamber II,Prosecutorv. DuSb Tadit,
Case No. IT-94-1-T,7 May 1997,p. 48, para. 130 andpp. 52-53, para. 1371.
167. Consequently,the Parliamentof the European Union adopted,on 19 January 1995, a
Resolution expressingits concern overthe monopolyof opinion in Serbia through
the direct and indirectcontrol of the governent [EuropeanCommunity,Official
Journal, 19 Jan. 1995,No. C43,p. 891.
168. As explainedby Trial Charnberof the ICTFY in the KaradZi6and Mladi6case: Chapter 1O -Section 3
Theresponsibiliiyof the Federal Republic of Yugoslavia
underArticleIII(b),(c),(d)and (e) of the Genocide Convention
"~he importance of controlling the mediais illustratedby Radovan KARAD~ICin [a] November
1991 speech. In it he said:
'We cannot have a radio chairman or a newspaper editor-in-chief whodoes not implement the
policy of thearty in power. Those are the functions of a..1am, therefore, asking you to
oust this week, throughan executive cornmitteedecision, al1radio chairmen and editors-in-chief
who do not listento you and do not respect thecial policy, or for some other reason. In al1
municipaiities where we have the radio, we have powe[ICTFY,Trial Charnber1,
Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and
Evidence, Prosecutor v. Radovan KaradZit and Ratko Mladik, IT-95-5-R61 and
IT-95-18-R61, 11July 1996,pp. 25-26, para. 521.
169. This can leave no doubt that the Federal Republicof Yugoslavia and its surrogates in
Bosnia and Herzegovinahave systematicallyused the media as an efficient tool to
promote their policy of ethnic cleansing,thus clearly, directlyand publicly inciting
to genocide.
Conspiracy to commitgenocide
170. As shown above, the Federal Republicof Yugoslaviais responsible for genocide
committed against the non-Serb populationin the former Yugoslavia and particularly
in Bosnia and Herzegovina, both because its organs directly committed genocidal
acts [Section 11,and because the genocidal acts of the "RepublikaSrpska" and of the
Serbian paramilitary forces, which acted under its control, must be attributed to it
[Section 21.Hence, in principle, no problem of complicity or conspiracy arises.
However, as a matter of judicial precaution, Bosnia and Herzegovinawill show
briefly that, even if the "Republika Srpska"on the one hand and the Serbian
paramilitary forces on the other hand couldbe seen as autonomousactors in the
genocide, as distinct from the Federal Republicof Yugoslavia,the latter would,
nevertheless, be responsible for its own acts, which, at least, amount to conspiracy
and cornplicity,both being punishableacts under Article III of the 1948 Convention
[see above, this Chapter, para. 1541.
171. Prudently and rather evasively,the Federal Republicof Yugoslaviaclaims that "acts
preparatory to genocide do not fall within punishable acts" [Counter-Mernorial,p.
305, para. 4.7.1.1.1.It invokesthe travauxpréparatoires to the Convention and the
rejection of an amendmentof a general nature proposedby the U.S.S.R. aiming at
including, under Article III, a general provision providingthat "preparatoryacts
should be punished" [ibid. and Annex No. 344, p. 21161.However, it "forgets"toReply ofBosniaand Herzegovina
recall that the reason why this amendment wasrejectedwas that a majority of
delegations considered that punishablepreparatoryacts were coveredby paragraphs
(b) and (c) relating to incitement and conspiracy. Aswas explainedin the Report of
the Ad hoc Committeeon Genocide,"[tlhe preparationof genocide should notbe left
unpunished" [Comrnentaryon the Articles adoptedby the Committee,
E/AC.25/W.11Add1 . ,27 Apr. 1948,p. 2; see Counter-Memorial, Annexesto
Chapters III-VI, Vol. 9, p. 21091.A majority in the Committee, however,
"stressed the difficulty in defining the notionof preparatory acts(...). Furthemore, in the most
serious cases where it would be desirableto punish the authors of preparatory acts, that could be
effected eitherder the clause 'conspiracy to commit genocide' or the claus'ecomplicity'.(...)
[Sluch acts requiring the CO-operationof a certain numberof persons, would accordinglycome
under the heading of 'conspiracyto commit genocide' even if genocide were not finally committed,
and under the heading of 'complicity' if genocide were commi[ibid., p. 31.
172. Although borrowed fromthe penal law of commonlaw countries, whereit means
"the agreementbetween two or more persons tocommit anunlawful act" [General
Assembly,Third Session, Sixth Cornmittee,Eighty-Fourthmeeting, 26 October
1948, SurnrnaryRecords,p. 212 -Memorial,Annexes,Part 5, vol. 11,annex 761,the
concept of "conspiracy" was acceptedwithout oppositionby the drafters of the
Convention under the condition that theword notbe interpretedas referring to a
particular legal system[ibid., pp. 211-2 121.
173. The Nürnberg Tribunalhad taken the same view when it interpretedthe word
"conspiracy"(in French: "complot"), includedin Article 6 of its Statute.The
Tribunal held that, even though "le complot doit être nettemend téfini dans sonbut
criminel", a conspiracy "pour l'accomplissementd'une guerre d'agression" was
averred since
IfLes buts des dirigeants nazis étaientdes l'origine: c'étaivue de dominer le continent
européen, l'incorporationau Reich des éléments de langue allemande, puis l'eterritoriale
sous le couvert du slogLebensraum.Mais l'exécutionde ces projets essentielsfut improvisée.
Les mesures qui s'ensuivirentent dictées par lesévbnements;mais toutes étaientconformes aux
buts que nous venonsde rappeler'"quotationfiom Paul Schmidt,official interpreter
from the German Ministry of ForeignAffairs,the Nürnberg Tribunal,19461.
"ce plan, un seul l'a peut-être conçu. D'autres en sont devenus resen prenant part à son
exécution(...). Quand ceux-ci, en pleine connaissancede cause lui ont offert leur assistance, ils
sont devenus parties au complot qu'il avait ourdi[Procesde Grand Criminale de
Guerre devant le Tribunal MilitaireInternationale,Nürnberg, 14Nov. 1945-1
Oct. 1946,text officiele en langue Française,tome 1, p. 2471. Chapter 1O- Section 3
Theresponsibili~ of the Federal Republicof Yugoslavia
underArticle III (b), (c), (d) and (e) of the Genocide Convention
"Conspiracy" can, therefore, in international lawbe equated with "planning" and
"participating in a concerted plan" to commit an internationally unlawful act.
174. This is also confirmed by the drafting of Article 2, paragraph 3 (e) of the ILC Draft
Code of Crimes against the Peace and Security of Mankind, which provides that:
"3. An individual shallbe responsible fora crime set out in Articles 17 [relating to genocide], 18,
19 or 20 if that individual:
"(e) directly participatesin planning or conspiring to commitsuch a crime which in fact occurs"
[Report of the I.L. C. on the Workof its 48th. Session, p. 18, para. 10.421.
In its cornmentary,the ILC recalls that:
"The principle of individualcriminal responsibility for formulatinga plan or participating ina
common plan or conspiracyto commit a crime was recognized in the Nürnberg Charter (article 6),
the Genocide Convention (articleIII, paragraph (b)) andtheutes of the International Criminal
Tribunals for the former Yugoslavia (article7, paragraph 1 (planning)) and Rwanda (article 6,
paragraph 1(planning)). The Commission also recognized conspiracyas a form of participation in
a crime against peace in the Nürnberg Principles(Pnnciple VI) and more generallyin the
draft Code (artic2, paragraph 13 (i))[ibid., p. 261.
175. Mutatis mutandis, the sarne interpretation mustbe accepted when the author of the
punishable act is not an individual, but a State. This can entail its responsibility for
al1the punishable acts defined in the Convention. [seethis Chapter, para. 1551.
176. As explained above [this Chapter, paras. 11-20],the Yugoslav authorities planned,
ordered and organised genocide. Moreover, theyput it into operation either directly
through the organs of the Federal Republicof Yugoslavia or through their agents and
surrogates in Bosnia and Herzegovina and in Croatia. However, even if it were
established that the latter two were not acting exclusivelyon behalf of their masters
in Belgrade, it would be undeniable that Yugoslavia actedjointly and in tight
cooperation with them both to plan the genocide and to put it into operation.
177. This has been clearly recognised by the Trial Charnberat the ICTFYin its decision
of 11 July 1996 in which it reviews the indictments for genocide of Radovan
KaradZiCand Ratko MladiCpursuant to Rule 61 of its Rules of Procedure and
Evidence:RepIy ofBosnia and Herzegovina
"83. The Trial Chamber does consider, however, that thetype of responsibility incurredis better
characterised by Article 7(1)of the Statute.The evidence and testimony tenderedal1concur in
demonstratingthat Radovan KARAD~IC and Ratko MLADIC would not only have been infoned
of the crimesallegedly committedunder their authority,but also and, in particular, that they
exercised their powerinorder to plan, instigate,order or otherwise aid andabet in the planning,
preparation or execution of theid crimes.
On account of his position as leader of the Serbian Democratic Party, and as often elucidatedin his
speeches, the very conceptionof the policy of "ethnic cleansing" must be attributed to Radovan
KARAD~IC,probably in coIlusionwith othersnot accused in the indictment.The fact that he has
always held key posts in the parallel power structures atteststo his central role in theans
to seise power in Bosnia and Herzegovina and the institutional organisation towards thatend. His
position of authorityter taking power within the self-proclaimed Serbian Republic of Bosnia and
Herzegovina, the effective exerciseof hisnctions in the political as well asthe military sphere,
and his own public statementsshow that he also ordered, and aided and abetted in, the preparation
and execution of the policy of "ethnic cleansing" and,in particular, the crimes with which heis
charged. The TrialChamber considers that, on the basisof the material tendered by the Prosecutor,
that responsibility isalso incurred forthe crimes committedin July 1995ring the take-over of
Srebrenica.
Ratko MLADIC was in full commandof the army of the Serbs of Bosnia and Herzegovina over
the whole period covered by the two indictiments.is statements and theway he exercised his
powers not only in the military but alsoin the politicalin show that he fully subscribed to the
policy of "ethnic cleansing" pursuedby the Bosnian Serb Administration and becameone of its
main protagonists.It appears that,om his position of authorityat the head of the entire military
structure, he planned and organised the crimes describedin the indictments committedby troops
under his command. Further, corroborated testimonypermitsthe assertion that his rolewas not
restricted to planning an overallategy, but also that RatMLADIC was present on the scene
where some of the crimes were committedand that he personally supervisedsome operations,
including the take-over of Srebrenica and the ensuing atrocities, downto the last.
84. Moreover, very careiùl consideration should be givento the individualcriminal
responsibility forthe crime of genocideas described in cou1of the indictmentof 25 July 1995.
The Trial Chamber is of the view that the evidenceand testimony submittedsuffice at this stage to
demonstrate the active participation of the highest political and military leadersin the commission
of the crimes by Bosnian Serb military and policy forcesin the detention facilities. The uniform
methods used in committingthe said crimes, their pattern, theirpervasivenessthroughout al1of the
Bosnian Serb-heldtenitory, the movementsof prisoners betweenthe various camps, and the tenor
of some of the accused's statements are strong indications tendingto show that Radovan
KARAD~C and Ratko MLADIC planned, orderedor otherwise aided and abettedin the planning,
preparation orexecution of the genocide perpetratedin the detention facilities.
Accordingly, the Trial Chamber considers that coun1[genocide] of the indictment of 25 July
1995 shouldbe supplementedin order to emphasisethe individuelcriminal responsibility of the
two accused pursuant to Article 7(1)of the Statute.
85. Lastly, the Trial Charnber, in thus determiningthe type of responsibility incurredby the
accused, narnely govenunental or military-commandresponsibility,can but invite the Prosecutor's
office to investigate decision-making responsibilityhesame - or higher-echelons." [ICTFY,
Trial Chamber 1,Review of theIndictmentspursuantto Rule 61 of the Rules
of Procedure and Evidence,Prosecutor v, RadovanKaradziCand Ratko
MadiC, Cases No. IT-95- 5-R61and IT-95-18-R61,11July 1996,pp. 47-48,
paras. 83-85,emphasisadded] . Chapter 10-Section 3
underArticleIII(b),(c)(4yand (e) of the Genocide Conventionia
178. These important findings cal1for several remarks:
- Firstly, they confïrm that the terms "planned, instigated, ordered ..."or
"planning, preparation ..."which are used in Article 7, paragraph 1, of the
Statute of the Tribunal instead of "conspiracy" [seeabove, this Chapter, para.
1741must be interpreted in a wide and general sense. They imply that what is
important is the participation in a common plan; this also holds true for the
word "conspiracy" in Article III (b) of the 1948 Convention.
-
Secondly, Bosnia and Herzegovinais conscious of the fact that the functions of
the Court and of the ICTFY are distinct. While the latter has "the power to
prosecute [see Article 6 of the Statute] persons responsible for serious
violations of international humanitarian law committedin the territory of the
former Yugoslavia since 1991 ",including genocide [Statute,Articles 1 and 41,
the World Court is called, in the present case, to determine the responsibility of
one State, the Federal Republicof Yugoslavia, for this same genocide.
However, the functions and responsibilitiesof the two Courts are not mutually
exclusive; on the contrary, a State can be responsible for genocide and the
members of its Government be judged for this sarne genocide as well: "The
official position of any accused person, whether as Head of State or
Government or as responsible governmentalofficial, shall not relieve such
person of criminal responsibility nor mitigate punishment [Article 7, paragraph
2, of the Statute of the ICTFY]. Similarly,the individual penal responsibility
of Governmental officials certainly does not relieve the State from its
international responsibility. If, when acting in their official capacity, these
Governmentalofficials, including the Heads of State or of Government are held
guilty (or, at the stage of the indictment, possibly guilty) of genocide, or
conspiracy in genocide, accordingto international law,their acts also involve a
responsibility for genocide, or conspiracy in genocide for the State they
represent. This is al1the more so since, as shown in Chapter 3 of the present
Reply, the burden of proof and the rules regarding the evidence are more
stringent in pend law than in international law.
- Thirdly and lastly, the passages in italics in the above quotation show clearly
that the Trial Chamber at the ICTFY shares the conviction that the accused
Karad2iCand MladiC.were not acting alone -which is, indeed, self-evident [see
above para. 1731 - but that the conception and planning of the genocide must
be attributed to them "probably in collusion with others not accused in the
indictment", "at the same -or higher - echelons", a formula which clearlyReply of Bosnia and Herzegovina
alludesto SerbianPresident SlobodanMiloSevikand other high ranking
officiaisin the Federal Republicof Yugoslavia (not beingseized of a public
indictmentagainstthose persons, the Trial Chambercould, evidently,not go
any Mer).
179. It is most revealingin this respectthat the General Assemblyhas condemnedthe
violations comrnittedby "Serbiaand Montenegroand the Bosnian Serbs",
"systematically,flagrantly and on a massive scale", "againstthe people ofthe
Republic Bosnia and Herzegovina", "as policy" [United Nations,General Assembly
Resolution 49/10, Al49110,3 Nov. 1994,para. 11, emphasis added; seealso ibid.,
Resolution48/88, A/48/88, 29 Dec. 1993, para. 141,a formula in which one can read
the exact legal definition of "conspiracy"in international law.Also very
significantly,the Assemblyhas designated "the leadershipin territories under the
control of Serbs in the Republicof Bosnia and Herzegovina andthe Republicof
Croatia, the cornmandersof Serb paramilitary forcesand political and military
leaders in the Federal Republicof Yugoslavia(Serbia and Montenegro)" asbeing,
together,those who "bear primary responsibility"for these same violations [United
Nations, GeneralAssemblyResolution49/196, Ai491196,23 Dec. 1994, emphasis
added; see also ibid, Resolution501193,A/50/193,22 Dec. 1995and this Chapter,
para. 431.
180. More generally,the conspiracy between Belgrade,the Serbparamilitariesand the
authorities in Pale in planning and implementing genocideis evident from the facts
described at length in this Section,whetherthe Serbian paramilitary forces,the
"RepublikaSrpska" and the VRS are seen as agents and surrogatesof the Federal
Republic of Yugoslavia,or not.
Complicityin genocide
181. Here again, Bosnia and Herzegovinawishes to make very clear that, fromits
consideredpoint of view, the Federal Republic of Yugoslaviais responsiblefor
genocidecomrnittedagainstthe non-Serb populationin Bosnia and Herzegovina and
in other parts of the former Yugoslavia, mainlyin Serbia andits (former)
autonomousprovincesand inCroatia. Paraphrasingthe Court in the Nicaragua case,
"ifsuch a finding of irnputabilityof the acts of [the "Republika Srpska"and of the
Serbian paramilitary forcesis] to be made, no question [will] arise of mere
complicity in those acts...[seeICJ Rep. 1986, p. 641.It is therefore only very
subsidiarilythat the Applicantwill show that, if, by some remote chance,the Court Chapter 10-Section 3
Theresponsibilityof theFederal Republicof Yugoslavia
underArticleIII(b), (c(4 and (e) of the Genocide Convention
would find that genocide as such could not be attributed to the Respondent State, it
would, nevertheless be responsible for its complicity in genocide as committed
against these populations, this claim being without prejudice to the evident
attributability to the Federal Republic of Yugoslavia of the genocidal acts committed
by its organs and agents.
182. "Complicity in genocide" is defined as a "punishableact" by Article III (e) of the
1948 Convention. Yugoslavia recognises that "complicityincludes the extension of
aid and the provisions of means for the commission of genocide" [Counter-
Mernorial, p. 305, para. 4.6.1.4.1.There is no difference between the Parties in this
respect.
183. However, it is worth noting that, even if the Genocide Conventionhad not expressly
provided for such a punishable act, it would, in any case, entai1Yugoslavia's
responsibility since, according to a general and well established principle of the
international law of State responsibility, "theidea of participation in the
internationally wrongful act of another by providing 'aid or assistance' - and thus, in
this sense, of 'comp1icity'-has now gained acceptance in international law" [ILC,
cornmentary of Article 27, Draft Articles on State responsibility, ILC Yearbook,
1978,Vol. II, part 2, p. 1031."What [the State] does is to facilitate, by its own
action, the commission by the other State of the international wrongful act in
question. Cases such as this can be defined as ones of 'complicity'( ...)"[ibid., p.
1021.
184. Moreover, in the Nicaragua case, this Court has clearly recognised that a State entails
its responsibility by "training, arming, equipping, fmcing and supplying"
paramilitary forces "or othenvise encouraging, supporting and aiding (...)
paramilitary activities in and against" a foreign State [ICJ Rep. 1986, p. 146 -see
above, para. 58 and Luigi Condorelli, "L'imputation à l'État d'un fait
internationalement illicite: solutions classiques et nouvelles tendances",Recueil des
cours, 1984-VI, Vol. 189, pp. 98-99]. In the Hostages case, it considered that a State
can be held responsible for its own internationally wrongful acts related to acts of its
own nationals, even when committed on its own territory [ICJ Rep. 1980, p. 30 -see
above, para.56 and L. Condorelli, "L'imputation à l'État d'un fait intemationalement
illicite: solutions classiques et nouvelles tendances", Recueildes cours, 1984-VI, Vol.
189, pp. Il lff.].Reply oBosniaand Herzegovina
185. These precedents are hlly relevant in the present case where,in addition to other
genocidal acts committedby its own organs, Yugoslavia hastrained, armed,
equipped, financedand supplied bothits "puppet"State, the "Republika Srpska",and
the Serbian paramilitaryforces which have cornmittedgenocidalacts on its own
territory and on the territories of Bosnia and Herzegovinaand Croatia [as shown in
Chapter 8, and this Chapter, Section21This is clearly (and at the very least)
complicity in genocide. Itcan be addedthat since, in the present case, genocide has
effectively been committed, accordingto the position expressedby the Ad hoc
Committee on Genocideduring the travauxpréparatoiresof the Genocide
Convention, the conspiracy constitutedby the plansto commit genocidehas
degenerated into complicity [seeabove, para. 1711.
186. The Federal Republic of Yugoslavia insists that complicity "involves premeditation
as a rule" [Counter-Memorial, p.305, para. 4.6.1.41.Once again, this is an inaccurate
representationof the law in force.
187. The Respondent stresses [ibid.] thatMr. Fitzmaurice,the Representativeof the
United Kingdom, withdrew "thepart of its amendmentconceming the addition of the
word 'deliberate' since it was understood that, tobe punishable,complicity in
genocide must be deliberate" [GeneralAssembly, 3rdSession, 6th Committee,
Oficial Records, SumrnaryRecordsof Meetings,21 Sept.-10 Dec. 1958,p. 259; see
Counter-Memorial, Annexes to ChaptersIII-VI, Vol. 9, p. 21141.But, onceagain, it
"forgets"to recall that thisameRepresentativehad very clearlyalso observedthat,
some days earlier, "theRepresentativeof Venezuelahad taken the English word
'deliberate' tomean in Frenchprémédité[ e84thmeeting]; that interpretationwas
incorrect, the correct translation being intentionnelle" [ibid.,p. 255, emphasis added
see Memorial, Annexes, Part 5, Vol. II, annex 851.
188. In other words, complicityimplies, indisputably,an element of "intent", in that the
aid given to the author of the crime must be "deliberate"(intentionnelle);but this
does not mean that it must be given with the will to participatein the crime itself-
in which case it would be necessaryto speakof "premeditation".It sufficesthat it be
given "deliberately"in a situationwhere this aid canbe suspectedby an impartial
extemal observer as being possiblyused to commit genocide. Interestinglyenough,
this was precisely the positiontaken by the Representativeof Venezuelawhen he
suggestedto replace, in the amendment presentedby the United Kingdom,
"deliberate complicity" by "intentional complicity""since",he said, "it was intent,
rather than premeditation, which renderedthe complicity a punishableoffense" [ibid., Theresponsibilityof the Federal Republicof Yugoslavia
underArticle I(b)(c),(4 and (e) of the Genocide Convention
p. 209; see Counter-Memorial, Annexes to ChaptersIII-VI, Vol. 9, p. 21401.
Moreover, this remark holds true for the definition of genocide itself: after a lengthy
discussion on Draft Article 1,Mr. Spiropoulos, Rapporteur, "notedthat it appeared
very clearly that the majority was opposed to includingthe concept of
premeditation ...[ibid p..,8, Memorial, Annexes, Part 5, vol. II, Annex 601.
189. This has been confirmed by the Court in the Nicaragua case. In its Judgment of 27
June 1986, the Court has specified that, when considering whetheran unlawful act
consisting of encouragement to commit an unlawful act had been committed "it is
material to consider whether that encouragement was offered to persons in
circumstances where the commission of such acts was likely or foreseeable" [ICJ
Rep. 1986, p. 1301.
190. In the present case, there cannot be a shadow of doubt that, in aiding and abetting
the "Republika Srpska" and Serbian paramilitary forces, the Federal Republic of
Yugoslavia could not have been unaware ofthe strong probability that this aid would
be used to commit genocide. The atrocities committedby these groups had been
extensively presented in the media throughout the world and condemned by the
General Assembly and the Security Council,whch, from September 1991, had
imposed an embargo on al1deliveries of weapons and military equipment to
Yugoslavia [Resolution 713 (1991)], in May 1992,had expressly demanded that
Yugoslavia cease its intervention in Bosnia and Herzegovina [Resolution 752
(1992)], and from 30 May 1992 onward expressly imposed sanctions on the Federal
Republic of Yugoslavia for its participation in the"ethnic cleansing". The Federal
Republic of Yugoslavia's complicity in genocide is therefore averred.
191. However. Bosnia and Herzegovina wishesto stress once more that, in its opinion, the
participation of the Federal Republic of Yugoslavia in the genocide against the non-
Serb populations in the former Yugoslavia, and more specifically, on the territory of
Bosnia and Herzegovina, has been much more direct than what can be inferred fiom
the words "conspiracy" or "complicity":
- it has planned and organised genocide;
- it has incited the commission of genocide;
- its own organs have committed numerous specificgenocidal acts;
- it has exercised, at least during the worst period when the most atrocious acts
were committed on a very large scale, control over its surrogates: theReply of Bosnia and Herzegovina
"RepublikaSrpska", which wascreated and maintained exclusivelyowing to its
will and aid and must be considered a "puppetState"without any legal
existence, and the Serbian paramilitaryforces,which were composedof
Yugoslav nationalsand createdby Yugoslavia,which had full controlover
them; and
-
it cannot take shelter behindthe fact that, on very rare occasions -indeed only
one, accordingto the Respondentitself, which only mentions (though
repeatedly) the refusal of the Vance-Owen Planby the "Republika Srpska" - its
surrogate has shown some reluctancein complying withits orders. When one
has deliberately playedthe part of the "sorcerer",it cannot escape responsibility
when its creature escapesits power, al1the more so since this happened only
once.
CHAPTER11
THE FEDERALREPUBLIC OF YUGOSLAVIAIS RESPONSIBLEFOR ITS FAILURE
TO PREVENT AND TO PUNISH GENOCIDEAND RELATEDACTS
1. Introduction
In clear contradiction to the res judicata of the ICJ Judgmentof 11July 1996 [e.g. :
para. 321the Respondent continues toallege that the Court has nojurisdiction to
detennine its responsibility for genocideand for related acts cornmittedby its organs,
by its agents and by the persons or groups actingon its behalf or under its control
[Counter-Memorial,Section 4.1O.,pp. 308-312; see above, Chapter 1O].
Nevertheless, the Respondent seemsto accept that it has some legalobligations under
the 1948 Conventionon the Preventionand Punishmentof the Crime of Genocide,
the violations of which entail its international responsibility.
2. The Federal Republic of Yugoslaviasums up the obligationsit "accepts"in this
respect in the followingterms:
"~he 1948 Convention on the Prevention and Punishmentof the Crime of Genocide establishes
several international obligations for the Contracting Parties.Pursuant to Article 1of the Convention,
the Contracting Parties are obtoprevent and punishthe crime of genocide.Under Article V of
the Convention the Contracting Partieshave undertaken tohe necessary legislationto give
effect to the provisions of the Convention and,in particular, to effective punishmentof
persons guilty of genocidanyrother act enurneratedin ArtIIIPursuant to Article VI of the Chapter Il- Section 1
Introduction
Convention the State in the territory of which the act was committed is obliged to try persons
charged with genocide.[Conter-Memorid, p. 312, para. 4.11.1.2.1.
However, the Respondent appears anxious to limit these obligations by alleging that
their violation only entails "civil" responsibility of the State [Counter-Mernorial, p.
313,para. 4.1 1.1.41and that they are "territorially limited" [Counter-Memorial,
Section 4.12., pp. 314-3151.
3. As shown in Chapter 2, there is no real difference between the Applicant and the
Respondent with respect to the first allegation: the responsibility of the State in
international law, at least before this Court, is certainly not criminal liability, even
though it can be sustained that it is neither civil nor pend, but simply international
[see e.g. Gaetano-Arangio-Ruiz, Fifth Report on State Responsibilityto the I.L.C.,
AlCN.41453lAdd.3,para. 148; Alain Pellet, "Vive le crime! Remarques sur les degrés
de l'illicite en droit international",in ILC, International Law on theEve of the
Twenty-FirstCentury,United Nations, p. 3021.Bosnia and Herzegovina also agrees
with Manley Hudson's view, as quoted by the Federal Republic of Yugoslavia
[Counter-Mernorial, p. 313, para. 4.1 1.1.4.1,that "such responsibility is governed (...)
by general international law" ["The Twenty-Ninth Year of the World Court",
A.J.1L., 1951, p. 341,but only insofar as the Convention itself does not prescribe or
imply a special regime. In any case, the obligations which entai1the Respondent's
responsibility are those defined by the Convention.
4. It is precisely for this reason that Bosnia and Herzegovina is unable to agree with the
Respondent regarding the territorial scope of the Convention.
5. Although recognizing that "it does not mean that a State is allowed to commit
genocide outside its territory", the Respondent contends that its obligationsto prevent
and punish genocide is limited to its own territory [see Counter-Memorial, p. 315,
Section 4-13.]. Such a contention adds a territorial limitationto the application of the
Conventionwhich is inconsistent with its object and purpose. In spite of the legal
doctrine of a "devoir d'ingérence",sometirnes asserted by accademics or politicians,
it might be true that there does not exist a duty to intervene supported by individual
States [see discussion in Memorial, p. 289, para. 6.4.2.91;but this does not mean that
each and every State party to the Convention is not under a strict obligation to
prevent and punish genocide wherever it takes place - and certainly not limited to its
own territory - with al1legal means at its disposal.ReplyofBosnia and Herzegovina
6. It must be recalled in this respect [see alsoChapter 10, Section 21 that, as the Court
explained in its 1971 Opinionon Narnibia,"physical controlof a territory and not
sovereigntyor legitimacyof title, is the basis ofState liabilityfor acts affecting other
States" [ICJ Rep., 1971,p. 541.It followsthus that the Respondent,being in control
of "RepublikaSrpska", must,in any case,be held responsiblefor its violation of the
Convention,including its failureto preventand punish genocide, whether comrnitted
on its territory or on the territory of "Republika Srpska"or of other self-proclaimed
entities which it controlled.
7. This clearly means that the Respondent has aduty:
1: to prevent and punish genocideon its own territory, as well as
II: on territories over whichits has defacto control, in particular "Republika
Srpska"; and
III: to punish perpetratorswho are found onits territory or on territories it controls,
regardless of where the genocidal actshave beencomrnitted.
8. Moreover, it can be inferred from the Respondent's Counter-Memorial tha he
Federal Republicof Yugoslavia,in its own practice, does not hold thatthe obligation
to punish is territoriallylimited:
Article 141 of its Penal Code containsno such limitation; and
Yugoslav judgeshave investigated "genocide", eventhough the proceedings
were limitedto two cases of "genocidal"acts which were allegedly comrnitted
by Croats and Muslims abroad (in Bosnia and Herzegovina -or, more
precisely, in "Republika Srpska"); consistentwith the Respondent's theorythat
the obligationto punish would be territoriallylimited, another explanationfor
the basis of itsjurisdiction over/inthese cases would bethat, definitely, it
considers "Republika Srpska"as partof the Federal Republic of Yugoslavia
[see Counter-Memorial,Annex No. C 123:Witnessstatementmade before "the
investigativejudge of the BasicCourt in HercegNovi" (Montenegro);or
Counter-Mernorial,Annexes 300and C 257: Witnessstatementsmade before
the investigativejudge of the District Courtin Belgrade].
9. This territorial scope of the duty to preventand punish genocideunder the
Conventionhas been made perfectly clear by the Court in its Judgmentof 11 July
1996,rejecting the preliminary objections raisedby the Respondent: Chapter II -Section 2
TheRespondentSfailure to prevent genocide andrelated acts
"(...Lastly,as to the territorial problemslinked to the application of the Convention,the Court
would point out that the only provision relevantto this, Article VI, merelyprovides for persons
accused of one of the actsprohibitedby the Conventionto 'be triedby a competent tribunal of the
State in the territory of which the actwas committed(...)'. It would also recall its understanding of
the object andpurpose of the Convention,as set out in its Opinion of28 May 1951(...):
'The origins of the Convention show that it was the intentionof the United Nationsto condemn
and punish genocideas 'a crimeunder international law' involvinga denial of the right of
existence ofentire human groups, a denial which shocks the conscienceof mankind and resultsin
greatlosses to humanity, and which is contrary tomoral law and to the spirit and aimsof the
United Nations [Resolution 96[l] of the General Assembly, December1lth 19461.The first
consequence arisingfiom this conceptionis that the principles underlyingthe Conventionare
principles which are recognizedby civilized nationsas binding on States, even withoutany
conventional obligation.A second consequence is the universal characterboth of the condemnation
of genocide and of the CO-operationrequired 'inorder to liberate mankind fiomsuch an odious
scourge.' [Preambleto the Convention, I.C.J Reports 1951, p.231.
It follows that the rights and obligations enshrinedby the Convention are rights and obligations
erga omnes. The Court notes that the obligationeach State thushas to prevent andtopunish the
crime ofgenocide is not territoriaiiylimited by the convention.[para. 31, emphasis added].
10. In light of this finding, Bosnia and Herzegovina will show that, in spite of its
denials, the Federal Republic of Yugoslavia has not complied with its conventional
obligations to prevent [Section 21and to punish [Section 31genocide and related
acts.
2. The Respondent's failure to prevent genocide and related acts
Meaningand scope of the du@to prevent genocideaccording to ArticleI of the
Genocide Convention
Article 1of the 1948Convention, which defines its very object and purpose [see
Bosnia and Herzegovina'sMernorial,para. 6.5.1.2, pp. 283-2841?provides:
"~he Contracting Partiesconfinn that genocide, whether committedin time of peace or in time of
war, is a crimeunder international law which they undertake to prevent(...).I[UnitedNations,
1948 Convention,Art. Il.
This obligation has been stressedby the Court in its Order indicating provisional
measures of 8 April 1993:
"(...) in the view of the Court,in the circumstances broughtto its attention and outlinedabove in
which there isa grave risk of actsof genocide being committed, Yugoslavia and Bosnia and
Herzegovina, whetheror not any such acts in the past may be legally imputableto them, are underReply of Bosnia andHerzegovina
a clear obligation to do al1in their power to prevent the commissionof any such acts in the
future." [ICJRep., 1993,p. 22, para. 45; see also ICJ Rep., Order of 13 Sept.
1993, 1993, p. 347, para. 46 and p. 348, para. 501.
13. The International Law Commissionhas devoted two specialprovisions of its draft
Articles on State responsibility to obligationsof this kind: Article 23 and Article 26.
According to Article 23, entitled "Breachof an obligationto prevent a given event":
"~hen the result required of a State by an international obligationis the prevention, by means of
its own choice, of the occurrence of a given event, there is a breach of that obligation onbyif,
the conduct adopted, the Statedoes not achieve that result.[ILC,Report on the Workof
its 48th Session, 6 May-26 July 1996, General Assembly, Officiai Records,
51st Session, Suppl. No. 10, A/51/10, p. 1331.
Article 26 relates to the "moment andduration of the breacli of an international
obligation to prevent a given event" and is not of direct relevance in the present case.
14. Cornmenting on Article 23, the Commissionnoted that such a breach has a double
character:$rst, the breach consistsof the realisation of the event that the State had
the obligation to prevent; second, the State bound by such an obligation is to be in a
position to prevent effectively this said event. It explained:
"1t is quite clear that the obligations of whichexamples have been given al1fa11within the category
referred to in artic21, because they are obligations whosefuifilment, like that of others of the
same category (obligations of result), takes place only if the resultthat they require can be seen to
have been ensured, and whose breach similarlytakes place onlyif that result be seen not to have
been ensured. However, it would be wrong to believe that the general provision formulatedin
article21 in order to define the conditionsfor the existenceof a breach an obligation of result
suffices, by itself, tosolve the questionsarising in cases where the result aimedat by the
obligation is the prevention by the State of an event causedby factors in which it plays nopart.
The conditions for the breachof an obligation requiring a resultof this kind need a different kind
of definition fiomthose that apply toan obligation requiring a resultin whose achievementor non-
achievement only action by the Stateis invoived.To ensure the result of preventing individualsor
third parties fiom committing certain acts, or of preventing disasters, whethernaturally or
artificially caused (such as flooding or pollution),fiom taking place, is something quite different
fiom ensuring, for example, the result that nationals of a given foreign country be allowedto
practise, within the Statan occupation or other activityon an equal footing with nationals.The
characteristicfeature of the case taken into considerationby the Commission here is preciselythe
notion of an event, i.ean act of man or of nature which, as such, involves no action by the State.
Consequently, if the result whichthe obligationequires the State to ensure is that one or another
event should not take place, the key indication of breachof the obligationis the occurrence of the
event,just asthe non-occurence of the event is the key indicationof filfilment of the obligation.
(...) In other words,the non-occurence of the eventis the result that the State is requiredto ensure,
and it is the occurrence of the eventthat determines thatthe result has not been achieved. Chapter Il -Section 2
TheRespondent's failure toprevent genocideand related acts
However, the occurrenceof the event is not the only condition specifically stipulated forthe
existence ofa breach of an international obligation requiring the Stateto achieve the resultof
preventing the occurrence of that event.In assuming obligations of this kind, Statesare not
underwriting some kind of insuranceto coverO-contractingStates againstthe occurrence,
whatever the conditions,of events of the kind contemplated, against the occurrence of the event
even regardless ofanymaterial possibilityof the State's preventingit from occurring in a given
case. The Statecan obviously be required onlyto act in such a way that the possibility ofthe event
is obstnicted, i.e. to frustrate the occurrence of the eventas far as lies within its power. Only when
the event has occurredecause the State has failed to prevent it by its conduct, and when the State
is shown to have been capableof preventing it by different conduct,he result required by the
obligation beaid not to have been achieved. Consequently, forthese to be a breach of the
obligationa certain causal li-indirect, of course, not di-must exist between the occurrence
of the event and the conduct adoptedin thetter by the organs of the State. It is hardly necessary
to add that the objective of each obligationand the more or less essential character of the
prevention of this orthat type of event must also be into account, once the eventto be
prevented has occurred, in comparing the conductually adopted by the State and theconduct
that it might reasonably havebeen expected to adopt to prevent the event fiom occu[ILCg"
Yearbook1978, Vol. II, Part 2, pp. 82-83, paras. 4 and 6 of the cornrnentaryof
Article 231.
15. It goes without saying that, in the present case, genocideconstitutes an event of an
absolutely essential character, which makes the obligation to prevent al1the more
essential and implies that al1States Parties have an absolute legal duty to comply
strictly with their obligation of prevention.
16. This is confirmed by the travauxpréparatoiresof Article 1of the 1948 Convention.
While the obligation to prevent genocidehad not been included in the draft adopted
by the Ad hoc Cornrnitteeon Genocide, it was introduced during the debate in the
Sixth Committee of the General Assembly on the initiative of the Yugoslav
Representative, Mr. Bartos [United Nations, G.A.O.R., Sixth Comrnittee, Sixty-third
meeting, 30 Sept. 1948,p. 10, see also United Nations, G.A.O.R., Sixty-Seventh
meeting, 5 Oct. 1948, p. 401and a forma1proposa1made by the Belgian
Representative, Mr. Kaeckenbeeck [ibid., p. 381.It is worth noting that, while several
elements of the drafting of Article 1have been contested,the States participating in
the discussion have been unanimous in agreeing on the obligation to prevent
genocide [see ibid., pp. 38-53].
17. When tested againstthe obligation to prevent, as accepted by States Parties under
Article 1of the Convention and thus interpreted, the facts can leave no doubt
regarding the breach of this provision by the Federal Republicof Yugoslavia:
genocide has, indeed, been comrnitted [see Chapter6 of this Reply], while the
Respondent had the "material possibility (...)[to prevent] it fiom occuning" [see this
Chapter, para. 141,as Bosnia and Herzegovinawill recall hereinafter.Replyof Bosnia and Herzegovina
18. However, the Applicant wishes to stressthe point, which was made clear by the
InternationalLaw Commissionin the previously cited comrnentary[ibid]: when an
obligation of prevention is at stake, the "event"which must be taken into
considerationis, as a matter of definition, "anact (...which, as such, involvesno
action by the State" [ibid.]. In other words, the very fact that genocide hasbeen
committed createsat least a presurnption thatthe "dutyto prevent" has not been
respected, since the Respondent wasin a position to, in fact, prevent it. In this
respect, it isorth noting that, as recalledby the Court in its Judgmenton the
Preliminary Objections[para. 321,the first and fundamentalduty ofthe StatesParties
is not-to-commit genocide[see e.g. Mernorial,Section5.2.2, pp. 200-2041.The
Federal Republic of Yugoslaviahas committed genocideboth through its own organs
and through its surrogatesacting on its behalf and controlledby it, as shown in
Chapter 10 of the present Reply. Its failureto prevent genocideis thus clearly in
addition to its main violationof the Convention,in the same way as is its complicity
in genocide [see: Chapter 10, Section31.Bosnia and Herzegovinais invokingthese
additional breaches of the Convention without prejudice tothe obvious responsibility
of the Federal Republicof Yugoslavia forits commissionof genocide.
TheFederal Republicof Yugoslaviahas not compliedwith its duiy toprevent under
Article I of the GenocideConvention
19. This commissionof genocideis an assertedfact and makes al1the more clear that, a
fortiori, the Respondentwas in a positionto prevent the genocide committed against
the non-Serb populationsin the former Yugoslaviaand in particular, in Bosnia and
Herzegovina.
20. A first element to be taken into considerationin this respect is the Federal Republic
of Yugoslavia's geographical situation in relation to the territories on which genocide
has been essentially committed (though not exclusively, since genocidalacts have
also been committedon the territoryof the Federal Republicof Yugoslavia itself),
that is, in Bosnia and Herzegovinaand in Croatia.It must, in effect, be kept in mind
that the Respondent enjoys a hundredsof kilometers long commonborder with
Croatia and with Bosnia and Herzegovina.
21. Indeed a mere geographicalproximitywould not be enoughto attributeresponsibility
to the Respondent;but it has a role to play in this respect. As the ICJ has noted in
the Cofi Channelcase: Chapter II - Section2
TheRespondentSfailure toprevent genocideand related acts
"(...it cannot be concluded fiom the mere factof the control exercisedby a State over its territory
and waters that that State necessarily knew, or oughtto have known,of any unlawful act
perpetrated therein, nor yet that it necessarily knew, or should have known, theauthors. This fact,
by itself and apart fiom other circumstances, neithervesprima facie responsibility nor shifts
the burden ofproof.
On the other hand,the fact of this exclusive territorial control exercisedby a State within its
fiontiers has a bearing upon themethods of proof available to establish the knowledgeof that State
as tosuch events. By reason of this exclusive control,the other State, the victimof a breach of
international law,is often unable to furnish direct proof of facts giving rise to responsibility.Such
a State should be alloweda more liberal recourse to inferences of fact and circumstantial evidence.
This indirect evidenceis admittedal1systems of law, and itsuse is recognized by international
decisions. It must be regarded as of special weight whenit is on a series of facts linked
together and leadingto a single conclusion."C.J. Rep., Judgment of April 9th. 1949,
p. 181.
22. Mutatis mutandis, the same holds true in the present case: due to its specific
geographical situation, the Respondenthad a special duty of diligence in preventing
genocide and the proof of its lack of diligence can be inferred from fact and
circumstantial evidence.
23. Even more integral to the Federal Republic of Yugoslavia's duty to prevent genocide
is the control that this State exercisedover the "Republika Srpska" [see: this Chapter,
para. 61.As has been shown in Chapter 10 of the present Reply, this so-called
"State" has been created by Belgrade [see: Chapter 10, Section 21;its "governrnent"
has been able to exercise its power only because of the support it has received from
the Federal Republic of Yugoslavia;it has been entirely dependent on the aid it
received from the Respondentboth militarily and economically;and it has always
complied with the injunctions and demands it has received from Belgrade, except
perhaps on the single occasion of its disagreement with Belgrade overthe "Vance-
Owen Plan" (and even in this case, the possibility of a covert agreementwith
Belgrade cannot be excluded) [ibid., Section 21.
24. Similarly, as also shown in the previous Chapter of this Reply [ibid., Section 21,the
Federal Republic of Yugoslaviahad full control over the paramilitary forces which
have been so active in the genocide: they were created by the authorities in Belgrade;
the Respondent armed and equipped them; they were trainedby the JNA; and they
were under the direct command of Serbian and Yugoslav officiais.
25. These established facts are relevant not only in showing that both "Republika
Srpska" and the Serb paramilitary forces were mere surrogates of the Respondent,
whose acts entail the responsibility of the latter; they also show that the RespondentRepïyofBosniaand Herzegovina
has not used its crucial and decisive influenceon these groupsto prevent them from
cornmittinggenocide. It would be superfluousand repetitiveto repeat here the
evidencepresented in Chapter 10. Sufficeit to recallthat, far from preventing
genocide, the Federal Republicof Yugoslaviahas incitedthe commissionof
genocide, conspired in organizinggenocide and hasdirectlyparticipated in and been
an accompliceto genocide. At a minimum,this, indeed, amountsto a breach of its
imperious duty to prevent genocideby al1means availableto it. "Prevention"implies
that States must take positive actions to preclude; instead,the Respondenthas acted
in such a way as to facilitategenocide andthrough its acts and behaviours.
26. A number of facts are of particularrelevance to the establishmentof these breaches
of the Convention. This is the case, forexample,of
-
the opening of the FederalRepublicof Yugoslavia'sborders to arms traffic
[see: Chapter 8, Section7 and Section 101and passage of troops and
paramilitary forces [see: Chapter 8,Section 5; Section 7 and Section 121,in
clear contradictionnot only of the Respondent'sobligationsunder the 1948
Convention, but also with its forma1condemnationby the Security Council [see
below]; moreover, the Respondentexpressly states,in its Counter-Memorial,
that "it is capable of controlling the borderitself' [Counter-Memorial,p. 80,
para. 1.3.7.1.1;it, therefore, cannotcontendthat these evidentviolations of its
duty to prevent genocidewere beyondits control;
- the armament of Serb populationand militiasin contrast tothe disarmamentof
non-Serb, particularly Muslim populationof Bosnia and Herzegovina [see:
Chapter 8, Section2, and Chapter 101;
- the massive financialand economicaid givento the "RepublikaSrpska"by the
Federal Republic of Yugoslavia [see: Chapter8, Section91;
- the wholesale tolerance, if not sponsorshipof public discourse, includingradio
and T.V. broadcasts, incitingto racial hatred inthe Yugoslavmedia [see:
Chapter 4; Chapter 8,Section7, and Chapter101;
- Belgrade's inertia in punishingthe individualperpetratorsof genocidal acts
which, on the contrary, have foundprotection and shelterin the Federal
Republic of Yugoslavia;etc.
TheFederal Republicof Yugoslaviahasbeenrepeatedlycondemnedby the
international comrnunity for not havingpreventedgenocide Chapter II -Section 2
TheRespondent'sfailuretoprevent genocideand related acts
27. Non-compliance by the Federal Republic of Yugoslavia with its duty to prevent
genocide has been pointed out and condemnedby objective internationalbodies.
28. In the first place, the Court itself has shown, in its Orders of 8 April 1993 and 13
September 1993, that it clearly was of the opinion that the Federal Republic of the
Respondent did not comply with its duty to prevent genocideunder Article 1of the
1948 Convention. Bosnia and Herzegovinadoes not contend that these orders must
be seen as definitive statements; they are, however, authoritativeprima facie findings
by the "principaljudicial organ of the United Nations", the highestjudicial body at
world level.
29. In its first Order, the Court ordered the Respondent and Bosnia and Herzegovina
"not to take any action" and to "ensurethat no action is taken which may aggravate
or extend the existing dispute" [ICJ Rep., 1993, para. 52B, p. 241.But, significantly,
while this measure was indicated to both Parties, it also decided only vis-à-vis the
Respondent that:
"A. [l] Unanimously,
The Govemment of the Federal Republic of Yugoslavia (Serbia and Montenegro)should
immediately, in pursuance of its undertakingin the Convention on the Prevention and Punishment
of the Crime of Genocide of9 December 1948,take al1measures within its power to prevent
commissionof the crime of genocide;
[2]By 13 votes to 1,
The Govemment of the Federal Republic of Yugoslavia (Serbia and Montenegro)should in
particular ensure that any military, paramilitary or irregular armed units which may be directed or
supported by it, asell as any organisationsand persons which maybe subjectto its control,
direction or influence, donot commit any acts of genocide, of conspiracyto commit genocide, of
direct and public incitementto commit genocide,or of complicity in genocide, whether directed
against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical,
racial orreiigious group.[ibid.].
30. Again, in its second Order of 13 September 1993,the Court reaffirmed al1three
provisional measures indicatedfive months earlier [ICJ Rep. 1993, para. 61, pp. 349-
3501.The main points of its reasoning are as follows:
"52. Whereas, since the Order of 8 April 1993was made, and despite that Order, and despite
many resolutions ofthe Security Councilof the United Nations,great suffering and loss of life has
been sustainedby the population of Bosnia-Herzegovina inrcumstanceswhich shockthe
conscience ofmankind and flagrantly conflict with moral lawand the spirit and aims of the United
Nations;Reply ofBosnia and Herzegovina
53. Whereas, since the Order 8fApril 1993was made, the grave risk which the Courtthen
apprehended of action beingtaken which may aggravate orextend the existing dispute over the
prevention and punishment of the crimeof genocide, or render it more difficult of solution, has
been deepenedby the persistance of conflicts on the territory of Bosnia-Herzegthena and
commission of heinous actsin the course ofse conflicts;
54. Whereas the Security Councilof the United Nationsin resolution 819 (1993) of 16 April
1993 took note of the Court's Order of 8 April 1993 in which the Court indicated that the Federal
Republic of Yugoslavia [Serbia and Montenegro] shoulde al1measures within its powerto
prevent the commissionof the crime of genocide,and whereas the Security Councilin that
resolution reaffirmed its condemnation ofiolations of international humanitarianlaw, in
particular the practiceof 'ethnic cleansing',
(-..>
57. Whereas the Court,while taking into account, interalia, the replies of thetwo Parties to a
question putto them at the hearings as to what stepshad beenby them 'to ensure compliance
with the Court'sOrder of 8 April 1993',is not satisfiedthat al1that might havebeen done has
beendone to prevent commissionof the crime of genocidein the territory of Bosnia-Herzegovina
(...)[ibid, pp. 348-3491.
Consequently,the Court by a majority of 13votesto 2 reaffirmedthe provisional
measures indicatedin paragraphs 52 A (1) and (2) of its Order of 8 April 1993,
which were addressed exclusivelyto the Respondent.
31. This shows clearly that,at the date of its secondOrder, the Cou. was not convinced
that the Federal Republicof Yugoslaviahad taken al1the measures withinits power
to prevent the commissionof the crime of genocide,in particular on the territory of
Bosnia and Herzegovina.
32. To make these findings, the Court reliedin part onseveralresolutionsof the
Security Council whichhad, at the time, already sanctionedthe Respondentfor its
violations of internationalhumanitarianlaw, in particularthe abhorrentpractice of
"ethnic cleansing".
33. In effect, on many occasions,the Security Councilhas called uponthe Federal
Republic of Yugoslavia to prevent genocideand has clearly condernnedboth its
active involvementin the genocide [see: Chapter101and its passivity, that is,its
non-compliancewith its duty to prevent it.
34. Thus, in a seriesof resolutionsbeginningwith Resolution 752 (1992)of 15 May
1992,the Council demandedthat "al1inegular forces in Bosnia-Hercegovinabe
disbanded anddisarmed [United Nations,Securiv Council Resolution752 (1992),
S/RES/752, 15May 1992, para. 51and called upon "al1parties [which clearly
includes the Respondent]and others concerned to ensure that forcible expulsionsof
persons from the areas where they live andany attempts tochange the ethnic Chapter 1- Section 2
TheRespondentSfailure to prevent genocide andrelated acts
composition of the population, anywhere in the former Socialist Federal Republic of
Yugoslavia, cease immediately"[ibid., para. 61.Fifteen days later, it condemned "the
failure of the authorities in the Federal Republic of Yugoslavia (Serbia and
Montenegro), including the Yugoslav People's Army (JNA), to take effective
measures to fùlfill the requirements of Resolution 752 (1992)" [ibid.,para. 11.
35. Significantly, inthis same resolution, the Security Council imposed sanctionson the
Federal Republic of Yugoslavia until it would decide "that the authorities in the
Federal Republic of Yugoslavia (Serbia and Montenegro), including the Yugoslav
People's Army (JNA) have taken effective measures to fùlfil the requirements of
resolution 752 (1992)" [ibid., para. 31.It was not until 13 September 1994that, by
its Resolution 943 [United Nations, Security Council Resolution 943 (1993),
S/RES/943, 23 Sept. 19931,the Council decidedto partially suspend these measures
in view of "the decision by the authorities of the Federal Republic of Yugoslavia
(Serbia and Montenegro) to closethe border between the Federal Republic of
Yugoslavia and the Republic of Bosnia and Herzegovina", thus clearly implying that,
until that date at least, the Respondent had not complied with the requirements of the
resolution and, indeed, as was demonstrated in Chapter 8, it did actually continue in
failing to comply even after that date.
36. Generally speaking, it is also significant that the Council decided to impose sanctions
on the Respondent in response to "ethnic cleansing" that was mainly perpetrated in
Bosnia and Herzegovina. Thus, by its Resolution 819 (1993) of 16 April 1993,the
Security Council reaffirmed its "condemnationof (...the practice of 'ethnic
cleansing"' wnited Nations, Security Council Resolution819 (1993), S/RES/819, 16
Apr. 1993. preamble, para. 51and demanded "thatthe Federal Republic of
Yugoslavia (Serbia and Montenegro) immediately ceasethe supply of military arms,
equipment and services to the Bosnian Serb paramilitary units in the Republic of
Bosnia and Herzegovina" [ibid., para. 31,a demand formally reiterated by the
General Assembly [United Nations, General AssemblyResolution 48/88, 20 Dec.
1993,para. 51.Then, in its resolution 820, it reaffuned that "any practice of 'ethnic
cleansing' is unlawfül and totally unacceptable" [United Nations, Securiy Council
Resolution 820 (1993), S/RES/1993, prearnble, para. 41and expressed "its
condemnation of al1the activities carried out in violation of resolutions 757 (1992)
of 30 May 1992 and 787 (1992) of 16November 1992 between the temtory of the
Federal Republic of Yugoslavia and Serb-controlledareas in the Republic of CroatiaReply of Bosnia and Herzegovina
and the Republic of Bosnia and Herzegovina"[ibid.,preamble, para. 71and imposed
new sanctions on the Respondent.
37. This showsthat the Security Council considered that,in not using its influenceon
the perpetrators of the "ethnic cleansing",the Respondenthad clearly violated its
obligationto prevent genocideand consequently sanctionedit.
38. The General Assemblymade the same assessment. Althoughit clearly consideredthe
Respondent and its surrogates as being mainly responsiblefor the genocide, it also
condemnedthe Respondent fornot usingits influenceon these "surrogates"[see:
United Nations, GeneralAssemblyResolution47/121, 18 Dec. 1992, preamble,para.
10; see also Chapter 10, Section21:
"~he General Assembly:
(...>
Deman& an immediate end to the practice of 'ethnic cleansing',and in particular that the
Government of the former Federal Republicof Yugoslavia (Serbia and Montenegro)ts
injuence with the self-proclaimed Serbian authoritiesin Bosnia and Herzegovinaand Croatia to
bring the practice of 'ethnic cleansing' to an imend and to reverse the effects of this
practice"[United Nations,GeneralAssemblyResolution 47/14 7,18Dec. 1992,
para. 9; emphasis added].
39. Again, by its Resolutionof 3 November 1994,the General Assemblydemandedthat
"the Federal Republicof Yugoslavia (Serbia and Montenegro) uphold its commitment and
obligation to comply with the relevant Security Council resolutions, includi752resolution
(1992) of 15 May 1992,to cease any military and logistic support to the Bosnian Serbs, and
supports theecision of the Councilto automatically terminate the partial suspensionof sanctions
in the event that the Federal Republicof Yugoslaviand not to effectively implementits
decision to close the border betweenthe Republic of Bosnia and Herzegovina and the Federal
Republic of Yugoslavia (Serbia and Montenegro)in accordance with Security Council resolution
943 (1994) of 23 September 1994[United Nations,General AssembIyResolution
49/10, 3 Nov. 1994, para. 131.
It shows clearly that, at least until that date,the General Assembly was convinced
that Respondent hadnot complied with its legal duty to prevent genocide.
40. It has already been demonstratedthat the JNA took a direct part in many genocidal
acts bothbefore and after 19May 1992.Moreover, whenit did not act by itself, it
was generally in a positionto prevent genocidalacts committedby paramilitary
forces and other Serb forces. As notedby the Commissionof Experts: ChapterII -Section 2
TheRespondentSfailure to prevent genocide andrelated acts
"~he JNA (...) has at least tacitly permittedparamilitary units and special forcesto engage in
conduct that resulted in grave breaches of the Geneva Conventions and other violationsof
international humanitarian law.In rnanyinstances, the JNA was on scene and militarily supported
these activities andthese violations. A purposehl failure to act was therefore evidentin many
cases.[United Nations,Final Report of the UnitedNations Commissionof
Experts, Sl19941674lAdd.2(Vol. 1),27 May 1994, AnnexIII, "The Military
Structure, Strategyand Tactics of the WarringFactions",p. 10,para. 341.
41. The Respondent committeditself, in the second declaration adopted during the
London Conferenceof 25 to 27 August 1992, to preventing BosnianSerbs from
seizingterritory and expelling people [Bulletinof the European Community,Vol.
718,1992,p. 82, para 1.4.17,Annex 2771.Such a committment wasclearly not put
into effect,which was describedas an "unacceptablefact" by the European Council
[Bulletinof the European Community, Vol.10, 1992, AnnexII, p. 10,para 1.9,
Annex 2781.
42. In its Helsinki Declarationof 9 July 1993,the CSCE Parliarnentary Assembly,after
deploring the "organized,systematic, and pre-meditatedwar crimes and genocide"in
Bosnia and Herzegovinaand noting that
"~erbia and Bosnian Serbs bearprimas. responsibility" for violationsof CSCE basic principles,
took the view that "the sanctions irnposed against SUNbiSecurity Council must be
maintained with a view to achievinger international isolation ofthe Serbian aggressors andto
motivating themto rnake concessionsin the peace negotiations"2, 3, and 7,].
It is then clear that, accordingto the Parliamentary Assemblyof the CSCE, Serbia
was -to Saythe least -in a positionto put an end to the crimescommitted in Bosnia
and Herzegovina at that date. Moreover,the Yugoslavauthoritiesrefused to allow
the CSCE long-term Missionsin Kosovo, Sandjakand Vojvodinato continue their
work after July 1993. As was recognizedby the Security Councilin its resolution
855 (1993), these missions were essentialto prevent violence against non-Serbson
the territory of the Respondent[Chapter 8, Section 12, para. 71.
43. It can be inferred fiom the Respondent'sCounter-Memorial [seein particular
Counter-Memorial,Sections 1.3.7.to 1.3.13.1that it takes for granted that the whole
internationalcommunitywas wrong, that the Security Council,the General
Assembly,the Commissionof Human Rights, its Sub-Commission,the Special
Rapporteur on Human Rights in the Former Yugoslavia,the Vienna World
Conferenceon Human Rights, the Committeeon Human Rights and the Committee
on the Eliminationof RacialDiscrimation,the European Union andthe C.S.C.E., al1Reply of Bosnia and Herzegovina
erred in their denunciationof the genocidecommittedagainstthe non-Serb
population of Bosnia and Herzegovina and the Respondent's responsibilitf yor it, in
particularsince it had done nothingto prevent it. Unfortunately,as shown above, the
converging analysisof al1these bodies, aswell asthe apprehensionsof the Court in
its 1993Orders, have been confirmedby the facts.
44. Indirectly, the Respondent's Counter-Memorial appears as an admissionof these
facts. In effect, it devotes only one page to examining "the obligation of the State to
prevent genocide" [Counter-Memorial,p. 3 151 and this single pageis entirely
devoted to contending [erroneously -see above,this Chapter, para. 51that a State
Party to the Genocide Convention"is obliged to prevent thecommissionof acts of
genocide in ifs territory" [Counter-Memorial,p. 315, para.4.13.1.3.]. Therefore, it
seriouslymisses the point and showsits incapacityto establishthat it has complied
with itsduty to prevent genocideas embodiedin the 1948Convention.
The Federal Republicof Yugoslavia cannot invokeany excuseor circumstance
precluding wrongfUlness
45. The Respondenttakes care not to invoke expressly extenuatingcircumstances
precluding or mitigatingwrongfulness whichwould be an ever clearer admission of
responsibility for its failureto complywith its duty of prevention. However,in fact,
it tries indirectlytooffer some explanation forthis failure. This is indeed the
apparent main legal purpose of Chapter3 of its Counter-Memorial whereit contends
inter alia that:
- it has "condemned publiclyacts of violencein Bosnia and Herzegovina"
[Counter-Mernorial, Section 3.4.1;
- it has, in particular,tried to convince "Republika Srpska"to accept the Vance-
Owen plan [ibid., Section3.5.1;
-
it has "takenmeasures"vis-à-vis "Republika Srpska"[ibid., Section 3.6.1;
- it has offered shelterto Muslimrefugeesfiom Bosniaand Herzegovina [ibid.,
Section 3.8.1;and
- it has enabled the transport of humanitarianrelief for the population of the
Republic of Bosnia and Herzegovinathrough its territory [ibid.,Section 3.9.1.
46. These allegationshave alreadybeen dealt with in other parts of this Reply [see:
Chapter 10, Sections 1, 2 and 31.Sufficeit to show briefly here that none of these Chapter11 -Section 2
TheRespondenlSfailure toprevent genocide andrelated acls
"defences" amount to prevention of genocide, nor to circumstancesprecluding
wrongfulness.
In Section 3.4. of its Counter-Memorial [pp. 277-2821,the Respondent extensively
quotes statements made by Yugoslav or Serbian officials condemning acts of
violence in Bosnia and Herzegovina and inviting al1"warring parties" to suspend
hostilities. This calls for three main remarks:
- Firstly, most of these statements are directedat "armedhostilities" much more
than at "ethnic cleansing" as such; it can be expected that the drafters of the
Counter-Memorial have searched extensivelyfor al1existing documents of
relevance to this point and it is revealing that only three appear to condemn
explicitly "ethnic cleansing" [Counter-Memorial,paras.3.4.1.1., 3.4.1.2., and
3.4.1.5. to 3.4.1.9.; see below, Chapter 161.
-
Secondi'y,many of the allegations made by the Respondent in this passage are
erroneous or misleading. Thus, it affirms that "the FRY accepted the observers
at its airfields in Batajnica, Kraljevo, Podgorica, Pristina, Surcin, Nis, Ponikve
and Berane, as well as other airfields to which UNFROPOR requested access"
[Counter-Memorial,para. 3.4.1.5., p. 2781;what it omits to recall is that
international observers were not allowed to survey the border in sufficient
nurnber, and that, consequently,the supplies continued massively [see Chapter
10, Section 21.Moreover, the Security Councilhas continuously condemned
the Respondent for its non-compliance with its Resolution 752 (1992) and its
subsequentresolutions demanding the imrnediate cessationof al1outside
interferences in Bosnia and Herzegovinaand for any support to Serb
paramilitary forces [see: this Chapter, paras. 34-37]; in particular, in a
statement made on 17 March 1993,the President of the Security Council noted
that since the prohibition of flights over Bosnia and Herzegovinaby its
resolution 781 (1992), no less than 465 violations of the no-fly zone had been
reported and indicated that:
"~heCouncilhasmandateditsPresidentto convey to the Ministerfor ForeignAf/airs of
the Federal Republic of Yugoslavia(Serbia and Montenandtothe leaderof the
BosnianSerbs itsdeepestconcemabouttheabove-mentioned developments, ndits demand
thattheytakeimmediate actiontoprevenanyrepetitionsof theseattacks[United
Nations, Statement by the President of the Security Council, S/25426, 17
Mar. 1993, emphasis added].ReplyofBosnia and Herzegovina
Thirdly,in any case,the mere fact that, from time to time, officiaisin Belgrade
have paid lip service to condemnationof ethnic cleansingin order to please
internationalpublic opinion certainly cannotbe seen as a defence,since these
statements are clearly contradictedby thefacts: not only has the Federal
Republic of Yugoslavia not prevented genocide[see above in this Chapter],but
it has incited to the commissionof genocide [see Chapter101and has
comrnittedgenocide itself,both directlythrough its organs and through its
surrogates [ibid., Sections1 and 21,or by aiding and abetting itsperpetrators
[ibid., Section31.
48. Moreover,the duty to prevent genocide cannotbe equated with amere duty to
condemn genocide verbally.As recalledby the Court in its Order of April 8, 1993,
States Parties to the 1948Convention "are under a clear obligationto do al1in their
power to prevent" acts of genocide [ICJ Rep., 1993,para. 45, p. 22; emphasisadded;
see alsothis Chapter para. 131.In the circumstancesof the present case,the Federal
Republic of Yugoslavia indeedhad the powerto do much more to prevent genocide
than merely issuingsparseand qualified statementscondemning"ethniccleansing".
However,the Court deemed it necessaryto reiterate its indicationthat the
Respondent must "take al1measureswithin its power to prevent commissionof the
crime of genocide" [IU Rep., 1993,p. 241and to requireeffectiveimplementation
of the measures by the Respondentin its second Order of 13 September 1993[ICJ
Rep. 1993, p. 241.
49. As for the Vance-Owen Plan episode[see: Counter-Memorial, Section3.5., pp. 282-
2871,Bosnia and Herzegovinahas shown in the previous Chapterof this Reply:
1: that the Federal Republicof Yugoslaviain fact exerted a decisiveinfluence
over "Republika Srpska";
II: that this episodewas indeed entirely unique,in the fact that the Respondent
failed to direct its surrogatesto act inonfonnity with its views;and
III: that it is far fiom certainthat the YugoslavGovenunent had not, behind the
scenes acted contraryto its public declarations[see Chapter 10,Section21.
Moreover, andin any event,the Respondent'said to "Republika Srpska",and to Serb
paramilitariesin Bosnia and Herzegovina and Croatia, did notcease after Pale
supposedly refusedto comply with Yugoslav "demands"[ibid., paras. 127-1301,
which shows clearly that the argumentis devoid of any merit [if it must be seen] as
a defence against the accusationof non-prevention. Chapter II-Section2
TheRespondent'sfailure toprevent genocide andrelated acts
50. The Federal Republicof Yugoslaviaalso prides itself on having offered shelterto
Muslim refugees fiom Bosnia and Herzegovina [Counter-MernorialS , ection 3.8, pp.
291-2921.This assertioncalls for only very brief remarks:
Jirstly, the figures are modest comparedto the scale of the tragedy (according
to the Respondent, there have been 18,333Muslimrefugees from Bosnia and
Herzegovinain Serbia) [see:Counter-Memorial, p. 291, para. 3.8.1.1.];
secondly,such offer of shelter mightbe seen as an attempt to "cure"the effects
of genocidebut notto prevent it,while it must bestressed again that the
Respondentwas in a position todo so;
thirdly and most importantly,it veryunfortunatelyappears that the people
which had hopedto escape genocidein Serb-controlledareas in Bosnia and
Herzegovinaand to find shelter in Serbia have beendrarnaticallydisappointed.
51. As a matter of fact, these so-called "refugees"were packed in camps where they
were ill-treated and sometimes killed.Thus, the HumanitarianLaw Center, a
respected Yugoslav citizens'organisationbased in Belgrade, concludes a very
documented and carefully drafted study devotedto "Violationsof Refugee Rightsin
Serbia and Montenegro",by writing: "[tlhe HumanitarianLaw Center has on record,
especiallyfor Serbia,many cases of seriousviolationsof refugee rights. Among the
gravest are the massive return of refugeesfrom the border, expulsions, including
unlawful deportations,and arrests and trials" [Spotlight Report,No. 20, Oct. 1995,p.
14,Annex 2791as is clear from the text, these conclusions applymainly to Muslim
refugees [see also "Harassmentof Moslemsin Serbiaand Montenegro",Spotlight
Report, No. 4, 10 May 1993,Annex 2801.This was, for instance,the case for the
refugees from east Bosnia and Herzegovinain Montenegro,who were illegally
arrested and taken back to Bosnia, to a prison campin FoEa[see: Chapter8, Section
121.Moreover, campsin the Federal Republicof Yugoslaviawere, throughoutthe
war, used to expel non-Serbsto third countries [ibid.]. This, indeed, hasnothing to
do with preventing genocide;on the contrary, it is part of the whole pattern of
genocide committedby the Federal Republicof Yugoslavia.
52. It isquite extraordinaryfor the Respondentto allege that "[tlhe FR of Yugoslavia
[has enabled]the transport of humanitarianrelief for the population of the Republic
of Bosnia and Herzegovinathrough its temtory" [Counter-Memorial,Section 3.9.,
pp. 292-2931.In reality, the Respondent has been repeatedly and strongly condemned
by the Security Council for its prevention,both directly and through its surrogates in
Bosnia and Herzegovina andin particularthrough the Serbparamilitaryforces, ofReplyofBosnia and Herzegovina
humanitarianrelief being conveyedto Muslimpopulationsin Bosnia and
Herzegovina [see e.g.: UnitedNations, Security Council Resolution 770 (1992),
SlRES1770,13Aug. 1992;or Resolution 819 (1993), S/RES/819, 16 Apr. 1993;and
United Nations, Statement by the President of the Security Council, SI25162,25 Jan.
1993; S125302,17 Feb 1993;S125334,25 Feb. 1993;S125302,26 Feb. 1993;
925520, 3 Apr. 1993;S126134,22 July 1993;etc.].
53. The fact is that, in spite of its denials, the Federal Republicof Yugoslaviahas not
made the slightest effortto prevent genocide.This is only logical: one cannot at the
same time commit genocide and preventit. It appears, therefore,with stark clarity
that the Respondenthas failed to complywith one of the most importantduties
incurnbent uponStates Parties to the GenocideConvention and is fully responsible
for this undeniable failure.
3. The Federal Republic of Yugoslavia'sfailure to punish genocideand related
acts
54. As recalled above [Section 1,para. 21,the Respondent seemsto accept that it has a
duty, under the 1948Convention, topunish the crimeof genocide. However, here
again, it endeavoursto interpretthis duty in the most narrow sense.It therefore
seems indispensableto ascertainthe meaningand scope of this obligationbefore
showing that the FederalRepublicof Yugoslaviahas not complied withit.
Meaning and scope of the duty topunish genocide under the 1948 Convention
55. As a matter of principle, the obligationto punishthe crime of genocideis provided
for in a general form by Article 1of the Convention:
"~he Contracting Parties confirm that genocide, whether committed in tiorin timof
war, is a crime under international law which they undertake (..[Genocideish."
Convention, Art. Il.
However, while the duty to prevent genocideis not specifiedby the Convention,the
duty to punish is explainedand elaboratedupon in Articles IV, V and VI.
56. Curiously,the RespondentmentionsArticles V andVI [see: Counter-Memorial,para.
4.1 1.1.2., p. 312; and Counter-Memorial,Sections4.15 and 4.16, pp. 316-3171but is
mute regarding Article IV of the Convention.This mutenessis highly surprising Chapter 11-Section 3
TheFederal Republic of Yugoslavia'sfailure
to punishgenocide andrelated acts
since this provision is so evidently relevant tothe interpretation of the duty to
punish.
57. Article IV of the Convention providesthat:
"~ersons committing genocide orany other acts enumeratedin AIIIshall be punished,
whether they areonstitutionallyresponsible rulers, public officialsor private individuals."
58. Article IV is important since it makes clear that as the Court recalled, it
"contemplatesthe commissionof an act of genocideby 'rulers' or 'publicofficials"'
[Judgment of 11 July 1996, para. 321,who must bepunished as well as private
persons. Moreover,the expression "responsible rulers" was discussed during the
travauxpréparatoiresand it must be inferredfrom the debate in the Sixth
Committee of the GeneralAssembly,that it must be interpretedin a broad sense [see
e.g. G.A.O.R., Sixth Committee, Ninety-second and Ninety-third meetings, 5 and 6
November 1948, pp.301-3221.Ttappears,therefore, that it is incumbent upon the
Federal Republicof Yugoslavianot only to punish private individualswho have
committed genocideand related acts, butalso "responsible rulers"in the broad sense,
including its own Head of State, the Serbian Presidentor other officials, such as
Ministers or Membersof Parliament,who as shown in Chapter 10 of this Reply,
have incited to genocideandlor have been accomplice to genocidalacts [see Chapter
10, e.g. paras. 12, 15, 31, 35, 51, 65, 66, 71ff., 1321.Similarly, this provision makes
it clear that the Respondent cannot allege thatit cannot punish membersof the so-
called "govement" in Pale under the fallaciouspretext that "Republika Srpska" is a
sovereign State (quod non) [see: Chapter 10,paras. 81ff.]: whatever the legal status
of these "officials",the Respondentwas andis under a duty to punish them if they
are responsiblefor acts listed in ArticleIII and if it is in a position to to do so.
59. This raises, however, a more general question. Commenting on Article VI of the
Convention, the Respondent repeatedly asserts:
- that a State Party to the Genocide Convention must"try punishable acts
committed in the territory of that State"[Counter-Mernorial,para. 4.14.1.2., p.
316, emphasisadded], or
- that "the State on the territory of which a punishable acthas been cornmittedis
obliged to punish the perpetrators"[ibid., para. 4.15.1.2.1,thus clearly implyingReply of Bosnia and Herzegovina
that a State has no duty to punishthe authorsof genocidalacts comrnitted
outside its territory.
60. To support this assertion,whichhas alreadybeen comrnented uponabove baras. 4
to 91with regard to both its duty to prevent and to punish genocide, the Respondent
invokesthe rejection in the Sixth Comrnitteeof the GeneralAssembly in1948of an
amendmentproposed by Iran institutingthe principle of universalpunishrnent
[Counter-Memorial,para. 4.15.1.3 .,p. 3171.This is quite a distinct question which,
in fact, is essentially dealt with in the secondparagraph of Article VII.
61. Indeed, as the Court has noted, "as to the territorial problemslinked to the
application of the Convention, (...the only provision relevant to this,Article VI,
merely provides for persons accusedof one ofthe acts prohibitedby the Convention
to 'be tried by a competenttribunal of the Statein the territory of which the act was
committed'(...)" [Judgmentof 11July 1996,para. 311.But this is the only provision
which, so, restricts the territorial scope of the obligation to punish genocide.
62. Neither,
Article 1,which imposes upon the Contracting Parties a very general duty to
punish,
nor Article V, whichprovides that the Contracting Partiesmust enact "the
necessary legislation (...)to provide effective penaltiesfor persons guiltyof
genocide or any of the other acts enumeratedin Article III",
nor the other element of Article VI, which contemplates triaiof persons
charged with these same acts "by such internationalpenal tribunal as may have
jurisdiction with respect to those Contracting Parties which shallhave accepted
its jurisdiction",
nor the secondparagraph of Article VI1accordingto which "[tlhe Contracting
Parties pledge themselves (...to grant extraditionin accordancewith their laws
and treaties in force", are thus territorially limited.
There is no doubt that they must not be construedasbeing thus limited.
63. Bearing in mind the object and purpose of the Convention,the Courthas recalled
that
"therightsandobligationsenshrinedbytheConventionarerightsandobligatioerga omnes.The
Courtnotesthat theobligationeachStatethushasto preveand topunis he crimeof genocide ChapterII- Section 3
TheFederal Republicof YugoslaSifailure
to punishgenocide andrelated acts
is not territoriaily limited by the Co[Judgmentof 11 July 1996,para. 31,
emphasis added] .
64. This clearly means that even if the Respondentis not obligatedto have its own
courtsjudge persons guilty of genocide if the acts and related acts have not been
committed in its territory (but it hasuch an obligation for the acts that have been
committed in its territory- and many have been)[see e.g. Chapter 8, Section 12, and
Chapter 10, paras. 46-49], it is certainly not prevented fromdoing so. Furthermore,
even if it does not prosecute perpetratorsin its own courts, it nevertheless has a strict
obligation to punish them either by extraditingthem or by transferring them to the
InternationalCriminal Tribunal for Former Yugoslavia establishedby Resolutions
808 (1993) and 827 (1993) of the Security Council.
65. It must be recalled in this respect that according to Article 4, paragraph 1, of its
Statute, the International Tribunal has "the powerto prosecute persons cornrnitting
genocide" as defined in the two subsequent paragraphs whichreproduce verbatim the
provisions of Articles II and III of the 1948 Convention.The Tribunal therefore
appears as the "internationalpend tribunal" provided for in Article VI of this sarne
Convention.
66. The Respondent does not appearto deny this lastpoint since it prides itself on
having deferred one individualto the ICTFY upon requestof Trial Charnber1 [see:
Counter-Memorial,Section 3.10., pp. 293-2941.Although this person was charged
with serious violations of humanitarian law and not with genocide,this seems to
imply that the Respondent acceptsthat it is under a duty to defer persons charged
with any of the offenses provided for in Articles 2 to 5of the Statute of the
Tribunal, al1the more since the Tribunal is free to change the terms of the
indictment, Le., in particular, to sue an individual charged withcrimes against
humanity or serious violations of humanitarian law for a crime of genocide [see e.g.,
ICTFY, Trial Chamber 1,Review of the Indictement Pursuantto Rule 61 of the
Rules of Procedure and Evidence,Prosecutor v. Dragan Nikolii, Case No. IT-94-2-
R61, 20 Oct. 1995,p. 20, para. 34infine; ICTFY, Trial Chamber 1,Review of the
Indictments Pursuant to Rule 61 of the Rules of Procedure andEvidence, Prosecutor
v. Radovan KaradZiCand RatkoMladii, CaseNo. IT-95-5-R61 & No. IT-95-18-R61,
11 July 1996, paras. 92-95].
67. In short:RepIyofBosniaandHerzegovina
1: the obligation to punish is not territoriallylimited by the Conventionand the
Federal Republic of Yugoslavia has a duty to punishal1the authors of
genocidal or related acts,whetherthese acts have been committedin its
territory or abroad, whether they are its nationalsor not, and whether they are
public officiaisor private individuals;
II: one means of punishingthese personsis to have them tried by Yugoslav
courts;such trials are compulsoryif genocideor the other enumerated acts
have been committedin the territory of the Federal Republicof Yugoslavia
(except if the accused is transferredto the ICTFY uponits request);
III: however, if the persons charged with these acts are not tried by a national
tribunal, the obligation to punish themdoesnot disappearand the Respondent
is bound either to extraditethem or to defer them to the ICTFY.
68. It is crystal clear that the Respondenthas not complied withits obligationto punish
incumbent on it by the Genocide Convention.
TheRespondenthas not compliedwith its dutyto punish
69. It is apparentfiom the record that theFederal Republicof Yugoslaviahas not
punished the authors of acts of genocide and otheracts enumeratedin Article III of
the 1948 Convention, such as conspiracy to commit genocide, incitement to genocide
or complicity in genocide,even when these acts have been committedin its territory.
Nor has it punished the persons who havecommittedthese acts abroad, in particular
in the territory of Bosnia and Herzegovina, whenit has been in a positionto do so.
Nor has it cooperatedwith the InternationalCriminalTribunal in The Hague.
70. It is highly revealing that the Yugoslav Counter-Memorialdoes not mention any trial
against an alleged perpetrator of genocidalacts conductedin a Yugoslavcourt. And,
indeed, very few sourceshave reported about prosecutionin the Federal Republicof
Yugoslavia of crimes related to genocideagainstnon-Serbs [see Chapter 161.
71. The most important sourcein this respectis the report by HumanRights
WatcWHelsinkion "War Crimes Trials in the Former Yugoslavia",dated June 1995
["Former Yugoslavia,War Crimes Trials in the Former Yugoslavia",HumanRights
WatcWHelsinki,Vol. 7, No. 10, Annex 2811. Firstly,this neutral source explainsthat
"the govemment of the Federal Republicof Yugoslavia andthe governmentof the
Republic of Serbia have heldfew warcrimes trials of 'enemyforces', membersof
the Yugoslav ArrnySerbianparamilitariesor Bosnianand CroatianSerb soldiers Chapter II-Section 3
TheFederal Republicof Yugoslavia'sfailure
topunish genocide and related acts
transiting through or visiting the FRY" [Ibid.,p. 38, Annex 2811.Secondly, the
report describes the rare cases concerningcrimes againstnon-Serbs, which are never
qualified as genocidal acts.
72. Only two such cases are mentioned:the LukiCcase and the DuSanVuCkoviCc .ase.
Both cases reveal the artificialcharacterof the "prosecution".
73. Milan LukiC.was a volunteer soldierin a paramilitary group, allegedly responsible
for an attack against non-Serbcivilianstravellingby train fiom Belgradeto the
Montenegrinport of Bar, passing through aportion of Bosnianterritory. As the
attack, accordingto Serbian authorities,took place on the territory of Bosnia and
Herzegovina,he was "extradited" tothe "Republika Srpska". Hewas never taken into
custody by the Bosnian Serb authorities and,reportedly, now owns a cafe in
ViSegrad,where he was also responsible forthe rape of women in the Vilina Vlas
Hotel. Human Rights WatcWHelsink Si report concludesthat "the Serbian
governrnent'sarrest and subsequentextradition of LukiC.is a sham and a mockeryof
judicial process" [Ibid., p. 40, Annex2811.
74. DuSanVuëkoviC.was the first Serbian soldierto be tried in the Federal Republicof
Yugoslavia for war crimes. He was indictedfor killing sixteen civilians and
wounding anothertwenty in June 1992in Celopek (in Bosnia and Herzegovina),and
for raping a woman living near Mali Zvornik, in Serbia. His trial began on 22
November 1994in the town of Sabac, Serbia. Accordingto a neutral observersent
by Human Rights Watch, "the prosecutor'squestionswere formulated in such a way
so that the answers were morevaluable for the defensethan for the prosecution's
case" and "[tlhe feeble presentationof his case was so blatant that even the defense
attorneys beganto laugh" [Ibid.,p. 43,Annex 2811.The trial was postponed afirst
time, resurned in February 1995,and was then postponed indefinately.
75. Other sources mention only one othercase, the trial of Milika Ceko DaCeviC.He was
a leading member ofthe ultra-nationalist Serbian RadicalParty and participatedin
ethnic cleansing operationsin Serbia, Montenegro andBosnia. He was tried only
when the relations of his party with President Milosevicstarted to sever. He was
found guilty of staging an armed rebellionin San& (a region in Serbia densely
populated by Muslims) butthe year-long sentence wascommutedby a district court
judge in order to allow him to take a seatin the Federal Parliament [Patrick Bishop,
The Telegraph, 27 Feb. 1993,Annex 2821.RepIy of Bosnia and Herzegovina
76. Similarly,the Federal Republic of Yugoslavia has neither prevented[see above, para.
261nor punished public incitement to hatred against non-Serbs, while Yugoslal aw
forbids incitement to racial or national hatred.As noted by Special Rapporteur
Tadeusz Mazowiecki, "prosecutionsare not normally brought againstthe authors of
writings and speecheswhich incite nationalor racial hatred" [UnitedNations,
Situation of Human Rights in the territory of theformer Yugoslavia,Fzph Periodic
Report submittedby Mr. TadeuszMazowiecki,Special Rapporteur of the Commission
on Human Rights, ElCN.411994147,17Nov. 1993,p. 26, para. 1791.Conversely,
investigationswere conducted against journalists who reported on violence against
non-Serbs, such as Haroun Haduc, former Presidentof the SandzakCornmitteefor
the Defense of Human Rights [ibid.].
77. It almost goes without saying that afortiori genocidalacts committedby
"responsible rulers" and "publicofficials"of "RepublikaSrpska"or by members of
Serbianparamilitary units in Bosniaand Herzegovinastill go unpunished,even
though these individualsregularly visit or reside in the Federal Republicof
Yugoslaviaitself [see belowparas. 81-82].
78. As explained by Judge Hanne Sophie Grevein her report aboutthe Prijedor area:
"~umerous reports relate to violence and abuses committedby pararnilitary or irregular military
units or armed bandits. Local Serbian authoritiestime and again emphasize thatthese groups are
notunder their command or control. However, thesaid groups are only uncontrolledin that they do
not attack Serbs without facing charges and trials.Onoccasions, it has been reportedthat
Serbian police, when calledupon during and after incidents where the victims are non-Serbs, have
done nothing to stop the perpetrators orto secure any evidence. The police have only told the
victims that they must understand that there is no protection for non-Serbsin the Serbian-controlled
community and that they had better leave itaspossible. Sometimes the perpetrators are
said to be Serbian policemen. Whether premeditated ortacitly tolerated, the Serbian leadersde
facto accept the activitiesof the groupsas an instrument tofürther some overall Serbian ambitions.
The sarne is reportedly the case when individual Serbs commit crimes againstnon-~erbs."
[UnitedNations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. 1),28 December 1994,Annex V, "The Prijedor
Report", p. 118, para. 6231.
Such discriminationbetween Serbs and non-Serbs characterisesthe genocidalintent.
79. Impunity is part of the strategy aimed at encouragingal1types of crimes, including
rape. Accordingto the Amencan citizens'organisationHurnanRights
WatcWHelsinki,"the failure to punishrapists appearsto be as consistent and
widespread as the act of rape itselff ["Bosnia-Herzegovina,Sarajevo",Human Rights
WatcWHelsinki,Vol. 6,No. 15, Sarajevo,Oct. 1994, pp. 12-13, Annex 1371.The Chapter II-Section 3
TheFederal Republicof YugoslaviaSfailure
topunish genocideand related acts
same citizens' organisation, in a report describingatrocities cornmittedin Bosanski
Sarnac,concludes:
"~he public nature of the abuses, and the fiequencywith which they take place indicates that
soldiers and military unitsdo not anticipatedisciplinary action either fiom the international
community or by their superiors. The lack of punishmentof Serbian soldiers for their abuses in
Bosanski Samac and otherreas of Bosnia-Hercegovinaimpliescornplicityon the part of the
civilian, military and police authoritiesof the self-proclaimed 'Republika Srpska'as well as the
rnilitary andcivilian authoritiesin Serbiaproper.ights WatchiHelsinkiis not aware of
any case in which Serbian forces guilty of abuses have beendby their superiors for their
crimescarried out against non-Serb["WarCrimesin Bosnia-Herzegovina: Bosanski
Sarnac", Human Rights WatcWHelsinkiV , ol. 6, No. 5, Apr. 1994, p. 2,
emphasis added, Annex 281.
According to the Commissionof Experts, throughoutthe "RepublikaSrpska" the
police has apparentlynever investigated casesof rape reportedby victims [United
Nations, Final Report of the UnitedNations Commissionof Experts,
Sl19941674lAdd.2(Vol. V), 28 Dec. 1994, Annex IX,"Rapeand Sexual Assault",p.
33-34, para. 143; ibid., p. 27, para. 1091.
80. It is important to note here thatthe "Republika Srpska"was entirely in the hands of
the Federal Republic of Yugoslavia[see Chapter 10, Section 21.From this point of
view, the Respondentmust be held responsiblefor the failure of this "entity"to
punish the authors of genocidaland related acts committedin the Serb-controlled
areas in Bosnia and Herzegovina.
81. Moreover, Serbianparamilitaryforceswere based in the Respondentand their
members travelled freely across theborder [see Chapter 8,Section 7 and Chapter 10,
paras. 65-68]. It is therefore clear thatthese individuals could easilyhave -and
should have- been arrested and tried by the authoritiesof the Federal Republic of
Yugoslavia, which could have easilydone so but consistentlyabstainedfrom taking
such steps. Thus, to take only a few examples:
- Arkan, the notoriousparamilitaryleader, is a Yugoslavcitizen and lives in the
Belgrade area. He was formerly amember ofthe Serbian Parliament andhe is
still politically active in the Federal Republicof Yugoslavia [see above,
Chapter 8, Section 71;
- Vojislav SeSelj,whose sinisterparamilitary activitiesare also detailed above,
has been a memberof the Serbian Parliamentsince 1991 and afterReply of Bosnia and Herzegovina
unsuccessfullycampaigning forthe seat of President of the Republicof Serbia,
was finally made the Deputy Prime Ministerof Serbia in March 1998[see
Chapter 8, Section 71.
- many paramilitaryunits operatedin the Respondent proper,in Vojvodina and
Kosovo [see Chapter 10, para.65; and Chapter8, Section 121,and in the
Sand&&[see Chapter8, Section 121,al1areas with either substantial non-Serb
minorities or outright majorities.
82. Similarly, it is public knowledge thatthe"officials"of the "Republika Srpska"
themselveshave constantly travelled toand from the Respondent withoutbeing
arrested or perceiving threat ofrrest. Thus, the ICTFY established thatboth
Radovan KaradiiCand Ratko MladiC,respectivelythe so-called "President"of
"Republika Srpska"and the "Commanderin Chief' of its "army"have stayed in the
Federal Republicof Yugoslaviaon several occasions[see this Chapter,para. 881.
They were neither arrested nor tried, nor deferred tothe ICTFY onthese numerous
occasions.For example,Ratko MladiCvisited the Federal Republicof Yugoslaviain
June 1997 for his son's wedding [AgenceFrance Presse, June 16, 19971.His
presence was confirmedby MontenegrinInterior Minister Filip Vujanovicin a New
YorkTimesinterview [Jane Perlez,New YorkTimes, 3 Aug. 1997,pp. 2-3, Annex
2831.He retumed without havingbeen arrested.
83. Consideringsuch a generalpattern of irnpunity,it must be admittedthat Bosnia and
Herzegovina has complied with its duty to place before the Courtthe evidence
showingthe Respondent'sfailure to punish genocide[see: Chapter31.It is al1the
more so because:
- firsrly, the evidenceis mainly in the hands of the Federal Republicof
Y ugoslavia andthe "Republika Sprska"authorities;the Applicant hasno access
to it;and
- secondly, it is, indeed, very difficultto prove "negative facts" (here, thatthe
Respondenthas not punishedthe authors of genocide);as has been explained,
"la preuve d'unfait négatifnepeut sefaire directement:elle se ramène
nécessairement à la démonstrationdefaits positifss"("It is impossible to prove
directly a negative fact:such a proof necessarilyamountsto establishing
positive facts") [JeanLarguier, "La preuve d'un fait négatif",Revue
trimestrielle de droit civil, 1953,p. 281. Chapter II-Section 3
TheFederal Republic of YugoslaviaSfailure
topunishgenocide andrelatedacts
The burden rests on the Federal Republicof Yugoslavia to provethat it has punished
the authors of genocide who were within its reach. This it has not done.
84. Not only has the Federal Republicof Yugoslavia notpunished genocide itself, but it
has also consistently failedto cooperate with the ICTFY, thus infringing upon its
obligations under Article VI of the Convention [see above, para. 651.
85. It is well-knownthat the Federal Republicof Yugoslaviarefuses to arrest or transfer
to The Hague persons indicted by the ICTFY, when theyare present on its own
territory.
86. The sole exception (invoked in the Respondent's Counter-Memorialunder Section
3.10, pp. 293-294) is DraZenErdemoviC,a soldier of the Bosnian Serb Army
involved in mass killings during the fa11of Srebrenica. As he was seriously wounded
in Bosnia and Herzegovina,he was transferred to a hospitalin Belgrade (which again
reveals the logistic links between Belgrade and Pale) and then ceded by the Serbian
authorities to the Tribunal. This case is absolutely unique and far fiom significant,
since Drazen Erdemovic is actually a Croatfrom Bosnia and Herzegovina andhad a
minor position in the military hierarchy [see ICTFY, Trial Chamber 1, Sentencing
Judgment, Prosecutor v. DraZenErdemovit, CaseNo. IT-96-22-T, 29 Nov. 1996,
paras. 92-95; and ICTFY, Trial ChamberII, Sentencing Judgment,Prosecutor v.
Drazen Erdemovic, 5 Mar. 1998, para.161.
87. The Federal Republic of Yugoslavia'sfailure to cooperate withthe International
Tribunal has been condemnedon several occasionsby the ICTFY itself, as well as
by other international bodies.
88. Having recouse to the well-known "Rule61" procedure, the ICTFY made this
failure particularly apparentin the KaradVCand MladiCcase. Accordingto Trial
Chamber 1:
"~heTrialChamberbelievesthatRadovanKARAD~ICandRatkoMLADICwereintheFederal
Republicof Yugoslaviaonseveraloccasions.The Prosecutproduced fourlettersseby Judge
AntonioCassese,Presidentof theInternational Tributl,Mr.SlobodanMilosevic,Presidentof
the Republicof Serbia.Inhoseletters,ontheseveraloccasionswhentheaccused wereonthe
territoryof theFederalRepublicof Yugoslavia,PresidentAntonioCasseserequested theassistance
of theYugoslavauthoritiesinrderto executethewarrantsof arrestissuedbytheTribunal.The
lettersrelatedinarticulto:Reply of Bosnia and Herzegovina
-Ratko MLADIC'S stay in Belgrade for medical attention during the second half of September
1995 [letter of 18 September 19951;
-Radovan KARADTIC p'sence at Belgrade on 23 September 1995[letter of 27 September
19951;
-Radovan KARADTIC t'Sto Belgrade for officia1talks with President Milosevicon 24 October
1995 [letter of 23 October 19951;
-Ratko MLADIC'Sstay in Belgrade for medical attention at the end of November 1995 [letter of
29 November 19951;
The Federal Republic of Yugoslavia has never provided the requested assistance as required
according to the terms of Article 29 of the. In addition, the Prosecutor has noted the
presence of the accused in Belgrade onal occasions,particularly, during high levelmeetings
on 3 August 1995,29 August 1995,and 7 February 1996.Furthermore, on 22 May 1996,President
Cassese sent a letter to the President of the United Nations Security Council in which he indicated
that,espite the presence of RMLADIC in Belgrade on 21 May 1996 for the funeral of
General Dorde Dukic, the authoritiesof the Federal Republic of Yugoslavia did not execute the
warrants of arres[ICTFY, TrialCharnber1,Review of theIndictrnentsPursuant
to Rule 61 of the Rules of Procedureand Evidence,Prosecutor v. Radovan
KaradZiCand RatkoMladiC,CaseNo. IT-95-5-R61 & No. IT-95-18-R61, 11
July 1996,para. 991.
It has to be recalledthat both Ratko Mladil.as well as RadovanKarafiil. are charged
with genocide.
89. In other cases too, the ICTFY has clearlydenouncedthe refusa1of the authorities in
Belgradeto cooperate. Thus, in the case of MrkSiC,Radiéand Sljivan~anin,Trial
Chamber1has noted that "the evidenceproducedduring the hearings (...brought
out the fact that themilitaryand politicalresponsibilitiesof the operationderive
fiom very high level of authority" [ICTFY, TrialChamber1,Review of the
Indictment Pursuantto Rule 61 of the Rules of Procedureand Evidence,Prosecutor
v. Mile Mrksic,MiroslavRadic, VeselinSljivancanin("VukovarHospital'i),Case No.
IT-95-13-R61, 3 Apr. 1996, p. 14,para. 351.In the same decision,the Trial
Charnber has taken note of the Prosecutor'sassertion accordingto which: "whena
Governmentgives refuge and supportto crirninals, in the eyes of the world,that
Government toobecomesa criminal,and that is exactly whatthe Belgrade
Government has done in this case" [ibid.,p. 16,para. 401.In its third annual Report
[A1511292,SI19961665,16Aug. 19961,the ICTFYlisted in Annex II al1cases of
non-cooperationof the Federal Republicof Yugoslaviawith the ICTFY.
90. Moreover, the circumstancesof the arrestof SlavkoDokmanovicillustrate the
constant failure of the Federal Republic of Yugoslavia to cooperatewith the ICTFY.
In itsdecision dated 22 October 1997 ona motionfor releaseof the accused,the
Trial CharnberII made clear that: Chapter II -Section 3
TheFederal Republic of YugoslaviSfailure
topunish genocide andrelated acts
"~he FRY has failed to pass implementing legislation that wouldpermit it to fulfil its obligations
under Article29.It has taken the positionthat its constitution bars the extraditionof its nationals to
the Tribunal, andthus legislation whichprovides for the surrender of Yugoslav nationals would be
unconstitutional. However,
there existsin international law a universally recognized principle whereby a gap or deficiencyin
municipal law,or any lackof theecessarynational legislation,does not relieve States and other
internationalubjects fiom their international obligations; consequently, no internationallegal
subject can plead provisions of national legislation, or lacunaein that legislation,to be absolved of
its obligations; when theydo so, they are in breach of those obligations.
The approach taken by the FRY is also in direct conflict withRule 58 of the Rules, which provides
that the obligationto surrender accused persons shall prevail over any national legislation."
[ICTFY,Trial ChamberII, Decisionon the Motion for Release by the Accused
Slavko Dokrnanovic,Prosecutor v.SlavkoDokmanovic,Case No. IT-95-13a-
PT, 22 Oct. 1997,pp. 18-19,para. 391.
Consequently,it was not possible toarrest the accused, who moved fromEastern
Slavonia in Croatiato Somborin Serbia between April and July 1996, most likely to
escape arrest by United Nations forces. They couldonly arrest him when Mr.
Dokmanovic re-entered the areaunder its administration.The ICTFY thus recognized
that Rule 59 bis "was appropriate" forthe arrest [ibid., p. 21, para. 421,even if Rule
55, which provides for transmission tothe "authoritiesof the State inwhose territory
or under whosejurisdiction or controlthe accused resides", has not beenused before.
According to Trial ChamberII, transmissionof the arrest warrant to Yugoslav
authoritieswould not have been useful anyway:
"~urthermore, the FRY hasfailed or refused to execute the warrants which remain outstanding for
the arrest of the three CO-accusedin the Indictment against Mr. Dokrnanovic. Considering this
failure, the utilisationof the procedure for arrest contemplatedby Rule very well have
beenan exercise in fitiiit[ibid.,pp. 20-21, para. 421.
It is worth stressing that thefailure of the Yugoslavauthorities to cooperatewith the
Tribunal is so well-knownthat the transmissionof an arrest warrant to them is
consideredas an "exercicein futility"!
91. The French newspaperLe Mondepublishedon 19December 1997a list of al1
persons indictedby the ICTFY, dong with their names and adresses [LeMonde, 19
Dec. 1997, Annex 2841.Most of them were living in the Federal Republicof
Yugoslaviaor in Serb-controlledareas of Bosnia and Herzegovina.Replyof Bosnia and Herzegovina
92. It must also be noted that, during the Daytonnegotiations,the Respondentcommitted
itself internationallyby saying it would "ensurethat the 'Republika Srpska'fully
respects and complieswith the provisionsof the aforementionedannexes(Annex 1-A
and 2)",i.e. the annexes concerning cooperation withthe ICTFY [Letters of 21
November 1995, signedby Milan Milutinovic, Ministerof Foreign Affairs of the
FRY, addressedto the Ministersof Foreign Affairsof the Contact Group:Klaus
Kinkel, German Minister of Foreign Affairs; Hervéde Charette, French Ministerof
Foreign Affairs; Andre Kozyrev,RussianMinisterof Foreign Affairs; Malcolm
Rifkind, British Minister of Foreign Affairs;WarrenChristopher,US Secretaq of
State]. This unilateral act on the part of the Federal Republicof Yugoslavia
constitutes an explicitrecognitionof the fact that the "Republika Srpska"is its
surrogate [see above, Chapter 10, paras.80ff.l. It also makes clear that the
"Republika Srpska's"acts, at least in the matter of cooperation with theInternational
Tribunal, are to be attributedto the FederalRepublicof Yugoslavia. Indeed,the
ICTFY emphasised in the KaradiiCand MladiCcase that:
"~e~ublikaSrpskahasnothonoureditsobligationstotheTribunalwhichalso implies thefailure
of the FederalRepublicofugoslavia.[ICTFY,Review of the IndictrnentsPursuant
to Rule 61 of the Rules of Procedure and Evidence,Prosecutor v. Radovan
Karadz'ii.and RatkoMladik, Case No.IT-95-SR61 & No. IT-95-18-R61, 11
July 1996,para. 1001.
Consequently,the Federal Republicof Yugoslaviais responsiblefor its direct failure
to refer to the ICTFY individuals responsibleof acts of genocide and related acts; it
must also be heldresponsiblefor the failure of "Republika Srpska"to cooperate with
the ICTFY.
93. On many occasions,the ICTFY has vehementlycomplainedabout the total lack of
cooperation on the part of the Respondent.
94. Thus, in his second annual Report, the Presidentof the ICTFY notedthat:
alhe heureuse m cenainsÉtatont refustoutecoopératioÀ. cetégardi,l convientde
mentionneren particulier certs République fédérativYe degoslavie[Serbieet Monténégro]
ainsique certainesautorise factotellesquecellesdesRépubliqueasuto-procladse Krajina
et de Srpska[ICTFY, SecondAnnual Report, N501365; S/1995/728,23 Aug.
1995,para. 1911.
In his address to the GeneralAssemblyon 19November 1996, PresidentCassese
again stressed that: Chapter 1I -Section 3
TheFederal Republic of Yugoslavia'sfailure
topunishgenocide andrelated acts
"(...) some Parties to that Agreement [Dayton] have simply to implement it in a crucial area:
the apprehension of persons indictedby the Tribunal, and theirsurrender to The Hague. This
applies, in particular,to the Federal Republic of Yugoslavia [Serbia and Montenegroa]nd
Republika ~r~ska."[United Nations, Reportof the Secretary General, A/51PV.59,
quoted by the ICTFY, in its Decisionon the Motion for Releaseby the
Accused Slavko Dokrnanovic, op.cit. above para. 86, p. 19, footnoteNo. 421.
95. In its fourth Report, PresidentCassesehas devotedseveralparagraphsto the problem
of the non-cooperationof the Federal Republicof Yugoslaviaand its surrogateswith
the ICTFY. Afier a vehement denunciationof the negativeattitude of "Republika
Srpska" [UnitedNations, Reportof the Secretary-General,Al521375;S119971729,18
Sep. 1997,paras. 185-1871,he noted:
"~e son côté,la Républiquefédérative de Yougoslaviee fait rien pour obliger laRepublika
Srpska à honorer les obligationsde l'Accord de Daytonà quoi elle s'était engaet obligée,et
elle n'a pas adoptéde loi d'exécution en vue de cooperec le Tribunal. En outre, elle a fait
savoir qu'elle n'en avait nullement l'intention. Elle a ostensiblemenntégligéd'arrêter trois
supérieursqui se trouvent surson territ-Mrksic, Radic et Sljivancan-tous accuséspar le
Tribunal en novembre1995 d'être impliquédans la destructionde Vukovar et lemeurtre de 261
hommes nonarmésaprèsla chute de la ville, et visés pardes mandats d'arrêtinternationaux
transmisà tous les États. Les autorités serbes ont égalemendes accusés serbesde Bosnie
comme Ratko Mladic, quifait aussi l'objet d'un mandat d'arrêt internationsael,déplaceren toute
libertésur leur territoire, sans craindre d'être appréhendés.
"En fait, tout comme la Republika Srpska, la Républiquefédérativede Yougoslavie refuse
explicitementd''extrader' de son territoire vers La Haye les personnes accuséespar le Tribunal,
prétendantqu'une telle'extradition' est contraireconstitutionet que les personnes soupçonnées
de crimes de guerre seront jugéessur son territoire plutôt qu'àLa Haye. Inutile de répéterqu'en
invoquant sa constitution, la République fédératde Yougoslavie ne peut s'exonérer d'un tel
manquement à ses obligations, y compris les obligations conventionnelles auxquelleeslle a souscrit
solennellement devant la communautémondialeà ~ayton." [ibid, paras. 188-1891.
96. The General Assembly and the Security Council havealso firmly condemned the
refusal of the Federal Republic of Yugoslavia and its surrogates to cooperate with
the ICTFY and, more generally, its failureto punish theauthors of the genocide.
97. Thus, in its Resolution of 23 December 1994,the General Assemblyboth "condemns
the continued refusa1of the Federal Republicof Yugoslavia and the Bosnian Serb
authorities to permit the Special Rapporteurto conduct investigationsin temtories
under their control" [United Nations, General AssemblyResolution, 491196,23 Dec.
1994, para. 51 and "requests al1 States, in particular the Federal Republic of the
Respondent, to cooperate as required under Security Council resolution827 (1993)Reply ofBosniaandHerzegovina
with the International Tribunal inproviding evidencefor investigationsand trials and
in surrendering persons accused of crimes within the juridiction of the Tribunal"
[ibid, para. 10; see alsoUnited Nations, General AssemblyResolutions,501193and
5112031.
98. The Security Council also demandedthat the Respondent comply withits obligation
to punish the perpetrators of genocide and to cooperate with the International
Tribunal [see e.g. United Nations, Securiw Council Resolutions 1019 (1995),
SlRESl1019, 9 Nov. 1995, para. 8; S/RES/1034, 21 Dec. 1995, para. 121. In
particular, its President declared,on 8 May 1996that the Council was:
"profondémentpréoccupépar les refus récents de coopérele Tribunal international crééen
application de la résolution827 (1993) du 25 mai 1993, enparticulier par le refus de coopérer de
la République fédératee Yougoslavie décrit dansla lettre duil 1996 que le Présidentdu
Tribunal a adresséeau Présidentdu Conseil (~/199[S/PRST/1996/23].
99. Recently, the Ministers of Foreign Affairs of the Contact Group on the former
Yugoslavia (that is, the Ministers of France, Germany, Italy, the Federation of
Russia, the United Kingdomand the United States)have asked:
"instamment à la Croatie ainsi qu'à la République fédérale de Yougoslavie de respecter pleinement
leurs engagements aux termes des accords internationaux eten tant que garants de l'Accord de paix
de Dayton. Leur refus permanent de coopérer pleinementà la remise des personnes accuséesde
crimes de guerre au Tribunal de La Haye est un grave motif d'inquiétudet'k, 24
Sep. 1997,Documentsd'Actualité Internationale,1997,No. 22, p. 802, Annex
2851.
100. In the present Chapter, Bosniaand Herzegovinahas made clear that:
-
the Federal Republic of Yugoslavia is under a strict obligation to prevent and
punish genocide whereverit takes place with al1legal means at its disposal;
-
despite this obligation, the Federal Republic of Yugoslavia failed to prevent
genocide whereas it was in a position to do so, considering both its
geographical position and its control over "Republika Srpska" andover the
Serbian paramilitaryforces;
- the Federal Republic of Yugoslavia's failure to prevent genocide has been
recognized and condemnedby the internationalcommunity;
- the Federal Republicof Yugoslavia cannot invoke any excuse or circurnstance
precluding wrongfulness; Chapter II- Section 3
TheFederal Republic of YugoslaviaSfailure
to punishgenocide andrelated acts
the Federal Republic of Yugoslavia also consistently failed to punish genocide,
both by its refusal to prosecute persons allegely responsible for genocidal acts,
and by its lack of cooperation with the ICTFY;
the Federal Republic of Yugoslavia is also responsible for the failure of the
"Republika Srpska" to prosecute these sarne persons and to cooperate with the
ICTFY;
the failure on the part of both the Federal Republic of Yugoslavia and the
"Republika Srpska" to punish genocide has been recognized and condernned by
the international comrnunity. PART N
REMEDIES
CHAPTER12
INTRODUCTORYAND PRELIMiNARYOBSERVATIONS
1. Introduction
1. In the submissionspresentedin the Memorial, Bosniaand Herzegovina has described
the remedies sought beforethe Court [Memorial,p. 293-2951.
2. In this Part, the Applicant will thoroughlyanalyzethese remedies and establishtheir
legal basis. Asit will be hereinafter explained, Bosnia andHerzegovinaseeks a
primary means of satisfactionin a declarationfiom the Court that the Respondentby
its conduct as describedin the previous pages, has violated and,in some respects,
continues toviolate its legal obligationsunder the GenocideConvention.However,
in as much as the Respondenthas causedenormousmaterial and immaterial darnages
to the people and the State of Bosnia and Herzegovina andis continuing, in some
respects, its unlawful conduct,the Applicant alsorespectfullyrequests the Court to
adjudge and declare that the Federal Republicof Yugoslavia hasthe obligationto
make full reparation to Bosnia and Herzegovina foral1injury causedby its illegal
acts and to cease its violationsof the Convention.
3. The Applicant reiterates its request, containedin submissionNo. 7 of the Memorial
[Memorial,p. 2941, to reserveto a subsequent phaseof the proceedings the
determinationof the exactarnountof the reparations owedby the Respondentas a
result of the internationalresponsibilityincurredfor its violations of the Genocide
Convention.In the Fisheries Jurisdictioncase, the Court stated that:
"[iltis possibleto requesta generaldeclaratiogheprinciplethatcompensationis due,
provided theaimantaskstheCourtto receive evidenceto determine,in a subef thetphaso
sameproceedings, amountof damageto be assess[FisheriesJurisdiction (FederalReplyof Bosniaand Herzegovina
Republic of Germany v. Iceland), Merits, Judgement,ICJ Reports 1974, p.
2041.
4. This way of proceeding has already been followedby the Court in severalcases [see,
for example: Corfu Channel,Judgement of April 9th, 1949, IU Reports, 1949,p. 26;
UnitedStates Diplornaticand ConsularStaJfjrinTeheran (United States of America v.
Iran), Merits, Judgement,I.C.J. Reports 1980,p. 46; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. UnitedStates of America), Merits,
Judgement, I.C.J. Reports 1986, pp. 142-143and 1491.The Applicant considersthis
also to be the most appropriatein the present instance.
2. General internationallaw is applicable for the determinationof the legal
consequences of the internationally wrongful acts committed bythe Respondent
5. The Genocide Conventioncontainsno provision concerningthe consequencesof its
violation by the High ContractingParties. This must obviouslynot be read as
excluding Stateresponsibilityfor breachesof the Convention.It is self-evident that a
State continuously violating a nom has the obligation tocease its illegal conduct.
Moreover, as was establishedby the Permanent Courtof InternationalJustice:
"the breach an engagement involves an obligationto make reparation in an adequate form.
Reparation therefore is the indispensable complementof a failure to apply a convention and there is
no necessity for thisto be stated in the convention itself."at Chorzbw,
Jurisdiction, Judgement No. 8, 1927, P.C.I.J., SeriesA, No. 9, p. 211.
6. In deciding the legal consequencesof the wrongful acts committedby the
Respondent,the noms of generalinternationallaw concerning State responsibility
are to be applied. As the Court itselfhas recently stated:
"anevaluation of the extent to which the suspension or denunciationof a convention,seen as
incompatible with thew of treaties, involvesthe responsibilityof the State which proceededto it,
is to be madender the law of State responsibility.(...) It is moreover well established that, when a
Stateas committed anintemationally wrongful act, its international responsibilityis likely to be
involved whatever the nature of the obligation it has failed to respectkovo-
Nagymaros Project (Hungaryv. Slovakia),Judgement, 25 September 1997,
para. 471.
7. Similarly, in a case opposingNew Zealand and France on the alleged violationby
France of an Agreement concludedafter the well-knownRainbow Warriorincident,
the Arbitral Tribunalhad to decide inter alia on a dispute concerningthe law
applicable to the case, whetherthe law of treatiesor the law concerning State Chapter 12- Section2
General international lawis applicable for the
determinationof the legal consequencesof the
internationallywrongFtlacts committedby the Respondent
responsibility.In affirmingthat both were relevant in that specificcase, the Tribunal
noted that:
"the legal consequencesof a breach of a treaty, including(...) the appropriate remedies for breach,
are subjects that belongto theomary Law of State Responsibility.
The reasonis that the general principles of International Law conceming State responsibility are
equally applicable in the case of breach of treaty obligation, since in the internationalfield there is
no distinction between contractual and tortious responsibility,so that any violation by a State of
any obligation, of whatever origin, gives rise to State responsibiliîyand consequently, to the duty
of reparation[Rainbow Warriorcase (New Zealandv. France), ArbitralAward,
30 April 1990, in InternationalLaw Reports (Cambridge), Vol.82 (1990), p.
499, para. 751.
8. The noms concerning Stateresponsibility havebeen developedby nurnerousjudiciai
decisions,including some veryimportant ones issued by this Court, and by an
extensivelegal literature.In the Applicant's opinion,specialreference oughtto be
made to the relevant worksby the InternationalLaw Commissionwhich have ledto
the provisional adoption, on first reading in 1996,of Draft Articleson State
Responsibility,which essentially intend to codifi general international lawin this
field [UnitedNations, Report of the InternationalLaw Commission tothe General
Assembly, 1996, Doc. Al51/10,pp. 125-1511.The Courtitself, in the recent
Gabcikovo-NagymarosProjectcase, hasmade extensive referenceto the
aforementioned DraftArticles [Gabcikovo-NagymarosProject(Hungaryv. Slovakia),
Judgement, 25 September1997, for exarnpleat paras. 47, 50, 51,52, 54, 57,79, 831.
3. Genocide is a particularlyserious internationallywrongful act which entails a
special regime of State responsibility
9. It is importantfor the Applicantto recall, at thisstage, the gravity of the
international wrongful acts cornmittedby the Federal Republic of Yugoslavia.
Genocideaims at the destructionof entirehuman groups and,as such, it
"shocksthe conscience of mankind, results in great losses to humanity (...) and is contrary to moral
law and to the spirit and aimsof the United Na[UnitedNations, GeneralAssembly
Resolution 96 (1)of 11 December 1946,ResolutionsAdopted by the General
Assembly duringthe SecondPart of its First Session,23 October-15December
1946, pp. 188-189;see also the Preambleof the Genocide Convention andthe
dicta by this Court in Reservations tothe Genocide ConventionA , dvisory
Opinion,1C.J Reports 1951, p. 23, also cited in this case:Applicationof the
Conventionon the Prevention andPunishment of the Crimeof GenocideReply of Bosnia and Herzegovina
(Bosnia and Herzegovinav. Yugoslavia),PreliminaryObjections, Judgement,
11 July 1996,para. 311.
The International LawCommissionhas expressly qualified genocide as an
"international crime of State" in Article 19,paragraph3 (c) of the Draft Articles on
State Responsibility to denote its particulargravityas an internationallywrongful act
which "results from the breach by a Stateof an internationalobligation (...essential
for the protection of fundamental interestsof the internationalcornmunity"[see
Yearbook of the InternationalLaw Commission,1976, Vol. II, Part 2, pp. 95 and
1211.It must be noted that, in so doing,the Commission intended tocodzfi the
existing general international lawon State responsibility [ibid.,especiallyat p. 1211.
Moreover, by its very own nature and as another indicationof its gravity, genocide
causes enormous damagesto the victims, individualsand States: as it has been
proven in the previousChapters, this wasalso the case forthe illegal acts committed
by the Respondent.
10. The aforementionedrepeated declarationson the gravity of genocide cannot go
unheeded. They must be reflected in the regime of responsibility appliedto a State
having committed such horrendousacts. As the InternationalLaw Commission
recently stated, concerningthe "international crimesof State", of which genocideis a
prime instance:
"Theeffect of the introducnf artic19of PartOnehasbeento recognizea categoryof
wrongfulacts to which,causeof theirseriousness,specialconsequencesshouldattach.Whether
thatcategoryisalled'crimes',or 'exceptionallygravedelicts'is immaterialin thesensethat,
however tenned,special consequenshouldattach:otherwisethereis nopointin distinguishing
thiscategoryfromotherintemationaiwrongfulacts.[UnitedNations, Report of the
InternationalLaw Commissionto the GeneralAssembly, 1996, Doc. Al5111 0,
p. 1651.
11. Therefore, the Applicant considersthat the gravityof the unlawful acts cornmittedby
the Federal Republicof Yugoslavia shouldbe reflected in the amount of the damages
to be paid. That gravity should alsoensure that the Respondent notbe allowedto
avail itself of certain limitationsto its responsibility;on the contrary,the Respondent
should, as far aspossible and withoutrestrictions,remove al1the consequencesof its
internationally wrongful acts [seebelow, Chapters13 and 14 and articles 51 and 52
of I.L.C.'s Draft Articles on State Responsibility,in United Nations,Report of the
international Law Commissionto the General Assembly,1996, Doc. Al51110,p.
1461. Chapter 13 -Section 1
Thejudgment of the Courtas a primary means of satisfaction
The Applicant also wishes to point outthat this conclusion does not in any way
modify its previous statementthat the current proceeding is not a criminal trial and
that the responsibility of a State for an exceptionally grave breach such as genocide
is not criminal responsibility, but a "specialform" of international responsibility
[Memorial, Section 5.3.2., pp. 209-213, and particularlyI.L.C.'s Special Rapporteur,
Roberto Ago's statement reproduced ibid., p. 211; see also above, Part 1, Chapter 21.
CHAPTER13
SATISFACTION
1. The judgment of the Court as a primary means of satisfaction
1. In submissions No. 1to 4 of its Memorial, the Applicant requested the Court to
adjudge and declare that the Respondentby its conduct has violated and, under some
aspects, continues to violate its legal obligationsunder the Genocide Convention.
Specifically, the Applicant requested the Courtto adjudge and declare:
"1.That the Federal Republic of Yugoslavia (Serbia and Montenegro), directly, or throuesethu
of its surrogates, has violatedand is violatingthe Convention onthe Prevention and Punishment of
the Crime of Genocide, by destroyingin part, and attempting to destroyin whole, national, ethnical
or religious groups within the, but not limitedto the, temtory of the Republic of Bosnia and
Herzegovina, including the Muslim population,by:
killing members ofthe group;
causing deliberatebodily or mentalrm to the membersof the group;
deliberately inflicting onthe group conditionsof life calculatedto bnng about its physical
destruction in whole or in part;
imposing measures intendedto preventirths within the group;
2.That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating
the Convention on the Prevention and Punishment of the Crimeof Genocide by conspiring to
commit genocide, by complicity in genocide,by attemptingto commit genocide and by incitement
to commit genocide;
3. That the Federal Republicof Yugoslavia (Serbia and Montenegro)has violated and is violating
the Convention on the Prevention and Punishmentof the Crime of Genocide by aiding and abetting
individuals and groups engagein acts of genocide;
4. That the Federal Republicof Yugoslavia (Serbia and Montenegro) has violated and is violating
the Convention on the Prevention and Punishmentof the Crime of Genocide byirtue of having
failed to prevent andto punish acts of genocide"morial,pp. 293-2941.Reply of Bosnia and Herzegovina
2. The Applicantfully maintainsthat such a declarationby the Court of the
wrongfülnessof the acts comrnittedby the Respondent, as precisely describedabove
in the present Reply,will remove any uncertainSras to the legalstatus of this
conduct and consequently will serve as a primary means of satisfaction.The value of
a declarationof this kind was recognisedby the Courtitself in the Cor- Channel
case:
"THE COURT, (...) Gives judgment thatby reason of theacts of the BritishNavy in Albanian
waters in the course of the Operation of November 12th and13th, 1946, the United Kingdom
violated the sovereigntyof the People's Republicof Albania, andthat this declCourtonby the
constitutes in itseif appropriate sat[Cor- Channel case, Judgment of April
9th, 1949, ICJ Reports, 1949,p. 361.
3. It was also pointed out by the arbitral tribunals in the Carthage and Manouba cases:
"pour le cas où une Puissance aurait mà remplir ses obligations, soit générales, soit spéciales,
vis-à-vis d'une autre Puissance, la conde ce fait, surtout dans une sentence arbitrale,
constitue déjàune sanction séri[Carthage and Manouba cases, UnitedNations
Reports of International Arbitral Awards, Volume XI, p. 460 and ibid., p.
4751;
and in the Rainbow Warriorcase, where the arbitraltribunal, after referring to the
two above mentionedprecedents, reachedthe following conclusion:
o othe foregoing reasonsthe Tribunal:
declares that the condemnation of the French Republic for its breachesof its treaty obligations to
New Zealand, made publicby theecision of the Tribunal, constitutesin the circumstances
appropriate satisfaction forthe legal and moralaused to New ~ealand.[Rainbow
Warrior case (NewZealand v. France), Arbitral Award, 30April 1990,in
International LawReports (Cambridge), Vol. 82 (1990),p. 499, para. 1231.
4. The Applicant is of the opinion that such a declarationby the Court wouldalso serve
other purposes, from a historic point of view andas a valuable contributionto the
reconciliation processin the region; in addition,by clarifjing the normativevalue of
the Convention,it will be extremelyhelpfùl infuturo in the prevention of genocide
[see also above, Chapter 1, Section 11.
5. However, it is necessary in this caseto achieve more thanthese precedentialeffects.
The acts committedby the Federal Republic of Yugoslaviaconstituteexceptionally
seriousviolations of the GenocideConvention;under some aspects, theyare Chapter 13- Sectio2
Other rneansof satisfaction
continuing and in any case they have caused considerablematerial and immaterial
damage to Bosnia and Herzegovina and its nationals. In this sense, the present case is
different notably fiom the Cor- Channelcase, where the violation by the United
Kingdom of Albanian territory and sovereigntyhad caused no material loss [Corfu
Channelcase,Judgmentof 9 April 1949, ICJReports,1949, pp. 32-35]. For these
reasons, the requests contained in the following section and in Chapters 14 and 15
are to be considered as an integral part of the Applicant's submissions.
2. Other means of satisfaction
6. The judgment on the wrongfulness of the acts cornrnittedby the Federal Republic of
Yugoslavia, as requested from the Court in the previous Section, would not exhaust
al1the means of satisfactionthe Applicant considers to be entitled to receive.
Indeed, as it will be precisely demonstratedin the following Chapter, there can be
absolutely no doubt that, as a consequenceof the illegal acts of the Respondent, the
Applicant has the right to obtain full reparation for the damages caused. However,
such a reparation, under the forms of a restitution in kind and of a compensation [as
requested below in Chapter 14, Section 3 respectively Section 41would never "wipe
out al1the consequences of the illegal act" [in the words of the Permanent Court of
International Justice in Factoryat Chorzow,Judgmentof 13 September1928,
P.C.I.J.,SeriesA, No. 17, p. 47; seeMer Chapter 14, Section 21if the moral and
legal damage suffered by Bosnia and Herzegovinawere not taken in full
consideration.
8. The principle according to which reparation may include satisfactionfor the moral
and legal damage suffered by the injured Statehas been applied several times by
arbitral tribunals [see, for instance, the farnousI'mAlone case (Canada v. United
States of Arnerica), Decisionsof 30 June 1933 and 5 Janw 1935, in United
NationsReports of InternationalArbitral Awards,VolumeIII,p. 1609, especially at
p. 16181and in State practice [see, for example, the Ruling by the Secretary-General
of the United Nations, on 6 July 1986, in the first phase of the Rainbow Warrior
case, in UnitedNations Reportsof InternationalArbitral Awards,VolumeXLX;p.
1971.It has also been recently recognisedby the International Law Commission in
its Draft Articles on State Responsibility:
"~rticle 4-SatisfactionRepIyof Bosnia and Herzegovina
1. The injured State is entitledto obtain from the State whichhas committed an intemationally
wrongful act satisfaction for the darnage,in particular moralaused by that act, if andto
theextent necessary to provide full reparation.
2. Satisfaction may tthe form of one or more ofthe following:
a) anapology;
b) nominal damages;
c) in cases of gross infiingement of the rightsnjured State,damages reflecting the gravity of
the infringement;
d) in cases where the intemationally wrongful actfiom the serious misconductof oficials or
fiom criminal conduct of oficials or private parties, disciplinary action against, or punishment of,
those responsible[Article45, paras. 1and 2, in United Nations,Report ofthe
International Law Commissionto the GeneralAssembly, 1996,Doc. A/51/10,
p. 143; seealso its commentary containing athorough research on the topic, in
Yearbook of the International Law Commission,VolumeII, Part Two, 1993,
pp. 76-81].
9. The wrongful acts of an exceptionallyseriouscharacter, comrnittedby the Federal
Republic of Yugoslavia, haveunderminedthe honour,the dignity and the prestige of
the State of Bosnia and Herzegovina. For years, andeven after this casewas
submittedto the Court and after the Court had issued two Orders containinginterim
measures,the Respondenthas repeatedly violatedthe Genocide Conventionon the
territory of Bosnia and Herzegovina, challenging Bosnia and Herzegovina's
sovereigntyover that territory and scorningits authoritiesand its people. Moreover,
in failing to prevent the commissionof genocide,in failing to punish its authors and
by committing itself -directly and through its agents- genocidal acts,the Federal
Republic of Yugoslavia has acted in completedisregard of its engagementstowards
al1the Parties to the Genocide Conventionand the InternationalCommunityas a
whole, andspecificallytowards Bosniaand Herzegovinaas a Party tothe
Conventionand as a member of the International Community.The result is
ovenvhelming: the worst atrocitiesEurope has witnessedsince the SecondWorld
War .
10. Consequently,in additionto the judgment on the wrongfulness of the actscomrnitted
by the Respondent [see above, Section 11the Applicantrequests the Court to take
into account Bosnia andHerzegovina's rightto obtain satisfactionfor the moral and
legal darnagesuffered, also under the following forms.
1 1. First, in as much as the illegal conductof the Respondenthas resulted in a gross
infringement of the rightsof Bosnia and Herzegovina,the Court shouldrecognise
that Bosnia and Herzegovina hasthe right to obtain paymentby the Respondentof
damagesreflecting the gravityof this infringement[see Article 45, paragraph 2, (c) Chapter 13-Section 2
Other means of satisfaction
in I.L.C.'s Draft Articles on State Responsibility, quotedabove]. It must be stressed
that such damageswould not be a compensation forthe materialprejudice caused,
but would have a symbolicnature both in connection with,and as a direct
consequenceof the declarationby the Court thatthe Respondenthas violated -and
continuesto violate- the Genocide Convention[as outlined in the previous Section],
would serve as an appropriatemeans of satisfaction. Aswas clarifiedby the
International Law Commission,this kind of satisfaction isgivento the injured party:
"over and above the actual loss, when the wrongdone was aggravated by circumstances of
violence, oppression, malice, or wicked conducton the part of the wrongdoing
[Yearbookof the International Law Commission,VolumeII, Part Two,1993, p.
791.
The Applicant is convincedthat this descriptionby the InternationalLaw
Commissioncorrespondsexactly to the present case, considering the uninterrupted
repetition of genocidalacts over many years until December 1995,given the clear
pattern of the atrocitiescommitted,and the fact that genocideis qualified asone of
the gravest breachesof international law,shockingthe conscienceof mankind and
contrary to moral law andto the spirit andaims of the United Nations, and
considering Mermore that Bosnia and Herzegovina hasbeen the direct victim of
these violations and that its rights under the Conventionhave been grosslyinfiinged
by the Respondent.
13. Secondly, the Respondent shouldpunish al1its agents (including constitutionally
responsiblerulers and the highest ranked public officials)and al1the private
individualsunder its jurisdiction who have committed genocideor other corollary
crimes in the territory of Bosniaand Herzegovina[see Article 45, paragraph 2, (d) in
I.L.C.'s Draft Articles on StateResponsibility, quotedabove]. The Applicant wishes
to point out that simple disciplinarymesures taken againstthe officials responsible
would not be enough, as the illegalconduct attributableto those individualsis of a
criminal character. Moreover, Yugoslaviahm the means of implementingsuch an
obligation: itsCriminal Code not only criminalisesgenocide [see Institute of
ComparativeLaw, Collectionof YugoslavLaw, CriminalCode (Beograd: 1964),
Chapter 11,Art. 124,p. 751,but also providesthat a citizen of Yugoslaviamay be
punished "whenhe cornmitsabroad a criminal offence" [Ibid., Chapter 8, Art. 93,
pp. 62-63]. Such a punishrnentwould not onlybe the clearest formof disavowalof
the actions of these individuals, butwould also be a re-affirmationof the normative
value of the provisionsof the Genocide Convention.Reply of Bosnand Herzegovina
14. In this respect, it must be highlighted thatthe duty of the Respondent topunish the
individuals responsibleof genocideand corollarycrimes does not only find its source
in the Genocide Convention[as was shownabove in Chapter 11, but also, as shown
here, in the secondarynormof internationalcustomarylaw concerning State
responsibility which establishes anew legal relation betweenthe State having
committed an internationallywrongful act and the injured State. In other words,such
a punishmentwould not only be a way of ensuringfull compliancewith the
obligations of the Genocide Convention-as requestedby the Applicant in its
submissionNo. 5 [Mernorial,p. 2941-but it would also be the fulfilment of the
obligationto provide appropriate satisfaction forthe darnagecaused to Bosnia and
Herzegovina.
15. Furthermore, in as much as there are todayjudicial instancescharged, at the
internationallevel, of prosecutingthe individuals responsiblefor senous violationsof
internationalhumanitarian law comrnittedin the territory of the Former Yugoslavia,
i.e. the ICTFY, the Applicantis of the opinion thatthe Respondent should
implementthe latter obligationby deliveringthe criminalswithin itsjurisdiction or
control to that judicial instance.
16. The Respondent could not invokeanyjustification forthe failure to provide
satisfaction to Bosnia and Herzegovinain the fonns describedabove.Notably,
satisfaction could not be dismissed allegingthat they "impairthe dignity of the State"
[see Article 45, paragraph 3 in I.L.C.'s Draft Articles on State Responsibility].In the
words of the InternationalLaw Commission,by reason of its illegal acts of an
exceptionally serious character, "the wrongdoingState has itself forfeited its dignity"
[UnitedNations, Report of theInternationalLaw Commissionto the General
Assembly, 1996,Doc. A/51/10,p. 168;see alsoArticle 52, (b) of the I.L.C.'s Draft
Articles on State Responsibility,in ibid.,p. 1461. Chapter 14- Section 1
Introductoryremarks
CHAPTER 14
THE DUTY TO REPAIR
THE DAMAGESAND LOSSES CAUSED
1. Introductory remarks
1. In submissionsNo. 6 and 7 of its Memorial,the Applicantrequests the Court to
adjudge and declare:
"6. That the Federal Republic of Yugoslavia (Serbia and~ontenegro) must wipe outthe
consequences of its international wrongful acts and must restore the situation existing before the
violations of the Conventionon the Prevention and Punishment of the Crimeof Genocide were
committed;
7. That,asa result of the international responsibility incurred for theabove violations of the
Convention on the Prevention and Punishmentof the Crime of Genocide [see submissions1,
the Federal Republicof Yugoslavia (Serbia and Montenegro) is requiredto pay, and the Republic
of Bosnia and Herzegovina is entitled to receive,in its own right andastriae for its
citizens, full compensation for thees and losses caused, in the amount to be determined by
the Court in a subsequent phase of the proceedingsin this case."al, p. 2941.
2. The Applicant Mly maintains its request forfull reparationby the Respondentfor al1
material and imrnaterialdamages and losses causedby the violations of the Genocide
Convention.In the words of article 42, paragraph 1of the International Law
Commission'sDraft Articles on State Responsibility:
"~he injured State is entitledto obtain fiom the State which has committedan internationally
wrongful act full reparation in the form of restitution in kind, compensation, satisfaction and
assurances and guarantees of non-repetition, either singlyor in comb[UnitedNations,
Report of the InternationalLaw Commissionto the GeneralAssembly, 1996,
Doc. Al51/10, p. 1411.
Thus, this reparation should assume differentforms, as was requestedabove in
Chapter 13 and as will be describedbelow.Reply ofBosnia and Herzegovina
2. The Respondent is obliged to make reparationfor al1damages caused
3. As was stated by the Permanent Courtof International Justice (and recently recalled
by this Court in the Gabcikovo-NagyrnarosProject case, para. 149):
"~he essential principle containedin the actual notion of an illegalact -a principle which seems to
be established by international practice andinular, by the decisionsof arbitral tribunals- is
that reparation must,so far as possible, wipe outconsequences of the illegal act andre-
establish the situation which would,in al1probability, have existedif the act had not been
committed." [Factoryat Chorzbw,Judgment of 13 September 1928,P.C.I.J.,
Series A, No. 17, p. 471
4. It ensues from the principlerecognisedby the Court inthis farnousdictum that the
wrongdoing State has the obligation tomake -andthe injured State is entitled to
receive- reparation for al1the damages causedby its internationallywrongful acts,
and onlyfor those. In other terms, foran injuryto be repaired, it must have a causal
link, a "clear, unbroken connection"[in the words of the Umpire of the Mixed
Claims CommissionUnited States-Germany, seeAdministrativeDecision No. II
(November 1, 1923), in UnitedNations Reports of InternationalArbitral Awards,
VolumeII, p. 291with the illegal acts comrnitted.Accordingto the International Law
Commission:
o o irjury to be indemnifiable, it is necessary for it toaneunlawful acby a
relationship of cause and effect and any is so linked to an unlawful act whenever the normal
and natural courseof the events would indicate that theis a logical consequence of the act or
whenever the author of the unlawful act could have foreseen the damage it[seesed."
Yearbook of the InternationalLaw Commission, 1993, VolumeII, Part Two,
p. 691.
5. The existence of such a causal linkfor each of the single damageswill have to be
determined in the subsequent phaseof the evaluationof the exact amountof
compensation.However,at the present stage,it is alreadypossible for the Court to
give general guidelines,declaringwhich damagesthe Respondent oughtto repair,
and whch kind of reparationthe Applicant is entitled to receive.
6. Notably, the unlawful acts describedin Part II of this Reply (andin Part 2 of the
Memorial), i.e. the killing of civilians,more specificallythe killing of men and of
the elite, the causing of seriousbodily and mentalham to individualsthrough,
among other things, encirclement,shelling, starvation, deportationand expulsion,the
imprisonmentand related crueltreatrnentin concentrationcamps, the destructionof
religious and culturalproperty, the imposingof measuresintendedto prevent births, Chapter 14- Section 2
TheRespondentis obliged to make
reparationforl1damages caused
the forcibly transferring children, the rape and sexual assault, and in general the
overall policy of "ethnic cleansing", as well as the failure to preventing the genocide
and the failure to punish its authors, have causedconsiderablematerial and
imrnaterial damages and losses to Bosnia and Herzegovina and its nationals.
Moreover, it has been demonstrated that these acts were aimed at causingsuch
damagesand that these damages were their logical consequencein the normaland
naturalcourse ofthe events.
7. In addition, as was demonstrated in Part III of this Reply (and in Part 6 of the
Memorial), al1these acts, including the relevant intent, are attributable to the Federal
Republic of Yugoslavia, as they were cornmittedby its State organs or by persons or
groups acting on its behalf.
8. Consequently, there can be no doubt that the Respondent has the legal obligation to
make full reparation to Bosnia and Herzegovina for al1the damages caused by these
acts to its nationals and directlyto the State.
9. Subsidiarily,the Applicant also wishes to point out that, evenif the genocidal acts
perpetrated by the "Republika Srpska" andlor the Bosnian Serb Army andlor the
other armed forces fighting on the Serb side in the territory of Bosnia and
Herzegovina were not to be attributed to the Respondent -which, in the view of the
Applicant, is definitely not the case- the Federal Republicof Yugoslavia would still
be under the obligation to make full reparation for al1darnagescaused to Bosnia and
Herzegovina and its nationals by these genocidal acts, as a consequence of its
conspiracy, incitement, complicityin genocide and of its aid and encouragementto
the perpetrators of genocidal acts [see above, Chapter 10, Section 21.
10. In this hypothesis the Respondent would stillbe responsible for its own illegal acts,
especially for the indisputable aid and encouragementit has given to the "Republika
Srpska", and would be under the duty to make reparation for al1darnages caused by
these unlawfid acts, i.e. for al1damages which have a clear and unbroken causal link
with them. This would be no more than the logical consequenceof a general
principle applied by the Court many times [and especially in the Nicaraguacase:
Military andParamilitaryActivities in and againstNicaragua(Nicaraguav. United
States ofAmerica),Merits,Judgment,I.C.J.Reports 1986,p. 65, and para. (13) of
the pronouncement, in ibid., p. 139; see also above, Chapter 10, 21.Reply of Bosnia and Herzegovina
11. Now, al1the evidencepreviously presented to demonstrate thatthe genocidal actsare
indeed attributableto the Respondent[see above, Chapters 8 and 10;Memorial,
Section 6.4.21,showswithout any doubt, at least, that the aid and encouragement
was the implementationof a plan, aiming at the constitutionof a Greater Serbia
through genocide. Moreover,it demonstrates that the "Republika Srpska"t ,he
Bosnian Serb Army and the other armed forces fighting on the Serb side in the
territory of Bosnia and Herzegovinawould neverhave been able to achievetheir
genocidal purposes without the Respondent's massiveaid and encouragement:this
aid was not a mere concomitant factorof the enorrnousdamagesand losses suffered
by Bosnia and Herzegovinaand its nationals,but their decisivecause. In other
words, al1the injury caused by the genocidal acts comrnittedby the "Republika
Srpska", the Bosnian Serb Army and the other armed forces fighting on the Serb side
in the territory of Bosnia and Herzegovinawere botha logical consequence,in the
normal and natural course of the events,of the aid and encouragement providedby
the Federal Republicof Yugoslaviaand were foreseeable (and evenintended) by the
Federal Republic of Yugoslavia.
12. The jurisprudence of the International Courtof Justice givesstriking demonstrations
of the principle that a State is obliged to make reparation foral1damagescaused by
acts which cannot be attributed to it, when those damagescan still be qualified as a
direct consequenceof its wrongful acts.
13. In the Cor- Channelcase, the Court foundthat Albaniahad known about the
existence of a minefieldin the Channeland that it had violated its obligationto warn
the British warships of the danger beforethe explosionsoccurred,but could find no
evidence that proved that the minefieldwas laid by Albania or with its connivance
[Cor- Channel,Judgmentof 9 April 1949,ICJReports,1949,pp. 15-23]. However,
the Court reached the conclusion that:
"~lbaniais responsibleunderinternationfor the explosiwhichoccurred on Octobe22nd,
1946,inAlbanianwatersandfor the damage and loss of humanIge that resulted therefrom"
[emphasisadded, ibid., p. 361.
14. Sirnilarly,in the Hostagescase, the Court found thatthe armed attack on the United
States Embassy by militants on 4 November 1979could not be consideredas in itself
imputable to Iran [see United StatesDiplomaticand ConsularStaflin Tehran
(UnitedStatesof Americav. Iran),Merits, Judgment,I.C.J.Reports1980,pp. 29-
301,but also declaredthat, by failing, on that same day, to take the appropriate steps Chapter 14- Section 2
TheRespondentis obliged to make
reparationforal1damages caused
to protect the Embassy and its staff, Iran had violated its international legal
obligations [Ibid.,pp. 32-33]. In its pronouncement, the Court decided that:
"the Govemmentof theIslamicRepublicof Iranis underanobligation tomake reparatito the
Govemmentof the United Statesof Americaor the injurycaused to the latter by the events of 4
November 1979 andwhatfollowedfiom theseevents" [emphasis added, paragraph (5) of
the pronouncement, ibid., p. 461.
The only logical way of reading these decisions is that the State's obligation to make
reparation for the injury caused by acts that were not committed by its agents (the
laying of the minefield, in the first case, the attack of the Embassy by students, in
the second) was an application of the principle according to which "reparation must,
so far as possible, wipe out al1the consequences of the illegal act": those damages
were both foreseeable and the normal consequence of the State's internationally
wrongful acts (Albania's failure to notiQ the existence of the minefield or Iran's
failure to protect the Embassy and its staff). As in the present case, they would never
have been caused without the State's illegal conduct.
16. Finally, the Applicant wishes to point out that the aforementioned dictumof the
Permanent Court of International Justice in the Factoryof Chorzbwcase also implies
that the wrongdoer's duty to eliminate al1the consequences of its unlawful acts is
unamenable to restriction (as it clearly stems from the expression "so far as
possible"). Notably, the State which has committed the internationally wrongful act
cannot invoke either the provisions of its interna1law [see Article 42, paragraph 4 of
the I.L.C.'s Draft Articles on State Responsibility and the commentary in Yearbook
of the InternationalLaw Commission,1993, VolumeII,Part Two,pp. 60-611 or the
excessive burden such a reparation would cause to it [the only "extreme case" the
International Law Commission has considered as constituting an exception to this
principle being the one in which reparation would result "in depriving the population
of a State of its own means of subsistence", see Article 42, paragraph 3 of the I.L.C.
Draft Articles, introduced in 1996, in United Nations, Reportof theInternational
Law Commissionto the General Assembly, 1996, Doc. Al5 1/10, pp. 141-1421as
justification for the failure to provide full reparation. This must be specially taken
into consideration in the present instance because of the exceptional gravity of
genocide as an internationally wrongful act [see above, Chapter 121.Replyof Bosnia and Herzegovina
17. Having shown its right to obtainfull reparation forthe darnagescaused, the
Applicant will now describethe differentforms this reparation should assume.
3. Restitution in kind
18. The Applicant requests the Courtto adjudgeand declarethat, in principle, it is
entitled to obtain from the Respondentrestitutionin kind for al1darnagescaused by
the genocidal acts in the territory of Bosnia and Herzegovina.
19. In the Factory at Chorzbwcase, the PermanentCourt ofInternational Justice stated
that restitution inind should consistin the re-establishmentof "the situationwhich
would, in al1probability, have existedif the act had not been comrnitted"[Factoryat
Chorzbw, Judgmentof 13 September1928, P.C.I.J, SeriesA, No. 17, p. 471. More
recently, the International LawCommission has preferred anarrower definition as
"the re-establishmentof the situationthat existed beforethe wrongful act was
comrnitted" [seeArticle 43 of its Draft Articles on State Responsibilityin United
Nations, Report of the InternationalLaw Commissionto the General Assembly,1996,
Doc. A/51/10, p. 1421,pointing out that:
"the purely restitutive conceptof restitutionin kind (...), aside from being the most widely accepted
in doctrine, has the advantage of being confinedto the assessmentof a factual situation involving
no theoretical reconstruction of what the situation would have been if the dotngful act han
been committed"[commentary to Article 43,in Yearbookof the InternationalLaw
Commission, Volume II, Part Two,1993, p. 621.
20. Consequently,this latter definition isthe one taken up by the Applicantin
submissionNo. 6 of its Memorial [Memorial,p. 2941.
21. The International Court of Justicehas grantedthe right to restitutionin kind, for
example, in the Preah Vihearcase, where it found:
"that Thailand is unanobligationto restore to Cambodiaany objects of the kind specified in
Cambodia'sfifth Submission [Le.: sculptures,fragmentof monuments, sandstonemode1
and ancient pottery] which may, since the date of the occupation ofthe Temple by Thailand in
1954,have been removed fiom the Temple or the Temple area by the Thai aut[Casees"
concerning the Temple ofPreah Vihear (Cambodiav.Thailand),Judgment of
15 June 1962: ICJ Reports 1962,p. 371.
22. However, the Applicant cannot but recognise that implementationof complete
restitution in kind would face many obstaclesin the present case. Chapter 14-Section 3
Restitution in kind
23. Firstly, restitution in kind is often materially impossible.The majority of the facts
described in Chapters 5 and 7 of this Reply have causeddamages and losses that
cannot be erased: human beings killed will never be brought to life again; acts of
intimidation, torture, rape, sexual assault, imprisonment, deportation, expulsion,
measures to prevent births have caused serious material and mental harms that will
not disappear; environmental and economic damage to Bosnia and Herzegovina is
irreversible; the memory of al1the atrocities committed will stay forever.
24, The Applicant wishes to highlight that this impossibility is not the consequence of a
fortuitous event but is the main object of the commission of genocidal acts -as they
are directed to the destruction of specified groups- and that it is to be attributed to
the illegal conduct of the Respondent itself. As it will be developed later, the
Applicant considers that this finding should not remain without consequence in the
determination of the reparation due under other forms (i.e. compensation and
satisfaction).
Secondly, the majority of the infrastructure damaged by the genocidal acts (for
example, buildings) are located in the territory of Bosnia and Herzegovina, i.e. on
territory globe where Bosnia and Herzegovina exercises, to the exclusion of any
other, the fwictions of a State. It is not for the Respondent to intervene physically in
that territory, even in order to restore the situation which existed prior to the
commission of its wrongful acts. Therefore, in many cases, the Governrnent of
Bosnia and Herzegovina considers that only the other means of reparation -namely,
compensation- are consonant with its territorial sovereignty.
26. For these reasons, the Applicant acknowledgesthat, in practice, restitution in kind
could only be implemented through the retwn by the Respondent to Bosnia and
Herzegovina and its nationals of al1the property and the goods stolen in connection
with genocidal acts and currently in its possession and in its agents' possession.
27. The Respondent cannot be permitted to invoke any justification for its failure to
grant such restitution in kind. Notably, the Respondent cannot be recognised as
having the right to allege that restitution in kind would "involve a burden out of al1
proportion to the benefit which the injured State would gain from
obtaining restitution in kind instead of compensation", or that it would "seriously
jeopardise the political independence or economic stability" of the State [see Articles
43 and 52 of the I.L.C.'s Draft Articles on State Responsibility, in United Nations,
Report of the InternationalLaw Commissionto the General Assembly,1996, Doc.Reply of Bosnia and Herzegovina
A/51/10, pp. 142and 1461.In the words of the International Law Commission,
refening to the categoryof "intemational crimes of State":
"a wrongdoing State ought never to be able to retain the hits of its crime, or benefit from a
wrongdoing that is a crime, howeverful or burdensome restoration mightbe."
[Commentaryto Article 52, in United Nations,Report of the InternationalLaw
Commissionto the GeneralAssembly, 1996,Doc. Ai51/10,p. 1681.
4. Compensation
28. As stated in submissionNo. 7 of the Mernorial,the Applicantconsidersitself to be
entitled to obtain fiom the Federal Republicof Yugoslavia compensationfor al1the
damages caused by its intemationallywrongful acts, includingthe interestsand the
loss of profits, to the extent that the damage is not made good by restitution in kind
and is "economically assessable" [see Article44 of I.L.C.'s Draft Articles on State
Responsibility,in UnitedNations, Report of the InternationalLaw Commissionto the
GeneralAssembly, 1996,Doc. A/51/10,p. 142; referenceis also made, especiallyas
regards to the fact that compensationmay include interestsand lucrum cessans,to
the commentary tothis article in Yearbookof theInternationalLaw Commission,
VolumeII, Part Two, 1993, pp. 67-76].Accordingto the International Law
Commission,this should coverboth:
"(a) Damage caused to the State's territory in general, to its organizationin a broad sense, its
property at home and abroad, its military installations, diplomatic premises, ships,aircraft,
spacecraft, andthe like (so-called 'direct'damage to the State);
(b)Darnage caused to the State through the persons, physicalor juridical, of its nationalsor agents
(so-calied 'indirect' damage ttat te)[Yearbookof the InternationalLaw
Commission, VolumeII, Part Two, 1993,p. 721.
29. The International Court of Justice has repeatedlygranted such a remedy as a
consequence of the commissionof unlawful acts [see, for exarnple:Corfi Channel,
Judgmenrof 9 April 1949,I.C.J. Reports, 1949,pp. 23 and 36; UnitedStates
Diplomaricand ConsularStaff in Tehran (UnitedStates of America v.Iran), Merits,
Judgmenr, 1C.J. Reports 1980,pp. 41-42 and 45;Military and Paramilitary
Activities in and againstNicaragua (Nicaraguav. UnitedStates of America), Merits,
Judgment, I.C.J. Reports 1986, p. 1491 andhasrecently stated:
"1t is a well-establishedrule of intemationalanainjured State is entitled to obtain
compensationfiom the State whihas committedan intemationallywrongful act for the darnage
caused by it.[Gabcikovo-NagymarosProject (Hungaryv. Slovakia),Judgment, Chapter 14-Section 4
Compensation
25 September1997,para. 152;see also paragraph (2), D. of the
pronouncement].
30. In the present instance, the Applicanthas demonstratedthat the genocidalacts
described above have causedenormousdamagesdirectly to Bosnia and Herzegovina.
This includes [seeabove Part II]:
- the loss of the State'sproperty in the territory of Bosnia and Herzegovina,by
shelling, destructionand plundering;
- especially, the destructionof Bosnia andHerzegovina's culturalpatrimony,by
shelling, destructionand plundering;
-
irreversiblehm to Bosnia and Herzegovina'senvironment,notably as a direct
consequenceof shelling; as the Court has stated: "the environmentis not an
abstraction but represents the living space, thequality of life and the very
health of hurnanbeings including generationsunborn" [Legalityof the Threat
and the Use of Nuclear Weapons,Advisory Opinion,Il July 1996, para. 29;
see also Gabcikovo-NagymarosProject (Hungaryv. Slovakia),Judgment,25
September1997, paras. 53 and 1121;
- enormous damageto the entire Bosnia and Herzegovina'seconomythrough the
genocidal acts, includingthe important Iucrumcessanscaused directlyby the
destructionor damagingof Bosniaand Herzegovina's factorsof production,
natural resources and active population,which has limited andwill harm for a
long time Bosnia and Herzegovina's economic development.
3 1. Moreover,the Applicanthas shownthat the genocidalacts cornmitted havecaused
considerabledamagesand lossesto the people of Bosnia and Herzegovina. Asparens
patriae for its citizensand as a direct consequenceof its right to obtain full
reparation for the prejudice caused,the Applicantis entitled to receivepayment also
for those damages.
32. In the first place, this comprisesal1material loss, that is damage caused to the
patrimony of individualsand legal persons. In the present case,reference must be
made to al1the acts of shelling, destruction and plunderingdirected againstthe
property of private persons, both physicalandjuridical, havingthe nationalityof
Bosnia and Herzegovinaand targetedfor their belongingto non-Serb groups.Reply of Bosnia and Herzegovina
33. Secondly, compensationis due for al1damagescausedto the physicaland moral
integrity of the citizens of Bosnia and Herzegovina.As stated by the International
Law Commission, the "indirect" darnagescausedto the State:
"embracesboththe 'patrimoniall'osssustainedbyprivatepersons, phlrjuridicai,andthe
'moral'damagesufferedby suchpersons.Italsoincludesfortiorthepersonalinjurycausedto
thesaidprivateparties by wrongfulact. This refersi,nparticulart,o suchinjuriesas unjustified
detentionorany other restricnfooeedom,torture otherphysicaldamagetotheperson,death,
andso on." [Yearbookof the InternationalLaw Commission, VolumeII, Part
Two, 1993, p. 721.
34. This principle was appliedby nurnerousarbitral decisions [see notably,about the
compensationof the "mental suffering orshock" causedby violent deaths of
individuals, the Lusitania cases,Mixed Claims CommissionUnited States-Germany,
Decision of 1November 1923,in UnitedNations Reports of InternationalArbitral
Awards, Volume VU,p. 35, and the Di Caro case, Mixed Claims CommissionItaly-
Venezuela, VenezuelanArbitrationsof 1903, in UnitedNations Reports of
InternationalArbitral Awards, Volume X, p. 598; or, on compensationfor a nervous
breakdown caused by a cruel and psychological traumatictreatrnentagainst an
individual by State agentsfiom Mexico,the WilliamMcNeil case, Claims
CommissionGreat Britain-Mexico,DecisionNo. 46 of 19 May 1931, in United
Nations Reports of International Arbitral Awards, Volume V,pp. 164-1681and by
the International Courtof Justicein the Cor- Channel case, whereit found that
Albania was responsible:
"fortheexplosions whichoccurre(..inAlbanianwaters,andforthedamageandloss of human
iife thatresultedtherefr[CorfùChannel,Judgment of 9 April 1949, I.C.J.
Reports, 1949, p. 36; see alsothe assessment of thedamage in Corfu Channel,
Judgment of 15 December 1949, I.C.J. Reports, 1949,pp. 249-2501.
35. In this case, therecan be no doubt that the individual victims of the genocidal acts
cornrnittedby the Respondent have suffered severepersona1and mentalhm. This
holds tnie for the victims of killings or mass executions, andtheir relatives, but also
for the victims -andthe relatives of the victims-of acts of intimidation,rape, sexual
assault, deportation, expulsion,imprisonrnent,measuresto prevent births and to
forcibly transfer children fiom a groupto another group.
36. As stated above, the Applicantrequeststo reserve to a subsequent phase ofthe
proceedingsthe exact determinationof the amount of compensation. However,at this
stage, itcannot but stress once again the enormity of the damages and losses here Chapter 15
described, that are the direct consequenceof a widespreadpolicy of genocidalacts
implementedfor years in the tenitory of Bosniaand Herzegovina.Furthermore,the
Applicant recalls that these damagesand lossesare often irreversibleas a direct and
foreseen consequenceof the acts of Yugoslaviaand thus that compensationwill have
to be calculated accordingly:the impossibility to re-establishthe status quo ante,
when imputable to the conductof the Respondent,will result in an augmentation of
the prejudice that the Respondentis bound to compensate.
CHAPTER 15
THE DUTY TO CEASE THE ONGOINGVIOLATIONS
AND TO TAKE IMMEDIATEAND EFFECTIVE STEPS
TO ENSURE FULL COMPLIANCEWITH ITS OBLIGATIONS
1. In submission No. 5 of the Memorial,the Applicantrequests the Court to adjudge
and declare:
"~hat the Federal Republicof Yugoslavia (Serbia and Montenegro) must immediatelycease the
above conduct [see submissions no. 1 to41and take immediate and effectivesteps to ensure full
compliance with its obligationsthe Convention on the Prevention and Punishment of the
Crime ofeno oc id[" emorial,p. 2941.
2. The obligationto cease the illegal conductis an unrestrictedconsequence of any
internationallywrongful act having a continuingcharacter and stems directly from a
determinationby the Court of such an act. The Court has expressly stated the duty to
cease continuing violationsof internationallaw in several cases [see, for example,
UnitedStates Diplomaticand ConsularStaHin Tehran(United StatesofAmerica v.
Iran),Merits,Judgement, 1C.J Reports 1980,pp. 45-46]. As it highlighted in an
Advisory Opinion in 197 1:
"A binding determination madeby a competentorgan of the United Nationsto the effect that a
situation is illegalcannot remain without consequence. Oncethe Court is faced with such a
situation, it would being in the discharge of itsjudicial fimctions if it did not declare that there
is an obligation, especially upon of the United Nations,to bring that situation to an end.
As this Court has held, refemng to one of its decisions declarascontrary to a rule of
international law: 'Thision entails a legal consequence,narnely that of putîing an end to an
iiiegai situat(1.C.Reports 1951, p. 82[Legal Consequences for States of the
ContinuedPresenceof SouthAfiica inNamibia (SouthWestAfiica)Replyof Bosnia and Herzegovina
notwithstandingSecurity CouncilResolution276 (1970),Advisory Opinion,
I.C.J. Reports 1971,p. 541.
3. In the present instance,the end of the armedconflict -followingthe signatureof the
Dayton Accords- has notput an endto al1the violationsof the GenocideConvention
by the Respondent.As was pointed out in the Mernorial,and developedin the
previous pages [see above, Chapters 10 and 111,the Federal Republic of Yugoslavia
continuesits breachingof its obligationsprescribedby the Conventionto punish
through its own tribunals and to CO-operatewiththe ICTFY in view of the
punishment of the perpetrators of the genocideand corollary crimes.
4. By its persisting illegal conduct, theFederal Republicof Yugoslaviais challenging
the superior interestsprotected by the Convention.This illegal conductmust be put
to an end. In the words of the International LawCommission:
"cessation is of far greater relevance within the internationallegal system -given the structure of
inter-State Societyand the role of States in the making, modification and abrogation ofrules- than
within the legal systems of national societies. Its functionis to put an end to a violationof
international law whichis in progress andto safeguard the continuedvalidity and effectiveness of
theinfnnged primary mle which may suffer in the longrun from the continuation of the violation.
The rule on cessationthus protects not only thofthe injured State or States but also the
interests of the international communityin the preservationof, and reliance on, the
[Commentaryto Article 41 of the I.L.C.'s Draft Articles on State
Responsibility,in Yearbook of the InternationalLaw Commission,VolumeII,
Part Two, 1993,p. 551.
5. Consequently,the Applicantrequeststhe Court to adjudgeand declarethat, as a
direct application of the principleaccording towhich a State has the duty to cease its
continuingunlawfül acts, the Respondentis under the obligationto punishail the
perpetrators of genocideand other corollarycrimes and to cooperate with the ICTFY
in view of their punishment.It also recalls its rightto obtainthe punishmentof the
perpetrators of genocidalacts and the cooperationwith the ICTFY fiom Yugoslavia,
as a general means of satisfaction[seeabove, Chapter 13, Section21.
6. In addition, the Applicantconsidersthat the Respondent's duty totake irnrnediate
and effective steps to ensure full compliancewith the Genocide Conventionalso
implies Bosnia and Herzegovina'sright to obtain from Yugoslavia appropriate
guarantees and assurancesthat the violations will never be repeated in the future.
7. As has been highlightedby the InternationalLaw Commission, assurances and
guaranteesof non-repetitionperform "a distinct and autonomous function"in the Chapter 15
system of State responsibility in international law, as "they are future oriented" and
thus "have a preventive ratherthan remedial" purpose [see Yearbookof the
International Law Commission, Volume II, Part Two,1993, pp. 81-82; see also
Article 46 of the I.L.C.'s Draft Articles on State Responsibility, in United Nations,
Report of the InternationalLaw Commissionto the GeneralAssembly, 1996, Doc.
A151/10,p. 1431.Consequently, they "presuppose a riskof repetition of the wrongful
act" and "should not be automatically availableto every injured State"; in other
words "the injured State demands guarantees against repetition because it feels that
the mere restoration of the normal, pre-existing situation does not protect it
satisfactorily" [ibid.,p. 821.The International Law Commissionalso stressed the
"special relevance" such assurances and guarantees could assumein the case of
"internationalcrimes of State" [see ibid, and Report of the InternationalLaw
Commissionto the GeneralAssembly, 1996, Doc. Al5 1/10,p. 1681.
8. As a drarnatic evidence of the risk of repetition in the present instance, the Applicant
cannot but recall once again the continuing violations of the Genocide Convention by
the Federal Republic of Yugoslavia (as described above) even after the submission of
this case to the Court, after the Court had issued two Orders containing provisional
measures with a view to the protection of rights provided by the Convention, and
until today.
9. Under this aspect, the Applicant reckons the importance of the signature in Paris, on
14 December 1995,of the General Frarnework Agreementfor Peace in Bosnia and
Herzegovina (Dayton-Paris Agreement), which provides,notably, in Article VII:
"~ecognizing that the observance ofhuman rights and the protection ofrefugees and displaced
persons are of vital importance in achieving a lasting peace, the Parties agreeto and shall comply
fully with the provisions concerninghuman rights set forth in Chapter One of the Agreement at
Annex 6,as well as the provisions concerningrefugees and displaced personsset forth in Chapter
One of the Agreement at Annex 7",
and, in Article IX:
"~he Parties shall cooperatefully with al1entities involved in implementationof this peace
settlementasdescribedinthe Annexesto this Agreement,or which are otherwise authorized by
the UnitedNationsSecurity Council, pursuant to the obligation of al1Parties to cooperate inthe
investigation and prosecutionof crimes and other violationsof international humanitarianlaw."
However, such an Agreement has proved to be insufficient in assuring the non-
repetition of the violations of the Convention, as has been shown above. PART V
THE COUNTER-CLAIMS
CHAPTER16
RESPONSETO ALLEGEDFACTS
1. Introductoryremarks
Generalcomments
1. Earlier in this Reply some general commentshave alreadybeen made on the (lack
of) quality of the presentation of the counter-claimsin the Counter-Memorial
[Chapter 1, Section 31.Most of the allegationson whichthe counter-claims are
presurnably based,are not supportedby any sort of readily availableand verifiable
material, let alone by independentand publicly accessible sources.For these reasons,
Bosnia and Herzegovinais not able to respondto most of the allegationsand will
therefore not do so. This, of course, may in no waybe explainedas any sort of
implicit acknowledgementof the validity ofhese allegations.Quite the contrary:
Bosnia and Herzegovinaexplicitlydeniesthe truth and validity ofthe allegations
contained in the Respondent'scounter-claims.ince none of the facts presented by
the Respondent are,by any sort of legal standards,sufficientlyproven, only facts
explicitly acceptedby Bosnia and Herzegovinain this Reply may serve as a basis for
the adjudicationby the Court ofthe counter-claims.
2. In this Chapter Bosnia and Herzegovina will, givthe above-mentionedrestraints,
respond to the counter-claims'factual allegations.In Chapter 17 a legal assessrnent
of the counter-claimswill be provided.The conclusionsto be drawn will be part of
Part VI of this Reply.
3. When assessingthe counter-claimsit is useful to keep the general geographyof the
territory of Bosnia and Herzegovinainnind. During the armed conflict most of the
territory became occupiedby the NA, which was later renamedthe army of the
"RepublikaSrpska" [Reply, Chapter 8,Section41.Most of thesubstanceof the
counter-claimsseemsto refer to facts which allegedlytook place ineas under Serb
and/or Serbiancontrol, which alreadymakes it difficult to comprehend how exactly
Serb people could have becomevictims of genocidalacts cownitted by personsReply of Bosnia and Herzegovina
under the control of a Governrnent,which did notexercise any controlin these areas
in the first place. The Respondentdoes not provide any explanation forthis point.
4. Moreover, many of these very areas were ethnicallycleansed andtaken over by the
JNA and Serbianparamilitaryunits, most asearly as April andMay 1992.In almost
al1of these areas the population wasmixed before the Serbian campaign;al1of the
relevant areas used to have a substantial non-Serb population,if not a non-Serb
majority .
Bosnia and Herzegovina invites the Courtto, again, have a look at two of the maps
produced by the parties earlier in these proceedings:the UNHCR-map of1 March
1994 [Memorial,p. 161and the map annexedto the Counter-Memorial[AnnexNo.
2751. The maps are, superimposed, reproduced here:
HRVATSKA
JADRANSKO MORE
ADRIATIC SEA,- Chapter 16-Section I
Introductory remarks
This combined map clearly shows how much of the territory, to which the counter-
claims refer, was actually controlled by the Serb assailant.
Although theoretically possible, it is difficult to conceive that people trying to regain
theirhomeland and hometowns, sometimes indeed by the use of armed force, should
be seen as trying to ethnically cleanse these very areas. The same is true for people
who might have tried to break into Serb controlled areas looking for food and who,
in a struggle against starvation, indeed, if necessary then by the use of armed force,
robbed the Serb occupier of cattle and crops. During the armed conflict, the minds of
the non-Serb people of Bosnia and Herzegovina were set on surviving, rather than on
any sort of struggle for the ethnic homogeneity of their country, let alone that they
were engaged in a well-organized campaign to destroy in whole or in part their
fellow Serb citizens. To, effectively, argue the contrary it does not suffice for the
Respondent to merely provide lists, some of them and randomly annexed with
uncorroborated witness statements, of persons allegedly killed or wounded in the
relevant period of time.
6. Never has the non-Serb population of Bosnia and Herzegovina strived for an
ethnically homogenous State nor has this ever been part of the political programme
or actual policy of the Govemment of Bosnia and Herzegovina. In order to,
effectively, argue the contrary, the Respondent needs to provide strong, independent
and corroborated evidence. This the Respondent hasnot done at dl. In any event,
Bosnia and Herzegovina categorically denies that any ethnic cleansing took place
under its control or responsibility.Reply ofBosnia and Herzegovina
Military structure
7. When assessingthe counter-claimsit is also necessaryto realise that, especiallyat
the beginning of the armed conflict,there was no such thing as a Bosnian anny nor
was there an organized structurewhich could replacethe lack of defensive capability
[Reply, Chapter8, Section 21.The other side was fully aware of this, as Radovan
KaradZiCmade clear in his speech before theBosnianParliament on 14 October
1991:
"DOnotthink thatou willnotleadBosnia-Hercegoviniantohell,anddonotthinkthatyou will
notperhapsleadtheMuslimpeopleintoannihilati,ecausetheMuslim peoplecannotdefend
themselvesif there isa w[Sarajevo, 2100 gmt,14 Oct. 1991,BBCMonitoring
Report EEl120.5B/9, 17 Oct. 1991,(29), exceptfrom report (EEl1204B/10),
Annex 2861.
Indeed, the struggle against Serb aggressionwas usually entirely disorganized andin
al1cases entirelyunequal. TheJNA and the Serbswere in possession of complete
up-to-date armyequipment, including heavy arms, tanks and air-support. Thenon-
Serb side, especiallythe Muslims,was poorly equippedwith an averageof one light
gun per five men of military capability [see also Reply, Chapter 8, Section41.
8. It is rather preposterous, inthis situation, to allege thatthe Governmentauthorities
were responsible for an organizedcampaignaimedto destroy in whole or in part the
Serb population of Bosnia and Herzegovina.
Political situation
9. From the day of the declarationof independence onward,the Bosnian Government
has propagatedthe idea of Bosniaand Herzegovina as a truly multi-ethnicsociety.
This was not just political rhetoric: inpractice, governmentofficershave always
been of various ethnic backgrounds. Throughout the armed conflict, Bosnian Croats
and Bosnian Serbsparticipatedin the Bosnian Presidency,under the leadership of
President IzetbegoviC.At the same time the Bosnian Armywas led by a multi-ethnic
group of Generals, among them General Siber (BosnianCroat) and GeneralDivjak
(Bosnian Serb). Furthermore, severalBosnian Serbs servedas Brigadier or as
Colonel in high-rankingpositions within the hierarchy of thearmy of the Republic
of Bosnia and Herzegovina,some of them servingin highly sensitive positions
within the Anny Headquarters.Also, at lower levelsin the BosnianAmy, Bosnian
Croats and Bosnian Serbsoccupied important positions. Theannexedarticle, Chapter 1-Section1
Introductoryrernarks
published in the Bosnian daily newspaper Oslobodenje of 9 January 1994,may serve
as evidence for that. In this articlepraise is given too soldiersof the Army of
Bosnia and Herzegovina, who died while defending a multi-ethnic BosniaO . ne of
them, Igor PavloviC,was a Bosnian Serb, the other one, Samir BeganoviCwas a
Bosnian Muslim. The newspaperarticle, however,does not mentiontheir ethnic
background, which Mer illustrates the true state of matters on the Bosnian side in
the middle of the war [Oslobodenje, 9Jan. 1994, Annex2871.In addition to this
specific article, Oslobodenje,in general,provides evidence for the continued
participationof Bosnian Serbsin the Bosnian Government forces;one needs only to
read the obituariesto find that they,too, died in defence of a multi-ethnic Bosnia
and Herzegovina.
10. The Bosnian Government was consequentin trying to integratethe various ethnic
backgroundsin one State rather than trying to ban a specific ethnic group from
societal participation. Onmany occasions, Bosnian Governrnent representatives,
including PresidentIzetbegoviC,called for unity and for the preservationof a multi-
ethnic State:
"(...Ourjoint effortsarenecessaryforBosniaandHerzegovina tomaintainits existenceforthe
futurebenefitof its citizens, Moslems,Serbs,Croatsandal1others.
Let'sdecisivelyonfionteverythingthatis againstunity,fieedomandpeacein Bosniaand
Herzegovina!
Therecannotbe anygoodfor one peopleif it is notgood forotherpeoples!Let'sdefendOur
BosniaandHerzegovina togethers ourcommonhomeland!" [Pro~lamationof the
Governmentof Bosnia and Herzegovina, publishedin Oslobodenje, 6 April
1992,Annex 2881.
This type of statement has been repeatedthroughoutthe armed conflict. Without any
Mer explanation,it is clear that these statementsare entirely differentfrom the
rhetoric heard from Belgrade and Eromother Serb leaders,who invariablycalled for
al1Serbs to unite, for one State for al1Serbs and for Greater Serbiaas the cornmon
homeland [see also above, Reply, Chapter4, Section 11.
11. A clear foundation for and conf~rmationof this consequently followed policyis to be
found in an important government document, Platform for Actingof the Presidency
of Bosnia and Herzegovina,which was adoptedby the Bosnian Governrnenton 26
June 1992, in the rnidst of the armed conflict. This document establishesthe policy,
which explicitly aims at the continuationof Bosnian multiculturalsociety. Part of the
Platform statesthe following:Reply ofBosniaandHerzegovina
"1.WHAT KIND OF BOSNIA AND HERZEGOVINA?
Bosnia and Herzegovinas a sovereigandindependent State of citizens, constitutional andequal
nations: Muslims, Serbs, Croats and the membersof other nations livingin it. The Republic is
constituted on the principlesofiamentary civil democracy, which understands firstof al1the
market economy,party pluralism,hurnan rights and liberty.
Interna1organization of Bosnia and Herzegovina,as a multi nationaland multi confessionai
community, is baseduponregional and local self-nile which respects econornic, cultural,historic
and ethnic criteria. Local andregional self-nile can not be opposite to the principles of territorial
integrity and unity of powerctioningin the whole territory of Bosnia and Herzegovina.
2. RELATIONS AND INSTITUTIONS GUARANTEEING NATIONAL EQUALITY
Three constitutive nations (ethnic groups), Muslims, Serbs and Croatisn B-H have their national
interests, but also the interests originatingfiom tradition of mutual life during many centuries.
Political and social lifein Bosnia and Herzegovinais based uponthey of Muslims, Serbs
and Croats and of the membersof other nationsand national rninoritiesin administration in State
affairs.
Sovereignty of the State isized in the whole territory definedby unique borders which have
been recognized by the International Community."icialGazette, number8, 2 July
1992,Annex 2891.
Two years later, in an interviewwith the Slovenian newspaper Delo, whichinterview
was reproduced in Oslobodenje,Mirko Pejanovik,Serbmember of the Bosnian
Presidency explicitly confirmedthe ever continued adherenceto this policy
[Oslobodenje, 1 Mach 1994, Annex2901.
12. It is clear that there can be no doubt aboutthe true policies of the Applicant's
govenunent. It is also clea., that there existsno evidence whatsoever, which would
indicate that the Governmentof Bosnia and Herzegovina proclaimed anysort of
ethnic intolerance, let alone that there would exist any material supportingan
allegation that it ever had a policy of achievingan ethnicallyhomogenousState and
excluding the Bosnian Serbpopulation.
13. It is alsorelevant to note thatthe govemment authoritieshave beenprepared,
throughout the war, to accept al1 of the peace-plans whichwere proposedat various
stages of the confiict (VanceIOwen,beginningof 1993;OwenlStoltenberg,June-
September 1993;Contact Group Plan,May 1994),while al1of these plans were not
exactly what the government hadin mind when proclaimingindependence. However,
al1these plans had in cornmonthat the Serbpopulationof Bosnia and Herzegovina
would be an integrated part of the State-structures;this part of these plans had,
indeed, precisely been partof the policy of the governrnent al1along. The Serb-side, Chapter 16- Section 1
Inîroductoryremarks
however, refused to accept these plans becausethey did not fit into their envisaged
plan to becomepart of one ethnicallypure Serb State:
"0ur objective is to unite in one state to haveone -aBelgrade-one assembly, one
government andone President. We are not interestedin any princedoms.1think that we the Serbs,
will unite even before we expect. It seems that a global solutionmust lead to the creation and
recognition of a large Serb state.(...) This war will be banuend either at the conference
table, likel1other wars are, or in a long, silent process of bleeding,in which the Serbswill have
to use weaponsto fortifj the borders they are currentlyhold[R. Karadzic, quoted by
Tony Barber, TheIndependent,European News Page13, 22 October 1993,
Annex 2911.
Only heavy military pressure, including NATOair strikes, madethe Serb side accept
a peace agreement [Dayton Accords,November 19951.
14. Against this backgroundit is entirelyunfoundedto assumethat the Bosnian
governrnentauthoritieswere actively involvedin developing and practising a policy
aimed at the destruction in whole or in part of an ethnic group, more specificallythe
Serbs, within the territory of Bosnia and Herzegovina.
Independentobservations ontheposition of the BosnianGovernment
15. Independent authoritativeobserversal1confm that thepolicy of the Applicantat al1
relevant times never came close tobeing a mirror-imageof the policies and practices
of the Serb-side.The most relevant sources willbe presented in the following
paragraphs.
16. After noting that the "JNAand the Army of the so-called 'BosnianSerb Republic'
have been involved in carrying out andfacilitatingthe policy and practices of 'ethnic
cleansing' in certainparts of the territory;"and after finding that "[tlhere is sufficient
evidence to concludethat the practicesof 'ethniccleansing' werenot coincidental,
sporadic or carried out by disorganizedgroups or bands of civilianswho could not
be controlled by the Bosnian-Serb leadership"the Commissionof Experts reports:
"148.Bosnian Government forces havealso committedthe same type of grave breachesof the
Geneva Conventions against Serbs and Croats, butaspart of a policyof "ethnic cleansing".The
number ofthese violationas reported, is significantly lessthan the reported violations allegedly
committed by the otherarring factions.
149. The Commission is unable to determine the amount of harm and the exact number of
violations commiîtedby each of the warring factions. Nevertheless it is clearthatnoReply of Bosnia and Herzegovina
factual basis for arguing that there is a 'moral equivalence'he warring
factions.[United Nations,Final Report of the United Nations
Commissionof Experts, S/1994/674(Vol. 1),27 May 1994,pp. 36-
37, para. 148-1491.
17. In the same vein on 9 August 1995the Deputy Director of Intelligenceof the U.S.
CIA, who certainlymay be consideredto be well informed, declaredas a witness
before the U.S. Senate Cornmitteeson Intelligenceand on Foreign Relations,after
noting that "the apparentlysystematic, widespreadnature of Serb actions strongly
suggeststhat, from the beginning of the conflict,Bosnian Serb political and military
leadershave played a centralrole in the purposefuldestructionand dispersa1of
Bosnia's non-Serb population":
"~roats and Muslims have also committed atrocitiesduring the Bosnian conflict,but their actions
have consisted for themost part of discreteugh sometimesfierce- episodes that lackthe
sustained intensity, orchestration, andscale of the Bosnian Serbs' effort. The majorityof
accounts -corroborated by information- indicate that ethnic Serbs are responsible forthe
ovenvelming majority of the destruction, displacement, and lossof life associated withethnic
cieansing in Bosnia."WarCrimes inthe Balkan, Joint Hearing beforethe Select
Committee On Intelligenceof the United States Senateand Committeeon
Foreign Relationsof the United States Senate, 104thCongress, 1st session, 9
August 1995,p. 5, Annex 361.
This statementis consistent withan earlier extensive CIA report,the contents of
which were made publicby the New YorkTimes:
"1n the most comprehensive assessmentby the United States of the responsibility for atrocitiesin
Bosnia, the Central Intelligence Agencyhas concluded90hpercent of the acts of 'ethnic
cleansing' wereanied out by Serbs and that leading Serbian politicians almost certainly played a
role in the crimes. The highlyclassifiedCIA report, basedon aerial photography andwhat a senior
officia1alled 'an enormous arnountof precise technical analysis,' also conclt hile war
crimes were by nomeans committed exclusivelyby Serbs,they were the only party involved in a
systematic attempt to eliminatetraces of other ethnic groupsfiom their temtory.
The reportmakes nonsense of claims,now consistentlyput forward by West European govenunents
and intermittentlymade by the Clinton administration, thatthe Bosnian conflict warainivil
which guilt is divided between Serbs, Croats and Muslims rathera case of Serbian
aggression."[NewYorkTimes,9 March 1995,Annex 2921.
18. At the same U.S. Senatehearing the U.S. AssistantSecretaryof State for Hurnan
Rights, John Shattuckinformed the Cornmitteesabout his, at the time, recent trip to
Bosnia, where he visited Tuzla and Zenica.Amongother things he declared:
"1 want to end my opening statementby paying tribute to the people of Tuzla and Zenica, who are
committed to maintaining their diverse communitiest,o receive and help the displaced personsfiom Chapter 16 -Section 1
Introductoryremarh
Srebrenica andiepa and other areas, and to ensure that their Bosnian cities will remainbeacons of
civilization, where different religionsand ethnic groups can leave [sic]in peace as neighbours, side
by side. The continued existenceof these and similar cities and townsin Bosnia, and the
principles for which they stand, is ultimately what isat here."[var Crimes in the
Balkan, Joint Hearing beforethe Select Cornmittee OnIntelligence of the
United States Senate and Cornmitteeon Foreign Relationsof the United States
Senate, 104th Congress, 1st session,9 August 1995,page 74, Annex 361.
19. This position was entirely in line with the positon earlier defined by the U.S.
Departmentof State:
"1 [acting Secretary Eagleburger] recognizethat in the ongoing Yugoslav turmoil, crimes have
committed on al1sides. But it is Serbs, alas, who are most guilty todayof crimes which mimic
those of their former tormentors,and which violate the sacred memory of ancestors who sufferedat
their hands. And it is the Serbs who face a spectacularly future unless they manage tochange
the reckless course their leaders chose for the new nation."
(-..>
The United States condemns perpetrators of violencein Bosnia on al1sides, including the Serbian
side and the "Yugoslav"Amy, which clearly bear the heaviest blame for continued fightingin
Bosnia and havethe greatest responsibilityfor working to obtain a cease-f[US Department
of State, Bureau of Public Affairs, Dispatch, Sep. 1992,Vol. 3, Supp.No. 7,
p. 1 and 20, Annex 2933.
Another independent observer,MichaelA. Sells [referredto earlier in this Reply,
20.
Chapter 5, Section 41,Statesin a Chapteron 'Moralequalizing':
"NO party in any war has ever beenfi-eeof blame. But the blame-on-all-side position falsified
important differences between the methodical genocide carried ty Serb nationalists, the
predatory aggressionof Croat nationalists, and individual crimes committedby Bosnian soldiers,
crimes that were not related to any overallcriminal policy and that have beenpunished."
[MichaelA. Sells, Thebridge betrayed, religion and genocide in Bosnia, 1996,
p. 134, Annex 401.
21. A more in-depthanalysis is providedby Noel Malcolm,the authoritative historian,
currently a fellow of St. Anthony'sCollegein Oxford, United Kingdom:
"~he two basic failures of Western policy on the Bosnian issue arein fact so closely entwined as to
be almost inseparable. One is a failure of policy; the other is a failure of understanding. Atno
pointduring the entire Bosnian war have the pronouncementsof western statesmen shown any clear
understanding of who made this war happen and why. Although commentatorsand analysts had
been accurately charting the political strategyof the Serbian Communist leader, Slobodan
Milosevic, since 198- the take-over of the political machineryin Montenegro andthe Vojvodina,
the illegal suppression of local govemmentin Kosovo in 1989,the mobilisationof nationalist
feeling in Serbian public opinion, the slow-moving constitutional coup againstthe federal
presidency, the Serbian economiclockade against Croatia and Sloveniain late 1990,the theft by
Serbia that year of billions of dinars the federal budget, thereby destroyingthe federalReply of Bosnia and Herzegovina
economic reform programme, and the incitement andarming of Serb minoritiesin Croatia and
Bosniaduring 1990and 1991 -it was as if the western govemments couldsee no pattern in these
events whatsoever. When Croatia and Slovenia, losing patience with Milosevic's astemptto
manipulate the federal Yugoslav system, voted for independencet,he West reacted with
incomprehension. Until the last moment,in June 1991, politicians fromboth the the United
States were tryingard to persuade the Yugoslav republicsto stay together. Then, not long after
the Yugoslav federationhad broken apart, they begantofort themselves insteadwith the
thought that the break-uphad been inevit-bsomething caused notby the particular policies of a
man Sittingat his desk in Belgrade, but by long-term, impersonal forcesof history.
Two theories of historical inevitablywere touted, one extemal, and one intemal. The extemal
theory said that the break-up of Yugoslavia had been causedby the collapse of communism in the
Soviet Union. Quite how or why events in Moscow should havesuch dramatic effects on
Yugoslavia, whichsince1948 had been more free of Russian control than any other country in
eastem Europe, was not explained. Nor did the proponentsof this theory ever it was that
Yugoslavia had been plunged into war, while Czechoslovakia, a cosotrych more directly
influenced by theate of communism in Russia, managedto split itself with al1the bloodlessness of
a self-dividing amoeba. The main reason for holdingthis implausible theory about Yugoslavia was
not that it rested on historical analysis,but that ithe comforting (and diplomaticallyuseful)
implication thatnobody in particular inside the former Yugoslavia was ultimately responsible for
the war. And insofar as anyone there was responsible, everyone was equally responsible: they were
al1merely fulfilling the roles allotted to them by history.
A similar conclusionwas drawn from the theory of intemal inevitability. This was the theory which
said that the driving forcesof Yugoslav history were 'ancientethnic hLazydpoliticians who
dipped into their history books were ableto pick out a fewles of wars and massacres, which
they flourishedat their audiences withthe words: 'it wasever. In fact, the examples they
offered were from the twentieth century,or at most thenineteenth; they arose mainlyfrom the
most untypical episodesin Balkan history, conflictsduced or exacerbated by forces (such as
the Axis invasion) fromoutside Yugoslavia itself. For most of the restof the history of those lands,
there are no records of Croats killing Serbsbecause they were Serbs,or vice-versa. And even
though it was of courseue that the killinghad been severe during the second world war, it was
not obvious why, nearlyi@ years later, a populationthe majority of which had no persona1
mernories of that war should spontaneouslye up to re-enact its horr[Wit" no Peace to
keep..., London, 1995,Noel Malcolm,Impartiality & Ignorance,p. 120-121,
Annex 2941.
22. These exarnplesare nowhere near exhaustive, butdo make it sufficientlyclear that
any theory on some "moral equivalency" between the Applicantand the Respondent
lacks any basis whatsoever.
Bosniaand HerzegovinaSposition towards non-Serbsuspectsof war crimes
23. As indicatedabove,many non-Serbsacted on their own in a strugglefor survival.
Bosnia andHerzegovina doesnot excludethe possibilityof these people having
committedcrimes,maybe even war crimes, inthese situations.
It is relevant to note that the governmentauthoritiesthroughout thewar did whatever
they could, given thevery difficultcircurnstances,in whichthe very survivalof the
non-Serb, especiallyMuslim,populationof Bosnia and Herzegovina was at stake,to Chapter 16-Section I
Introductoryremarics
prevent atrocities from occurring, to speak up against them if it became established
that they actually did occur and to prosecutethe perpetrators whenever that was,
again given the circumstances,possible.
In the report mentioned above, the Commissionof Experts confirms this position of
the Applicant. While discussing certain atrocities committed inside Bosnian
Government detention centres, the Commission notes that it "has not been able to
detect any particular pattern or policy of wrongdoing. The Commission has,
however, ascertained that the Government of Bosnia and Herzegovina has expressed
its opposition to these individual violations." [UnitedNations, Final Report of the
UnitedNations Commissionof Experts, SI19941674(Vol. 1),27 May 1994, p. 52,
para. 2271.
25. Of course, during the war most of the Applicant's govenunent institutions, including
the judiciary, were severely hampered in their ability to fùnction. Therefore, the
Bosnian authorities have not been able to widely andactively prosecute suspectsof
serious crimes in this period, regardless of the ethnic background of the perpetrators
or, for that matter, of the victims. However, even whilethe war was going on, the
Applicant's authorities have, from the very first day of its establishment, been
actively supportingthe work of the ICTFY regardless of nationality andlor ethnic
background of suspects under investigation. Thereare many documents, reports and
letters demonstrating this. At this point itsuffices to reproduce just a few of these.
On 10 October 1994the Prosecutor, Justice Goldstonewrote to the Bosnian
Secretary for Foreign Affairs:
"on my ownbehalfandon behalfof mydelegation,may 1 thankyou andAmbassador
Dervisbegovicformeeting withusduringourrecentvisitto Sarajevo.The suppotffered toOur
TribunalbyyouandyourGovemmentis mostreassuringanda sourceof encouragementto us.It
is agreathopethattheworkof theTribunalwill assistinbringingenduringpeaceand
reconciliationto yourregion.With kindregard[JusticeGoldstone, Letter to Bosnian
Secretary for Foreign Affairs, 10Oct. 1994,Annex2951.
Another exarnpleof the full cooperationby the Bosnian authorities is to be found in
the handling of the Celebi~icase. Within two months after they had been indicted,
the Bosnian authorities arrested two Bosnian Muslims suspected of war crimes
committed in the Celebi~idetention center in Bosnia and Herzegovina. In its press-
release of 13 June 1996the ICTFY announced:Reply of Bosnia andHerzegovina
"~azim Deliéand Esad Landzo, two of the accused named in the ~elebidi indictment, issuedon22
March 1996, have beentransferred to the ICTY's Detention withthe help of IFOR. They will make
their initial appearances before TrialChamber II on Tuesday 18June 1996.
Hazim DeliCand Esad Landzo were arrestedon Thursday 2 May 1996 in Bosnia and Herzegovina
by the Bosnian authorities, andnce then have been detainedin custody in Bosnia and
Herzegovina.
Their transfer has been arrangedointly by the Bosnian authorities, the Tribunal's Registry and the
Multinational Implementation Force (IFOR). Based on the Memorandumof Understanding signed
on 9 May 1996 by NATO and the ICTY, the support givenby IFOR included military
transportation and general security. Hazimeliéand Esad Landzo were movedby IFOR ground
transportation to Sarajevoirport, where they departed for the Hague onboard a military C-160
aircraft. IFOR troops provided asecure environment along the ground transportation route andat
the airport.
BACKGROUND
Arising out of the operation in 1992of a detention campown as Celebiéi,located in the Konjic
municipality in Central Bosnia and Herzegovina, the indictment allegetshat HazimliCwas
deputy commander of celebiéiCamp between May and November 1992 and, for a brief time,
between November and December 1992, its commander. In this capacity, he is charged with both
(or in the alternative) individual and command responsibilityfor violations of the laws and customs
of war and grave breaches ofthe Geneva Conventions. Esad Landzo is charged with individual
criminal responsibility for grave breachesand violations of the laws and customsof war, allegedly
commitîed inhis capacity as a campguard at ~elebici between May and December 1992."
[ICTFY,Press ReleaseCCPI01087-E, 13June 1996,Annex 2961.
On 5 May 1996,irnrnediatelyafter the May 2nd arrest of these two suspects, Justice
Goldstone, wrote to Judge Vidovik,Bosnia'sLiaisonOfficer tothe Tribunal:
"1would liketo acknowledge with thanks yourletter of2 May 1996, in which your informedme
of the arrest of Messrs. DeliCand Landzo by the authorities ofthe Republic of Bosnia and
Herzegovina. Thisis the first time that warrantsof arrest against persons indictedby the Tribunal
have been executedby any Government inthe former Yugoslavia. 1sincerely hopethat this
example by your Government willact as en incentive for other Govemmentsalso to comply strictly
with their international obligations.
As you are well aware al1of us in the Office of the Prosecutor have valued and appreciated the
fnendly cooperation and assistancewe have received for your Government.1would be grateful if
the terms of thisetter could be conveyedto President Izetbegovid and his Cabinetcolleagues."
[JusticeGoldstone,Letter to JudgeVidoviC,Bosnia'sLiaisonOfficerto the
Tribunal, 5 May 1996,Annex2971.
On 7 May 1996 JusticeGoldstone wrote tothe BosnianPrime Minister:
"~hank you for your letter o1 may, 1996,1am most appreciative of your firm and full reiteration
of the support of yourovemment for the work of this Tribunal. Since writing my letter to H.E.
PresidentAlija IzetbegoviC,your authorities have arrested the two indictedmen and there couldbe
no better illustration of your supportthan that action.
1look forward to further close cooperation with you and yourGovemment in the firm conviction
that without bringing a measureof justice to your people noduring peace can be anticipated in
the former Yugoslavia. My colleagues and 1are most encouragedthat this convictionis shared by Chapter 16 -Section i
Introductory rernarks
y~~." [Justice Goldstone, Letter to the Bosnian Prime Minister, 7 May 1996,
Annex 2981.
With regard to the alleged threatening by Bosnian authorities of a witness in the
TadiCcase, the Prosecutor conducted intensive investigationsin Sarajevo. In her
letter to President IzetbegoviCthe Prosecutor, JusticeArbour, not only confirms that
the Bosnian authorities have not been involved in any of the alleged conduct, but she
also thanks the Bosnian authorities for their assistance and cooperation in this issue:
"1 refer to my letter dated 29 October, seeking yourCO-cooperationin an investigationof an
alleged perjury committed before the IntemationalCriminal Tribunal for the former Yugoslaviaby
Dragan Opacic, a witness in the trial of Dusko Tadic.You will no doubt recallthat this witness
told one of the Tribunal's Investigators thathe, Opacic, had lied in his evidence beforethe Tribunal
and that, while in custody in Bosnia, he was threatenedby persons in positions of authority,was
induced to give false evidence and was trained onhow to deliver the false testimony.
1would liketo thank you for the total CO-operatwith your authorities extendedto our
Investigators over the last weeks conceming this investigation. They reportthat they were given
prompt and total access tol1relevant material and personnel. As a result, our Investigatorswere
able to followPACIC's movements and handling fromarrest until he was tumed over to the
ICTY. Based on our brief, but intensive, investigation, we have not discoveredanything that would
support OPACIC's allegations that your authoritiesforced himto give false testimony in theTadic
trial or trained him in delivering the false testimony. To they, the information obtainedby
our Investigators suggests that Opacic's allegations against your authorities are false.
The investigation into thetent of Opacic's allegedperjury is still continuing.
In conclusion, 1wish to thank you for your assistanceand CO-operationin this important and
sensitive investigation[Justice Arbour, Letter to President IzetbegoviC,Annex
2991.
Al1of this is certainly not supporting the allegations of the Respondent thatthese
government authorities were actively involved in the commission of war crimes, let
alone genocide.
Thematerialprovided in supportof thecounter-claims
26. Insofar as any documents are annexed in support of the alleged acts presented to
support the counter-claims, they usually contain anonymous witness statements given
before a Serb legal authority. The Applicant is not at al1able to verifj the
background of these presumably legal authorities nor is it able to assess the quality
of the presumably legal proceedingsin the course of which, again presumably, the
statements were delivered. The Applicant, therefore, does not accept the validity of
any of these witness statements as material to support the Respondent's allegations.Reply of Bosnia and Herzegovina
27. The Applicant Mer notes that, whatever may have been the nature of the
mentioned "legalproceedings", accordingto the verbatim recordsthe witnesseswere
never cross-examinednor have they been interrogatedby any neutral, independent
authority.Also for these reasonsthe Applicantdoes not accept the validity of anyof
these "witness" statementsas materialto supportthe Respondent'sallegations.
The Applicant further wishesto draw the attentionof the Court to thefact that
severalof the witness statementswere given in the courseof proceedings beforean
"investigativejudge"of a "Basic Court"in Belgrade "in the criminalproceedings
againstNN for the criminal act of Article 141, 142, 143 or 144of the Penal Law of
Yugoslavia" [Counter-Memorial7.1 .:Annex No. C 17, para. 7.1.14.1, AnnexNo. C
34, para.7.1.9.11.1., Annex No. C 40, para. 7.1.15.5. and Annex No. C 116, para.
7.1.16.1.;Counter-Memorial 7.2. :Annex No. C 28, para. 7.2.1.14.1,Annex No. C
116,para. 7.2.5.4., AnnexNo. 300, para. 7.2.6.38.1.,Annex No. C 66, para
7.2.10.1.4., Annex No. C 248, para.7.2.25.1., Annex No. C 130, para. 7.2.28.1,
AnnexNo. C 3, para. 7.2.28.2.and Annex No. C 81,para. 7.2.30.25.; andCounter-
Memorial 7.3.: Annex No. C 57, para. 7.3.12.1 .].The Respondentfails to clarifj
whether these investigationscover al1possible war crimes and related crimes
allegedly comrnittedon the territory of Bosnia and Herzegovinain the relevant
period of time or thatthese investigationsare exclusively restricted tocases of Serb
victims with non-Serb suspectsof the investigated crimes.
29. The Applicant also notes that, accordingto the verbatimrecords of the witness
statements,the investigative judgesfrom "Republika Srpska" also workon the basis
of the Yugoslav CriminalAct, while referring to the same articles as the Respondent
judges do. Sometimesreference is made to merely "the Penal Law",sometimesthe
records explicitly refer to "theend Law of Yugoslavia", sometimesreference is
made to "the Penal Law of the Republicof Srpska". Althoughal1republics emerging
from the former Yugoslaviahave copiedthe former YugoslavCriminalCode into
their own national CriminalCode, at least until the Dayton Accordsthere was no
separate "RepublikaSrspka"Criminal Code, while Bosnia and Herzegovina had its
own Bosnian Criminal Code copiedfrom the SFRY.It is therefore noteworthy that
apparentlythe Bosnian Serbshad organizedtheir judicial systemnot only separate
fiom that of Bosnia and Herzegovina,but as, alternatively,their own system and as
part of the legal systemof Yugoslavia. Thus, at least part of the Bosnian Serb legal
system fùnctioned as an integrated partof the Federal legal systemof Yugoslavia. Chapter16- Section 1
Introducforyrernarks
30. It is further noteworthy that the Articles referred to -141, 142, 143 and 144- al1
belong to a chapter in the Criminal Code codiQing "Criminal Acts againsthurnanity
and international law". This chapter is annexed to this Reply, including a translation
into English of the four mentioned Articles [Annex 3001.Most of the 140witness
statements are delivered in the course of investigative proceedingsbased on Article
142 and 143, sometimes based on Article 144. These three articles deal with war
crimes in general. Article 141 explicitly deals with genocide.
31. Only four witness statements referred to in the Counter-Memorialare given in the
course of the investigation of allegedly genocidalacts [AnnexNo. C 123,para.
7.2.1.0.; Annex No. C 257, para. 7.2.4.10.; Annex No. 300, para. 7.2.6.0.; Annex
No. C 250, para. 7.2.8.0.1.Presumably, these cases al1relate to Serb victims. It is
remarkable that the Respondent takes about 650 pages in its Counter-Memorial to
demonstrate alleged genocidal acts, that the Respondentneeds many hundreds of
pages of witness statements, presurnablyto supportthese allegations, while, in fact,
only four statements in al1seem to refer to genocide.
32. This is also remarkable for yet another reason. As has been shown above [Chapter 4,
Section 11,the Serb rhetoric usually includes explicit references to"the Genocide",
which, allegedly, has always been committed against the Serb people; against this
background one would certainly have expected that al1of the investigationsset up by
the Respondent would have explicitly focusedon the crime of genocide as codified
in Article 141. However, this turns out not to be the case. The Respondent has failed
to explain why, then, al1the annexed witness statementswould serve to support its
counter-claims. Bosnia and Herzegovina concludesthat also for this reason there
does not exist any legally relevant basis for Respondent's counter-claims.
33. The autopsy and medical examination reports annexed to the Counter-Mernorial also
need someelucidation. With regard to the autopsy reports annexed to the Counter-
Memorial the Applicant notes that on some occasionsthe autopsy reports indicate
that they have beenproduced by the "Military Medical Academy, Pathology and
Forensic Institute, Belgrade" [AnnexNo. C 269, Counter-Memorial para. 7.1.14.1 .;
Annexes No. C 13 and No. C 268, Counter-Memorial7.1.23.1 .;Annex No. C 157,
Counter-Memorial para. 7.1.2.1 1;Annexes No. C 159 and No. C 158, Counter-
Memorial para. 7.1.9.12.1.Pre-printed standard formswere apparently used for these
autopsy reports on which "Autopsy requestedby" also appears. The annexed reports
al1relate to cases in which the autopsies were requestedby Bosnian Serb authorities
and took place on the territory of Bosnia and Herzegovina.This is again anotherReply of Bosnia and Herzegovina
demonstrationof the entirely integrated natureof the structuresof the "Republika
Srpska" and the Respondent.
For the medical reports the same applies: they havebeen requested by the Belgrade
based Comrnitteefor Gathering Evidence on Crimes Committed against Hurnanity
and International Law. These medical examinationswere done by doctors on the
territory of Bosnia and Herzegovina,which also attests to the entirely integrated
structures of the "Republika Srpska"and the Respondent.
34. Finally, regardingthe medical examinationreports, the followingneeds to be pointed
out. Every medical report containsa section called"CaseHistory" in which the
doctor or doctors examining the patient - whose name is not on the reportsbut is
said to be known by the Committee -noted the personal story of the particular
patient. These personal stories, or "casehistories"many times seemto be copies of
related witness statements and, inany case, at bestcan only serve as evidenceof the
particular injuriessustainedby the patient and the possible physical causes thereof -
it cannot serve as proof of the circurnstancesin which the injuries were sustainednor
of the identity of the allegedperpetrator.The photos which accompanythese reports
are in most instances horrific indeed, but, like the reports themselves, they cannot
and do not provide any proof of the existenceof an organized campaign aimed
against the Serbs assuch.
Serbreligious holidays
35. Below, the main issuesraised in the counter-claimswill be discussedsection by
section. At this stage Bosnia and Herzegovina will respond toa theme repeated many
times throughout the Counter-Memorial.
One allegation which comes back many times, apparentlyto demonsiratealleged
religious motives, is that thenon-Serbshad a strong preferencefor Serb religious
holidays on whichto strike back to the Serb occupier. Without acceptingthat the
incidents mentionedby the Respondentactuallydid occur at dl, or the way they are
presented, Bosniaand Herzegovinadoes admitthat sometimesreligious holidays
were chosen to attack the Serb occupier.However,this was not done to desecrate
these holy days, but merely for the well known fact that on these holidays Serb
soldiers would have loweredtheir guard and would, therefore, not be able to react
adequately. This is anacceptedmilitary tactic. It is clear that these facts do not corne
close to demonstratingthat the Bosniangovenunent authorities infact practisedsome
ethnic cleansingpolicy or had a genocidal intent. Chapter 16 -Section2
Incitement[Counter-Memorial7.O.]
2. Incitement [Counter-Mernorial7.0.1
36. In its Counter-Memorial the Respondent alleges that Bosnia and Herzegovina has
incited acts of genocide. The Respondent does so by means of an almost casual and
in any event not elaborated remark concerning four issues: the "Islamic Declaration",
a Songpublished in a magazine, an article in a newspaper, a radio programme
broadcasted immediately after the Markale-massacre of February 1994 (not 1993,as
the Repondent states) in which 68 persons, a majority but not al1of them being
Muslims, were killed. The Respondent does not explain why these events (even if
true and correctly interpreted by Respondent) would even begin to support the notion
that the Bosnian Govenunent authorities have at any relevant point in time incited
the Bosnian public to destroy in whole or in part the Serbs living in Bosnia and
Herzegovina. The Respondent offers no proof whatsoever to'support the idea that the
Bosnian Goveniment conducted a policy of ethnic cleansing towards the Bosnian
Serbs.
37. It is not the first time in these proceedings that the Respondent embarks on a
persona1attack on President IzetbegoviC,referring to one of his pre-Presidential
publications, the IslamicDeclaration,in an attempt to demonstrate that violations of
the Genocide Convention were committed by Bosnia and Herzegovina. Exactly the
same wording was used in Respondent's Preliminary Objections raised in these
proceedings in June 1995 [para 1.6.1.-1.6.8.1.In its Statement of 14November 1995
Bosnia and Herzegovina already responded to these allegations. Although the
Respondent has not rebutted this response it will be repeated here in its entirety:
"53. The Preliminary Objectionsrefer to the President's wntings in 1970,namely a document
entitled theslamic Declaration[at AmexPart 1,pages 171-2401.At pages 172-3,an introduction
is annexed which is not part of the Declaration andnot emanate from any recognisedsource
The President, a retired lawyer, wassent to prison in a trialhe Communist era, which the
introduction itself at page 172states was rightfully denounce8)and which was assessed as
"Stalinist" (line 14).
54. By taking quotes out of context, and emphasisingcertain passages,the Preliminaw Objections
appear to portray the Presidenta man who is a religious extremist. Taken out of context and
read in isolation,ch an impressionmay be created, but would be at opposite ends fiom the truth.
55. One merely needsto read the IslamicDeclaration [even the annexed version [at Annex 1,rt
pages 171-2401,althoughthe translation is matenally inaccurate) to establish this is incorrect.
Whilst references are made in the text toous named States, not one reference is made to
Bosnia. A few illustrationsfiom the Declaration are given by way ofle:
"(THE EQUALITY OF PEOPLE)Reply of Bosnia and Herzegovina
(...) Two facts of paramount importanc-the unity of God and the equality of al1me-
have been laid downby the Koran (the sacred textof Muslims)in such a clear and explicit
way that they allow for only one, literal interpretation, thereis no divinity but one God;
there is nochosen nation, chosen race or chosen cl-sal1men are equal (...) People must
be distinguished between-if any distinctionis to be mad-primarily according to what
they really are,eaning accordingto their spiritualand ethical value (the Koran,suras
49/13)" [page 200, lastparagraph].
(-1
"(FREEDOM OF CONSCIENCE)
(...) However much puritan in morals it maybe, Islam is, because of its opennessto nature
andjoy, broad-minded, as testified to by the entire histov of Islam. As it recognises God,
but does not recognise any dogmaor hierarchy, Islam cannottum into a dictatorship andin
it any form of inquisitionor spiritual terror has been rendered impossible" [pa-20807
12thto 17th line].
(-1
"(CHRISTIANITY AND JUDAISM)
[Referring to Christianity and Islam] (...) the future couldserve as an example of
understanding and CO-operationbetween twomajor religionsto the benefit of al1people and
the human kind, as opposed to the past which witnessed their senseless intolerance and
friction(...) A similar principle underlies the attitude of Islamto Judaism. We have lived
with the Jews for centuries and even created a culture,so that in certain cases a distinction
between Islamic and Jewish elementsin that culture is impossibletoke with certainty."
[pp. 229-230, p. 230, 12th lineto 21st line].
Already in the stage of the Preliminary Objectionsthe Applicant concludedthat the
Respondent's allegationsbased on the IslamicDeclarationare ill-founded,because
this publication does not cal1for genocidal action. Moreover,the IslamicDeclaration
has never been raised to the level of Governrnentpolicy. Thesame reasoningapplies
within this stage of the proceedings.
38. As with the IslamicDeclaration,the Respondentin its Counter-Memorialbluntly
repeats is ailegationsbased on one publicationin Novi Voxmagazineof October
1991 (published before Bosnia and Herzegovinabecame independent!)[Counter-
Memoriai para7.0.1.2.1.Bosnia and Herzegovinahas alreadyrespondedto these
allegations in its Statement of 14November 1995:
"38.In the Preliminary Obiections referenceis furthemore made to a periodical calledNovi Vox,
which is presented by Yugoslavia (Serbia and Montenegro)as in some way representingthe
Bosnian Govemment's views and policies.The Bosnian Govemment emphasises thatit strives to
ensure freedorn of the prein Bosnia and Herzegovina andthat îhere has been no relationship
between the views and the policies of the Bosnian Govemment andthe conduct of the editors of
Novi Vox.
Moreover, only four issues of Novi Voxwere ever released between the Spring and Winter of 1991,
of which only three were distributed by its editors.Of each issue no morethan an estimated 12,000
copies were produced. The distributionof the periodical was stopped duetominal proceedings Chapter 16-Sectio2
Incitement[Counter-MemorialO.]
againstits editors, which proceedinnitiatedbythe ProsecutoOffice of Sarajevo.Whilst
the caseas not pursuedt,heperiodicalhasneverbeen publishedsi[Statementon the
Preliminary Objections, para.38, pp. 16-1 71.
The same response applies for these allegations,when presentedas part of the
counter-claimsas they were submittedby the Respondent.
39. It is useful to add that the publicationof this issue of Novi Voxat the time gave rise
to a debate in the Bosnian Parliament(i.e. the pre-independenceParliament). During
this debate, which took place on 1 October 1991, al1three major politicalparties
condernnedthis publication in clear language.The Representativesof the SDA, the
Muslim dominated Party for Democratic Action, clearly dissociatedthe SDA from
the Novi Voxwritings, stating thatthis "storyindicates thatin the society, there is a
seed of fascism and crisis of moral against whichit should be fought" [see the report
of this Parliamentarydebate in the independent Bosnian newspaperOslobodenje of 2
October 1991,Annex 3011.Bosnia and Herzegovinamust assumethat al1of this is
known to the Respondentas well, which makes it even more peculiarthat the
Respondentuses this as one ofthe few examplesto demonstrate incitementby the
Government of Bosnia and Herzegovina.
To avoid any misunderstanding, Bosniaand Herzegovinalikes to stress here that it
never has and does not now, even after al1that happenedto the non-Serb population
of Bosnia and Herzegovina, support any of the awhl ideas and suggestionscontained
in the Novi Vox Song.
40. The Respondentfor the purposeof its allegations regarding "incitement"also refers
to an article published in a Tuzla-newspaper publishedon 1 April 1993 [Counter-
Memorial para 7.0.1.3.1.The article itself was notannexedto the Counter-Memorial,
but reference was madeto it in the Periodic Reportof 5 May 1993of the Special
Rapporteur, Mr. Mazowiecki.
It suffices to Saythat the contentof this article does not reflect any of the views nor
policies, of the authoritiesof Bosnia and Herzegovina. Moreover,the Respondenthas
not even stated, let alone proven,this to be the case. However, Bosnia and
Herzegovina notes that the author of the article rightly,and in conformitywith the
views and policies of Bosnia and Herzegovina,Statesthat "Instinctivelyevery
Muslim would wish to savehis Serb neighbour insteadof the reverse (...)"Bosnia
and Herzegovina deplores and refutes the author'scalling for Muslimsto kill Serbs.Reply of Bosnia and Herzegovina
More importantly,the Applicantwishesto draw the Court's attentiontoa public
statement which, indeed,at the time did (and still does) reflect the views and policy
of the Bosnian Government:
"Wehave been livingfogefherin Tuzlafor ages. One nation hasnever been endangeredby another
nation. Wewill notpermit thingsohappenbecause of whichwe would be ashamed.Al1together,
Muslims,Croats, Serbs as well as others are endangeredfrom one aggressor.I remindyou that
during World War Ii,wepreserved the townfrom nationalism.The mayor at the time, Hadzi
Hasanaga Pasic and the judge Kurt, together with al1Tuzla people did not permit neither a
genocide over Serbs nor they permitted the Orthodox church and Vladicin dvotro be. When
the church was in dangerecause of settling of the ground,we made a technicalwonder and we
managed to defeat nature ando save the object. To be honest, we did notSaveit fiom the
aggressor's grenades, butthe aggressor will beshedfor this shameful act. Unfortunately,
although we have a good control over the town, tonight happened anefulact of burglary of
Vladicin dvor in which unknown burglars spentveral hours in searching, drinkingand
barbecuing. Policenspector crews are investigatingon the spot, finding finger prints and other
criminal police procedures. 1promise to peoplefiom Tuzla that we will do everythingto catch and
punish burglars and vandals witharp punishments. This is Tuzlaand we in Tuzla will not allow
any vandalism and barbarism! We will punish every one who wishesto besmirch the faceof this
town with his act."
The statement speaks foritself. It was deliveredon 9 June 1992by the, then, mayor
of Tuzla and is reproduced in his book The Town andPeople [Tuzla, 1997,p. 38
and 39, emphasis added, Annex 3021.
41. Finally, the Respondentwith regards tothe alleged "incitement"refers to the
broadcasting of a live-radioprogrammethroughRadioHayatduring which
programme listenerswere invited to reacton the massacreof 68 people at Markale
market which hadjust taken place before.The Respondent,withoutproviding any
material whatsoever, presentsas fact that this massacre was"causedby the
Muslims". Whatevermight have been meant by "caused", Bosnia and Herzegovina
herewith reproduces its responseto these sarneallegationsput forward in the
Preliminary Objections-stageof these proceedings:
"39.Also irrelevant and erroneousis the annexed account of the two attacks on civilians, which
according to Yugoslavia (Serbia and Montenegro) were carried outby Muslim forces (Preliminarv
Obiections, para. 1.6.10). In the first shellinMayn21992,at least sixteen people, while
waiting in line to buy bread, were killed near the marketon Vase Miskina Street. BosnianSerbs
immediately emphaticallyclaimed that the attack was committedby Muslimor Croatian forces, in
order to provoke internationalmilitary intervention. Even thoughthese claims were later taken up
by western newspapers,UN investigatorson the spot found no proof of these accusations. Onthe
contrary, accordingtohese investigators:
'It appearedthat the attack in which three mortar shells fell near a groupof Serbs,
Croats and Muslims waitingin line at a market to buy bread,launched by
Serbian unitsin the hills South of Sarajevo. About 12hours before this mortar Chapter 16 -Section 2
Zncitement[Counter-Memorial7.O.]
attack, artilles, shellswere also apparently fired fiom the same Southem hi11were
Serbian gunners had set up batteries, hitting the main matemityhospital near
Sarajvo's centre.'(Final Reportof the Commissionof Expertsestablishedpursuant
to Security Council Resolution780 (1992), Sl19941674,27 May 1994, Annex VI,
Study of the Battle and Siegeof Sarajevo, para. 275).
40. The second mortar attack, onMarkale Market, referred to in the Preliminarv Objections (at
para. 1.6.10thereof) killed at least 66 people and woundedat least 197 others. This attack took
place on 5 Febmary 1994.Again the Bosnian Serbs claimed that this shell, which incidentally was
only one of the 46 mortar shellsthat hit the city of Sarajevo that day,had been fired by Bosnian
forces (FinalReport of the Commissionof Expertsestablishedpursuant to Security Council
Resolution780(1992), Sl19941674,27 May 1994, and Annexes, AnnexVI, Study of the Battle and
Siege of Sarajevo, para. 3210(...)). After a first investigation, a senior US administrationofficial
said that Washingtonhad 'very little doubt' that Bosnian Serb forces fired the mortarshell (ibidem,
para. 3220 (...)). Bosnian Serb commander ManojloMilovanoviC,however, denied BosnianSerb
responsibility claimingthat "Serb positions are not that close, and wedo not possess arms capable
of causing such a massacre" (ibidem, para. 3212 (...)).
41. The UN set up a special commissionto investigate the massacre. Its conclusions were published
in the Final Report ofthe Commissionof Experts:
'Canadian Colonel Michel Gauthier, who headed the UN'Sfive- member commission
of inquiry on the market shelling, reportedthat the mortar bomb which hit the
Sarajevo market on 5 Febmary could have been firedby either besieging Bosnian
Serbs or defending BiH forces. The five-member investigativeteam, backed by two
technical experts, foundthat the market blast was causedby a single high-explosive
bomb from a conventional, factory made 120 millimetre mortarT . he precise location
of the weapon that firedthe round could not be established.'The distance or origin
of fire overlapped eachside of the confrontation lineby 2,000 meters', Gauthier said.
'Both parties are knownto have 120mm, and the bombsgo along with them. The
team has no reason to believe that eitherparty does not have accessto this type of
ammunition'.' (Final Reportof theCommissionof ExpertsestablishedSecurity
CouncilResolution780 (1992), Sl19941674,27 May 1994 and Annexes, AnnexVI,
Study of the Battle and Siege of Sarajevo,para. 3334(...).
Thus, the investigationof the commission was inconclusive.It has not been possibleto attribute the
attack to either of the parties involvedin the war. In any case, the Yugoslavia (Serbia and
Montenegro)'~claimsthat the attack was carried out by Bosnian forces are not supportedby the
conclusions of the specialN commissionof inquiry. If anything, the conclusionof the
commission contradict MilovanoviC'sassertion,that the Bosnian Serbs were notin the possession
of the arms capable ofsuch a mortar attack." [Statementon the Prelimanaryobjection,
pp. 17-19, paras 39-41].
In other words here is no materiai supportingthis part of Respondent'sallegations.
42. Although Bosniaand Herzegovina acknowledgesthat a radio-broadcastof the sort
describedby the Respondenttook place, it does not acknowledgethat the
reproductionof it as Annexedto the Counter-Memoriai[Annex781is correct,
especially becausethis reproduction also seemsto refer to a TV-broadcasting ofthe
sarneand seemsaiso to be mixed with cornrnentsof the Respondent.At the timeReply of Bosnia and Herzegovina
(and for that matter also now) Bosnia and Herzegovinafully understoodthe feelings
of anger and the cal1for revengefrom people who eye-witnessedthe massacre,
which were very strong afier this massacre, which tookplace inthe midst of the
daily and ongoing shelling of the civilian populationof Sarajevoby the Serb side.
However, the Bosnianauthoritiesexplicitlyand publicly denouncedthese calls for
revenge and criticizedthe prograrneditors. The Directorof Radio Hayat was even
invited to theMinistry of Interior Affairs to be informed aboutthis position of the
Government.
43. Given the utrnost unsupported natureof the allegationsof the Respondent and given
the evidence on the Governmentpolicies discussedabove [Section 1of this Chapter],
showingthat the Governrnentat al1relevant timesdid whatever it possibly coulddo
to support its ideals andpolicies aimed atthe preservationof a truly multi-ethnic
State, it must be concludedthat there is no basiswhatsoeverfor alleging that Bosnia
and Herzegovinaincited to the commissionof genocidal acts.
3. Deliberate killing [Counter-Mernorial7.1.1
44. In its Counter-Memorialthe Respondentdevotesan extensive sectionon providing
data which supposedly support the allegation that Bosnia and Herzegovina woulb de
responsible for the deliberatekilling of persons of Serb nationalw iith the intent to
destroy the Serb people, in whole or in part. As explained above [Section 1 of this
Chapter] the Applicantdoes not deemit necessary norpractically possibleto go into
any of the allegationswhich arenot supportedby any material or only by material
which supposedly isto be found in Belgrade.
45. The Respondent devotesparagraphs7.1.1.O. -7.1.1.10. toatrocities allegedly
committed against Serbsliving in the communeof Srebrenica.It is rather appalling
that the Respondenthas chosento beginits listingswith Srebrenica,sincethere can
be no reasonable doubt about the extent of nor aboutthe legal qualifications of the
atrocities comrnittedby the Serbside to the non-Serb populationof Srebrenica,not
only in 1992, but also al1dong until the final massacrein July 1995 [for an
extensive description of "Srebrenica" see above, Chapter5, Section 81.
46. Apart from this, in this section,the Respondent onlyprovides for one annexed
document to support its allegations:AnnexNo. C 160,Photos 1-2 [Counter-
Memorialpara. 7.1.1.9.1.This annex containstwo, indeed,horrible pictures, but does
not provide any Mer information. Theannex does not clari@nor demonstratethe Chapter16 -Section 3
Deliberate killing[Counter-Mernorial7.1.]
background of these pictures, let alonethat it would provide for any objective
indication that the perpetratorofthese atrocities,whoever thatmay have been, did
commit these as part of a campaign, directedby the Applicant's Governmentand
aimed at the destruction of a specificethnic group.
47. A similar comment needsto be made onthe sectionon Bratunac [Counter-Memorial
7.1.2.0.1.A similar conclusion needs tobe drawn as to the relevance of this material.
In this section only two documents are annexedto support the Respondent's
allegations:Annex No. C 157,pp. c1537-c15401c1541-c1545 and AnnexNo. C 160,
Photo 3 [Counter-Memorial para. 7.1.2.11.]. Regardingthe annexedphotograph the
same comment as made inthe preceding paragraphneeds to be made.
The other annex containsan autopsy report regarding aperson identified in the
report. The report was made in March 1993 afterthe excavation of the body;
presurnablythe killing took place on25 May 1992,although the report does not
contain any reasoned opinion regardingthe latter date.
The report Mer states [similar towhat the Respondentstates in Counter-Claim
para. 7.1.2.11.] that the deceasedused to be the Chief of Police in Bratunac.
Apparently he diedin function, since according tothe report the deceasedwas
wearing a "Camouflage police jacket and short sleevesshirt, with the Chief of Police
Station Insigna" [Annex No. C 157, p. ~15431.The report does not provide for any
objective indicationthat the perpetratorof these atrocities,whoeverthat may have
been, did commit these acts as part of a campaign,directed by the Applicant's
Governmentand aimed at the destructionof a specificethnic group. It is, however,
well known that police forceswere usedas military forces and were often
responsible for the worst genocidal acts [Reply, Chapter 8,Section 61.
48. The section on MiliCi[Counter-Memorial7.1.3.0.1is not supportedby any accessible
material whatsoever - this sectionwill not be further discussedin this Reply.
49. In the sectionon Skelani [Counter-Memorial7.1.4.0.1nine documents are annexed:
Annex No. C 82, (...)pp. c825-~8291~830-c833 [Counter Memorial para.7.1.4.1.],
Annex No. C 42, (...)pp. c429-~4321~433-c435 A, nnexNo. C 71, (...)pp. c728-
~7311~732-c734A , nnex No. C 72, (...)pp. c735-~7391~740-c743A , nnex No. C 73,
(...)pp. c744-~7481~749-c752A , nnexNo. C 91, (...)pp. c913-c917/c918-c921,
Annex No. C 98, (...)pp. cl002-c1005/cl006-cl009 [Counter Memorialpara.
7.1.4.2.1,Annex No. C 22, (...pp. c215-c217/~218-~219 and Annex No. C 23, (...),
pp. c220-~2241~225~227[Counter Memorialpara. 7.1.4.3.1.Reply ofBosnia andHerzegovina
Al1of these annexes contain anonyrnous,mostly hearsaywitness statementsgiven
before an investigativejudge (inmany casesanonymous)of presumablythe
"Republika Srpska"; none of the statementsprovidesany proof of the identity of the
perpetrators of the atrocitiesdescribed, letone any material showingthat the
mentioned atrocities took place as part of a well-organised campaignor pattern of
conduct.
Paragraph 7.1.4.3 of the Counter Memorial underlines that "Skelani itselis mainly
populated by Muslims."The testimony of witness CM [AnnexNo. C 23, pp. c226-
c227J does not provide any basisfor the assumption that Muslimforces deliberately
targeted Serbs living in thisown. The statementdoes not explain the nature of the
fighting that allegedlytook place, which explanationseemsto be indispensablesince
Skelani used to be populated mainlyby Muslims.
For the informationof the Court the Applicant wishes toadd that Skelani is situated
in the Srbrenicaarea, on the border with Serbia.It has been the theater of many
military exchanges.In May 1992many non-Serb civilianswere killed by Serbian
troops coming from across the border; at oneoccasion 17civilianswere sumrnarily
executed on the bridge across the Drina river, their bodies irnmediatelybeing thrown
into the river. It is truly unbelievable thatthe Respondent merely embarkson al1
sorts of, mostly unsupportedallegations,without providingany relevant background
information. Of course, this approachis not unique forthis specific Section;it is
only a mode1to the overall approachof the Respondent regardingits presentationof
its allegations.
50. The section on FoEa(renamedby the Respondentas "Srbinje", whichmeans "ci@of
Serbs") [Conter-Memorial 7.1.5.0.1is not supportedby any accessiblematerial
whatsoever, so this sectionwill not be Mer discussedin this Reply.
51. In the section onKonjic [Counter-Memorial7.1.6.0.1only one documentis annexed:
AnnexNo. C 76, (...pp. c769-~7751~776-c785 [Counter Memorial para.7.1.6.4.1.
This documentcontains an anonymous witness statement presurnably given before a
"RepublikaSrpska" legal authority. The witnessidentifieshimself as a leader of the
SDS and as a memberof a Serb "platoon".The witness extensivelydeclaresabout
the situation in, presumablythe Celebi~icamp. The witness does not provide for
any, letalone independent,matef al indicatingthat the atrocitieshe describes-if true-
form partof any well-organisedcarnpaignor pattern of conduct. Bosniaand
Herzegovinawould like to stressthat its authoritiesfully cooperatewith the ICTFY,
as has been shown in Section 1 of this Chapter. Atthis particularpoint in time
(March 1998)the ICTFY istrying the suspectsof atrocitiesin this camp, among Deliberate killing [Counter-Mernol .1.1
whom are a person called DeliC,mentioned in the witness statement. This DeliCand
one other suspect, Landzo, were arrested by the Applicant's authoritiesand
transferred to the ICFTY with their full cooperation.
In the section on Rogatica [Counter-Memorial7.1.7.0.1two documents are annexed:
Annex No. C 39, (...pp. c398-~4011~402-c406 and Annex No. C 160, Photos 4-13
[Counter Memorial para. 7.1.7.15.1.The latter Annex contains ten, indeed, horrible
pictures, but does not provide any further information. The Annex does not clarifj
nor demonstrate the background of these pictures, let alone that it would provide for
any objective indication that the perpetrators of these atrocities, whoever they may
have been, did commit these as part of a campaign, directed by the Applicant's
Government and aimed at the destruction of a specific ethnic group. The other
Annex contains an anonymous witness statement presumably givenbefore a
"Republika Srpska" legal authorityin September 1996;the statement does not
provide for any proof of the identity of the perpetrators of the atrocities described,
let alone any material showing that the mentioned atrocities took place as part of a
well-organised campaignor pattern of conduct.
The Respondent, again, fails to provide the Court with any relevant background
information. It should, at least, have explained, thatthis area was the theatre of
heavy military exchanges, especially in the sumrner of 1992.It should also have
mentioned, that the Serb forces at a certain point in time had to withdraw. They took
many Serb citizens with them and were forced to take a road, which they themselves
had mined before. That isthe background to the events related in para. 7.1.7.15. of
the Counter-Mernorial and that, indeed and regrettably, causedthe death of many
people
53. In the section on Novi Travnik [Counter-Mernorial7.1.8.0.1one document is
annexed: Annex No. C 109, (...)pp. c1110-cl 1l41c1115-c1118 [Counter Mernorial
para. 7.1.8.3-1.The Annex contains an anonymous witness statement, presumably
given before a "Republika Srpska" legal authorityin July 1996;the statement does
not provide for any proof of the identity of the perpetrators of the atrocities
described except that the witness indicates that it could have been "Muslims" or
"Croats". The statement does not contain any material showing that the described
rnurder was not an, indeed deplorable, incident but that it was committed as part of a
well-organised carnpaignor pattern of conduct.
54. In the section on Sarajevo [Counter-Mernorial7.1.9.0.1several documents are
annexed: Annex No. C 31, (..) pp. c324-c327/~328-~33 1, [Counter-Memorialpara.Reply of Bosnia and Herzegovina
7.1.9.4.1,Annex No. C 19, (...pp. c178-c195/c196c202and Annex No. C 34, (...)
pp. c355-~362/~363-~369[ ,Counter-Memorialpara.7.1.9.11.], AnnexNo. C 158,
Annex No. C 159, AnnexNo. C 160,Photos 14 and 15,Annex No. C 105,pp.
c1070-c1075/c1076-c108 1, [Counter-Memorialpara.7.1.9.12.1,Annex No. C 93, (...)
pp. c933-~9371~938-c942[,Counter Memorialpara. 7.1.9.14.1,Annex No. C 273, (...)
pp. c2346-c2325, [Counter-Memorialpara. 7.1.9.15.1,Annex No. C 160,Photos 16-
25 and AnnexNo. C 124, (...)pp. cl257-c1259/c1260-c1261,[Counter-Memorial
para. 7.1.9.16.1.
Al1of these annexes contain anonymous,mostly hearsay witness statements
presurnablygiven before a "Republika Srpska" legalauthority; none of the statements
provides any proof of the identity of the perpetratorsof the atrocitiesdescribed, let
alone any material showing thatthe mentioned atrocities took placeas part of a well-
organised campaignor pattern of conduct. The Applicantis able to provide the Court
more information on one of the alleged series of incidents in the sectionon Sarajevo,
since this is well known to the Applicant:the Respondentrefers to a series of
incidents which occurred in the localityof Kazani, in an area of Sarajevounder
government control [Counter-Memorial,pp. 422-425, para,7.1.9.151.
55. The Respondent provides a list of Serbs allegedly killedin Kazani and also the
narnesof the supposed perpetratorsof the crimes. Apparentlythe Respondent
presents the Kazani casein supportof its allegations regardingan asserted genocidal
policy of the Bosnian government. However,the Kazani case proves theexact
opposite of what the Respondent claims:during the years of the siege of Sarajevothe
Bosnian authoritiesmade every effort to prevent the commissionof atrocitiesby
individuals on the territoryunder their control.
Without elaborating on or adrnitting anyof the incidents listedby the Respondent,
the Applicant acknowledges thatserious crimes were indeed committedin the Kazani
area by members of the rampant "9th (not lOth,as the Respondent claims) mountain
brigade". This brigade acted, in fact, completely independentlyof the Bosnian armed
forces and continuously ignoredthe orders given by Sarajevo.In the autumn of
1993, when the extent of the siegewas perhaps at its worst, the BosnianArmy and
Sarajevo police forcesmountedan operationin the Kazani area to stop the atrocities
being committed. During this armed operation,the commanderof the "9th mountain
brigade", MuSanTopaloviCo . r "Caco",died, when offering resistanceto his arrest.
During the operation, nine police officerswere killed by members of the "9th
mountain brigade". Chapter16 -Section 3
Deliberate killing [Counter-Mernorial 7.1.1
56. Not long after concluding the operation, eighteen membersof the "9th mountain
brigade" were indictedby the public prosecutor for various crimes allegedly
committed against several Sarajevan civilians. On26 September 1996, the Higher
Court in Sarajevo found twelve former members of the "brigade" guilty of murder
and sentenced four of them to ten year's imprisonrnent.The others received lighter
sentences, as the High Court judged that they had not actively participated in the
committed crimes [High Court in Sarajevo, Kubat Zijo a.0. ("'Kazani'i),Case number
K 87/96, 26 September 1996,Annex 3031.The Respondent complains about this
outcome of the proceedings, and apparently would have preferred much higher
sentences [Counter-Memorial 7.2.6.3 9.2.1.However, the Respondent does
acknowledge that, in any event, the Government authorities put an end to the
ongoing crimes by arresting and prosecuting the perpetrators. Therefore, the
Applicant fails to understand how this, ever, could be construed as evidence that the
Applicant actively conducted apolicy of genocide.
57. The section on Capljina [Counter-Memorial7.1.10.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply.
58. The section on ViSegrad[Counter-Memorial 7.1.11.O.]is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply.
59. In the section on Brod [the true name of this town is Bosanski Brod, however
the Respondent has deemed fit to delete "Bosanski",which means Bosnian]
[Counter-Mernorial7.1-12.0.1five documents are annexed: Annex No. C 37,
(...)pp. c384-~386/~387-~389,Annex No. C 38 (...)pp. c390-~3931~394-c397,
Annex Ko. C 68, (...)pp. c699-~7011~702-c705A , nnex No. C 93, (...)pp.
c933-~937ic938-~942[Counter-Memorial para. 7.1.12.1.] and Annex No. C 80,
(...)pp. c808-c810/c811-c813 [Counter-Memorialpara. 7.1.12.3.1.Al1of these
annexes contain anonymous, mostly hearsay witness statements presurnably
given before a "Republika Srpska" legal authority; none of the statements
provide any proof of the identity of the perpetrators of the atrocities described,
let alone any material showing that the mentioned atrocities took place as part
of a well-organized campaign. Without acknowledgingthe accuracy of the
allegations of the Respondent contained in this section, nor of the mentioned
witness statements, Bosnia and Herzegovina wishes toclarifj that certain
atrocities committed in Bosnia came to the knowledge of the BosnianReply of Bosnia and Herzegovina
authorities.As soon as that happened theauthorities of Bosnia and Herzegovina
publicly condemnedthis incident. Thesecondemnationshave been broadcasted
on radio and have been publishedin newspapers.In addition,AnnexNo. C 93
contains a witness statementthat is not related to the allegationsof paragraph
7.1.12.1. of the Counter-Memorial.
60. The witness provided in supportof the allegations containedin paragraph 7.1.12.3.
of the Counter-Memorialseems to state thatthe acts involvedwere allegedly
comrnittedby HVO soldiers. The Respondentfails to explainwhy, if the related
facts are true, Bosnia and Herzegovina wouldbe responsible. Forthe Information of
the Court, Bosnia and Herzegovina herewithprovidesthe descriptionof HVO given
by the Commissionof Experts of the UnitedNations:
'IRCroatian Defence Council
164.These surrogate forcesof the Republicof Croatianregular army(HV), are knownas the
HVO. They are usually comprisedof Bosnian Croatiansarmedandtrained by Croatia, andtend to
be more disciplined. Thisis the principal Croatianmilitaryforce fighB~H."n[United
Nations, Final Report of the Commissionof Experts EstablishedPursuant to
Securiv Council Resolution 780 (1992), Sl19941674,27 May 1994,Vol. 1,
Annex III, p. 30, para. 1641.
More recently the Prosecutorat the ICTFY, in his opening statementin the BlaSkiC
case on 24 June 1996provided the followinganalysisof the position of HVO in
Bosnia and Herzegovina:
"Now focusing onthe war in Bosnia, the parties to the conflict were generally, but not exclusively,
divided alongethnic lines:the Bosnian Serbs,under the leadershipof Dr. RadovanKaradzicand
General RatkoMladic soughtto cleave outan independententityknown asthe Republika Srpska.
The socialist Federal Republicof Yugoslaviaandts army,thNA, supported this effort, but
ultimately international pressure wasbroughtto bear andthe JNAwas withdrawn, at least
nominallyform Bosnia on 19thMay 1992.In truth and in fact theJNAremainedin Bosnia and
Herzegovina but merely changed itsname.The war machineof theJNA was essentiallytransferred
to the armyof the Republika Srpska,the VRS, and throughoutthe war Belgrade continued to
support the VRS with supplies, munitiosnd armarnents.It was possessionof these superior arms
that gave the Bosnian Serbsa decidedadvantageat the outsetof the conflictin Bosnia.
Now opposingthe Bosnian Serbs werethe Bosnian Muslimsandthe Bosnian Croats,both groups
initiallyunderthe directionof the central govemment, which was locatedin Sarajevo.Becausethe
Bosnian govemmentwas unpreparedfor war and becauseof the superiorarmamentsof the Bosnian
Serbs, the Bosnian Serbs made impressiveterritorial gn Bosnia and seizedontrol over large
parts of the country.The Bosnian Croats expressed dissatisfactionwith the Bosnian govemment's
weak response tothe Serbian aggression,and in 1991 andin 1992they createdthe Croatian
Communityof Herceg-Bosna,a quasi-state, anda militarycomponentto that state,the HVO,
ostensibly for the Defenceof Croat interests.Our evidencewill showthat the Bosnian Croatswere
provided withsignificantlogisticaland manpower support, political directionand diplomatic
backingby Croatia in their efforts.Whilethe Bosnian Croats initiallyalliedthemselves with the Chapter16 -Section 3
Deliberate killing[Counter-Memorial7.1.]
forces of the central govemment to resist the Serbian offensive, this alliancewas short-lived, and
shortly it fell apart and a war within awar erupted. Thatwar was the Croat-Muslimwar and it is
evens from that war that occurred in Central Bosnia that are the subjectof the second amended
indictment beforeyou.
Now, to put into context the evens of the Croat-Muslim war,1think it's very important to identifi
the parties to the conflict, their goals and objectives, andthe structures of their respective military
commands. 1well refer during the course of my opening remarks, your Honour,to the military unit
of the Bosnian Croats as the HVO and 1will refer to the military organisationof the Bosnian
Muslims as theArmija.
To understand the goals and aspirationsof the Bosnian Croats one must initially retumto one of
the former republics of the former stateof Yugoslavia, that is the socialist Republicof Croatia,
where in 1988 and in 1989 a new political party was formed. That politicalparty was called the
Croatian democratic communityof the HDZ. Its leader was Dr. Franjo Tudjman, thecurrent
President of Croatia, and a well-known former partisan, communist andNA general. Dr. Tudjman
drafied the programme of the HDZ, and this programme was nationalisticin tone and asserted,
among other things,the right of the Croatian peopleto self-determinationin their historic borders.
In April and May of 1990 multi-party elections occurredin Croatia andthe HDZ was triumphant.
It received the majorityofeats in the assembly and on 30th May1.990the assembleddeputies
elected Franjo Tudjmanas the President of Croatia and Stipeesic took the new postof Prime
Minister.
Following the electionsin Croatia, the HDZ politicalrty extended its activitiesinto Bosnia and
Herzegovina. The Croatian democratic party of Bosnia and Herzegovina or the HDZ BiH was
founded in Sarajevo on 18th August 1990, andit was registeredasan "association"in Sarajevo on
6th September 1990.The goals of this Bosnian-Croatparty included the rightof securing the right
of self-determination of Bosnian Croats,the right of secession andthe realisation of sovereignty of
Bosnia and Herzegovina. The first President of this party was a man by the name of Davor
Perinovic, and he was replacedby a man named Stjepan Kljuic. M. Kljuic was a moderate Croat,
who believed in a single state, a single,multi-ethnic state of Bosnia and Herzegovina.Our evidence
will show that Mr. Kljuic was removed from the head of thisparty by President Tudjman and
ultimately replacedby a man named Mate Boban. 1will explain the significance of thatevent later
in my remarks." [ICTFY, Prosecutor'sOpening Statement,Prosecutor v. Tihomir
BlaSki6, IT-95- 14-1,24 June 19961.
It is clear fiom this statementthat HVO was not only not controlledby the
Applicant's Govemment, but thatthey, on the contrary, at times evenacted as enemy
forces. The Commissionof Experts came to a similar conclusion withregard to the
HOS (Croatian Defence Forces), whoseforces are sometimesreferred to in other
witness statements:
"~ormed as the paramilitary wing of the ultra-right HSP [Croatian Partyof Rights], the HOS
reportedly trained soldiers at former NA facilities in Slovenia was supplied, in part, by the
Republic of Croatia.There are also reports that HOS unitsserved directly under the regular
Croatian army. A Croatian military court tried HSP leader, DobroslavParaga, in 1993 for
attempting tooverthrow the Croatian Governrnent. A Reuters reporton the trial statedthat the
"majority of HOS units were proved to be under Croatian Amy Command".After 1993,the HOS
soldiers were integrated into the HVO."pnited Nations, Final Report of the United
Nations Commissionof Experts, Sl19941674lAdd.2 (Vol 1),28 December
1994,p. 19, para. 651.Reply of Bosnia and Herzegovina
61. In the sectionon Kupres [Counter-Memorial 7.1.13.0.1five documentsare annexed.
The allegations of paragraph 7.1.13.3.of the Counter-Memorialare supportedby two
documents: Annex No. C 160,Photos 26-31, AnnexNo. C 122 (...)pp. c1236-
c1241/c1242-c1249. AnnexNo. C 160contains six, indeed, horrible pictures, but
does not provide any further information.
The Annex does not clarifj nor demonstratesthe backgroundof these pictures, let
alone that it would provide for any objective indicationthat the perpetratorof these
atrocities, whoever theymay have been,did committhese as part of a campaign,
directed by the Applicant'sGovernrnent andaimed at the destructionof a specific
ethnic group. However, Bosniaand Herzegovinawishesto drawthe attention of the
Court to the fact that these pictures showdead soldiersin JNA reserve unit uniforms.
The other Annex contains an anonymous witness statement presumablygiven before
a "RepublikaSrpska" legal authorityin July 1996;the statementdoes not provide for
any proof on the identity of the perpetratorsof the atrocitiesdescribed,let alone any
material showingthat the mentionedatrocities took place as part of a well-organised
campaign or pattern of conduct. Moreover,this witness statementis not related to the
alleged incidentsthat took place in the suburb of Kratelj. Whateverthe truth or
relevance of this testimonymay be, it reports that the alleged incidents,if true, were
comrnittedby HVO and HOS forces.None of these were controlledby Bosnian
Governrnentauthorities.
Para. 7.1.13.6.is annexed withone document:Annex No. C 160,Photo 33. This
Annex contains, indeed, a horrible picture,but does not provide any further
information. The Annex does not clarify nor demonstratesthe backgroundof this
picture, let alone that it wouldprovide for any objective indication thatthe
perpetrator of these atrocities, whoeverthis may have been, didcommit these as part
of a carnpaign, directedby the Applicant'sGovernrnent andaimed atthe destruction
of a specificethnic group.
Para. 7.1.13.11. is annexed withtwo documents:AnnexNo. C 20, (..)pp. c203-
2071~208-c210and AnnexNo. C 85, (...)pp. c853-~859/~860-~864A . l1of these
Annexescontain anonymous witness statements presumablygiven before a
"RepublikaSrpska" legal authorityin April 1995;none of the statementsprovide any
proof of the identity of the perpetratorsof the atrocitiesdescribed,let alone any
material showingthat the mentionedatrocities took place as part of a well-organised
campaign or pattern of conduct. Both statements mentionthe bad physical condition
and the eventualdeath of Dane Marijanac,as a result of the allegedincidents that
allegedly took place in Bugojno. FromBugojno, Dana Marijanac andboth witnesses
were taken to Travnik. According to bothtestimonies,Dana Marijanac refused tobe
brought to the hospital and eventuallydied. Both witnesses also mentionthe Chapter 16-Section 3
Deliberate killing [Counter-Mernorial7.1.1
subsequent interference of the President of the Court and the investigationof the
death of Dane Marijanac by a "commissionset up of a Serb, a Muslim and a Croat"
[Annex No. C 85, p. ~8631.Whatever the relevance and truth of these statements
might be, they also clariQ that apparently at least appropriate action was taken by
the relevant authorities.
62. In the section on Jablanica [Counter-Memorial7.1.14.0.1two documents are
annexed: Annex No. C 17, (...pp. c167-c170/c171-cl75 and Annex No. C 269, (...),
pp. c231Sc23 181~23 19-c2322 [Counter-Memorialpara. 7.1.14.1.].
The first Annex contains an anonymous, partly hearsay, witness statementof a
member of the Army of the "Republika Srpska", presumably given before a
Respondent legal authorityin Belgrade in May 1995;the statement does not provide
any proof of the identity of the perpetrators of the atrocities described, letalone any
material showing that the mentioned atrocities took place aspart of a well-organised
campaign or pattern of conduct.
The other Annex contains an autopsy report prepared by a Forensic Expert of the
MilitaM ryedical Academy in Belgrade, regarding a person identified in the report.
The report was produced in March 1995. Presumably the killing took place on 13
November 1994, however the report does not contain any reasoned opinion regarding
the latter date. Apparentlythe person described in the report died as soldier in the
Army of the "Republika Srpska" [Counter-Memorial para.7.1.14.1.]. Accordingly the
report informs that the deceased was wearing: "[clamouflage pants, long cotton
underpants in a green shade, short white panties, military boots size 40,5 and green
military socks" [AnnexNo. 269, p. ~23211.The report does not provide for any
objective indication that the perpetrator of these atrocities, whoever that may have
been, did commit these as part of a campaign, directed by the Applicant's
Government and aimed at the destruction of a specific ethnic group.
63. In the section on Livno [Counter-Memorial7.1.15.0.1four documents are annexed:
Annex No. C 9, (...)pp. c66-~691~70-c73A , nnex No. C 16, (...)pp. c159-
cl 621~163-c166,Annex No. C 250, (...pp. c2165-~21701~2 171-c2176 [Counter-
Memorial para. 7.1.15.3.1,and Annex No. C 40, (...)pp. c407-c410/c411-c415
[Counter-Memorial para. 7.1.15.5 ..
The first three Annexes contain anonymous, partly hearsay,witness statements
presumably given before a "Republika Srpska" legal authority.The sarne is tme for
the fourth annex statement [AnnexNo. C 401,which is presumably given before a
Respondent legal authority,in Belgrade; none of the statementsprovides any proof
of the identity of the perpetrators of the atrocities described, let alone any materialReply of Bosnia and Herzegovina
showingthat the mentioned atrocities took placeas part of a well-organised
campaign or pattern of conduct.
Without acknowledgingthat the testimoniesare true, Bosnia and Herzegovina
remarks that al1the statements mentionthat the atrocitieswere apparently comrnitted
by HVO forces, which were not controlledby the BosnianGovemment.
64. In the section on GoraZde[Counter-Memorial7.1.16.0.1six documentsare annexed:
Annex No. C 5, (...)pp. c28-~301~31-c33A , nnex No.C 15, (...)pp. c149-
~1531~154-c158A , nnex No. C 14,pp. c131-c140/c141-c148,AnnexNo. C 53, pp.
c543-~546/~547-c551,Annex No. C 62, pp. c629-~6321~633-c63a 6nd Annex No.C
116,pp. cl 160-cl1751~1176-cl189[Counter-Memorialpara. 7.1.16.1.].
The first five Annexes containanonymous, partly hearsay, witnessstatements
presumably given before a "Republika Srpska" legal authority. Annex No. C 15 does
not relate to the allegationsmade in this section.The sixth Annex [AnnexNo. C
1161contains a, mostly hearsay, witness statement presumably given before a
Respondent legal authorityin Belgrade.None of the statementsprovides any proof of
the identity of the perpetratorsof the atrocitiesdescribed,letlone any material
showing that the mentionedatrocitiestook place as part of a well-organised
campaign or pattern of conduct.Withoutacknowledging thatany of the testimonies
given in this section are true, the testimoniesin the latter Annex showthat there was
presumably oppositionagainstthe allegedatrocitiesfrom inter alia the new head of
the Gora2depolice, who according to thiswitness protectedthe Serb population
[AnnexNo. C 116, p. cl 1781and fromformer Muslim JNAofficerswho "opposed
the liquidation of Serbs"[ibid. p.c11801.Also, according to thewitness,the Muslim
population opposed. Whatever may betrue in this witness statement,it certainly does
not provide for a basis to concludethat the mentionedatrocitiestook placeas part of
a well-organised campaignor pattern of conduct.
65. In the section on Kotor Var05[Counter-Memorial7.1.17.0.1three documentsare
annexed: Annex No. C 99, (...pp. c1010-c1014/c1015-c101,Annex No. C 150, (...),
pp. c1493-~14951~1496-cl499 and Annex No. C 161,pictures No. 1-3,p. 32
[Counter-Memorial para.7.1.17.6.1.
The latter Annex containsthree pictures,but does not provide any Mer
information. The Annex does not clariQ nor demonstratethe backgroundof these
pictures, let alone that it would provide for any objectiveindicationthat the
perpetrator of these atrocities,whoever theymay have been, did commit these as part
of a campaign, directed by the Applicant's Government and aimed at the destruction
of a specific ethnic group. Deliberate killing [Counter-Memorial7.1.1
The other two Annexes contain one anonymous witness statement andone medical
report, presumably regarding this witness. The witness statementwas presumably
given before a "Republika Srpska" legal authorityin September 1996.It contains a
truly horrible story, but no firm proof on the identity of the perpetrators of the
atrocities described, letalone any material showing that the mentioned atrocitiestook
place as part of a well-organised campaignor pattern of conduct. The medical report
repeats the witness' statementand declares that the witness was in bad physical
condition due to being the victim of armed assault. The medical statement,
understandably, does not contain proof on the identity of the perpetrators of the
atrocities described, let alone any material showing that the mentioned atrocities took
place as part of a well-organised campaignor pattern of conduct.
66. The section on Fojnica [Counter-Memorial7.1.18.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply .
67. In the section on CajniEe[Counter-Memorial7.1.19.0.1three documents are annexed:
Annex No. C 35, (...)pp. c370-c372/~373-~375[Counter-Memorialpara. 7.1.19.1.],
Annex No. C 111, (...),pp. cl 124-cl1261~1127-cl129[Counter-Memorialpara.
7.1.19.2.1and Annex No. C 21, (...),pp. c211-c2121~2 13-c214 [Counter-Memorial
para. 7.1.19.4.1.
Al1of these Annexes contain anonymous, mostly hearsay, witnessstatements
presumably given before a "Republika Srpska" legal authorityin FoEa(renamed by
the Respondent as "Srbinje", which means "ci@of Serbs") in May and June 1995;
none of the statementsprovides any proof of the identity of the perpetrators of the
atrocities described, let alone any material showing that the mentioned atrocities took
place as part of a well-organised campaignor pattern of conduct.
68. In the section on Tuzla [Counter-Memorial7.1.20.0.1four documents are annexed:
Annex No. C 46, (...)pp. c465-~4691~470-c474 [Counter-Mernorialpara. 7.1-20.2.1,
Annex No. C 47, (...)pp. c475-~4831~484-c491 [Counter-Memorialpara. 7.1.20.4.1,
Annex No. C 7, (..)pp. c43-~481~49-c54 and Annex No. C 63, (...)pp. c637-
~6441~645~65 1 [Counter-Mernorialpara. 7.1.20.5.1.
Al1of these annexes contain anonymous,partly hearsay, witness statements
presumably given before a "Republika Srpska" legal authority; none of the statements
provides any proof of the identity of the perpetrators of the atrocities described, let
alone any material showing that the mentioned atrocities took place as part of a well-
organised campaign or pattern of conduct.Reply of Bosnia andHerzegovina
With regard to the killing referredto in para. 7.1.20.2the Respondent alleges:
"~hePolicein Tuzlatookno action againsttheperpetrsf thiscrime,andthewitness was
allowed to leaveTuzlaonlyafterhehadgiventhemilituy investigatorsawrittenstatementsaying
thathehadno intentionsof pressingminalcharges.".
However, in this case the Applicantmanagedto trace the allegedcrimes and found
that, indeedthe Tuzla legal authorities investigatedthe matter and that the two
suspects mentionedby the Respondentwere indeed brought to Trial. On15 July
1995the two suspectswere found guiltyby the District Military Court of Tuzla,
which verdict was, in 1995, confïrmedby the SupremeCourt. The perpetrators were
convictedto thirteen years imprisonment[Annex3041.
The Applicant, at this point, also wishes to draw the Court's attentionto the public
statement, deliveredby the by the, then, mayor of Tuzla general policy,explicitly
confirming the policy of the Governrnentauthorities aimedat the preservationof a
multiculturalBosnia and Herzegovina [see Section 2of this Chapter, and Annex
3021.
69. The Section on Ugljevik [Counter-Memorial 7.1.21 .O.]is not supportedby any
accessible material whatsoever -this sectionwill not be Mer discussedin this
Reply.
70. In the section on Zvornik [Counter-Mernorial 7.1-22.0.1two documents areannexed:
Annex No. C 160,Photos 34 - 37 [Counter-Memorialpara.7.1.22.5.1and Annex
No. C 270, (...)pp. c2323-~23271~2328-c23 13[Counter-Memorialpara. 7.1.22.6.1.
The latter annex contains four, indeed,horrible pictures, butdoes not provide any
further information. The annex does not clarifi nor demonstratesthe backgroundof
these pictures, let alone that it would provide any objective indication thatthe
perpetrator of these atrocities,whoeverthey may have been, did committhese as part
of a campaign, directedby the Applicant'sGovernment and aimedat the destruction
of a specific ethnic group.
The other annex [No. C2701containsan anonymous, witness statementpresumably
given before a "Republika Srpska" legalauthorityin September 1996. This statement
is only based on hearsay as far as the allegationsin para. 7.1.22.6. are concernedand
does not provide any proof on the identity of the perpetrators of the atrocities
described,let alone any material showingthat the mentionedatrocities took place as
part of a well-organised campaignor pattern of conduct.
The Applicantwishes to draw the attentionof the Court to Section 6 of Chapter 5,
above, which is in its entirety devotedto the true story of Zvornik. Chapter 16-Section 3
Deliberate killing [Counter-Merl .1.1
71. In the section on Kladanj [Counter-Memorial7.1.23.O.]three documents are annexed:
Annex No. C 160, Photo 38, and Annex No. C 13, (...)pp. cll9-~1241~125-c130,
Annex No. C 268, (...)c2304-~23081~2309-c2314 [Counter-Memorialpara.
7.1.23.1.]. The first annex contains one, indeed horrible, picture, but does not
provide any Mer information. The annex does not clarie nor demonstrates the
background of this picture, let alone that it would provide any objective indication
that the perpetrator ofthese atrocities, whoever they may have been, did commit
these as part of a campaign, directedby the Applicant's Government and aimed at
the destruction of a specific ethnic group.
The other two annexes contain two autopsy reports. These reports, understandably,
do not provide any objective indication thatthe perpetrator of these atrocities,
whoever that may have been, did commit these as part of a campaign, directed by
the Applicant's Government and aimed at the destruction of a specific ethnic group.
The Applicant notes that both autopsies have been performed on 23 February 1994
in Sekovici, which is in Bosnia and Herzegovina,by a VJ Lt. Col. Zoran StankoviC,
who according to his report is an expert of the MilitaryMedical Academy of
Belgrade. The reports were made on the request of the Commander of the Territorial
Defence Force of Sekovici ("Republika Srpska"),thus showing that local
commanders of the Bosnian Serb Army effectively disposedof direct lines of
communicationwith the Yugoslav military in Belgrade.
72. The section on OraSje [Counter-Memorial7.1.24.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply .
73. The section on Mostar [Counter-Memorial 7.1.25.0.1is not supported by any
accessible material whatsoever - this section will not be Mer discussed in this
Reply.
74. The section on Duvno (Tomislavgrad) [Counter-Memorial7.1.26.0.1is not supported
by any accessible material whatsoever - this section will not be Mer discussed in
this Reply.
75. In the section on Visoko [Counter-Memorial7.1.27.0.1one document is annexed:
Annex No. C 64, (...)pp. c652-~6561~657-c661 [Counter-Memorialpara. 7.1.27.1.].
This annex contains one anonymous witness statement, presumablygiven before a
"Republika Srpska" legal authority. According to the annexthe statement was
delivered on 12 December 1996, whiie the witness relates events which allegedlyReply of Bosniaand Herzegovina
took place in June 1992. The statement,furthemore, does not provide any objective
indicationthat the alleged perpetratorsof the alleged atrocitiesdid commit these as
part of a campaign, directedby the Applicant'sGovernrnent andaimed at the
destructionof a specificethnic group.
76. In the Sectionon Bugojno [Counter-Memorial7.1.28.0.1one document isannexed:
Annex No. C 118, (...)pp. cl 198-c1200/c1201-cl203[Counter-Memorialpara.
7.1.28.1.1.This annex contains one anonymous, mostly hearsay, witnessstatement
presumably given before a "Republika Srpska" legaa luthority. The witness mentions
the presence of "Croatsoldiers" in Bugonjo. His statement does not provides any
proof of the identity of the perpetratorsof the atrocitiesdescribed,let alone any
material showing thatthe mentionedatrocitiestook place as part of a well-organised
campaignor pattern of conduct.
77. The section on Vitez [Counter-Memorial7.1.29.0.1is not supportedby any
accessiblematerial whatsoever - this section willnot be further discussedin this
Reply .
78. The section on VareS[Counter-Memorial7.1.30.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill not be further discussedin this
Reply.
79. In the section on Breza [Counter-Mernorial7.1.31.O.]one documentis annexed:
Annex No. C 87, (...)pp. c872-c878/c879-c884[Counter-Memorial para. 7.1.3 1.1.].
This annex containsone anonymous witness statementpresurnablygiven before a
"RepublikaSrpska" legal authority. The statement does not provide corroborated
proof of the identity of the perpetrators of theatrocities described,let alone any
material showing thatthe mentionedatrocitiestook place as part of a well-organised
campaign or patternof conduct.
80. The sectionon IlijaS[Counter-Mernorial7.1.32.0.1is not supportedby any accessible
material whatsoever -this sectionwill not be further discussedin this Reply.
81. The section on OdM [Counter-Memorial7.1.33.O.]is not supportedby any
accessible material whatsoever - this section will notbe further discussedin this
Reply. Chapter 16-Section 3
Deliberate killing [Counter-Mernorial7.1.1
82. The section on Prijedor [Counter-Memorial 7.1.34.0.1is not supportedby any
accessiblematerial whatsoever, so,in principle, this section will notbe firther
discussed in this Reply.
However, Bosnia and Herzegovina does want to draw the attention of the Court to
the fact that in Prijedor tens of thousandsof non-Serbs werekilled, tortured, raped,
maltreated and expelledin a well-organised campaignor pattern of conduct runby
the JNA, Serb paramilitariesand Bosnian Serb military. The Prijedor ethnic
cleansing is one of the best documented episodesof the entire war [seeabove,
Chapter 5, Section 81.The mere fact that the Respondentdoes not even bother to
acknowledge that these extreme atrocities took placein this area, but insteadfeatures
this area in its mostly unsubstantiated listingof events which supposedly is meant to
lead the Court to the conclusion thatthe non-Serb victims actually are the
perpetrators of genocide,demonstratesthe Respondent's utter disdain for the victims
of this, well documented and indisputed, genocideagainst thousandsof non-Serbs in
thisregion, its arrogancetowards the Applicant and eventuallyalso its contempt of
this Court. This approachmakes it, in any event, perfectly clear thatthe Court
should not take any of this type of allegations seriouslyin as serious a case as the
present one.
83. In the section on Zenica [Counter-Memorial7.1.35.0.1four documents areannexed:
Annex No. C 247, (...)pp. c2120-c21231~2 124-c2126 [Counter-Memorial para.
7.1.35.1.], AnnexNo. C 246, (...)pp. c2113-c2116/c2117-c2 119 [Counter-Memorial
para. 7.1.35.6.1,Annex No. C 1, (...)pp. cl-c41c5-c7[Counter-Memorialpara.
7.1.35.8.1and AnnexNo. C 129, (...)pp. c1320-c1333/c1334-c1347[Counter-
Memorial para.7.1.35.9.1.Al1of these annexescontain anonymous,mostly hearsay,
witness statementspresurnablygivenbefore a "Republika Srpska" legalauthority.
None of the statementsprovides any corroboratedproof of the identity of the
perpetrators of the atrocitiesdescribed,let alone any material showingthat the
mentioned atrocities took place as part of a well-organisedcampaign or pattern of
conduct.
Although the Applicant explicitly does not acknowledgethe alleged facts listedby
the Respondent,it readily accepts thatcertain unitsof the Bosnian Army III Corps
took to committing serious crimesin the Zenica region during the years of the armed
conflict. It took the Bosnian authorities some tirne, before they were able to act
against these criminals. However,this is exactly what theyeventuallydid, as was
reported in Oslobodenjeof 13 February1994.The newspaperarticle mentionsthat
criminal rnilitary leaders were arrested andthat the actionwas approvedby theReply ofBosniaandHerzegovina
Presidency. The articlealso refers to similar, earlier, actionsin Sarajevo
[Oslobodenje, 13February 1994, Annex3051.
84. The section on Jajce [Counter-Memorial7.1.36.0.1is not supportedby any accessible
material whatsoever -this sectionwill not be Mer discussedin this Reply.
85. The section on Rudo [Counter-Memorial7.1.37.0.1is not supportedby any
accessible material whatsoever - this section will notbe Mer discussedin this
Reply.
86. The section on Hrasnica [Counter-Memorial7.1.38.0.1is not supportedby any
accessible material whatsoever - this section willnot be further discussedin this
Reply.
87. In the section on Derventa [Counter-Memorial7.1.39.0.1one documentis annexed:
Annex No. C 128, (...)pp. cl311-cl3141~13 15-cl319 [Counter-Memorialpara.
7.1.39.5.1.
This annex contains one anonymous,partly hearsay, witness statement presumably
given before a "Republika Srpska"legal authority. The statementmentions several
times certain actionstaken by HOS orunidentifiedsoldiersand does not provide any
corroboratedproof of the identity of the perpetratorsof the atrocities described,let
alone any material showing thatthe mentioned atrocitiestook place as part of a well-
organised campaignor pattern of conduct.
88. In the sectionon Hadiiéi[Counter-Memorial7.1.40.0.1one documentis annexed:
Annex No. C 67, (..),pp. c691-c694/c695-c698[Counter-Memorialpara. 7.1.40.1.].
This annex containsone anonymouswitness statement presumably given before a
"RepublikaSrpska" legal authority. The statements does not provide any
corroboratedproof of the identity of the perpetratorsof the atrocities described, let
alone any material showingthat the mentioned atrocitiestook place as part of a well-
organised campaign or pattern ofconduct.
89. The section on Bihaé [Counter-Memoria7 l.1.41.O.]is not supportedby any
accessiblematerial whatsoever - this section will notbe Mer discussedin this
Reply. Chapter 16-Section 3
Deliberate killing [Counter-Mernorial7.1.1
90. The section on Vlasenica [Counter-Memorial7.1.42.0.1is not supported by any
accessible material whatsoever - this section will not be Mer discussed in this
Reply .
91. The section on PazariC[Counter-Memorial7.1.43.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply.
92. In the section on Trnovo [Counter-Memorial7.1.44.0.1two documents are annexed:
Annex No. C 160, Photo 39 [Counter-Memorialpara. 7.1.44.8.1and Annex No. C
160, Photos 40 [Counter-Memorial para. 7.1.44-9.1.These annexes contain, indeed,
horrible pictures, but do not provide any further information. The annex do not
clarify nor demonstratethe background of these pictures, let alone that it would
provide for any objective indication that the perpetrators of these atrocities, whoever
they may have been, did commit these as part of a campaign, directed by the
Applicant's Government and aimed at the destruction of a specific ethnic group.
93. The section on Sokolac [Counter-Memorial7.1.45.0.1is not supported by any
accessible material whatsoever -this section will not be further discussed in this
Reply.
94. In the section on Bosanska Bijela [Counter-Memorial 7.1.46.1.] one document is
annexed: Annex No. C 97, (...)pp. c995-~9971~998-cl00 1 [Counter-Memorialpara.
7.1.46.1.]. This annex contains one anonymous, partly hearsay, witnessstatement
presumably given before a "Republika Srpska" legal authority.The statement does
not provide any corroborated proof of the identity of the perpetrators of the atrocities
described, let alone any material showing that the mentioned atrocities took place as
part of a well-organised campaignor pattern of conduct. Besides that the witness
only relates events allegedly conductedby Croat forces, which were in no way
controlled by the authorities of Bosnia and Herzegovina.
95. The section on Bukovac [Counter-Memorial7.1.46.2.1is not supported by any
accessible material whatsoever -this section will not be Mer discussed in this
Reply.
96. In the section on Bukvik, VujiEiC,Gajeva and Lukovac [Counter-Memorialpara.
7.1.46.3.1three documents are annexed: AnnexNo. C 4, (...)pp. c22-~241~25-c27,
Annex No. C 86, (...)pp. c865-~8671~868-c871 and Annex No. C 110, (...)pp.Reply of Bosnia and Herzegovina
c1119-c1120Ic1121-c1123.Al1of these annexes containanonyrnous,partly hearsay,
witness statementspresumablygiven before a Republika Serpskalegal authority.
None of the statementsprovide firm proof of the identityof the, sometimes
described as Croats, perpetrators of the alleged atrocities, letone any material
showingthat the mentionedatrocitiestook placeas part ofa well-organised
campaignor pattern of conduct.
97. The section on VuCilovac[Conter-Memorial 7.1.46.4.1is not supportedby any
accessiblematerial whatsoever -this section willnot be further discussedin this
Reply .
98. The section on Cerik [Counter-Mernorial7.1.46.5.1is not supportedby any
accessible material whatsoever -this section will not be further discussedin this
Reply .
99. The section on "The killing of Serbs - prisoners of war" [Counter-Memorial
7.1.46.6.1is not supportedby any accessiblematerialwhatsoever - this sectionwill
not be Mer discussedin this Reply.
100. In the section on Han Pijesak [Counter-Memorial 7.1.47.0.1two documents are
annexed:Annex No. C 100, (...)pp. c1020-c1025/cl026-cl030 and Annex No. C
69, (..),pp. c706-c7101~7 11-c715 [Counter-Memorialpara. 7.1.47.1.]. These annexes
contain anonymous,mostly hearsay, witness statements (oneof them probably
delivered by a minor) presumablygiven before a "Republika Srpska" legalauthority.
None of the statementsprovides any corroboratedproof of the identity of the
perpetrators of the atrocitiesdescribed,let alone any material showingthat the
mentioned atrocitiestook place as part of a well-organised campaignor pattern of
conduct.
The Applicant wishesto draw the attention of the Court to the fact that, at the time
the alleged facts took place, Han Pijesak was, and for that matter still is, the
headquartersof GeneralRatko Mladic,the Bosnian Serb commander whois indicted
for war crimes and genocide by the Prosecutorof the ICTFY. The Respondentdoes
not bother to mention this fact in its counter-claimsallegingthat it was the Applicant
who was responsible for genocide.Neither the witnessesnor the investigativejudge
interrogatingthem deemed it necessaryto mention this as a relevant circumstance.
This again demonstratesthe Respondent's approach tothe non-Serbvictims of this
armed conflict and to this case as such. Deliberate killing[Counter-Memorial7.1.1
101. In the section on Lopare [Counter-Memorial7.1.48.0.1one document is annexed:
Annex No. C 102, (...)pp. cl 038-cl0431~1044-cl049[Counter-Memorialpara.
7.1.48.4.1.This Annex contains one anonymous, partly hearsay, witnessstatement
presumably given before a "Republika Srpska" legal authority.The statements does
not provide any corroborated proof of the identity of the perpetrators (sometimes
naming them 'Croats', sometimes 'Muslims")of the atrocities described,let alone
any material showing that the mentioned atrocitiestook place as part of a well-
organised campaign or pattern of conduct.
102. In the section on iivinice [Counter-Memorial7.1.49.0.1two documents are annexed:
Annex No. C 54 ,(...),pp. c552-~5541~555-c557 and Annex No. C 55, (...)pp.
c558-~5601~561-c563[Counter-Memorialpara. 7.1.49.2.1.Al1of these annexes
contain anonymous, partly hearsay, witness statements presumably given before a
"RepublikaSrpska" legal authority. None of the statementsprovides any corroborated
proof of the identity of the perpetrators of the atrocities described, let alone any
material showing that the mentioned atrocities tookplace as part of a well-organised
campaign or pattern of conduct.
103. In the section on BanoviCi[Counter-Memorial7.1.50.0.1one document is annexed:
Annex No. C 92, (...)pp. c922-~9271~928-c932 [Counter-Memorialpara. 7.1.50.3.1.
This annex contains one anonymous witness statement presumably givenbefore a
"Republika Srpska" legal authority. The statements relatesvarious alleged atrocities
but does not provide any proof of the alleged killings listed in this paragraph of the
Counter-Memorial, let alone any material showing that these killings took place as
part of a well-organised campaignor pattern of conduct.
104. The section on Kalesija [Counter-Memorial7.1.51.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply.
105. In the section on Kalinovik [Counter-Memorial7.1.52.0.1one document is annexed:
Annex No. C 160, Photo 41 [Counter-Memorialpara. 7.1.52.1.]. The annex contains
one, indeed, horrible picture, but does not provide any Mer information. The
annex does not clai@ nor demonstratethe background of this picture, let alone that
it would provide for any objective indication that the perpetrator of the alleged
atrocity, whoever that may have been, did commit this as part of a campaign,
directed by the Applicant's Government and aimed at the destruction of a specific
ethnic group.Reply ofBosnia and Herzegovina
106. The section on Travnik [Counter-Memorial7.1.53.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill not be further discussedin this
Reply .
107. The section on MrkonjikGrad [Counter-Memorial7.1.54.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill not befurther discussedin this
Reply. The Applicant wishes to add that thelack of any annexed material is in this
case especially remarkable giventhe long list of allegedkillingsproduced in this
paragraph of the Counter-Memorial.Also atthis pointthe Respondentlists 81 Croat
suspects of these alleged killings, President Tudjman being the first person
mentioned. Bosnia and Herzegovinafails to see the relevanceof al1this to this case.
This section also containsa list of some 11Bosnianauthoritiesas suspectsof the
same alleged crimes, PresidentIzetbegovik beingthe first one mentioned. Alsothis
list is not supportedby any annexed material.This method of proceeding,practiced
by the Respondent,further demonstrates thatit rather usesthis case as an opportunity
to continue itsusual propaganda campaignthan as serious litigation.
108. The section on Srbobran[Counter-Memorial7.1.55.0.1is not supportedby any
accessiblematerial whatsoever -this sectionwill not be further discussedin this
Reply. Actually this sectionis interestingfor the issues discussedin this case: the
true name of this town is DonjiVakuf. It was renamed by the Serbs after the Serb
take-over in May 1992. "Srbobran"is Serbo-Croatianfor "SerbianFight". No need to
Saythat the Applicant'sauthoritiesnever acceptedthis new name. Nevertheless,the
Respondenthas, together with the BosnianSerbs, chosento use this name.
109. The section on Doboj [Counter-Memorial7.1.56.0.1is not supportedby any
accessiblematerial whatsoever -this sectionwill not be further discussedin this
Reply .
110. In the section on KozarskaDubica [thetrue name of this town is Bosanska Dubica,
however the Respondenthas deemedfit to delete "Bosanska",which means Bosnian]
[Counter-Mernorial7.1.57.0.1this sectionone documentis annexed:Annex No. C
78, (...)pp. c792-~7951~796-c798 [Counter-Memonalpara. 7.1.57.1 .].This Annex
contains one anonymous,partly hearsay, witness statement presumablygiven before
a "RepublikaSrpska" legal authority. The statements only relates acts presumably
comrnittedby "the Croatian army", so whateverthe tmth of it may bethis statement
does not have anyrelevanceto this case whatsoever. Chapter16 -Section 3
Deliberate killing[Counter-Memorial7.1.]
111. The section on GradiSka[the true name of this town is Bosanska GradiSka,however
the Respondent has deemed fit to delete "Bosanska",which means Bosnian]
[Counter-Memorial 7.1.58.0.1is not supportedby any accessible material whatsoever
- section will not be further discussed in this Reply.
112. The section on Gradaëac [Counter-Memorial7.1.59.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply .
113. The section on Kakanj [Counter-Memorial7.1.60.0.1is not supported by any
accessible material whatsoever - this sectionwill not be further discussed in this
Reply.
114. The section on Kmpa na Uni [Counter-Memorial7.1.61.O.]is not supported by any
accessible material whatsoever - this section will not be mer discussed in this
Reply.
115. In the section on Sanski Most [Counter-Mernorial 7.1.62.0.1two documents are
annexed: Annex No. C 50, (...)pp. c511-c5141~5 15-c519 and Annex No. C 104,
(...)pp. cl 060-cl 064/cl065-cl069 [Counter-Memorialpara. 7.1.62.1.]. These
annexes contain anonymous, partly hearsay, witness statementspresumably given
before a "Republika Srpska" legal authority;none of the statements provides any
corroborated proof of the identity of the perpetrators of the atrocities described, let
alone any material showing that the mentioned atrocities took place as part of a well-
organised campaign or pattern of conduct.
116. In the section on TesliC[Counter-Memorial7.1.63.0.1two documents are annexed:
Annex No. C 160, Photo 42 and 43 [Counter-Memorialpara. 7.1.63.1 .]and Annex
No. C 117, (...),pp. cl 190-cl193/cl194-cl197 [Counter-Memorialpara. 7.1.63.2.1.
The first annex contains two, indeed, horrible pictures,but does not provide any
further information. The annex does not clariQ nor demonstrates the background of
these pictures, let alone that it would provide for any objective indication that the
perpetrator of these atrocities, whoever theymay have been, did commit these as part
of a campaign, directed by the Applicant's Governrnent and aimed at the destruction
of a specific ethnic group.
The other annex contains an anonymous, witness statementpresumably given before
a "Republika Srpska" legal authorityin September 1996.The statement does not
provide any corroborated proof on the identity of the perpetrators of the atrocitiesReplyofBosniaandHerzegovina
described, let alone any material showing thatthe mentionedatrocitiestook place as
part of a well-organised campaignor pattern of conduct.
117. The section on the Territory of Respondentof the Counter-Memorial 17.1.64.0.1is
not supportedby any accessible material whatsoever -this sectionwill not be further
discussedin this Reply.
118. It is clear from this long, monotonous, response tothe Respondent'sallegations,that
the Federal Republic of Yugoslavia has not evenbeganto formulate asufficiently
supported factual bais for its counter-claims. The approachof the Respondent
apparently is to just ovenvhelmthe Court withhundredsof pages of listingsof
alleged events, not withtrue and independently supportedfacts, neither withany
beginning of analysis. For these reasons alone the Respondent's conclusions,based
on this particular way of proceeding, cannot sustainits far reaching submissions.
4. Deliberate inflicting on Serbs conditionsof life calculatedto bring about their
physical destruction and causing serious bodily ormental harm [Counter-
Memorial 7.2.1
119. In its Counter-Memorial the Respondentalso devotesan extensive sectionon
providing materials which supposedly supportthe allegation that Bosniaand
Herzegovinawould be responsiblefor deliberately infiictingon Serbsconditions of
life calculatedto bring abouttheir physical destructionand for causing Serbs serious
bodily or mental hm with the intent to destroy theSerb people, in whole or in part.
This section contains47 paragraphsof which only 24 paragraphs seemto be
supportedby materiai which is accessibleto the Applicant.As explainedabove in
Section 1 of this Chapter, the Applicantdoes not deem it necessary,nor is it
possible, to go into the allegationswhich are not supportedby anymaterial or which
are supportedby material supposedlyto be found only in Belgrade.
120. In the section on Celebiti [Counter-Mernorial7.2.1.0.1six documents are annexed:
Annex No. C 126, (...)pp. c1267-~12771~1278-c129 A9nnex No. C 76, (...)pp.
c769-c775/c776-c785,AnnexNo. C 123, (...)pp. c1250-12521~1253-c1256A , nnex
No. C 28, (...)pp. c271-~2861~287-c300A , nnex No. C 137, (...)pp. c1418-
c14191~1420-cl422and Amex No. C 161, (Presumably) Photo1, p. 88 [Counter-
Memorial para. 7.2.1.14.1.The first four documentscontain anonyrnouswitness
statementspresumably given before "Republika Srpska" legal authorities, witth he
exception of Annex No. C 28 which was given before a Belgrade legal authority. Chapter 1- Section 4
Deliberate inflictingon Serbs conditions
oflife calculated to bring about their physical
destructionand causingserious bodily or mentalharm
[Counter-Memorial7.2.1
With regards to AnnexNo. C 76, the sameremarks madein the paragraph on Konjic
in Section 3 of this Chapter above, can be made in this context. The medical report
and the accompanyingphoto do not provide any proof whatsoeverof an organized
campaign, directedby the Applicant's Governrnentand aimedat the Serbsas such.
Without acknowledgingany particular allegationmade by the Respondentregarding
these events, the Applicant wishesto reiterate thatit fully cooperateswith the
ICTFY, as has been indicated above [Section 1of this Chapter]. War crimes are
unacceptablein the view of the Applicant regardlessthe ethnicity of the perpetrator
and the victims.
121. The sectionon Musala in Konjic [Counter-Memorial7.2.2.0.1is not supportedby
any accessiblematerial whatsoever -this section willtherefore not befurther
discussedin this Reply.
122. In the section on LjubuSki[Counter-Memorial7.2.3.O.]eight documentsare annexed:
Annex No. C 94, (...)pp. c943-~9561~957-c975 ,nnex No. C 59, (...)pp. c589-
~5931~594-c599A , nnex No. C 156, (...)pp. c1530-cl5311~15321 -536and Annex
No. C 161, Photo 1, p. 33 [Counter-Memorialpara.7.2.3.2.1,Annex No. C 139, (...),
pp. c1429-cl4311~1432-cl435and Annex No. C 161,Photos 1-2,p. 69 [Counter-
Memorialpara. 7.2.3.15.1,Annex No. C 140, (...)pp. c1436-cl438/~1439-c1445and
Annex No. C 161,Photos 1-7,pp. 71-74 [Counter-Memorialpara. 7.2.3.16.1.Two of
the annexes contain anonymous witness statements presumablygiven before
"RepublikaSrpska"legal authorities;the firstwitness statement (AnnexNo. C 94)
alsocontains hearsay statements.The Respondentfails to explain why, even if the
alleged facts were tme, Bosnia and Herzegovina wouldbe responsiblefor the deeds
of the HVO forces which were not controlledby the Bosnian Govenunent. The
medical findings contain no legally relevantmaterial and the photos, although
horrible, aswell asthe witness statementsdo not provide any proof whatsoever of
the existence of an organized campaign, directedby the Applicant'sGovenunent and
aimed against the Sebsassuch.
123. In the section on Dretelj [Counter-Memorial7.2.4.0.1seven documents are annexed:
Annex No. C 94, (...)pp. c943-~9561~957-cg75 [Counter-Memorialpara. 7.2.4.2.1,
Annex No. C 155, (...)pp. c1523-~15241~1525-152a 9nd Annex No. C 161,Photos
1-2,p. 34 [Counter-Memorial para.7.2.4.9.1,AnnexNo. C 257, (...)pp. c2220-
22251~2226-c2230,Annex No. C 256, (...)pp. c2212-c22151~2216-c2219 and AnnexReplyofBosniaandHerzegovina
No. C 161,Photo 1, p. 35 [Counter-Memorial para.7.2.4.1O.]and Annex No. C 94,
(...)pp. c943-~956/~957-~975 [Counter-Memorial para.7-2.4.30.1.Al1the witness
statements - with the exceptionof AnnexNo. C 257 which was given beforea
presurnablyBelgrade legal authority - were presurnablygiven before "Republika
Srpska" legal authoritiesand are anonymous.These witness statements alsopartly
contain hearsay statements.Neither these witness statements northe rnedicalfindings
and the accompanying photos provide any proof whatsoeverof the existence of an
organized campaign, directedby the Applicant7s Governmentand aimed against the
Serbs assuch.
124. In the section on GoraZde[Counter-Memorial7.2.5.0.1sixteen documentsare
annexed: AnnexNo. C 61, (...)pp. c619-~622/~623-~628A , nnexNo. C 115, (...),
pp. cl 152-11551~1156-cl159,Annex No. C 62, (...)pp. c629-~6231~633-c636 and
Annex No. C 116, (...)pp. cl 160-11751~1176-cl189[Counter-Memorialpara.
7.2.5.4.1,Annex No. C 61, (...)pp. c619-c622/c623-~628and Annex No. C 114,
(...)pp. c1145-11471~1148-cl151[Counter-Mernorialpara. 7.2.5.8.1.1,AnnexNo. C
113, (...)pp. cl 138-1140/c1141-cl144 [Counter-Memorial para.7.2.5.8.2.1,Annex
No. C 254, (...)pp. c2200-~22021~2203-c220a 5nd Annex No. C 161,Photo 1, p. 36
[Counter-Mernorial para.7.2.5.8.8.1,Annex No. C 25, (...)pp. c244-~2491~250-
c254, Annex No. C 108, (..),pp. cl 102-c1105lcl106-cl109 and Annex No. C 112,
(...)pp. c1130-11331~1134-cll37)[Counter-Memorialpara. 7.2.5.8.9.1,Annex No.
C 108, (...)pp. cl 102-cl105/cl106-cl109 and Annex No. C 112, (...)pp. cl 130-
11331~1134-cl137[Counter-Memorialpara.7.2.5.8.101,Annex No. C 61, (...)pp.
c619-~6221~623-c628 [Counter-Memorialpara. 7.2.5.8.13.1and AnnexNo. C 116,
(...)pp. cl 160-11751~1176-1 c189 [Counter-Memorialpara. 7.2.5.8.14.1.Except for
one annexedwitness statement,AnnexNo. C 116, al1the other anonymous witness
statementswere presumably given before "Republika Srpska" legal authorities.
Almost al1of these partly containhearsay statements,including AnnexNo. C 116
which is a witness statementpresurnablygiven before a Belgradelegal authority;the
remarks regarding Annex No. C 116made in the paragraph dealing withGoraZdein
Section 3 of this Chapter above, are also relevant here. None of the witness
statementsprovide any proof whatsoever that anorganized campaign,directed by the
Applicant's Governent and aimedagainst the Serbsasan ethnic group existed.The
medical finding and the accompanyingphoto containno legally relevant material,do
not provide anyinformation asto the identity of the allegedperpetratorsand do not
provide any material whatsoever thatthe alleged injuries were sustained as a
consequenceof an organized campaign,directed by the Applicant'sGovernent and
aimed againstthe Serbs as such. Chapter 16-Section 4
Deliberate inflictingon Serbs conditions
of life calculated to bringabout theirphysical
destructionand causingrious bodily or mentalharm
[Counter-Memorial7.2.1
125. In the section on Sarajevo [Counter-Memorial7.2.6.0.1eight documents areannexed:
Annex No. C 10, (...)pp. c74-~831~84-c1 9[Counter-Memorial para.7.2.6.6.1,Annex
No. C 44, (...)pp. c446-~450/~451-~454 [Counter-Memorial para.7.2.6.23.1,Annex
No. C 32, (...)pp. c332-~3391~340-c346 [Counter-Memorial para.7.2.6.30.1,Annex
No. 300, (...)pp. 1889-191111912-1933[Counter-Memorial para.7.2.6.38.11,Annex
No. 247, (...)pp. 15821961 -5821129[Counter-Memorialpara. 7.2.6.38.4.1,Annex
No. C 93, (...)pp. c933-~9371~938-c942 A, nnex No. C 153, (...)pp. c1511-
~15131~11 54-1517 andAnnexNo. C 161,Photos 1-3,p.37 [Counter-Memorial para.
7.2.6.39.1.]. Except for Annexes No. 300 andNo. 247, al1the other witness
statements are anonymousand were givenbefore presumably "Republika Srpska"
legal authorities- some of these also containhearsay statements. Neitherthe witness
statementsnor the medical finding and the accompanyingphotos provide any proof
whatsoeverthat these allegedacts were directed againstthe victims because of their
Serbian origin as such. The remarks made in the paragraph on Sarajevoin Section 3
of this Chapter are also relevantin this context.
126. The section on Duvno (Tomislavgrad) [Counter-Memoria7 l.2.7.0.1is not supported
by any accessiblematerial whatsoever -this sectionwill therefore not befurther
discussedin this Reply.
In the section on Livno [Counter-Memorial7.2.8.0.1three documentsare annexed:
Annex No. C 250, (...)pp. c2165-21701~217-1 c2176 [Counter-Memorial para.
7.2.8.1.1,Annex No. C88, (...),pp. c885-~889/~890-~894 [Counter-Memorialpara.
7.2.8.12.1and Annex No. C 33, (...)pp. c347-~3501~31 5-c354 [Counter-Memorial
para. 7.2.8.15.1.Al1three documentscontainanonymouswitness statements given
before presumably "Republika Srpska" legalauthorities.However, none of these
documentsprovide any proof that an organizedcarnpaign,directed by the
Applicant'sGovernrnent and aimed specifically against the Serbs existed.Al1the
statementsalso refer to HVO forces which were not controlledby the Bosnian
Govemment.
128. The section on Bosanska PosavinaRegion [Counter-Memorial7.2.9.0.1is not
supportedby any accessible material whatsoever -this section will notbe further
discussedin this Reply.Reply of Bosnia and Herzegovina
129. In the section on OdZak[Counter-Mernorial7.2.10.0.1seventeen documents are
annexed: AnnexNo. C 66, (...)pp. c673-c681/c682-c690and AnnexNo. C 168,
(...)pp. cl605-c16071~1608-cl6 10 [Counter-Memorialpara. 7.2.10.1.4.1,Annex No.
C 56, (...)pp. c564-~5671~568-c570 A, nnex No. C 143, (...)pp. c1456-
~14571~1458-cl459and AnnexNo. C 161,Photo, p.39 [Counter-Memorialpara.
7.2.10.1.5.1,Annex No. C 251, (...)pp. c2177-~21791~2180-c218[ 2Counter-
Memorial para. 7.2.10.1.8.1,AnnexNo. C 145, (...)pp. c1462-~14631~1464-cl465
[Counter-Memorialpara. 7.2.10.1.21 .],Annex No. C 258, (...)pp. c2231 -
~22341~2235-c2237A , nnex No. C 161,Photos 1-5,pp. 40-43, AnnexNo. C 119,
(...)pp. c1204-12081~1209-cl213and Annex No. C 26, (...)pp. c255-~2581~259-
c262 [Counter-Memorial para.7.2.10.2.2.1,AnnexNo. C 260, (..),pp. c2246-
~22481~2249-c221 5, AnnexNo. C 161, Photos 1-2, pp. 44-45, AnnexNo. C 119,
(...)pp. cl204-12081~1209-c1213,Annex No. C 261, (...)pp. c2252-~22541~2255-
c2257, Annex No. C 161,Photo 1,p. 38 and AnnexNo. C 90, (...)pp. c904-
c907/c908-c912 [Counter-Memorialpara. 7.2.10.4.3.Except for the first document
which contains an anonymouswitnessstatement given before aBelgrade legal
authority, the other witness statements weregivenbefore presurnably"Republika
Srpska" legal authoritiesand are also anonymous.The Respondent also failed to
mention that, evenif the allegedfacts wereme, the HVO forces werenot controlled
by the Bosnian Government. Like themedical findingsand the horrible
accompanyingphotos, these witness statementsprovide no material of an organized
carnpaign,directed by the Applicant's Governrnent and aimed againstthe Serbs as
such.
130. In the section on Brod (the true name of this town is BosanskiBrod, howeverthe
Respondent has deemed fit to delete "Bosanski", whichmeans Bosnian) [Counter-
Memorial 7.2.11 .O.]fifteen documentsare annexed:Annex No. C 119, (...)pp.
c1204-12081~1209-cl213,Annex No. C 70, (...)pp. c716-c721/c722-c727,Annex
No. C 29, (...)pp. c301-c304/c305-c308and AnnexNo. C 96, (...)pp. c987-
~9901~99 1-c994 [Counter-Memorialpara.7.2.11.O.],Annex No. C 142, (...). pp.
c1452-~14531~1454-1455 and AnnexNo. C 161,Photo, p. 51 [Counter-Memorial
para. 7.2.11.1.], Annex No. C 70. (...)pp. c716-~7211~722-c727 [Counter-Memorial
para. 7.2.11.2.1.1,Annex No. C 15, (...)pp. c149-~1531~154-cl58 [Counter-
Memorial para. 7.2.11.4.1.1,AnnexNo. C 101, (...)pp. c10310c1033lc1034-cl037
[Counter-Mernorial para. 7.2.1 1.4.4.1,AnnexNo. C 15, (...)pp. c149-~1531~154-
cl58 [Counter-Memorialpara. 7.2.11.4.5.1,AnnexNo. C 262, (...)pp. c2258-
~22601~221 6-c2263 and AnnexNo. C 161, Photos 1-2, pp. 46-47 [Counter-Memorial
para. 7.2.11.5.1,Annex No. C 119, (...),pp. c1204-c1208/c1209-c1213[Counter- Chapter 16-Section 4
Deliberate injlictingon Serbs conditions
oflife calculated to bring about theirphysical
destruction andcausingserious bodily or mental harm
[Counter-Memorial7.2.1
Memorial para. 7.2.11.6.3.1,Annex No. C263, (...)pp. c2264-~22661~2267-c2269
and Annex No. C 161, Photos1-2, pp.48-49[Counter-Memorial para. 7.2.11.6.4.1.
Al1the witness statements are anonymousand were givenbefore presumably
"Republika Srpska"legal authorities;some of these statements alsopartly contain
hearsay statements. Without acknowledging the truth of these statements,it shouldbe
pointed out that at the time in issue, theHVO forces controlled Bosanski Brod - the
Bosnian Governmenthad no authority over these forces. In any case, neither these
statementsnor the medical findingsand the accompanyingphotos provide any proof
that an organized campaign, directedby the Applicant's Governmentand aimed
against the Serbs as such, existed.
131. In the section on Oraiije-DonjaMahala [Counter-Memorial7.2.12.0.1fourteen
documents are annexed:AnnexNo. C 141, (...)pp. c1446-14481~1449-1 c451, Annex
No. C 161, Photos 1-2, p. 50 and Annex No.C 8, (...)pp. c55-~581~59-c65
[Counter-Memorial7.2.12.1.2.1,AnnexNo. C 252, (...)pp. 2183-~21861~2187-c2190
and Annex No. C 161,Photos 1-2,p. 52 [Counter-Memorialpara. 7.2.12.1.5-1,
Annex No. C 146, (...)pp. c1466-~14681~1469-cl472 and Annex No. C 161, Photos
1-2, p. 53 [Counter-Memorialpara. 7.2.12.1.9.1,Annex No C 138, (...)pp. c1423-
c14251~1426-cl428and AnnexNo. C 161,Photo 1, p. 81 [Counter-Memorialpara.
7.2.12.1.11 .], Annex No. C 60, (...)pp. c600-~6071~608-c618 and Annex No. C 245,
(...)pp.c2105-c21081~2 109-2112 [Counter-Memorialpara.7.2.12.1.12.1,Annex No.
C 119, (...)pp. c1204-1208/c1209-cl213[Counter-Memorialpara. 7.2.12.1.13.1,
Annex No. C 29, (...)pp. c301-~3041~305-c308 [Counter-Memorial para. 7.2.12.2.1 .]
and Annex No. C 249, (...)pp. c2158-21611c2 162-c2164[Counter-Memorialpara.
7.2.12.31.Al1the witness statements are anonymousand were given before
presumably "RepublikaSrpska" legal authorities. Annex No. C 8also refers to
Muslims being held in a campat Donja Mahala.Withoutacknowledgingthe truth or
relevance of the statements,it must be notedthat the area in issue was controlledby
the Croatian and HVO forces for whom the BosnianGovemmentwas not
responsible.Neither these anonymous witness statementsnor the medical findings
and the accompanying photos provide any proof that an organizedcarnpaign,directed
by the Applicant'sGovernment andairnedagainstthe Serbs as such, existed.
132. In the section on BrCko[Counter-Memorial7.2.13.0.1fifteen documentsare annexed:
Annex No. C 4, (...)pp. c22-~241~25-c27A , nnex No. C 106, (...)pp. c1082-
c1085/c1086-cl089 and AnnexNo. C 110, (...)pp. cl 119-1120/c1121-cl123Reply of Bosnia aHerzegovina
[Counter-Memorialpara. 7.2.13.1.], AnnexNo. C 148, (...)pp. c1479-cl4811~1482-
cl484 and AnnexNo. C 161,Photo, p. 54 [Counter-Memorial para.7.2.13.1.5.1,
Annex No. C89, (...)pp. c895-~898/~899-~903A , nnexNo. C 147, (...)pp. c1473-
~14751~1476-cl478and Annex No. C161,Photos 1-2, pp. 55-56 [Counter-Mernorial
para. 7.2.13.1.6.1,Annex No. C89, (...)pp. c895-~898/~899-~903A , nnexNo. C
149, (...)pp. c1485-~14881~1489-cl492 and Annex No.C 161,Photos 1-3,p.57
[Counter-Memorialpara. 7-2.13.1.7.1,AnnexNo. C 97, (...)pp. c995-~9971~998-
clO01[Counter-Memorial para.7.2.13.1.8.1,AnnexNo. C 106, (...)pp. cl 082-
c1085/c1086-cl089 [Counter-Memorial para.7.2.13.4.1.], AnnexNo. C 162, (...)pp.
c1568-c1570/c1571-c1573and Annex No. C 161,Photo 1, p. 80 [Counter-Memorial
para. 7.2.13.4.3.1.Al1the witness statements are anonymousand were given before
presumably "Republika Srpska" legalauthorities;most of these also containhearsay
statements andnone point to an organized campaign against theSerbs as such. The
medical findings and the accompanying photoscontainno materialrelevant tothe
question whetheran organized campaign, directedby the Applicant'sGovernrnent
and aimed against the Serbs as such existed.
133. The section on Kotor Var03[Counter-Memorial7.2.14.0.1is not supportedby any
accessible material whatsoever - this sectionwill not be further discussedin this
Reply .
134. In the section on Derventa [Counter-Memorial7.2.15.0.1thirteen documents are
annexed:Annex No. C 45, (...)pp. c455-~458/~459-c464 [Counter-Memorialpara.
7.2.15.4.1,Annex No. C 128, (...)pp. c1311-13141~1315-cl219and Annex No. C
127, (...)pp. c1300-13041~1305-cl3 10 [Counter-Memorialpara.7.2.15.7.1,Annex
No. C 131, (...)pp. c1356-~13581~1359-cl464 and AnnexNo. C 161,Photos 1-2, p.
83 [Counter-Memorial para.7.2.15.11.1,Annex No. C 132, (...)pp. c1365-
cl3681~1369-cl375and AnnexNo. C 161,Photos 1-3,p. 84 [Counter-Memorial
para. 7.2.15.12.1,AnnexNo. C 133, (...)pp. c1376-c1381/c1382-c1392and Annex
No. C 161, Photos 1-3,p. 82 [Counter-Claim para. 7.2.15.13.1,Annex No. C 134,
(...)pp. c1393-c1396/cl397-cl403 and AnnexNo. C 161,Photo 1,p. 86 [Counter-
Claim para. 7.2.15.14.1,Annex No. C 135, (...)pp. c1404-c1406/c1407-c1411and
AnnexNo. C 161,Photo 1, p.85 [Counter-Memorialpara.7.2.15.15.1.With the
exceptionof Annex No. C 128in which the witness' name was not deletedin the
substantivepartof the statement,al1the witness statements whichwere given before
presumably "Republika Srpska" legal authoritiesa ,re anonymous.Some of these
witness statementsfurthemore partly containhearsay statements.In the case of the
medical findings no material legally relevantto the questionwhether an organized Chapter 16- Section 4
Deliberate inflictingon Serbs conditions
oflife calculated to bring about theirphysical
destruction and causingious bodily or mental harm
[Counter-Memorial7.2.1
campaign, directed by the Applicant's Governrnentand aimed againstthe Serbs as
such existed, is provided. The photos are indeed terrible, but no information
pertaining to the background to these photos is provided. None of the annexes
provide any proof of an organized campaign, directedby the Applicant's
Govemment and aimed against the Serbs as such.
135. The section on Zvornik [Counter-Memorial7.2.16.0.1is not supported by any
accessible material whatsoever - this section will not be further discussed in this
Reply. Bosnia and Herzegovina wishes to draw the Court's attentionto Chapter 5,
Section 6 of this Reply,which is entirely devoted to Zvornik and which provides the
true picture of events that took place in this city.
136. In the section on HadiiCi [Counter-Memorial7.2.17.0.1six documents are annexed:
Annex No. C 74, (...).pp. c753-~754/~755-c757and Annex No. C 75, (...)pp.
c758-c763/~764-~768[Counter-Memorialpara. 7.2.17.2.1,Annex No. C 58, (...)pp.
c579-~582/~583-c588,Annex No. C 65, (...)pp. c662-~6661~667-c672 and Annex
No. C 95, (...),pp. c976-c980/~981-~986[Counter-Memorialpara. 7.2.17.3.1and
Annex No. 246, (...)pp. 158211-1 582195[Counter-Memorial para. 7.2.17.5.1 .].Al1
the documents contain anonymous witness statements given before presumably
"Republika Srpska" legal authorities;some of the documents also contain hearsay
information and none of the allegations point to the existence of an organized
campaign, directed by the Applicant's Government and aimed againstthe Serbs as
such. Annexes No. C 65 and No. C 95 furthermore contain anonymous witnesses
statements made by two reserve soldiers of the Yugoslav People's Army captured in
iunovnica, which lies to the south-east of Sarajevo, on 25 May 1992 - the said
Amy by then already had, at least this seemsto be the Respondent's (not the
Applicant's) position, withdrawn from Bosnia and Herzegovina.
137. In the section on Kladanj [Counter-Memorial7.2.18.0.1one document is annexed:
Annex No. C 7, (...)pp. c43-~481~49-c54[Counter-Memorial para. 7.2.18.3.1.The
document contains an anonymous witness statement given before a presumably
"Republika Srpska" legal authority. The alleged perpetrators are not identified and
the document provides no proof that there was an organized campaign, directed by
the Applicant's Governrnentand aimed againstthe Serbs.RepIyofBosnia and Herzegovina
138. In the section on Tuzla [Counter-Memorial7.2.19.0.1four documents are annexed:
Annex No. C 47, (...)pp. c475-c483/~484-~491 [Counter-Memorial para.7.2.19.2.1,
Annex No. C 63, (...)pp. c637-c644/c645-c65 1 [Counter-Memorial para. 7.2.19.3 .],
Annex No. C 265, (...)pp. cc2277-c2280/c2281-c2287and Annex No. C 161,
Photos 1-5, pp.59-61 [Counter-Memorialpara. 7.2.19.4.1.The two documents
mentioned first are anonymousand partly hearsaywitness statementsgiven before
presurnably"Republika Srpska" legal authorities. Neither these documentsnor the
medical report and the accompanying photosprovide any material whatsoeverof an
organized campaign,directedby the Applicant'sGovernmentand aimed against
these victims because of their ethnic origin.
139. The section on Gradacac [Counter-Memorial7.2.20.0.1is not supportedby any
accessiblematerial whatsoever -this sectionwill not be further discussedin this
Reply.
140. The sectionon Jajce [Counter-Memorial7.2.21.0.1is not supportedby any accessible
material whatsoever - this section willnot be Mer discussedin this Reply.
141. In the section on Banoviki [Counter-Memorial7.2.22.0.1two documentsare annexed:
Annex No. C49, (...)pp. c496-~5031~504-c51A 0 nnex No. C 24, (...)pp. c228-
~2361~237-c243 [Counter-Memorialpara. 7.2.22.1 .]Both these documentscontain
anonymous, partly hearsay witness statements given before presumably "Republika
Srpska"legal authorities -they do not provide any material that the Serbs as such
were targeted for the alleged maltreatment.
142. The section on iivinice [Counter-Memorial7.2.23.0.1is not supportedby any
accessiblematerial whatsoever - this section will notbe further discussedin this
Reply .
143. The section on Trnovo [Counter-Memorial7.2.24.0.1is not supportedby any
accessiblematerial whatsoever - this section willnot be further discussedin this
Reply.
144. In the sectionon Lukavac [Counter-Memorial 7.2.25.0.1one documentis annexed:
Annex No. C 248, (...)pp. c2127-21441~2 145-c2157[Counter-Mernorialpara.
7.2.25.1.1.The documentcontainsan anonyrnouswitness statementgiven before a
legal authority in Belgrade.The witness himselfrefers to the fact that Serbsas well
as Muslims werethe victims of maltreatmentat the hands of an HOS formation, Chapter 1- Section 4
Deliberate inflictingon Serbs conditions
of life calculated to bring about theirphysical
destruction and causingious bodily or mentalharm
[Counter-Mernorial2.1
which in any case were not controlledby the Bosnian Govemment.No material is
provided of an organized campaign, directedby the Applicant's Govemmentand
aimed specificallyagainst the Serbs.
145. The section on Medjedja [Counter-Memorial7.2.26.0.1is not supportedby any
accessiblematerial whatsoever - this section willnot be further discussedin this
Reply.
146. The section on Travnik [Counter-Memorial7.2.27.0.1is not supportedby any
accessiblematerialwhatsoever - this section will notbe further discussedin this
Reply.
147. In the section on Srebrenica [Counter-Memorial 7.2.28.0.1ten documents are
annexed:Annex No. C 130, (...)pp. c1348-13501~1351-~1355 , nnex No. 266, (...),
pp. c2288-~22901~2291-~2295 A,nnexNo. C 161,Photos 1-3,pp. 62-64, AnnexNo.
C 267, (...)pp. c2296-~22981~2299-c2303 A,nnexNo. C 161, Photos 1-2,p. 65,
Annex No. C 73, (...)pp. c744-~748/~749-c752 and Annex No. C 41, (...)pp. c416-
~4221~423-c428 [Counter-Memorialpara.7.2.28.1-1,Annex No. C 3, (...)pp. cl6-
~181~19-c20A , nnexNo. C 253, (...)pp. c2191-~21951~2196-c2199 and AnnexNo.
C 161, Photos 1-4,pp. 89-90 [Counter-Memorialpara.7.2.28.2.1.None of the
documentsprovide any evidencethat there was an organized campaign,directedby
the Applicant'sGovernmentand aimed againstthe Serbs assuch. Without
acknourledgingthe value of these medicalreports, both the victims mentionedin the
medical reports [Annexes No. C 266 and No. C 2671were soldiers at the time of
their capture. but, even moreimportantly,the first victim wascaptured on Bosnia
and Herzegoviniantemtory while servingasa reservist in the YugoslavPeople's
Army - he took part in military activities aroundthe village of Podravno which is
not farfrom Srebrenica [it could not have beenPodravinaas is mentioned in the
Annex. because the latter town is situatedin the north-westerncorner of Croatiaand
at the relevant timeno fighting took place inthat part of Croatia]during September
1992, when the said Army supposedly,at least accordingto the Respondent(not
accordingto the Applicant) alreadywithdrewfiom Bosnia and Herzegovina.The
witness statementsare anonymous, someof them contain hearsay material and they
also do not provide any proof that there was a systematiccampaign, directedby the
Applicant'sGovernmentand aimed againstSerbs as such. Two of these witness
statements (AnnexNo. C 130and No. C 3) were given before legal authorities inReply ofBosniaandHerzegovina
Belgrade - in the latter documentthe victim mentionedthat he was exchanged and
ended up in Belgrade, which seemsto implythat he actuallyoriginates from the
FRY; the other statementswere given beforepresurnably"RepublikaSrpska" legal
authorities.The photos are horriblebut do not provide any Mer information.
148. In the section on Visoko [Counter-Memorial 7.2.29.0.1one documentis annexed:
Annex No. C 79, (...)pp. c799-~8031~804-c807 [Counter-Memorialpara.7.2.29.2.1.
The document contains an anonymous witness statement presumablygiven before a
"Republika Srpska"legal authority - it does not provide any material of an organized
carnpaign,directed by the Applicant's Governrnentand aimed againstthe Serbs.
149. In the section on Mostar [Counter-Memorial7.2.30.0.1three documentsare annexed:
Annex No. C 154, (...)pp. c1518-c1519/c1520-1522and Annex No. C 161, Photo
1, p. 66 [Counter-Memorial para. 7.2.30.16.1and AnnexNo. C 81, (...)pp. c814-
~8191~820-c824 [Counter-Memorial para.7.2.30.25.1.The documentscontain partly
hearsay evidence, are anonymousand do not provide any evidenceof an organized
campaign specificallyaimed against the Serbs. Thephoto is indeedhorrific but does
not provide any Mer information. The rernarksmade in the paragraph dealingwith
Mostar in Section 5 of this Chapter, arealso relevantin this context.
150. In the section on Zenica [Counter-Memorial7.2.3 1.O.]two documentsare annexed:
Annex No. C 49, (...)pp. c496-~5031~504-c1 50 [Counter-Memorialpara. 7.2.31.7.1
and AnnexNo. C 36, (...)pp. c376-3791~380-c383 [Counter-Memorialpara.
7.2.31.12.1.Both the documentscontainanonymous and partly hearsaywitness
statements given before a presumably "Republika Srpska" legal authority. The first,
partly hearsay witness statement,does not even refer toacts which allegedly took
place in Zenica.
151. The sectionon Vitez [Counter-Memorial 7.2.32.0.1is not supportedby any
accessiblematerial whatsoever - this section willnot be further discussedin this
Reply.
152. The section on Kupres [Counter-Memorial7.2.33.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill not be further discussedin this
Reply. Deliberate inficting on Serbs conditions
oflife calculated to bring about theirphysical
destructionand causingserious bodily or mental harm
[Counter-Memoria7.2.1
153. The section on Jablanica [Counter-Memorial7.2.34.0.1is not supportedby any
accessible material whatsoever - this section will notbe further discussedin this
Reply .
154. The section on Fojnica [Counter-Memorial7.2.35.0.1is not supportedby any
accessiblematerial whatsoever-this section willnot be further discussedin ths
Reply .
155. The section on Breza [Counter-Memorial7.2.36.0.1is not supportedby any
accessiblematerial whatsoever - this section will notbe further discussedin this
Reply .
156. The section on Novi Travnik [Counter-Memorial7.2.37.0.1is not supportedby any
accessible material whatsoever - this section will notbe further discussedin this
Reply .
157. The section on Busovaea [Counter-Memorial7.2.38.0.1is not supportedby any
accessiblematerial whatsoever - this section will notbe further discussedin this
Reply .
158. The section on Bugojno [Counter-Memorial7.2.39.0.1is not supportedby any
accessible material whatsoever - this section will notbe further discussedin this
Reply .
159. The section on Hrasnica [Counter-Memorial7.2.40.0.1is not supportedby any
accessiblematerial whatsoever - this section will notbe further discussedin this
Reply .
160. The section on BihaC[Counter-Memorial7.2.41.0.1is not supportedby any
accessible material whatsoever - this section willnot be further discussedin this
Reply .
161. The section on Kakanj [Counter-Mernorial7.2.42.0.1is not supportedby any
accessible material whatsoever - this section will notbe Mer discussedin this
Reply .Reply of Bosnia and Herzegovina
162. The sectionon KonjiC.[Counter-Memorial7.2.43.0.1is not supportedby any
accessiblematerial whatsoever -this sectionwill not beMer discussedin this
Reply .
163. In the section on TeSanj[Counter-Memorial7.2.44.0.1five documentsare annexed:
Annex No. C 27, (...)pp. c263-~2661~267-c270A , nnexNo. C 151, (...)pp. c1500-
c1502/c1503-1505and AnnexNo. C 161,Photos 1-5,p. 67 [Counter-Memorial para.
7.2.44.1.], Annex No. C107, (...pp. c1090-c10961c1097-c1101 [Counter-Memorial
para.7.2.44.2.1and AnnexNo. C 121, (...)pp. c1225-12291~1230-cl235[Counter-
Memorial para.7.2.44.3.1.The documentscontainanonymousand partly hearsay
witness statementsgiven before a presumably Republika Srspka legal authorityt;he
documentsin most casesalso do not identifythe perpetratorsnor do they provide
any proof that the allegeddeeds forrnedpart of an organized campaign, directedby
the Applicant'sGovernmentand aimed against the Serbsassuch. The photos
accompanyingthe medical finding are horrible indeedbut do not provide proof that
these injuries were sustainedbecauseof an organized campaign, directedby the
Applicant's Governmentand aimed against a specificethnic group.
164. In the section on Banja Luka [Counter-Memorial7.2.45.0.1one documentis
annexed:Annex No. C272, (...)pp. c2340-~23421~2343-c2345 T.his document
contains an anonymous witness statement given before a presumably "Republika
Srpska" legal authority.The document does not containany material that points toan
organized campaign againstSerbs as such -the statementin fact also refers to non-
Serbs who were sufferingtogether with others becauseof the shortageof medicine.
165. In the section "Rapes causingseriousbodily and mental hm to Serb women"
[Counter-Memorial7.2.46.0.1six documentsare annexed: AnnexNo. C 2, pp. c8-
cl 11~12-c15.Annex No. C 151,pp. c1500-c1502/c1503-1505and Annex No. C 161,
Photos 1-2.p. 68 [Counter-Memorialpara.7.2.46.1.1,Annex No. C 136,pp. c1412-
c14131c 1515-c1417 and Annex No. C 161, Photo 1,p. 88 [Counter-Memorialpara.
7.2.46.2.1and Annex No. 59, pp. 526-553 [Counter-Memorialpara. 7.2.46.3.1.The
first mentioned documentcontains anonymous witness statements givenbefore a
presumably "Republika Srpska" legalauthority;the 1st-mentioned document is
entirely producedby the Federal Republicof Yugoslavia(which the Respondentfails
to mention) and was send to the Secretary Generalof the United Nations.It contains
long listings of locations,which would presumably have been exploitedby the
Applicant asbrothels. These allegationsare not supportedby independentevidence,
which is a likely explanationfor the factthat many of the locations did,in fact, not Chapter 16-Section 5
Ethniccleansing[Counter-Mernorial7.3.1
exist at dl, while many others were completely destroyedby the Serbs without those
ever having been used as a brothel. The second andfourth mentioned documents are
medical findings which contain legally irrelevant material.The photos do not provide
any evidence whatsoever regarding the identity of the perpetrators. None of the
annexes contain any proof that the allegedrapes forrned part of an organized
campaign, directed by the Applicant's Government and aimed against the alleged
victims specifically because of their ethnic origins.
166. In the section "Forensic-medical documentation1'[Counter-Memorial7.2.47.0.1
eighty-eight forensic-medical documents, includingfour Photo Annexes, are annexed:
the Annexes are listed in Section 7.2.47.0. of the Counter-Memorial.The medical
reports were requested by the Belgrade based Cornmitteefor Gathering Information
on Crimes Cornrnittedagainst Humanity and International Law. Most of the reports
were drawn up by the same three medical doctors. None of the medical reports
contain material regarding the identity of the alleged perpetrators or any evidence
that the reported injuries were inflicted on the victims as part of an organized
campaign specifically aimed against thembecause of their ethnic origins. In most
cases the ethnicity of the victims are not even mentioned, and some of the victims
sustained the injuries while serving as soldiers. Some of the areas mentioned were at
the relevant time under the control of Croatian forces. The four photos do not
provide any fürther information -the background to these photos are not explained
and no evidence regarding any possible well-organised campaignor pattern of
conduct, directed by the Applicant's Government and airned against these victims
because of their ethnic background can be gleaned from these photos.
167. The conclusion to be drawn from al1of this, is the same as the one drawn at the end
of the previous Section; it suffices to refer to that.
5. Ethnic cleansing [Counter-Memoria7 l.3.1
168. In its Counter-Memorial the Respondentfurther devotes an extensive section on
providing data which supposedly supportthe allegation that Bosnia and Herzegovina
would be responsible for ethnic cleansing. The Applicant does not accept the view
that the data presented in Section 7.3. of the Counter-Memorial do reflect any true
facts, let alone that these facts would demonstratean intent of the Applicant to
destroy, in whole or in part, any ethnic group in Bosnia and Herzegovina.Reply ofBosnia and Herzegovina
169. Without Mer explanation andwithouttaking any legal position regarding this issue
the Respondent leaves it to the Court to find out whetherthe alleged factswould or
would not meet the criteria of the Genocide Convention.The Applicanthas a clear
and reasoned view on the question whetherthe ethnic cleansingof the non-Serb
population of Bosnia and Herzegovina giventhe relevant circumstancescertainly
equals the terms of the Genocide Convention[seeabove Chapter 5, Section 9 and
Chapter 6, Section 51.However,the Applicantdoesnot acceptthe unsupportedview
that any ethnic cleansingof Serb persons took placein the territory of Bosnia and
Herzegovina, nor that the Applicantwould havebeen responsiblefor the sarne.
170. Section 7.3. of the Counter-Memorialcontains25 paragraphsof which only eight
paragraphs seem to be supportedby materialwhich is accessible tothe Applicant. As
explained in Section 1 of this Chapter, the Applicantdoes not deem it necessary, nor
is it possible, to go into any of the allegations whichare not supportedby any
material or if the material supposedlyis to be found in Belgrade.
171. The sectionon Olovo [Counter-Memorial7.3.1.0.1is not supportedby any accessible
material whatsoever -this section will thereforenot be further discussedin the
Reply .
172. The sectionon Livno [Counter-Memorial7.3.2.0.1is not supportedby any accessible
material whatsoever -this section will thereforenot be further discussedin the
Reply .
173. In the section on Tuzla [Counter-Memorial7.3.3.0.1one documentis annexed:
Annex No. 252, (...)pp. 1582/233-1582/254[Counter-Memorialpara. 7.3.3.2.1.The
annex contains an anonymouswitness statement given before apresurnably
"Republika Srpska"legal authority.The statementprovide no proof whatsoeverof
the existence of an organizedcarnpaign,directedby the Applicant'sGovernment and
aimed against the Serbsas such.
174. The section on Travnik [Counter-Mernorial'7.3.4.0.1 is not supportedby any
accessible material whatsoever - this section will thereforenot be Mer discussedin
the Reply.
175. The section on Zenica [Counter-Memorial7.3.5.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill therefore not be further discussedin
the Reply. Chapter 16-Section 5
Ethniccleansing[Counter-Mernorial7.3.1
176. The section on Srbinje (FoCa)[Counter-Memorial7.3.6.0.1is not supportedby any
accessible material whatsoever -this section willtherefore not be further discussedin
the Reply.
177. The section on Konjic [Counter-Memorial7.3.7.0.1is not supportedby any
accessiblematerial whatsoever -this section willtherefore not be further discussedin
the Reply.
178. In the section on Mostar, Capljina,Stolac and Jablanica [Counter-Memorial 7.3.8.0.1
one document is annexed:AnnexNo. C 274, (...)pp. ~23.53-c2375[Counter-
Memorial para. 7.3.8-1.1.The annex containsthe Report of the CommitteeCompiling
Data on Crimes againstHumanityand InternationalLaw on Mostar 1991 -1993,
presurnablycompiled by the Comrnitteefor the Collectionof Data on Crimes
Comrnittedagainst Humanity and International Law.The report itself contains
excerpts from witness statements. Not only arethese witness statementsinaccessible
to the Applicant, but it is also unclearto whom andunder what circumstancesthese
supposed statementswere made. Besidesthat, most of the statementsalso seem to
refer to HVO, HOS or "Croat" forces which werein any case not under the control
of the Bosnian Government.
As noticed before in this Reply,the Respondentoften misrepresents sources. In
Paragraph 7.3.8.0. of the Counter-Memorial a sentence taken from the Sixth Periodic
Report of the Special Rapporteurof the UnitedNations Commissionon Human
Rights, Mr. Tadeusz Mazowiecki,is quoted. The quote is supposedto support the
allegation thatan organizedcarnpaignof ethnic cleansing aimed againstthe Serbs as
such in Mostar, was practised by the Bosnian Government.The Respondentquotes
the said sentence as follows:
"Theresultof theethniccleansingof Serbswasthat theentirepopulationws reducedfiom their
pre-warnumberof 30,000to only00" [Counter-Memorial,p. 1001para 7.3.8.1.]
The whole of Paragraph 16 of theReport of the SpecialRapporteur, under the
subsection heading "Terrorizationof Muslimsand Bosnian Serbs in Bosnian Croat
held territory", actually reads as follows:
"Controlof theeasternpartof thecityMostaris exercisedbytheGovement forcesandof the
westernpart byBosnian Croatforces.The'ethniccleansing'of Mostarwastdirected against
the SerbsandthenagainsttheMuslimsA resultof the 'ethniccleansing'of Serbsis thattheir
populationinMostarhasbeen reducefiom a pre-warfigureof 30,000tojust400. Unliketheir
counterparinwesternMostar, whoaresubjectto numerousabusesby theCroatpopulation,bsReply of Bosnia andHerzegovina
in the easternpart of thdo not appear to be the victims of anyform of invidious
discriminationthe Muslimmajori~."[UnitedNations, Situationof HumanRightsin
the territoryof theformer Yugoslavia, sixthperiodic reportsubmittedby Mr.
TadeuszMazowiecki,SpecialRapporteurof the CommissiononHumanRights,
E/CN.4/1994/110,21 Feb. 1994,p. 6, para. 16, emphasisadded].
It is clear that this sectionof the Mazowiecki reportdoes not in any way supportthe
Respondent's allegations.The annexedmaterial does not provide any proof
whatsoeverthat the BosnianGovernment organized a carnpaign ofethnic cleansing
aimed against the Serbs as such.
179. The sectionon Derventa [Counter-Memorial7.3.9.0.1is not supportedby any
accessiblematerial whatsoever -this sectionwill therefore not be fùrther discussedin
the Reply.
180. The section on Bratunacand Srebrenica[Counter-Memorial 7.3.10.0.1is not
supportedby any accessiblematerial whatsoever -this section willtherefore not be
further discussedin the Reply.
18 1. The section on BanoviCi[Counter-Memorial7.3.11.O.]is not supportedby any
accessible material whatsoever -this sectionwill therefore not be fùrther discussedin
the Reply.
182. In the sectionon Sarajevo [Counter-Memorial7.3.12.0.1one documentis annexed:
Annex No. C 57, (...)pp. c571-c574/c575-c578[Counter-Memorial para. 7.3.12.1 .].
The annex contains an anonymous witness statement given before a presumably
Belgrade legal authority.The statementprovide no proof whatsoeverof the existence
of an organizedcarnpaign,directed by the Applicant'sGovernent and aimed
againstthe Serbs as such.Even if the statement wereto be true, the witness himself
states that hewas in fact assistedby the Presidencyof Bosnia and Herzegovinaafter
the alleged deeds took place.
183. The sectionon Visoko [Counter-Memorial7.3.13.0.1is not supportedby any
accessible material whatsoever -this sectionwill therefore not be Mer discussedin
the Reply.
184. The section on Hrasnica [Counter-Mernorial7.3.14.0.1is not supportedby any
accessible material whatsoever -this sectionwill therefore not be Mer discussedin
the Reply. Chapter 16-Section 5
Ethniccleansing[Counter-Mernorial7.3.1
185. The section on Zivinice [Counter-Memorial7.3.15.0.1is not supportedby any
accessiblematerial whatsoever - this section will therefore notbe further discussedin
the Reply.
186. In the section on ViSegrad[Counter-Memorial7.3.16.0.1one documentis annexed:
AnnexNo. 251c, (...)pp. 158212061 -5821219 [Counter-Memorial para.7.3.16.1.].
The annex containsan anonymous witness statement given before a presumably
"RepublikaSrpska" legalauthority and which partly containshearsay material.The
witness statement containsno proof whatsoeverof an organized campaign,directed
by the Applicant'sGovernment and aimed against Serbsas such. In fact, the
statementrefers to Muslims leavingViSegradand surroundingareas for GoraZde,
supportingthe fact that ViSegradwas at that timeunder the control of the Yugoslav
People'sArmy.
187. The section on Bosanska Posavina [Counter-Memorial7.3.17.0.1is not supportedby
any accessiblematerial whatsoever - this sectionwill therefore not be further
discussedin the Reply.
188. In the section on Brod (Bosanski Brod) [Counter-Memorial 7.3.18.0.1four
documentsare annexed: Annex No. C38, (...pp. c390-~3931~394-c397A , nnex No.
C 96, (...)pp. c987-~9901~991-c994A , nnex No. C68, (...)pp. c699-~7011~702-
c705 and AnnexNo. C 37, (...)pp. c348-c386/~387-~389[Counter-Memorialpara.
7.3.18.1.] Al1the annexescontain anonymous witness statements presumablygiven
before a "Republika Srpska" legal authority. These statementsdo not provide any
proof whatsoever of an organized campaign, directedby the Applicant'sGovernment
and aimed againstthe Serbs as such.
189. In the sectionon O& [Counter-Memorial7.3.19.0.1two documentsare annexed:
AnnexNo. C 119, (...)pp. c1204-c12081c1209-c1213 and Annex No, C26, (...)pp.
c255-~258/~259-~262 [Counter-Mernorialpara.7.3.19.0.1.Both the annexescontain
anonymous witnessstatements givenbefore presumably "Republika Srpska" legal
authoritiesand both statementsrefer to the CroatianArmy which allegedlyalso took
part in the alleged deeds. The Governmentof Bosnia andHerzegovinahad no
control over the CroatianArmy andthe allegeddeeds in any event do not provide
any proof whatsoeverof the existenceof an organized campaign,directedby the
Applicant's Govemmentand aimed at the Serbsas such.Reply of Bosnia andHerzegovina
190. The section on Orsje [Counter-Memorial7.3.20.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill therefore not be Mer discussedin
the Reply.
191. The section on Goraiide[Counter-Memorial7.3.21.O.]is not supportedby any
accessiblematerial whatsoever - this sectionwill therefore not be futher discussedin
the Reply.
192. The section on Cazin [Counter-Memorial7.3.22.0.1is not supportedby any
accessiblematerial whatsoever - this sectionwill therefore not befurther discussedin
the Reply.
193. The section on Gornji Vakuf [Counter-Memorial7.3.23.0.1is not supportedby any
accessiblematerial whatsoever - this section willtherefore not be further discussedin
the Reply.
194. In the section on KozarskaDubica (Bosanska Dubica) [Counter-Memoria7 l.3.24.0.1
one document is annexed: AnnexNo. C 78, (...)pp. c792-c795/~796-~798[Counter-
Memorial para. 7.3.24.0.1.The annexcontainsan anonymous witness statementmade
before a presurnably "Republika Srpska" legal authorityT . he witness noted that the
alleged perpetratorsof the deedswere soldiers of the CroatianArmy -the Bosnian
Governrnent did not control the Croatian Army. The statement provides no proof of
the existence of an organized campaign,directed by the Applicant'sGovernrnentand
aimed against the Serbs as such.
195. In the section on BrEko[Counter-Memorial7.3.25.0.1one document is annexed:
Annex No. C 97, (...)pp. c995-~9971~998-cl001 [Counter-Memorialpara. 7.3-25.1.].
The annex contains an anonymous witness statementmade before a presurnably
"Republika Srpska"legal authority. Referencesare also madeto HVOforces who
supposedly were the perpetratorsof the alleged deeds - the Respondentfails to
explain why, if the related facts are true, Bosnia and Herzegovina wouldbe
responsible becausethese forceswere not controlledby the Bosnian Government.
The witness statement provides no proof of the existenceof an organized campaign,
directed by the Applicant'sGovernment and aimedagainst the Serbs as such. Destruction ofplaces of worship [Counter-Memorial7.4.J
6. Destruction ofplaces of worship [Counter-Mernorial 7.4.1
196. Bosnia and Herzegovinais somewhat confused about Section 7.4. of the Counter-
Memorial in which the Respondent states "[Ilf the Court finds that hereafter
submitted data are legally relevant, the Court is requested to consider the following
cases.". Here it seems that the Respondent is of the opinion that it is the Court,
which is to make a case on behalf of the Respondent, not the Respondent itself. It
goes without saying that such an approach is entirely unacceptable.In the sarne vain
it is clear that itannot be expected that Bosniaand Herzegovina would have to
defend itself against a case, which supposedlyit needs first to construe itself before
being able to respond to it. For these very reasons Bosnia and Herzegovinais of the
opinion that Section 7.4. shouldbe ignored in its entirety as part of or in support of
any sort of counter-claim submittedby the Respondent.
197. Moreover, none of the Respondent's allegations aresupported by any (readily
available) material whatsoever. The large majority of the events listed by the
Respondent is not specified at al1as far as dates or perpetrators are concerned.
Sometimesthe Respondent seems to refer to events that tookplace in World War II,
many times no date at al1is provided, whilst in most occasions only a particular year
or, even more vague,just "1991 -1995"is added as an indication of the point of time
on which the event presurnably occurred.
Defining the alleged perpetrator is done more or less the sarne way: many times no
indication whatsoever of an alleged perpetrator is provided, many times the
Respondent confines itself to languageas "the Croats", "the Muslims", "Muslim
fundamentalists", "Croat extremists", "Muslimarmed forces", "the Croat anny ", etc..
It may not be expected from Bosnia and Herzegovina, or for that matter fiom any
State party in any case before this Court, to tryand defend itself against this type of
allegations.
198. Bosnia and Herzegovina acknowledges that in the course of the armed conflict Serb
religious property may occasionally have been damagedor sometimes even
destructed. However, it does deny that this has ever occurred systematically, on the
basis of Govenunent instructions or instructions from other official, civil or military,
authorities, let alone as part of a deliberate ongoing policy. Since the Respondent
does not offer any specific material which could possibly support any existence of
such instructions or policy, this would suffice as a response to these unsupported
allegations.Reply of BosniaandHerzegovina
It is only because Bosnia and Herzegovina stronglybelieves in freedom of religion
and in respect foral1religions and its places of worship thatit will add some
observationsto the issues raisedby the Respondentin this Sectionof its Counter-
Memorial.
199. Bosnia and Herzegovinawishes to draw the Court'sattentionto various public
statements made during the armed conflictby the Bosnianauthoritiesdemonstrating
theirfirm opposition againstdestroyingculturalproperty.
200. Finally Bosnia and Herzegovina submits thatin manyoccasionsits authorities have
actively allowed or supported therestructuringof darnagedSerbreligious property
and have seen to it that free accesswould beavailable tothose wanting tomake use
of the sarnefor religiouspurposes.
201. There is no basis in fact to allegethat the Applicant's authoritiespractised a
deliberate policy aimed at the destructionof Serb culturalor religious property. As is
shown above the contrarywas the case, evenin the midst of an armed conflict
during which the Serb side tried to erase, andto a large extent succeededin doing
so, any trace of non-Serb cultureand religion within the territory of Bosnia and
Herzegovina.
7. Conclusions [Counter-Mernorial 7.5.1
202. In this Chapter of its Reply Bosniaand Herzegovinahas shownthat there is no
credible factual basis forthe allegations brought forwardby the Respondentto
support its counter-claims.The Applicanthas also shownwhat exactly the position
of the authorities of Bosnia and Herzegovina has been regarding, indeedextremely
deplorable, atrocities cornmittedagainst BosnianSerbs. The next Chapter will
provide the legal analysis leading tothe conclusionthat the counter-claimsmust be
dismissedby the Court. Chapter 1- Section 1
Introductoryremarks
CHAPTER17
LEGAL APPRAISAL
1. Introductory remarks
1. In the previous Chapter, Bosnia and Herzegovinahas analytically reviewed the facts
on which the counter-claims submitted by the Respondent are based and has
demonstratedthat those facts are not sustainedby any credible evidence, showing by
the same token the intrinsic and overwhelmingweakness of the allegations of the
Respondent. This lack of foundation is even more patent under a legal perspective.
As will be shown hereinafter, the allegations by the Respondent are without basis in
law and are supported by no serious evaluation of the alleged facts under the
Genocide Convention.
2. Moreover, the previous Chapter has revealed -as this Chapter also will- the striking
cynicism and impudence that characterisesthe Respondent'sposition in this case. In
contempt of the most evident truth, as it was recognised and proclaimed by the
International Community through prestigious internationalinstitutions, impartial
observers and the unanimous public opinion (al1precisely referred to by the
Applicant in its Memorial and in the previous pages of this Reply), the Respondent
is now trying to reverse the roles before the Court. It is presenting the victim of one
of the most atrocious genocides in history as supposedlythe true perpetrator of
genocide. It is trying, at least, to justifj its own genocidal acts as nothing but a
reaction to a genocide allegedly cornmittedby Bosnia and Herzegovina -and in no
way proven. It describes the facts as if there could be a "balance of guilt" between
the parties. Bosnia and Herzegovina cannot but stress emphatically, once again, that
it rejects tius offensive attempt by the Respondent, which is in flagrant contradiction
with the truth [see also above, Chapter 2, Section 11.
3. In a previous phase of the proceedings, Bosnia and Herzegovina had pleaded against
the junction of the Respondent's counter-claimsto the original proceedings, in so far
as it considered them -as it still does- to constitute autonomous claims, basedon
different facts, which could not have any influence in the appreciation of the original
Bosnian claim. In its Order of 17December 1997,the Court found that the counter-
claims form part of the current proceedings and decidedtheir junction to them,
essentially to achieve a procedural economy andto ensure better administration ofReply ofBosnia anHerzegovina
justice. Obviously, Bosniaand Herzegovinafully respectsthis pronouncement.
Furthermore, it takes note with satisfaction that,in that Order,the claim andthe
counter-claimshave beenrecognisedas being completely autonomouson their merits
so that the judgment on the claims of one of the parties cannot influencethe
judgment on the others [seenotably Order, 17Dec. 1997, para.35; see also para.
4. It is important for Bosnia and Herzegovina torestate clearly its position on this
matter. Indeed, Bosniaand Herzegovinahas never denied, and does not deny at this
stage, thatunder Article IX of the Genocide Convention theCourt has, in general,
jurisdiction to decide on any dispute concerning the responsibility of a State partyto
the Convention, for the violation of the obligationsprescribedby the Conventionat
the request of any other State party, and,in particular,to decide on the merits of the
counter-claimssubmittedby the Respondent.The right to seizethe Court for such
disputes, even when the claimant State or its nationals are not the direct victimsof
the genocidal acts, is nothing but the logical consequenceof the fact that "the rights
and obligationsenshrinedby the Conventionare rights and obligationserga omnes"
[Applicationof the Convention onthe Prevention and Punishmentof the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia),PreliminaryObjections,
Judgment, 11July 1996, para. 311.
5. However, if Bosnia and Herzegovinafully recognisesthe jurisdiction of the Court to
decide upon the counter-claims,it does so with two importantcaveats.
6. First, the jurisdiction ratione materiae of the Court is strictly defined by the
Genocide Convention and coversonly State responsibility for genocideand for the
other violations related to genocide,as provided by the Convention. Notably,the
Court has no jurisdiction to decide on disputes concerningwar crimes or crimes
against humanity as such, which are beyond the scope of the Genocide Convention.
War crimes and crimes against humanity (as many other kinds of criminal acts)
could come under the jurisdiction of the Court by virtue of Article IX of the
Genocide Conventiononly when -and in so far as- it is arguedthat they are elements
of a genocidalpattern of conduct, as part of a plan intending"to destroy,in whole or
in part, a national,ethnical, racial or religious group" [see above,Part 1,Chapter 2,
Section 31.
7. Secondly,the Respondentwould be entitled to obtain remediesonly to the extent it
can prove that its rights under the Convention have beeninfringedand that the legal Chapter 17-Section 1
Introductory remarks
grounds to obtainthose remediesexist. Notably,the Court couldadjudge and declare
the Respondent's rightsto obtain reparation-under any form- from Bosnia and
Herzegovina only if it found -andto the extentit found- that the Respondent has
suffered damagesas a consequenceof internationally wrongfulacts attributable to
Bosnia and Herzegovina.As the Court stated, concerning compensation:
"1n order to award compensation the Courtcan only act with reference to a concrete submission as
to the existence and theunt of each head ofdamage.[FisheriesJurisdiction (Federal
Republic of Germanyv. Iceland), Merits,Judgment, ICJ Reports 1974, p. 204,
para. 761.
8. In this respect, Bosnia and Herzegovina notes that Yugoslavia is requestingthe Court
to adjudge and declare that:
"5. Bosnia and Herzegovina is bound to take necessarymeasures so that the said acts would not be
repeated in the future.
6. Bosnia and Herzegovina is boundto eliminateal1consequencesof the violation of the
obligations establishedby the8 Conventionon the Prevention and Punishmentof the Cofme
Genocide and provide adequate compensatio[Counter-Mernorial,p. 1085,
Submissions5-61.
9. The fifth Yugoslav submissionis ambiguouslyformulated.Bosnia andHerzegovina
interprets it as referring to its obligationto give assurances andguarantees of non-
repetition as a consequenceof the internationally wrongfulacts it would allegedly
have comrnitted.Consequently,this submissionis not to be consideredautonomous:
it depends on the demonstrationby the Respondentthat Bosnia and Herzegovina
violated the Genocide Convention,which -as it was shown in the previous Chapter
and will be further analysedhereinafter-is absolutely notthe case. Moreover, the
Respondent does not, at any time, either identi@the legal grounds supporting this
submissionnor demonstratethat the conditionsfor the existence of such an
obligation are fulfilled. Under this aspect, Bosnia andHerzegovinawill only recall
that in the words of the InternationalLaw Commission,the assurancesand
guaranteesof non-repetition "should notbe automatically availableto every injured
State" and that they "presuppose arisk of repetitionof the wrongful act" which the
Respondent has in no way proven -as it hasnot even proven that Bosnia and
Herzegovina has actually violatedthe Genocide Convention-[see Yearbookof the
International Law Commission, VolumeII, Part Two,1993, p. 821.Reply of Bosnia and Herzegovina
10. Even more striking is the sixth submission, where the Respondent invokes Bosnia
and Herzegovina'sobligation "to eliminateal1consequencesof the violation"and to
"provide adequate compensation".1sthe Respondent supposedto be entitled to obtain
the payment of such a compensation?On which grounds? Nowherein the Counter-
Memorial isthere anembryo of a legal explanationon this point. In fact, if the
Respondentpresents the absolutely unproven accusation that Bosnia and Herzegovina
has cornmittedacts of genocide or other violationsof the Convention,it does not
pretend [with some minimal exceptions:see Counter-Memorial, pp. 729-730, para.
7.1.64.0.1that these alleged acts have been committedin the territory of Yugoslavia,
nor that they have beendirected against individuals tobe considered nationalsof the
Federal Republic of Yugoslavia under international lawand for whom the
Respondentcould take up the case asparens patriae. In other words, the Respondent
has in no way proven that it has suffered "any economically assessabledamage"
susceptibleof being compensated[seeArticle 44, para. 2 of I.L.C.'s Draft Articles
on State Responsibility,in United Nations,Report of the International Law
Commissionto the General Assembly,1996, Doc. A/51/10,p. 1421.
11. In thecircumstancesof this case, and should the Respondent's allegationsbe true -
which, the Applicantreiterates, is absolutely notthe case-,Bosnia and Herzegovina
could only thinkof one remedythe Respondentwould be entitled to receive,i.e.
satisfactionfor the moral andlor legal damage it couldhave suffered,being a party
to the GenocideConvention,as a consequenceof the violations allegedly committed
by Bosnia and Herzegovina.Yet, the Respondentgivesneither evidence nor legal
assessrnenton this point.
12. In the following, Bosniaand Herzegovinawill analyseand reply specificallyto the
accusationsput forward against it by the Respondentin its Counter-Memorial.These
can be classifiedin four categories:a) incitementto commit genocide[see Counter-
Memorial, p. 1083-1084,SubmissionNo. 3, paras. 2-5; see also ibid., p. 1077, para.
7.5.9.1;b) genocide [see ibid., p. 1083-1085, SubmissionNo. 3, paras. 1-61;c)
breach of the obligation to prevent genocidalacts [see ibid., p. 1084, Submission
No.3, para. 7; see also ibid., p. 1077, paras. 7.5.10. andpar. 7.5.12.1;and d) breach
of the obligationto punish genocidalacts [see ibid.,p. 1084, SubmissionNo. 4; see
also ibid., p. 1077, para..5.11.1.
13. Only the last three accusations- i.e. the alleged commissionof genocide, breachof
the obligationto prevent genocidal actsand breachof the obligationto punish
genocidal acts -will be dealt with in these pages. In fact, the first -nincitement to Chapter 17-Section 2
TheRespondentS unacceptableaccusation that
'Bosniaand Herzegovinais responsiblefor the
acts ofgenocide comrnitted againstthe Serbs in
Bosniaand Herzegovina"
commit genocide -does not deserve further comments, as it is not sustained by even
a scintilla of evidence whatsoever, as was clearly demonstratedin the previous
Chapter [Chapter 16, Section 21.It suffices to recall that none of these acts or
declarations alleged by the Respondent as constituting an incitement to commit
genocide appears to be attributable, inany way whatsoever, to Bosnia and
Herzegovina. On the contrary, the previous Chapter has also demonstratedthat the
Bosnian govenunental authorities have repeatedly taken position, in public
declarations, for the respect of the Serb population in Bosnia and Herzegovina.
14. As a prelirninary and general remark, Bosniaand Herzegovina wishesto draw the
attention of the Court to one feature of the entirPar Ttwo of the Respondent's
Counter-Memorial. In 730 pages dedicated to the conter-claims, the Respondent
offers absolutely no legal analysis of its case before the Court: the facts alleged are
never specifically appreciated in the legal terms of the Genocide Convention and the
Respondent seems to rely only on two pages -called "Conclusions"- which do
nothing more than repeating the words of the Convention. In order to reply on legal
grounds to the counter-claims, Bosniaand Herzegovina is perhaps expected by the
Respondent to build a case against itself. This, Bosniaand Herzegovina refuses to
do, not in the least as it stronglystains that no case can be built against it. The
following Sections are only intended to fürther demonstrate in legal terms to the
Court that the Yugoslav counter-claims are totally unfoundedunder the Genocide
Convention.
2. The Respondent's unacceptable accusation that"Bosnia andHenegovina is
responsible for the acts of genocide committed against the Serbsin Bosnia and
Henegovina"
15. In the conclusions to Chapter VI1of its Counter-Memorial,the Respondent alleges
that:
"~he facts and evidence presented in Chapter VI1of the Counter-Memorial provethat the said acts
of genocide have been comrnittedby the members of the State organs of Bosnia and ~erzegovina."
[Counter-Memorial, p. 1076,para. 7.5.7.1.
16. In its "General Conclusions", it states:Reply ofBosnia and Herzegovina
"~he organs of Bosnia and Herzegovihas [have] committed acts of genoc(...)[ibid., p.
1080, para. 8.20.1.
17. In its submissions,it reiteratesthat:
"(...) the armed forces of Bosnia and Herzegoaswell as other organs of Bosnia and
Herzegovina have committed actsof genocide..)[ibid.,p. 1084, SubmissionNo. 3,
para. 61.
18. Now, the introductoryparagraph of SubmissionNo. 3 clarifies that the Respondent
requests the Courtto adjudge and declare that:
osni niand Herzegovina is responsiblefor the acts of genocide committed againstthe Serbs in
Bosnia and Herzegovina and for other violations of the obligations established8
Convention on the Preventionand Punishment of the Crime of Genoci[emphasisadded,
ibid].
19. Bosnia and Herzegovina cannotbut declare to the Court its strong surprise of being
accused by the Respondentof acts of genocide,when one of the bases of the
Respondent'sdefence in Part One of its Counter-Memorialis precisely that
"accordingto the 1948Genocide Conventiona State cannot commit genocide and
other punishable acts"[see Counter-Memorial, pp. 308-3 12, Section 4.1 O.].As it was
clearly explained inthe previous pages of this Reply [see above, Chapter 2, Section
4; and Chapter6 Section41,Bosnia and Herzegovinadoes not accept this latter
interpretation,but it considersthat suchblatant contradictionin terms betweenthe
response to the Applicant'sclaim and the counter-claimsreveals with absolute
clarity, once again, the evidentmala$des of the Respondentin the whole
proceedings of this case andhow the only real purpose of its counter-claimsis the
intent to delay the procedure and cloud the entire issue at stake.By doing so, by
blowing hot and cold in the sarnewritten pleading, the Respondentis scoming the
most basicprinciples of good faith which shouldinspire the behaviour of the parties
in al1proceedingsbefore the Court andserve the interestsof the proper
administrationof justice.
20. It is the opinion of Bosnia and Herzegovina that the Court shouldconsider such a
behaviour as unacceptable,on the basis of the elementaryprinciple allegans
contraria non audiendus est. This principle (called "judicialestoppel")is well known
in comrnonlaw systems. Accordingto the Black'sLaw Dictionary: Chapter 1- Section 2
TheRespondentS unacceptable accusationthat
"Bosniaand Herzegovinais responsiblefor the
acts ofgenocide committed againstthe Serbs in
Bosnia and Herzegovina"
"under doctrine of 'judicial estoppel', aparty is bound by hisjudicial declarations and may not
contradict them in a subsequent proceeding involvingsame issuesand parties (...). Under this
doctrine, arty who by its pleadings, statementsor contentions,under oath has assumed a
particular position in a judicial proceedingis estopped to assumean inconsistent positionin a
subsequent action..)[Black'sLaw Dictionary, 6th edition, St. Paul, Minneapolis,
1990, p. 8481.
21. As far as international lawis concerned, Bosnia and Herzegovina recalls the
following statementby Lord McNair:
"(...) international jurisprudence has a place forsome recognition of the principle that a State
cannot biow hot and cold -alIeganscontrarianon audiendu[ArnoldD. McNair, "The
Legality of the Occupationof the Ruhr", TheBritish YearBookof
International Law, 1924,p. 351.
22. Similarly, the Dictionnairede la terminologie dudroit international, when defining
"estoppel", has stressed the existencein international lawof:
"(...) l'objection péremptoire qui e ce qu'une partie à un procès prenneune position qui
contredit soitce qu'elle a antérieurement admis expnt tacitement, soitce qu'elle prétend
soutenir dans la même instan[Dictionnaire de la terminologie dudroit
international, JulesBasdevant(ed.), 1960,p. 2631.
23. Bosnia and Herzegovinawill further considerthe Respondent'sallegationson this
matter to show that the casethe Respondentsubmits to the Courtnot only is
contradictorywith its defencein Par t ne, but also, on other grounds,lacks any
legal basis.
24. In fact, in sofar asthe Respondent allegesthe commissionby Bosnia and
Herzegovinaof genocide asdefined in Article II of the Convention, onewould
expect the Counter-Memorialto examine andprove the followingpoints:
-that acts as enurneratedin Article II have been committedand that their
commission is attributable to Bosniaand Herzegovina;
-that those acts were directed against a national,ethnical, racial or religious
group as such, narnely-accordingto Yugoslav allegations-the Serbs in Bosnia
and Herzegovina;Reply of Bosnia and Herzegovina
-that those acts were committedwith the intent to destroy,in whole or in part,
such a group and that this intent is also attributable to Bosnia and Herzegovina.
None of these elementsare sufficiently provennor examinedunder legal terms in the
Counter-Memorial.
In the previous Chapter, Bosniaand Herzegovinahas analysedin detail each of the
factual allegations containedin the counter-claimsand has demonstratedthe grave
deficiency of the evidencepresentedby the Respondent.As show, in the majority
of cases the facts are simply not supportedby any accessible evidence whatsoever.
Whenever pieces of evidence are submitted,they are often incomplete,as they
simply lack any preciseinformationabout their source,their context,the date in
which testimonieswere taken, the identity andor residenceand/or nationality of the
witnesses, etc. Whenthis informationis given, one discovers thatthe Respondent
often relies upon anonymous testimonies, generally given before authoritiesof the
"RepublikaSrspka" or of the FederalRepublic of Yugoslavia-authoritieswhich
cannot be presurnedto be sufficientlyimpartial in the present case.Finally, the
substanceof the testimonies is often vague andor based on hearsay information. On
this last point, Bosnia and Herzegovina recallsthat, in theNicaragua case, the Court
has expressly indicatedthat a "testimonyof matters not withinthe direct knowledge
of the witness, butknow to him only from hearsay" cannotbe "of much weight"
[Militaryand Paramilitary Activities in and against Nicaragua(Nicaraguav. United
States of America), Merits, Judgment,ICJ Reports 1986,p. 42, para. 681.
26. Under strictly procedural grounds Bosnia and Herzegovina considers thatthe case
presented by the Respondent is basedupon incomplete and unreliableevidence to
prove the alleged facts. This conclusionis even more manifestwhen one compares
the evidenceproduced by the Respondentin its Counter-Memorialwith the evidence
supportingBosnia and Herzegovina'scase in its Memorialand in the present Reply
[see the extensive analysison this point in Chapter3, Section21.Therefore, Bosnia
and Herzegovina concludesthat theRespondent hasfailed to satisfi the onus of
proof which lied upon it, in applicationof the generalprinciple actori incumbit
probatio [as stated by this Court in Military and Paramilitary Activities in and
against Nicaragua (Nicaraguav. UnitedStates of America), Jurisdictionand
Admissibility, Judgment, ICJ Reports 1984,p. 437, para. 1011.In this respect, Bosnia
and Herzegovina does not forget the importantcaveat made by the Court in the
aforementionedcase, for those situations"in which evidenceof facts may be difficult
to come by (...)"[ibid.],and fully maintainsits conviction thatthis is not a criminal Chapter 1- Sectio2
TheRespondent'sunacceptableaccusationthat
"Bosniaand Herzegovinais responsiblefor the
acts ofgenocide committed againstthe Serbs in
Bosnia and Herzegovina"
trial and that therefore the factsneed notto be proven "beyond a reasonable doubt"
[see above, Chapter 3, Section 11.However,it sustainsemphaticallythat the
Respondenthas not even satisfiedits burden of proof, since it fails to give at least a
beginning of credible evidenceon the facts alleged,and that, in these circumstances,
in no way could the burden of proof (to produce exculpatory evidence)shift to
Bosnia and Herzegovina.
27. In addition, certain facts, evenif they wereproven, would notfulfil the legal criteria
established in Article II as they would fail to constitutethe objective element of
genocide, and they wouldtherefore fa11outsidethe jurisdiction of the Courtunder
the Genocide Convention [see abovein this Chapter].This holds true, for instance,
for the majority of the acts allegedin the Counter-Memorial'sSection 7.3. ("Ethnic
cleansing"),and al1the acts allegedin Section 7.4. ("Destructionof places of
worship of the SerbianOrthodox Church"):many ofthese acts could possiblybe
qualified as war crimes or crimesagainsthumanity. Once again, Bosnia and
Herzegovinadoes not forget and fully maintainsits convictionthat even acts
constitutingwar crimes or crimesagainst humanity couldbe relevant in the present
instance [see above, Chapter21 8 and only a pattern of conduct revealing that
they are part of a plan intendedto destroy,in whole or in part, a specific group,
were proven. This, as shown in Chapter 16and as will be hereinafter further
explained, has not been done, in any way, by the Respondent: a simpleenumeration
of individual crimes -even if they were sufficientlyproven, which they are definitely
not- does not suffice to establish a patternof conduct, let alone to demonstratethat
al1these individual crimes are linkedby a deliberateintent of a genocidal nature.
Moreover, the Respondentfails to prove the attribution of the facts alleged toBosnia
and Herzegovina.As exposedin the previous chapter,for the ovenvhelmingmajority
of the listed events the Respondent givesno serious evidenceon the presurned
perpetrators of the alleged facts, and, when it does, proposes no factual or legal
explanationpermitting to qualiQ the perpetratorsas de jure or defacto organs of
Bosnia and Herzegovina.Therefore,the allegation according to which "the armed
forces of Bosnia and Herzegovina,aswell as other organs of Bosnia and
Herzegovina have committedacts of genocide"[Counter-Memorial,p. 1084,
SubmissionNo. 31 is sustainedby no proof whatsoever.These deficiencies are even
more unacceptableas Bosnia and Herzegovina,on its side, has given evidenceReply of Bosnia and Herzegovina
proving that, far fkomcommitting, inciting or even oniy permitting the commission
of crimes against the Serbs, its govemment authoritiesdid everything they reasonably
could to prevent them [see above, Chapter 161.
29. The Respondent has also failed to prove that the allegedacts were directed against
Serbs as a group. It refers to a certain number of documents and testimoniesto prove
indeed atrocious acts supposedly committed againstSerbs, but fails to place them in
a larger context and to demonstrate that they did not remain isolated andwere the
implementation of a larger policy targetingthe Serbs as a group. Actually, Bosnia
and Herzegovina does not deny and also deeply regrets that crimes have been
committed against Serbs, but rejects the allegation about the existenceof a policy
aiming at their destruction as a group which is devoid of any evidential ground
whatsoever.
30. This brings Bosnia and Herzegovina to the third element. As shown in the previous
Chapter, the Respondent fails to give any evidence to support its allegationsthat
there existed an intent to destroy, in whole or in part, the Serbsas a group and that
this intent can be attributed to Bosnia and Herzegovina. As Bosnia and Herzegovina
has previously asserted [notably,in Chapter 3, Section 11,such an intent could be
inferred by the Court if the claimant could prove a pattern of conduct in the alleged
acts on a national scale and over a protracted period.the Respondent introduces its
description of the alleged "deliberate killingof the civilian population and captured
persons of Serb nationality" with the following statement:
"(...theseactswere committed witheintentof completeorpartialdestructionof one religious
and ethnicgroup.Thisintentderivesfiom a numberof circumstan. hus,thepatternof victims
indicatesthatthekillingswerecommitted regardosf sex andage;menandwomen,theyoung
andtheoldwerekilled alike.Thevictimsdidnotparticipateinmedconflictandwere not
membersof the Serb armedforces.Thevictimsdidnotprovoke thisimebytheirconductin any
way;theywerekilledintheirhomes, whileworkingintheirfields,kento campsandtortured
andkilledthere.Al1theseelementsclearlyindicatethatwhatis involvedhereis thegenocideof
the Serbpeople.'[Counter-Memorial,p. 351,para 7.1.O.O.].
31. It is evident from this preliminary statement that the Respondent completely misses
the point at stake. It seems to thinkthat a long enumeration of acts characterised by
a blind violence against civilians with no distinction of sex and age is enough to
demonstrate the "intent" required by the definition of genocide. As Bosnia and
Herzegovina hasalready shown [see above, Chapter 3, Section 1 and Chapter 6,
Section 31,what needs to be proven in order to conclude on the existence of a
genocide is not the blindness of violent acts but, on the contrary, their instrumental Chapter 17-Section2
TheRespondent'sunacceptable accusation that
"Bosniaand Herzegovinisresponsiblefor the
acts ofgenocideommittedagainst the Serbs in
Bosnia and Herzegovina"
character (i.e. their non-blindness)in connection with a genocidalintent. Such an
intent can be inferred from a pattern of conduct that,by its proportions, its coherence
and its duration, impliesthe existenceof a larger systematic planintended to destroy,
in whole or in part, a specificgroup; othenvise these acts can only be qualified,
shouldthe constitutive elementsexist, as war crimes or crimes againsthumanity and
would then fall outside the jurisdiction of the Court under the Genocide Convention
[see above in this Chapter, Section 11.Al1this, the Respondentfails to do: it does
not try to draw a generalpicture of the alleged genocide comrnittedagainst the
Serbs, but relies only on an extensive enurnerationof isolated acts - besides
insufficiently proven -, hoping perhaps that Bosnia and Herzegovina or the Court
would find supposedpatterns revealingan imaginary systematic policytargeting the
Serbs. Moreover, in the entire Part Two, no evidenceis given allowing to attribute
an alleged intent to destroythe Serbsto Bosnia and Herzegovina.More generally,no
evidence is given of a political programwhatsoeverby the governmentalauthorities
of Bosnia and Herzegovina favouringan ethnically homogeneousState.
32. This loose presentationof the facts is far fiom challengingthe large impartial
evidenceproduced by Bosnia and Herzegovina demonstrating thatan intent on its
part to destroy the Serbs is absolutely excluded.In this respect, Bosniaand
Herzegovina briefly recalls, inter alia, the independentobservationsspecifically
denying the existenceof a pattern of policyon the part of Bosnia andHerzegovina
[see Chapter 6, Section 3; Chapter 16, Section 1 and,for instanceconcerning the
specific accusations of sexual assault, Chapter 7, Section41,its extensive cooperation
with the ICTFY [see Chapter16, Section 11,the fact that multi-ethnicpersonnel has
always participated in Bosnianpublic administrationsand in the Bosnian government
[see, Chapter 16, Section 11,its acceptanceof al1of the peace-plans proposedat
various stages of the conflict, even when they did not exactly correspondto its
political preferences [seeChapter 16, Section 11and, in general, its reiterated
declarationsin favour of a peaceful settlementof the disputes in the region [see,
Chapter 16, Section 11.
33. Furthemore, and as another clamorousdemonstrationof the cynicism characterising
the Yugoslav accusations, Bosniaand Herzegovinawould like to recall that, as it has
been proven above [see Chapter 8, Section31,before the outbreak of the war, the
Respondenthad implemented a policy intendingto concentratethe arms in hands ofReply of Bosnia and Herzegovina
the Bosnian Serbs, so that, in the beginning of the war, the non-Serbside- notably
the Muslims -was very poorly equipped and not militarily organised.It is self-
evident that, inthese disastrousconditions,it would havebeen materially impossible
for Bosnia and Herzegovinato organise and implementa systematicand large scale
plan aiming at the destructionof the Serbs.
34. To sustain its allegationson the responsibilityof Bosnia and Herzegovina foracts of
genocide,the Respondentwould have been expected to demonstrate that:a) a
conduct consisting of actions or omissionsis attributableto the Stateof Bosnia and
Herzegovina;and b) that this conduct violated the internationalobligationsof Bosnia
and Herzegovina under the Genocide Convention[see Article 3 of the International
Law CommissionDraft Articles on State Responsibility, United Nations,Report of
the InternationalLaw Commissionto the GeneralAssembly,1996, A151110,p. 1261.
This, the Respondenthas certainly failed to do.
3. The Respondent's unacceptable accusationthat "Bosnia has breachedits
obligations,pursuant to Article 1 of the Convention onthe Prevention and
Punishment of the Crime of Genocide, to prevent acts of genocide"
35. The Respondent further argues thatBosnia and Herzegovina has breachedits
obligationto prevent acts of genocide [Counter-Mernorial,p. 1084, Submission No.
3, para. 7.1;see also ibid., p. 1077, para. 7.5.1O].
36. This presupposes,of course, that genocidehas beencommittedagainstthe Serbs and
that Bosnia and Herzegovinahas not taken the appropriate measuresat its disposa1to
prevent it. Consequently the present accusation collapses togetherith the allegations
analysed in the previous Chapter andin the previous Section,since Bosnia and
Herzegovinahas extensively demonstrated thatno genocide directed againstthe
Serbs was committed.
37. Besides, this also seemsto be the position of the Respondent,as far as Part Two of
its Counter-Memorialcontainsno specific elaborationon this point: the Respondent
appears to rely only onthe descriptionof the alleged acts of genocideas presented in
Sections 7.1.-7.4. to reach its final conclusion[Counter-Mernorial,p. 1077,para.
7.5.10.1that Bosnia andHerzegovinahas violated its obligationto prevent acts of
genocide.The only trace of elaboration one could findon this matter is perhaps at
the beginning of Section 7.2., where the Respondentallegesthe existenceof camps
where Serbs were supposedly subjectedto torture and evenkilled, as a means of Chapter 17-Section 3
TheRespondentS unacceptabIeaccusation that "Boshas
breached its obligations,pursuant to Article I of the
Conventionon thePreventionandPunishmentof the
Crime of Genocide,toprevent acts of geno"ide
genocide, and where it argues that "[tlhe presidency, the Govenunent and the other
official bodies of Bosnia and Herzegovina knewabout the existence of these camps.
They knew that the inmates were exclusively Serb civilians, and they knew how they
were being treated" [Counter-Memorial,p. 731, para. 7.2.0.0.1.The Respondent
infers from this simple (alleged) "knowledge"the far reaching conclusion that
"Bosnia and Herzegovinais held responsible for the acts of genocide" [Ibid]. Bosnia
and Herzegovina stresses again that, even if they were proven -which, it reiterates,
is not the case - the aforementioned acts would substantiate war crimes or even
crimes against humanity, but not genocide, and therefore would not fa11within the
jurisdiction of the Court under the Genocide Convention [seeabove in this Chapter,
Section 11.In any case, itis legally incorrect to qualify the unlawful omission to
prevent acts of genocide as genocideper se. However, leaving aside these conceptual
considerations, it must be highlighted that the Respondent does not support its
allegations with any kind of proof and Bosnia and Herzegovina cannot but recall
once again that the evidence presented in the whole Section 7.2. to, supposedly,
prove that acts of genocide were perpetrated in camps is not credible: Bosnia and
Herzegovina strongly denies these allegations [see Chapter 16, Section21.
Consequently, Bosnia and Herzegovina concludes that the Respondent has not
satisfied its burden of proof concerning the present accusations and that, in these
circumstances, in no way can the burden of proof (to produce exculpatory evidence)
shift to Bosnia and Herzegovina.
38. However, even if it is not absolutely necessaryto reply to this accusation, Bosnia
and Herzegovina wishes to recall, once more, the efforts it has undertaken in order to
prevent crimes against the Bosnian Serbs. Notably, it recalls its Platform [Chapter
16, Section 1). itsrepeated declarationscalling for the preservation of a multicultural
Bosnia andHerzegovina and favouring a peaceful settlementof the disputes in the
region and theconcordant impartial reports that deny the existence, on its side, of a
large scale and systematic action towards the commission of atrocities [see above,
Chapter 16, Section 11.In this respect, Bosnia and Herzegovinawishes also to
underline its continued and constructive cooperationwith the ICTFY, regardless of
the ethnicity of suspects andJorof victims involved.
39. Sirnilarly,the Respondent offers no elaboration (and no evidence) on the MerReplyofBosnia and Herzegovina
-though closely related - accusation that Bosniaand Herzegovina has breached its
obligation under Article V of the Genocide Convention"to include in its internal
legislation provisions on the implementationof the Convention" [Counter-Memorial,
p. 1077,para. 7.5.121.To reply to this specific point, Bosniaand Herzegovina needs
only to recall that the BosnianCriminal Code,which is in force and is copied from
the Criminal Code of the Socialist Federal Republicof the Yugoslavia,contains
specific provisionswith regardto the crime of genocide, whichis punished with the
gravest penaltiesunder its criminallegislation.
40. For these reasons, Bosniaand Herzegovina categoricallydenies that it has violated its
obligations to prevent acts of genocideunder the Genocide Convention and to
include in its internal legislation provisionson the implementationof the Convention.
4. The Respondent's unacceptable accusationthat "Bosniahas breached its
obligation, in accordance with Articles 1-IVof the Convention on thePrevention
and Punishment of the Crime of Genocide, to punishacts of genocide"
41. In the Conclusionsof Part II, concerning the Counter-Claims, andin the General
Conclusionsof its Counter Memorial,the Respondent unambiguouslyaccuses Bosnia
and Herzegovina of having breachedits obligations to punishacts of genocide [see
Counter-Memorial,p. 1077, para. 7.5.11and ibid, p. 1082,Section 8.23.1.This
accusation is not expressly restatedin the Respondentfinal submissions,although
SubmissionNo. 4 could be interpretedas a requestto the Court to adjudge and
declare that Bosnia and Herzegovina hasviolatedsuch an obligation [see ibid., p.
1085, SubmissionNo. 41.However,as this accusation has indeed been raisedin the
Counter-Claims,Bosnia and Herzegovina willalso respondto it.
42. Once again, this accusation presupposes thatacts of genocidehave been cornmitted
by individuals under Bosnianjurisdiction which -Bosnia and Herzegovina
reiterates- is absolutely falseand the Respondenthas in no way proven. It is self-
evident from a reading of the Counter-Memorial thatthe Respondent hasin no way
satisfied its burden of proof concerningthis allegation.In these circumstancesthe
burden of proof (to produce exculpatoryevidence)in no way can shift to Bosnia and
Herzegovina.
43. Even if the Respondenthad proven, whichit has not, the omissionby Bosnia and
Herzegovina to punish the perpetratorsof crimesthat are not providedfor by the
Genocide Conventionand that could onlybe qualifiedas crimes against humanity or Chapter 17- Sectio5
Conclusions
war crimes, the Court would not have jurisdiction to decide on such a dispute on the
basis of Article IX of the Genocide Convention. Besides that, Bosnia and
Herzegovina has done everything it, given the circumstances, reasonably could to
prosecute individuals under its jurisdiction allegedly responsible of crimes against
Serbs or to cooperate with the ICTFY for their prosecution at an international level
[see above, Chapter 16, Section 11.
44. For these reasons, Bosnia and Herzegovina categorically denies that it has violated its
obligations to punish acts of genocide under the genocide Convention.
5. Conclusions
45. As has been extensively demonstrated in Chapter 16 and in the previous Sections of
this Chapter, the Respondent has in no way established any breach of the Genocide
Convention attributable to Bosnia and Herzegovina and thus has demonstrated no
grounds for any responsibility of Bosnia and Herzegovina under the Convention. PART VI
CONCLUSIONSAND SUBMISSIONS
1. As shown by the Applicant in its Memorial andin the present Reply, the facts
supportingthe Applicant S claim, by thernselves andin their entirety, precisely
constitutewhat the Convention on thePrevention and Punishrnentof the Crime of
Genocide meantto outlaw. These facts, indeed, constitute the most extreme of
human rights violations. They truly reflect and demonstratean intent to destroy a
group of human beings, in whole or in part, for reasons found in their nationality,
ethnicity and religious preference.
2. The facts, also show the Respondent's, atal1relevant times,crucial and decisiverole
in the commissionof these genocidal acts. Thefacts establish that genocidemust be
attributedto the Respondent and theyentai1its responsibility forthese violationsof
the Conventionon the Preventionand Punishrnent ofthe Crime of Genocide.
3. Moreover, the facts manifestlydemonstratethe Respondent'sfailure to, in
compliance with the 1948Convention, prevent andpunish these genocidal acts,
although the Respondentclearly and continuouslywas in a position and, therefore,
under an obligation to do so.
4. The Federal Republic of Yugoslavia'sresponse tothe Applicant's Applicationand
Memorial is entirely inadequateand based onerroneous appreciationsof fact and
law. Itcannot in any way be effective as a rebuttal to the facts and the legal
appraisal thereof, aspresented by Bosnia and Herzegovina.
5. The Respondent's approachto the facts, andto these proceedings as such, must be
characteriseds an offence to the victims of genocidein Bosnia and Herzegovina
and equally as an offence to the Applicant.
6. The Counter-Memorialdoes not in anywaywarrant the Applicant to modifj or
rnitigateits Submissionsas laid down in the Mernorialof 14 April 1994.
7. Therefore the Applicant persists in its claims as presented to this Court on 14 April
1994, andrecapitulatesits Submissionsin their entirety. Bosniaand Herzegovina
requests the InternationalCourt of Justice toadjudge and declare,Reply of Bosniaand Herzegovina
That the Federal Republicof Yugoslavia,directly,or throughthe use of
its surrogates,has violatedand is violating the Conventionon the
Preventionand Punishmentof the Crimeof Genocide, bydestroyingin
part, and attemptingto destroy in whole, national,ethnicalor religious
groups withinthe, but not limitedto the, territoryof Bosnia and
Herzegovina, includingin particularthe Muslirnpopulation,by
- killing membersof the group;
- causing deliberate bodilyor mentalhm to members ofthe group;
- deliberatelyinflictingon the groupconditionsof life calculatedto
bring about its physical destructionin whole or in part;
- imposingmeasures intendedto preventbirths within the group.
2. That the FederalRepublicof Yugoslaviahas violated andis violating the
Conventionon the Preventionand Punishment ofthe Crimeof Genocide
by conspiringto commit genocide,by complicityin genocide, by
attemptingto commit genocideand by incitementto commit genocide;
3. That the Federal Republic of Yugoslavia has violated and is violatingthe
Conventionon the Preventionand Punishment of the Crimeof Genocide
by aiding and abetting individualsand groupsengagedin acts of
genocide;
4. That the Federal Republicof Yugoslaviahas violated andis violating the
Conventionon the Preventionand Punishment of theCrime of Genocide
by virtue of having failedto prevent and to punish acts of genocide;
5. That the Federal Republicof Yugoslavia mustimmediatelycease the
above conduct and take immediateand effective stepsto ensure full
compliance withits obligations under the Convention onthe Prevention
and Punishment ofthe Crimeof Genocide;
6. That the Federal Republicof Yugoslaviamust wipe out the consequences
of its internationalrongful acts and must restore the situation existing
before the violationsof the Conventionon the Prevention and Punishment
of the Crime of Genocide were committed;
7. That, as a result of the internationalresponsibilityincurred for theabove
violationsof the Conventionon the Preventionand Punishmentof the
Crime of Genocide,the FederalRepublicof Yugoslaviais required to
pay, and Bosnia andHerzegovinais entitledto receive, in its own right
and asparenspaîriae for its citizens,full compensationfor the damages
and lossescaused,in the amountto be determinedby the Court in a
subsequentphase of the proceedings in this case.
Bosnia and Herzegovinareservesits right to supplementor amendits
subrnissionsin the light of Mer pleadings. CONCLUSIONSAND SUBMISSIONS
8. On the very sarnegrounds the conclusionsand Subrnissionsof the Federal Republic
of Yugoslaviawith regard to the Submissionsof Bosnia and Herzegovinaneed to be
rejected.
9. With regardto the Respondent's counter-claimsthe Applicant cornesto the following
conclusion.There is no basis in fact and no basis in law for the proposition that
genocidal acts have been committedagainst Serbsin Bosnia andHerzegovina.There
is no basisin fact and nobasis in law for the propositionthat any such acts, if
proven, would havebeen committedunder the responsibilityof Bosnia and
Herzegovinaor that such acts, if proven, wouldbe attributableto Bosnia and
Herzegovina.Also, there is no basis in fact and no basis in law for the proposition
that Bosnia andHerzegovina has violatedany of its obligationsunder the Convention
on the Preventionand Punishrnentof the Crimeof Genocide. On the contrary,
Bosnia andHerzegovinahas continuouslydone everythingwithin its possibilities to
adhere to its obligationsunder the Convention,and will continueto do so.
10. For these reasons, Bosnia and Herzegovinarequeststhe InternationalCourt of Justice
to reject the counter-clairnssubmittedby the Respondentin its Counter-Mernorialof
23 July 1997.
The Hague, 23 Apnl 1998
Muhamed SACIRBEY
Agent of Bosnia and Herzegovina
Reply of the Government of Bosnia and Herzegovina